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Burden of Proof

New Mexico Fires: Who's Responsible and How Can Victims Recover?

Aired May 15, 2000 - 12:30 p.m. ET

THIS IS A RUSH TRANSCRIPT. THIS COPY MAY NOT BE IN ITS FINAL FORM AND MAY BE UPDATED.

(BEGIN VIDEO CLIP)

JIM PAXON, U.S. FOREST SERVICE: This fire is growing at will. And it seems like every time we think we're starting to get a handle on it, we get a wind event and the fire takes off again.

JUDY OPSAHL, FIRE VICTIM: The day before the fire, there were hummingbirds coming to our hummingbird feeder. That apricot tree was loaded with apricots. All gone. It's not just a house, it's the beauty of this whole place.

BRUCE BABBITT, INTERIOR SECRETARY: Was it because somebody screwed up? Was it because the guidelines were inadequate? Was it an act of God that could not have been foreseen? We're going to have those answers, weigh them out, and then we'll take the appropriate action.

(END VIDEO CLIP)

ROGER COSSACK, CO-HOST: Today on BURDEN OF PROOF: It started as a prescribed burn but is raging out of control. The fires burning around Los Alamos, New Mexico have turned more than 44,000 acres to ash. Who's responsible for this disaster and how can the victims recover?

ANNOUNCER: This is BURDEN OF PROOF with Greta Van Susteren and Roger Cossack.

COSSACK: I'm sorry. Hello, and welcome to BURDEN OF PROOF. Today, we're going to be talking about the fires in Los Alamos, New Mexico. Eleven days ago, the National Park Service set a prescribed burn in New Mexico but something went terribly wrong, touching off a blaze engulfing 44,323 acres.

GRETA VAN SUSTEREN, CO-HOST: The U.S. Forest Service estimates that 28 percent of the blaze has now been contained but the fire still has an 89-mile perimeter, and expected high winds could cause more problems for firefighters.

COSSACK: Joining us today here in Washington are trial attorney Victor Schwartz, Sean Cosgrove of the Sierra Club and Joe Friday, former director of the National Weather Service. In the back, Brian Jones (ph) and Donna Ren (ph). VAN SUSTEREN: And joining us from Los Alamos, New Mexico is CNN national correspondent Martin Savidge.

Martin, first to you. What is the status of the fire?

MARTIN SAVIDGE, CNN NATIONAL CORRESPONDENT: Well, the status is that they're guardedly optimistic, at least the news coming from fire officials here. You mentioned they say the fire is now 28 percent contained. They are referring to the Sierra Grande fire. That's how they talk about fire here in the Los Alamos area. That is up from a containment report yesterday of about 10 percent.

Fire officials and firefighters have been aided by lower temperatures. Also, winds have been decreasing somewhat. However, that is all going to change. Late this afternoon, the winds are expected to pick up. Tomorrow, wind gusts are expected to possibly be around 50 miles an hour. The conditions could be very similar to the day when this fire exploded on the scene.

They do believe that the containment line around Los Alamos itself is going to hold. They say that they are optimistic at that point. They say the threat has diminished to the town but they do not say that the threat has gone completely away. As you mentioned, it's a very big fire: 89 miles they're trying to guard on the perimeter.

VAN SUSTEREN: You know, Martin, when I saw the latest report that it was contained -- 28 percent contained, the first thing I thought is, well, that's great but what about the other 72 percent? I mean, the report's not that there's 72 percent that's not contained, which is rather, at least terrifying to someone 1,500 miles away.

SAVIDGE: One of the things you have to keep in mind is the word contain. That is a specific term. That is not to say, even in that area, that the fire is under control. It is only that they believe in that specific area where they've got that 28 percent containment they feel the fire will not leave that specific area. But you're, right. There's 72 percent of this fire that is still burning out of control, it is still growing. However, they don't believe there are anymore communities at this moment that are under any sort of threat.

COSSACK: Martin, whose decision was it to start the fire, and how did they go about making that decision?

SAVIDGE: Well, the decision-making process basically falls on park superintendent Roy Weaver. He is the man who on May 4th, apparently put down the order to go ahead with this controlled burn. The idea was to do away with a lot of brush, a lot of dry material here so that you would not have a catastrophic fire. Unfortunately, there was a weather forecast that came down that either he was not aware of or went forward even with that knowledge and went ahead with the burn.

Now one thing that should be pointed out, there are certain trees, there is certain brush that it requires sometimes a very high- fire threat in order to turn them successfully. The investigation is still ongoing. Right now, he is on a paid leave of absence. VAN SUSTEREN: Sean, how do they start these prescribed burns?

SEAN COSGROVE, SIERRA CLUB: Well, a couple of different ways. Normally, they use a little device, looks like an oil can. It's called a drip torch. A couple of individuals will go out along the line and just drop flaming bits of material down from these little torches.

VAN SUSTEREN: Like how many?

COSGROVE: It depends on the size of the fire. They can range from 15 acres to 5,000. In larger fires, sometimes they drop ping pong balls from helicopters that are filled with ping pong balls that are filled with flammable material. So they'll pretty much look at an area that they think they can treat. And it's just like any prescription. They'll look at what they want to achieve with removing under story and built-up brush, how many individuals they need. They'll try and plan the fire along natural routes like, say, ridge lines or streams, kind of natural barriers to contain the fire, and then go ahead from there.

COSSACK: Sean, apparently, everyone understands that there are time when fires have to be started; it's for the good of the forest. But, you know, in a forest like this, we've heard Marty refer to the fact that you need -- sometimes you need a much hotter fire to burn trees. What kind of fire was this and what do they take into consideration? I mean, the notion of starting a very hot fire in a place that had one of the driest summers -- excuse me -- driest winters in history, you know, sounds a little dicey to me just for openers.

COSGROVE: Well, they use prescribed fire in all parts of the country. Of course, in the arid West, there is a factor of danger that's probably a little higher than in other parts of the country. I don't know exactly what they were trying to achieve in this particular instance but the intensity of the fire that they'll set is really dependent on a wide ranging of factors. Do they want to clear out just some old brush? Are they trying to restore certain types of species? You know, some trees don't even -- can't regenerate if they don't have fire to open up the cones that release the seeds so they can grow again. So they'll look at different factors like that.

VAN SUSTEREN: Joe, how successful can someone forecast winds? Or is this -- you know, was this really bad luck or is this almost someone's big mistake?

JOE FRIDAY, FORMER DIRECTOR, NATIONAL WEATHER SERVICE: Well, the forecast that was issued for this particular prescribed burn was for a fairly high wind condition. It was a level six on the Haines scale, which indicates the potential for a fire to grow out of control.

VAN SUSTEREN: Out of six out of -- I mean, tell me what the scale is.

FRIDAY: The scale goes from basically two to six, two meaning very low, two and three meaning low danger and six being an extreme or severe danger.

VAN SUSTEREN: And they had six?

FRIDAY: They had six on the forecast. And the ability to forecast the weather has improves significantly over the last dozen years or so with improved models so that when you go out with a wind forecast now, you're relatively certain it's going to hold up fairly close. It's not going to be perfect but it's going to be reasonably good.

VAN SUSTEREN: What's the wind speed that you have to worry about in a fire in a forecast?

FRIDAY: Well, it really depends on the particular terrain that you're involved in. Here, you start to worry about winds in excess of 25 or 30 miles an hour.

COSSACK: And what would six be?

FRIDAY: Six, it -- the Haines index is a combination not only of wind, it's also a combination of dryness of the moisture, it's a combination of stability of the atmosphere. If you really start something, is it going to grow or not? So it's wind, it's temperature, it's a lot of different factors.

COSSACK: Sean, is there ever a time that you could ever imagine with your experience that there would be -- it would be proper to start a fire, as we have described the area around Los Alamos, knowing full well that there's been a prediction of a range six for wind and dryness that will be in the area within the next few hours or the next day?

COSGROVE: Well, the Haines index is developed along with the larger federal policy and it takes a number of factors into condition. One of the biggest things, of course, the amount of humidity on the ground and how much they can expect at that time. The federal government is still going to investigate what the situation was here. They're going to find out a lot of different things, I'm sure. I don't want to cast aspersions with further comments here.

COSSACK: Could there ever be a way that this could be all right? I mean, let's just cut to the chase. Knowing what a Haines six is, knowing what the dryness of that area is, could you ever justify starting a major fire like that?

COSGROVE: I couldn't say.

VAN SUSTEREN: Martin, before I let you go, are we out of the woods, so to speak, as it relates to the Los Alamos lab?

COSGROVE: Well, there was some fire that was apparently burning around the lab area today. However, those are considered to be small hot spots and they are going to jump on those as quickly as possible. The lab was expected to be open today. That had been predicted earlier over the weekend. Now they say that the lab is not going to open. We've just been told by the EPA that last night, they set up monitoring stations all around the lab. There's been a great deal of concern within the community in Los Alamos as to what may be in the air. The Department of Energy officials have assured people that there is no threat from any radiation leaks. Still, the EPA has now set up these monitoring stations. They'll watch them 24 hours a day and report to the public as soon as those results are in.

VAN SUSTEREN: Martin Savidge, thank you very much for joining us from New Mexico.

When we come back, who's liable for the damage caused by this fire and can Los Alamos residents get recovery from the U.S. government? Stay with us.

(BEGIN LEGAL BRIEF)

When the Jefferson County, Colorado Sheriff's Department releases its Columbine report today, it will do so on CD-ROM with text, photos, audio and video.

(END LEGAL BRIEF)

(COMMERCIAL BREAK)

COSSACK: Good news for our Internet-savvy viewers. You can now watch BURDEN OF PROOF live on the World Wide Web. Just log on to CNN.com/Burden. We now provide a live video feed Monday through Friday at 12:30 p.m. Eastern time. And if you miss that live show, the program is available on the site at any time via video-on-demand. You can also interact with our show and even join our chat room.

(BEGIN VIDEO CLIP)

BABBITT: Federal statutes are in existence now so that if we were negligent, we pay. And that will depend on the outcome of the investigation. But I've been out on the land talking with the New Mexico delegation and congressmen and I think what I'm hearing is that the Congress is going to come to the aid of these victims in any set of circumstances. But there's a general feeling out there which I share that we've got to do something to make these folks whole.

(END VIDEO CLIP)

VAN SUSTEREN: Interior Secretary Bruce Babbitt has promised New Mexico residents he'll have answers this week as to the cause of the fires raging around Los Alamos. More than 44,000 acres have burned, forcing the evacuation of 25,000 people in the area. The blaze was started May 4th as a prescribed burn by the National Park Service.

Victor, secretary says that Congress is going to some form of compensation but let's talk about going to court. Do the people who live in that area who have had their homes burned, lost things, do they have any cause of action in court?

VICTOR SCHWARTZ, LIABILITY EXPERT: Well, they may, but assuming the federal government is tough -- it's easier to go up Mt. Everest backwards. Number one, even if they prove fault and that there was negligence, the government still may not be liable. There is something called the discretionary function immunity. So if it's a judgment call and whether there should be a burn or shouldn't be burn could be called a judgment call. That could protect the government. And they did one...

COSSACK: Let me stop you right there for a second. You say if it's discretionary. If you have this scale of two to six, six being the worst, and that's what the winds were, at a six that day, and if you have a fax giving you that information, and if you sit on that fax for seven hours and you light that fire, is that a discretionary action?

SCHWARTZ: The courts have been all over the law on what is. In the early '50s, the government piled up fertilizer near Galveston. An explosion occurred that devastated the town, killed people, and the government wasn't liable. The Supreme Court said it was discretionary. We really don't know. And they have more problems. You can't bring a class action readily against the government. Every individual has to sign up for a claim. There's no punitive damages. The amount of attorney fees are limited. The government has the greatest amount of civil justice tort reform of any defendant in the United States.

COSSACK: So when Secretary Babbitt says, as we just saw him say, he says, "Hey, we're going to look into this and if the government's at fault, we'll pay," what does that mean?

VAN SUSTEREN: The checks in the mail is what it means.

SCHWARTZ: Well, I would -- I wouldn't wait for that check because he's not at the Department of Justice. And the Department of Justice likes to -- I don't know what they'll do in this instance -- to say this is a discretionary function. And they really want to preserve that to allow for the government to have judgments and make mistakes. In other words, the government has something that no other defendant has: the right to be wrong. So even if they're at fault, he's leaving out what is the big kahuna in federal government litigation: discretionary function.

VAN SUSTEREN: Victor, not only does the government have this sort of added protection that the rest of us, if we had started the fire, we wouldn't have, but under the Federal Torts Claims Act, the people who might sue, they don't get a jury to award them damages, do they?

SCHWARTZ: There's no jury. There's no strict liability. There's no punitive damages. There's no class actions. And even if they're at fault, they still may not be liable, so they cannot use a motion which uses -- is used sometimes to get jurors to boost those awards up; you have a hard-nosed judge there. And again, the incentives, the fees are limited. It's an amazing thing.

COSSACK: All right, let me ask you this. Now let's suppose that I am the -- I've lost my home and I call up my insurance agent and I say, "Listen, I'd like to collect my insurance," and my insurance agent says, "I'd love to pay you but that fire, you know, that was an act of God." Is that an act of God? Is that's what's described as...

SCHWARTZ: I don't think it is. I think in regard to fire protection, unless there's something very specific in the insurance contract that would address this particular thing with regard to homeowners, there's going to be protection. The big battle will be when the homeowner's insurers want to go and get money from the federal government for causing it, that is going to be a collision that will be major. Probably Congress will give money in some ways to the residents but I don't think the federal government is going to jump to give money to insurance companies. And there is going to be a battle between the insurance companies who say, "Look, we paid these policies but we have the right to collect from you because you made the mistake," the government.

VAN SUSTEREN: Joe, when you talk about forecasting and the forecast in this case, how does it compare to like about 10 years ago? I mean, how sophisticated is the forecasting of the weather? How certain should other people have been when they saw the forecast?

FRIDAY: Ten or 15 years ago, it was very difficult to precisely forecast the wind conditions, particularly in and around the canyons and the mountains. In the last dozen or so years, those forecasts have been improved considerably.

VAN SUSTEREN: What changed it?

FRIDAY: Changed it? Better understanding of exactly how the air flows around mountains, to be able to model in the computers better flow around these situations. And so that gives you a much better understanding of what's going to happen. The longer range forecast, the forecast out to five and six and seven days are much more precise now. There's very few really surprise movements in the weather patterns. It's the nuances that make the difference now.

COSSACK: All right, Sean, what goes into making up this phrase that I never heard before, this prescribed burn? What do you take into consideration?

COSGROVE: Well, the federal government's had a very well- developed policy since '95. A lot of that was based on getting agencies to work together. Particularly you see that in a situation like this where the park service has adjacent land next to the forest service land. So they'll look at some type of activity based on a situation they want to achieve with the state of the forest there, what we widely regard as forest ecosystem health.

They'll look at the type of acreage, the type of species composition, the last time that there's been a fire through there, and especially the history of fire suppression in the area, because a lot of these situations are built up by past agency action in stopping fires, which cause a large build up of dead trees, dead limbs, an unnatural, abnormal amount of growth of different shrubs and brush in the area. COSSACK: All right, let's take a break. Up next, who's investigating the case of wildfires in New Mexico and how will existing laws affect the probe and potential repercussions. Stay with us.

(BEGIN Q&A)

Q: Which celebrity, who has played a federal marshal, a police officer and an FBI agent in movies, is trying to buy 300 acres in Georgia to create a training camp for celebrity security guards?

A: Actor Wesley Snipes. Local officials say such a facility is not permitted on the property, which is zoned for agriculture. Attorneys are appealing the ruling.

(END Q&A)

(COMMERCIAL BREAK)

COSSACK: Firefighters in New Mexico can't say when they might have fires around Los Alamos fully contained. As the blaze rages on, federal authorities have promised residents a full probe into the disaster. The fire, which has devastated more than 44,000 acres, was started by the National Park Service as a prescribed burn.

Sean, should there be more communication between the park service and the weather bureau before something like this is -- I mean, is this something that we could generally draw or is this something that never happens and just once in a blue moon and we really can't draw any lessons from it?

COSGROVE: Well, communication is definitely the key in this situation. This was the theory behind reformulating this policy five years ago. Getting different agencies to work together. That includes EPA, Park Service, Forest Service and of course, the Weather Service. Other agencies are all part of this, you know, state and county agencies. You have Indian tribe agencies. They should all be able to communicate and work together.

VAN SUSTEREN: Well, you know, I just take issue with both of you in terms of, yes, they should work together but guess what? They did. The National Weather Service had warned the Park Service that the conditions were hot and going...

COSSACK: Well, but I think what he's saying is communication. Obviously, they must have and they didn't...

VAN SUSTEREN: But they didn't read their fax. But let me go to you, Victor. The federal government's got this great discretionary function you've told us about that they apparently get to shield themselves. Is there a way around so people of the Los Alamos area can recover if Congress won't do something?

SCHWARTZ: There is. They have to find some regulation, some rule that the federal government has for itself that was violated. If you can find that and it was violated, you've got them. VAN SUSTEREN: How about read your faxes?

SCHWARTZ: Well, a good plaintiffs lawyer is going to try to figure out some internal procedure that they violated because then it's not discretionary anymore.

VAN SUSTEREN: But Sean and Roger were just talking about how the communication between the different divisions -- I assume, I don't know -- that there's some policy which says, "Let's work together in some form."

SCHWARTZ: Well, as you know, with the law, you can't assume. You just have to find out if there is.

COSSACK: But there must be, Joe, there must be a -- and Sean -- there must be a policy guidebook somewhere that talks about this is what you do before you start a prescribed burn. You check with this one, you check with that one, and there must be almost a checklist. And I can imagine that somewhere along the line, somebody didn't follow a checklist.

SCHWARTZ: Well, let me point out that the cooperation that was -- that Sean mentioned between the various services, that's very well laid out, and they've been working together for a very long time. They jointly staff an interagency fire center at Boise to take a look at the major wildfires across the country and managing those. And the procedures that go on right now is that if a federal forest official, either Park Service or Forest Service, is contemplating a prescribed burn, they request information from the National Weather Service as to the conditions there. That information is then provided. In this case, it was provided by fax. And that information then is used in the decision process on the prescribed burn.

I don't know the details of what went on inside the Park Service in this particular area. But about eight years ago, we did that for any forest activity anywhere in the country. When the government was trying to reduce its size and scope, we redefined the definition of what the National Weather Service should be doing so it now only services the federal forests and not the state forests and not privately held forests.

VAN SUSTEREN: I'm sorry but that's all the time we have for today. Thanks to our guests and thank you for watching.

Today on "TALKBACK LIVE," competing Social Security plans from the Republican and Democratic presidential hopefuls. Which one best fits retirement planning in the 21st century? That's at 3:00 p.m. Eastern time, noon Pacific.

COSSACK: And we'll be back tomorrow with another edition of BURDEN OF PROOF. We'll see you then.

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