Monday will be the third anniversary of the Esperanza fire in which five U. S. Forest Service firefighters died in southern California. Raymond Lee Oyler has been tried, convicted, and sentenced to death for setting this fire, but the U. S. Department of Agriculture’s Office of Inspector General (OIG) has still not completed its investigation.
One of the problems with this is that many people are waiting to hear if the OIG will recommend that criminal charges be filed against firefighters, as happened in two other fires, the Thirtymile and Cramer fires.
The Inspector General, Phyllis Fong, testified before Congress in March that the report would be issued by the end of the month. Now they are saying it will be done by the end of November.
John N. Maclean, the author of “The Thirtymile Fire”, is in southern California right now collecting additional information about the Esperanza fire for a book he is working on. Who knows, his book may be out before the OIG’s report is issued.
The Press Enterprise has an article about the OIG investigation. Here is an excerpt.
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… The delays have caused anxiety and frustration for both the firefighters who fought the 43,000-acre blaze and the families of those killed.
“We’re just waiting. We are surprised it has taken so long,” said Vivian Najera, aunt of firefighter Daniel Hoover-Najera, who was killed in the fire. “All of us have questioned when it is coming out, and we haven’t got any answers. We are anxious to find out what it has to say.”
The investigation is just the third of its kind and was required by a 2002 law mandating the office investigate deaths of federal firefighters killed in burnovers or entrapments.
The five killed in the Esperanza Fire were overrun by flames as they fought to save a lone, unoccupied home near Cabazon.
The two previous investigations led to charges against two fire commanders in the deaths of federal firefighters in Washington state and Idaho. The law was created after the 2001 Thirtymile Fire in Washington state, which killed four firefighters. U.S. Forest Service supervisor Ellreese N. Daniels was indicted on charges of involuntary manslaughter and lying to investigators.
After the 2003 Cramer Fire in Idaho, in which two firefighters died, the U.S. attorney’s office filed charges against that fire’s incident commander, Alan Hackett, who was found to have been negligent in his management of the blaze. However, Cal Fire’s jurisdiction over the Esperanza Fire is a key difference from the previous two cases and one that presented a “unique challenge” to federal investigators,” Fong told members of the House Appropriation Committee during a March 11 briefing. “The fire occurred on non-federal land, and (the Forest Service) was assisting in the suppression effort as part of a cooperative agreement with the California Department of Forestry and Fire Protection, an entity for which OIG has no oversight jurisdiction,” Fong said.
‘TYPICAL,’ ‘FRUSTRATING’
That question of jurisdiction and the relationship between state and federal agencies battling the same blaze is certain to be addressed in the report. The firefighting community, both locally and nationally, has long awaited the investigation’s findings, said Casey Judd, business manager for the Federal Wildland Fire Service Association, which represents federal firefighters around the country.
“It’s typical of the agency — typically frustrating,” Judd said. “I can’t for the life of me see why the OIG can’t get this out.”
In the aftermath of the fire, the U.S. Labor Department’s Occupational Safety and Health Administration and a joint state-federal task force launched separate investigations of the fire. Not wishing to obstruct the latter, OIG investigators delayed their interviews, Feeney said Thursday.
“This was done to ensure that OIG’s inquiry did not interfere with theirs,” he said. “That decision significantly pushed back the start of OIG’s primary investigative work.”
Both of the earlier inquiries found fire personnel took unnecessary risks.
Killed in the fire were Engine 57 Capt. Mark Loutzenhiser, 43, of Idyllwild; Jason McKay, 27, of Apple Valley; Jess McLean, 27, of Beaumont; Pablo Cerda, 23, of Fountain Valley; and Hoover-Najera, 20, of San Jacinto.
Oyler was convicted of five counts of murder for setting the blaze and was sentenced in June to die.
Relatives of the firefighters and others will gather Monday at 11:30 a.m. at the Cabazon Fire Station, 50382 Irene St. in Cabazon, to memorialize the third anniversary of the fire and the deaths of the five men.
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UPDATE November 12, 2013:
Esperanza Fire Factual Report, and the USDA Office of Inspector General’s Report on the fire.
Just a brief note (well, brief if you normally write books). At the 3d anniversary Esperanza Fire memorial today, October 26, nobody I chatted with had fresh information about the OIG report. USFS is in "information lockdown," it was said, because of the controversy over the recent Station Fire. For the story of the public part of the memorial, which was held at the foot of Cabazon Peak at Fire Station 24, you can access the (Riverside) Press-Enterprise newspaper website or simply Google it. The news stories may not tell you this, but Greg Koeller, his wife, and a granddaughter attended — the Koellers are the owners of The Octagon house where the fatalities occurred and have been consistently generous in allowing access for the fire community (me included) and in talking to the fire people who come to the site. One more item that won’t make the news reports: Norm Walker, USFS division chief at the time of the fire and now retired, said the sunrise memorial held today at the fatal site was breathtaking. A Santa Ana wind was in full rip as the sun arose, just as on the day of the fire. (A nod of thanks in return to whoever wrote the previous post.)Sincerely, John N. Maclean
John,Well said and spot on.Thanks for everything you do in telling the stories of our fallen.
I think Bill’s right, but I also think a spirited debate or discussion is a good thing to have.Sen. Cantwell indeed was riding a wave of unhappiness — which in the case of many relatives of the fallen at Thirtymile could be described as justifiable rage — over the way the Forest Service handled the fire, first the fire itself and then the botched investigation. I liberated a lot of information about that subject in my book, and I won’t repeat it here except to note that I described what happened at the fatal site between the IC and the four people who died long before Ellreese Daniels admitted in court that he had lied about it and confirmed my version of events. Sen. Cantwell met with several of the family members and as a consequence put together the Senate bill. She held the hearings. She invited Doc Hastings to testify, or at least had him there. I don’t like the legislation, I think it’s a bad response to a bad situation, which you, Ken, describe pretty well. The two times in the past that the Hastings Cantwell Act (see, I’m doing it) has been applied have made things worse, as far as I can tell, not better: I’m talking, of course, about what happened to the IC at Cramer, who didn’t have the money to defend himself, and then the fiasco with the Thirtymile IC. When a prosecution goes from 11 felonies, I think it was, to two misdemeanors, as it did in the Thirtymile case, that is nature’s way of telling you the case wasn’t worth a handful of spit to begin with.Now we have the Esperanza Fire, where the OIG has a chance to rectify a couple of errors made in the usual overhasty investigation and report process. Instead of issuing its report in timely fashion the OIG has gone three years without a burp, after specifically promsing to release it last April. The OIG clearly has run into trouble over the jurisdictional problem, the not so small matter of having a federal agency investigate a state run fire — or, to be more precise, one that was run by the state at the time of the fatalities. I suspect that means the OIG report, if it ever comes out, will avoid controversy. My guess is it will be so watered down it will make you wonder why we all cared about it in the first place. I don’t think the OIG is going to solve anybody’s problems in the fire world. At this point, they are having trouble handling their own.John N. Maclean
Ken-It appears that you are going out of your way to "spark" an argument. I have a feeling that over a beer we would agree about this issue. Bill
Mr. McLean,HR 3971 passed the House of Representatives by "unanimous consent". Upon being introduced before the floor of the Senate, it was also unanimously approved. It was then sent to President Bush for signature and codification into law.It wasn’t just the Cantwell or Hastings Bill….It was something much bigger….. It was the failure of a profession to speak out….. and LEAD our future.Instead, we were resolved to let soil scientists, biologists, botanists, and other "allied" professions take the lead in our wildland fire mission. We even let a Soil Scientist with roots from Missouri take the lead in a Serious Accident Investigation…. who months later….. was promoted to the "Top Dog" spot….. Regional Forester.Pretty sad state of affairs. No wonder why families and firefighters who have experienced losses get so political and active. Things can be done better.
John,You said, "Maria Cantwell sparked the legislative process…".I disagree fully. She was a politician seeking re-election. Improper actions and corrections from the Forest Service sparked the legislative process as a repercussion from both the Thirtmile Fire and the South Canyon Fire (1994). Poor actions from the Agencies came back to roost… and fester…. and have unintended consequences.Two of the families…. and a concerned nation (upon hearing about the tragedies) "sparked the legislative process". The Forest Service sat silent…. and "willfully" disenfranchised both the families of fallen firefighters, and their very own wildland firefighting workforce when they refused to communicate and to factually address underlying latent causes for accidents and the proper course corrections…. while deciding individual "blame" of those in the field making decisions became the standard, while sheltering and deferring Agency accountability for our losses. It created downstream problems as folks wanted to understand "lessons learned" but no longer trusted the Agency in any way and investigations started to produce nonsense.The Forest Service…. as well as the other federal agencies were given an opportunity to comment about HR 3971 and S. 2471 (both in the 107th Congress)… The USDI agencies commented and testified….. the Forest Service failed to do so properly. As such…. PL 107-203 became a law.It is a pretty complex issue, and it is soundly rooted in the management and leadership of the Forest Service not understanding the programs that they are assigned to lead. Ken
GuysRegarding the “Cantwell legislation,†the writer is correct that Rep. Hastings’ version of the bill, HR 3971, was the one that passed the Congress, as Public Law 107-203. Sen. Maria Cantwell sparked the legislative process, however. She held Senate hearings at which Rep. Hastings was a guest witness and she is responsible for the bill that passed in the Senate. While the final bill has been called informally the Cantwell legislation it is indeed more accurate to refer to it as the Hastings Cantwell Act, or as PL 107-203.Thank you for the clarification, which is especially important now that there is a later, separate piece of legislation that bears Sen.Cantwell’s name alone, the Cantwell Wildland Fire Safety Act, with which the first bill could be confused. It’s time for me to change my ways. >From now on I will use the more accurate name, the Hastings Cantwell Act. Regarding unified command on the Esperanza Fire, the USFS-CalFire report says the fire was in unified command — CalFire and USFS — at the time of the fatalities. Those who were there say otherwise. It’s not an earth-shattering mistake, but it made Forest Service survivors very unhappy and it still does. Sincerely, John N. Maclean
http://cantwell.senate.gov/news/record.cfm?id=306765
John,Since you are writing a book, I hate to "fact check" you, but I’m sure you’ll understand.The legislation that created PL 107-203 was from Representative Doc Hastings…. NOT MARIA CANTWELL as so many folks seem to overlook. Folks would have to rescind the Public Law….. amend it…. or clarify the "intent of Congress" in representing the Public. 203. H.R.3971 : To provide for an independent investigation of Forest Service firefighter deaths that are caused by wildfire entrapment or burnover.Sponsor: Rep Hastings, Doc [WA-4] (introduced 3/14/2002) Cosponsors (6)Committees: House AgricultureLatest Major Action: Became Public Law No: 107-203 [GPO: Text, PDF]Reference: Library of Congress http://www.thomas.loc.gov
Mark,Good question.Please see John McLean’s post… "…will correct perceived mistakes in the Forest Service-CalFire report on the fire…". John has done a great deal of research and should be trusted in his observations from the outside.There was an assertion early on that a Unified Command was in place….. also, other assertions and assumptions come to mind that were in the report. Many proven to be factually false… mostly unintentional.Each day that the report is delayed, adds stress to both firefighters from CAL FIRE and the USFS who were doing their jobs.P.S. – If you didn’t know it….. Randy Moore (current R5 Regional Forester) got his job after being the "co-lead" of the FS/CAL FIRE report.
Wait a minute … the FS is investigating a CalFire fatality?
But I thought the fire was unified command with CDF and USFS (and others). Can you clarify this?
Yes, I’m here in Southern California on yet another reporting trip for a book about the Esperanza Fire. I can report that there is still hope among some Forest Service firefighters that the OIG report, if it ever comes out, will correct perceived mistakes in the Forest Service-CalFire report on the fire, mainly the impression that Capt. Mark Loutzenhiser and the crew of Engine 57 behaved irresponsibly by remaining at what became the fatal site. The long delay in making the OIG report public, however, has created the suspicion that political sensitivities, not legal ones, have caused the delay, OIG’s explanations to the contrary. CalFire has a right to be concerned about a federal agency investigating how it ran a fatal fire. But those were Forest Service guys who died. The OIG investigators assured people here that they understood that corrections to the first official report needed to be made. There has been no rush to do so. Personally, I wish Congress would realize what a mess the Cantwell legislation has created and rescind the thing, but that’s very unlikely. Holding firefighters criminally liable for unintended deaths on the fireline? That’s like indicting Green Berets for being in the wrong spot in a firefight. I stole that analogy, by the way, from one of the prosecutors of Raymond Oyler, who got the death penalty in June for setting the Esperanza Fire. Now there’s a criminal case worth bringing. http://www.JohnMacleanBooks.com