BIA Decision on Mile Marker 28 Fire

Press Release RE: Mile Marker 28 Fire June 28, 2019

On June 19, 2019, Klickitat PUD “KPUD” received a decision from the Bureau of Indian Affairs “BIA” regarding the Mile Marker 28 fire that occurred in 2013.

The decision comes nearly two years after KPUD had appealed BIA’s Yakama Agency determination of trespass against the utility. KPUD had also appealed the Yakama Agency’s damages demand of $65.5 million. Under federal regulations, the BIA’s decision was due in October 2018. There has been no explanation from BIA regarding its long delay.

In BIA’s decision, the trespass determination was upheld. The amount of damages being sought was reduced to $58.4 million. In all other respects, BIA agreed with the Yakama Agency’s assertion that KPUD was responsible for the Mile Marker 28 fire. The Yakama Agency alleged that KPUD had failed to remove trees close to the distribution lines.

The Yakama Agency and BIA decision is based on a report from the Washington Department of Natural Resources “DNR” that K PUD believes is flawed and unreliable. In 2014, DNR concluded that, on the morning of July 24, 2013, two trees separately ignited after allegedly growing into KPUD’s distribution line. In its decision, BIA informed K PUD that it could determine KPUD’s liability and damages related to the fire. This determination could be made without the BIA offering hearings to present evidence or providing an opportunity for KPUD to present any testimony or to cross-examine DNR investigators or other witnesses.

KPUD disputes BIA’s determination and will appeal the decision in July. It is KPUD’s belief that the evidence confirms that the fire was caused by a tribal logging contractor, Tee Pee Creek. The contractor’s crew was working adjacent to KPUD’s power lines when the fire started. The area that was being logged was not approved for the season and the contractor’s employees were not aware of KPUD’s distribution lines. The logging crew failed to contact KPUD and fire department personnel after the first tree caught fire. The logging crew also delayed reporting the fire after the second tree caught fire.

KPUD’s appeal of the BIA decision will be reviewed by the Interior Board of Indian Appeals which is an entity within the U.S. Department of the Interior, as is the BIA.

KPUD was also informed by the U.S. that it intends to file an apparent overlapping claim in federal court in July. That case will seek to secure fire suppression costs incurred by the BIA and other federal agencies as well as the damages BIA has demanded in the administrative proceeding. The federal government’s claim appears to also rely on the report produced by DNR.

In addition to appealing BIA’s decision, KPUD will vigorously defend against any claims filed by the U.S. in federal court. KPUD is confident that a full and fair review of the facts will confirm that the DNR report depended on by the Yakama Agency, BIA and in any federal court claim filed by the U.S. is flawed and should not be relied on.

In order to focus on federal proceedings related to the Mile Marker 28 fire, in 2018, KPUD reached a compromise settlement with the state of Washington. This settlement did not include any admission of liability on the part of KPUD.