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Great news out of Capitol Hill: on September 30, 2022, the Hermits Peak Fire Assistance Act (“HPFAA”) was signed into law by President Joe Biden. It passed as part of the Continuing Resolution to fund Congress.

Click here to see the HPFAA as signed by the President.

Below is a summary of relevant provisions:

• Purpose – The purposes of HPFAA are to compensate victims of the Hermits Peak/Calf Canyon Fire for injuries resulting from the fire and to provide for the expeditious consideration and settlement of claims for those injuries.
• Injured Person – Injured person means an individual, Indian Tribe, corporation, Tribal corporation, partnership, company, association, county, township, city, State, school district, or other non-Federal entity that suffered injury resulting from the Hermits Peak/Calf Canyon Fire.
• Deadline – The Act allows injured persons up to 2 years to submit a claim for injuries, which begins to run once FEMA promulgates and publishes regulations regarding the HPFAA in the Federal Register. FEMA has 45 days to promulgate those regulations and publish them in the Federal Register. The 2-year period for submitting claims will begin soon. Please NOTE, however, we strongly recommend that you do not wait, but begin immediately. Once your claim is filed, the Act requires the administrator to make a decision within 180 days of your claim being filed.  The longer you wait to file, the longer you wait for a decision and recovery. Plus, memories and evidence fades and gets lost over time. So, we urge you act right away, and let us know if you want us to represent you.
• Allowable Damages – HPFAA allows for recovery of a wide array types of damages: loss of property, business loss (including damage to assets/inventory, business interruption loss, overhead costs, employee wages for work not performed, loss of business net income), financial loss (including increased mortgage interest costs, insurance deductible, temporary living or relocation expense, lost wages/personal income, emergency staffing expense, debris removal, cost of reasonable efforts to reduce risk of wildfire flood, flood insurance premium, etc.). The Act also allows recovery of any other loss that the Administrator determines to be appropriate, which expands the possible kinds of damages recoverable. The only types of recoveries expressly excluded are punitive damages and pre-judgment interest. The laws of the State of New Mexico will apply on the calculation of damages – more to come on that later. For almost all of you, we are of the opinion that it will be best for you to seek recovery on the HPFAA rather than the Federal Tort Claims Act, a takings claim, or any other civil action.
• Election of Remedy – As we have previously noted, there is an election of remedy provision in HPFAA, which means that an injured person may elect to seek compensation from one of the following: (1) submitted a claim under HPFAA, (2) filing a claim/civil action under the Federal Tort Claims Act, or (3) bringing an authorized civil action under any other provision of law. Once you have elected one of these remedies, that election is final and conclusive, meaning you cannot pursue another claim once you have made your decision.
• Attorney’s Fees – Attorney’s fees are limited to 25% of your recovery of damages under HPFAA.

We have received several inquiries regarding whether or not there is a requirement to register with FEMA to be eligible for compensation under HPFAA. The short answer is no, there is not a requirement, HOWEVER, this does not mean you shouldn’t. Senator Lujan’s office is encouraging people to register through FEMA even if they do not qualify for FEMA benefits on the off chance that FEMA registration becomes a prerequisite for compensation fund assistance. Under that scenario, early registration may speed up your claim process. As of today, the deadline to register for FEMA assistance is October 7, 2022. It is unclear whether or not FEMA will grant an extension for this registration requirement. The fastest and easiest way to register is at www.disasterassistance.gov. We encourage you to register.