New guide for accident reports requires conclusions and recommendations to be kept secret

On Friday we wrote about some of the controversial issues that have surfaced in recent weeks related to the deaths of the 19 members of the Granite Mountain Hotshots on the June 30 Yarnell Hill Fire. One of them, covered by the USA Today, concerned the reports prepared by the Serious Accident Investigation team.

The latest Serious Accident Investigation Guide, revised just last month, was written by representatives of the five federal land management agencies and recommends that two reports be prepared. One, the Factual Report, would be made public, and the other, the Management Evaluation Report, would be confidential, and intended for internal agency use only.

According to the new guide released last month, “Only the facts go into the Factual Report— no inferences, conclusions, or recommendations.”

The confidential Management Evaluation Report would include:

  • Findings identified in the Factual Report
  • Cause(s) of the accident
  • Conclusions and observations
  • Confidential information (no witness statements or autopsy reports)
  • Recommendations for corrective measures
  • Other findings—findings not related to the accident which if left uncorrected could lead to future accidents/organizational failures (follow specific agency policy regarding other findings)

If conclusions and recommendations are kept secret, only to be seen by a few people, this would severely limit the opportunities to learn any lessons that could prevent similar tragedies.

These recommendations released in August, if followed by the teams writing the reports for the Arizona state government and others in the future, would result in public reports that are much different from those we have seen in recent years. Some that come to mind that include causes, contributing factors, or recommendations are the CR 337 Fire Fatality, the Steep Corner Fire Fatality, the Dutch Creek Fire fatality (huge 21Mb file), and the Sadler Fire entrapment.

The five people who wrote the new guide may be fearful of lawsuits and criminal charges which began after the 2001 Thirtymile Fire. Senator Maria Cantwell and Representative Doc Hastings, in a knee-jerk reaction to that fire, wrote the Cantwell-Hastings bill which was approved by Congress, signed by the President, and became Public Law 107-203 in 2002. It requires that in the case of a fatality of a U.S. Forest Service employee “due to wildfire entrapment or burnover, the Inspector General of the Department of Agriculture shall conduct an investigation of the fatality” which would be independent of any investigation conducted by the USFS.

Before the Thirtymile Fire 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 food stamp fraud or violations at a chicken ranch than evaluating fire behavior and tactical decisions at a wildfire. The goal of the Inspector General investigation is 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 he pleaded guilty on August 20, 2008. He was sentenced to three years of probation and 90 days of work release.

This had a chilling effect on firefighters who are required to make split-second decisions that later may be second guessed by a jury with no clue of what it is like to be faced with a life and death situation on a rapidly spreading wildfire.

Since those felony charges were filed against a firefighter who may or may not have made an error in judgement while fighting a fire, most wildland firefighters with any connection at all to a serious accident have had reservations about talking to investigators. They are being advised behind the scenes to “lawyer up” and to say little if anything about what they know or observed. Many have purchased professional liability insurance which would help to defray the cost of hiring attorneys which otherwise could ruin the financial lives of underpaid government employees and their families.

The unintended consequences of Senator Maria Cantwell and Representative Doc Hastings’ legislation has changed fire investigations. If firefighters can’t feel free to discuss what happened on a fire, finding any lessons to be learned is going to be difficult. This could result in the same mistakes costing more lives.

It was just a few years ago that firefighters were told “we do not bend, we do not break” the 10 Standard Firefighting Orders, and you better obey the 18 Watch Out Situations. The new investigation guidelines and the Interagency Standards for Fire and Aviation Operations now describe them as:

…not absolute rules. They require judgment in application.

Accident investigators, including the amateurs from the Office of Inspector General’s office, have found it easy to use the Orders and Situations as a checklist, saying “x” number of them were violated. That later becomes fodder for attorneys in civil suits and prosecutors seeking to put firefighters in prison.

It appears that the writers of the new investigation guide placed more emphasis on preventing criminal charges and civil lawsuits than learning lessons when they decided to keep secret the conclusions and recommendations following serious accidents. They may feel they were forced into this very uncomfortable position because of the current lawsuit and criminal prosecution atmosphere.

How do we fix this?

The military has the benefit of a law that is the opposite of the Cantwell-Hastings bill. They have the protection of 10 U.S.C. 2254(d), which states that in the case of an aircraft accident:

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.

Senator Maria Cantwell and Representative Doc Hastings need to suck it up and admit their knee-jerk reaction to the Thirtymile fire has caused a great deal of unintended harm. In 2001 they thought their ill advised idea might enhance the safety of firefighters, but it has accomplished the reverse. Lessons learned are becoming more difficult to uncover. Mistakes are more likely to be repeated because of their legislation which became Public Law 107-203. They wanted investigations, but investigations have always occurred following serious accidents. Their legislation had zero benefits, and had far-reaching negative consequences.

Senator Cantwell and Representative Hastings should feel a moral obligation to fix the problem they created. They need to craft legislation to protect firefighters, similar to that protecting the military in 10 U.S.C. 2254(d).

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About Bill Gabbert

Wildland fire has been a major part of Bill Gabbert’s life for several decades. After growing up in the south, he migrated to southern California where he lived for 20 years, working as a wildland firefighter. Later he took his affinity for firefighting to Indiana and eventually the Black Hills of South Dakota where he was the Fire Management Officer for a group of seven national parks. Today he is the creator and owner of WildfireToday.com and Sagacity Wildfire Services and serves as an expert witness in wildland fire. If you are interested in wildland fire, welcome… grab a cup of coffee and put your feet up. Google+

38 thoughts on “New guide for accident reports requires conclusions and recommendations to be kept secret

  1. excellent analysis … I would urge every WA state fire fighter and their families use this article as a basis for contacting Cantwell & Hastings offices in a calm, respectful voice, and always ask for a reply.

    Asking for a reply will cause the junior staffer handling the issue to at least think about the issue and not just add a “for/against” check mark to the spread sheet.

  2. I’m having a hard time with the recommendation that the findings, causes, and conclusions be confidential. People not privy to the MER would be left to draw their own conclusions. And I haven’t read the entire guide yet, but I’m also wondering exactly who the MER would be available to. FMOs? Crew Supes? ICT1-5?

  3. To show how “wrong-headed” PL 107-203 is, look at the fact that it only deals with USFS folks, even though there are 5 Federal agencies with firefighters. Also, it only deals with burnover/entrapment fatalities, but ignores fatalities from driving errors, falling snags (remember Steel Corner?), and other fatality causes. But you’re right, Bill: this Public Law has a chilling effect on the wildfire community, and will continue to do so until changed and/or repealed.

  4. What is Basic? All 10 Standard orders and 18 situations that shout watch out came from fatality fires since 1954. They were developed by the investigation of the fires. To not use them in any fatality fire investigation and add to the 18 situations if necessary is turning your back on basic Fire Fighter Safety. When I retired from the Forest Service there were only 13 Situations they have added 5 in the past 20 years from new fire fatalities. Thats why they were established and that should not be lost.

  5. That / those famous word(s)

    Caring for the land and helping people….misnomer….NOT your own peeps for sure,,,,

    Transparency…..well …not happening here. The military has always been its own animal

    Knee jerk reaction …… Sure ….like everything ……written in blood

    But…..the land management agencies like to copy the military with all their secret squirrell $&8$it such as contract stuff with “security of airports, Airtanker bases, and aircraft tail numbers etc and that stuff is all public knowledge.

    So when it comes to knee jerk reactions……both the land management leadership and Congress and “lawmakers” ALLLLL suffer the knee jerk reaction syndrome…….and some of it like aircraft accident crashes and whatnot suffer the same very thing……and some times the aviation world earns it.

    NOW the LMA’s have the dubious honor since the 10′s and 18′s like the Federal Air Regulations, do not necessarily protect us from ourselves……..sorry FIRE is included in the dubious honor of getting someone’s law writing attention!!!!!

  6. I agree that civil lawsuits can be a huge issue. But, using the military as a model, neglect of duty and other types of negligence can and do lead to court martials. If you think of an officer breaking rules of engagement, and leading a platoon down into a terrain trap where they faced interlocking fields of fire, when the latest intel suggested that there was a large enemy presence there…well, it is likely that a court martial might happen. Obviously, in the case of things like friendly fire incidents, this can also be used to scapegoat as well, but overall the professionalism of the military does in part stem from discipline.

    As far as lessons learned, I’m more concerned as to whether the culture of any confidential reports is one of frank and objective evaluation, or of whitewashing or scapegoating. At least in the case of the current incident, while the official reports aren’t out yet, there are enough broad points of fact known to know that this was not a close question in terms of warning signs and risks taken. I’m sure the report will be leaked, anyway. It will be interesting to see how much it is affected by what are immense political pressures in this case.

    • SR,
      [I'm an ex Navy Aviation Safety Officer]. The findings of an aviation mishap investigation including statements made to an ASO cannot be used for any court martial, civil proceeding, or commanding officer’s non judicial punishment. [refer to Bill's point above]. In short, all information developed by an ASO is privileged information that can only be used for mishap prevention / improving safety/ developing lessons learned. Any prosecution of an individual service member, or manufacturer if a manufacturing defect is the issue, for tort or criminal liability can only be done with evidence developed from a judge advocate general investigation.

      If firefighting is going to become a learning organization it has to be able to operate along similar lines. No one is ever going to explain what actually happened until a similar safety investigation system is in place. Absent some kind of privileged information system, everyone is going to lawyer up and information on how to prevent a similar mishap will never come out.

    • Excelent 1957 recommendations and no specific blam but solid recommendations that Wildland Firefighters have used for years My father was one of the 15 killed on the Rattlesnake fire in 1953 The only F.S. employee. I went into wildland Fire Fighting in 1961 retired in 1994. I also was part of R5′s Safety F.I.R.S.T. (Fire Investigation research safety team) COMMITTEE We recommended many things that are still current and should be reinvested in today.

  7. I have known several OSHA compliance Inspectors and I dont think any of them are qualified to investigation a wildland line of duty death.

    • @Chris: Let’s not even get started on last year’s MAFFS fatality and all the investigations/reports/discrepancies.

      On the other hand, now that we’re here, maybe we should get started on that?

      And perhaps the NPS/USFS/media terminology on BAER reports ???

  8. @Bean,

    I understand the point, and think it’s a good one, and as regards civil courts would be happy to extend it to taking them out of this sort of thing entirely, rather than just saying they can’t use the report (otherwise, lawyers are pretty good at hiring experts to produce other reports if they think it’ll shake the money tree).

    But, I wouldn’t extend that to saying there should be no liability for neglect of duty, particularly for those in command. The military can and does court martial pilots, for instance.

    • Not saying there shouldn’t be liability. There are court-martials but they are not based on evidence from formal safety investigations.

      Without a dual investigation system, one for safety, the other for civil and criminal accountability, no one is going to tell a safety investigator the whole truth about an accident.

  9. Was there more accountability before the Cantwell, Hastings legislation was signed into law? Should anyone be held accountable for mistakes made? I agree that the legislation has had a negative affect on the informational gathering abilities of the wildland world, but our customers don’t seem to like the “stuff happens, zero accountability” attitude either. Seems like the ultimate catch -22 situation.

  10. Chris

    How about giving us a clue (other than saying OSHA is not qualified) to conduct an LODD for a fire? I could say there are plenty of USFS that have had very little or NO aviation accident training through FAA or NTSB accident investigation, either.

    Just because somebody is a Wildland firefighter or has served on these teams thru USFS only “safety training” doesn’t necessarily give them safety credentials either

    There NEEDS to be an OUTSIDE unbiased mechanism that reports these accidents.

    Sorry, I don’t buy the OSHA is not qualified in this. I am sure there has been more than LODD that OSHA has pinged the USFS for such as industrial safety issues and such.

    Let’ see all those SAFETY creds that the USFS personnel have and see how they would measure up…….they are NOT perfect either, by ANY means

  11. Folks need to understand the difference between Fed OSHA (slap on the hand for the AGENCY) vs USDA OIG (employee going to prison for their actions in performance of their OFFICIAL DUTIES while under their scope)..

    I think everyone wants to see more ACCOUNTABILITY when it comes to LODDs… We all agree there.

    The AGENCY is responsible. More accountability rests THERE rather than taking a pound of flesh out of fireline supervisors who may/may not have made mistakes under the current FIASCO that we call the “Federal Wildland Fire Management Program”.

    Study Dr. James Reason (Swiss Cheese Model of Accident Causation). ’nuff said. When there are “failures”, those tragic outcomes are deeply rooted in a REPEATED systems FAILURE rather than an individual act, ommision, or comission by a fireline supervisor.

    • I think it’s important to remember there are 4 failure domains in the “swiss cheese”/CRM model: organizational, supervision, preconditions, and specific acts. So, there is room for looking at what effect this crew being out of Prescott had (both organizational and a precondition in terms of potentially identifying too much with saving structures), and, for instance, what effect lack of open communication styles according to some reports may have had.

      Changing group behavior so that someone feels comfortable speaking up (e.g., “I’m worried that we are going slow through this brush and have lost sight of the fire that is blowing towards us”) and so that doing so is constructive, can require agency changes, but also individual ones.

  12. Well Ken

    With that train of thought…………where has alllllllllllllll this CRM training and Human. Factors training that the USFS and other LMA’s have borrowed from the aviation and military really have gotten them

    The whole organization(s) have forgotten what all the Mangan’s have taught this crew since the inception of its own human factors program.

    The safety record for “protecting the resource” is abysmal , at best, for at least the last 10 years. I

    It certain has been proven by allllllllll these lessons learned, FLA’s, etc,etc,etc,etc

    It is EASY to blame OSHA, and I would even bet the USFS and other LMA’s have not been able to teach and sustain the fire line education to those folks, let alone the folks we have lost in the last 10 to 20 years.

    It is embarrassing and absolutely proven that the LMA’s are or not learning from their own mistakes or even the training of “leadership.” Nearly year after year it IS the same thing.

    Truly, the LMA’s have not learned from the past…..somewhat like the US military….only thing is the POTUS did not order folks to the fire…….

    • Leo – you seem to be throwing out broad generalities without offering any specific numbers to back up your accusations. If you look at wildfire fatality numbers for the past 10 year, you’ll see that burnovers in the Federal sector is very small; could it be that they are actually learning from past mistakes and being safer? You throw out terms like “absolutely proven” without “absolutely proving” the validity of your statements: offer us some facts! ALLLLLLLLLL the facts, as you emphasize so strongly in your posts.

    • Leo I am not sure what your background is but when I started in the seventies we measured fire movement by chains per hour, when I retired it was in miles per hour and people are still fighting fires with rules developed in the 60s and 70s in places where only California had real WUI issues in general. In 1977 the Marble Cone fire was the big news because it was the biggest fire in the lower 48 at over 250 thousand acres which was one afternoon on the Rodeo/Chediski fire and several others since then I do think we need to step back and look at the whole culture from appropriations on down to a 4 day rookie.

  13. OK Emmett

    I stand corrected…..can you explain all the accidents, burn overs, engine rollovers and whatnot over the last 3 to 5 years and tell me how all those accidents, IWP’s, engine rollovers, have changed for the better?

    Accusations…whatever. Ask the families of the fallen and get back to me.

    All those lessons learned? Seems a lot of ‘em have gotten repeated over the last few years

    So I will stand down…..prove to me some of these accidents haven’t had repeated similarities….

  14. When I read something like this, it just makes my blood boil. It is hard working families that must pay the final cost. We lose loved ones, cherished family members, and then are told we must not question the actions of others. Well I have had enough of that. But, that is what happens. I am told to just suck it up and live with it. There was wrongdoing for my son, but you won’t ever hear of it. Those who made the wrong decisions will never be brought to task, or just even a simple apology. Never will happen, nope, the government made sure of that.

  15. Learning lessons from past mistakes is a good thing. But fighting a wildfire is a lot like a war and sometimes the other side just wins the battle no matter what you do. No ones fault

    Remember that “Mother Nature always bats last”

  16. Wake up folks!!
    This is already happening. I am living it everyday. It really doesn’t matter what “rules” get set in place, coverups and facts that would shed unsavory light won’t ever get to see the light of day.

    I refernence the SAIR for my son, Caleb Hamm, LODD 337 Fire.

    NO ONE in the government wants to meet with me, take calls, or even listen. They just say “go read the report”. The “report” is the Bible to everyone it seems. Doesn’t matter if it isn’t true. How do I know it isn’t true? Walk that area with me. Tell me you can see down to the bottom of the ravine where my son was found. Because out of 4 trips down to Texas now, NOT ONE BLM official has been present with me, because they know they can be proven wrong. If just one person will look at it, throw away the report, and walk it, you too can see the report is false.

    Now, how is it that Caleb was found at the bottom of a ravine? Wait, didn’t the press report that Caleb was “on the line” between two other firefighters who saw him go down, started CPR, called for lifeflight?? Oh, how we simply believe what we are told. Different story when we start looking for ourselves.

    So, I can’t really see how any of this, writing letters, whatever, what difference is it going to make?? The powers that be will do what they want, when they want. And if it is your son or daughter?? Too damn bad if you have questions. Just shut up, and go read the Bible (oops, I mean the report).

    • Hi Lynette,
      I was recently involved in a federal LODD and can completely agree with you on the accuracy and legitimacy of the SAI’s and other published reports of groups like OSHA. I have lived the nightmare of having my story and the truth not being told and I have realized that it will never happen. My only saving grace is my relationship with the family of the fallen. I have had many conversations over the last year with other folks who have been involved in fatalities and it is unfortunately the exact same story over and over again. I feel for you not only as a parent myself, but because I know my mom would be feeling the same way as you. I genuinely wish the best for you and your fight for the truth.
      Wes

  17. I have a different perspective on this. Its my opinion that the 10 and 18 have served us well as a community and every one of them has an element of blood law on them. The reports themselves are for an agency(s) to implement better practices from them as well as to dig into what went wrong and assure it doesn’t happen again. I do not think that airing the names of those who made mistakes is in the best interest of the community especially if they were acting within the best abilities that they were trained to do. Institutionally by all means publicize bad practices, budget effects on readiness and organization, poor training standards or management issues they are important to other organizations and deserve the blame as well. I believe internal recommendations and changes ought to have some confidentiality for those involved but wider recommendations nationally ought to be as public as possible for incidents where there is obviously human error in human endeavors. I have always had a problem with people having to buy liability insurance while implementing policy that they had no input to as I believe if the liability lays at an engine foreman’s feet why are we sending them? Before people go crazy I believe that we can accomplish these reviews, create good accountability standards and gain great lessons learned without ruining peoples lives for a mistake that any firefighter could have made in their career.

  18. Secret governmental reports for wildland fire incidents involving fatalities. When was that EVER going to be a good idea?

    For my money, Cantwell-Hastings was a classic example of overreaching that only served to illustrate – yet again – the law of unintended consequences. That no one saw this trainwreck coming is also illustrative. I think that we all endorse the imperative of understanding what happened, of assigning responsibility (and if needed – punishment), and of instituting whatever changes are needed to decreases the chances of a subsequent occurrence. And I find myself nodding in agreement with much of what Old Dog said. But secret reports, and oversight by agencies that are not vested in the nuts and bolts of fire management is a lot like ordering a steak at an omelette shop. Not really a good idea.

  19. Old Dog:

    “mistakes” any firefighter can make in their career?? Is a LODD a “mistake”? Oh, let’s just slap your hand, you go right back in there and get at it!! Yes, there are mistakes, and then there are those that need to be reprimanded at the very least, and face criminal charges at best.

    Until someone, anyone, can prove differently, it is my belief my son was ignored, and left to die. He didn’t fit the mold, and so was not well liked by those in charge. My son was “different’ had long hair, you would believe him to be a “hippie” or “druggie” if you didn’t take the time to delve further. He was nothing of the sort, as many can and will tell you. Maybe they didn’t think his life would be the end result, but it was.

    I am sorry if some or many are offended by my views, but I invite anyone to prove me wrong. Please prove me wrong! So far, I am still waiting………………

    • Lynette first and foremost I am very sorry for what you are dealing with and hope that you can get to the answers you need if that is possible. The point I obviously made badly is that the business by its nature almost requires mistakes for the learning process, please don’t take that as a glib smart alec answer. I supervised many and they were hippies, marines, farmers kids and street smart people but they were always someones sons and daughters and if that was the case you have every right to expect someone to answer for his loss. My point was that if mistakes are made the appropriate response is needed a decision in the moment of confusion is entirely different than deciding to ignore policy and endangering others or their selves. Rest assured if its an honest mistake i was going to treat it as an opportunity to learn if it happened twice it was an opportunity rid the organization of a menace. Firefighters do after action reviews to learn from that days operations and make sure it didn’t occur again or that perhaps there was a recurring concern. Malfeasance, ignorance or arrogance have no place in the organizations and should be dealt with in the severest terms.

  20. As a Father of one of the Prescott Granite Mountain Hotshots I am not happy with all this secrecy at all. I have been looking for a number of answers from a variety of agencies. I have seen how the vast majorities of the Families react to the media requests, and it is not pretty.
    Also for all you die hard 10-18 Wildland fire fighters. While these rules are for good reason, firefighter safety, but also limits wrong death suits or liability to the Fire Agencies running the fires. But if you think a little longer and deeper to the “Root Causes” of fire fatalities, Policy , Management, and Equipment are at the core issue. I am not terribly concerned how many of the 10-18 that GMHS broke that Sunday, had Policy, management, and Equipment been different the out would be different.
    David Turbyfill

    • David I am Sorry for your loss I lost my father to a wild land fire in 1953 and went to work as a fire fighter in 1961. the 10 and 18 have served well and answer many of your questions as to what happened in policy and management equipment is another issue we have all faced the Fire shelter must be improved upon you cant pack and relie on somthing that cannot save you it needs a complete upgrade. The fir my dad died on helped build the 10 and 18 and I have always felt proud of that. Work to find ways to save other Fire Fighters in the name of your son. Read Fire and Ashes by John N. Maclean.
      My Father made mistake as did the crew he was with but those mistakes helped create the 10 and 18 that have saved many wild land fire fighter over the years. Again I know how you feel and I know your loss. The memorial for the hotshot crew and your son was on the day my Father died 60 years ago. I was also a hot shot foreman for 3 years in Calif. Your loss is my loss.

  21. Mr. Turbyfill:
    So sorry. Just words, I know, because I’ve heard them, too. Doesn’t help at all at 2 in the morning when your heart is breaking.

    Keep up the fight. All we have is our voice. We have to bring a personal side to this issue, otherwise it seems it is just rules and laws.

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