Fire crews face possible liability after deadly blazes

BILLINGS – Firefighter Kenneth Jordan’s ambition once was to lead one of the nation’s elite teams of specialized wildfire and disaster incident managers. The challenge and responsibility seemed appealing.

Not anymore. Not since a wildfire in Idaho three years ago left two firefighters dead – and their fire commander facing potential federal charges for their deaths.

These days, Jordan is thinking more about retirement.

“For an incident commander to have to look after everybody on a fire is ridiculous. It’s a ridiculous theory,” he said.

Jordan, like many firefighters, doesn’t lack confidence in his abilities. Still, he worries about being held criminally liable if a member of the California Hotshot crew he supervises is killed.

The Cramer fire in Idaho made that fear very real. And firefighter advocates warn that concerns about civil or criminal liability could keep firefighters from seeking or accepting promotions at a time when the federal government is struggling to fill fire crews.

The issue of liability also has raised concerns among firefighters about whether the state and federal agencies they work for would stand behind them if people die or houses burn on their watch.

“You want to talk about putting a big, damp blanket over fire leadership? That happened in Cramer,” said Dick Mangan, the Missoula-based president of the International Association of Wildland Fire and a firefighter.

A high-ranking U.S. Forest Service official says such fears are overblown; so do the fathers of two firefighters who died in separate fires after being overtaken by flames. The parents say they’re seeking accountability, something they believe has been lacking.

“You can’t do anything to them,” Bill Allen, whose son, Jeff, was killed on the Cramer fire, said of Forest Service managers and firefighters.

“If they’d abided by their own regulations,” he said, “this never would have happened.”

For years, firefighters who made mistakes involving deaths or accidents typically faced only administrative sanctions. The incidents themselves largely were viewed as learning or training opportunities.

“You would be investigated, not to find fault, but to make changes, so people wouldn’t make the same mistake again,” said Mangan, a retired Forest Service employee who says he helped conduct such investigations. “You would go into the investigation and ask people what happened, and they’d tell the truth – there was no consequence of jail, no need for a lawyer.”

But in 2002, a year after four firefighters in Washington state died in one fire, Congress passed legislation requiring an independent investigation whenever a Forest Service firefighter is killed because of fire.

The law was tested in July 2003, when Jeff Allen and Shane Heath were overtaken by a blaze in rugged central Idaho.

According to investigators, Heath and Allen were clearing trees for a helicopter landing site on July 22, unaware there was new fire in a drainage below. After smoke began blowing over them, they called for a helicopter – four times – but it couldn’t land because of heavy smoke. They tried running up the ridge, but were caught by flames.

Investigators found basic safety errors by fire managers – failure to deploy lookouts, failure to monitor Allen and Heath or notify them of the fire’s spread, and failure to order them to a safety zone, according to the report by the Agriculture Department’s inspector general.

The inspector general’s office concluded the deaths may have been prevented if firefighting policies and tactics had been followed, “particularly by the IC.” Their findings were reviewed by prosecutors, who began making a case against incident commander Alan Hackett.

In a deal with prosecutors to avoid criminal charges, Hackett agreed to a “pre-trial diversion” program that cost him his Forest Service job and required he serve 18 months’ probation. He completed that term this spring.

Hackett, in making the agreement, admitted no guilt, according to his attorney in the case, Aaron Thompson. Hackett did not return a telephone message.

Thompson believes Hackett was made a scapegoat in the case. He also said the Forest Service abandoned Hackett in his legal fight.

Officials have taken steps to help assure firefighters they would have legal counsel if sued or charged for actions that fall “within the scope of their employment.”

The Forest Service’s director of fire and aviation, Tom Harbour, said the emphasis is on telling firefighters that if they do their jobs right, the agency will stand with them.

George Breitsameter, an assistant U.S. attorney in Idaho who was involved in the Cramer case, acknowledges firefighters’ fears. But he believes criminal liability cases will be rare.

However, an official with the U.S. attorney’s office in Spokane confirmed there remained an open investigation into what happened in the fatal fire there, which gave rise to the 2002 liability legislation.

What worries Mangan is the potential for lawyers to second-guess fire managers’ decisions and training. Firefighting can be a dynamic, dangerous business and quick decisions aren’t unheard of, he said.

Bill Allen said he could have accepted his son’s death if it had been an accident, but he doesn’t believe it was.

“If anything good has come of this so far, I’m not sure what that would be,” he said.

While the 2002 law may have been well-intentioned, firefighters are responsible for their own safety, Mangan and Jordan contend.

“It just sends a bad message and makes the agency and culture dependent on someone else on the fire line – my opinion,” Jordan said. “I can’t stand people dying on a fire line and blame being placed on the wrong people.”