II 

117TH CONGRESS 

2D SESSION S. 4186 

To provide compensation for victims of the fire initiated as a prescribed 

burn by the Forest Service in the Santa Fe National Forest in San 

Miguel County, New Mexico. 

IN THE SENATE OF THE UNITED STATES 

MAY 11 (legislative day, MAY 10), 2022 

Mr. LUJA ́N (for himself and Mr. HEINRICH) introduced the following bill; 

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

A BILL 

To provide compensation for victims of the fire initiated 

as a prescribed burn by the Forest Service in the Santa 

Fe National Forest in San Miguel County, 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 ‘‘Hermit’s Peak Fire 

5 Assistance Act’’. 

6 SEC. 2. FINDINGS AND PURPOSES. 

7 (a) FINDINGS.—Congress finds that— 

8 (1) on April 6, 2022, the Forest Service initi9 ated a prescribed burn on Federal land in the Santa 


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1 Fe National Forest in San Miguel County, New 

2 Mexico, when erratic winds were prevalent in the 

3 area that was also suffering from severe drought 

4 after many years of insufficient precipitation; 

5 (2) on April 12, 2022, the prescribed burn, 

6 which became known as the ‘‘Hermit’s Peak Fire’’, 

7 exceeded the containment capabilities of the Forest 

8 Service, was reclassified as a wildland burn, and 

9 spread to other Federal and non-Federal land, 

10 quickly becoming characterized as a wildfire; 

11 (3) on April 19, 2022, the Calf Canyon Fire, 

12 also in San Miguel County, New Mexico, began 

13 burning on Federal land; 

14 (4) on April 27, 2022, the Hermit’s Peak Fire 

15 and the Calf Canyon Fire merged, and both fires 

16 were reported as the Hermit’s Peak Fire or the Her17 mit’s Peak/Calf Canyon Fire, which shall be referred 

18 to hereafter as the Hermit’s Peak Fire; 

19 (5) by May 2, 2022, the fire had grown in size 

20 and caused evacuations in multiple villages and com21 munities in San Miguel County and Mora County, 

22 including in the San Miguel county jail, the State’s 

23 psychiatric hospital, the United World College, and 

24 New Mexico Highlands University; 


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1 (6) on May 4, 2022, the President issued a 

2 major disaster declaration for the counties of Colfax, 

3 Mora, and San Miguel, New Mexico; 

4 (7) the fire resulted in the loss of Federal, 

5 State, local, Tribal, and private property; and 

6 (8) the United States should compensate the 

7 victims of the Hermit’s Peak Fire. 

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

9 (1) to compensate victims of the fire at Her10 mit’s Peak, New Mexico, for injuries resulting from 

11 the fire; and 

12 (2) to provide for the expeditious consideration 

13 and settlement of claims for those injuries. 

14 SEC. 3. DEFINITIONS. 

15 In this Act: 

16 (1) ADMINISTRATOR.—The term ‘‘Adminis17 trator’’ means— 

18 (A) the Administrator of the Federal 

19 Emergency Management Agency; or 

20 (B) if a Manager is appointed under sec21 tion 4(a)(3), the Manager. 

22 (2) HERMIT’S PEAK FIRE.—The term ‘‘Her23 mit’s Peak Fire’’ means the fire resulting from the 

24 initiation by the Forest Service of a prescribed burn 

25 in the Santa Fe National Forest in San Miguel 


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1 County, New Mexico, on April 6, 2022, which subse2 quently merged with the Calf Canyon Fire, and both 

3 fires were reported as the Hermit’s Peak Fire or the 

4 Hermit’s Peak Fire/Calf Canyon Fire. 

5 (3) INDIAN TRIBE.—The term ‘‘ ‘Indian Tribe’’ 

6 means the recognized governing body of any Indian 

7 or Alaska Native Tribe, band, nation, pueblo, village, 

8 community, component band, or component reserva9 tion individually identified (including parenthetically) 

10 in the list published most recently as of the date of 

11 enactment of this Act pursuant to section 104 of the 

12 Federally Recognized Indian Tribe List Act of 1994 

13 (25 U.S.C. 5131). 

14 (4) INJURED PERSON.—The term ‘‘injured per15 son’’ means— 

16 (A) an individual, regardless of the citizen17 ship or alien status of the individual; or 

18 (B) an Indian Tribe, corporation, Tribal 

19 corporation, partnership, company, association, 

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

21 other non-Federal entity (including a legal rep22 resentative) that suffered injury resulting from 

23 the Hermit’s Peak Fire. 

24 (5) INJURY.—The term ‘‘injury’’ has the same 

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


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1 personal injury or death’’ as used in section 

2 1346(b)(1) of title 28, United States Code. 

3 (6) MANAGER.—The term ‘‘Manager’’ means 

4 an Independent Claims Manager appointed under 

5 section 4(a)(3). 

6 (7) OFFICE.—The term ‘‘Office’’ means the Of7 fice of Hermit’s Peak Fire Claims established by 

8 section 4(a)(2). 

9 (8) TRIBAL ENTITY.—The term ‘‘Tribal entity’’ 

10 includes any Indian Tribe, tribal organization, In11 dian-controlled organization serving Indians, Native 

12 Hawaiian organization, or Alaska Native entity, as 

13 such terms are defined or used in section 166 of the 

14 Workforce Innovation and Opportunity Act (25 

15 U.S.C. 5304). 

16 SEC. 4. COMPENSATION FOR VICTIMS OF HERMIT’S PEAK 

17 FIRE. 

18 (a) IN GENERAL.— 

19 (1) COMPENSATION.—Each injured person shall 

20 be entitled to receive from the United States com21 pensation for injury suffered by the injured person 

22 as a result of the Hermit’s Peak Fire. 

23 (2) OFFICE OF HERMIT’S PEAK FIRE CLAIMS.— 


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1 (A) IN GENERAL.—There is established 

2 within the Federal Emergency Management 

3 Agency an Office of Hermit’s Peak 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 Administrator under this 

10 Act; 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 Administrator may appoint an 

16 Independent Claims Manager to— 

17 (A) head the Office; and 

18 (B) assume the duties of the Administrator 

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 Administrator a written claim for 1 or more injuries suf24 fered by the injured person in accordance with such reVerDate Sep 11 2014 05:35 May 12, 2022 Jkt 000000 PO 00000 Frm 00006 Fmt 6652 Sfmt 6201 E:\BILLS\S4186.IS S4186

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1 quirements as the Administrator determines to be appro2 priate. 

3 (c) INVESTIGATION OF CLAIMS.— 

4 (1) IN GENERAL.—The Administrator shall, on 

5 behalf of the United States, investigate, consider, as6 certain, adjust, determine, grant, deny, or settle any 

7 claim for money damages asserted under subsection 

8 (b). 

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

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

11 of New Mexico shall apply to the calculation of dam12 ages under subsection (d)(4). 

13 (3) EXTENT OF DAMAGES.—Any payment 

14 under this Act— 

15 (A) shall be limited to actual compensatory 

16 damages measured by injuries suffered; and 

17 (B) shall not include— 

18 (i) interest before settlement or pay19 ment of a claim; or 

20 (ii) punitive damages. 

21 (d) PAYMENT OF CLAIMS.— 

22 (1) DETERMINATION AND PAYMENT OF

23 AMOUNT.— 

24 (A) IN GENERAL.— 


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1 (i) PAYMENT.—Not later than 180 

2 days after the date on which a claim is 

3 submitted under this Act, the Adminis4 trator shall determine and fix the amount, 

5 if any, to be paid for the claim. 

6 (ii) PRIORITY.—The Administrator, to 

7 the maximum extent practicable, shall pay 

8 subrogation claims submitted under this 

9 Act only after paying claims submitted by 

10 injured parties that are not insurance com11 panies seeking payment as subrogees. 

12 (B) PARAMETERS OF DETERMINATION.— 

13 In determining and settling a claim under this 

14 Act, the Administrator shall determine only— 

15 (i) whether the claimant is an injured 

16 person; 

17 (ii) whether the injury that is the sub18 ject of the claim resulted from the fire; 

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

20 and paid under this Act; and 

21 (iv) the person or persons entitled to 

22 receive the amount. 

23 (C) INSURANCE AND OTHER BENEFITS.— 

24 (i) IN GENERAL.—In determining the 

25 amount of, and paying, a claim under this 


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1 Act, to prevent recovery by a claimant in 

2 excess of actual compensatory damages, 

3 the Administrator shall reduce the amount 

4 to be paid for the claim by an amount that 

5 is equal to the total of insurance benefits 

6 (excluding life insurance benefits) or other 

7 payments or settlements of any nature that 

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

9 the claim. 

10 (ii) GOVERNMENT LOANS.—This sub11 paragraph shall not apply to the receipt by 

12 a claimant of any government loan that is 

13 required to be repaid by the claimant. 

14 (2) PARTIAL PAYMENT.— 

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

16 claimant, the Administrator may make 1 or 

17 more advance or partial payments before the 

18 final settlement of a claim, including final set19 tlement on any portion or aspect of a claim that 

20 is determined to be severable. 

21 (B) JUDICIAL DECISION.—If a claimant re22 ceives a partial payment on a claim under this 

23 Act, but further payment on the claim is subse24 quently denied by the Administrator, the claim25 ant may— 


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1 (i) seek judicial review under sub2 section (i); and 

3 (ii) keep any partial payment that the 

4 claimant received, unless the Administrator 

5 determines that the claimant— 

6 (I) was not eligible to receive the 

7 compensation; or 

8 (II) fraudulently procured the 

9 compensation. 

10 (3) RIGHTS OF INSURER OR OTHER THIRD

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

12 amount to a claimant to compensate for an injury 

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

14 third party shall be subrogated to any right that the 

15 claimant has to receive any payment under this Act 

16 or any other law. 

17 (4) ALLOWABLE DAMAGES.— 

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

19 paid for loss of property under this Act may in20 clude otherwise uncompensated damages result21 ing from the Hermit’s Peak Fire for— 

22 (i) an uninsured or underinsured 

23 property loss; 

24 (ii) a decrease in the value of real 

25 property; 


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1 (iii) damage to physical infrastruc2 ture, including irrigation infrastructure 

3 such as acequia systems; 

4 (iv) a cost resulting from lost subsist5 ence from hunting, fishing, firewood gath6 ering, timbering, grazing, or agricultural 

7 activities conducted on land damaged by 

8 the Hermit’s Peak Fire; 

9 (v) a cost of reforestation or revegeta10 tion on Tribal or non-Federal land, to the 

11 extent that the cost of reforestation or re12 vegetation is not covered by any other Fed13 eral program; and 

14 (vi) any other loss that the Adminis15 trator determines to be appropriate for in16 clusion as loss of property. 

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

18 for injury under this Act may include damages 

19 resulting from the Hermit’s Peak Fire for the 

20 following types of otherwise uncompensated 

21 business loss: 

22 (i) Damage to tangible assets or in23 ventory. 

24 (ii) Business interruption losses. 

25 (iii) Overhead costs. 


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1 (iv) Employee wages for work not per2 formed. 

3 (v) Any other loss that the Adminis4 trator determines to be appropriate for in5 clusion as business loss. 

6 (C) FINANCIAL LOSS.—A claim that is 

7 paid for injury under this Act may include dam8 ages resulting from the Hermit’s Peak Fire for 

9 the following types of otherwise uncompensated 

10 financial loss: 

11 (i) Increased mortgage interest costs. 

12 (ii) An insurance deductible. 

13 (iii) A temporary living or relocation 

14 expense. 

15 (iv) Lost wages or personal income. 

16 (v) Emergency staffing expenses. 

17 (vi) Debris removal and other cleanup 

18 costs. 

19 (vii) Costs of reasonable efforts, as 

20 determined by the Administrator, to reduce 

21 the risk of wildfire, flood, or other natural 

22 disaster in the counties impacted by the 

23 Hermit’s Peak Fire to risk levels prevailing 

24 in those counties before the Hermit’s Peak 

25 Fire, that are incurred not later than the 


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1 date that is 3 years after the date on 

2 which the regulations under subsection (f) 

3 are first promulgated. 

4 (viii) A premium for flood insurance 

5 that is required to be paid on or before 

6 May 31, 2024, if, as a result of the Her7 mit’s Peak Fire, a person that was not re8 quired to purchase flood insurance before 

9 the Hermit’s Peak Fire is required to pur10 chase flood insurance. 

11 (ix) Any other loss that the Adminis12 trator determines to be appropriate for in13 clusion as financial loss. 

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

15 claimant of any payment under this Act, except an ad16 vance or partial payment made under subsection (d)(2), 

17 shall— 

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

19 with respect to all claims arising out of or relating 

20 to the same subject matter; and 

21 (2) constitute a complete release of all claims 

22 against the United States (including any agency or 

23 employee of the United States) under chapter 171 of 

24 title 28, United States Code (commonly known as 

25 the ‘‘Federal Tort Claims Act’’), or any other FedVerDate Sep 11 2014 05:35 May 12, 2022 Jkt 000000 PO 00000 Frm 00013 Fmt 6652 Sfmt 6201 E:\BILLS\S4186.IS S4186

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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 Administrator 

7 shall promulgate and publish in the Federal Register 

8 interim final regulations for the processing and pay9 ment of claims under this Act. 

10 (2) PUBLIC INFORMATION.— 

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

12 the Administrator promulgates regulations 

13 under paragraph (1), the Administrator shall 

14 publish, online and in print, in newspapers of 

15 general circulation in the State of New Mexico, 

16 a clear, concise, and easily understandable ex17 planation, in English and Spanish, 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 Administrator shall disseminate 

25 the explanation published under subparagraph 


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1 (A) through websites, blogs, social media, bro2 chures, pamphlets, radio, television, and other 

3 media that the Administrator determines are 

4 likely to reach prospective claimants. 

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

6 Administrator shall consult with the Secretary of the Inte7 rior, the Secretary of Energy, the Secretary of Agri8 culture, the Administrator of the Small Business Adminis9 tration, other Federal agencies, and State, local, and Trib10 al authorities, as determined to be necessary by the Ad11 ministrator, to— 

12 (1) ensure the efficient administration of the 

13 claims process; and 

14 (2) provide for local concerns. 

15 (h) ELECTION OF REMEDY.— 

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

17 to seek compensation from the United States for 1 

18 or more injuries resulting from the Hermit’s Peak 

19 Fire by— 

20 (A) submitting a claim under this Act; 

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

22 under chapter 171 of title 28, United States 

23 Code (commonly known as the ‘‘Federal Tort 

24 Claims Act’’); or 


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1 (C) bringing an authorized civil action 

2 under any other provision of law. 

3 (2) EFFECT OF ELECTION.—An election by an 

4 injured person to seek compensation in any manner 

5 described in paragraph (1) shall be final and conclu6 sive on the claimant with respect to all injuries re7 sulting from the Hermit’s Peak Fire that are suf8 fered by the claimant. 

9 (3) ARBITRATION.— 

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

11 after the date of enactment of this Act, the Ad12 ministrator shall establish by regulation proce13 dures under which a dispute regarding a claim 

14 submitted under this Act may be settled by ar15 bitration. 

16 (B) ARBITRATION AS REMEDY.—On estab17 lishment of arbitration procedures under sub18 paragraph (A), an injured person that submits 

19 a disputed claim under this Act may elect to 

20 settle the claim through arbitration. 

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

22 injured person to settle a claim through arbitra23 tion under this paragraph shall— 

24 (i) be binding; and 


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1 (ii) preclude any exercise by the in2 jured person of the right to judicial review 

3 of a claim described in subsection (i). 

4 (4) NO EFFECT ON ENTITLEMENTS.—Nothing 

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

6 claim for benefits under any Federal entitlement 

7 program. 

8 (i) JUDICIAL REVIEW.— 

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

10 final decision of the Administrator under this Act 

11 may, not later than 60 days after the date on which 

12 the decision is issued, bring a civil action in the 

13 United States District Court for the District of New 

14 Mexico, to modify or set aside the decision, in whole 

15 or in part. 

16 (2) RECORD.—The court shall hear a civil ac17 tion under paragraph (1) on the record made before 

18 the Administrator. 

19 (3) STANDARD.—The decision of the Adminis20 trator incorporating the findings of the Adminis21 trator shall be upheld if the decision is supported by 

22 substantial evidence on the record considered as a 

23 whole. 

24 (j) ATTORNEY’S AND AGENT’S FEES.— 


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

2 alone or in combination with any other attorney or 

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

4 services rendered in connection with a claim sub5 mitted under this Act, fees in excess of 10 percent 

6 of the amount of any payment on the claim. 

7 (2) VIOLATION.—An attorney or agent who vio8 lates paragraph (1) shall be fined not more than 

9 $10,000. 

10 (k) WAIVER OF REQUIREMENT FOR MATCHING

11 FUNDS.— 

12 (1) IN GENERAL.—Notwithstanding any other 

13 provision of law, a State or local project that is de14 termined by the Administrator to be carried out in 

15 response to the Hermit’s Peak Fire under any Fed16 eral program that applies to an area affected by the 

17 Hermit’s Peak Fire shall not be subject to any re18 quirement for State or local matching funds to pay 

19 the cost of the project under the Federal program. 

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

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

22 shall be 100 percent. 

23 (l) APPLICABILITY OF DEBT COLLECTION REQUIRE24 MENTS.—Section 3716 of title 31, United States Code, 

25 shall not apply to any payment under this Act. 


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1 (m) INDIAN COMPENSATION.—Notwithstanding any 

2 other provision of law, in the case of an Indian Tribe, a 

3 Tribal entity, or a member of an Indian Tribe that sub4 mits a claim under this Act— 

5 (1) the Bureau of Indian Affairs shall have no 

6 authority over, or any trust obligation regarding, 

7 any aspect of the submission of, or any payment re8 ceived for, the claim; 

9 (2) the Indian Tribe, Tribal entity, or member 

10 of an Indian Tribe shall be entitled to proceed under 

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

12 as any other injured person; and 

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

14 Hermit’s Peak Fire that is the subject of the claim, 

15 the Bureau of Indian Affairs shall have no responsi16 bility to restore land damaged by the Hermit’s Peak 

17 Fire. 

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

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

20 and annually thereafter, the Administrator shall submit 

21 to Congress a report that describes the claims submitted 

22 under this Act during the year preceding the date of sub23 mission of the report, including, for each claim— 

24 (1) the amount claimed; 


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

2 claim; and 

3 (3) the status or disposition of the claim, in4 cluding the amount of any payment under this Act. 

5 (o) AUTHORIZATION OF APPROPRIATIONS.—There 

6 are authorized to be appropriated such sums as are nec7 essary to carry out this Act. 

Æ 


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