Sec. 5886. Hermit’s Peak/Calf Canyon Fire Assistance
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Congress finds that— on April 6, 2022, the Forest Service initiated the Las Dispensas-Gallinas prescribed burn on Federal land in the Santa Fe National Forest in San Miguel County, New Mexico, when erratic winds were prevalent in the area that was also suffering from severe drought after many years of insufficient precipitation; on April 6, 2022, the prescribed burn, which became known as the Hermit’s Peak Fire , exceeded the containment capabilities of the Forest Service, was declared a wildfire, and spread to other Federal and non-Federal land; on April 19, 2022, the Calf Canyon Fire, also in San Miguel County, New Mexico, began burning on Federal land and was later identified as the result of a pile burn in January 2022 that remained dormant under the surface before reemerging; on April 27, 2022, the Hermit’s Peak Fire and the Calf Canyon Fire merged, and both fires were reported as the Hermit’s Peak Fire or the Hermit’s Peak/Calf Canyon Fire, (referred hereafter in this subsection as the Hermit’s Peak/Calf Canyon Fire ); by May 2, 2022, the fire had grown in size and caused evacuations in multiple villages and communities in San Miguel County and Mora County, including in the San Miguel county jail, the State’s psychiatric hospital, the United World College, and New Mexico Highlands University; on May 4, 2022, the President issued a major disaster declaration for the counties of Colfax, Mora, and San Miguel, New Mexico; on May 20, 2022, U.S.
Forest Service Chief Randy Moore ordered a 90-day review of prescribed burn policies to reduce the risk of wildfires and ensure the safety of the communities involved; the U.S. Forest Service has assumed responsibility for the Hermit’s Peak/Calf Canyon Fire; the fire resulted in the loss of Federal, State, local, Tribal, and private property; and the United States should compensate the victims of the Hermit’s Peak/Calf Canyon Fire. The purposes of this section are— to compensate victims of the Hermit’s Peak/Calf Canyon Fire, for injuries resulting from the fire; and to provide for the expeditious consideration and settlement of claims for those injuries.
In this section: The term Administrator means— the Administrator of the Federal Emergency Management Agency; or if a Manager is appointed under subsection (c)(1)(C), the Manager. The term Hermit’s Peak/Calf Canyon Fire means— the fire resulting from the initiation by the Forest Service of a prescribed burn in the Santa Fe National Forest in San Miguel County, New Mexico, on April 6, 2022; the pile burn holdover resulting from the prescribed burn by the Forest Service, which reemerged on April 19, 2022; and the merger of the two fires described in subparagraphs
(A)and (B), reported as the Hermit’s Peak Fire or the Hermit’s Peak Fire/Calf Canyon Fire. The term Indian Tribe means the recognized governing body of any Indian or Alaska Native Tribe, band, nation, pueblo, village, community, component band, or component reservation individually identified (including parenthetically) in the list published most recently as of the date of enactment of this Act pursuant to section 104 of the Federally Recognized Indian Tribe List Act of 1994 ( 25 U.S.C. 5131 ). The term injured person means— an individual, regardless of the citizenship or alien status of the individual; or an Indian Tribe, corporation, Tribal corporation, partnership, company, association, county, township, city, State, school district, or other non-Federal entity (including a legal representative) that suffered injury resulting from the Hermit's Peak/Calf Canyon Fire. The term injury has the same meaning as the term injury or loss of property, or personal injury or death as used in section 1346(b)(1) of title 28, United States Code. The term Manager means an Independent Claims Manager appointed under subsection (c)(1)(C). The term Office means the Office of Hermit's Peak/Calf Canyon Fire Claims established by subsection (c)(1)(B). The term Tribal entity includes any Indian Tribe, tribal organization, Indian-controlled organization serving Indians, Native Hawaiian organization, or Alaska Native entity, as such terms are defined or used in section 166 of the Workforce Innovation and Opportunity Act ( 25 U.S.C. 5304 ). Each injured person shall be entitled to receive from the United States compensation for injury suffered by the injured person as a result of the Hermit's Peak/Calf Canyon Fire. There is established within the Federal Emergency Management Agency an Office of Hermit's Peak/Calf Canyon Fire Claims. The Office shall receive, process, and pay claims in accordance with this section. The Office— shall be funded from funds made available to the Administrator under this section; may appoint and fix the compensation of such temporary personnel as may be necessary, without regard to the provisions of title 5, United States Code, governing appointments in competitive service; and may reimburse other Federal agencies for claims processing support and assistance. The Administrator may appoint an Independent Claims Manager to— head the Office; and assume the duties of the Administrator under this section. Not later than 2 years after the date on which regulations are first promulgated under paragraph (6), an injured person may submit to the Administrator a written claim for 1 or more injuries suffered by the injured person in accordance with such requirements as the Administrator determines to be appropriate. The Administrator shall, on behalf of the United States, investigate, consider, ascertain, adjust, determine, grant, deny, or settle any claim for money damages asserted under paragraph (2). Except as otherwise provided in this section, the laws of the State of New Mexico shall apply to the calculation of damages under paragraph (4)(D). Any payment under this section— shall be limited to actual compensatory damages measured by injuries suffered; and shall not include— interest before settlement or payment of a claim; or punitive damages. Not later than 180 days after the date on which a claim is submitted under this section, the Administrator shall determine and fix the amount, if any, to be paid for the claim. The Administrator, to the maximum extent practicable, shall pay subrogation claims submitted under this section only after paying claims submitted by injured parties that are not insurance companies seeking payment as subrogees. In determining and settling a claim under this section, the Administrator shall determine only— whether the claimant is an injured person; whether the injury that is the subject of the claim resulted from the fire; the amount, if any, to be allowed and paid under this section; and the person or persons entitled to receive the amount. In determining the amount of, and paying, a claim under this section, to prevent recovery by a claimant in excess of actual compensatory damages, the Administrator shall reduce the amount to be paid for the claim by an amount that is equal to the total of insurance benefits (excluding life insurance benefits) or other payments or settlements of any nature that were paid, or will be paid, with respect to the claim. This subparagraph shall not apply to the receipt by a claimant of any government loan that is required to be repaid by the claimant. At the request of a claimant, the Administrator may make 1 or more advance or partial payments before the final settlement of a claim, including final settlement on any portion or aspect of a claim that is determined to be severable. If a claimant receives a partial payment on a claim under this section, but further payment on the claim is subsequently denied by the Administrator, the claimant may— seek judicial review under paragraph (9); and keep any partial payment that the claimant received, unless the Administrator determines that the claimant— was not eligible to receive the compensation; or fraudulently procured the compensation. If an insurer or other third party pays any amount to a claimant to compensate for an injury described in paragraph (1), the insurer or other third party shall be subrogated to any right that the claimant has to receive any payment under this section or any other law. A claim that is paid for loss of property under this section may include otherwise uncompensated damages resulting from the Hermit's Peak/Calf Canyon Fire for— an uninsured or underinsured property loss; a decrease in the value of real property; damage to physical infrastructure, including irrigation infrastructure such as acequia systems; a cost resulting from lost subsistence from hunting, fishing, firewood gathering, timbering, grazing, or agricultural activities conducted on land damaged by the Hermit's Peak/Calf Canyon Fire; a cost of reforestation or revegetation on Tribal or non-Federal land, to the extent that the cost of reforestation or revegetation is not covered by any other Federal program; and any other loss that the Administrator determines to be appropriate for inclusion as loss of property. A claim that is paid for injury under this section may include damages resulting from the Hermit's Peak/Calf Canyon Fire for the following types of otherwise uncompensated business loss: Damage to tangible assets or inventory. Business interruption losses. Overhead costs. Employee wages for work not performed. Any other loss that the Administrator determines to be appropriate for inclusion as business loss. A claim that is paid for injury under this section may include damages resulting from the Hermit's Peak/Calf Canyon Fire for the following types of otherwise uncompensated financial loss: Increased mortgage interest costs. An insurance deductible. A temporary living or relocation expense. Lost wages or personal income. Emergency staffing expenses. Debris removal and other cleanup costs. Costs of reasonable efforts, as determined by the Administrator, to reduce the risk of wildfire, flood, or other natural disaster in the counties impacted by the Hermit's Peak/Calf Canyon Fire to risk levels prevailing in those counties before the Hermit's Peak/Calf Canyon Fire, that are incurred not later than the date that is 3 years after the date on which the regulations under paragraph
(6)are first promulgated. A premium for flood insurance that is required to be paid on or before May 31, 2024, if, as a result of the Hermit's Peak/Calf Canyon Fire, a person that was not required to purchase flood insurance before the Hermit's Peak/Calf Canyon Fire is required to purchase flood insurance. A disaster assistance loan received from the Small Business Administration. Any other loss that the Administrator determines to be appropriate for inclusion as financial loss. The acceptance by a claimant of any payment under this section, except an advance or partial payment made under paragraph (4)(B), shall— be final and conclusive on the claimant, with respect to all claims arising out of or relating to the same subject matter; and constitute a complete release of all claims against the United States (including any agency or employee of the United States) under chapter 171 of title 28, United States Code (commonly known as the Federal Tort Claims Act ), or any other Federal or State law, arising out of or relating to the same subject matter. Notwithstanding any other provision of law, not later than 45 days after the date of enactment of this section, the Administrator shall promulgate and publish in the Federal Register interim final regulations for the processing and payment of claims under this section. At the time at which the Administrator promulgates regulations under subparagraph (A), the Administrator shall publish, online and in print, in newspapers of general circulation in the State of New Mexico, a clear, concise, and easily understandable explanation, in English and Spanish, of— the rights conferred under this section; and the procedural and other requirements of the regulations promulgated under subparagraph (A). The Administrator shall disseminate the explanation published under clause
(i)through websites, blogs, social media, brochures, pamphlets, radio, television, and other media that the Administrator determines are likely to reach prospective claimants. In administering this section, the Administrator shall consult with the Secretary of the Interior, the Secretary of Energy, the Secretary of Agriculture, the Administrator of the Small Business Administration, other Federal agencies, and State, local, and Tribal authorities, as determined to be necessary by the Administrator, to— ensure the efficient administration of the claims process; and provide for local concerns. An injured person may elect to seek compensation from the United States for 1 or more injuries resulting from the Hermit's Peak/Calf Canyon Fire by— submitting a claim under this section; filing a claim or bringing a civil action under chapter 171 of title 28, United States Code (commonly known as the Federal Tort Claims Act ); or bringing an authorized civil action under any other provision of law. An election by an injured person to seek compensation in any manner described in subparagraph
(A)shall be final and conclusive on the claimant with respect to all injuries resulting from the Hermit's Peak/Calf Canyon Fire that are suffered by the claimant. Not later than 45 days after the date of enactment of this Act, the Administrator shall establish by regulation procedures under which a dispute regarding a claim submitted under this section may be settled by arbitration. On establishment of arbitration procedures under clause (i), an injured person that submits a disputed claim under this section may elect to settle the claim through arbitration. An election by an injured person to settle a claim through arbitration under this subparagraph shall— be binding; and preclude any exercise by the injured person of the right to judicial review of a claim described in paragraph (9). Nothing in this section affects any right of a claimant to file a claim for benefits under any Federal entitlement program. Any claimant aggrieved by a final decision of the Administrator under this section may, not later than 60 days after the date on which the decision is issued, bring a civil action in the United States District Court for the District of New Mexico, to modify or set aside the decision, in whole or in part. The court shall hear a civil action under subparagraph
(A)on the record made before the Administrator. The decision of the Administrator incorporating the findings of the Administrator shall be upheld if the decision is supported by substantial evidence on the record considered as a whole. No attorney or agent, acting alone or in combination with any other attorney or agent, shall charge, demand, receive, or collect, for services rendered in connection with a claim submitted under this section, fees in excess of the limitations established under section 2678 of title 28, United States Code. An attorney or agent who violates subparagraph
(A)shall be fined not more than $10,000. Notwithstanding any other provision of law, a State or local project that is determined by the Administrator to be carried out in response to the Hermit's Peak/Calf Canyon Fire under any Federal program that applies to an area affected by the Hermit's Peak/Calf Canyon Fire shall not be subject to any requirement for State or local matching funds to pay the cost of the project under the Federal program. The Federal share of the costs of a project described in clause
(i)shall be 100 percent. Notwithstanding section 408(g)(2) of the Robert T. Stafford Disaster Relief and Emergency Assistance Act ( 42 U.S.C. 5174(g)(2) ), for any emergency or major disaster declared by the President under that Act for the Hermit’s Peak/Calf Canyon Fire, the Federal share of assistance provided under that section shall be 100 percent. Section 3711(a) of title 31, United States Code, shall not apply to any payment under this section, unless— there is evidence of civil or criminal fraud, misrepresentation, presentation of a false claim; or a claimant was not eligible under paragraph (4)(B) of this section to any partial payment. Notwithstanding any other provision of law, in the case of an Indian Tribe, a Tribal entity, or a member of an Indian Tribe that submits a claim under this section— the Bureau of Indian Affairs shall have no authority over, or any trust obligation regarding, any aspect of the submission of, or any payment received for, the claim; the Indian Tribe, Tribal entity, or member of an Indian Tribe shall be entitled to proceed under this section in the same manner and to the same extent as any other injured person; and except with respect to land damaged by the Hermit's Peak/Calf Canyon Fire that is the subject of the claim, the Bureau of Indian Affairs shall have no responsibility to restore land damaged by the Hermit's Peak/Calf Canyon Fire. Not later than 1 year after the date of promulgation of regulations under paragraph (6)(A), and annually thereafter, the Administrator shall submit to Congress a report that describes the claims submitted under this section during the year preceding the date of submission of the report, including, for each claim— the amount claimed; a brief description of the nature of the claim; and the status or disposition of the claim, including the amount of any payment under this section. There are authorized to be appropriated such sums as are necessary to carry out this section.
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