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Safe Practices Under Blow-up Conditions — a Training Outline for the Fire Crew Boss — Fire Control Notes, 1958
Basics of Fire Suppression — Lynn Biddison, 1982
Thirtymile Criminal Complaint, 2006
OSHA found that the Forest Service supervisors had violated all ten of the Standard Fire Orders in the National Wildfire Coordinating Group Fireline Handbook and cited the Forest Service for several "willful" violations of the Occupational Safety and Health Act. The Forest Service Safety & Accident Investigation Team concluded that the fatalities were preventable and that a combination of human errors and conditions in the canyon caused the loss of life.
Specifically, the Forest Service identified the following significant causes that led to the entrapment of the crew and the resulting deaths of four crew members:
The Forest Service did not rank the significant causes in order of impact or identify one pivotal decision or omission. However, the Forest Service made clear that the primary errors were (A) the failure to withdraw the crew from the canyon when the initial attack failed and the supervisors realized that the fire was growing, which resulted in the entrapment, and (B) the failure to use available time to ensure that the crew properly deployed their personal fire shelters on the best available site.
Although the status of the land as a component of a national forest does not create federal criminal jurisdiction, the status of the four decedents as Forest Service employees does confer jurisdiction on federal authorities to investigate and, if appropriate, to prosecute the Forest Service supervisors who deployed and directed the fire crew during the Thirtymile Fire. Section 1114 of Title 18 of the United States Code provides in relevant part that "[w]hoever kills . . . any officer or employee of the United States or of any agency in any branch of the United States Government. . . while such officer or employee is engaged in. . . the performance of official duties . . . shall be punished . . . (2) in the case of manslaughter, as provided under section 1112; . . . ." Section 1112(a) of Title 18 defines manslaughter as "the unlawful killing of a human being without malice." This section encompasses involuntary manslaughter, which applies when the death occurs "[i]n the commission of an unlawful act not amounting to a felony, or in the commission in an unlawful manner, or without due caution and circumspection, of a lawful act which might produce death." 18 U.S.C. § 1112(a).
In order to convict Mr. Daniels of involuntary manslaughter, the Government would have to prove five essential elements:
See United States v. Shortman, 91 F.3d 80,81-82 (9th Cir. 1996); United States v. Keith, 605 F.2d 462, 463 (9th Cir. 1979); 9th Cir. Crim. Jury Instr. 8.92 (2003). Specifically, Mr. Daniels, the Crew Boss Trainer and the Incident Commander, while lawfully engaged in suppressing a wildfire, wantonly and with reckless disregard for human life exposed Forest Service firefighters under his command to an obvious risk of death by directing them to fight the wildfire in a manner that violated standard or accepted safety procedures.
During interviews or discussions with the Forest Service Safety & Accident Investigation Team, OSHA, the Forest Service Administrative Review Team, and the Forest Service Oral Reply Team, Ellreese Daniels did not assert that he was unqualified or not properly trained for the job of Incident Commander on the Thirtymile Fire or that Forest Service fire managers gave him an assignment on July 10, 2001, that was beyond his capabilities. On the contrary, during his recorded interview with representatives of the Safety & Accident Investigation Team and OSHA two days after the fatalities, Mr. Daniels stated that he is a Lead Forestry Technician and that his "main job is initial attack supervisor." He further said that he had 24 years of experience fighting fires and that he was a Crew Boss Trainer. Mr. Daniels explained: "I'm Division/Group Supervisor qualified, what I do is when new crew bosses come into the organization, I was appointed as a new crew boss trainer, just because of the number of years that I have and experience that I have, and the trust level of some of the overhead teams." He told the Administrative Review Team that he had been a Division Group Supervisor for about five years. In the declaration for the Administrative Review Team, Mr. Daniels explained that "[m]y job as a Crew Boss Trainer is to shadow the Crew Boss Trainee and answer questions and if he or she didn't feel comfortable then I would take over."
Barry George, the Methow Valley Ranger District's Assistant Fire Management Officer, traveled to the the Thirtymile Fire on the afternoon of July 10th. Mr. George met with Mr. Daniels after Mr. Daniels and Mr. Kampen had disengaged NWR #6 from firefighting operations and withdrawn the crew to the lunch spot on west side of the river. Mr. George asked Mr. Daniels if he was comfortable acting as the Incident Commander (IC) for the fire that afternoon. Mr. Daniels gave Mr. George an affirmative response.
Every firefighter, and especially supervisors, are familiar with the ten Fire Orders and eighteen Watch Out Situations. I interviewed OSHA Compliance Officer Michael Bonkowski, who participated in the investigation of the Thirtymile Fire and who interviewed Mr. Daniels on July 12, 2001, and August 9, 2001. Mr. Bonkowski informed me that the Fire Orders and Watch Out Situations are accepted by federal and by many state fire fighting agencies and that OSHA views them as industry standards for safe wildland firefighting operations.
When Mr. Daniels permitted the engines, which had just arrived, to proceed up the canyon and then he took two squads up the canyon to assist the engines with spot fires, Mr. Daniels violated several Fire Orders:
Mr. Daniels also ignored several Watch Out Situations:
Given the steep canyon walls, and the vegetation, the road was the only viable escape route from the canyon. Mr. Daniels acknowledged in the videotaped interview on July 12, 2001, that green foliage had been burning earlier in the day, which he recognized was unusual. Moreover, Mr. Daniels and Mr. Kampen disengaged the fire earlier in the day after trees began torching, which generated airborne embers that caused spot fires. In the videotaped interview, Mr. Daniels said that the fire had made "pretty intense" quarter-mile runs; that the relative humidity had fallen to about 8 or 9%; that the wind was about 17 mph; and that the winds were pushing up canyon; after he disengaged the fire on the east side of the river and pulled the crew back to the lunch area. These conditions would support extreme fire behavior. Nevertheless, Mr. Daniels re-engaged the fire without posting a lookout who could see what the fire was doing. Similarly, Mr. Daniels did not send anyone to scout the fire before re-engaging. He did not inform Gregory House in Lead 65 that the engines or NWR #6 was engaging the fire. Mr. House told me that he assumed Mr. Daniels and his crew were at the heal of the fire. He could not see the engines or the firefighters in their yellow uniforms. If Mr. Daniels had told Mr. House that he intended to re-engage the fire by moving up the canyon, Mr. House would have told him that it looked bad.
When Air Attack returned over the canyon about ten minutes before the entrapment, Gabe Jasso contacted Mr. Daniels. He too assumed that NWR #6 was still disengaged. Mr. Daniels did not inform Mr. Jasso of the location of the engines or the crew. Mr. Jasso took photographs shortly before the entrapment which show that the canyon floor was covered in smoke.
By violating several Fire Orders and ignoring several Watch Out Situations, Mr. Daniels' conduct resulted in the entrapment. When he retreated to a location up the canyon, Mr. Daniels again engaged in gross negligence by failing to prepare the crew for a possible deployment. Even though Mr. Daniels had been surprised by the intensity of the fire behavior earlier in the day and had been surprised by the fire when it entrapped a portion of the crew, he ignored the possibility of a burnover and instead told crew members that he expected the fire to burn around them.
I interviewed firefighter Beau J. Clark. He was assigned to Squad #1, with Tom Craven as his Squad Boss. He joined the Forest Service in 2001; the Thirtymile Fire was his second fire. Mr. Clark told me that recognizing and being aware of weather conditions was part of Fire School Training. Although he knew that weather for the day was very hot, dry, and low relative humidity, Mr. Clark depended on his supervisor to direct him through whatever situation might arise. He commented that a person on his second fire is not going to question the decisions and the directives of a crew boss with 25 years of experience even if the weather conditions create danger because they would support extreme fire behavior.
I interviewed Jason W. Emhoff. He was assigned to Squad #1, with Tom Craven as the Squad Boss. The summer of 2001 was his third season fighting fire with the Forest Service. Mr. Emhoff expressed the opinion that Mr. Daniels should have taken into account the make up of the crew before re-engaging. There were so many rookie firefighters and also the crew was comprised of people from different ranger districts who had never worked together. He felt Mr. Daniels should have briefed everyone when they arrived at the deployment site, told them what the plan was, and asked for questions from the group.
I interviewed Scott Scherzinger, who was a sawyer assigned to Squad #1 with Tom Craven as the Squad Boss. Mr. Scherzinger explained that although the crew initially believed that the fire would bum by them, the crew began to become concerned they might have to deploy when spot fires began occurring on the hillsides and it started raining down embers. Mr. Scherzinger and Beau J. Clark asked Mr. Daniels what was going to happen. According to Mr. Scherzinger, Mr. Daniels replied that he hoped that the fire would blow by them. They knew where the fire was coming from and could see it getting darker from the smoke. Mr. Scherzinger said that the smoke column was building, there were 200-foot flames through the tops of the trees, and they could hear the fire coming through the trees. Then the embers started coming down. The fire progressed from spot fires to flames coming over them, all within about 5 to 10 minutes, more likely 5 minutes. It went from a situation where conversation was still possible to sounding like a freight train was coming over them. According to Mr. Scherzinger, he made his own decision to deploy his shelter. He kept his pack on when he entered the shelter, although the training is to remove the pack and to leave the pack outside the shelter. Mr. Scherzinger had fusees in his pack, which fortunately did not ignite. He did place the saw and the fuel in the van before the burnover.
I interviewed Elaine A. Hurd, who was assigned to Squad #2 with Tom Taylor as the Squad Boss. She was a rookie; the Thirtymile Fire was her first fire. There was no preparation for deployment; neither was there any preparation of the site for deployment. No one ever made sure that each person had gloves, a helmet, and other items needed for deployment or that each person had taken their pack off and set it out of the way. Mr. Daniels only told them, initially, to "get your shelters out and shield yourselves", which they did at first, but then got inside the shelters shortly. Ms. Hurd stated that she believes that they all should have been in a straight line to deploy. She remembered from somewhere, guard school (basic firefighter training) maybe, that deploying in a line helps to deflect the heat better.
I interviewed Entiat Hotshot Superintendent Marshall Brown. Corroborating Ms. Hurd, Mr. Brown stated that the proper procedure for a deployment is to line the crew up in a row to maximize the reflective power of the shelters. During a discussion with Ken Snell, a member of the Oral Reply Team and the current Director of Fire and Aviation for the Forest Service's Pacific Northwest Region, he confirmed that personnel are trained to group the shelters together to enhance their reflective power.
During interviews, several current and former Forest Service employees told me that one segment of the wildland firefighting community views deployment of fire shelters as an occurrence to be avoided because it is an acknowledgment of an error that led to the event and because it brings into question the toughness of the firefighter. When I interviewed Gabe Jasso, he commented that Mr. Daniels sounded almost apologetic when Mr. Jasso re-established radio contact and asked if the crew had deployed shelters.
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