Forest Service’s explanation for their refusal to fully cooperate with Yarnell Hill Fire investigations

Yarnell Hill Fire at 7:30 p.m. MST, June 29, 2013, approximately 21 hours before the 19 fatalities. Photo by ATGS Rory Collins, Oregon Department of Forestry.

Yarnell Hill Fire at 7:30 p.m. MST, June 29, 2013, approximately 21 hours before the 19 fatalities. Photo by ATGS Rory Collins, Oregon Department of Forestry.

During the two investigations by teams of people working for the Arizona Division of Occupational Safety and Health (ADOSH) trying to document what happened and why during the Yarnell Hill Fire that killed 19 firefighters on June 30, the U.S. Forest Service provided so little information that it was described as “useless” by one of the teams.

The ADOSH “Inspection Narrative” said the USFS provided redacted copies of documents produced by members of the Blue Ridge Interagency Hotshot Crew, which was working nearby during the accident. However, the documents were redacted to the point where they were “useless in ADOSH’s investigation”. The removed portions included not only the names of the Blue Ridge personnel, but all names, as well as information the USFS stated “was of a sensitive nature”.

The other report released simultaneously last week was written by Wildland Fire Associates working under contract for ADOSH. Referring to information they hoped would be available from the USFS, it stated:

…we were given access to all information and personnel that we requested with the exception of the employees of the USDA Forest Service. The USDA Forest Service declined the request to allow their employees to be interviewed for this investigation.

To my knowledge, this is the first time that the USFS has refused categorically to allow their employees to be interviewed following a serious accident that occurred on a fire.

We reached out to the U.S. Forest Service to ask why they provided no meaningful cooperation to the investigations. Their logic is difficult to follow and involved the Privacy Act and a distinction they tried to make between the recent ADOSH reports and the Serious Accident Investigation Team report which was released September 28. They explained that the ADOSH is a compliance and regulatory agency, while the SAIT report was a safety and accident investigation. The entire USFS statement is below:

USDA Forest Service employees are subject to a variety of laws, such as the Privacy Act of 1974, as amended, 5 USC 55a, designed to protect personal and confidential information. We are legally required to withhold certain information due to the requirements of federal law to protect privacy and confidentiality of our employees. At their request, the Forest Service did provide ADOSH some documents for their investigation and offered to provide written response to remaining questions.

For clarification, Arizona Division of Occupational Safety & Health (ADOSH) is a compliance and regulatory agency.

The Interagency Serious Accident Investigation of the Yarnell Hill Fire was, in contrast, a SAFETY and Accident investigation. While the safety investigators also looked into rule compliance the focus was concentrated on understanding why the accident happened; which may or may not be related to rule compliance.

It is interesting that previous interpretations of the Privacy Act have not resulted in “useless” information from USFS employees in serious accident investigations, although there has been a recent trend to leave out names of people that were involved, which is not necessarily a bad thing.

Refusing to allow the federal government employees to be interviewed by the ADOSH teams is a very disturbing development.

The SAIT report did not include any names nor did it list the people they interviewed, so it is difficult to determine how much if any cooperation they received from the Forest Service. That report basically said no mistakes were made, while the ADOSH reports provided much, much more detail about what happened on the fire.

If this is going to be the policy of the USFS going forward, it can severely disrupt future lessons learned inquiries, and in some cases could make them “useless”. Interfering with the process of learning of how to prevent similar fatalities does a disservice to the dead firefighters.

Cantwell-Hastings law

This ridiculous action by the Forest Service may be one of the unintended consequences of the Cantwell-Hastings legislation which became Public Law 107-203 in 2002. It was sponsored by Senator Maria Cantwell and Representative Doc Hastings, in a knee-jerk reaction to the 2001 Thirtymile Fire. The law requires that in the case of a fatality of a U.S. Forest Service employee ”due to wildfire entrapment or burnover, the Office of Inspector General (OIG) of the Department of Agriculture shall conduct an investigation of the fatality” which would be independent of any investigation conducted by the USFS.

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 law may have made the USFS so fearful of criminal charges and lawsuits that they are refusing to cooperate with fire investigations.

Where do we go from here?

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).

Contact your Senator and Representative if you have an opinion about the Cantwell-Hastings law.

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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+

34 thoughts on “Forest Service’s explanation for their refusal to fully cooperate with Yarnell Hill Fire investigations

  1. Forest Service employees are scared to do their job for fear of repercussions. Nothing ever gets done anymore. Insane.

    • Sorry, ma’am, but I take great exception to your statement. Forest Service employees work very hard at their jobs. I know I do. It is not BRIHC’s job to decide if they respond or not. That is the General Counsel’s decision. Last time I checked, our nation’s IHCs still responded to fires and DID THEIR JOBS- REGARDLESS OF REPERCUSSIONS.

  2. Mr. Gabbert, I see the reasoning behind your criticism of the Cantwell-Hastings legislation, and I agree with your classification of it being knee-jerk, however uncomfortable the phrase makes me when trying to imagine what the families felt after the Thirty Mile fire report came out.
    I do believe that accidents are certainly different from clear negligence, but is an atmosphere of that has a hard time holding anyone accountable good either?
    If I do something either directly or indirectly that gets my hired man killed, its over for me and my operation. I AM LIABLE. That knowledge make me very safety conscious.

    I still disagree with the reasoning the Steep Corner Fire required firefighters to be in an area where trees may fall with little or no warning.
    I am no expert but I think there must be a balance between an environment that supports learning with no consequences and an environment that people never seem to learn because accountability seems to be lacking( at least to the taxpayers and families).

    • You make some good points, Zero.

      I don’t know of anyone who says there should be no accountability for serious screw-ups on fires, whether or not they result in injuries or deaths. If someone makes a mistake in spite of having been exposed to all of the necessary training and experience, then there should be repercussions commensurate with the act. It could be a written reprimand in a personnel file, suspension from work, removal of fire qualifications, removal from an incident management team, or termination. We need more accountability, not less.

      After a burn over on the 1999 Sadler Fire the entire IMT was disbanded and several key people had their qualifications removed, subject to reinstatement after more training. The IMT in that case made many, many inexcusable mistakes just after their transition onto the fire.

      You may have noticed that I did not include criminal charges in the list of possibilities following a mistake in judgment made in the heat of battle on a fire. Charging someone with basically murder, or manslaughter, is absurd. Fire the person if appropriate, but putting them in jail, or forcing them to ruin their family’s financial lives by hiring expensive lawyers to defend them in court, is not appropriate.

      Also not appropriate is the current atmosphere of potential criminal charges and civil lawsuits that stymie the entire lessons learned process. We need to fix that.

      • Thanks for the reply Mr. Gabbert. I agree wholeheartedly with your statements. I did not think of the Sadler Fire. Was the disbanding of Storey’s IMT a turning point in the fire community? Was there a shift away from transparency after the judgment was handed down? Or was it mainly the Cantwell Hastings legislation? I was a bright eyed lad of 16 in ’99.

        I read an article by a respected municipal Chief that talked about how owning your mistakes early on before the lawsuit begins often prevents the lawsuit.

        • Unfortunately, I am not aware of much obvious accountability that has occurred since the Sadler Fire. But, adverse personnel actions are rarely publicized due to privacy concerns. There could have been some behind the scenes.

          Is anyone aware of accountability actions following major screw-ups on fires, other than the Sadler Fire?

          Now that I think about it, I believe it was a year or two after the Thirtymile Fire when a couple of helitack personnel had a problem on a fire in the Northwest while they were constructing a helispot. Actions were taken against one or two supervisors. What was the name of that fire?

          • If you are a wildland firefighter with supervisory responsibilities, you should obtain professional liability insurance that can pay your legal fees if you end up in court. Attorney fees can be well over $100,000 even if you “win”.

        • While employed by the feds as a permanent full time employee I carried liability insurance. The agency paid half the premium. It was nice to know it was there but I always tried to maintain full qualifications and currency along with doing the right things. Once I was threatened by a supervisor with a adverse action over a false charge. I simply gave him my attorneys card and said call him, our discussions are over. End of issue.

          I would strongly urge FTP employees to take advantage of this benefit. I have known several people who have run afoul of the system and egos and had their careers saved by such insurance.

          For the AD, temps/seasonal and NGOs, contractors I would look around to see what is out there.

          No wildfire is worth a serious injury or death. Be careful out there.

        • What if they are not you mistakes? What if a crew supt makes a bad decision…..what if one of his crewmembers does? How is that on a Type 3 IC. How do I own that one?

  3. Bill that fire was in central Idaho. Both helitack were killed. The Dist. Ranger and Dist. FMO were removed (Fired) from there positions. They were responsible for the deaths. My understanding they were flying checking the fire when the Helicopter should have been picking them up. They were in UNBURNED FUEL ahead of the fire and were burned over. They asked for a pickup the ranger didn’t think it was an emergency. I cant remember the name of the fire but it is listed in the fire fatalities by year.

    • It took longer than expected to construct a helispot and by the time the firefighters needed pickup there was no helicopter to pick them up, I believe it was down for maintenance.
      Dropping off helitacks and during they deployment the helicopter timed out or was otherwise unavailable.

        • Your reliable sources are a little left of what actually happened. The district AFMO plead guilty and under the agreement left gov service. The ranger went to Region 1. They were not in a helicopter over the fire at the time of the entrapment and fatality. I would bet I’m slightly more reliable than your sources if you want to chat about the events of that day.

  4. Some Cramer Fire info:
    1. The District AFMO / IC lost his job and was prosecuted criminally. He plead to a lesser charge. He was a good man in a tough spot. It crushed him emotionally, financially, and took his family from him. Hopefully this is not the model of accountability we would like to see.

    2. The helicopter was down for scheduled maintenance with helitack on the hill and in the height of the burning period.

    3. The Salmon NF fire program and the Indianola crew had a documented history of poor leadership and multiple personnel issues in supervisory positions.

    4. As a Type 3 IC you have to rely on the judgement of your divisions and crew leaders, as safety is local in nature. As an IC you cannot be all places at once. You set the stage and expectations for safety. You watch your big ticket items such as weather, fire behavior, forecasts, tactical successes. You reassess strategy, mitigate known hazards, but you cannot be everywhere holding everyones hand.

    5. The speculation that the threat of prosecution has deminished the Type 3 ranks is not supported by data. Back around Cramer and 30 mile we all heard of someone from somewhere who won’t perform as a Type 3 IC anymore. Great men will never lead troops into battle again. That just isn’t supported. There has been an increase in the available Type 3 ICs. There has also been an acreage increase in the average Type 3 incident. I am in no way saying I support the curent legislation to hold our ICs to be investigated criminally. The average Type 3 incident has increased in complexity with our long term weather, fuel conditions, fire beahvior, push for cost containment and influx of contract resources.

    • These are reasons why I stopped pursuing ICT3 quals, the chance of being put in jail on criminal charges, unlimited debt and a scar on your career and family.

    • I am sure the District Ranger Lost her Job as well. She was flying in a Helicopter surveying the Fire which could have picked the crew up. That’s my info from a forest FMO.

        • I was told the info from the Forest FMO from the Sawtooth so am going on his word on this. I was no longer working for the Sawtooth but that was the word from the inside people. Losing a job and fired not sure I know she left the Salmon, I don’t know where to.

        • JP I went back and checked the investigation report I wanted to make sure on my memory one helicopter was down on a 30 hr. The other helicopter had returned from a recon did not say what for. The crew was suppose to have ben picked up before 1500 the helicopter was refueling and went to get them but it was to Smokey to land they went back to the heliport and then back to the helispot but could not pick them up. The recon as I was told was the Ranger. The Ranger got ripped pretty heavy in the report but the names were all removed. The Salmon, Challis and Boise surround the Sawtooth and I worked with them for 15 years.

    • “There has been an increase in the available Type 3 ICs”

      As far as the facts and numbers go (data), there are far fewer Forest Service Type 3 ICs today than there were in the early 2000’s. All you have to do is run an IQCS query.

      If you really want to look at impacts, look at how many trainee federal Type 1 and Type 2 ICs are on the books.

      • How do you run a query from 2000 when most of the country was in transition to IQCS? IC ranks have always been in flux…..our succession planning and overall training schematic needs an overhaul……IFPM could have been great but has turned out to be a little goofy.

        Do we have the best training? Possibly. Could it be better packaged, streamlined, and produced? Yep. How about qualification based and position based academies? Crewboss Academy that teaches the basics of crew managent and applicable tactical decision making. Company Officer/Captain Academy providing skillsets such as performance, budgets, purchasing, disciplinary processes, fireground command……..just a quick example.

  5. The Forest Service cites the Privacy Act (not the Cantwell-Hastings law) to justify its refusal to cooperate in the Arizona OSHA investigation. But the BLM is subject to the identical Privacy Act requirements and it cooperated fully. Why the difference?

  6. At what level should someone get liability insurance Mr. Gabbert? I am working on single resource boss now. That is interesting. I carry one million dollars on the farm and ranch corp. I wonder if that covers me when I am fighting fire, I shall look that up.

    • Many wildland firefighters have purchased professional liability insurance from FEDSProtection. Anthony F. Vergnetti from that company is featured in a YouTube video that explains how their company works with federal firefighters. I assume much of the information applies for non-fed fire personnel as well.

      • Bill, I have looked into FEDS insurance and found that it only available to employees of the federal LMAs, have not had any luck finding a carrier that will cover state, local, or NGO fire management personell(much to my chagrin as I find myself now working for a state agency and spent 5 years with an NGO prior to that).

    • The “Single Resource Leader” position (crew boss, engine boss, dozer boss and falling boss) is where “the rubber meets the road” on wildland fire. This is where direct responsibility, accountability and liability are probably the greatest: “Mr/Ms Smith, didn’t the S-230 class you took in 2012 empasize that you should ALWAYS …..(fill in the blanks)? And why didn’t you do that on the XYZ Fire, resulting in injuries & deaths to your crew persons?” Look at the history of Thirtymile and Cramer: the folks closest to the ground are the ones pursued by the legal beagles! Forewarned is forearmed: buy liability insurance and “lawyer up” when bad things happen.

  7. FYI, I spoke with someone with a bit of experience on this type of legal issue who indicated that this issue is not *normally* an issue b/c the investigation is normally a *federal* OSHA investigation, such that the feds can compel the feds to produce the employees to give interviews. In this case, the problem was that it was a state-level OSHA investigation. I guess the states cannot easily compel the feds to produce employees….

  8. regarding liability insurance; fyi there is an insurance company in Canada (Hub International Insurance Brokers) that does provide professional liability insurance coverage for individuals in gov’t & non gov’t agencies within Canadian provincial jurisdictions including forest management & fire mgt. If you check their web page, http://www.hubprofessional.com & contact them In British Columbia they may be able assist and/or point you in the direction of an insurance carrier in USA .

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