[Congressional Bills 117th Congress]
[From the U.S. Government Publishing Office]
[S. 4186 Introduced in Senate (IS)]
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117th CONGRESS
2d Session
S. 4186
To provide compensation for victims of the fire initiated as a
prescribed burn by the Forest Service in the Santa Fe National Forest
in San Miguel County, New Mexico.
_______________________________________________________________________
IN THE SENATE OF THE UNITED STATES
May 11 (legislative day, May 10), 2022
Mr. Lujan (for himself and Mr. Heinrich) introduced the following bill;
which was read twice and referred to the Committee on the Judiciary
_______________________________________________________________________
A BILL
To provide compensation for victims of the fire initiated as a
prescribed burn by the Forest Service in the Santa Fe National Forest
in San Miguel County, New Mexico.
Be it enacted by the Senate and House of Representatives of the
United States of America in Congress assembled,
SECTION 1. SHORT TITLE.
This Act may be cited as the ``Hermit's Peak Fire Assistance Act''.
SEC. 2. FINDINGS AND PURPOSES.
(a) Findings.--Congress finds that--
(1) on April 6, 2022, the Forest Service initiated a
prescribed burn on Federal land in the Santa Fe National Forest
in San Miguel County, New Mexico, when erratic winds were
prevalent in the area that was also suffering from severe
drought after many years of insufficient precipitation;
(2) on April 12, 2022, the prescribed burn, which became
known as the ``Hermit's Peak Fire'', exceeded the containment
capabilities of the Forest Service, was reclassified as a
wildland burn, and spread to other Federal and non-Federal
land, quickly becoming characterized as a wildfire;
(3) on April 19, 2022, the Calf Canyon Fire, also in San
Miguel County, New Mexico, began burning on Federal land;
(4) on April 27, 2022, the Hermit's Peak Fire and the Calf
Canyon Fire merged, and both fires were reported as the
Hermit's Peak Fire or the Hermit's Peak/Calf Canyon Fire, which
shall be referred to hereafter as the Hermit's Peak Fire;
(5) by May 2, 2022, the fire had grown in size and caused
evacuations in multiple villages and communities in San Miguel
County and Mora County, including in the San Miguel county
jail, the State's psychiatric hospital, the United World
College, and New Mexico Highlands University;
(6) on May 4, 2022, the President issued a major disaster
declaration for the counties of Colfax, Mora, and San Miguel,
New Mexico;
(7) the fire resulted in the loss of Federal, State, local,
Tribal, and private property; and
(8) the United States should compensate the victims of the
Hermit's Peak Fire.
(b) Purposes.--The purposes of this Act are--
(1) to compensate victims of the fire at Hermit's Peak, New
Mexico, for injuries resulting from the fire; and
(2) to provide for the expeditious consideration and
settlement of claims for those injuries.
SEC. 3. DEFINITIONS.
In this Act:
(1) Administrator.--The term ``Administrator'' means--
(A) the Administrator of the Federal Emergency
Management Agency; or
(B) if a Manager is appointed under section
4(a)(3), the Manager.
(2) Hermit's peak fire.--The term ``Hermit's Peak Fire''
means the fire resulting from the initiation by the Forest
Service of a prescribed burn in the Santa Fe National Forest in
San Miguel County, New Mexico, on April 6, 2022, which
subsequently merged with the Calf Canyon Fire, and both fires
were reported as the Hermit's Peak Fire or the Hermit's Peak
Fire/Calf Canyon Fire.
(3) Indian tribe.--The term ```Indian Tribe'' means the
recognized governing body of any Indian or Alaska Native Tribe,
band, nation, pueblo, village, community, component band, or
component reservation individually identified (including
parenthetically) in the list published most recently as of the
date of enactment of this Act pursuant to section 104 of the
Federally Recognized Indian Tribe List Act of 1994 (25 U.S.C.
5131).
(4) Injured person.--The term ``injured person'' means--
(A) an individual, regardless of the citizenship or
alien status of the individual; or
(B) an Indian Tribe, corporation, Tribal
corporation, partnership, company, association, county,
township, city, State, school district, or other non-
Federal entity (including a legal representative) that
suffered injury resulting from the Hermit's Peak Fire.
(5) Injury.--The term ``injury'' has the same meaning as
the term ``injury or loss of property, or personal injury or
death'' as used in section 1346(b)(1) of title 28, United
States Code.
(6) Manager.--The term ``Manager'' means an Independent
Claims Manager appointed under section 4(a)(3).
(7) Office.--The term ``Office'' means the Office of
Hermit's Peak Fire Claims established by section 4(a)(2).
(8) Tribal entity.--The term ``Tribal entity'' includes any
Indian Tribe, tribal organization, Indian-controlled
organization serving Indians, Native Hawaiian organization, or
Alaska Native entity, as such terms are defined or used in
section 166 of the Workforce Innovation and Opportunity Act (25
U.S.C. 5304).
SEC. 4. COMPENSATION FOR VICTIMS OF HERMIT'S PEAK FIRE.
(a) In General.--
(1) Compensation.--Each injured person shall be entitled to
receive from the United States compensation for injury suffered
by the injured person as a result of the Hermit's Peak Fire.
(2) Office of hermit's peak fire claims.--
(A) In general.--There is established within the
Federal Emergency Management Agency an Office of
Hermit's Peak Fire Claims.
(B) Purpose.--The Office shall receive, process,
and pay claims in accordance with this title.
(C) Funding.--The Office--
(i) shall be funded from funds made
available to the Administrator under this Act;
and
(ii) may reimburse other Federal agencies
for claims processing support and assistance.
(3) Option to appoint independent claims manager.--The
Administrator may appoint an Independent Claims Manager to--
(A) head the Office; and
(B) assume the duties of the Administrator under
this Act.
(b) Submission of Claims.--Not later than 2 years after the date on
which regulations are first promulgated under subsection (f), an
injured person may submit to the Administrator a written claim for 1 or
more injuries suffered by the injured person in accordance with such
requirements as the Administrator determines to be appropriate.
(c) Investigation of Claims.--
(1) In general.--The Administrator shall, on behalf of the
United States, investigate, consider, ascertain, adjust,
determine, grant, deny, or settle any claim for money damages
asserted under subsection (b).
(2) Applicability of state law.--Except as otherwise
provided in this Act, the laws of the State of New Mexico shall
apply to the calculation of damages under subsection (d)(4).
(3) Extent of damages.--Any payment under this Act--
(A) shall be limited to actual compensatory damages
measured by injuries suffered; and
(B) shall not include--
(i) interest before settlement or payment
of a claim; or
(ii) punitive damages.
(d) Payment of Claims.--
(1) Determination and payment of amount.--
(A) In general.--
(i) Payment.--Not later than 180 days after
the date on which a claim is submitted under
this Act, the Administrator shall determine and
fix the amount, if any, to be paid for the
claim.
(ii) Priority.--The Administrator, to the
maximum extent practicable, shall pay
subrogation claims submitted under this Act
only after paying claims submitted by injured
parties that are not insurance companies
seeking payment as subrogees.
(B) Parameters of determination.--In determining
and settling a claim under this Act, the Administrator
shall determine only--
(i) whether the claimant is an injured
person;
(ii) whether the injury that is the subject
of the claim resulted from the fire;
(iii) the amount, if any, to be allowed and
paid under this Act; and
(iv) the person or persons entitled to
receive the amount.
(C) Insurance and other benefits.--
(i) In general.--In determining the amount
of, and paying, a claim under this Act, to
prevent recovery by a claimant in excess of
actual compensatory damages, the Administrator
shall reduce the amount to be paid for the
claim by an amount that is equal to the total
of insurance benefits (excluding life insurance
benefits) or other payments or settlements of
any nature that were paid, or will be paid,
with respect to the claim.
(ii) Government loans.--This subparagraph
shall not apply to the receipt by a claimant of
any government loan that is required to be
repaid by the claimant.
(2) Partial payment.--
(A) In general.--At the request of a claimant, the
Administrator may make 1 or more advance or partial
payments before the final settlement of a claim,
including final settlement on any portion or aspect of
a claim that is determined to be severable.
(B) Judicial decision.--If a claimant receives a
partial payment on a claim under this Act, but further
payment on the claim is subsequently denied by the
Administrator, the claimant may--
(i) seek judicial review under subsection
(i); and
(ii) keep any partial payment that the
claimant received, unless the Administrator
determines that the claimant--
(I) was not eligible to receive the
compensation; or
(II) fraudulently procured the
compensation.
(3) Rights of insurer or other third party.--If an insurer
or other third party pays any amount to a claimant to
compensate for an injury described in subsection (a), the
insurer or other third party shall be subrogated to any right
that the claimant has to receive any payment under this Act or
any other law.
(4) Allowable damages.--
(A) Loss of property.--A claim that is paid for
loss of property under this Act may include otherwise
uncompensated damages resulting from the Hermit's Peak
Fire for--
(i) an uninsured or underinsured property
loss;
(ii) a decrease in the value of real
property;
(iii) damage to physical infrastructure,
including irrigation infrastructure such as
acequia systems;
(iv) a cost resulting from lost subsistence
from hunting, fishing, firewood gathering,
timbering, grazing, or agricultural activities
conducted on land damaged by the Hermit's Peak
Fire;
(v) a cost of reforestation or revegetation
on Tribal or non-Federal land, to the extent
that the cost of reforestation or revegetation
is not covered by any other Federal program;
and
(vi) any other loss that the Administrator
determines to be appropriate for inclusion as
loss of property.
(B) Business loss.--A claim that is paid for injury
under this Act may include damages resulting from the
Hermit's Peak Fire for the following types of otherwise
uncompensated business loss:
(i) Damage to tangible assets or inventory.
(ii) Business interruption losses.
(iii) Overhead costs.
(iv) Employee wages for work not performed.
(v) Any other loss that the Administrator
determines to be appropriate for inclusion as
business loss.
(C) Financial loss.--A claim that is paid for
injury under this Act may include damages resulting
from the Hermit's Peak Fire for the following types of
otherwise uncompensated financial loss:
(i) Increased mortgage interest costs.
(ii) An insurance deductible.
(iii) A temporary living or relocation
expense.
(iv) Lost wages or personal income.
(v) Emergency staffing expenses.
(vi) Debris removal and other cleanup
costs.
(vii) Costs of reasonable efforts, as
determined by the Administrator, to reduce the
risk of wildfire, flood, or other natural
disaster in the counties impacted by the
Hermit's Peak Fire to risk levels prevailing in
those counties before the Hermit's Peak Fire,
that are incurred not later than the date that
is 3 years after the date on which the
regulations under subsection (f) are first
promulgated.
(viii) A premium for flood insurance that
is required to be paid on or before May 31,
2024, if, as a result of the Hermit's Peak
Fire, a person that was not required to
purchase flood insurance before the Hermit's
Peak Fire is required to purchase flood
insurance.
(ix) Any other loss that the Administrator
determines to be appropriate for inclusion as
financial loss.
(e) Acceptance of Award.--The acceptance by a claimant of any
payment under this Act, except an advance or partial payment made under
subsection (d)(2), shall--
(1) be final and conclusive on the claimant, with respect
to all claims arising out of or relating to the same subject
matter; and
(2) constitute a complete release of all claims against the
United States (including any agency or employee of the United
States) under chapter 171 of title 28, United States Code
(commonly known as the ``Federal Tort Claims Act''), or any
other Federal or State law, arising out of or relating to the
same subject matter.
(f) Regulations and Public Information.--
(1) Regulations.--Notwithstanding any other provision of
law, not later than 45 days after the date of enactment of this
Act, the Administrator shall promulgate and publish in the
Federal Register interim final regulations for the processing
and payment of claims under this Act.
(2) Public information.--
(A) In general.--At the time at which the
Administrator promulgates regulations under paragraph
(1), the Administrator shall publish, online and in
print, in newspapers of general circulation in the
State of New Mexico, a clear, concise, and easily
understandable explanation, in English and Spanish,
of--
(i) the rights conferred under this Act;
and
(ii) the procedural and other requirements
of the regulations promulgated under paragraph
(1).
(B) Dissemination through other media.--The
Administrator shall disseminate the explanation
published under subparagraph (A) through websites,
blogs, social media, brochures, pamphlets, radio,
television, and other media that the Administrator
determines are likely to reach prospective claimants.
(g) Consultation.--In administering this Act, the Administrator
shall consult with the Secretary of the Interior, the Secretary of
Energy, the Secretary of Agriculture, the Administrator of the Small
Business Administration, other Federal agencies, and State, local, and
Tribal authorities, as determined to be necessary by the Administrator,
to--
(1) ensure the efficient administration of the claims
process; and
(2) provide for local concerns.
(h) Election of Remedy.--
(1) In general.--An injured person may elect to seek
compensation from the United States for 1 or more injuries
resulting from the Hermit's Peak Fire by--
(A) submitting a claim under this Act;
(B) filing a claim or bringing a civil action under
chapter 171 of title 28, United States Code (commonly
known as the ``Federal Tort Claims Act''); or
(C) bringing an authorized civil action under any
other provision of law.
(2) Effect of election.--An election by an injured person
to seek compensation in any manner described in paragraph (1)
shall be final and conclusive on the claimant with respect to
all injuries resulting from the Hermit's Peak Fire that are
suffered by the claimant.
(3) Arbitration.--
(A) In general.--Not later than 45 days after the
date of enactment of this Act, the Administrator shall
establish by regulation procedures under which a
dispute regarding a claim submitted under this Act may
be settled by arbitration.
(B) Arbitration as remedy.--On establishment of
arbitration procedures under subparagraph (A), an
injured person that submits a disputed claim under this
Act may elect to settle the claim through arbitration.
(C) Binding effect.--An election by an injured
person to settle a claim through arbitration under this
paragraph shall--
(i) be binding; and
(ii) preclude any exercise by the injured
person of the right to judicial review of a
claim described in subsection (i).
(4) No effect on entitlements.--Nothing in this Act affects
any right of a claimant to file a claim for benefits under any
Federal entitlement program.
(i) Judicial Review.--
(1) In general.--Any claimant aggrieved by a final decision
of the Administrator under this Act may, not later than 60 days
after the date on which the decision is issued, bring a civil
action in the United States District Court for the District of
New Mexico, to modify or set aside the decision, in whole or in
part.
(2) Record.--The court shall hear a civil action under
paragraph (1) on the record made before the Administrator.
(3) Standard.--The decision of the Administrator
incorporating the findings of the Administrator shall be upheld
if the decision is supported by substantial evidence on the
record considered as a whole.
(j) Attorney's and Agent's Fees.--
(1) In general.--No attorney or agent, acting alone or in
combination with any other attorney or agent, shall charge,
demand, receive, or collect, for services rendered in
connection with a claim submitted under this Act, fees in
excess of 10 percent of the amount of any payment on the claim.
(2) Violation.--An attorney or agent who violates paragraph
(1) shall be fined not more than $10,000.
(k) Waiver of Requirement for Matching Funds.--
(1) In general.--Notwithstanding any other provision of
law, a State or local project that is determined by the
Administrator to be carried out in response to the Hermit's
Peak Fire under any Federal program that applies to an area
affected by the Hermit's Peak Fire shall not be subject to any
requirement for State or local matching funds to pay the cost
of the project under the Federal program.
(2) Federal share.--The Federal share of the costs of a
project described in paragraph (1) shall be 100 percent.
(l) Applicability of Debt Collection Requirements.--Section 3716 of
title 31, United States Code, shall not apply to any payment under this
Act.
(m) Indian Compensation.--Notwithstanding any other provision of
law, in the case of an Indian Tribe, a Tribal entity, or a member of an
Indian Tribe that submits a claim under this Act--
(1) the Bureau of Indian Affairs shall have no authority
over, or any trust obligation regarding, any aspect of the
submission of, or any payment received for, the claim;
(2) the Indian Tribe, Tribal entity, or member of an Indian
Tribe shall be entitled to proceed under this Act in the same
manner and to the same extent as any other injured person; and
(3) except with respect to land damaged by the Hermit's
Peak Fire that is the subject of the claim, the Bureau of
Indian Affairs shall have no responsibility to restore land
damaged by the Hermit's Peak Fire.
(n) Report.--Not later than 1 year after the date of promulgation
of regulations under subsection (f)(1), and annually thereafter, the
Administrator shall submit to Congress a report that describes the
claims submitted under this Act during the year preceding the date of
submission of the report, including, for each claim--
(1) the amount claimed;
(2) a brief description of the nature of the claim; and
(3) the status or disposition of the claim, including the
amount of any payment under this Act.
(o) Authorization of Appropriations.--There are authorized to be
appropriated such sums as are necessary to carry out this Act.
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