Yet another blow for PacifiCorp

Guess which utility company in Oregon was ordered in a jury trial to cough up another $42 million for its negligence in starting the 2020 Labor Day fires?

It’s come to feel almost like a late-night comedy routine. Financial damages now total up in the billions of dollars, as PacifiCorp and others have racked up loss after loss in court with people who lost their homes, their properties, friends and family members, and often lifetimes of memories living in scenic river canyons of western Oregon. The utility company was ordered yesterday to pay off 10 more victims of the fires 3½ years ago that were driven by east winds, high temperatures, and flames started by neglected electric equipment owned and (not) maintained by Pacific Power, which is a part of PacifiCorp, which is a part of Berkshire Hathaway Energy.

Oregon's Labor Day fires
Oregon’s 2020 Labor Day fires — Oregon State Fire Marshal photo

As an Associated Press report explains, in June of last year a jury found PacifiCorp liable for negligently refusing to cut power to its 600,000 electric customers, despite repeated warnings from fire and emergency officials. The jury determined that the utility had acted negligently and willfully and should have to pay punitive and other damages — a decision that applied to a class of current and potential litigants including the owners of up to 2,500 properties.

Tuesday’s decision was the third verdict applied to a specific set of plaintiffs. Last month, a jury awarded $85 million to a different group of nine plaintiffs, and the jury that initially found PacifiCorp liable awarded about $90 million to 17 homeowners named as plaintiffs in that case.

Other PacifiCorp lawsuits over the Labor Day 2020 fires are detailed HERE   and HERE and HERE and HERE and HERE and HERE and HERE and HERE.  Thousands of other class members are still awaiting trials, though the sides are also expected to engage in mediation that could lead to a settlement.

The U.S. government is also threatening to sue PacifiCorp to recover nearly $1 billion in costs related to the 2020 wildfires in southern Oregon and northern California, though the company is trying to negotiate a settlement. The PacifiCorp website says the company leads in wildfire mitigation, and its system-wide, six-state plan includes in-house emergency management and meteorology and data science teams — and features the installation of over 450 weather stations, grid hardening, fire-risk modeling software, and an “enhanced” vegetation management program.

“The safety of our employees, customers, and communities remains our top priority,” declares PacifiCorp.

Meanwhile in southeast Idaho, renewable energy developer NorthRenew Energy has sold its 300-MW-plus Arco Wind and Solar project in southeast  Idaho to PacifiCorp. This is NorthRenew’s ninth project sale since the company’s inception in 2017.

PacifiCorp now wants protection from fire victims

Oregon’s second-largest electricity provider wants state regulators to protect it from the costs of future lawsuits seeking reimbursement from destructive wildfires.

The Oregonian reported that PacifiCorp’s request to the Public Utility Commission (PUC) was made just months after the utility lost a massive lawsuit in Multnomah County over its negligence in Oregon’s catastrophic Labor Day fires of 2020. More lawsuits are still pending with plaintiffs seeking billions of dollars in damages. In June after the trial, the company wanted ratepayers to pay for $90 million a jury found PacifiCorp liable for, after it had started numerous fires and burned miles of forest and thousands of homes in the 2020 fires. (The final verdict [PDF] in the PacifiCorp trial is posted on our DOCUMENTS page.) The jury in Multnomah County Circuit Court in Portland found PacifiCorp  — which owns Pacific Power — liable for four of the devastating Labor Day 2020 fires that burned about 2,500 properties in western Oregon.

One of the 2020 fires overran the ICP.

PacifiCorp’s new request drew harsh criticism from wildfire victims, lawyers, and ratepayer advocates, who questioned the company’s motives and the proposal’s legality. The financial protections PacifiCorp is seeking, in addition to assuming that future fires will be started by the utility company, would “only apply prospectively,” the company told state regulators. Simon Gutierrez with PacifiCorp said the request would have no impact on ongoing litigation.

PacifiCorp has already asked state regulators to let it pass the cost of damages it owes for wildfires in 2020 on to its customers.

2020 Labor Day fires in western Oregon
09/13/2020 — the Labor Day fires were among the worst natural disasters in Oregon’s history. They killed nine people, burned more than 1,875 square miles (4,856 square kilometers) and destroyed upwards of 5,000 homes and other structures.

A report by OPB back in June said that PacifiCorp had asked the PUC to allow the utility to defer the wildfire liability costs  through June 2024, which would give the company the option to add those costs to customers’ rates in the future.

“The deferred accounting application enables Pacific Power to preserve its ability to seek recovery in the future in the event the outcome could impact the financial stability of the company, which would result in higher costs to customers,” said the PacifiCorp attorneys.

A class action lawsuit is still ongoing; jurors found that PacifiCorp could be liable for punitive damages to thousands of Oregonians who lost property in the Echo Mountain Complex and the Santiam Canyon, South Obenchain, and 242 fires. The company estimates those costs could total billions of dollars.

PacifiCorp has now asked the Oregon PUC to limit future lawsuit awards  to “actual” damages for property and loss of life. As a condition of receiving electric service, customers would have to waive their right to other damages (such as non-economic and punitive awards by juries), like the awards that the county jury stung the utility with in June after it found Pacific Power’s  conduct was grossly negligent, reckless, and willful.

courtroom exhibit in the PacifiCorp trial

The utility filed the same request in Washington, California, Idaho, and Wyoming — where it also provides power. PacifiCorp says limiting damages from wildfire lawsuits would protect customers from higher costs.

Meanwhile, PacifiCorp is one of three energy suppliers receiving $450 million in funds from the federal government. OPB reported that two Oregon utilities and the Confederated Tribes of the Warm Springs together will receive nearly $450 million from the federal government to modernize the region’s power grid and incorporate more renewable energy. The investment will allow PacifiCorp, Portland General Electric, and the tribe to boost transmission capacity and job training and fortify the electric grid from the dangers of wildfires.

2020 Beachie Creek Fire

PacifiCorp will match the federal funds allocated for its projects, according to Rohit Nair, the company’s director of engineering standards and grid modernization.

“This is a once-in-a-generation opportunity to secure significant federal funding for programs that support our customers,” he said, “especially those in historically underrepresented and marginalized communities.” The funding is part of a total $3.5 billion the Biden administration announced in mid-October for states to upgrade their electric grids to make them more resilient to climate disasters and to support clean energy development.

2020 Beachie Creek Fire

But while PacifiCorp moves forward with upgrading its infrastructure, it’s also asking the PUC to protect it from future lawsuits after utility-caused wildfires.

“This proposal is grossly beyond the pale,” said Sam Drevo, one of 17 named plaintiffs who were collectively awarded $90 million in economic, non-economic, and punitive damages in back in June. “As a wildfire victim who lost everything in fires that were caused by PacifiCorp’s equipment, non-economic and punitive damages are the only punishment available in the legal system to stop negligent behavior from happening again,” he said. “I am shocked by this disgusting proposal and hope it falls flat with the PUC.”

Lee Beyer, a longtime Oregon legislator and former PUC chair, said PacifiCorp’s assertion that the request would benefit ratepayers is questionable. He believes it’s unlikely the commission would allow PacifiCorp to pass the legal costs on to customers.

“Any costs coming out of a court case are generally the responsibility of the utility and its shareholders,” Beyer said.

Bob Jenks, executive director of the ratepayer advocacy group Oregon Citizens’ Utility Board, questioned whether the PUC even has the legal authority to grant PacifiCorp’s request. Asking ratepayers to waive their legal remedies as a condition of accepting service from a local monopoly is pretty extreme, he said. “It’s incredibly broad and raises a number of fundamental legal questions.”

Jury finds PacifiCorp liable for $71+ million


The FINAL VERDICT in the PacifiCorp trial
is now posted on our DOCUMENTS page.

The jury in Multnomah County Circuit Court in Portland found PacifiCorp liable for four of the devastating Labor Day 2020 fires that burned about 2,500 properties in western Oregon. The 12-person jury, according to a report by the Statesman Journal, determined that PacifiCorp (Pacific Power) was negligent for causing the Santiam, Echo Mountain, South Obenchain, and 242 fires after a 7-week class action trial. Pacific Power is Oregon’s second-largest utility.

One of the Labor Day fires in 2020
One of the Labor Day fires in 2020 — from an exhibit during the trial

The jury found that PacifiCorp was negligent to an entire class in the Santiam Canyon, Lincoln City, and southern Oregon areas. Lawyers argued that PacifiCorp’s power lines ignited numerous wildfires that burned thousands of homes during an extreme high wind event on Labor Day night of 2020.

“The trial revealed that PacifiCorp tried to cover up and destroy evidence of powerline-ignited fires in the Santiam Canyon,” said Sam Drevo, one of the plaintiffs, “including electrical fires in firefighter camps in Gates and Mill City, overwhelming firefighters, causing chaos and more loss.”

“I was shocked by how little the company’s top people claimed to remember,” Drevo said, “how they tried to pass the buck, and by how much evidence they admittedly destroyed after knowing their equipment started fires. They took zero responsibility, and they said they would do ‘nothing differently’ next time.”

Drevo said the Santiam Canyon will never be the same. “But I hope this verdict will help in the long-term healing and recovery of what took many lifetimes to build. I ask the State Fire Marshal and State Police to look into whether criminal charges are warranted for the destruction of evidence.”

OPB reported that jurors returned a nearly unanimous verdict today. After less than two days of deliberations, jurors found the company owes more than $71 million to the 17 plaintiffs in the case for losses related to the fires and emotional suffering. The jury also applied its liability finding to a larger class, including the owners of nearly 2,500 properties damaged in the fires, according to a report by the San Francisco Chronicle. That determination could push the cost for damages to more than $1 billion.

The jury said PacifiCorp was at fault because the utility did not proactively shut down power, though several other utilities did, in the face of fire weather warnings, predicted high winds, and many reports and calls about arcing power lines and burning trees on power lines. The utility also failed to clear or maintain trees and other vegetation that its employees knew was a fire hazard.

From one of the exhibits at trial
From one of the exhibits at trial

PacificCorp argued that there was limited evidence its power lines caused the fires in question, but attorneys for the plaintiffs demonstrated that PacifiCorp employees in many cases had destroyed or hidden evidence, and utility employees had repeatedly trespassed onto the fire area — still under investigation — to remove or repair equipment despite repeated orders by the IC and other fire managers to stay clear of the closed area.

Ralph Bloemers, the director of Fire Safe Communities at Green Oregon, was among the first to report and document electrical fires in the Santiam Canyon in testimony to the Oregon Senate. He said fires driven by east winds in western Oregon are nothing new. These fires are a clear sign, though, that Oregon utilities need to prepare for wildfires in all areas of Oregon — whether a high or low fire frequency landscape, heavily populated or not.

“Western Oregon has a long history of wind-driven fire events, and these east wind fires can be very big, covering vast areas, burning where we haven’t seen fires in our lifetimes,” Bloemers said. “But big fires are part of these landscapes, and are now being amplified by extended drought and increased wind as the climate changes.”

Here is a youtube clip from Elemental: Reimagine Wildfire — which begins streaming tomorrow.

The Labor Day fires of 2020 burned more of the Oregon Cascades than had burned in the previous 36 years combined.

Because the jury found PacifiCorp negligent to entire classes, a second phase of the trial will allow people affected by the fires to claim damages, even if they were not involved as plaintiffs in this first phase.

OPB reported that Bob Jenks with the Oregon Citizens’ Utility Board, which represents the interests of ratepayers, said the utility could not reasonably pass on the costs from Monday’s verdict to its customers because the jury found the company was grossly negligent. He said it may be possible that customers will have to pay more in the future if PacifiCorp decides to spend more money on tree trimming and other wildfire mitigation efforts.

Still, he said, the verdict was a clear message.

“To me, this was a pretty harsh verdict against PacifiCorp,” Jenks said. “It’s clearly sending the message to companies that you can be held liable.”

Investigators have still not, more than two years later, completed final investigations into the causes of those historic 2020 fires.

PacifiCorp trial wraps up and goes to jury

After seven weeks of detailed analysis about topics as far-ranging as fire plumes, fire behavior, firebrands, and metallurgy, jurors will now determine whether the electricity provider PacifiCorp should pay out for thousands of properties destroyed after an extreme east wind event during the 2020 Labor Day fires in western Oregon. The trial started back in April and wrapped up on Wednesday, June 7 in Multnomah County Circuit Court in Portland.

KGW-8 News reported that Pacific Power attorneys said the company shouldn’t be responsible for climate change, other wildfires’ spread actually ignited fires named in the lawsuit, and power shutoffs were both rare and a last resort. Lawyers for the plaintiffs who lost homes in the fires said Pacific Power had ample warning that windstorms could generate severe fire risk, including conversations with agency officials about power line de-energization.

Plaintiffs’ attorneys also said that the wildfire investigations are inconclusive because Pacific Power destroyed evidence of downed power lines and erased internal communications about its findings; the only skype messages that Pacific Power didn’t erase were found in discovery in a folder labeled “purges.”

Fire crew on the South Obenchain Fire -- Inciweb photo
Fire crew on the South Obenchain Fire — Inciweb photo

OPB reported that plaintiffs in the class-action case are requesting $1.6 billion in damages. They allege that PacifiCorp acted negligently by refusing to heed the extreme weather warnings and shut down its power lines. Attorneys have drawn connections between PacifiCorp’s decision to keep power on and the fires that ignited and burned across western Oregon. The Labor Day fires of 2020 burned more of the Oregon Cascades than had burned in the previous 36 years combined.

GOES 17 image Labor Day fires, September 8, 2020
GOES 17 image of Labor Day fires, September 8, 2020 — click to view full-size NASA image.

“They have no real response to any of this,” attorney Cody Berne told the jury during closing statements. He said PacifiCorp started the fires. “They destroyed the evidence. And now they have come before you and are asking not to be held accountable.”

Beachie Creek Fire progression map
Beachie Creek Fire progression map. U.S. Forest Service map. Each line represents 24 hours of growth, but the map data begins on September 2, 2020 and does not show the preceding 18 days. It started in the black area.

Lawyers for those who lost their homes in the fires repeatedly asked the jury to hold the utility responsible for igniting the fires, according to the Statesman Journal. “This is a massive corporation that caused trauma to the state, destroyed entire parts of it, and they want you to find them responsible for nothing at all. They are taking no accountability — it’s unbelievable,” plaintiffs’ attorney Nicholas Rosinia told the jury on Wednesday. “They want you to say the survivors get nothing; their story doesn’t matter. Their homes and memories were erased … but to PacifiCorp that doesn’t matter.”

The full day of closing arguments wrapped up the trial in which jurors listened to testimony from witnesses and fire experts about whether PacifiCorp is liable for millions or even billions in damages after its power lines ignited the Santiam, Echo Mountain, South Obenchain, and 242 fires. Defense attorney Doug Dixon argued that the evidence showed limited reason to believe that the power lines caused the fires. PacifiCorp, which is owned by multinational corporation Berkshire Hathaway, took every reasonable precaution, Dixon said, and didn’t have the information to justify throwing entire communities into darkness during an emergency. “There’s no witness who came in and said based on the forecasts Pacific Power was receiving that it should have de-energized in this specific area of its service territory,” he said.

Jury to answer 23 questions:  As the jury of 12 begin deliberations, they’ll fill out a form with 23 questions. The first and most important is whether PacifiCorp was negligent — defined as acting without reasonable care — for any or all of the fires. Jurors just check the “yes” or “no” box for all four fires.

Nine of the twelve jurors must agree for a ruling in favor of the plaintiffs, otherwise the ruling will be in favor of PacifiCorp. Additional questions ask whether PacifiCorp’s alleged negligence caused harm, and whether the utility’s actions rise to the level of gross negligence — a lack of care that demonstrates reckless disregard for the safety or lives of others. Jurors will also discuss other questions before considering economic and other damages for the 17 lead plaintiffs who lost homes or property in the fires.

Pacific Power lawsuit may come down to fire behavior experts

Over the Labor Day holiday in 2020, with east winds picking up toward the end of a long, hot and dry summer, Leland Ohrt was dispatched to a home not far from his own, where a tree branch had fallen on a powerline and started a small brush fire. Ohrt was Mill City Fire Chief, a VFD chief in a small town in western Oregon’s Cascades; he hosed down the fire, then drove over to Schroeder Road, where another tree branch had fallen over another powerline and was still arcing sparks into the dry fuels below. Ohrt couldn’t stop the sparking, so he hosed the utility lines with water until they exploded and de-energized themselves.

Those two incidents initiated a frenzied 48 hours for Ohrt, acccording to an OPB report today, and he was later recognized for his efforts to save Mill City as the fires destroyed thousands of homes down the Santiam Canyon and across other parts of western Oregon.

Chief Ohrt saw Pacific Power’s utility lines start those fires, but he took the stand last week to defend the utility company in a class action trial against Pacific Power. He told a jury in Multnomah County Circuit Court that he immediately blew off attorneys who’d sent him paperwork in the weeks following the fires — lawyers who were trying to contact fire victims.

“I threw all that paperwork away,” Ohrt said. “You could tell right off the bat they were going to go after Pacific Power for this.”

Ohrt’s testimony highlighted a key aspect of the defense Pacific Power’s corporate owners, PacifiCorp, expect to lay out in the coming weeks of the trial: Most of the wildfires in the Santiam Canyon started not from their powerlines, but from embers of the Beachie Creek Fire. Even in places where powerlines did start fires, PacifiCorp’s attorneys contend that people fighting those fires quickly got them under control.

Mill City, Oregon map
Mill City, Oregon map

The defense follows what has been several weeks of plaintiffs’ attorneys alleging that PacifiCorp acted negligently by keeping its lines energized during the Labor Day fires, even though they had plenty of warning from weather officials and state government about fire danger. The decision to keep the power on contributed to fires spreading out of control, according to the plaintiffs and their attorneys.

Ohrt though, under questioning from PaficiCorp’s lawyers, pointed to another culprit: the U.S. Forest Service. Ohrt has more than 45 years’ experience with Mill City’s volunteer fire department, but he does not have any experience fighting wildfires.

Beachie Creek BAER team map
Beachie Creek BAER team map
The inciweb images and maps and pages have been retired from the internet, but a few files remain on the Willamette NF site.

Weeks before the Santiam Canyon fires, a lightning strike started the Beachie Creek Fire — northeast of Gates in the Opal Creek Wilderness. Forest Service officials said then that steep terrain made it difficult to get crews to the site to contain the slowly growing fire. According to Ohrt, though, letting the Beachie Creek Fire smolder allowed it to throw embers into the Santiam Canyon when winds picked up on Labor Day.

2020 Beachie Creek Fire
Beachie Creek Fire August 27, 2020, just 11 days after it started, before it grew very large on September 8. USFS photo.

An excellent “storymap” about the Beachie Creek Fire is [HERE].

“The U.S. Forest Service was supposed to be fighting that fire,” Ohrt said in his testimony.

Late in 2020 Linn County had to sue the Forest Service to get fire documents.

The Type 3 IC at the time knew that air support was critical, according to a USFS review of the fire, but he also recognized that the fire was burning in an old growth stand, meaning there was a multistory canopy with abundant down logs, duff, moss, and fuels. He knew that getting firefighters on the ground to dig deep for hotspots was the only way to successfully contain the fire.

“Everyone assumes that if you hammer a fire with aerial resources, it will go out, but that’s not the case. There needs to be boots on the ground working in tandem with aircraft. There are hidden hotspots, sheltered from aerial attack, under big logs and deep roots that have to be dug out.”
~ unnamed Type 3 Incident Commander

Whether jurors in the case find PacifiCorp responsible for the wildfires in the Santiam Canyon will likely be influenced by which attorneys’ experts they find more believable. Oregon State University professor John Bailey, for example, testified that there was no way the Beachie Creek Fire could have thrown embers far enough before midnight on Labor Day 2020 to start fires near the town of Gates. Bailey, who teaches fire management and has been studying forestry since the 1980s, said he used topography data, recorded weather conditions, and fuels analysis to estimate where the Beachie Creek Fire could have thrown embers ahead of its front to start new fires. He said strong east winds that night would have — at most — lit spot fires north of Gates and other residential areas in the canyon.

PacifiCorp’s attorneys, on the other hand, had atmospheric sciences professor Neil Lareau of the University of Nevada testify, and he said the extreme weather conditions that night did indeed throw firebrands miles ahead of the Beachie Creek Fire. Lareau explained to jurors how he used satellite data from the fire to determine when plumes of debris burst from the fire and cast embers thousands of feet aloft. He said those plumes matched up with on-the-ground reports of spot fires in the Santiam Canyon. Bailey, by contrast, said embers thrown by fires can rarely travel more than a mile — a far shorter distance than needed to start the fires Lareau claimed originated from the Beachie Creek Fire.

Trial begins with Pacific Power over 2020 wildfires

Opening arguments were heard yesterday in a lawsuit against PacifiCorp claiming that its negligence started several devastating 2020 wildfires that burned across western Oregon. KEZI-TV reported that the class action suit was filed in September 2020, not long after the fire’s containment, by Linn County residents who lost their homes in the Beachie Creek Fire. The suit grew to include plaintiffs from other Oregon wildfires.

The complaint alleges that Pacific Power and its parent company, PacifiCorp, did not deactivate certain powerlines during the heavy winds in the late summer of 2020. When those east winds brought down trees, they connected with live powerlines, igniting fires that destroyed hundreds of structures and killed several people.

“PacifiCorp chose not to protect Oregonians — it did not live up to its obligation, it didn’t take any action to prevent fires, and now, in this case, PacifiCorp should bear the consequences,” said Nicholas Rosinia, attorney for the plaintiffs. KOBI5 News reported that Pacific Power attorneys countered that a decision to de-energize powerlines is complex and can’t be based on fire risk alone. “The possibility of an ignition must be weighed against the dangers of de-energization when whole cities and towns can be blanketed in darkness just when they need power the most,” said Doug Dixon, an attorney for the defendants.

The attorneys acknowledged that both Portland General Electric and Consumers Power, Inc. decided to turn off power in parts of their service areas around the Labor Day storms.

The Beachie Creek Fire was reported August 16, 2020 in the Opal Creek Wilderness about six miles northwest of Detroit Lake in Oregon, some 38 miles east of Salem. According to records in the daily national Incident Management Situation Report and GIS data, the fire was:

      • 10 acres August 26, 10 days after it was reported
      • 23 acres August 31, 15 days after it was reported
      • 150 acres September 3, 18 days after it was reported
      • 469 acres September 7, 22 days after it was reported; (before the winds began that night).

Plaintiffs are asking for more than $1.6 billion in damages, according to court documents. The trial is scheduled to last until at least mid-June.

2020 Labor Day fires
GOES-17 photo of smoke from wildfires in Washington, Oregon, and California at 5:56 p.m. PDT Sept. 8, 2020. This image was captured during a very strong wind event. NASA photo

The Oregonian reported that the Labor Day fires burned more than 1.2 million acres in Oregon, destroyed upwards of 5,000 homes and structures, and claimed nine lives. PacifiCorp is the primary defendant in litigation from the fires; the Portland-based utility, Oregon’s second largest, did not shut down power to any of its 600,000 customers during the windstorm. Its lines have been implicated in six separate fires, one of which started in its California service territory and burned across the state line into Oregon.

Jurors will determine PacifiCorp’s responsibility, if any, in four of those fires: the Santiam Canyon fires east of Salem, the Echo Mountain Complex near Lincoln City, the South Obenchain Fire near Eagle Point, and the Two Four Two Fire near the southwest Oregon town of Chiloquin. This is a historic trial and will likely reshape the way Pacific Northwest electric utilities respond to increasing wildfire risks influenced by climate change, persistent drought conditions, and increasing numbers of acres burned each year.

In November 2022, PacifiCorp settled another case out of court with two families who sued over the Archie Creek Fire, which burned more than 130,000 acres in Douglas County in 2020.