[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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