By TED SICKINGER/The Oregonian, OregonLive
PacifiCorp doesn’t dispute that its equipment ignited some of the fires that burned in Oregon on Labor Day 2020, but it has denied responsibility for most of the catastrophic destruction claimed by victims in a $1.6 billion class action lawsuit currently playing out in Multnomah County Circuit Court.
In more than two weeks of testimony by experts, employees and eyewitnesses, the utility’s defense lawyers have also attempted to debunk victims’ claims that PacifiCorp was ill prepared and unresponsive to the widely forecast warnings of extreme wildfire risks amid a historic windstorm that weekend, and that it was negligent for failing to de-energize its power lines in advance.
The utility’s lawyers rested their defense Thursday. The plaintiffs will offer rebuttal testimony before closing arguments next week, then the case will go to jury deliberations.
Oregon, unlike California, has never seen a wildfire lawsuit of this scope or wildfire losses that approached those from the Labor Day 2020 fires. The damages sought – both direct economic damages for property losses and non-economic damages for emotional pain and suffering — are enormous, and a verdict awarding damages approaching anything close to the $1.6 billion sought would be unprecedented in Oregon. The mere existence of the litigation is already changing the way utilities and regulators approach the increasing risk, and PacifiCorp will finish this trial only to face another lawsuit filed by victims of the Archie Creek fire, another 2020 blaze east of Roseburg scheduled for trial in November.
The Labor Day fires burned more than 1.2 million acres in Oregon, destroyed upwards of 5,000 homes and structures, and claimed nine lives. PacifiCorp is the primary defendant in litigation stemming from the fires. The Portland-based utility, Oregon’s second largest, didn’t turn off the power to any of its 600,000 customers during the windstorm and its lines have been implicated in six separate blazes, one of which started in its California service territory and burned into Oregon.
PacifiCorp stands accused in this lawsuit of starting four of those fires, including the Santiam Canyon fires east of Salem, the Echo Mountain Complex near Lincoln City, the South Obenchain Fire near Eagle Point and the Two Four Two Fire near Chiloquin.
The Santiam fires
One of the principal thrusts of the defense has been to demonstrate that the widespread destruction in the Santiam Canyon, home to more than half the properties destroyed in the four fires at issue in the trial, wasn’t caused by downed power lines. Instead, a series of expert witnesses called by the defense testified that the likely cause of most of that destruction was wind-driven embers from the head of the Beachie Creek fire, a lightning-caused blaze that had been burning in the Opal Creek wilderness for three weeks before blowing up amid the Labor Day windstorm and sending multiple legs of the fire on rapid and ultimately calamitous runs toward populated areas to the west.
To the extent power lines caused fires, those experts testified — say, when a power line came down at Gates School and caused several simultaneous ignitions — the extent of the spread and damage would have been very limited because of prevailing winds and terrain.
Neil Lareau, an assistant professor at the University of Nevada whose research includes reconstructions of high impact wildfires, used infrared satellite imagery to track the heat signature of the Beachie Creek fire on Labor Day, showing its growth and intensity as the evening progressed. He also used radar imagery to construct a three-dimensional model showing the evolution of the smoke plume from the fire. Those plumes, he said, can reach a height of 30,000 feet and generate updrafts and tornadic circulations that loft burning and smoldering embers high into the atmosphere, where they can travel many miles, fall out and cause spot fires well ahead of the main fire.
Those conditions existed on Labor Day evening, he said. Infrared imagery showed the most significant pulses of heat from the Beachie Creek fire between 9 and 10 p.m. and 10:30 to 11 p.m. Those pulses coincided with radar imagery showing the fire’s plume extending over locations near the town of Gates, including Potato Hill and the Gates School, at precisely the time fires there were being reported in 911 calls.
“My conclusion was that there is a clear physical pathway and mechanism for these fires to be caused by long-range spotting from the Beachie Creek fire,” Lareau said. He acknowledged that that the specific ignitions would need to be evaluated by a cause and origin expert to make a definitive conclusion. But he said “it is likely that long-range spotting was responsible for the fires I’m talking about right here.”
Darrell Schulte, a fire behavior analyst, testified that his analysis showed the Beachie Creek fire entered the Santiam Canyon around 10 p.m. and reached Gates and Mill City by 11:26 p.m. He said that because of prevailing winds and terrain, various individual ignitions that the plaintiffs contend were responsible for destroying the bulk of homes and property in the Santiam Canyon would not have progressed and merged to create a larger fire that caused widespread damage.
Echo Mountain fires
The Echo Mountain Complex was caused by two separate ignitions that eventually joined together and destroyed some 300 properties in and around the town of Otis in north Lincoln County, while the South Obenchain fire destroyed some 324 properties near Eagle Point.
The victims offered both expert, and in the case of Echo Mountain, eyewitness testimony suggesting both fires were caused by PacifiCorp’s power lines.
The utility called metallurgical and electrical engineering experts to dispute its role in those fires.
Gary Fowler, a metallurgical engineer from California, evaluated conductors from both fires. He found multiple arc marks on the conductors from Echo Mountain Road, but said they were old, oxidized and there was no evidence of vegetation contact left on the line. He found no evidence of arcing on the conductor from the South Obenchain fire.
Likewise, Billy Don Russell, a professor of electrical engineering from Texas A&M who has extensively studied utility fire ignitions, testified there was no record of faults recorded or fuses blown at either of those locations – faults that would certainly have shown up in utility records if trees or branches flew into the line, bridged conductors and caused arcing that started the fires. He too said there was no physical evidence to suggest that vegetation started either fire.
PacifiCorp witnesses did acknowledge that there was evidence showing that power lines were involved in a separate ignition in the Echo Mountain Complex, one at the Gates School in the Santiam Canyon, and in the start of the Two Four Two fire near the town of Chiloquin. But the defense downplayed the notion of any negligence in those instances, introducing company records and testimony that showed it had maintained inspections and tree trimming in the area and that the trees in question were healthy and properly maintained.
What’s next
Fire victims have long maintained that PacifiCorp was asleep at the switch in the days leading up to the Labor Day fires in 2020, even as the National Weather Service issued increasingly dire forecasts about the coming east wind event, the utility’s contract meteorologist issued his own warnings about potential fire danger, and other utilities in Oregon and California made plans to shut off the power.
PacifiCorp lawyers attempted to turn that notion on its head, calling a series of line employees, executives and outside experts who testified that it was ahead of the game in wildfire planning among utilities in Oregon; on the ball in terms of investments in tree trimming, the deployment of weather stations and making transmission upgrades to reduce fire risks; and that its employees and executives were both well aware of and monitoring developing conditions all through the Labor Day weekend.
How jurors weigh that testimony against the reality of the destruction wrought by the four fires, and three weeks’ worth of earlier testimony from victims’ witnesses remains to be seen.
In the meantime, Judge Steffan Alexander will hear arguments on two pending motions by PacifiCorp. In the first, the utility has asked the judge to throw out several of the plaintiffs’ main claims in the lawsuit, which it contends aren’t supported by sufficient evidence for the jury to make a finding under the law.
PacifiCorp also filed a renewed motion this week asking the judge to throw out the class certification in the case, arguing that the individual circumstances of thousands of fire victims vary so widely that there is no way for a jury to reach a class-wide finding of harm.
Alexander told jurors they have Friday off to attend to personal affairs. But he said the trial was on schedule for closing arguments Wednesday.
— Ted Sickinger; tsickinger@oregonian.com; 503-221-8505; @tedsickinger