Inferno a mockery of judicial process
First there’s the spark, then the conflagration, followed by the litigation and then, surely, the movie.
Call it “Moonlight Fire,” and prepare to suspend disbelief.
The story is a doozy – a tale of corruption, prosecutorial abuse, alleged fraud upon the court, and possible government cover-ups in the service of power and greed. All the script needs is a Forest Service employee urinating on his bare feet in his lookout tower just as the fire was beginning.
This is what a real-life ranger discovered when she went to the tower to pick up a radio for repair. She also reported spotting a small glass pipe and smelling marijuana. As for the urinary exercise, the lookout said he was treating his athlete’s foot. But of course.
So goes one of the more colorful anecdotes surrounding the 2007 California wildfire that burned up to 65,000 acres – 45,000 of them on federal land – in the northern Sierra Nevada Mountains.
Who caused the blaze, whom to blame, and who should pay? Was it an arsonist, the chainsaw dude, the bulldozer or the tower employee’s, ahem, diverted attention? Such questions no doubt would amuse Miss Scarlet and Colonel Mustard if this were a game, but the events and consequences were and continue to be grave.
Finding someone to blame became the obsession of state and federal investigators – the U.S. Forest Service and the California Department of Forestry and Fire Protection (Cal Fire) – who worked jointly to solve the mystery. They found their perpetrator to be Sierra Pacific Industries, the nation’s second largest lumber producer.
How did investigators know it was Sierra Pacific? If you ask the defendants, they’ll say investigators “knew” because this family-owned company has very deep pockets. And, too, a bulldozer used by a company working under contract for Sierra Pacific that day reportedly produced a spark.
It’s not easy to feel sympathy for a mega-company that may have caused such a terrible fire. But what if there were other possible culprits, known about but never revealed by the plaintiff’s attorneys? Alas, such is the case.
Also in the area when the blaze started were a man who was cutting firewood with an illegally modified chainsaw and perhaps another individual who was a suspected arsonist. This isn’t to say that these others are culpable, but defense attorneys claim that their existence – and investigators’ failure to pursue or disclose these individuals – constitutes fraud upon the court.
These facts among others prompted California Superior Court Judge Leslie C. Nichols in February to dismiss the Cal Fire action against Sierra Pacific and other defendants, and the state lawsuits stemming from the investigation.
In his ruling, Nichols called the Cal Fire investigation “corrupt and tainted” and shot through with “egregious” and “reprehensible” discovery abuse that “threatened the integrity of the judicial process.”
“The cost of plaintiff Cal Fire’s conduct is too much for the administration of justice to bear.”
It was also, apparently, too much for the defendants to bear. Thus, Nichols ordered the state to pay defendants $32 million in attorneys’ fees and court expenses.
Remaining is the matter of a separate federal lawsuit, which had resulted in a settlement by which the defendants are paying the federal government $55 million and have started to transfer 22,500 acres of land.
Emboldened by Nichols’ ruling, as well as new testimony by a former assistant U.S. attorney, E. Robert Wright, the defendants are seeking to reverse the federal settlement. In a 15-page sworn statement to the plaintiff’s attorneys, Wright suggested possible suppression of evidence. In response, the U.S. Department of Justice tried to get a judge to disqualify all defense attorneys who might have read Wright’s statement. No deal. United States District Judge William B. Shubb declined the DOJ’s request.
To recap: A terrible fire started either by a spark from a machine, by an arsonist – or by some other unknown means – raged out of control, possibly in part because of a forest watcher’s negligence while dealing with a self-diagnosed medical emergency. Whether the watcher’s greater attention might have reduced the fire’s ravages is an exercise of the imagination, but who could resist?
State investigators have been officially judged corrupt and fined accordingly. Whether the Justice Department is found similarly culpable remains to be determined.
In the meantime, one sympathizes with Loretta Lynch, who has been nominated to become attorney general. Assuming her confirmation, and pending a final ruling in the California case, she may face an inferno of her own.
If only it were just a movie.