United States v. Cb & I Constructors, Inc.

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA,  No. 10-55371
Plaintiff-Appellee, D.C. No.
v.  2:08-cv-03609-
CB & I CONSTRUCTORS, INC., PA-AGR
Defendant-Appellant.
 OPINION
Appeal from the United States District Court
for the Central District of California
Percy Anderson, District Judge, Presiding
Argued and Submitted
November 15, 2011—Pasadena, California
Filed June 29, 2012
Before: Alfred T. Goodwin, William A. Fletcher, and
Johnnie B. Rawlinson, Circuit Judges.
Opinion by Judge William A. Fletcher
7717
UNITED STATES v. CB & I CONSTRUCTORS, INC. 7719
COUNSEL
Abraham Meltzer, Leon W. Weidman, OFFICE OF THE
UNITED STATES ATTORNEY, Los Angeles, California,
for the appellee.
7720 UNITED STATES v. CB & I CONSTRUCTORS, INC.
Peder Kristian Batalden, Lisa J. Perrochet, Robert H. Wright,
HORVITZ & LEVY, LLP, Encino, California, Jeffrey D.
Lyddan, LYDDAN LAW GROUP, Moraga, California, for
the appellant.
Randy W. Gimple, CARLSON CALLADINE & PETER-
SON, LLP, San Francisco, California, Daniel Paul Collins,
MUNGER, TOLLES & OLSON, LLP, Los Angeles, Califor-
nia, Charles Larry Davis, SAN DIEGO GAS & ELECTRIC
COMPANY, San Diego, California, John Ross Ellis,
SOUTHERN CALIFORNIA GAS COMPANY, Los Angeles,
California, for amici curiae.
OPINION
W. FLETCHER, Circuit Judge:
Defendant CB&I Constructors, Inc., (“CB&I”) negligently
caused a June 2002 wildfire that burned roughly 18,000 acres
of the Angeles National Forest in Southern California. The
United States brought a civil action against CB&I to recover
damages for harm caused by the fire. CB&I does not contest
its liability or the jury’s award of roughly $7.6 million in fire
suppression, emergency mitigation, and resource protection
costs. It challenges only the jury’s additional award of $28.8
million in intangible environmental damages.
The district court denied CB&I’s motions for judgment as
a matter of law and a new trial or remittitur, concluding that
under California law the government could recover damages
for all of the harm caused by the fire, including intangible
harm to the environment. The court held that the government
provided sufficient evidence for the jury to determine the
amount of environmental damages, and that the resulting
award was not grossly excessive. We affirm.
UNITED STATES v. CB & I CONSTRUCTORS, INC. 7721
I. Background
A. Factual Background
The Angeles National Forest covers roughly 650,000 acres
in the San Gabriel Mountains, just north of metropolitan Los
Angeles. It was set aside for watershed protection and public
use in 1892 as the first federal forest reserve in California. See
ANTHONY GODFREY, THE EVER-CHANGING VIEW: A HISTORY OF
NATIONAL FORESTS IN CALIFORNIA 38 (2005). The U.S. Forest
Service administers the forest “for outdoor recreation, range,
timber, watershed, and wildlife and fish purposes.” 16 U.S.C.
§ 528. It is part of a National Forest System “dedicated to the
long-term benefit for present and future generations.” Id.§ 1609(a).
The Angeles National Forest is an important environmental
and recreational resource for Southern Californians, repre-
senting about 70 percent of all open space in Los Angeles
County. It is also a refuge for native plants and animals,
including several threatened and endangered species. San
Francisquito Canyon, a chaparral and sage scrub ecosystem
surrounded by high ridges in the northwestern part of the
National Forest, contains known populations of several spe-
cies protected under the Endangered Species Act, including
the Bald Eagle, California Condor, Southwest Willow Fly-
catcher, and California Red-Legged Frog. The Red-Legged
Frog was once widespread throughout the region, but now has
only three known populations in Southern California. The
largest of the three populations is in San Francisquito Canyon,
where the frog remains “extremely vulnerable” to local
extinction.
In April 2002, a county water district hired Merco Con-
struction Engineers, Inc., (“Merco”) to build four water stor-
age tanks for a housing project in the city of Santa Clarita.
Merco subcontracted with CB&I to construct two of the steel
tanks. The site was on private land, next to a brush-covered
7722 UNITED STATES v. CB & I CONSTRUCTORS, INC.
hillside about a half mile from the National Forest. As the
general contractor, Merco maintained a superintendent at the
construction site for part of the work day. CB&I encouraged
its employees to work quickly by offering them a financial
bonus if they completed the tanks in fewer hours than initially
projected.
On June 5, 2002, the air temperature at the work site
exceeded 100 degrees. A crew from CB&I worked through
the heat to perform tasks that posed known fire hazards. Nei-
ther CB&I nor Merco had taken several recommended fire
prevention precautions, such as clearing brush 100 feet from
the tanks, regularly watering dry vegetation, or keeping a fire
watch on the ground while the crew worked on the roof.
At about 2:40 p.m., a CB&I employee was on the roof of
the tank operating an electric grinder. The grinder cuts and
smooths metal with a high-speed rotating abrasive disc that
sends out a trail of sparks and hot metal slag. The employee
was directing the sparks away from his coworkers and off the
edge of the tank toward the dry brush. He saw that the sparks
ignited a fire, but by the time the crew descended from the
roof the fire was out of control.
As the fire spread, it burned about 2,000 acres of private
and county-owned property. It quickly reached the National
Forest where it burned another 18,000 acres, or more than 28
square miles. Federal, state, and county firefighters fought the
fire for nearly a week before they contained it on June 11. The
government incurred roughly $6.6 million in fire suppression
costs. The fire became known as the Copper Fire.
The CB&I welding crew returned to work the day after
starting the fire. Company employees eventually received a
bonus for completing the water tanks in fewer hours than
originally projected.
Within the National Forest, some of the greatest fire dam-
age occurred in San Francisquito Canyon. The fire burned
UNITED STATES v. CB & I CONSTRUCTORS, INC. 7723
“pretty much all” of the native chaparral and sage scrub vege-
tation in the Canyon, opening the door to invasive, nonnative
plants that increase the risk of future fires. For example, the
Copper Fire spread an infestation of Arundo donax — a
highly invasive giant reed that grows as fast as eighteen
inches per day, outcompetes native vegetation, and clogs
waterways. The fire also created a serious flood hazard by
destroying vegetation that normally intercepts the flow of
rainwater and allows for filtration of the water into the soil.
Cf. First English Evangelical Lutheran Church of Glendale v.
Los Angeles Cnty., 482 U.S. 304, 307 (1987) (discussing a
July 1977 forest fire and resulting February 1978 flood in the
Angeles National Forest). The Copper Fire increased the rates
of sedimentation in the Canyon watershed by up to three
times its normal amount. Much of San Francisquito Creek
filled in with ash and dead trees.
The U.S. Forest Service assembled a Burned Area Emer-
gency Rehabilitation (“BAER”) team of specialists to coordi-
nate immediate erosion control measures after the fire. The
team included a hydrologist, soil scientist, botanist, biologist,
and archeologist. Based on the team’s recommendations, the
Forest Service installed drainage on forest roads and built a
large, 30,000 cubic-yard catchment basin to trap mudflow
from denuded hillsides. The total cost of BAER work was
about $530,000. The government also estimated about
$515,000 in anticipated resource protection costs, such as
manually removing Arundo dorax from about 40 burned acres
and surveying and reestablishing boundary markers damaged
by the fire.
In September 2002, as part of the BAER process, the Forest
Service closed public access to areas where the National For-
est most needed to recover. The Forest Service prohibited all
users in these areas for one year, and horseback riders, bicy-
cles, and off-road vehicles for two. Vegetation had regrown
by roughly 40% when the closures ended in September 2004.
7724 UNITED STATES v. CB & I CONSTRUCTORS, INC.
However, researchers estimated it would take as long as 20 to
25 years for the National Forest to recover from the fire.
The fire and subsequent floods destroyed more than 90% of
the California Red-Legged Frog habitat in the National For-
est. In 2002, before the fire, about 350 to 500 adult California
Red-Legged Frogs lived along San Francisquito Creek. By
2009, researchers saw only about 30 to 50 frogs. Researchers
expressed concern that the small size of the remaining popula-
tion would result in a lack of genetic diversity, making the
population more susceptible to diseases and other threats.
The Copper Fire also caused extreme damage to the Hazel
Dell Mining Camp, an abandoned graphite mine in the
National Forest with historically significant cabins and arti-
facts from the early twentieth century. The fire consumed all
of the camp’s wooden structures and contents and collapsed
two horizontal mining tunnels. It left the vegetation at the site
“moonscaped” and “burned beyond recognition.” Damage
from the fire reduced the site’s historical value and integrity
to the point where the camp was no longer eligible for listing
on the National Register of Historic Places.
B. Procedural Background
In June 2008, the United States filed a civil action against
CB&I and Merco to recover tort damages resulting from the
Copper Fire. During a five-day jury trial in September 2009,
the government presented evidence of monetary costs for its
fire suppression, BAER, and resource protection efforts. The
government also called expert witnesses who testified about
environmental harm to scenic views, recreational use, soil sta-
bility, water quality, plant life, wildlife habitat, the Red-
Legged Frog population, and the mining camp. However, the
government did not elicit testimony that put a dollar amount
on the environmental harm. It maintained that the environ-
mental damages are “not susceptible to empirical calculation”
UNITED STATES v. CB & I CONSTRUCTORS, INC. 7725
because they are “measured by their value to the public and
for posterity.”
In its closing argument, the government described the
intangible environmental harm as “a category of damage that
you, the jury, are going to decide based on your assessment
of the evidence.” The government asked the jury, “What is
. . . the fact that the Hazel Dell Mining Camp isn’t there any-
more worth? What is it worth that the [California Red-Legged
F]rog has been compromised and the gene pool polluted?
What is it worth that the grasses have been changed and other
aspects of the Angeles National Forest have been changed?”
The government suggested two possible ways the jury could
calculate an award for the intangible environmental damages:
first, by applying a “multiplier” to the hard damages; or sec-
ond, by determining a “price per acre” for the 18,000 acres of
burned National Forest land.
The district court instructed the jury, “The United States
does not have to prove the exact amount of damages that will
provide reasonable compensation for the harm. However, you
must not speculate or guess in awarding damages.” The court
also instructed the jury not to include any punitive damages
“for the purpose of punishing or making an example of the
defendant.”
The jury returned a special verdict finding CB&I and
Merco liable for negligence and trespass by fire, allocating
65% of the fault to CB&I and 35% to Merco. It awarded
roughly $7.6 million for fire suppression, BAER, and
resource protection costs in the amounts requested by the gov-
ernment. The jury also awarded the government an additional
$28.8 million for intangible environmental damages, or
$1,600 per acre of burned National Forest land.
Merco had settled with the government for $2.1 million just
before the jury returned its verdict. In November 2009, the
district court entered a judgment against CB&I, offsetting its
7726 UNITED STATES v. CB & I CONSTRUCTORS, INC.
damages liability based on the Merco settlement. Pursuant to
California Civil Code § 1431.2, the court held CB&I jointly
and severally liable for the $7.6 million in economic damages,
but only severally liable for its share of the $28.8 million in
intangible environmental damages. CB&I’s 65% share of the
environmental damages award was $18.72 million.
In December 2009, CB&I renewed an earlier motion for
judgment as a matter of law. The company did not challenge
its liability, or the jury’s award of $7.6 million in economic
damages. Rather, CB&I argued that the intangible environ-
mental damages were not compensable. The company also
moved for a new trial or remittitur, arguing that the $28.8 mil-
lion award was excessive.
In January 2010, the district court denied both motions. It
wrote:
In burning 18,000 acres of the Angeles National For-
est, the Copper Fire harmed lands held in trust for
this and future generations. The Government should
be able to recover damages for all of the damages
caused by the fire, including the intangible environ-
mental damages, and the trial provided sufficient
evidence for the jurors to quantify that harm.
CB&I timely appealed. Energy utilities that operate trans-
mission lines in California forests, and tree companies that
trim or remove trees for the utilities, filed amicus briefs sup-
porting CB&I on appeal (collectively “Amici”).
II. Standard of Review
We review de novo a district court’s denial of a motion for
judgment as a matter of law, Theme Promotions, Inc. v. News
Am. Marketing FSI, 546 F.3d 991, 999 (9th Cir. 2008), and
its legal conclusion about the availability of certain types of
damages, EEOC v. Wal-Mart Stores, Inc., 156 F.3d 989, 992
UNITED STATES v. CB & I CONSTRUCTORS, INC. 7727
(9th Cir. 1998). We review a jury’s damage award for sub-
stantial evidence. Lambert v. Ackerley, 180 F.3d 997, 1012
(9th Cir. 1999) (en banc). We review a district court’s denial
of a motion for a new trial and remittitur for abuse of discre-
tion. DSPT Int’l., Inc. v. Nahum, 624 F.3d 1213, 1218 (9th
Cir. 2010).
III. Discussion
On appeal, CB&I makes three primary arguments challeng-
ing its share of the $28.8 million jury award for intangible
environmental damages. First, CB&I argues that intangible
noneconomic damages are not compensable in tort suits alleg-
ing harm to property. Second, it contends that the government
did not produce sufficient evidence for the jury to determine
the amount of environmental damages in a rational way.
Finally, CB&I argues that the jury award was grossly exces-
sive. We take the three arguments in turn.
A. Compensability of Intangible Environmental Damages
State law governs the federal government’s recovery of
damages for harm caused by fires in National Forests. See
United States v. California, 655 F.2d 914, 917, 920 (9th Cir.
1980).
[1] California’s general tort statute provides that the proper
measure of damages “is the amount which will compensate
[the plaintiff] for all the detriment proximately caused
thereby, whether it could have been anticipated or not.” Cal.
Civ. Code § 3333. “There is no fixed rule for the measure of
tort damages under Civil Code section 3333. The measure that
most appropriately compensates the injured party for the loss
sustained should be adopted.” Santa Barbara Pistachio Ranch
v. Chowchilla Water Dist., 88 Cal. App. 4th 439, 446-47
(2001). “What is apparent from the[ ] cases is the flexibility
employed in the approach to measuring damages and the
broad scope of alternative theories applied to fit the particular
7728 UNITED STATES v. CB & I CONSTRUCTORS, INC.
circumstances of a case.” Id. at 447; see also 6 WITKIN, SUM-
MARY OF CALIFORNIA LAW, TORTS § 1727 (10th ed. 2005) (“The
different kinds of real property and varying types of injury
make it unwise to establish a fixed rule governing damages,
and consequently a number of alternative theories are
applied.”).
[2] California also has a specific statutory provision gov-
erning liability for negligently set fires. It provides:
Any person who personally or through another wil-
fully, negligently, or in violation of law, sets fire to,
allows fire to be set to, or allows a fire kindled or
attended by him to escape to, the property of
another, whether privately or publicly owned, is lia-
ble to the owner of such property for any damages
to the property caused by the fire.
Cal. Health & Safety Code § 13007. Based on the provision’s
“broad language” and “history of liberal construction,” a Cali-
fornia Court of Appeal held that section 13007 places “no
restrictions on the type of property damage that is compensa-
ble.” McKay v. California, 8 Cal. App. 4th 937, 940 (1992).
California courts have “neither deviated from nor limited the
reach of” the provision, and generally treat it as an “addi-
tion[ ] to rather than deduction[ ] from plaintiffs’ general pro-
tections against negligent harm.” Anderson v. United States,
55 F.3d 1379, 1381, 1384 n.5 (9th Cir. 1995).
[3] Landowners in California may recover damages for all
the harm, including environmental injuries, caused by negli-
gently set fires. In People v. Southern Pacific Co., 139 Cal.
App. 3d 627 (1983), the court recognized that a private land-
owner was entitled to both the fair market value of destroyed
timber as well as the cost of restoring the property through
reforestation. Id. at 635. The court reasoned that the fire dam-
aged plaintiff ’s property “not only through destruction of
trees used for timber, but through damage to the soil. . . .
UNITED STATES v. CB & I CONSTRUCTORS, INC. 7729
These are separate injuries.” Id.; see also McKay, 8 Cal. App.
4th at 939-40 (permitting recovery of lost agricultural profits,
as well as diminution in value of a burned 25-acre farm).
More recently, a California Court of Appeal upheld a negli-
gence award of more than $3 million against CB&I for dam-
age that the Copper Fire caused to a private, 34-acre ranch
near Santa Clarita. Kelly v. CB&I Constructors, Inc., 179 Cal.
App. 4th 442 (2009). The fire destroyed about 100 oak trees
on the property, damaged several structures, and was a sub-
stantial factor in subsequent mudslides that gouged a 200-
foot-long gully across a pasture. Id. at 448-49. The Court of
Appeal affirmed an award of more than $2.6 million in resto-
ration costs — including roughly $1.5 million for erosion and
flood control, streambed reconstruction, and removing silt and
sand from a pasture — even though these damages “substan-
tially exceeded” the market value of the property before the
fire. Id. at 454. The court also upheld an additional $750,000
in damages for harm to trees on the property. Id. at 459-61.
[4] Federal courts have allowed the government to recover
environmental damages for negligently set forest fires on pro-
tected public land in California. In Feather River Lumber Co.
v. United States, 30 F.2d 642 (9th Cir. 1929), we affirmed a
damages award against a negligent lumber company for harm
caused to merchantable timber in the National Forest as well
as to young growth, which “while it had no market value, had
a value to its owner.” Id. at 644. We explained that the mea-
sure of damages for the merchantable timber was the market
value of the trees, but that the measure of damages for young
growth in the National Forest, which could not be sold, was
“the damage actually sustained, that is to say, what was
required to make the government whole.” Id. We held that
this amount “might properly include the cost of restoring the
land to the condition in which it was before the fire.” Id.In a case arising out of an August 2000 fire in the Plumas
and Lassen National Forests, a district court in the Eastern
7730 UNITED STATES v. CB & I CONSTRUCTORS, INC.
District of California held that under California law the fed-
eral government was “entitled to full compensation for all of
its damages.” United States v. Union Pac. R.R. Co., 565 F.
Supp. 2d 1136, 1143 (E.D. Cal. 2008) (emphasis in original).
The court noted that many of the tort cases cited by the defen-
dant railroad company had “little or no relevance” to a case,
as here, in which the defendant “burned thousands of acres of
protected government forest lands for which no real estate
market value exists.” Id. The court held that “to ‘fully’ com-
pensate plaintiff for defendant’s negligent conduct,” the gov-
ernment “may seek damages for injuries other than to the
timber, including harm to the soil, . . . and destruction of wild-
life, habitat, recreation use, views, etc.” Id. at 1150.
[5] CB&I and Amici argue that the government may not
recover intangible environmental damages because noneco-
nomic damages are not recoverable in negligence suits regard-
ing harm to real property. However, CB&I and Amici err by
relying on cases that merely limit damages for emotional dis-
tress or suffering. See, e.g., Erlich v. Menezes, 981 P.2d 978,
985 (Cal. 1999) (“No California case has allowed recovery for
emotional distress arising solely out of [negligent] property
damage.” (internal quotation marks omitted)). They point to
no case holding that noneconomic damages, as a general cate-
gory, are precluded in suits alleging harm to property. Califor-
nia law plainly contemplates that noneconomic damages are
compensable in such suits. See Cal. Civ. Code § 1431.2(a)
(“In any action for . . . property damage, . . . the liability of
each defendant for non-economic damages shall be several
. . . .”); accord DaFonte v. Up-Right, Inc., 828 P.2d 140, 145
(Cal. 1992) (“Section 1431.2 declares plainly and clearly that
in tort suits for . . . property damage . . . each defendant shall
be liable only for those non-economic damages directly attrib-
utable to his or her own percentage of fault.” (internal quota-
tion marks and alteration omitted)). In fact, CB&I and Amici
acknowledge that at least some noneconomic damages, such
as annoyance and discomfort, are recoverable in trespass
cases under certain circumstances. See, e.g., Kornoff v. Kings-
UNITED STATES v. CB & I CONSTRUCTORS, INC. 7731
burg Cotton Oil Co., 288 P.2d 507, 511 (Cal. 1955); Kelly,
179 Cal. App. 4th at 456-59 (reversing a $543,000 annoyance
and discomfort award because the plaintiff property owner
merely stored personal property on the trespassed land at the
time of the fire).
[6] The government never sought emotional distress dam-
ages in the case. Rather, the intangible environmental dam-
ages sought by the government are a type of property damage
caused by the fire. See McKay, 8 Cal. App. 4th at 940 (hold-
ing that California law places “no restrictions on the type of
property damage that is compensable” for negligently set for-
est fires). The district court observed that the government sim-
ply made an “instructive” analogy between valuing
environmental harm and other forms of noneconomic dam-
ages. Cf. Christopher D. Stone, Should Trees Have Standing?
— Toward Legal Rights for Natural Objects, 45 S. CAL. L.
REV. 450, 478-79 (1972) (analogizing valuation of environ-
mental harm to tort damages for pain and suffering); Jeffrey
C. Dobbins, Note, The Pain and Suffering of Environmental
Loss: Using Contingent Valuation to Estimate Nonuse Dam-
ages, 43 DUKE L.J. 879, 937-44 (1994) (same). Environmental
harm shares characteristics with other noneconomic damages
in that they are “subjective, non-monetary losses.” Cal. Civ.
Code § 1431.2(b)(2); see also Ohio v. U.S. Dep’t of the Inte-
rior, 880 F.2d 432, 462-63 (D.C. Cir. 1989) (“From the bald
eagle to the blue whale and snail darter, natural resources
have values that are not fully captured by the market sys-
tem.”). However, as the district court noted, “[t]hat the Gov-
ernment has analogized its evidentiary burden in seeking
intangible environmental damages to the burden of a plaintiff
seeking damages for emotional distress does not mean that the
Government is impermissibly seeking damages for emotional
distress. It is not.”
For similar reasons, CB&I and Amici’s argument that the
government lacks the ability to experience emotional distress
is misplaced. See, e.g., Templeton Feed & Grain v. Ralston
7732 UNITED STATES v. CB & I CONSTRUCTORS, INC.
Purina Co., 446 P.2d 152, 156 (Cal. 1968) (“Plaintiff Temple-
ton, a corporation, does not seriously urge that it, a corporate
entity, can sustain mental suffering.”). Here, the government
did not seek damages for emotional distress or mental suffer-
ing. It sought damages for intangible environmental harms
caused by the fire. Moreover, CB&I and Amici’s attempt to
analogize the federal government to a corporate entity is mis-
taken. The United States is not a corporation. In the public
lands context, the federal government is more akin to a trustee
that holds natural resources for the benefit of present and
future generations. See United States v. Beebe, 127 U.S. 338,
342 (1888) (“The public domain is held by the government as
part of its trust. The government is charged with the duty, and
clothed with the power, to protect it from trespass and unlaw-
ful appropriation . . . .”). As the district court observed, the
Copper Fire harmed 18,000 acres of federal forest land “held
in trust for this and future generations.”
CB&I relies on a Canadian Supreme Court case to argue
that intangible environmental damages are not recoverable for
a negligently set forest fire. In British Columbia v. Canadian
Forest Products, Ltd., [2004] 2 S.C.R. 74 (Can.), a logging
company negligently burned approximately 3,700 acres of
government-owned forest in British Columbia. Id. at ¶¶ 1-2.
The Crown filed suit to recover fire suppression costs, lost
revenue from commercial timber, and the value of protected
non-harvestable trees. Id. at ¶ 3. For the non-harvestable trees
in environmentally sensitive areas, the government sought to
recover both their commercial value as well as a 20% pre-
mium for harm to the environment. Id. at ¶ 131. The court
was skeptical of an analogy between environmental harm and
other types of noneconomic damages. See id. at ¶ 151(“[P]rinciples governing non-pecuniary loss . . . do not fit eas-
ily with renewable forest resources.”). But the court ulti-
mately rejected the requested 20% premium because the
Crown had pled its case as a landowner with “a fairly narrow
commercial focus” and had not produced evidence of environ-
mental harm. Id. at ¶¶ 12, 83, 134, 141. The court expressly
UNITED STATES v. CB & I CONSTRUCTORS, INC. 7733
left unresolved the question whether the common law allowed
the Crown to seek compensation on behalf of the public for
environmental damage to public lands. Id. at ¶¶ 81-82, 119,
155. Even if we were willing to treat Canadian common law
as instructive on an issue of California statutory law, we note
that, by contrast to the Crown in Canadian Forest Products,
the government here pled environmental damages from the
outset and produced substantial evidence of the environmental
harm caused by the fire.
[7] In sum, we see nothing in California law that prevents
the federal government from recovering intangible, noneco-
nomic environmental damages for a negligently set fire. Cali-
fornia embraces broad theories of tort liability that enable
plaintiffs to recover full compensation for all the harms that
they suffer. Under California law, the government may
recover intangible environmental damages because anything
less would not compensate the public for all of the harm
caused by the fire. See Cal. Health & Safety Code § 13007(anyone who sets fire to “the property of another, whether pri-
vately or publicly owned, is liable to the owner of such prop-
erty for any damages to the property caused by the fire”
(emphasis added)). Accordingly, we agree with the district
court in this case that the government “should be able to
recover damages for all of the damages caused by the fire,
including the intangible environmental damages.”
B. Sufficiency of the Evidence
[8] CB&I next argues that the government did not produce
sufficient evidence for the jury to determine the amount of
environmental damages. Where, as here, property has no
commercial or market equivalent, “its value, or plaintiff ’s
damages, must be ascertained in some other rational way, and
from such elements as are attainable.” Willard v. Valley Gas
& Fuel Co., 151 P. 286, 289 (Cal. 1915) (internal quotation
marks omitted), overruled on other grounds by Showalter v.
W. Pac. R.R., 106 P.2d 895, 898-99 (Cal. 1940).
7734 UNITED STATES v. CB & I CONSTRUCTORS, INC.
As the district court observed, a “rational way” of ascer-
taining damages “does not require mathematical precision.” In
Zvolanek v. Bodger Seeds, Ltd., 5 Cal. App. 2d 106 (1935),
plaintiff ’s experimental, non-marketable varieties of sweet
peas were damaged in flooding caused by defendant’s negli-
gence. Id. at 107-08. Citing Willard, the court held that the
elements available to support a rational damages award may
include “the difficulty and expense to which plaintiff was put
in acquiring the property, the nature and character of the use
to which it was put by him, and the like.” Id. at 109. “All
these elements being shown, the value is to be determined by
the court or jury by the exercise of a sound discretion.” Id.The district court acknowledged that the government in this
case did not “elicit any testimony that put a dollar amount on
the intangible environmental damages.” However, the court
noted that the government “produced evidence regarding the
extent of damage to the Angeles National Forest, including
testimony regarding the 18,000 acres of burned federal land
that was not usable by the public as a result of the fire. . . .
The jury also heard testimony concerning the extensive
destruction and harm to animal habitats, soils, and plant life.
This testimony included the harm caused by the fire to the
endangered California red-legged frog and the destruction of
the historic Hazel Dell mining camp.”
The government presented the jury with five days of evi-
dence specifying the nature and extent of the damage caused
by the Copper Fire. It called three expert witnesses who testi-
fied in detail about the fire’s impacts. Lisa Northrop, the
resource and planning officer in the Angeles National Forest,
described the damage to San Francisquito Canyon including
erosion and sedimentation, invasive species, and lost recre-
ational use. Dr. Robert Fisher, a research ecologist with the
U.S. Geological Survey (“USGS”), provided a first-hand
account of harm to the California Red-Legged Frog popula-
tion and habitat. Darrell Vance, an archeologist with the
National Forest, testified at length about the destruction of the
UNITED STATES v. CB & I CONSTRUCTORS, INC. 7735
Hazel Dell Mining Camp. Through these experts, the govern-
ment also introduced several reports as evidence of environ-
mental harm, including a burned area report prepared by the
BAER team; a botany report describing effects to Nevin’s
barberry, an endangered flowering shrub; a hydrology report
about flood and sedimentation; a USGS report regarding the
California Red-Legged Frog and federally threatened unar-
mored three-spine stickleback freshwater fish; and an archeo-
logical report about the mining camp.
[9] We agree with the district court that the “trial provided
sufficient evidence for the jurors to quantify the [intangible
environmental] harm.” Evidence about the “nature and char-
acter” of the damaged National Forest environment provided
a rational way for the jury to calculate the award. Zvolanek,
5 Cal. App. 2d at 109. Such evidence having been shown, the
jury could determine the intangible environmental damages
award in “the exercise of a sound discretion.” Id. That the
government’s environmental damages are “largely intangible”
and “ ‘not readily subject to precise calculation’ ” does not
make them any less real. Moylan v. Dykes, 181 Cal. App. 3d
561, 574 (1986) (quoting Greater Westchester Homeowners
Ass’n v. City of Los Angeles, 603 P.2d 1329, 1338 (Cal.
1979)). The amount of such damages is “ ‘necessarily left to
the subjective discretion of the trier of fact.’ ” Id. (quoting
Greater Westchester, 603 P.2d at 1338).
CB&I argues that the government did not present evidence
about the monetary cost of restoring the burned acreage or the
value of lost recreational use after the fire. See, e.g., Starrh &
Starrh Cotton Growers v. Aera Energy LLC, 153 Cal. App.
4th 583, 600 (2007) (finding “no record evidence” to support
the jury’s award of restoration costs); Chaparkas v. Webb,
178 Cal. App. 2d 257, 261-62 (1960) (“While compensation
for loss of use may be an item of damages, proof of value of
the use lost must be established.”). CB&I and Amici compare
this case to Union Pacific, where the government produced
evidence that placed a monetary figure on the environmental
7736 UNITED STATES v. CB & I CONSTRUCTORS, INC.
damages, such as reforestation plans that estimated costs of
between $24 and $33 million and expert testimony that calcu-
lated the damage to wildlife habitat and public enjoyment of
the forest at another $13 million. Union Pacific, 565 F. Supp.
2d at 1150-52. However, as the court noted in Union Pacific,
“the case law is clear that there is not one particular method
for ascertaining plaintiff ’s damages.” Id. at 1145.
In Robinson v. United States, 175 F. Supp. 2d 1215 (E.D.
Cal. 2001), plaintiffs sued the government, alleging that it
negligently allowed a prescribed fire to escape onto their pri-
vate land and burn their homes. Id. at 1217-18. They sought
to recover damages for items of personal property with impor-
tant sentimental value, such as a wedding dress, little league
trophies, and school art projects. Id. at 1219. The government
argued that evidence of the items’ sentimental value was not
a rational method of valuation. Id. at 1232. The court agreed
and held that “Plaintiffs must provide a rational basis for
determining their value. The sentimental or subjective value
placed on such items is not permitted.” Id. at 1233; see also
McMahon v. Craig, 176 Cal. App. 4th 1502, 1519 (2009)
(“damages cannot be based on sentimental value” (quoting
Restatement (Second) of Torts § 911)). Citing Willard, the
court suggested that a rational method might include the “na-
ture and character” of the property. Robinson, 175 F. Supp. 2d
at 1232 (citing Willard, 151 P. at 290 (Sloss, J., concurring)).
Here, the government did not rely on the sentimental value
that specific plaintiffs placed on damaged forest lands. Rather,
the government produced substantial evidence detailing the
nature and character of the environmental harm caused by the
fire, and allowed the jury to determine the value to the public
as a whole.
[10] Based on the testimony and reports describing the
fire’s extensive damage to the National Forest — including
impacts to public use; harm to animal habitats, soils, plant
life, and the California Red-Legged Frog; and the destruction
of the historic mining camp — we agree with the district court
UNITED STATES v. CB & I CONSTRUCTORS, INC. 7737
that sufficient evidence supported the jury’s award of intangi-
ble environmental damages. See Lambert, 180 F.3d at 1012.
C. Excessiveness of the Award
Finally, CB&I argues that it is entitled to a new trial or
remittitur because the jury’s award of $28.8 million in intan-
gible environmental damages was grossly excessive. We “af-
ford substantial deference to a jury’s finding of the
appropriate amount of damages.” Harper v. City of Los Ange-
les, 533 F.3d 1010, 1028 (9th Cir. 2008) (internal quotation
marks omitted). We must uphold the jury’s award “[u]nless
the amount is grossly excessive or monstrous, clearly not sup-
ported by the evidence, or based only on speculation or guess-
work.” Id.CB&I premises its excessiveness argument on the govern-
ment’s suggestion during closing argument that the jury could
determine the amount of intangible environmental damages
by applying a “multiplier of two or three” to the hard eco-
nomic damages. Amici note that multipliers are traditionally
reserved for punitive, rather than compensatory, damages.
See, e.g., Clark v. Superior Court, 235 P.3d 171, 176 (Cal.
2010) (“Penalties provide for recovery of damages additional
to actual losses incurred, such as double or treble damages.”
(internal quotation marks omitted)). The district court specifi-
cally instructed the jury that punitive damages were not
authorized in this case.
CB&I conceded at oral argument on appeal that the jury
likely determined the amount of intangible environmental
damages based on a “price per acre” of burned National For-
est land, which was the government’s other suggested method
for calculating damages. The price-per-acre method results in
a round number: $28.8 million divided by 18,000 acres equals
$1,600 per acre. By contrast, a multiplier method would have
required a very unlikely multiplier. If the jury had applied a
multiplier to the $7,637,035.68 in “hard” economic damages,
7738 UNITED STATES v. CB & I CONSTRUCTORS, INC.
to reach the total of $28.8 million it would have had to use a
multiplier of 3.77109669.
[11] Given the scope of the environmental harm caused by
the Copper Fire, we agree with the district court that the jury’s
damage award of $1,600 per acre was not grossly excessive
or against the clear weight of the evidence. We conclude that
the district court did not abuse its discretion by denying
CB&I’s motion for a new trial or remittitur.
Conclusion
CB&I negligently sparked a forest fire that burned roughly
18,000 acres of the Angeles National Forest. Under California
law, the government was entitled to full compensation for all
the harms caused by the fire, including intangible environ-
ment harm. The government produced substantial evidence
for the jury to determine the amount of environmental dam-
ages, and the resulting award of $1,600 per acre was not
grossly excessive.
AFFIRMED.