Bill Summary for Bill Number HB12-1352

Date: 04/30/2012

Final
BILL SUMMARY for HB12-1352

HOUSE COMMITTEE ON JUDICIARY

Votes: View-->	Action Taken:
Adopt prepared amendment L.003 (Attachment B). The Refer House Bill 12-1352, as amended, to the Commi	Pass Without Objection PASS

01:48 PM -- House Bill 12-1352

Representatives Gardner and Gerou presented House Bill 12-1352 concerning the creation of a state commission to address matters arising out of the Lower North Fork wildfire. The bill creates the Lower North Fork Wildfire Commission (LNFWC). The LNFWC is composed of the chairs of the House and Senate Judiciary Committees, one minority-party member from the Judiciary Committee of each chamber, the State Treasurer, and the executive director of the Colorado Department of Public Safety (CDPS). The chairs of the judiciary committees may each appoint a designee to serve on the LNFWC in their place.

The LNFWC is charged with developing recommendations for the compensation of persons who suffered personal or property damage or loss of life as a result of the fire. The LNFWC will hold at least one public meeting and may conduct additional public meetings to collect information and deliberate on findings, policy recommendations and compensatory recommendations. The vote of four LNFWC members is required to take any action.

The jurisdiction of the LNFWC is expressly limited to damage claims arising out of this specific wildfire, and the bill clarifies that other civil remedies (e.g., the courts) may be available to claimants who do not seek relief from the LNFWC. Claims made under the bill must be presented in a petition, in a form prescribed by the LNFWC. At the time a petition is filed, claimants are required to waive the right to file any other civil action addressing damages arising out of the wildfire. Additionally, with the acceptance of an award or settlement from the LNFWC, a claimant releases any related claims against state or local governments or the employees of these governments. Insurance proceeds and other sources of compensation for claimant losses will offset awards from the LNFWC.

All members of the LNFWC are entitled to reimbursement of actual and necessary expenses for attendance at meetings and other LNFWC duties. Legislative members of the LNFWC are further entitled to per diem compensation at the rate for attendance at meetings during the legislative interim.

Staff support for the LNFWC is to be provided by existing personnel from legislative staff agencies, the State Treasurer’s Office, or the CDPS. The bill also authorizes LNFWC to hire one or more special masters (typically ex-judicial officers) to facilitate the investigation or review of wildfire-related claims.

Background. On March 22, 2012, state officials coordinated a prescribed burn on publicly owned land in rural Jefferson County. Based on a report issued by the U.S. Forest Service, embers from that prescribed burn are believed to have ignited the Lower North Fork wildfire in the same area on March 26, 2012.

At least 1,400 acres and improvements were directly affected by the wildfire. Damage from the wildfire is estimated to include three fatalities, and 23 residences destroyed or substantially damaged, with $11.3 million in property damage.

State and local authorities have reviewed, or are currently in the process of reviewing, the causes of and response to the wildfire. The Jefferson County Sheriff’s Office found no basis for criminal wrongdoing. The Governor suspended the use of prescribed fire by state agencies pending a review of associated protocols. The Governor also convened a review team on April 16, 2012, and, as a preliminary conclusion, recommended the creation of streamlined wildfire management administration in the CDPS. Currently, Colorado State Forest Service wildfire resources reside under the Colorado State University administration, and the Division of Emergency Management resides in the Department of Local Affairs.

Under current law, state and local government agencies in Colorado may defend negligence and other tort claims on the basis of limited immunity under the Colorado Governmental Immunity Act (CGIA). The CGIA caps damage recoveries at $150,000 for the claim on any individual party and a total recovery of $600,000 for any single occurrence. For claims against local governments, the CGIA authorizes the governing body to adopt a resolution allowing for recovery in excess of the statutory limits. The CGIA authorizes the General Assembly to pass a bill modifying the maximum recovery (to be paid from the General Fund) for any specific judgment or judgments that exceed the statutory maximum amounts.

Representatives Gardner and Gerou made opening remarks about the victims of the Lower North Fork wildfire. Representative Gardner distributed copies of portions of the CGIA (Attachment A). He spoke at length about the CGIA and how it relates to the Lower North Fork wildfire.

02:10 PM

Representative Gardner responded to questions from the committee about the process laid out in the bill for settling claims.

02:23 PM

The committee continued asking Representative Gardner about his intentions with the bill.

02:34 PM

Committee discussion continued.

02:49 PM

The committee continued to discuss the bill.

03:05 PM -- Sam and Jenny Lucas, representing the Lucas family, testified in support of the bill. Mr. Lucas' parents were killed in the Lower North Fork wildfire. He spoke about the experience of their death. He discussed the loss of family memorabilia that occurred when the Lucas home burned. He told the committee about the kind of people his parents were.

03:11 PM -- David Owens, representing himself, testified in support of the bill. Mr. Owens spoke about the loss of his home in the fire. He discussed his insurance benefits and indicated that they will not make him whole. He responded to questions from the committee about things that are not covered by his insurance policy.

03:13 PM -- David Cottreu, representing himself, testified in support of the bill. Mr. Cottreu spoke about the loss of his home in the fire. He expressed his opinion that, because this fire was not an act of God, someone should be held accountable. He responded to questions from the committee.

03:18 PM -- Lantz Trantham, representing himself, testified in support of the bill. Mr. Trantham spoke about the loss of his home in the fire. He discussed the loss of family memorabilia that occurred when his family home burned. He expressed his opinion that the state should do something to help and that this kind of thing should not be allowed to happen again. He talked about basic fire safety rules and indicated that the bill should include new requirements for insurance claims related to personal property.

03:25 PM -- Pat and Nancy Lansu, representing themselves, testified in support of the bill. Mrs. Lansu spoke about the loss of her home, her pets, and a number of personal objects in the fire. Mr. Lansu discussed his experience.

03:30 PM -- J.J. Richard, representing himself, testified in support of the bill. Mr. Richard spoke about the loss of his home in the fire. He showed pictures of his home before and after the fire. He expressed his opinion that the state did not use due care during the controlled burn that led to the fire.

03:34 PM -- Jack Ogg, representing himself, testified in support of the bill. Mr. Ogg did not lose his home in the fire, but he spoke about his experience helping people evacuate their homes. He expressed his opinion that the residents were kept from their homes for too long and that the fire resulted from negligence on the part of the Colorado State Forest Service.

03:38 PM -- Jim Fildey, representing himself, testified in support of the bill. Mr. Fildey's home was saved, but approximately 80 percent of his timber land, several out buildings, and various pieces of equipment used for forest fuel mitigation were lost. He discussed his fuel mitigation efforts. He spoke about land and home values in the Lower North Fork area and commented that land value is generally not covered by an insurance policy. Mr. Fildey stated that burned land lowers property values for everyone in the area. He provided statistics about recent sale prices of homes and land in the surrounding area.

03:45 PM -- Andrew and Margaret Hoover, representing themselves, testified in support of the bill. Mr. Hoover read a prepared statement about the loss of his home, personal property, and various historical artifacts related to his grandfather, President Herbert Hoover. He indicated that the historical artifacts are irreplaceable and are difficult to cover with insurance. Mr. Hoover spoke about his fire fuel mitigation efforts. He stressed that the fire was a man-made disaster and could easily have been prevented. He showed pictures of things that burned. He responded to questions from the committee about how the LNFWC would go about compensating individuals who lost personal property.

03:56 PM -- Steve Foster, representing himself, testified in support of the bill. Mr. Foster spoke about the loss of his home and possessions in the fire, and about common sense and responsibility. He discussed the loss of his friends.

04:02 PM -- Tom Vose, representing himself, testified in support of the bill. Mr. Vose chose to stay with his home rather than evacuate during the wildfire. He spoke about his efforts to save his house and to fight secondary fires in the area. He expressed his opinion that more should have been done by various fire department personnel.

04:07 PM -- Roy Johnson, representing himself, testified in support of the bill. Mr. Johnson spoke about his fire mitigation efforts. His home was saved, but he lost 80 acres of timber land. He expressed his opinion, as a professional firefighter, that the fire got out of control as a result of negligence on the part of the state. He discussed the process for conducting a safe controlled burn. He indicated that the weather in this instance was wrong for a controlled burn.

04:12 PM -- Tom and Sharon Scanlan, representing themselves, testified in support of the bill. Mr. Scanlan stated that his community has rallied around those who have lost family, homes, and property. He expressed regret that he was not available to help save his neighbors and his home. Mrs. Scanlan spoke about her evacuation experience on the day of the fire. She stated that the fabric of her community has been irrevocably torn. She discussed the personal items she lost, in addition to her home.

04:23 PM -- Kristen Moeller, representing herself, testified in support of the bill. Ms. Moeller spoke about the loss of her home in the fire. She stated that she trusted the forest service to conduct the controlled burn safely and to use common sense with regard to the weather. She discussed her evacuation and expressed her opinion that the state should be held accountable.

04:32 PM -- Pat Bickford, representing himself, testified in support of the bill. Mr. Bickford is a disaster insurance adjuster and stated his opinion that the victims of the fire should be helped by the state.

04:34 PM -- Scott Appel, representing himself, testified in support of the bill. Mr. Appel lost his wife in the fire. He expressed his opinion that it is wrong for the state to hold itself immune from its actions when those actions directly led to the death of his wife, two other people, and 23 homes. He spoke at length about his losses.

04:52 PM -- David Blake, representing the Colorado Attorney General's Office, testified in opposition to the bill. Mr. Blake expressed his opinion that the bill is poor public policy and sets a dangerous precedent. He discussed the history of the CGIA and indicated that the bill represents a reactive response to a single tragic circumstance. He responded to questions from the committee about constitutional concerns with retroactively amending the CGIA. Discussion ensued.

05:13 PM

The committee continued to discuss the CGIA with Mr. Blake.

05:20 PM -- James Eklund, representing the Governor's Office of Legal Counsel, testified in opposition to the bill. Mr. Eklund discussed the investigations and reviews of the fire ordered by Governor Hickenlooper. He agreed with the Attorney General about constitutional concerns with the bill and indicated that any legislation requires more vetting than this bill has had. Mr. Eklund responded to questions from the committee about what the Governor's Office has done to make the fire victims whole. Discussion ensued.

05:35 PM -- Tom Lyons, Special Assistant Attorney General, provided information regarding an accident on Berthoud Pass in 1987 and the efforts of the state to address the claims that arose from that accident. He described the process of adjudicating the claims that arose from the accident, and the compensation paid to the victims of the accident. He responded to questions from the committee about past instances in which governmental immunity has been waived in Colorado.

05:50 PM

The committee discussed governmental immunity statutes in other states and past waivers of governmental immunity in Colorado.

05:57 PM

Prepared amendment L.003 (Attachment B) was distributed to the committee. Representative Gerou made closing remarks.

06:05 PM

Representative Gardner made a closing statement.


BILL:	HB12-1352
TIME:	06:20:53 PM
MOVED:	Kagan
MOTION:	Adopt prepared amendment L.003 (Attachment B). The motion passed without objection.
SECONDED:	Pabon
		VOTE
	DelGrosso
	Duran
	Kagan
	Lee
	McCann
	Nikkel
	Pabon
	Sonnenberg
	Waller
	Barker
	Gardner B.

YES: 0 NO: 0 EXC: 0 ABS: 0 FINAL ACTION: Pass Without Objection


BILL:	HB12-1352
TIME:	06:28:03 PM
MOVED:	Gardner B.
MOTION:	Refer House Bill 12-1352, as amended, to the Committee on Appropriations. The motion passed on a vote of 8-3.
SECONDED:	Nikkel
		VOTE
	DelGrosso	Yes
	Duran	No
	Kagan	Yes
	Lee	Yes
	McCann	No
	Nikkel	Yes
	Pabon	No
	Sonnenberg	Yes
	Waller	Yes
	Barker	Yes
	Gardner B.	Yes

Final YES: 8 NO: 3 EXC: 0 ABS: 0 FINAL ACTION: PASS

06:30 PM

The committee adjourned.