Down to the Last Ember:


This essay by John N. Maclean was published by the High Country News on September 09, 2008 in their "Writers on the Range" series.

Behind daily headlines about bigger and more costly wildland fires, the firefighting community has been sweating out the issue of criminal liability for serious mistakes made on the fireline.

It's not just a firefighter issue:  The public has a stake in how well firefighters protect lives, property, and forest values. Firefighters who know they could be sent to jail for what's later determined to be a mistake may be less aggressive in attacking a fire, and that could prove more dangerous than hitting the fire hard from the outset. The immediate trigger for concern has been the prosecution of Ellreese Daniels, a Forest Service incident commander. He worked the Thirtymile Fire that took the lives of four young firefighters in a narrow canyon in north-central Washington on July 10, 2001, seven long years ago.

Thirtymile blowup

Daniels was one of 11 fire managers the Forest Service set out to discipline for a series of blunders that led to the deaths. Daniels and two others were to be fired, but virtually none of the disciplinary actions held up on appeal, and no one was fired. Daniels, who had been given another fire assignment until survivors of the Thirtymile blaze complained, was relegated to a warehouse job.

Five years after the fire, Daniels was the only fire supervisor indicted -- in federal District court in Spokane on 11 felony charges, including four counts of involuntary manslaughter. It was the first-ever criminal prosecution of an incident commander for negligence on the fireline, absent malice.

Daniels, who worked for the Forest Service for 24 years before the fire, was one of the few agency blacks willing to put up with the isolation of small-town life in the rural Northwest. The truth is that Daniels was pushed into a fire supervisory role, and he was not equipped to handle a big fire that put many lives at risk. U.S. Attorney James McDevitt denied any racial motivation to the prosecution; he said he did not even know Daniels was black until after he had indicted him.

Every responsible firefighter believes in accountability on the fireline; that is how safety lessons are learned. But should anyone be indicted when wildfire becomes unexpectedly violent? Every experienced firefighter knows that fire is volatile and dangerous, sometimes fatally so. Being jailed for having a bad day at work is an intimidating prospect.

The immediate result? Fewer firefighters are willing to become incident commanders. The International Association of Wildland Fire tested reactions in a survey of about 3,000 members, nearly all seasoned firefighters, and found that more than a third, or 36 percent, had decided to become "less available for fire assignments." Another 23 percent said they would refuse the job of incident commander.

U.S. Attorney McDevitt, himself a former firefighter, defended the prosecution on grounds that Daniels's negligence amounted to reckless disregard for life. Daniels recommitted his crew to the fire in late afternoon as it blew up, and after they'd backed off to a place of safety because of dangerous conditions. Then, after he and 13 others -- plus two civilians -- were cut off by spreading flames, he failed to take adequate steps to prepare for the fire's inevitable passage. McDevitt also charged that Daniels lied to investigators afterward to shift the blame onto the fallen firefighters.

"Something had to be done," the prosecutor said.

Last April, under threat of a chancy six-week trial, the 11 felony charges were dropped. Instead, Daniels agreed to plead guilty to two misdemeanor charges:  that he had lied about ordering the doomed firefighters to move to a safer place, and about his assertion that they had disregarded the order.

On August 20, Judge Fred Van Sickle sentenced Daniels to three years of probation and 90 days of work release. The judge also ordered him to submit to counseling for alcohol and substance abuse, and never to fight fire again.

Thirtymile memorial

Daniels's negligence was so extreme, McDevitt said afterward, that it makes a similar prosecution "highly unlikely." However, Daniels's public defender, Tina Hunt, correctly noted that the case sets a precedent:  No one can predict what another U.S. attorney might do.

The Daniels prosecution ended without clear victory or defeat for either side. Its effects, though, are bound to linger in the minds of firefighters, the women and men who must make instant decisions under extreme conditions that affect the lives of everyone in fire country.