Update on the condition of the firefighters who deployed fire shelters on the Cedar Fire

(UPDATED at 12:52 p.m. MDT June 30, 2016)

Today the BIA released a “24 Hour Report” about the fire shelter deployment on the Cedar Fire. It provided a few facts that were not previously disclosed by the agency.

The six firefighters deployed their shelters in an area that had already burned, and they were evaluated in the hospital for “smoke inhalation”.

The Serious Accident Investigation Team will be led by Jon Rollins, Chief Investigator for the National Park Service.

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(Originally published at 9:52 p.m. MDT, June 29, 2016)

The Bureau of Indian Affairs provided more information today about the six firefighters on the Cedar Fire south of Show Low, Arizona who on June 28 found themselves in a situation where they had to deploy fire shelters. The firefighters, all from the Navajo Interagency Hotshot Crew, walked away from the site and were transported to Summit Healthcare in Show Low where they were treated and released that evening.

A Serious Accident Investigation Team has been formed and will investigate the circumstances surrounding the deployment.

We don’t know why or how the incident occurred, but if recent history holds true, we may never know, thanks to the unintended consequences of Senator Maria Cantwell’s and Representative Doc Hastings’ hastily conceived Public Law 107-203 signed into law in 2002.

But putting aside the unknown details of fire behavior, decisions made on the fireline, and the strategy and tactics being used on the Cedar Fire yesterday, there a few things that we do know.

  • The Type 1 Incident Management Team issued an update titled “Final Cedar Fire Update” on Monday, June 27. It said in part, “While 554 firefighters are working on the fire [Monday] morning, only the Team itself will remain by Tuesday afternoon. The Bureau of Indian Affairs (BIA) will assume command of the fire at 6 A.M. Tuesday.” That Monday update said the fire received rainfall on Sunday and more rain was expected on Monday.
  • The Type 1 Team turned the fire over to the Fort Apache Agency at 6 a.m. on Tuesday, June 28. There was no mention of a Type 2 or Type 3 Incident Management Team.
  • The Fort Apache Agency posted a fire update on Facebook at 1:05 p.m. on Tuesday, June 28 saying the resources on the fire that day were, “Navajo Hotshots, 3 Type 6 Engines, Fort Apache Fuels Type 2 IA Crew.” And, “Fire Personnel will continue to hold and mop up the fire.” These two crews and three engines probably amounted to a maximum of 50 people, plus miscellaneous overhead. This was down from 554 the previous day, a 91 percent reduction in personnel overnight.
  • Candy Lupe, a Public Information Officer with the Bureau of Indian Affairs’ Fort Apache Agency, told Wildfire Today that she was not sure exactly when the incident occurred but estimated it happened around 3 p.m. Arizona time on Tuesday, June 28.
  • The infrared scan of the fire conducted very early Monday morning, June 27, showed “scattered” and “isolated” heat over much of the fire. There was no record of an infrared scan prior to the day shift on Tuesday June 28, but they had been completed every day from June 17 through June 27.

We’re not pointing fingers or attempting to lay blame on anyone. Hopefully the investigation will bring to light some lessons that can be learned.

Carl WilsonThe incident brings to mind the Common Denominators of Fatal and Near-Fatal Fires, developed by Carl Wilson in 1976. Mr. Wilson put two lists together, a four-item list based on his studies of 61 fatal fires, and a five-item list that included an additional 31 near-fatal fires. More information about these lists is in our February 1, 2016 article, Are there 4 or 5 common denominators of fire behavior on fatal fires? Almost all recent wildland fire publications, if they publish the list, only have the four-item list.

These lists are not intended as a quick and easy checklist for investigators, nor are they rules or guidelines that must be followed. They are simply interesting commonalities seen on many fatal and near-fatal fires. Things to think about, not rules that must be adhered to.

Here is the five-item list that includes data from fatal and near-fatal fires:

  1. Most of the incidents occurred on relatively small fires or isolated sectors of larger fires.
  2. Most of the fires were innocent in appearance prior to the “flare-ups” or “blow-ups”. In some cases, the fatalities occurred in the mop-up stage.
  3. Flare-ups occurred in deceptively light fuels.
  4. Fires ran uphill in chimneys, gullies, or on steep slopes.
  5. Suppression tools, such as helicopters or air tankers, can adversely modify fire behavior. (Helicopter and air tanker vortices have been known to cause flare-ups.)”

Wildfire briefing, February 14, 2014

Fire near Wallan
Fire near Wallan, 60 km north of Melbourne. New South Wales RFS photo.

Police investigating 14 suspicious fires in Victoria

Police and fire investigators in Victoria, Australia are looking carefully at 14 fires that occurred over the last week for which arson is suspected. In over 400 fires since Thursday of last week, homes, animals, and crops have been destroyed or killed. A radio and print ad campaign will urge residents to report any suspicious activity to Crime Stoppers.

Wild meteorology terms go mainstream

Melissa Mahony has written an op-ed for livescience.com in which she examines some interesting and sometimes complex scientific weather terms that have crept into the mainstream over the last year or so. Ms. Mahony goes into a little detail about each one, but here is the list… how many are you familiar with?

Doc Hastings, of “Cantwell-Hastings Bill”, to retire

Rep. Doc Hastings
Rep. Doc Hastings

One of the two federal legislators who deserve most of the blame for passing the infamous Cantwell-Hastings Bill, which did irreparable harm to the process of learning lessons after wildfire accidents, is retiring.

The bill was sponsored by Senator Maria Cantwell and U.S. Representative Doc Hastings, and became Public Law 107-203 in 2002. It includes this passage:

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, 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 bill was passed, a firefighter on the Thirtymile Fire was charged with 11 felonies, including four counts of manslaughter. Now firefighters have to lawyer-up after an accident and they sometimes do everything they can to avoid talking to investigators. After the 19 fatalities on the Yarnell Hill fire, the U.S. Forest Service prohibited their employees from providing information to one of the investigation teams, a decision that may have been a result of the environment created by Cantwell-Hastings. Lessons are now much more difficult to learn.

The Cantwell-Hastings Bill and Public Law 107-203 need to be repealed, or at least modified to more resemble the investigations that the military conducts following aviation accidents regulated by law,10 U.S.C. 2254(d). More information about this procedure is at Wildfire Today.

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.

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

New guide for wildfire accident reports requires conclusions and recommendations to be kept secret, intended for internal agency use only.

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).

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.

Three U.K. fire officers charged with manslaughter in LODD’s

In the United Kingdom three fire officers have been charged with manslaughter in the line of duty deaths of four firefighters in a structure fire. Firefighters Ian Reid, John Averis, Ashley Stephens and Darren Yates-Badley died while fighting a fire in a vegetable packing warehouse in 2007.

The 2002 Cantwell-Hastings bill has resulted in witch hunts, criminal charges, attorney fees, and jail time for wildland firefighters who make mistakes on the fireline.

The most infamous example was the 2001 Thirtymile fire, after which Ellreese Daniels was charged with 11 felonies related to the deaths of four firefighters who were on his hand crew. He was facing the possibility of decades in prison, but the Assistant U. S. Attorney, perhaps realizing he did not have a winnable case, allowed Daniels to plead guilty to two misdemeanors of making a false statement in an Administrative hearing. Seven years after the fire, he was sentenced to three months of incarceration in a work-release program and three years of probation.

One of the morals of these stories is, if you make decisions on fires, you need professional liability insurance.

(Note: this is the 35th time Wildfire Today has referenced the Thirtymile fire in articles.)

 

Thanks Dick