United States v. Cb & I Constructors, Inc. ( 2012 )


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  •                  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. 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.