Escaped burns and constitutional liability.
The San Francisco Chronicle is reporting that the California legislature may attempt to alter the liability that utility companies in that state bear for fires caused by utility infrastructure – typically downed lines.
Since this isn’t TakingCalifornia.com, one might question why this news is today’s lede. Well, it may interest the reader to know that Nevada has a long-cherished tradition of applying California law (or at least strongly considering the application of California law) to novel issues. In many areas of law this is a sensible choice: California and Nevada neighbor one another, and much of Nevada’s statutory law was directly imported from California in 1911 (a post for a different day). But in areas of Nevada eminent domain, the application of California law becomes a dicey proposition. This is because the California and Nevada constitutions are fundamentally different from one another.
Specifically, the California constitution mandates the payment of just compensation for both the “taking” of property and “damage” to property for a public use. By contrast, the Nevada constitution only mandates just compensation for the “taking” of property for a public use.
This tension between California and Nevada law is at play in the currently pending Nevada Supreme Court matter of State of Nevada, Div. of Forestry v. Dist. Ct. (Scott, et al.), Docket No. 74271. In that action, the State of Nevada, Division of Forestry set an intentional fire, seeking to reduce fuel on a piece of property owned by the University of Nevada. The fire escaped. Many other properties were burned. Many law suits were filed. The district court declined to dismiss an “inverse condemnation” cause of action. The State sought extraordinary intervention from the Nevada Supreme Court. That writ petition is pending.
In the briefing before the Nevada Supreme Court, citations to California law were bountiful. But the textual difference between the constitutions was not heavily discussed. As eminent domain attorneys who represent both landowners and government entities, we submitted an amicus curiae brief on behalf of a number of public entities, not in favor of either party. Instead, our brief focused on the differences between the constitutions and requested that the Court specifically lay out a test for determining whether injury to properties qualified as a genuine “taking” or as mere “damage”. This way all individuals and public entities will understand at the outset what form of liability is at issue.
As wildfires increase in the West, and as the population of Nevada and California continue to increase, fires caused by utilities and government action are likely to increase as well. Liability questions will become increasingly litigated. Following the developments in each state is instructive for practitioners in either. It will be interesting to see whether the California legislative amendments spur similar action in Nevada. It will also be very interesting to see how similar or dissimilar the laws of the states winds up being, both from an academic perspective, and because I suspect that eventually there will be a cross-border fire in the Lake Tahoe area that will shine a very bleak light on the differences.