The accident report on the fatal crash of the military C-130 MAFFS air tanker which was released yesterday illustrated one very important difference between accident investigations conducted by the military and the U.S. Forest Service. A notice on page two of the report points out that the findings of military aviation accident investigations are regulated by law, 10 U.S.C. 2254(d), which states:
Use of Information in Civil Proceedings.—For purposes of any civil or criminal proceeding arising from an aircraft accident, any opinion of the accident investigators as to the cause of, or the factors contributing to, the accident set forth in the accident investigation report may not be considered as evidence in such proceeding, nor may such information be considered an admission of liability by the United States or by any person referred to in those conclusions or statements.
For fatal wildfire burnovers or entrapments of U.S. Forest Service employees, a law provides for just the opposite, thanks to a bill that was sponsored by Senator Maria Cantwell and U.S. Representative Doc Hastings, which became Public Law 107-203 in 2002:
In the case of each fatality of an officer or employee of the Forest Service that occurs due to wildfire entrapment or burnover, the Inspector General of the Department of Agriculture shall conduct an investigation of the fatality. The investigation shall not rely on, and shall be completely independent of, any investigation of the fatality that is conducted by the Forest Service.
The Cantwell-Hastings bill that was signed into law in 2002 was a knee-jerk reaction to the fatalities on the Thirtymile fire the previous year. The Department of Agriculture’s Inspector General’s office had no experience or training in the suppression or investigation of wildland fires. They are much more likely to be investigating violations at a chicken ranch than evaluating fire behavior and tactical decisions at a wildfire. The goal of the Inspector General investigation would be to determine if any crimes were committed, so that a firefighter could be charged and possibly sent to prison.
After the trainee wildland fire investigator for the OIG finished looking at the Thirtymile fire, on January 30, 2007 the crew boss of the four firefighters that died was charged with 11 felonies, including four counts of manslaughter. The charges were later reduced to two counts of making false statements to which the crew boss pleaded guilty on August 20, 2008. He was sentenced to three years of probation and 90 days of work release.
The criminal charges brought against the firefighter who may or may not have made some mistakes on the fire had a serious, chilling effect on wildland firefighters. Not only does it make them reluctant to speak to anyone about what happened on an accident, some even had second thoughts about their willingness to continue working in a professional they loved because potential criminal charges or convictions could ruin their lives and the livelihood of their families.
In addition, firefighters lawyering-up after an accident makes it difficult to discover the causes of an accident and to learn lessons which could save lives by preventing similar fatalities.
The four-fatality MAFFS accident was a complex chain of events involving many individuals and firefighting resources. But in spite of the complexity, the report was released to the public only four months after the accident, making it possible for lessons to be learned while reducing the chances of a similar accident taking more lives.
This short turnaround is unheard of in the wildland fire agencies in part due to the potential civil and criminal implications down the road.
This is literally a life and death issue — Senator Maria Cantwell’s and Representative Doc Hastings’ hastily conceived Public Law 107-203 must be repealed and replaced by one similar to 10 U.S.C. 2254(d), which serves the military very well. The Cantwell-Hastings law serves no useful purpose. Accidents are investigated, with or without the ridiculous law. It had unintended consequences and needs to be fixed.
I can personally attest to the effectiveness of the Naval accident investigation process in finding the cause of mishaps. Since there can be absolutely no punitive action taken as a result of information developed in the safety investigation, it is much easier to get people to tell the truth involving the mishap. The sole purpose of the military safety investigation is to prevent mishaps.
An entirely separate and independent investigation is conducted under the auspices of the judge advocate that develops its own findings and conclusions that can be used for public record and legal proceedings.
The FAA and other federal agencies have been hamstrung since inception because they have no parallel safety investigation process that exempts investigation information and findings from liability and tort laws. To create such a process would require Congress to get off the dime and modify US Code.
If you want to dig into the process, look up OPNAV 3750 for the instruction covering Naval Aviation Mishap Investigations.