Pretrial arguments continue in a lawsuit against Pacific Power and its parent company, PacifiCorp, in which the plaintiffs allege the power utility was responsible for igniting small fires which eventually grew to the 131,000-plus-acre Archie Creek Fire last September.
The fire, which was discovered early on Tuesday, Sept. 8, grew rapidly, driven by extremely high east winds and low humidity. The fire destroyed 109 homes and other structures northeast of Glide.
Roseburg law firm Dole Coalwell brought the lawsuit against PacifiCorp in October 2020, naming Phillip and Cassie Strader, Timothy Goforth and Kathy Kreiter as plaintiffs, all of whom suffered significant financial loss as a result of the blaze.
Jeff Mornarich, a partner at Dole Coalwell, along with the firms of BakerHostetler of San Francisco and Watts Guerra LLP of San Antonio, are representing nearly 500 survivors of the Archie Creek Fire.
The suit alleges that Pacific Power was negligent when it attempted to re-engergize downed power transmission lines east of Glide without first performing a proper inspection of potential hazards. The plaintiffs claim the action of re-energizing those transmission lines played a role in igniting three separate, smaller fires which quickly grew together to become the Archie Creek Fire.
The suit is asking for $22 million in relief for the plaintiffs: $11 million in economic relief and another $11 million in noneconomic damages.
Douglas County Circuit Court Judge Kathleen Johnson heard oral arguments on March 22 as Alison Plessman, an attorney representing PacifiCorp, fought to have two pieces of the plaintiffs’ amended complaint dismissed.
Plessman argued that the plaintiffs’ claim to noneconomic damages, as the plaintiffs’ attorneys cited under Oregon Revised Statute 477.092, was not in line with Oregon state law.
Plessman cited the Oregon Legislature prohibiting noneconomic damages in wildfire cases under that statute. Plessman also argued that the plaintiffs should not be entitled to “inverse condemnation,” a term used when a government entity intentionally attempts to secure private land for public use.
In her written decision, issued March 26, Johnson granted the defendant’s request for dismissal on both arguments in a three-page opinion. Johnson wrote that ORS 477.092 did not legally create a “separate cause of action” (such as noneconomic damages), but rather “sets forth the evidentiary standard and method of calculating economic damages for common law claims such as negligence.”
Johnson also agreed with the defendant that inverse condemnation was invalid as PacifiCorp is a privately held company and not a government entity, making the rest of the plaintiffs’ complaint irrelevant under the cited statute.
“This was an expected ruling given the early stages of this case, and the fact that we are proceeding under statutory sections that haven’t yet been interpreted by any court, and a constitutional provision that is infrequently utilized,” Mornarich said in a press release Tuesday.
Johnson granted the plaintiffs 60 days to amend their complaint, at which time the defense will again have a chance to rebut.
The suit is one of at least two filed in Oregon against PacifiCorp in relation to the wildfires which ignited in western Oregon over the past Labor Day weekend. The utility is facing similar allegations of negligence from another class action suit in connection with the Beachie Creek Fire east of Salem.
In his statement Tuesday, Mornarich said he anticipates a trial to begin some time in 2022.