Battle between timber company and federal prosecutors over Moonlight Fire becoming even more heated

The barbs, counter-charges, and accusations of “unethical conduct as a lawyer” continue to fly from both sides like burning embers lofted by a wildfire, about the 2007 Moonlight Fire that burned 65,000 acres (map), including 46,000 acres in the Plumas and Lassen National Forests in northern California.

CAL FIRE and the U.S. Forest Service claimed a bulldozer operated by Sierra Pacific Industries was responsible for starting the fire. Three years ago the company agreed to pay $100 million to settle the case, but in the last several months they have sought to reverse the deal because of alleged misdeeds by investigators and prosecutors.

Below are excerpts from an article in the Sacramento Bee:

Federal prosecutors in Sacramento have launched a blistering new attack on Sierra Pacific Industries and its lawyers, accusing the timber giant of “deception” and “scandal mongering” in its efforts to reverse a $100 million settlement it agreed to pay over the 2007 Moonlight fire, which burned huge swaths of the Plumas and Lassen national forests.cases.
[…]
“The government contends Sierra Pacific’s efforts to overturn the settlement “lack integrity” and are based on false accusations, and that the company “only pretended to settle” the lawsuit it faced. “This is professional misconduct of the worst kind,” the government brief states.

Among the claims made by Sierra Pacific are allegations that a veteran assistant U.S. attorney, E. Robert Wright, was forced out of his lead role in the case after he refused to “engage in unethical conduct as a lawyer.” Wright filed a declaration for Sierra Pacific in which he said he was removed from the case and replaced by a prosecutor with no previous experience in wildland fire cases.
[…]
“They try to create the impression that Wright is a celebrated veteran of the U.S. Attorney’s office, who received nothing but praise for his work,” the government’s brief states. “But in fact, his work was of mediocre quality and it was for this reason the Moonlight fire case was assigned to another attorney at the pleading stage, before discovery commenced.”
“My comment is simply that we have officials who are supposed to be diligently and honestly representing the U.S. government who are actually lying in papers they are filing with the court, and making up stuff five years after the fact,” Wright said.

Articles on Wildfire Today tagged Moonlight Fire.

Wildfire briefing, December 18, 2014

Possible wildfire suppression scam

From the Rapid City Fire Department:

Scam Alert: Investigators for the RCPD would like to inform the public of a possible scam targeting local businesses. An individual has been soliciting donations for an organization called ‘Atta Katta Wildland Fire Suppression.’ The Rapid City Police Department has reason to believe that this organization is fraudulent. If you’ve been solicited for a donation to this organization, please contact Sgt. Warren Poches at 394.4134.

Moonlight fire scandal continues to grow

The accusations of prosecutorial abuse, fraud, and government coverups related to the 2007 Moonlight Fire in northern California are gathering more nationwide attention. Here is how an article by Kathleen Parker begins:

First there’s the spark, then the conflagration, followed by the litigation and then, surely, the movie. Call it “Moonlight Fire,” and prepare to suspend disbelief. The story is a doozy — a tale of corruption, prosecutorial abuse, alleged fraud upon the court, and possible government cover-ups in the service of power and greed. All the script needs is a Forest Service employee urinating on his bare feet in his lookout tower just as the fire was beginning.

What?!

This is what a real-life ranger discovered when she went to the tower to pick up a radio for repair. She also reported spotting a small glass pipe and smelling marijuana. As for the urinary exercise, the lookout said he was treating his athlete’s foot. But of course.

So goes one of the more colorful anecdotes surrounding the 2007 California wildfire that burned up to 65,000 acres — 45,000 of them on federal land — in the northern Sierra Nevada Mountains…

Jonathan Keim also wrote about the debacle for the National Review.

Articles at Wildfire Today tagged Moonlight Fire.

Study on the Rim Fire recommends more interagency prescribed fires

Excerpts from an article a KSBW:

A fierce wildfire that scorched part of Yosemite National Park burned less intensely in places that had fires in recent years – a finding that researchers said Wednesday supports a belief that controlled burning often curtails extreme fires.

The U.S. Forest Service study focused on areas of the Rim Fire that burned 400 square miles in Stanislaus National Forest, Yosemite’s backcountry and private timber land.

It was the largest fire in the recorded history of the Sierra Nevada. It destroyed 11 homes and cost more than $125 million to fight.

Areas hit by the Rim Fire within Yosemite had burned within 14 years and experienced less intense flames, said U.S. Forest Service Pacific Southwest Research Station, which authored the study.

Researchers recommend that forestry agencies with shared borders and interests combine their efforts to conduct controlled burns during moderate weather conditions, giving them the best chance for to avoid massive high-intensity fires.

Night flying helicopters in southern California

An article at The Coast News reports on the two night-flying helicopters operated by the city of San Diego.

10-year high for people charged with lighting fires in Victoria

From The Age in Australia:

The number of charges for lighting fires on days of total fire ban or during bushfire danger periods has reached a 10-year high, as police crack down on the foolishness that has sparked destructive blazes since Black Saturday.

There were 227 charges for lighting a fire on a total fire ban day or in a fire danger period last year, an increase of more than 17 per cent compared to the previous year and more than five times the number recorded in 2010-11.

While most of the fires raging in Victoria this week are believed to have started because of lightning strikes, Emergency Services Commissioner Craig Lapsley said some of the 350 blazes burning on Wednesday would have been caused by people ignoring the volatile conditions.

“It wouldn’t all be lightning. There would have been some foolish behaviour…

Homes burn in Victoria bushfire

Four homes burned in a bushfire in the Creighton’s Creek area of Victoria. State Control Centre spokesperson Leigh Miezis said 1,500 firefighters are currently battling the blaze.

The video below was filmed by Jacob Haddrill in Creightons Creek. He saved his cattle but his feed and fencing was damaged in the fire.

Government attorneys try to remove Sierra Pacific attorneys off the Moonlight Fire case

Moonlight Fire
Moonlight Fire as viewed from Highway 36 on the first day, Sept. 3, 2007. Wikipedia.

Attorneys from the U.S. Department of Justice have asked for the lawyers representing Sierra Pacific to be removed from the case about the responsibility for the Moonlight Fire, alleging unlawful and unethical tactics. CAL FIRE and the U.S. Forest Service claimed the company was responsible for starting the fire that burned about 65,000 acres in 2007 (map), including 46,000 acres in the Plumas and Lassen National Forests in the northern part of the state.

Below is an excerpt from an opinion article in the New York Observer:

EXCLUSIVE: Those who dared expose government corruption in the Moonlight Fire case have just been met with a furious motion to disqualify all counsel and everyone who has even read the affidavit of former Assistant United States Attorney E. Robert Wright.

David Shelledy, Civil Division Chief for the United States Attorney’s Office in the Eastern District of California and new counsel to the case, Matthew Segal, have moved to disqualify all of the defense attorneys for Sierra Pacific and related defendants in the now infamous “Moonlight Fire” case. Ironically, Mr. Shelledy himself is the one who should be disqualified—from representing the government—if not disbarred. Mr. Shelledy is squarely implicated in the unethical and possibly criminal government misconduct he seeks to hide.

The Department of Justice through the United States Attorney’s Office for the Eastern District of California extracted a $55 Million settlement from Sierra Pacific following a massive civil prosecution blaming the timber company for a wildfire that destroyed thousands of acres of forest land. The agreement also required Sierra Pacific to give the government 22,500 acres of land.

Sierra Pacific, which has always maintained it did not start the fire, was complying with the federal settlement while also dealing with litigation against it in the California state courts. In the state case, California Judge Leslie Nichols entered a blistering order in February, awarding $32 million in attorneys’ fees to Sierra Pacific and imposed the ultimate sanction—termination of the case. He found that the state agency, Cal Fire, “withheld some documents, destroyed other evidence and ‘engaged in a systematic campaign of misdirection with the purpose of recovering money’ from Sierra Pacific.”

Judge Nichols’ fiery order caught the attention of former Assistant United States Attorney E. Robert Wright, who felt compelled to come forward. Turns out that Mr. Wright had been the lead Assistant United States Attorney and filed the case against Sierra Pacific—until his superior, Civil Division head David Shelledy removed him from the case after they had a dispute about a clear ethical rule that requires the government to disclose evidence adverse to the government’s case to the defense attorneys in another fire case…

Other articles about the latest developments in the Moonlight Fire litigation:

CAL FIRE’s Moonlight Fire saga continues

Since January, 2013 a battle has been going on in the court system between the California Department of Forestry and Fire Protection, the U.S. Forest Service, and Sierra Pacific Industries Inc., a Redding, California lumber company. CAL FIRE and the U.S. Forest Service claimed the company was responsible for starting the Moonlight Fire that burned about 65,000 acres in 2007 (map), including 46,000 acres in the Plumas and Lassen National Forests in the northern part of the state.

Below is a portion of an update from the Wall Street Journal:

A California timber company accused of starting a 102-square-mile wildfire seven years ago is seeking to undo a $47 million legal settlement because of alleged misdeeds by investigators and prosecutors.

Sierra Pacific Industries filed hundreds of pages of court documents Thursday in federal court seeking to reopen a case settled in 2012. The settlement also included Sierra Pacific transferring 22,500 acres of land to the state of California.

State and federal prosecutors and investigators concluded that the state’s largest timber company was responsible for a 2007 wildfire that consumed 40,000 acres of national forest in Northern California, as well as another 25,000 acres.

A state court judge in February found that California officials lied and hid evidence, and the judge ordered the state to pay the company $30 million. The company is citing the same evidence to reopen the federal case.

The California Department of Forestry and Fire Protection is appealing the state judge’s decision…

An article in the Modesto Bee includes some shocking charges.

…On Thursday, [Sierra Pacific] took the rare step of asking [Judge Kimberly] Mueller to “vacate the settlement” due to “fraud upon the court.”

Sierra Pacific has already paid the government $29 million under the terms of the settlement, with another $3 million payment due Jan. 1. It also has conveyed approximately 1,500 acres of its property to the government, owing roughly 21,000 more acres.

The company contends federal prosecutors sat by in pretrial depositions and knowingly allowed the California Department of Forestry and Fire Protection and U.S. Forest Service investigators to “repeatedly lie under oath about the very foundation of their investigation.”

It insists in its motion that the investigators’ origin-and-cause report is a fraudulent document that omits or distorts all information that might have hurt the government’s case.

CAL FIRE was also involved in questionable behavior before the case first went to trial. In their billing sent to Sierra Pacific in 2009, they demanded the company make two payments; one of $7.7 million to the state, and another for $400,000 to an account belonging to a nonprofit organization administered by CAL FIRE. The organization that held the money charged CAL FIRE 18 percent interest. The funds in that account had been used for off the books purchases of items such as 600 digital cameras and 26 evidence sheds. In Sierra Pacific’s investigation into CAL FIRE’s demand for payment, they discovered the very unusual account, named “Wildland Fire Investigation Training and Equipment Fund”, sometimes referred to as “WiFiter”.

That account, as we wrote in January of 2013, was not exactly secret, however it was not commonly known that it was an off-the-books account not subject to the standard state regulations for managing and spending money. We found a memo from former CAL FIRE Director Walters, apparently written in 2009, summarizing the year’s fire season in which he mentioned the account:

Office of Program Accountability (OPA) finalized three audits (Volcan Incident, Wildland Fire Investigation Training and Equipment Fund, and Indirect Cost PCA 99200)…

The current Director of CAL FIRE, Ken Pemlott froze the fund in August, 2012 after, according to the LA Times, “receiving a briefing from his staff, said Janet Upton, a Cal Fire spokeswoman”.

Judge orders CAL FIRE to pay $30 million for conduct in Moonlight Fire case

A judge has ordered the California Department of Forestry and Fire Protection (CAL FIRE) to pay more than $30 million in penalties, legal fees, and costs to Sierra Pacific and others for their actions related to a lawsuit over the 2007 Moonlight Fire. Retired Superior Court Judge Leslie C. Nichols in a 28-page order issued Tuesday accused CAL FIRE of “egregious and reprehensible conduct” in pursuing a lawsuit against the company.

The Moonlight fire burned about 65,000 acres in 2007, including 46,000 acres in the Plumas and Lassen National Forests in the northern part of the state. CAL FIRE and U.S. Forest Service investigators said the fire was started by a bulldozer operator for a company hired by Sierra Pacific, which denied any involvement in the fire.

In 2012 Sierra Pacific, in order to settle the suit presided over by U.S. District Judge Kimberly J. Mueller and prevent further actions by CAL FIRE, agreed to pay nearly $50 million and donate 22,500 acres of land to the USFS. The company thought CAL FIRE was ultimately seeking $1 billion, and they were aware that Judge Mueller had ruled earlier that the company could be liable even if it had nothing to do with starting the fire.

Below is an excerpt from an article in the Sacrameto Bee, which said Sierra Pacific…

…was a victim of stonewalling by Cal Fire in that agency’s Plumas County suit, including the alleged withholding of thousands of pages of key internal documents relevant to the legal struggle.

In a 28-page order issued Tuesday, retired Superior Court Judge Leslie C. Nichols essentially agreed with all of Sierra Pacific’s points, adopting a separate, 57-page order proposed by Sierra Pacific and the other defendants almost word-for-word, and excoriating the behavior of Cal Fire and two lawyers from the office of Attorney General Kamala Harris, which represented the agency.

“The court finds that Cal Fire’s actions initiating, maintaining and prosecuting this action, to the present time, is corrupt and tainted,” the judge wrote. “Cal Fire failed to comply with discovery obligations, and its repeated failure was willful.”

The agency withheld documents for months, “destroyed evidence critical (to the case) … and engaged in a systematic campaign of misdirection with the purpose of recovering money from (Sierra Pacific).”

Sierra Pacific, according to the Sacramento Bee, claimed there is evidence that a USFS employee in a fire lookout tower may have been smoking marijuana during the early stages of the fire, which delayed the detection, and they reported that “defense lawyers had to work hard to pry that information out of the Forest Service”.

CAL FIRE was also involved in questionable behavior before the case went to trial. In their billing sent to Sierra Pacific in 2009, they demanded the company make two payments; one for $7.7 million to the state, and another for $400,000 to an account belonging to a nonprofit organization administered by CAL FIRE. The funds in that account had been used for off the books purchases of items such as 600 digital cameras and 26 evidence sheds. In Sierra Pacific’s investigation into CAL FIRE’s demand for payment, they discovered the very unusual account, named “Wildland Fire Investigation Training and Equipment Fund”, sometimes referred to as “WiFiter”.

That account, as we wrote in January of 2013, was not exactly secret, however it was not commonly known that it was an off-the-books account not subject to the standard state regulations for managing and spending money. We found a memo from former CAL FIRE Director Walters, apparently written in 2009, summarizing the year’s fire season in which he mentioned the account:

Office of Program Accountability (OPA) finalized three audits (Volcan Incident, Wildland Fire Investigation Training and Equipment Fund, and Indirect Cost PCA 99200)…

The current Director of CAL FIRE, Ken Pemlott froze the fund in August, 2012 after, according to the LA Times, “receiving a briefing from his staff, said Janet Upton, a Cal Fire spokeswoman”.

 

Thanks and a hat tip go out to Dick, Sunil, and Kirk.

Wildfire briefing, July 31, 2013

Two reports released about air tankers

The U.S. Forest Service recently released two reports about firefighting aircraft, the products of contracts issued by the agency. The details are over at Fire Aviation, but here is a summary:

  1.  AVID, a Virginia-based company that employed a crew of retired and current aviation professionals, produced a report “…to build analytical data that can be used to estimate the requirement for airtankers in the future.” The Fire Aviation article about the report can be found here.
  2. The U.S. Forest Service has released a study on how the C-27J could be used by the agency if the Air Force gives them seven of the aircraft as expected.

Summary of fire stats

The National Park Service’s Morning Report written by Bill Halainen has a table that tracks some of the statistics about fires over the last five days. Here is an example from today’s report:

Fire summary, July 31, 2013

Judge rejects California’s lawsuit over 2007 fire

A judge has thrown out a lawsuit brought by the state of California against the state’s largest timber company over liability for the 2007 Moonlight Fire which burned more than 65,000 acres in Northern California. The state was hoping to recoup some of the $22.5 million spent fighting the fire.

Last year the company, Sierra Pacific, agreed to pay nearly $50 million and donate 22,500 acres of land to settle a federal government lawsuit over the Moonlight fire.

Congressional Task Force Links Worsening Wildfires to Climate Change

On Tuesday the Bicameral Task Force on Climate Change convened a panel of experts on climate and wildland fire to discuss the impacts of climate change on wildfires. Below is an excerpt from an article at the National Journal:

…Panelists cited a number of reasons for wildfire flare-ups, including land-use patterns and insect activity. But the discussion kept circling back to climate change.

“Scientists tell us these changes are not just random variability,” Waxman said. “Bigger and more-intense fires are one of the red flags of climate change.”

Climate-change expert William Sommers, a researcher at George Mason University’s EastFIRE Laboratory, agreed. Sommers cautioned that rising levels of atmospheric carbon dioxide will only worsen wildfires in decades to come. “If current greenhouse-gas emission trends are not sharply reversed in the immediate future, we will see observed trends in wildfire risk accelerate,” he warned.

Waxman and Whitehouse asked firefighting and forestry experts for policy recommendations to help mitigate the situation.

Panelists, including Santa Fe, N.M., Fire Chief Erik Litzenberg and Rick Swan, director of supervisory personnel and health and safety for the California Department of Forestry Firefighters, cited budget cuts as a major stumbling block in efforts to combat wildfires, and called for increased funding for park services and firefighters.

“We are seeing a dramatic increase in the number of fires, especially in California,” Swan said. “But we are not seeing the same increase in staffing levels and funding.”