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

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

09 December 2013

published by

USA — 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).

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