In one of my jobs with the Forest Service, I had the FOIA people working on my staff. Through these folks, I gained some understanding, and experienced a some small amount of what it is to work in FOIA. It’s a strange job in that you have a widely varying workload (with no upper bound) and required deadlines, but only so many knowledgeable people available to work. And it tends not to be glamorous or highly valued, with sometimes disrespectful folks in the public to work with. So here’s a shout out to them!
This story from Wildfire Today also reminded me of the gap between “doing” jobs (in this case, time was a factor) and “critiquing” jobs (at anyone’s leisure). We need to introduce more fire into the landscape; but if people in hindsight are seen (in a courtroom) to have made “mistakes” in doing it.. well then. People are less willing to take chances, and so the idea of restoring fire to the landscape possibly becomes impossible.
A county in Oregon has filed a lawsuit against the U.S. Forest Service that is related to the Beachie Creek Fire that burned over 193,000 acres east of Salem, Oregon in September.
The Davis Wright Tremain law firm in Portland submitted a request September 28 on behalf of Linn county, requesting records related to the fire. The request cited the Freedom of Information Act (FOIA) which requires a federal agency to respond within 20 business days, unless there are “unusual circumstances,” or notify the party of at least the agency’s determination of which of the requested records it will release, which it will withhold.
About 12 percent of the Fire was in Linn County, with the rest in Marion and Clackamas Counties. The Linn-Marion county line is near Highway 22 close to the communities of Lyons, Mill City, Gates, Detroit, and Idanha where many structures were destroyed.
The Forest Service replied to the FOIA in a letter dated the next day, saying (and this is an exact quote):
“Please be advised your request is not perfected at this time and we will be reaching out to you to discuss clarification once it has been to thoroughly review.”
After not receiving the documents or apparently hearing nothing further from the Forest Service, the attorneys for Linn County filed a lawsuit November 2, 2020 in the U.S. District Court in Eugene, Oregon.
Here’s (some of) what the FOIA asked for:
The information Linn County requested from the Forest Service was about the agency’s policy for managing fires, and the Beachie Creek Fire in particular. Some examples:
Contracts and documents relating to arrangements made with outside contractors for firefighting equipment and training in the Pacific Northwest;
Maps and records depicting all former “owl circles” and all locations of other endangered species habitat in the 2 years immediately preceding the Beachie Creek Fire;
Records declaring the Beachie Creek Fire a Prescribed natural Fire, a Management Ignited Fire or a Wildfire, and all records discussing or relating to that declaration;
Records illustrating the Suppression Response for the Beachie Creek Fire;
Records illustrating the Control Strategy for the Beachie Creek Fire;
Records relating to inputs to and outputs derived from the FLAME computer program or any other predictive computer analysis for the Beachie Creek fire for the period commencing on August 1, 2020, through the date records responsive to this request are provided;
All Social media posts discussing or describing the Beachie Creek Fire;
All current Forest Service Manuals in effect immediately preceding the Beachie Creek Fire and effective throughout the Fire Event.
Here’s Bill Gabbert’s take:
The Forest Service is notorious for flagrantly violating the law in regards to the mandatory standards for providing information requested with a FOIA. They have been known to stall for years, or have simply refused to comply. Not every citizen seeking information from their government has a petty cash account with $400 for the filing fee, or the tens of thousands of dollars it could take to pay attorneys for a FOIA lawsuit. Our citizens deserve transparency. However, it also seems unusual to file a lawsuit approximately 26 business days, as Linn County did, after initially submitting the FOIA — just 6 days over the 20-day requirement.
(I’m not sure what the $400 would be for.)
The comments and references to other fires are also interesting. Especially related to size of fires, and changes in suppression strategies over time.
The $400 is what it costs to file a lawsuit.
Thanks, Moose!
The $400 is probably an administrative fee assessed by the Willamette NF to comply with the FOIA request. I’m sure the Beachie Creek, Lions Head, and Holiday Farm Fires that occurred on the Forest from Aug to Oct have left FS folks reeling, trying to deal with the aftermath including FOIA requests, and many more lawsuits will probably follow.
During the mid-80’s I was employed on the Detroit RD, working in Road maintenance and Fire. Though the location of the initial start of the Beachie Creek Fire doesn’t look too far from major roads, accesability would have been difficult. Extremely steep terrain and poor road conditions as well as nearby Wilderness were probably factors in initial suppression. History also probably played on role in that small fires in the area never really went anywhere, even though it was prime fire season in the cascades, normal fuel moistures would have been moderate. Climate change and and a very unusual wind event changed all that, probably beyond what local folks could have imagined. Was the FS caught with their pants down? Time and more lawsuits will shed more light.
I’m not sure that lawsuits are the best way of shedding light..I’d tend to go with an after action report followed by open discussion. I’ve seen lawsuits obfuscate and lead to hiding facts that don’t match what a given side wants to portray.
FOIA only allows charges for the actual costs of producing the documents, and there is no charge if they were “primarily benefiting the general public” (which may or may not be the case here). I agree that FOIA is a difficult job; it’s often “other duties as assigned” that compete with what your boss told you was your priority, and you can’t plan for it. But a good manager should have been able to negotiate something short of immediate litigation (unless of course they want to hide something).
Your point about “history” is a good one not mentioned in the article that would be relevant to any litigation based on negligence – whether it was reasonable to do what they did.
I think this point (from the Statesman article) is also important: “Firefighter safety has been emphasized since 19 Granite Mountain Hotshots were killed in an Arizona wildfire.” It doesn’t seem like a court is likely to say lives should have been risked.
I think these cases are hard for plaintiffs, but they are entitled to see the reasons why decisions were made. They would have to show that the fire could have been suppressed (which doesn’t appear to have been the case), and if so that it wasn’t reasonable under the conditions to choose to let it burn. But I’m not seeing anything here that indicates this particular fire was an example of “taking chances.”
Every document Linn Co requests is on a government-owned server. Many of the documents Linn Co seeks are freely available now, e.g., the Forest Service Manual and Handbook. As for the other documents, in this day-and-age, the default should be “open and available,” with no request or permission required. Just sign on to the Forest Service server and search.
Insofar as a document may fall within a FOIA exemption, the government can tag it “do not disclose,” accordingly. Otherwise, throw open the doors and invite everyone in. This would increase public understanding, decrease Forest Service FOIA processing costs, and, perhaps, lessen paranoia and baseless conspiracy theories.
Andy.. I agree with you to say me extent but I think the devil is in the details.. like maybe all final documents produced, but not all emails.. or anyway would be interesting to pilot something along those lines.
I believe that the FS could of put this fire out when in started if they had wanted to. The winds that exploded this fire was an extreme event, but strong east winds that time of year are not unusual.
It seems that firefighting philosophy that let this fire burn is the same philosophy that was use when the Chetco Bar fire exploded a few years ago when an east wind came up.
Each year I hope the FS has learned not to let fires burn during the increasing warm and dry summer months after disasters like these. But each year it happens again.