II

106TH CONGRESS

2D SESSION S. 2736

To provide compensation for victims of the fire initiated by the National

Park Service at Bandelier National Monument, New Mexico.

IN THE SENATE OF THE UNITED STATES

JUNE 15, 2000

Mr. DOMENICI (for himself and Mr. BINGAMAN) introduced the following bill;

which was read twice and referred to the Committee on Environment and

Public Works

A BILL

To provide compensation for victims of the fire initiated

by the National Park Service at Bandelier National

Monument, New Mexico.

1 Be it enacted by the Senate and House of Representa2 tives of the United States of America in Congress assembled,

3 SECTION 1. SHORT TITLE.

4 This Act may be cited as the ‘‘Cerro Grande Fire As5 sistance Act’’.

6 SEC. 2. FINDINGS AND PURPOSES.

7 (a) FINDINGS.—Congress finds that—

8 (1) on May 4, 2000, the National Park Service

9 initiated a prescribed burn on Federal land at Ban-
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1 delier National Monument in New Mexico during the

2 peak of the fire season in the Southwest;

3 (2) on May 5, 2000, the prescribed burn, which

4 became known as the ‘‘Cerro Grande Prescribed

5 Fire’’, exceeded the containment capabilities of the

6 National Park Service, was reclassified as a wildland

7 burn, and spread to other Federal and non-Federal

8 land, quickly becoming characterized as a wildfire;

9 (3) by May 7, 2000, the fire had grown in size

10 and caused evacuations in and around Los Alamos,

11 New Mexico, including the Los Alamos National

12 Laboratory, 1 of the leading national research lab13 oratories in the United States and the birthplace of

14 the atomic bomb;

15 (4) on May 13, 2000, the President issued a

16 major disaster declaration for the counties of

17 Bernalillo, Cibola, Los Alamos, McKinley, Mora, Rio

18 Arriba, Sandoval, San Juan, San Miguel, Santa Fe,

19 Taos, and Torrance, New Mexico;

20 (5) the fire resulted in the loss of Federal,

21 State, local, tribal, and private property;

22 (6) the Secretary of the Interior and the Na23 tional Park Service have assumed responsibility for

24 the fire and subsequent losses of property; and
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1 (7) the United States should compensate the

2 victims of the Cerro Grande fire.

3 (b) PURPOSES.—The purposes of this Act are—

4 (1) to compensate victims of the fire at Cerro

5 Grande, New Mexico, for injuries resulting from the

6 fire; and

7 (2) to provide for the expeditious consideration

8 and settlement of claims for those injuries.

9 SEC. 3. DEFINITIONS.

10 In this Act:

11 (1) CERRO GRANDE FIRE.—The term ‘‘Cerro

12 Grande fire’’ means the fire resulting from the initi13 ation by the National Park Service of a prescribed

14 burn at Bandelier National Monument, New Mexico,

15 on May 4, 2000.

16 (2) DIRECTOR.—The term ‘‘Director’’ means—

17 (A) the Director of the Federal Emergency

18 Management Agency; or

19 (B) if a Manager is appointed under sec20 tion 4(a)(3), the Manager.

21 (3) INJURED PERSON.—The term ‘‘injured per22 son’’ means—

23 (A) an individual, regardless of the citizen24 ship or alien status of the individual; or
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1 (B) an Indian tribe, corporation, tribal cor2 poration, partnership, company, association,

3 county, township, city, State, school district, or

4 other non-Federal entity (including a legal rep5 resentative);

6 that suffered injury resulting from the Cerro Grande

7 fire.

8 (4) INJURY.—The term ‘‘injury’’ has the same

9 meaning as the term ‘‘injury or loss of property, or

10 personal injury or death’’ as used in section

11 1346(b)(1) of title 28, United States Code.

12 (5) MANAGER.—The term ‘‘Manager’’ means

13 an Independent Claims Manager appointed under

14 section 4(a)(3).

15 (6) OFFICE.—The term ‘‘Office’’ means the Of16 fice of Cerro Grande Fire Claims established by sec17 tion 4(a)(2).

18 SEC. 4. COMPENSATION FOR VICTIMS OF CERRO GRANDE

19 FIRE.

20 (a) IN GENERAL.—

21 (1) COMPENSATION.—Each injured person shall

22 be entitled to receive from the United States com23 pensation for injury suffered by the injured person

24 as a result of the Cerro Grande fire.

25 (2) OFFICE OF CERRO GRANDE FIRE CLAIMS.—
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1 (A) IN GENERAL.—There is established

2 within the Federal Emergency Management

3 Agency an Office of Cerro Grande Fire Claims.

4 (B) PURPOSE.—The Office shall receive,

5 process, and pay claims in accordance with this

6 title.

7 (C) FUNDING.—The Office—

8 (i) shall be funded from funds made

9 available to the Director under this title;

10 and

11 (ii) may reimburse other Federal

12 agencies for claims processing support and

13 assistance.

14 (3) OPTION TO APPOINT INDEPENDENT CLAIMS

15 MANAGER.—The Director may appoint an Inde16 pendent Claims Manager to—

17 (A) head the Office; and

18 (B) assume the duties of the Director

19 under this Act.

20 (b) SUBMISSION OF CLAIMS.—Not later than 2 years

21 after the date on which regulations are first promulgated

22 under subsection (f), an injured person may submit to the

23 Director a written claim for 1 or more injuries suffered

24 by the injured person in accordance with such require25 ments as the Director determines to be appropriate.
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1 (c) INVESTIGATION OF CLAIMS.—

2 (1) IN GENERAL.—The Director shall, on behalf

3 of the United States, investigate, consider, ascertain,

4 adjust, determine, grant, deny, or settle any claim

5 for money damages asserted under subsection (b).

6 (2) APPLICABILITY OF STATE LAW.—Except as

7 otherwise provided in this Act, the laws of the State

8 of New Mexico shall apply to the calculation of dam9 ages under subsection (d)(4).

10 (3) EXTENT OF DAMAGES.—Any payment

11 under this Act—

12 (A) shall be limited to actual compensatory

13 damages measured by injuries suffered; and

14 (B) shall not include—

15 (i) interest before settlement or pay16 ment of a claim; or

17 (ii) punitive damages.

18 (d) PAYMENT OF CLAIMS.—

19 (1) DETERMINATION AND PAYMENT OF

20 AMOUNT.—

21 (A) IN GENERAL.—

22 (i) PAYMENT.—Not later than 180

23 days after the date on which a claim is

24 submitted under this Act, the Director
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1 shall determine and fix the amount, if any,

2 to be paid for the claim.

3 (ii) PRIORITY.—The Director, to the

4 maximum extent practicable, shall pay sub5 rogation claims submitted under this Act

6 only after paying claims submitted by in7 jured parties that are not insurance com8 panies seeking payment as subrogees.

9 (B) PARAMETERS OF DETERMINATION.—

10 In determining and settling a claim under this

11 Act, the Director shall determine only—

12 (i) whether the claimant is an injured

13 person;

14 (ii) whether the injury that is the sub15 ject of the claim resulted from the fire;

16 (iii) the amount, if any, to be allowed

17 and paid under this Act; and

18 (iv) the person or persons entitled to

19 receive the amount.

20 (C) INSURANCE AND OTHER BENEFITS.—

21 (i) IN GENERAL.—In determining the

22 amount of, and paying, a claim under this

23 Act, to prevent recovery by a claimant in

24 excess of actual compensatory damages,

25 the Director shall reduce the amount to be
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1 paid for the claim by an amount that is

2 equal to the total of insurance benefits (ex3 cluding life insurance benefits) or other

4 payments or settlements of any nature that

5 were paid, or will be paid, with respect to

6 the claim.

7 (ii) GOVERNMENT LOANS.—This sub8 paragraph shall not apply to the receipt by

9 a claimant of any government loan that is

10 required to be repaid by the claimant.

11 (2) PARTIAL PAYMENT.—

12 (A) IN GENERAL.—At the request of a

13 claimant, the Director may make 1 or more ad14 vance or partial payments before the final set15 tlement of a claim, including final settlement on

16 any portion or aspect of a claim that is deter17 mined to be severable.

18 (B) JUDICIAL DECISION.—If a claimant re19 ceives a partial payment on a claim under this

20 Act, but further payment on the claim is subse21 quently denied by the Director, the claimant

22 may—

23 (i) seek judicial review under sub24 section (i); and
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1 (ii) keep any partial payment that the

2 claimant received, unless the Director de3 termines that the claimant—

4 (I) was not eligible to receive the

5 compensation; or

6 (II) fraudulently procured the

7 compensation.

8 (3) RIGHTS OF INSURER OR OTHER THIRD

9 PARTY.—If an insurer or other third party pays any

10 amount to a claimant to compensate for an injury

11 described in subsection (a), the insurer or other

12 third party shall be subrogated to any right that the

13 claimant has to receive any payment under this Act

14 or any other law.

15 (4) ALLOWABLE DAMAGES.—

16 (A) LOSS OF PROPERTY.—A claim that is

17 paid for loss of property under this Act may in18 clude otherwise uncompensated damages result19 ing from the Cerro Grande fire for—

20 (i) an uninsured or underinsured

21 property loss;

22 (ii) a decrease in the value of real

23 property;

24 (iii) damage to physical infrastruc25 ture;
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1 (iv) a cost resulting from lost tribal

2 subsistence from hunting, fishing, firewood

3 gathering, timbering, grazing, or agricul4 tural activities conducted on land damaged

5 by the Cerro Grande fire;

6 (v) a cost of reforestation or revegeta7 tion on tribal or non-Federal land, to the

8 extent that the cost of reforestation or re9 vegetation is not covered by any other Fed10 eral program; and

11 (vi) any other loss that the Director

12 determines to be appropriate for inclusion

13 as loss of property.

14 (B) BUSINESS LOSS.—A claim that is paid

15 for injury under this Act may include damages

16 resulting from the Cerro Grande fire for the fol17 lowing types of otherwise uncompensated busi18 ness loss:

19 (i) Damage to tangible assets or in20 ventory.

21 (ii) Business interruption losses.

22 (iii) Overhead costs.

23 (iv) Employee wages for work not per24 formed.
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1 (v) Any other loss that the Director

2 determines to be appropriate for inclusion

3 as business loss.

4 (C) FINANCIAL LOSS.—A claim that is

5 paid for injury under this Act may include dam6 ages resulting from the Cerro Grande fire for

7 the following types of otherwise uncompensated

8 financial loss:

9 (i) Increased mortgage interest costs.

10 (ii) An insurance deductible.

11 (iii) A temporary living or relocation

12 expense.

13 (iv) Lost wages or personal income.

14 (v) Emergency staffing expenses.

15 (vi) Debris removal and other cleanup

16 costs.

17 (vii) Costs of reasonable efforts, as

18 determined by the Director, to reduce the

19 risk of wildfire, flood, or other natural dis20 aster in the counties specified in section

21 2(a)(4), to risk levels prevailing in those

22 counties before the Cerro Grande fire, that

23 are incurred not later than the date that is

24 3 years after the date on which the regula-
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1 tions under subsection (f) are first promul2 gated.

3 (viii) A premium for flood insurance

4 that is required to be paid on or before

5 May 12, 2002, if, as a result of the Cerro

6 Grande fire, a person that was not re7 quired to purchase flood insurance before

8 the Cerro Grande fire is required to pur9 chase flood insurance.

10 (ix) Any other loss that the Director

11 determines to be appropriate for inclusion

12 as financial loss.

13 (e) ACCEPTANCE OF AWARD.—The acceptance by a

14 claimant of any payment under this Act, except an ad15 vance or partial payment made under subsection (d)(2),

16 shall—

17 (1) be final and conclusive on the claimant,

18 with respect to all claims arising out of or relating

19 to the same subject matter; and

20 (2) constitute a complete release of all claims

21 against the United States (including any agency or

22 employee of the United States) under chapter 171 of

23 title 28, United States Code (commonly known as

24 the ‘‘Federal Tort Claims Act’’), or any other Fed-
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1 eral or State law, arising out of or relating to the

2 same subject matter.

3 (f) REGULATIONS AND PUBLIC INFORMATION.—

4 (1) REGULATIONS.—Notwithstanding any other

5 provision of law, not later than 45 days after the

6 date of enactment of this Act, the Director shall pro7 mulgate and publish in the Federal Register interim

8 final regulations for the processing and payment of

9 claims under this Act.

10 (2) PUBLIC INFORMATION.—

11 (A) IN GENERAL.—At the time at which

12 the Director promulgates regulations under

13 paragraph (1), the Director shall publish, in

14 newspapers of general circulation in the State

15 of New Mexico, a clear, concise, and easily un16 derstandable explanation, in English and Span17 ish, of—

18 (i) the rights conferred under this

19 Act; and

20 (ii) the procedural and other require21 ments of the regulations promulgated

22 under paragraph (1).

23 (B) DISSEMINATION THROUGH OTHER

24 MEDIA.—The Director shall disseminate the ex25 planation published under subparagraph (A)
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1 through brochures, pamphlets, radio, television,

2 and other media that the Director determines

3 are likely to reach prospective claimants.

4 (g) CONSULTATION.—In administering this Act, the

5 Director shall consult with the Secretary of the Interior,

6 the Secretary of Energy, the Secretary of Agriculture, the

7 Administrator of the Small Business Administration,

8 other Federal agencies, and State, local, and tribal au9 thorities, as determined to be necessary by the Director

10 to—

11 (1) ensure the efficient administration of the

12 claims process; and

13 (2) provide for local concerns.

14 (h) ELECTION OF REMEDY.—

15 (1) IN GENERAL.—An injured person may elect

16 to seek compensation from the United States for 1

17 or more injuries resulting from the Cerro Grande

18 fire by—

19 (A) submitting a claim under this Act;

20 (B) filing a claim or bringing a civil action

21 under chapter 171 of title 28, United States

22 Code; or

23 (C) bringing an authorized civil action

24 under any other provision of law.
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1 (2) EFFECT OF ELECTION.—An election by an

2 injured person to seek compensation in any manner

3 described in paragraph (1) shall be final and conclu4 sive on the claimant with respect to all injuries re5 sulting from the Cerro Grande fire that are suffered

6 by the claimant.

7 (3) ARBITRATION.—

8 (A) IN GENERAL.—Not later than 45 days

9 after the date of enactment of this Act, the Di10 rector shall establish by regulation procedures

11 under which a dispute regarding a claim sub12 mitted under this Act may be settled by arbitra13 tion.

14 (B) ARBITRATION AS REMEDY.—On estab15 lishment of arbitration procedures under sub16 paragraph (A), an injured person that submits

17 a disputed claim under this Act may elect to

18 settle the claim through arbitration.

19 (C) BINDING EFFECT.—An election by an

20 injured person to settle a claim through arbitra21 tion under this paragraph shall—

22 (i) be binding; and

23 (ii) preclude any exercise by the in24 jured person of the right to judicial review

25 of a claim described in subsection (i).
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1 (4) NO EFFECT ON ENTITLEMENTS.—Nothing

2 in this Act affects any right of a claimant to file a

3 claim for benefits under any Federal entitlement

4 program.

5 (i) JUDICIAL REVIEW.—

6 (1) IN GENERAL.—Any claimant aggrieved by a

7 final decision of the Director under this Act may,

8 not later than 60 days after the date on which the

9 decision is issued, bring a civil action in the United

10 States District Court for the District of New Mex11 ico, to modify or set aside the decision, in whole or

12 in part.

13 (2) RECORD.—The court shall hear a civil ac14 tion under paragraph (1) on the record made before

15 the Director.

16 (3) STANDARD.—The decision of the Director

17 incorporating the findings of the Director shall be

18 upheld if the decision is supported by substantial

19 evidence on the record considered as a whole.

20 (j) ATTORNEY’S AND AGENT’S FEES.—

21 (1) IN GENERAL.—No attorney or agent, acting

22 alone or in combination with any other attorney or

23 agent, shall charge, demand, receive, or collect, for

24 services rendered in connection with a claim sub-
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1 mitted under this Act, fees in excess of 10 percent

2 of the amount of any payment on the claim.

3 (2) VIOLATION.—An attorney or agent who vio4 lates paragraph (1) shall be fined not more than

5 $10,000.

6 (k) WAIVER OF REQUIREMENT FOR MATCHING

7 FUNDS.—

8 (1) IN GENERAL.—Notwithstanding any other

9 provision of law, a State or local project that is de10 termined by the Director to be carried out in re11 sponse to the Cerro Grande fire under any Federal

12 program that applies to an area affected by the

13 Cerro Grande fire shall not be subject to any re14 quirement for State or local matching funds to pay

15 the cost of the project under the Federal program.

16 (2) FEDERAL SHARE.—The Federal share of

17 the costs of a project described in paragraph (1)

18 shall be 100 percent.

19 (l) APPLICABILITY OF DEBT COLLECTION REQUIRE20 MENTS.—Section 3716 of title 31, United States Code,

21 shall not apply to any payment under this Act.

22 (m) INDIAN COMPENSATION.—Notwithstanding any

23 other provision of law, in the case of an Indian tribe, a

24 tribal entity, or a member of an Indian tribe that submits

25 a claim under this Act—
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1 (1) the Bureau of Indian Affairs shall have no

2 authority over, or any trust obligation regarding,

3 any aspect of the submission of, or any payment re4 ceived for, the claim;

5 (2) the Indian tribe, tribal entity, or member of

6 an Indian tribe shall be entitled to proceed under

7 this Act in the same manner and to the same extent

8 as any other injured person; and

9 (3) except with respect to land damaged by the

10 Cerro Grande fire that is the subject of the claim,

11 the Bureau of Indian Affairs shall have no responsi12 bility to restore land damaged by the Cerro Grande

13 fire.

14 (n) REPORT.—Not later than 1 year after the date

15 of promulgation of regulations under subsection (f)(1),

16 and annually thereafter, the Director shall submit to Con17 gress a report that describes the claims submitted under

18 this Act during the year preceding the date of submission

19 of the report, including, for each claim—

20 (1) the amount claimed;

21 (2) a brief description of the nature of the

22 claim; and

23 (3) the status or disposition of the claim, in24 cluding the amount of any payment under this Act.
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1 (o) AUTHORIZATION OF APPROPRIATIONS.—There

2 are authorized to be appropriated such sums as are nec3 essary to carry out this Act.

Æ