The Ninth Circuit recently affirmed a jury award of $28.8 million to the federal government for “intangible” environmental harm to the environment caused by a fire that escaped from a construction site on private land and then burned onto the Angeles National Forest. In doing so, the Ninth Circuit rejected defendant’s arguments that the government had not provided sufficient evidence for the jury to calculate the amount of environmental damages, and that the resulting award was, therefore, both unreasonable and grossly excessive.

Defendant, a construction contractor working on private land outside of the National Forest, negligently started a wildfire in June 2002 that eventually burned roughly 18,000 acres (28 square miles) of the National Forest. The United States brought a civil action against CB & I to recover damages due to the fire. The jury ultimately awarded the government $7.6 million in traditional damages for fire suppression, emergency mitigation, and resource protection costs, plus $28.8 million in intangible environmental damages.

Among the types of intangible environmental harm caused by the fire for which the government sought recovery were: destruction of rare vegetation; increased risk of invasive, nonnative plants; creation of a serious flood hazard by loss of vegetation; destruction of California Red-Legged Frog habitat; and damage to a historic mining camp. Researchers estimated that it would take 20 to 25 years for the National Forest to recover from the fire.

It was apparent that the jury had somehow determined that an award of $1,600 per acre of burned National Forest land was appropriate.

In affirming the jury’s verdict in its entirety on the issue of damages for intangible environmental harm, the Ninth Circuit noted that under California law, landowners may recover damages for all harm, including environmental injuries with “no restrictions on the type of property damage that is compensable.” Therefore, anything less than a full recovery of all damages (including intangible environmental damages) would not compensate the public for all of the harm caused by the fire.

The Ninth Circuit, affording substantial deference to the jury, also concluded that the intangible environmental damages based on a rough calculation of $1,600/acre of burned National Forest was not unreasonable nor excessive based on the evidence at trial.