Testimony begins in Kincade fire preliminary hearing

A preliminary hearing in the criminal prosecution of PG&E over the 2019 Kincade fire began with a Sonoma County judge rejecting a request from the utility’s attorneys to exclude evidence from at least three previous wildfires.

The team of Sonoma County prosecutors wants to use the deadly 2018 Camp fire in Butte County, the 2016 Sawmill fire northeast of Geyserville and at least one other fire to prove that PG&E had experience and knowledge of the threats posed by its equipment in the exposed and windy ridgelines near Geyser Peak in the Mayacamas Mountains.

Both prosecutors and defense attorneys are presenting arguments wholly for Judge Mark Urioste’s benefit. Urioste must rule whether Sonoma County has enough evidence of probable cause to move forward with a full criminal trial. He has scheduled 15 days for the hearing.

The Sonoma County District Attorney’s office charged the utility with eight felony counts and 22 misdemeanor counts stemming from injuries and air quality damage from the fire.

Among the charges is a novel attempt to prosecute the utility for environmental crimes by holding it accountable for the emission of ash, smoke and particulate matter.

Prosecutors have held up firefighters, adults and an unnamed minor as victims who suffered great bodily injury. In a brief filed Feb. 4, prosecutors announced they would present evidence of five victims who suffered respiratory and cardiac impacts from the wildfire smoke. Four victims were hospitalized and one died within months of the fire, the brief read.

Prosecutors’ first witness Tuesday was former Cal Fire investigator Gary Uboldi.

When the fire began on Oct. 23, 2019, Uboldi was one of the first investigators on the scene in the Geysers area, driving toward the fire’s origin in the hours after it began. Initially turned back by flames, he and two other investigators eventually reached a geothermal plant and passed the night in the area amid fierce winds, he testified.

The fire broke out during a large power shut-off that left major portions of Sonoma County without electric service. The shut-offs were a tactic PG&E initiated in an attempt to prevent wildfires during major wind storms and other risky fire weather.

Investigators later found the blaze was sparked by a section of electrical transmission line that wasn’t in use but had been left energized for 13 years.

It quickly became apparent to Uboldi and his colleagues that the fire’s likely origin was an electrical transmission tower that appeared to have loose cables, he said in testimony Tuesday.

Cables attached to the tower were “rocking back and forth like a pendulum” in the high winds the night of the fire’s start, he said.

The first night of the fire, winds on the ridge were so strong he had to hold onto a fence at one point to avoid being knocked off his feet, he said.

Though PG&E’s attorneys did not conduct any cross examination Tuesday, they don’t appear poised to contest many of these points.

The utility has accepted Cal Fire’s findings that a cable on the tower started the fire, and it has paid hundreds of millions in fines and civil settlements, with more damage payments in the works.

But the utility argues the events that night, and subsequent damage to public health and private property, were not the result of criminal conduct.

“The charges here reflect a misguided attempt to criminalize conduct that involved employees’ good faith judgment calls,” company attorneys wrote in a statement to the judge before the hearing. “Regardless of how the District Attorney chooses to characterize them, good-faith judgments are not crimes. Such issues are better and properly left to the civil process.”

A brief filed by the utility attorneys indicates they will argue that prosecutors do not have enough evidence to prove the utility was negligent in its maintenance or inspection of the tower. They will also contest an assertion by prosecutors and state regulators that the tower and transmission line were abandoned and should have been taken down years before.

A report by the California Public Utility Commission, which regulates PG&E, ruled the utility should have taken down the line, which investigators determined had no public benefit. While PG&E paid a $125 million fine to the commission after that report, company officials contest some of those findings.

The utility attorneys will argue the line and tower were not abandoned. In the brief filed Feb. 4, attorney Brad Brian also stated the relevant legal standard is whether PG&E saw a “foreseeable future use.”

The Kincade fire began Oct. 23, 2019, and grew to 77,758 acres, burning for two weeks and triggering the largest mass evacuation in county history at more than 190,000 people.

Flames threatened Geyserville, Healdsburg, Windsor and northeast Santa Rosa. The blaze destroyed 174 homes and a total of 370 structures, including winery and farm buildings.

You can reach Staff Writer Andrew Graham at 707-526-8667 or andrew.graham@pressdemocrat.com. On Twitter @AndrewGraham88