Charges dropped against 2 teens initially thought to have started wildfire that burned into Gatlinburg

Chimney Tops 2 Fire August 27, 2016
Chimney Tops 2 Fire November 27, 2016. Photo by Brett Bevill.

The local prosecutor for the Gatlinburg area announced Friday that he has decided to drop the charges against the two teenaged boys initially thought to be responsible for starting the Chimney Tops 2 Fire that five days later burned into the city in eastern Tennessee killing 14 people, forcing 14,000 to evacuate, destroying or damaging 2,400 structures, and blackening 17,000 acres.

The logic used by Fourth Judicial District Attorney General Jimmy Dunn was that since other fires in the Gatlinburg area were caused by downed wind-blown power lines, it could not be proved that any one particular fire caused specific deaths or property damage.

The arson charge would be within the jurisdiction of the Federal government since it occurred on land administered by the National Park Service.

U.S. Attorney Nancy Stallard Harr issued a statement saying, “the U.S. Attorney’s Office is in communication with the District Attorney General’s office. A review of the evidence in this case will have to take place in order to determine whether it is appropriate to seek approval from the Attorney General to prosecute juvenile offenders in federal court.”

Mr. Dunn also issued a statement, reading in part:

…the unprecedented, unexpected and unforeseeable wind event that started in the early morning hours of November 28,2016, approximately four and a half days after the initial origin of the fire, was the primary reason of the Chimney Tops II fire traveled outside the park into Gatlinburg. But for the winds that reached speeds in excess of 80 miles per hour, it is highly unlikely and improbably that the Chimney Tops II fire would have left the Great Smoky Mountains National Park and reached Gatlinburg.

Greg Salansky, Fire Management Officer for Great Smoky Mountains National Park, said the evening of November 26 he received word that a wind event was in the forecast for the afternoon of the 28th. The winds arrived very early in the morning on the 28th, about 12 hours before they were predicted to begin.

Below is the complete statement issued by District Attorney General Jimmy Dunn today:

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“For the past seven months, an investigation has been underway into the origin, cause and consequences of a fire that started on November 23, 20165, in an area of the Great Smoky Mountains National Park referred to the Chimney Tops. The investigation is now complete the investigation was led by the Tennessee Bureau of Investigation with the assistance of the National Park Service and local law enforcement, as well as various other local, state and federal agencies. The investigation involved thousands of investigative hours, over 100 witness and expert interviews across multiple states, thousands of potential witnesses, as well as thousands of pages of documents, records photographs and hours of video evidence and audio recordings.

After a comprehensive review of all of the evidence gathered and presented by the Tennessee Bureau of Investigation, Gatlinburg Police Department, Pigeon Forge Police Department, Sevier County Sheriff’s Office, the State, in consultation with other law enforcement agencies and various experts in wildfire progression, has determined that the unprecedented, unexpected and unforeseeable wind event that started in the early morning hours of November 28,2016, approximately four and a half days after the initial origin of the fire, was the primary reason of the Chimney Tops II fire traveled outside the park into Gatlinburg. But for the winds that reached speeds in excess of 80 miles per hour, it is highly unlikely and improbably that the Chimney Tops II fire would have left the Great Smoky Mountains National Park and reached Gatlinburg.

Because of this intervening weather event, the State is unable to prove the criminal responsibility of two juveniles beyond a reasonable doubt for the devastation that occurred outside the Great Smoky Mountains National Park. In addition to the wind, the State’s cause is further complicated by the fact that there were other fires in the area and other confirmed ignition points in the Gatlinburg area from multiple downed power lines that were felled by the wind. Some of these fires appear to have erupted prior to the fire from the Park breaching the Gatlinburg city limits. Once the investigation confirmed multiple fires with multiple points of origin, it became impossible to prove which fire may have caused the death of an individual or damage to a particular structure. Based upon this evidence, the State’s case was narrowed to prosecuting conduct that occurred wholly within the Great Smoky Mountains National Park.

Once the State determined that is prosecution may be limited to conduct and actions occurring within the Great Smoky Mountains National Park, the District Attorney’s Office conducted additional research and investigation into jurisdictional issues regarding criminal prosecution by the State for actions or events that occur wholly within National Park land. This investigation and research revealed the existence of two documents or “Memoranda of Agreement” regarding concurrent criminal jurisdiction between the State of Tennessee and the National Park Service. One of these documents specifically lists the Great Smoky Mountains National Park as being part of a concurrent criminal jurisdiction agreement between the State of Tennessee and the National Park Service on behalf of the Federal Government. The second of these documents is an exact duplicate of the first, save one critical difference: it does not include the Great Smoky Mountain National Park in the agreement. Eleven other National Park Service on behalf of the Federal Government. The second of these documents is an exact duplicate of the first, save one critical difference: it does not include the Great Smoky Mountain National Park in the agreement. Eleven other National Park Service properties are listed on each document. It is unclear how both of these documents got into circulation, but it is clear that both have been used by various agencies in different contests.

After becoming aware of these competing documents, the State notified the Defense immediately and sought advice from the State Attorney General’s Office as well as the U.S. Attorney’s Office as to which document was controlling and whether or not the State could prosecute criminal acts that occur within the Great Smoky Mountains National Park. After reviewing the documents, both the State Attorney General’s Office and the U.S. Attorney’s Office advised that it was their respective opinions that the State of Tennessee does not have jurisdiction to prosecute criminal acts that occur wholly within the boundaries of the Great Smoky Mountains National Park. Therefore, any prosecution for criminal conduct occurring entirely within the boundary of the Great Smoky Mountains National Park must be initiated by the federal government.

Based upon these findings, the State has no other option but to dismiss the charges currently pending in state court as there is no subject matter jurisdiction that would allow the state court to take any action. To retain jurisdiction, the State must be able to prove beyond a reasonable doubt that at least one element of a criminal offense occurred outside of the Great Smoky Mountains National Park and within the State’s jurisdiction. The State has concluded that this burden cannot be met due to the intervening weather event that occurred before any fire reached the State’s jurisdiction. Therefore, the decision to prosecute any individuals alleged to have caused a fire within the Great Smoky Mountain National Park is now within the purview of the United States Department of Justice.

The District Attorney’s Office for the Fourth Judicial District would like to thank all agencies, law enforcement and otherwise, including the TBI, the National Park Service, the Sevier county Sheriff’s Office (with special recognition for the outstanding work done by the GIS Division), the Gatlinburg Police Department, the Pigeon Forge Police Department, the Pittman Center Police Department, the Department of the Interior, the Bureau of Alcohol, Tobacco and Firearms and the Tennessee Department of Agriculture, Division of Forestry, for their incredible hard work in investigating this unprecedented event. This office would also like to thank and commend the hundreds of firefighters and police officers from the national, regional, state and local levels for their extraordinary bravery and courage in confronting these fires.”

Author: Bill Gabbert

After working full time in wildland fire for 33 years, Bill Gabbert now writes about it from the Black Hills. Google+

1 thought on “Charges dropped against 2 teens initially thought to have started wildfire that burned into Gatlinburg”

  1. The fire investigation of the Chimneys Top Fires in the Smoky Mountains took another twist when the “State” District Attorney announced he was dismissing the charges against the juveniles because he did not have jurisdiction in the Park. This is 7 months later and the citizens here are in outrage. The NPS managers have allowed this narrative to be used and assisted in the DA probe when they knew or should have known the procedures for handling juveniles in the Exclusive Federal Jurisdiction of the Smoky Mountains. Now they are stating they are requesting prosecution from the U.S. Attorneys office 7 months later after the juveniles were arrested incarcerated without due process of law. Everybody is now squirming and it appears the NPs is imploding from the ongoing collusion, negligence and misleading the citizens of Sevier County. The rules are clear and the jurisdiction is clear and the responsibility lies fully on the Chief Ranger of the park who allowed this. The Chief Ranger is the head law enforcement officer of the park, and assigns, directs, and supervises all criminal activities including fire fighting and administrative investigations. Juvenile rules are set forth in RM-9 for procedures and the jurisdictions are clear. Attached are the juvenile rules and it does not involve any State intervention unless petitioned by the U.S. Attorneys Office. The so called management of the park has botched the entire fire effort and now the criminal investigation that has the citizens outraged beyond comprehension. The “fire review has been postponed and now everyone is beginning to wonder if there is more collusion and cover up being doctored in the NPS report including the Congress and Senate representatives. The Secretary of the Interior has not intervened and is allowing the fire storm to brew. Litigation is about to begin as soon as the fire review is released. The level of incompetency is off the chart.

    U.S. Code › Title 18 › Part IV › Chapter 403 › § 5032
    ..
    18 U.S. Code § 5032 – Delinquency proceedings in district courts; transfer for criminal prosecution
    A juvenile alleged to have committed an act of juvenile delinquency, other than a violation of law committed within the special maritime and territorial jurisdiction of the United States for which the maximum authorized term of imprisonment does not exceed six months, shall not be proceeded against in any court of the United States unless the Attorney General, after investigation, certifies to the appropriate district court of the United States that (1) the juvenile court or other appropriate court of a State does not have jurisdiction or refuses to assume jurisdiction over said juvenile with respect to such alleged act of juvenile delinquency, (2) the State does not have available programs and services adequate for the needs of juveniles, or (3) the offense charged is a crime of violence that is a felony or an offense described in section 401 of the Controlled Substances Act (21 U.S.C. 841), or section 1002(a), 1003, 1005, 1009, or 1010(b)(1), (2), or (3) of the Controlled Substances Import and Export Act (21 U.S.C. 952(a), 953, 955, 959, 960(b)(1), (2), (3)), section 922(x) or section 924(b), (g), or (h) of this title, and that there is a substantial Federal interest in the case or the offense to warrant the exercise of Federal jurisdiction.

    If the Attorney General does not so certify, such juvenile shall be surrendered to the appropriate legal authorities of such State. For purposes of this section, the term “State” includes a State of the United States, the District of Columbia, and any commonwealth, territory, or possession of the United States.

    If an alleged juvenile delinquent is not surrendered to the authorities of a State pursuant to this section, any proceedings against him shall be in an appropriate district court of the United States. For such purposes, the court may be convened at any time and place within the district, in chambers or otherwise. The Attorney General shall proceed by information or as authorized under section 3401(g) of this title, and no criminal prosecution shall be instituted for the alleged act of juvenile delinquency except as provided below.

    A juvenile who is alleged to have committed an act of juvenile delinquency and who is not surrendered to State authorities shall be proceeded against under this chapter unless he has requested in writing upon advice of counsel to be proceeded against as an adult, except that, with respect to a juvenile fifteen years and older alleged to have committed an act after his fifteenth birthday which if committed by an adult would be a felony that is a crime of violence or an offense described in section 401 of the Controlled Substances Act (21 U.S.C. 841), or section 1002(a), 1005, or 1009 of the Controlled Substances Import and Export Act (21 U.S.C. 952(a), 955, 959), or section 922(x) of this title, or in section 924(b), (g), or (h) of this title, criminal prosecution on the basis of the alleged act may be begun by motion to transfer of the Attorney General in the appropriate district court of the United States, if such court finds, after hearing, such transfer would be in the interest of justice. In the application of the preceding sentence, if the crime of violence is an offense under section 113(a), 113(b), 113(c), 1111, 1113, or, if the juvenile possessed a firearm during the offense, section 2111, 2113, 2241(a), or 2241(c), “thirteen” shall be substituted for “fifteen” and “thirteenth” shall be substituted for “fifteenth”. Notwithstanding sections 1152 and 1153, no person subject to the criminal jurisdiction of an Indian tribal government shall be subject to the preceding sentence for any offense the Federal jurisdiction for which is predicated solely on Indian country (as defined in section 1151), and which has occurred within the boundaries of such Indian country, unless the governing body of the tribe has elected that the preceding sentence have effect over land and persons subject to its criminal jurisdiction. However, a juvenile who is alleged to have committed an act after his sixteenth birthday which if committed by an adult would be a felony offense that has as an element thereof the use, attempted use, or threatened use of physical force against the person of another, or that, by its very nature, involves a substantial risk that physical force against the person of another may be used in committing the offense, or would be an offense described in section 32, 81, 844(d), (e), (f), (h), (i) or 2275 of this title, subsection (b)(1)(A), (B), or (C), (d), or (e) of section 401 of the Controlled Substances Act, or section 1002(a), 1003, 1009, or 1010(b)(1), (2), or (3) of the Controlled Substances Import and Export Act (21 U.S.C. 952(a), 953, 959, 960(b)(1), (2), (3)), and who has previously been found guilty of an act which if committed by an adult would have been one of the offenses set forth in this paragraph or an offense in violation of a State felony statute that would have been such an offense if a circumstance giving rise to Federal jurisdiction had existed, shall be transferred to the appropriate district court of the United States for criminal prosecution.

    Evidence of the following factors shall be considered, and findings with regard to each factor shall be made in the record, in assessing whether a transfer would be in the interest of justice: the age and social background of the juvenile; the nature of the alleged offense; the extent and nature of the juvenile’s prior delinquency record; the juvenile’s present intellectual development and psychological maturity; the nature of past treatment efforts and the juvenile’s response to such efforts; the availability of programs designed to treat the juvenile’s behavioral problems. In considering the nature of the offense, as required by this paragraph, the court shall consider the extent to which the juvenile played a leadership role in an organization, or otherwise influenced other persons to take part in criminal activities, involving the use or distribution of controlled substances or firearms. Such a factor, if found to exist, shall weigh in favor of a transfer to adult status, but the absence of this factor shall not preclude such a transfer.

    Reasonable notice of the transfer hearing shall be given to the juvenile, his parents, guardian, or custodian and to his counsel. The juvenile shall be assisted by counsel during the transfer hearing, and at every other critical stage of the proceedings.

    Once a juvenile has entered a plea of guilty or the proceeding has reached the stage that evidence has begun to be taken with respect to a crime or an alleged act of juvenile delinquency subsequent criminal prosecution or juvenile proceedings based upon such alleged act of delinquency shall be barred.

    Statements made by a juvenile prior to or during a transfer hearing under this section shall not be admissible at subsequent criminal prosecutions.

    Whenever a juvenile transferred to district court under this section is not convicted of the crime upon which the transfer was based or another crime which would have warranted transfer had the juvenile been initially charged with that crime, further proceedings concerning the juvenile shall be conducted pursuant to the provisions of this chapter.

    A juvenile shall not be transferred to adult prosecution nor shall a hearing be held under section 5037 (disposition after a finding of juvenile delinquency) until any prior juvenile court records of such juvenile have been received by the court, or the clerk of the juvenile court has certified in writing that the juvenile has no prior record, or that the juvenile’s record is unavailable and why it is unavailable.

    Whenever a juvenile is adjudged delinquent pursuant to the provisions of this chapter, the specific acts which the juvenile has been found to have committed shall be described as part of the official record of the proceedings and part of the juvenile’s official record.

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