Fire and punishment: Penalties for starting big wildfires vary

2011-05-10T08:30:00Z 2011-05-10T08:57:41Z Fire and punishment: Penalties for starting big wildfires varyCYNDY COLE Sun Staff Reporter Arizona Daily Sun
May 10, 2011 8:30 am  • 

Transient Randall Nicholson is now serving more than a year in state prison and faces about $12,000 in penalties for starting last June's 282-acre Hardy Fire that caused the evacuation of southeast Flagstaff.

Nicholson had been warned repeatedly not to camp inside city limits before coals from a cooking fire ignited the forest.

Contrast that with 2006, when fire managers on the Kaibab National Forest allowed a lightning-ignited fire to burn into late June, until one day erratic winds made it a serious wildfire.

Tens of thousands of acres of forest near the North Rim of the Grand Canyon were severely burned; no one faced criminal or civil penalties, and the district ranger later moved to another federal job.

And one year ago this week Arizona Game and Fish employees saw underbrush ignite repeatedly as they welded on a water tank on a day Timberline experienced 70 mph winds on a Red Flag Warning day.

Within minutes, the flames erupted into a raging wildfire, burning about 500 acres near Wupatki Trails northeast of Flagstaff.

Game and Fish says it has changed its procedures on Red Flag Warning days but that the employees didn't break any rules at the time and were prompt in reporting the fire. Both employees still work for Game and Fish.

If there's one consistent theme here, it's that there is no consistent rule covering who is punished and who is spared following major human-caused wildfires, including prescribed fires monitored by government agencies that nevertheless grow out of control.

Prosecutors contend that's because each case is different and cannot be compared to the next.

In those cases when a responsible party is identified -- which has not happened in last June's Schultz fire -- possible penalties range from none, to mandatory community service, to prison time and fines.

Penalties for willfully setting timber afire can lead to 5 years in prison and fines of as much as $250,000.

Penalties for leaving fires unattended or violating fire restrictions can mean up to 6 months in jail and fines of as much as $5,000.

Other charges sometimes apply.

A fire-starter's intent, past criminal history, willingness to report or fight the fire and unique circumstances are some of the considerations federal prosecutors weigh in deciding whether to pursue a criminal case, but there are no hard guidelines.

"Every case -- whether it's a huge fire that was started by an incident commander or whether it's a campfire that only burns a quarter of an acre -- every one stands on its own facts," said Patrick Schneider, assistant U.S. Attorney for Arizona in the Flagstaff office.

"If you did everything you thought you should and it still got away from you it doesn't mean it's OK, but there's a big difference between that and someone who starts a fire" intentionally, Schneider said.

Former Coconino National Forest fire boss Van Bateman would be an example of an intentional fire-starter, and he served prison time.

But the case histories for human-caused wildfires reveal a disparity between penalties for government employees and private citizens in cases where each unintentionally sets a wildfire.

Federal prosecutors pursue civil cases most often by examining whether a fire-starter has an insurance policy or wealth to go after to pay the federal government back for its losses.

Such civil cases aren't so appealing when federal prosecutors are eyeing a federal or state agency because that creates only a shift of taxpayer dollars from one agency to another.

It can also be more difficult for attorneys to prove who knew or did what in a large agency compared with a small group of campers.

Buck Wickham is a fire manager for the Coconino National Forest and the Flagstaff area national monuments, and he thinks government employees see strict penalties, after having seen colleagues in other states prosecuted following unintentional mistakes in wildfires.

"We are held accountable," he said.

Here are some examples of fires gone wrong in recent years, and what happened afterward:

RODEO-CHEDISKI FIRE

Valinda Jo Elliott and Leonard Gregg each started fires that combined to form the biggest wildfire in Arizona history.

The Rodeo-Chediski fire burned 469,000 acres in eastern Arizona, destroyed hundreds of homes and forced about 30,000 people to evacuate in 2002.

Gregg was a tribal firefighter who hoped to gain work by starting the fires, prosecutors said.

His attorney argued Gregg had a mental impairment, but he received the maximum prison sentence of 10 years and was ordered to pay $28 million in restitution after admitting to two counts of intentionally setting timber afire.

He is due to be released from prison in June.

Elliott said she had been lost on the Fort Apache Indian Reservation for two days when she used a lighter to set fire to a bush to signal a news helicopter.

Elliott was not federally prosecuted, as the U.S. Attorney for Arizona at the time, Paul Charlton, found she had started a fire while stranded and had intended to put the fire out after the news helicopter landed.

"A reasonable person could have expected this fire to remain contained," Charlton told residents from Heber-Overgaard in 2002.

The fire conditions were about the same in the region, but the cases varied in that Gregg was seen as lighting a fire for personal gain, and Elliott was seen as doing it for rescue.

X FIRE

Three campers from Texas told a judge they believed their campfire was out when they left camp near Tusayan to visit the Grand Canyon in April 2008.

Daniel A. Burroughs, 23, Michael Z. Dunn, 24, and Lindsey Jo McKinley, 24, had put the last log on the fire at about 9 p.m. the night before while camping in the Ten-X Campground , awoke to a little smoke, and waited four or six hours more before leaving camp, as they had no water to put on the fire.

There was a very large clearing around the campfire, which was outside of the developed campground, and the fire was located in a ring, said the prosecutor on that case.

Instead, the fire sparked to life on the Kaibab National Forest on a windy day, burning more than 2,000 acres and costing about $500,000 to fight.

The campers faced six months in jail and fines of $5,000 apiece.

Instead they each pleaded guilty to one count of leaving a campfire unextinguished and unattended and were each ordered to do either 100 hours of community service or successfully complete, then teach, a Leave No Trace course.

U.S. Magistrate Judge Mark E. Aspey talked to the campers about another campfire-ignited wildfire, the Leroux fire on the San Francisco Peaks in 2001.

"I think you've learned a hard lesson," he told them.

One camper said he would always put water on a campfire before leaving in the future. Aspey said the government would not pursue criminal fines against the three.

FOURTH FIRE

With a number of firefighters standing by, the city of Williams decided to proceed with fireworks near some city wastewater treatment ponds in July 2007 while the surrounding Kaibab National Forest was in "extreme" fire danger.

Some minutes into the show, multiple fires in the nearby forest had ignited from the fireworks and the show was canceled.

About 50 firefighters fought the blaze, which began in pinyon-juniper north of Interstate 40 on city property but soon spread to ponderosa pine on the national forest.

The office of the U.S. attorney for Arizona sent subpoenas to city of Williams officials.

A grand jury investigation was opened. No indictment resulted.

WARM FIRE

Lightning struck the Kaibab National Forest, starting a fire on or about June 8, 2006.

Fire managers believed summer rains were only a few weeks away, and they allowed the fire to burn much like a prescribed fire, because it met the criteria for a fire that could benefit the landscape.

Different teams of firefighters came and went, and one of the new teams didn't get a memo outlining goals the fire was supposed to achieve.

The fire spread east of Highway 67 as approved by the district ranger, even though there had been some concern about allowing the fire to burn here.

This fire, called the Warm fire, began competing with others nationwide for firefighting employees by mid-June, and the Brins fire evacuated Oak Creek Canyon that month, to become firefighters' top national priority.

The Warm fire was still considered a managed fire up until June 25, when winds pushed it across some 39,000 acres.

Fire managers did not notice that the fire flared up sharply at times, an internal review of the incident found in calling for more training, more up-to-date weather and fuels information and for sticking to pre-planned goals.

There was no criminal or civil case filed.

The district ranger later transferred to another job in a move the district's current spokesman called "purely voluntary" before retiring.

TWIN FIRE

Weighing wildfire risk on Bill Williams Mountain and threats to the city of Williams' water supply after a large fire, the Kaibab National Forest began a campaign in the mid-1990s to do prescribed burns across tens of thousands of acres, including some around Williams.

Burning on the verge of the neighborhood was difficult because firefighters were waiting for unusual weather to keep the smoke out of neighborhoods, and they set a burn on a day with a narrow window of the weather they wanted.

The Twin fire became a wildfire that October of 2009, burning more than 900 acres, injuring two firefighters, evacuating 64 homes and costing more than $2 million to fight.

Kaibab National Forest employees did something uncommon after the fire: They held a public meeting and apologized to the audience for the evacuations and vowed to reconsider the forest's fire policies. Various staff in charge of the fire explained to the public what had happened hour-by-hour, what went wrong, and why, then stayed until every question was answered.

In addition to shifting wind, data about the fire risk on the adjoining land was outdated, creating a more hazardous scenario than was apparent to firefighters.

There was no prosecution in the case.

89 MESA FIRE

Arizona Game and Fish is working on a payment to the Coconino National Forest (essentially a transfer of taxpayer dollars) to compensate the agency for firefighting expenses as part of last May's 89 Mesa fire in Timberline.

The fire occurred while Game and Fish employees were welding, and they were forced to put out small brush fires several times before one got away from them.

"Their activities were found to be consistent with policy and direction, at the time," state Game and Fish spokesman Jim Paxon. "Procedures for welding and any sparking activity have been modified ... especially in areas with ground fuels and in times of high fire danger ... Remember, our folks called the fire in, gave directions to their location, attempted to suppress the fire and stayed at the scene when the Forest Service fire units arrived."

The 89 Mesa fire grew to about 550 acres and cost about $345,000 to suppress.

No agreement has been released in the case.

Archived stories by the Associated Press were used in preparing this story. Cyndy Cole can be reached at 913-8607 or at ccole@azdailysun.com.

Campfire safety

* Clear all flammable material away from the fire for a minimum of 5 feet in all directions.

* Make a fire only if you have a shovel and sufficient water to put it out.

* Have a responsible person in attendance at all times.

* Never leave your campfire unattended.

* Avoid making a campfire during the windy part of the day, or on a "Red Flag Warning" day.

* To make sure your campfire is out, drown with water and stir with dirt, making sure all burned materials are extinguished. Feel with your hand to make sure it's out cold.

Red Flag Warnings are posted on the National Weather Service website at http://www.wrh.noaa.gov/fgz/

-- Coconino National Forest

Copyright 2015 Arizona Daily Sun. All rights reserved. This material may not be published, broadcast, rewritten or redistributed.

(7) Comments

  1. FIREBUG HATER
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    FIREBUG HATER - June 02, 2014 8:42 am
    I can't drive down the road randomly shooting my gun out the car window and later claim the person I killed isn't my fault because I wasn't aiming at them. I can't hunt game all year long with no hunting license. Yet we allow people to do things that are exponentially more destructive and pawn it off as ignorance. This state needs to actively pursue fire violator and fine them maximum amount. The money for these fines need to be redirected to forestry fire fighting equipment.
  2. Christopher J Kraft
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    Christopher J Kraft - May 11, 2011 6:30 pm
    So the fire ban is for what? Because none of these fires were started by campers outside of fee areas. Thank you Forest Dis-service for continuing to limit and or block access to our public lands and for bowing to the the locals who build in the woods and want the rest of us to suffer for it. All homes come with risk but apparently some peoples are more important than others. Keep the lands open and punish the abusers otherwise just shut the forest down and we will enjoy the view from afar.
  3. Common Sense
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    Common Sense - May 11, 2011 6:29 am
    This entire situation is hypocritical by many agencies, in particular, the City of Flagstaff. The city and police department are well aware of 3-4 popular transient camping areas and choose to do nothing about them.
    Some day another Hardy type fire will start, but instead of being contained, it will spread within the city and burn people's homes and businesses.
    Why won't the city enforce the no camping rule within city limits?
  4. Concerned
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    Concerned - May 10, 2011 6:54 pm
    azredwolf; I think many District Rangers are not qualified to make a critical fire decision, but that does not mean they are not qualified to to the job of District Ranger. I do think there are few people qualified to make the decision to start a fire period. Too many unknowns and sometimes too many chances taken. They should be held accountable to some degree because that is their job and they should always error on the side of safety to the public and the forests.
  5. FactChecker
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    FactChecker - May 10, 2011 11:10 am
    One more thing, as a society, we have generally made it a priority to rescue lost hikers, snowbound hunters, stranded campers -- rarely do we send them the bill for their rescue, preferring instead to save even the foolhardy and spread that cost across whole. That's why Valinda Elliot doesn't get prosecuted, despite her poor judgment. It's a balancing to be sure -- our American spirit for adventure with the demands of acting responsibly, and holding people accountable for their actions.
  6. FactChecker
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    FactChecker - May 10, 2011 11:02 am
    One point to remember is that in the cases involving government employees, those employees are usually acting in the scope of their employment. Did they exercise good judgment? Unlikely, but they were still "doing" a job assigned to them. Operating in the scope of your employment usually makes this a civil matter, not criminal, Bateman and the firefighter excluded. Better question might be how do prosecutors prove negligence in order to punish govt. workers who make bad decisions while working.
  7. azredwolf
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    azredwolf - May 10, 2011 9:09 am
    I work for the agencys. I believe some were right in burning but I also believe the one on the north rim was wrong. That district ranger was under qualified for the job. I think things are better now and we should be held more accountable for our actions. We are public servants. Its sad that our public lands suffer.
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