FYI..to all TSW folks..
To all Region 6 employees,
Many of you have probably seen the news and social media coverage about one of our employees arrested for leading a prescribed fire that slopped over onto private lands. There’s a lot of context and additional information about this incident that would be inappropriate to share publicly at this time, but none of that information revolves around the work conducted during the prescribed burn, the professionalism of our employees, partners, and contractors, or how the burn sloped over onto private land.
While I can’t go into specifics around the arrest of the burn boss, I want each of you to know that all times he, and the entire team that engaged on the Starr prescribed fire, had, and continues to have, our full support.
Communication and coordination between all levels of the Forest Service and the department were effectively in place within hours of this incident. This included local, regional, and national level leadership, Fire and Aviation Management leaders, legal counsel, and law enforcement – which reflects our commitment to this important work and our promise to share in the accountability for any and all outcomes.
I spoke with the Burn Boss last night and expressed my support for him and the actions he took in leading the prescribed burn. In addition, I let him know it’s my expectation that the Forest Service will continue to support him throughout any legal actions.
No one person or crew is in this work on their own. I need you to know that I am with you now and into the future, whatever that future may look like.
I trust and respect our firefighters and employees who carry out the complex and dynamic mission of applying fire treatments to the landscape. They are well-trained, well-informed, and well-equipped for the mission.
Prescribed fire is critical to our responsibility to improve the health of our natural landscapes and the safety of our communities, and we are committed to continuing this work together. Thank you all for staying the course.
Glenn Casamassa
Regional Forester
To everyone who neighbors with the USFS:
Many of you have probably seen the news and social media coverage of two landowners arrested for conducting a backfire on their deeded property that slopped over onto government-owned lands. There’s a lot of context and additional information about this incident, including how the USFWS began constantly harassing the landowners immediately after being granted a first right of refusal on the landowners’ coveted property as part of a negotiated settlement agreement, but that would be inappropriate to share publicly at this time, but none on that information revolves around the honesty, integrity and dedication to their industry and community displayed by the landowners or how the burn sloped [sic] over onto government owned land.
While I can’t go into specifics around the arrest of the landowners, I want each of you to know that all times, our Sheriff McKinley and the entire Grant County Sheriff’s office have the total support of every other landowner in Grant County who knows firsthand how bad it is to have the federal government as a neighbor.
Signed
Every Landowner with a Federal Agency as their neighbor
Grant County has been at the extreme end of the county supremacy fringe for a long time. On their former sheriff Glenn Palmer: “Palmer became an icon in the constitutional sheriff movement, an extremist ideology asserting the sheriff is the highest legal authority in the country. He became notorious, in large part, for challenging the federal government’s authority over the forests, which they see as prototypical government overreach.”
https://www.opb.org/article/2022/10/20/grant-county-arrest-sheriff-forest-service-employee-malheur-national-oregon/
There is a new sheriff in town after Palmer was voted out, but it wouldn’t be surprising if the anti-fed attitude has permeated the sheriff’s agency (and the current sheriff is now trying to do damage-control).
The HCN article points out that, “While the sheriff’s office called the burning reckless, they haven’t explained if and how standards for various levels of negligence, a key factor of determining liability, were met.” But people don’t get arrested for negligence unless it’s criminal; there has to be a law that was violated. It would be interesting to see what that law says (and whether it turns out there is probable cause under that law to prosecute). Still, if the goal is intimidation, the actual outcome may not matter so much.
As to the claims that you can’t recover damages from the federal government – not true, as discussed here: https://forestpolicypub.com/2017/12/04/federal-liability-for-fires-it-starts/
The Grant County sheriff arrested the Forest Service burn boss for “reckless burning,” in violation of Oregon Revised Statute 164.335:
A person commits the crime of reckless burning if the person recklessly damages property of another by fire or explosion. Reckless burning is a Class A misdemeanor.
Federal employees cannot be prosecuted for violating state law if two conditions are met: (1) Was the employee performing an act that federal law authorized him to perform? (2) Were his actions necessary and proper to fulfilling his federal duties? No question as to #1 — The 1897 Organic Act authorizes the Forest Service to “preserve the forests thereon from destruction.” Prescribed burning is a means to that end.
The second question is also readily answered in the affirmative. The burn boss was following a burn plan, in which igniting a fire was necessary and proper to accomplish the plan’s objectives.
If the Grant County prosecutor seeks to prosecute, the federal government will remove the case to federal court and move to dismiss on federal employee immunity grounds. I expect the motion will be granted promptly, as it was at Ruby Ridge when Idaho sought to prosecute FBI sharpshooter Lon Horiuchi for involuntary manslaughter in the shooting death of Vicki Weaver.
Thanks, Andy. And even if his actions were not necessary and proper, he would still have to be found “reckless,” which requires proving a state of mind along the lines of knowing (or should have known) that his or her action was likely to cause harm.