Fred J Schoeffler, the USFS Aerial Firefighting Use and Effectiveness (AFUE) Study Was Utilized On T
Fred J Schoeffler, the USFS Aerial Firefighting Use and Effectiveness (AFUE) Study Was Utilized On The Yarnell Hill Fire on June 30, 2013, and recorded Air To Ground (A/G) radio transmissions that exist as audio and written transcripts. These recordings and transcripts (3-ring binder) are being withheld and denied that they even exist. I just came across a few "key" public records basically affirming they "do" in fact exist ... So then, how can the U.S. Forest Service ethically and legally continue to deny these Public Records exist?
2018-10-15 | Arizona Desert Walker Joy A. Collura and contributing other(s)
Views expressed to "the public at large” and "of public concern"
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Chronological Order: Due to the large volume of Public Records on the informative and important subjects of the YH Fire AFUE and the Agency control over its employees and what they are allowed to talk about among themselves and others requires that this will be an ongoing post and will be updated on an occasional regular basis. In other words, this is one of the posts you definitely need to return to.
“THESE are the times that try men's souls. The summer soldier and the sunshine patriot will, in this crisis, shrink from the service of their country; but he that stands by it now, deserves the love and thanks of man and woman. Tyranny, like hell, is not easily conquered; yet we have this consolation with us, that the harder the conflict, the more glorious the triumph. What we obtain too cheap, we esteem too lightly: it is dearness only that gives every thing [sic] its value. Heaven knows how to put a proper price upon its goods; and it would be strange indeed if so celestial an article as FREEDOM should not be highly rated.” (emphasis added)
This was written by Thomas Paine during the dark days of the Revolutionary War in 1776. He was an English-born American political activist, philosopher, political theorist, and revolutionary; one of the Founding Fathers of the United States.
Source: goodreads - Thomas Paine, The Crisis (December 23, 1776)
We are neither summer soldiers nor sunshine patriots - we are in this YH Fire and GMHS pursuit for the long haul.
"Being a warrior is not about the act of fighting. It's about being so prepared to face a challenge and believing so strongly in the cause you are fighting for that you refuse to quit." (emphasis added) (Navy SEAL Machowicz (2010) from the book "Warrior Mindset" by Asken, Grossman, and Christensen 2010).
This first USDA USFS document (August 29, 2013) below in Figure 1 just came to my attention from a Wildland Firefighter (WF) from one of the YH Fire "investigators." What follows, more or less in chronological order, is:
(1) a series of articles and legal documents (FOIA Requests and lawsuit ) regarding the USFS Aerial Firefighting Use and Effectiveness (AFUE) Study - in general and on the YH Fire specifically, (2) a series of USFS Direction letters to their employees (August 2013 and February 2016 "Guidance and Resource Information on Requests to the Yarnell Hill Fire"), (3) USFS Agency and Office of General Counsel (OGC), the Government's legal arm emails threads with direction and discussions regarding this USFS employee "direction," (4) articles and legal documents regarding the “Touhy regulations” often mentioned in the above USFS and OGC email threads, which "can present a formidable barrier to obtaining deposition testimony and conducting necessary pretrial discovery" [Touhy v. Regan, 340 U.S. 462 (1951) 340 U.S. 462 (71 S.Ct. 416, 95 L.Ed. 417)] , (5) legal documents and brief discussion regarding what is known as the "Federal Housekeeping Statute" at 5 U.S.C. § 301, which authorizes agencies to adopt regulations regarding “the conduct of [their] employees . . . and the custody, use, and preservation of [agency] records, papers, and property,” (6) brief discussion and legal documents regarding the Federal Appellate Courts, specifically the Ninth Circuit, regarding the issue of judicial review of an agency’s decisions not to comply with a subpoena, with some Courts holding that an Agency’s action should be reviewed according to the Federal Rules of Civil Procedure, and others that it should be judged under the Administrative Procedure Act (APA) standards of “arbitrary and capricious” at 5 U.S.C. § 706, (7) an April 2016 email (slightly redacted) from BRHS Superintendent Brian Frisby to USFS Human Dimensions Specialist Joseph Harris regarding the YH Fire Staff Ride and human factors, and (8) a portion of a series of "unofficial investigator" email threads.
I think the USFS and OGC email threads and discussions therein regarding how they treat their own USDA USFS employees when it comes to not allowing them to share the many lessons learned about an epic wildland fire tragedy are disturbing and hypocritical and these should deeply concern you as well. They tell their employees to share the lessons learned from the YH Fire tragedy to prevent further fatal wildland fire fatality occurrences, yet restrict them from discussing, speaking, or talking about it. On September 27, 2013, the day before the Serious Accident Investigation Team (SAIT) - Serious Accident Investigation Report (SAIR) was released they wrote in a USFS email: "We look forward to reviewing the findings to learn whatever we can to prevent future tragedies in the wildland firefighting community." (emphasis added)
Little do they know that this sincere sentiment will change very quickly with "guidance" from the highest levels of the USFS.
Here is a March 2014 Weather Channel special report on the YH Fire featuring Britt Rosso, the Wildland Fire Lessons Learned Center (LLC) Center Manager. Apparently he was not given "the memo" to NOT talk about the YH Fire because in this video clip, he is encouraging us to share and talk about it for lessons learned:
"So my name is Britt Rosso, Center Manager with the Wildland Fire Lessons Learned Center. Quick fire background. I spent 21 years on a hotshot crew. I spent a few years as a District FMO and then I been working at the Lessons Learned Center for about the last three or so years. I am here today to talk to you about the Yarnell Fire ... we are all struggling with how to process what happened on June 30th, 2013. Know we're all struggling out in the fire community about where the lessons, what are the take-home messages, what can we learn from this incident. What I want to share with you is how important it is to talk about it; not only to talk about it but to let you know that it's okay to talk about it and it's important that you do talk about it. Share what you've learned by reading the reports, by watching the videos and have an open, honest, respectful dialogue. Be willing to listen to other's opinions and have that respectful dialogue with your fellow firefighters by having this dialogue, by facilitating these conversations about Yarnell. This is where the learning's going to happen, is with you and your brothers and sisters out there in the field.
"This is the 20th anniversary of South Canyon and we're still learning from South Canyon 20 years later. Yarnell just happened eight months ago. We'll be learning about the Yarnell Incident for years to come. Time and patience are going to be key for learning from this incident, so I ask you to just take the time and be patient and work through this together."
As you read the many email threads and USFS Guidance Letters on this post below you will understand the hypocrisy here which is totally in contradiction to what Britt Rosso discussed in this video regarding sharing, talking, lessons learned, and more.
Figure 1. WFSTAR Weather Channel Yarnell Hill Fire Refresher Video Source: YouTube, National Interagency Fire Center, Published on Mar 26, 2014
This "share and talk about it - don't share and talk about it" dichotomy that you will discover below is more than a mere contradiction or paradox, this is clearly what has been said by a Wildland Firefighter to me - Orwellian Doublespeak and Doublethink. And what is with the alleged "invasion of personal privacy" Exemption 6 and the asserted "balancing of the public's interest against the individual's privacy interest" by refusing to reveal 'call signs' and 'names'? Were these Wildland Firefighters (WFs) on vacation or personal time while engaged on the YH Fire? No, they were there working in an "official" capacity performing "official" work for one of several Government entities during that time. Therefore, the "public's interest" in the matter should have taken precedent and prevailed.
Figure 2. USDA US Forest Service Freedom of Information Act (FOIA) Final Response letter (August 29, 2013) to ADOSH Attorney Christopher O. Anderson from USFS Fire Director Tom Harbour regarding ADOSH FOIA Request for the June 30, 2013, video and audio recordings of the YH Fire Aerial Firefighting Use and Effectiveness (AFUE) Study records (2013-FS-HQ-05083-F). The second record is a USFS Fire and Aviation Management (FAM) Briefing Paper on the AFUE Study data collected while on the June 30, 2013, YH Fire. Source: USDA US Forest Service
The USFS Briefing Paper falsely claims that "no ... ground to air (VHF-FM) radio traffic was recorded." The more common terminology is Air-to-Ground (A/G). At any rate, the USFS Office of General Counsel (OGC) email below from Associate General Counsel (General Law and Research Division) J. Benjamin Young stated otherwise on August 20, 2013 to USFS Fire Director Tom Harbour. (See Figure 5 below)
"Also, I understand from our Albuquerque office that a AFRUE (?) [sic] was flying at the time of the incident as part of a nationwide study on application of retardant and capture audio and video of a portion of the tragedy. I also understand ABC News has FOIA'd that tape. I also understand it is now in the hands of our office. Needless to say, please make sure nothing happens to those tapes. Also, please have some copies carefully made for preservation purposes." (emphasis added) (See Figure 5 below)
Whose "office" is OGC Young specifically referring to here - Albuquerque, NM (SW Regional Office) or the Washington Office?
The Briefing Paper also stated: "All data collected by the AFUE was turned over to the investigation team."
And that Briefing Paper assertion is where the equivocation, straw man fallacy, and shell games begin. The AFUE is a USDA USFS program that worked on an AZ State Forestry wildfire, managed by Local Municipalities and State and Federal resources, and it was then investigated by a State and mixed Serious Accident Investigation Team (SAIT) and an ADOSH-contracted Investigation Team (Wildland Fire Associates - WFA). Two separate "investigation" reports ensued, the initial SAIT-SAIR actually claimed it was a "Factual" Report.
Notwithstanding USFS assertions to the contrary, the AFUE audios and transcripts are and always will be the property of the USFS - no matter what they claim.
Within the WFLLC link above is the "Yarnell Hill Press Kit" that contains many interesting assertions and statements and more regarding the YH Fire that will be detailed below.
"“Our mission was to find out what happened and to discern the facts surrounding this tragedy to the best of our ability,” said Jim Karels, investigation team lead and the State Forester for the Florida Forest Service. “We also hope this report facilitates learning within the wildland fire community in order to reduce the likelihood of repeating actions that contributed to the loss of life.” (AZ State Forestry, September 28, 2013, Press release, "State Forester Releases Yarnell Hill Accident Investigation Report") (emphasis added)
Arizona State Forester Scott Hunt stated:“Beyond that, it is critical that the State of Arizona and the broader wildland fire community have the opportunity to thoroughly review the report so that we fully understand the events leading to the loss of the Granite Mountain hotshots.” (emphasis added) And then once the report is released, the USFS employees are NOT allowed to talk about it or discuss it according to the USFS Guidance letters based on OGC direction as you will read below. What is up with that?
It details the Yarnell Hill Investigation and Support Team Biographies. And, of course, the Yarnell Hill "Fact" Sheets that are mostly NOT factual.
The Fire Shelter one was informative and counters many of the assertions made by Prescott FD Wildland Battalion Chief Darrell Willis at the GMHS Deployment/Fatality Site News Conference in July 2013.
" Wildland firefighters have carried fire shelters since they were developed during the 1960s. The fire shelter is credited with saving more than 300 lives and preventing hundreds of burn injuries." (emphasis added)
Yes indeed, a very accurate statement. However, knowing and applying the Basic Wildand Firefighting Rules, including knowing, recognizing, and mitigating the 19 Watch Out Situations are responsible for saving tens of thousands of WF / FF lives every single fire season. Watch Out 19 is "Death From Above" beginning with Overhead, noted in many of the posts on this website and many times in the InvestigativeMEDIA Yarnell Hill Fire Chapters since its inception.
The Fire Shelter section correctly points out the many "Places to avoid for deployment include areas where shelters can be exposed to direct flame contact or convective heat such as narrow ravines (“chimneys”), steep slopes, draws and saddles." However, Willis stated in the above News Conference that (paraphrasing here) the GMHS picked the best possible place in this bowl to deploy their fire shelters and then proceeded to detail how the subtle terrain features would have funneled heat in a certain direction. The bowl these men died in would be in the "narrow ravines (“chimneys”)" category. (Visit the two July 2013 GMHS Deployment/Fatality Site News Conference videos posted elsewhere on this website and on YouTube for details and exact quotes).
The Fire Shelter section continues with this absolutely accurate statement regarding what is referred to as Entrapment Avoidance. "A firefighter’s highest priority is to avoid situations that can lead to entrapment."
The Fire Shelter section continues with this partially accurate statement. "Appropriate training includes, at a minimum, reviewing the training pamphlet, viewing the fire shelter training video, and practicing deployments using a practice fire shelter." (emphasis added) You will readily note that there is NO mention of knowing and applying the Basic Wildland Firefighting Rules, including knowing, recognizing, and mitigating the 19 Watch Out Situations as noted in many of the posts on this website and many times in the InvestigativeMEDIA Yarnell Hill Fire Chapters since its inception.
Then there is the section on Aviation (airtankers and helicopters) in order to try and paint the picture that that is the answer and that would have saved to GMHS lives that day. This is a classic move to attempt to appease the public and it is even featured in the 'Only the Brave' movie that an airtanker drop on the GMHS on June 30, 2013, would have saved their lives. Pure Hollywood and histrionics, NOT factual. A WF that was at the GMHS Fatality Site during the 2016 Family Staff Ride, told me that one of the ASM pilots told the families, friends, loved ones, and Family Support persons present that day that even on a "perfect day" an airtanker drop on the GMHS in that bowl would have been "impossible" due to the terrain features, weather, and aircraft maneuvering, that would have been required to even attempt it.
The bottom line is if one has to rely on either fire shelters or air (aviation) support to save their lives, then they are in trouble way too deep to matter. Once again, knowing and applying the Basic Wildland Firefighting Rules, including knowing, recognizing, and mitigating the 19 Watch Out Situations are responsible for saving tens of thousands of WF / FF lives every single fire season. Watch Out Number 19 is Death From Above and explained in detail on numerous IM YH Fire Chapter posts. It begins with Overhead.
Then there is the Communications section of the News Release and their feckless statements about the number of radios and such. According to the SAIT-SAIR, the bottom line here is Fire Order Number 7 - Maintain prompt communication with your supervisor, crew, and adjoining forces and the cautionary Watch Out Number 7 that warns you when you do not have that communications. The Division Supervisor (DIVS) and the GMHS did NOT properly notify their supervisor(s) NOR Air Attack of their major tactical moves FROM their Safety Zone to somewhere else as far as what is shown publicly. They perverted the definition of Escape Route in the process. As defined in NWCG literature, an Escape Route is FROM danger TO a safe area. They were already IN a Safety Zone. They abandoned that and traveled through unburned chaparral fuels in chimneys and chutes during deteriorating weather conditions and increasing fire behavior.
The Sensemaking section stated: "the aim of any SAI [Serious Accident Investigation] is to understand how people, crews and others on the fire made sense of their situation at the times when they took the critical actions." (emphasis added)
"Sensemaking refers to how people select what seems important to attend to, and how this influences their actions. People cannot possibly cope with all of the raw data and information coming at them at a given moment. Instead, what a person pays attention to is a function of identity, past experience, their understanding of their purpose, and other factors. Sensemaking is a very active process whereby people literally “make sense” of the world around them at each moment." (emphasis added)
I have to call BS on the "People cannot possibly cope with all of the raw data and information coming at them at a given moment" assertion. Really? It seems like all the other WFs and FFs that day did just fine coping with all their raw data and information coming at them. And I somewhat agree with the "Instead, what a person pays attention to is a function of ... past experience ..." portion because a Wildland Firefighter told me that these GMHS decisions and actions had been done on previous fires (i.e. Halstead, Holloway, Doce) with no adverse outcomes; this is often referred to as the Normalization of Deviance.
Then there is this gem: "Sensemaking is social and ongoing. The SAI report works toward introducing issues and questions to readers that may be useful for discussion points among colleagues, as they try to understand an accident and learn from it." And what about "the facts" and the causal factors, the human errors and human factors, the decisions and actions they made that resulted in the fatalities. (emphasis added)
There is a contradiction here. The SAIT's "introducing issues and questions to readers that may be useful for discussion points among colleagues, as they try to understand an accident and learn from it" is later nullified in the series of USFS and OGC email threads below regarding "Guidance" warnings to their USFS employees to NOT discuss the YH Fire.
In the SERIOUS ACCIDENT INVESTIGATION (SAI) section the first bullet is: "The primary goal of an SAI report is to tell the story of what occurred and facilitate learning, in order to reduce the likelihood of future accidents." (emphasis added) Tell the story? How about to tell the truth. (emphasis added)
The second bullet is: "Report formats have varied based on the circumstances of the accident and latest developments in progressive learning and thinking when responding to tragedies." (emphasis added) Since when do "Report formats" change "based on the circumstances of the accident"? Why does that have to change? And the "latest developments in progressive learning and thinking" is pure doubletalk and this has been discussed in detail here on this website and in detail in the InvestigativeMEDIA Chapters on the YH Fire many times regarding the "Learning Reviews" and Coordinated Response Procedure, otherwise referred to as CRaP, the Facilitated Learning Analyses and others. Read Dr. Ted Putnam's 2011 IAWF research paper titled: "Accidents, Accident Guides, Stories, the Truth" posted on InvestigativeMEDIA and here on my blog.
"This process does not identify causes in the traditional sense of pointing out errors, mistakes, and violations but approaches the accident from the perspective that risk is inherent in firefighting." (emphasis added) WFs and FFs make bad decisions, errors, and mistakes and they need to be identified and addressed instead of equivocal euphemisms.
"The SAI process tries to minimize the common human trait of hindsight bias, which is often associated with traditional accident reviews and investigations. The term “hindsight bias” refers to the tendency people have to view past events as more predictable than they really were before the events took place. After an event occurs, people often believe they could have predicted the outcome of the event before it actually happened." (emphasis added)
"Investigation Teams begin with the philosophy that firefighters are expected and empowered to be resourceful and decisive, to exercise initiative and accept responsibility, and to use their training, experience and judgment in their decision-making." (emphasis added)
And yet they did not explain why the GMHS failed to do any of that.
"The wildland fire community uses a doctrine approach to fire suppression, which requires the use of judgment. An individual’s judgment in a given situation depends upon their unique training and experiences." (emphasis added)
It is fair to say that the GMHS and the IMT personnel used poor judgement that day.
"The 10 Standard Firefighting Orders and 18 Watch Out Situations (10 and 18) are the foundation of training in fire suppression operations, but they require judgment in application. These principles, as stated below, outline the Team’s perspective regarding the use and consideration of the 10 and 18 in this report:" (emphasis added)
And yet they did not explain why the GMHS failed to do any of that.
Figure 3. Courthouse News article regarding retired USFS Hot Shot Superintendent Schoeffler's FOIA lawsuit against the USDA Forest Service for failure to release the [AFUE] Air-to-Ground radio transmissions for the June 30, 2013, between 3 PM (1500) and 5 PM (1700). It also includes statements about Schoeffler's FOIA/Privacy Act lawsuit against the USDA FS for failure to release Coconino NF (COF) records he requested related to the COF refusing him sponsorship because Schoeffler was alleged to have "stirr[ed] up drama" about the YH Fire. Source: Courthouse News
( https://www.courthousenews.com/firefighter-demands-info-on-yarnell-hill-fire-disaster/ ) The initial lawsuit in Figure 3 above is embedded in the blue word "sued" as a link in he first sentence of the article.
Figure 4. Schoeffler v. United States Department of Agriculture (USDA) FOIA / PA lawsuit filed in the Arizona District Court for failure to release AFUE records and COF records. Source: Court House News
Figure 5. USDA Office of General Counsel (OGC) General Law and Research Division email from Associate General Counsel L. Benjamin Young to USFS Fire Director Tom Harbour regarding YH Fire AFUE records. Red highlighted area referenced below. Source: Joy A Collura's FOIA Request (2016-FS-R3-04243-F)
This August 20, 2013, email is a critically key one because it contains information from the USFS Deputy Fire Director Bob Baird to USFS Fire Director Tom Harbour, and George Vargas of the Office of Regulatory and Management Services (ORMS) and numerous OGC employees that the AFUE audio and video records do IN FACT EXIST. "Benny, George Vargas has custody of the disc with the video/audio files for the WO. He is cced." (emphasis added) Let me further emphasize that in all caps. BENNY, GEORGE VARGAS HAS CUSTODY OF THE DISC WITH THE VIDEO/AUDIO FILES FOR THE WO. HE IS CC'ED. (EMPHASIS ADDED)
This email thread (August 19-20, 2013) verifies that the USFS and the USDA OGC - the highest levels of Government - knew full well about the AFUE records. OGC Counsel Young wrote to USFS Harbour: "Also, I understand from our Albuquerque office that a AFRUE (?) [sic] was flying at the time of the incident as part of a nationwide study on application of retardant and capture audio and video of a portion of the tragedy. I also understand ABC News has FOIA'd that tape. I also understand it is now in the hands of our office. Needless to say, please make sure nothing happens to those tapes. Also, please have some copies carefully made for preservation purposes." (emphasis added) (See Figure 5 above)
They admit full well that these AFUE records exist AND to ensure that "nothing happens to those tapes" AND that they want "copies carefully made for preservation purposes." Yet, in Public Records and FOIA Requests and as well Schoeffler's FOIA Requests, they deny they exist ("no records responsive to your request").
And one more time, emphasized for good measure:
"BENNY, GEORGE VARGAS HAS CUSTODY OF THE DISC WITH
THE VIDEO/AUDIO FOR THE WO. HE IS CC'ED." (EMPHASIS
"I ALSO UNDERSTAND IT IS NOW IN HANDS OF OUR OFFICE.
NEEDLESS TO SAY, PLEASE MAKE SURE NOTHING HAPPENS
TO THOSE TAPES. ALSO, PLEASE HAVE SOME COPIES
CAREFULLY MADE FOR PRESERVATION PURPOSES."
They admit full well that these AFUE records exist: "George Vargas has custody of the disc with the video/audio files for the WO ..." and "I also understand it is now in the hands of our office. Needless to say, please make sure nothing happens to those tapes" AND that they want "copies carefully made for preservation purposes." (emphasis added)
If all this is factual - which it appears that it is - then why are we being told that these very records that we have requested are being denied and told they have "no records responsive to your request"?
Figure 6. Email from Joy A. Collura to USDA OGC Counsel L. Benjamin Young regarding his email in Figure 5. Source: Collura and Young Proton Email
Figure 7. Schoeffler v. USDA FOIA lawsuit DOJ AZ US Attorney's Office Defendant's Statement of Facts (July 5, 2017) denying Schoeffler's contentions regarding the YH Fire AFUE audio and transcript records, documented to exist. Source: US AZ District Court
You should have readily noticed the Government's denial of the existence of the requested records and their insistence of not being allowed discovery due to the legal precedent of the presumption of "good faith" that the Courts bestow upon them. This means that the Government will readily admit to possessing records and readily release them upon request. If you have ever filed a Public Records Request of a FOIA or PA Request, you know that is not accurate and is bovine feculence.
Figure 8. USFS and OGC email thread regarding USFS direction to their employees about discussing the YH Fire. Source: FOIA Request (2016-FS-R3-04243-F)
Southwest USDA OGC Counsel Hattenbach wrote to several Southwest USFS FAM and OGC employees ("FS Employee Interviews in Re: Yarnell Fire, ECM #7805646") that it was the "General Law Division's opinion that Arizona OSHA's requests for interviews should be treated as Touhy requests and handled in accordance with the process outlined in 7 C.F.R. 1.214." (emphasis added)
To set the stage for the following two USFS "Guidance and Resource Information Related to the Yarnell Hill Fire" employee direction letters below, consider now the discussion and legal basis for the "Touhy Regulations" and what is referred to as the "Federal Housekeeping Statute" under "5 U.S. Code § 301 - Departmental regulations," and the Federal Administrative Procedure Act "arbitrary and capricious" standard.
Citing my source directly from the Jackson Rosenfield LLP law firm below in an in-depth article titled: "Dealing with Touhy: Compelling Non-Party Deposition Testimony from a Government Agent:" (all emphasis added)
"Litigation arising out of government construction projects often hinges upon obtaining valuable testimony from the nonparty government employees who coordinated, supervised, or determined key aspects of the matters in dispute. Before litigants can obtain testimony from a government agent or the agency itself, however, they must first navigate the minefield known as “Touhy regulations,” which can present a formidable barrier to obtaining deposition testimony and conducting necessary pretrial discovery.
"The term “Touhy regulations” derives from the U.S. Supreme Court’s decision in United States ex rel. Touhy v. Regan, 340 U.S. 462 (1951). [340 U.S. 462 (71 S.Ct. 416, 95 L.Ed. 417); UNITED STATES ex rel. TOUHY v. RAGEN et al. No. 83; Argued: Nov. 27-28, 1950; Decided: Feb. 26, 1951.] ( https://www.law.cornell.edu/supremecourt/text/340/462 )
"In Touhy, the Supreme Court reversed a contempt order entered by a federal district court against an FBI agent who had defied a deposition subpoena in accordance with a Department of Justice regulation issued under the Federal Housekeeping Statute, 5 U.S.C. § 301, which authorizes agencies to adopt regulations regarding “the conduct of [their] employees . . . and the custody, use, and preservation of [agency] records, papers, and property.” The Court held that the contempt citation was improper because the Department’s regulation, which gave the Attorney General the power to decide whether to comply with a subpoena, was valid, and the agent was simply obeying a lawful instruction from a superior. The Court found it unnecessary “to consider the ultimate reach of the authority of the Attorney General to refuse to produce at a court’s order the government papers in his possession.” Id. at 467.
Although the Court’s holding was really quite narrow, federal agencies urged a far more expansive reading of Touhy: that as long as an agency enacted strict regulations governing the release of information by subordinates, the agency had the authority to defy federal subpoenas. Thus, in the wake of Touhy, many government agencies refused to permit their agents to testify in litigation unless testifying was on non-controversial issues or would advance the agency’s own interests. These agencies contended that they were not subject to the obligations imposed by a federal subpoena or Rule 45 of the Federal Rules of Civil Procedure. Indeed, some agencies even contended that federal courts no longer had the power to enforce deposition subpoenas at all against federal agencies.
"Fine-tuning the law regarding Touhy Regulations.
"Within the last few decades, federal courts have reined in this expansive reading of Touhy and clarified that, while Touhy regulations may empower the head of a federal agency to decide whether the agency will comply or resist a subpoena, the legal basis for any opposition to the subpoena must derive from an independent source of law such as a governmental privilege or the rules of evidence or procedure. The Federal appellate courts are split, however, over the issue of judicial review of an agency’s decisions not to comply with a subpoena, with some holding that the agency’s action should be reviewed according to the Federal Rules of Civil Procedure, and others that it should be judged under the Administrative Procedure Act’s (“APA’s”) “arbitrary and capricious” standard, 5 U.S.C. § 706.
A brief review of Ninth Circuit Agency Decisions Under the Administrative Procedure Act - 5 U.S.C. § 706 to follow below.
"The leading case in the former camp is Exxon Shipping Co. v. United States Department of the Interior, 34 F.3d 774 (9th Cir. 1994), in which the Ninth Circuit held that federal agencies have no authority to prohibit their employees from disclosing information in response to a lawful subpoena. The court observed that “district courts should apply the federal rules of discovery when deciding on discovery requests made against government agencies, whether or not the United States is a party to the underlying action.” Id. at 780. In Watts v. SEC, 482 F.3d 501 (D.C. Cir. 2007), the D.C. Circuit followed Exxon’s lead, holding that the Securities and Exchange Commission’s refusal to allow three of its employees to appear for depositions pursuant to subpoenas served by a private litigant was properly reviewable under Rule 45 of the Federal Rules of Civil Procedure. The court concluded that “an agency’s Touhy regulations do not relieve district courts of the responsibility to analyze privilege or undue burden assertions under Rule 45.” Id. at 508. Such regulations are only “relevant for internal housekeeping and determining who within the agency must decide how to respond to a federal court subpoena. Id. at 09 (citing 5. U.S.C. § 301 (authorizing Touhy regulations but providing: “This section does not authorize withholding information from the public or limiting the availability of records to the public.”).
"The leading authority for the proposition that an agency’s refusal to comply with a subpoena must be reviewed pursuant to the APA is COMSAT Corp. v. NSF, 190 F.3d 269 (4th Cir. 1999), in which the Fourth Circuit expressly declined to follow the Ninth Circuit’s holding in Exxon that nonparty federal agencies must produce evidence in response to the subpoenas of private litigants, subject only to the court’s discretionary right to limit burdensome discovery under the Federal Rules of Civil Procedure. Observing that the APA is the source of the congressional waiver of sovereign immunity permitting review of a nonparty agency’s refusal to comply with a private litigant’s subpoena, the court reasoned that an agency’s decision may only be reviewed in accordance with the APA’s “deferential standard of review.” Id. at 277. Because waivers of sovereign immunity are strictly construed, a prominent treatise on Federal Civil Procedure regards the Fourth Circuit’s interpretation as being “the more reliable.” 9 Moore’s Federal Practice § 45.05[a].
"Even decisions such as Exxon and Watts still afford special treatment to agencies that object to a particular subpoena on the grounds that it imposes an undue burden or as being obtainable from a more convenient source. In Exxon, for instance, the Ninth Circuit recognized that the federal government has a “serious and legitimate concern that its employee resources not be commandeered into service by private litigants to the detriment of the smooth functioning of government operations.” Exxon, 34 F.3d at 779. The court in Watts likewise recognized the “government’s interest in not being used as a speakers’ bureau for private litigants.” Watts, 482 F.3d at 509. Accordingly, litigants should keep several things in mind when seeking to depose a government employee. First, the deposition subpoena should include a section explaining that the information sought is important to the litigation, that there is not a more convenient source to obtain such information, that the litigation itself is significant, and that the government can provide the information without an undue burden. The subpoena should also provide a detailed explanation of the subject matter and nature of the testimony sought, and it should comply, to the extent possible, with the Touhy regulations set forth by the agency at issue.
"Second, in addition to serving a subpoena on a specific government employee, the litigant should also consider submitting a second subpoena requesting a Rule 30(b)(6) deposition of the agency that, among its topics, covers the knowledge of the targeted individual. Otherwise, if the agency objects to the first subpoena and the employee refuses to testify, the litigant may be left under Touhy without any recourse or forced to file an action under the APA. A 30(b)(6) deposition, on the other hand, can sidestep these issues and potentially provide the litigant with the same information.
"Third, to the extent that 30(b)(6) deposition subpoena is drafted—or to the extent that the deposition subpoena also includes a request for production of documents—it is important to keep the scope of subpoena narrow and also include a cover letter offering to cooperate with the agency in order to modify the subpoena, if necessary, to accommodate legitimate agency concerns.
"Touhy regulations can pose a formidable challenge to litigants seeking to depose a government agent, but—with the aid of favorable caselaw and careful strategy—litigants should be able to traverse the Touhy minefield safely." (all emphasis added)
Source: Jackson Rosenfield LLP
Consider now the "Federal Housekeeping Statute" at 5 U.S. Code § 301 - Departmental regulations. This is discussed in the Touhy Principles article by the Jackson Rosenfield LLP law firm above.
“The head of an Executive department or military department may prescribe regulations for the government of his department, the conduct of its employees, the distribution and performance of its business, and the custody, use, and preservation of its records, papers, and property. This section does not authorize withholding information from the public or limiting the availability of records to the public.” (emphasis added)
( Pub. L. 89–554, Sept. 6, 1966, 80 Stat. 379. ) Source: Cornell Law School - Legal Information Institute (LII) ( https://www.law.cornell.edu/uscode/text/5/301 )
This brief, 61-word law basically means that the Federal Agencies have plenary (read complete, unlimited), authority to do whatever they wish with their employees, their business, and everything to do with their records and property. The no authority to withhold records from the public or limit the availability to them is tossed out the window and ignored.
The first of two USFS "Guidance" letters and several USFS and OGC email threads regarding USFS and OGC "guidance" and direction to USFS employees to follow.
Figure 9. USFS guidance and direction (August 29, 2013) to their employees about discussing the YH Fire. Source: FOIA Request (2016-FS-R3-04243-F)
Figure 9a. USFS guidance and direction to their employees about discussing the YH Fire. Note the red highlighted content. Source: FOIA Request (2016-FS-R3-04243-F)
Figure 9b. USFS guidance and direction to their employees discussing the YH Fire.Note the red highlighted content. Source: FOIA Request (2016-FS-R3-04243-F)
Figure 9c. USFS Southwestern Region guidance and direction (February 22, 2016) - basically a reminder of the 2013 direction letter - to their employees about discussing the YH Fire. Source: FOIA Request (2016-FS-R3-04243-F)
Figure 10. BRHS Brian Frisby email thread with USFS National Human Dimensions Specialist Joseph Harris and USFS COF employee LaVelle Shelton regarding the YH Fire Staff Ride and some details about the YH Fire. Source: FOIA Request
BRHS Superintendent Brian Frisby noted that "the [YH Fire Staff Ride] picture being pain