Bill introduced to require local approval or collaboration of prescribed fires

Cold Brook Fire April 13, 2015

Cold Brook Fire April 13, 2015, looking northwest shortly after the prescribed fire crossed Highway 385. Photo by Benjamin Carstens (click to enlarge)

The same U.S. Senator who earlier made some guesses about what caused the Cold Brook prescribed fire in Wind Cave National Park to escape control in South Dakota, burning an additional 5,420 acres, has introduced a bill that would require “collaboration with state government and local fire officials before a prescribed burn could be started on federal land when fire danger is at certain levels in the area of the prescribed burn”.

The text of Senate Bill 1100 introduced by Senator John Thune is not yet available; the passage above was included in a newsletter distributed by his office on April 29.

Our position is that it is very appropriate for the legislative Branch to provide oversight of actions taken by the Executive Branch of government. However, that oversight should NOT be a knee-jerk reaction based on the quick assumptions and guesses of a Senator about what caused a particular outcome. Wait until the facts are in, THEN provide reasoned advice based on science.

An example of a Senator’s ready-fire-aim approach to fix a perceived problem is Senator Maria Cantwell’s and Representative Doc Hastings’ hastily conceived Public Law 107-203 in 2002 following the Thirtymile Fire that killed four firefighters. That bill resulted in the firefighters’ crew boss being charged with 11 felonies, including four counts of manslaughter. The law destroyed the process of obtaining information about the cause and prevention of serious accidents on the fireline. We hope that Senator Thune is not following in Senator Cantwell’s ill-conceived footsteps.

Politicians should take a breath, and resist the overwhelming temptation to criticize the administration of the other party before the facts are known.

Below is a press release from the office of Senator Thune:

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“Thune Introduces Bill to Prevent Reckless Prescribed Burns on Federal Lands

U.S. Sen. John Thune (R-S.D.) last night introduced a bill that would require collaboration between federal and local officials before initiating a prescribed burn on federal lands when fire danger is high. Thune’s bill follows two prescribed burns in South Dakota in the past two years that have burned out-of-control, one set by the Forest Service (FS) in northwestern South Dakota known as the Pautre Fire and most recently one set by the National Park Service (NPS) on April 13, 2015, known as the Cold Brook Fire at Wind Cave National Park.

“Over the past two years, the federal government has twice exercised a complete disregard for imminent fire danger by starting prescribed burns under unsafe conditions in South Dakota,” said Thune. “The Pautre Fire caused extensive property losses and both fires required multiple firefighting units, equipment, and personnel to fight the out-of-control fires. It is reasonable to require federal agencies to collaborate with state governments and local fire officials before setting prescribed burns under these conditions, and that is exactly what my bill would do.”

Both prescribed burns in South Dakota were started under extremely dry conditions. Thune’s bill looks to address numerous issues that came about as a result of these fires. Under Thune’s bill, the Cold Brook Fire would not have been set due to the restrictions on prescribed burns during dry conditions unless state and local officials had consented. Additionally, if this bill had been enacted at the time of the Pautre Fire, individuals impacted by out-of-control burns would be reimbursed for their damages in a timely manner. Pautre fire victims still have not been reimbursed by the FS, nor has the FS accepted fault.

Thune’s bill, the Prescribed Burn Approval Act of 2015, would require the head of a federal agency to first collaborate and obtain approval from state government and local fire officials if the Grassland Fire Danger Index indicates a high, very high, or extreme fire danger or the FS has declared very high or extreme fire danger. Thune’s bill also stipulates that should a federal agency proceed with a prescribed burn that damages private property, it is liable for any damage to private property caused by the burn, with damages to be paid within 120 days of receipt of a substantiated claim.

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Throwback Thursday

Let’s take a look six years back to see what we were writing about March 23-29, 2008.

Highlights of the 2008 Annual Wildland Fire Refresher Training.

Wildland Firefighter RefresherTraining 2008
–The After Action Review was released for the Santiago Fire, which was in Orange County, California.

–The U.S. Forest Service Fire Prevention Technician convicted of starting the 137,000-acre Hayman fire in Colorado was re-sentenced to 15 years probation and 1,500 hours of community service.

–A spokesman for North Carolina Division of Forest Resources in Raleigh, said rangers from the division have been allowing a fire to burn on an 18-acre uninhabited island because it doesn’t pose a threat to people or properties.

–A B-1 bomber while landing at Ellsworth Air Force Base had an in-flight emergency and may have dropped burning debris near the base that started multiple wildfires.

–There was an update on the trial of the Crew Boss and Type 3 Incident Commander on the Thirtymile Fire near Winthrop, Washington in 2001. Four members of his crew were overrun by fire and died.

GAO studies moving US Forest Service to Dept. of the Interior.

Poway, Calif., Firefighters Were Ordered To Not Fight Fires.

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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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Differences between military and Forest Service accident investigations

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.

C-130 MAFFS crash, July 1, 2012

C-130 MAFFS air tanker crash, July 1, 2012. US Air Force photo

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.

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Experts convicted of manslaughter for not warning about earthquake

A court in Italy has convicted seven earthquake experts of manslaughter for not warning the public about the April 2009 quake that killed more than 300 people in L’Aquila.

The decision brings to mind the manslaughter charges brought against a firefighter after the fatal 2001 Thirtymile fire in Washington state.

In the case in Italy, the judge sentenced six scientists and a former government official to six years and ordered them to pay court costs and damages of $10.2 million. Most of the seven were seismologists and geologists, members of a National Commission for the Forecast and Prevention of Major Risks that met shortly before the quake struck after weeks of frequent small tremors. But they did not issue a public warning.

The court’s decision shook a community of scientists who evaluate the risks of natural hazards. “This is the death of public service on the part of professors and professionals,” Luciano Maiani, the current president of the risk commission, told the news agency Ansa.

Also shaken was the firefighting community when Ellreese Daniels was charged with 11 felonies, including 4 manslaughter charges, for the deaths of four firefighters during the 2001 Thirtymile fire. After those fatalities, politicians passed a federal law making it mandatory for the Department of Agriculture’s Office of Inspector General (OIG), which had no experience in wildland fire, to investigate fatalities of U.S. Forest Service personnel that occurred on a fire to decide if any federal laws were broken by firefighters during the suppression of the fire.

After the trainee wildland fire investigator for the OIG finished looking at the Thirtymile fire, on January 30, 2007 Mr. Daniels, the crew boss of the four firefighters that died, was charged with the felony and manslaughter charges. They were later reduced to two counts of making false statements to which Mr. Daniels pleaded guilty on August 20, 2008. He was sentenced to three years of probation and 90 days of work release.

In a case that is similar in some respects to the Thirtymile fire, three senior fire officers from the Warwickshire Fire Service in the UK were charged with gross negligence manslaughter following the deaths in 2007 of four firefighters while they were working a large fire at a vegetable warehouse in the village of Atherstone on Stour. They were acquitted in May, 2012 after a six-week trial.

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Thirtymile fire, 10 years ago today, and the consequences

Thirtymile Fire

Thirtymile fire, July 10, 2001

Exactly 10 years ago today the Thirtymile fire took the lives of four U.S. Forest Service firefighters and triggered a series of events and knee-jerk reactions that have been affecting firefighters ever since.

Killed that day were:

Tom L. Craven, 30, Ellensburg, WA
Karen L. Fitzpatrick, 18, Yakima, WA
Devin A. Weaver, 21, Yakima, WA
Jessica L. Johnson, 19, Yakima, WA

The tragic event set a precedent for charging a wildland firefighter with felonies for making mistakes during an emergency fire response. Politicians passed a federal law making it mandatory for the Department of Agriculture’s Office of Inspector General (OIG), which had no experience in wildland fire, to investigate fatalities of U.S. Forest Service personnel that occurred on a fire to decide if any federal laws were broken by firefighters during the suppression of the fire.

After the trainee wildland fire investigator for the OIG finished looking at the Thirtymile fire, on January 30, 2007 Ellreese Daniels, 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 Mr. Daniels pleaded guilty on August 20, 2008. He was sentenced to three years of probation and 90 days of work release.

In 2007 the International Association of Wildland Fire conducted a survey of over 3,300 firefighters about the repercussions of a firefighter facing criminal charges following an accident on a fire. Of the full-time employees surveyed, 6% said that because of the possibility of criminal charges they would no longer accept any fire assignments, and 23% said they would not serve as an Incident Commander, the person in charge of all fire suppression activities on a fire. And 23% of the primary-duty firefighters said they would remove some positions for which they were qualified from their Incident Qualifications Card, or “red card. HERE is a summary of their other findings.

The Wenatchee World has an interesting article about the Thirtymile fire. Here is an excerpt that picks up with a discussion about the OIG investigation and the felony charges:

…“It’s not something we’re excited about,” Ken Snell, Forest Service fire director for the Pacific Northwest Region, said of the possibility of criminal prosecution. “No firefighter on any given day goes out there with the intention of hurting anyone.”

And as for the independent review by the Inspector General, he said, “I don’t want to say it wasn’t good, but it had an unintended consequence of shutting down or slowing our ability to learn” from fatal fires.

Snell said the agency now examines minor to moderate incidents or close calls to learn what mistakes are being repeated.

Dick Mangan, a retired Forest Service official who analyzes fire fatalities, said he thinks the changes have had a negative impact on firefighting.

“Unfortunately, four people lost their lives. There were obviously mistakes made at a number of different levels,” he said. “But the way it was (before Thirtymile), everybody else gets the benefit of learning from it, because it is free and open and everyone admits it. Now, there’s always the threat that when an investigation or review team comes in, if I tell them something it may be held against me.”

Fire commanders also know that the decisions they make in an instant, without full knowledge of the situation, and a prosecutor has years to pick apart each and every move and decide whether to file criminal charges.

“That has cast a fairly dark shadow over fire operations for a lot of people,” he said, adding, “Many have chosen not to take jobs that would put them in a liability situation anymore.”

John N. Maclean, author of The Thirtymile Fire published in 2007, said despite his shortcomings, Daniels should never have been prosecuted.

“It was certainly clumsy in its execution, and disastrous in its consequences,” he said. “People left the upper reaches of firefighting in droves, and today, they’re still having trouble filling incident command classes,” he said.

He said the changes won’t make fire managers more accountable.

“Forcing fire managers to obsess about process does not put out fires,” he said, “And having them always looking over their shoulder because they might be charged with felonies that would put them in jail for decades for what may have been a stupid mistake, but was an honest mistake, does nothing for the future of firefighting.”

The Yakima Herald has short bios of the four firefighters who died on the fire.

Shortly after Mr. Daniels was sentenced in 2008, we published the reaction of John N. Maclean, who after writing his book, has become an expert on the Thirtymile fire and the unintended consequences of the OIG investigations.

The Yakima Herald was extremely critical of the U. S. Forest Service and Ellreese Daniels for years leading up to his trial date, but the article they have about the 10-year anniversary shows a much more balanced tone.

Memorial for the four firefighters

 

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