Firefighters Worry About Questions of Liability on the Job

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Firefighter Kenneth Jordan once hoped to lead one of the nation's elite teams of specialized wildfire and disaster incident managers.

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, is confident in his abilities. Still, he worries about being held criminally liable if a member of the 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, Mont.-based president of the International Association of Wildland Fire and a firefighter.

The father of one firefighter who died said such fears are overblown. The parents say they're seeking accountability, something they believe has been lacking.

"If they'd abided by their own regulations," said Bill Allen, whose son, Jeff, was killed on the Cramer fire, "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, 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 the Cramer blaze in rugged, central Idaho.

According to investigators, Heath and Allen were clearing trees for a helicopter landing site, 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 concluded the deaths may have been prevented if firefighting policies and tactics had been followed. 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 leave his Forest Service job and serve 18 months probation. He admitted no guilt.

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.

For firefighters still uneasy, Harbour said they might look into personal liability insurance, which he said he's held for years.

Phil Perkins, a leader on one of the nation's highly trained, interagency management teams, said he got a policy last year.

"It's just good business, I think," said Perkins, a National Park Service employee. "For the price of the insurance, it's good business for my family."