Where has the USDA/USFS hidden the June 30, 2013, Yarnell Hill Fire AFUE transcript public records?
Figure 1. June 30, 2013, 1629 hrs. (4:29 PM) fire behavior with Google Earth overlay. The GMHS are hiking downhill toward their ultimate Deployment Zone in this photo. Source: Brian Lauber, Google Earth, WTKTT
Where are the US Forest Service, June 30, 2013, Yarnell Hill Fire AFUE transcript records really hidden? They are certainly not where attorney Bill Solomon of the U.S. Department of Justice (DOJ) U.S. Attorney's Office (representing the USDA U.S. Forest Service) says they are, (i.e. AZ State Forestry).
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"The power of [truth tellers] to hold institutions and leaders accountable very often depends on the critical work of journalists, who verify [truth tellers'] disclosures and then bring them to the public. The partnership between [truth tellers] and journalists is essential to a functioning democracy." Government Accountability Project
“If you're going to sin, sin against God, not the bureaucracy. God will forgive you but the bureaucracy won't.” Attributed to Admiral Hyman G. Rickover
Consider this short excerpt of a very long speech (1867), from John Stuart Mill, a British philosopher, political economist, and civil servant. It applies to those of us that consider ourselves as Truth tellers. One of the most influential thinkers in the history of classical liberalism, he contributed widely to social theory, political theory, and political economy:
"Let not any one pacify his conscience by the delusion that he can do no harm if he takes no part, and forms no opinion. Bad men need nothing more to compass their ends, than that good men should look on and do nothing. He is not a good man who, without a protest, allows wrong to be committed in his name, and with the means which he helps to supply, because he will not trouble himself to use his mind on the subject. It depends on the habit of attending to and looking into public transactions, and on the degree of information and solid judgment respecting them that exists in the community, whether the conduct of the nation as a nation, both within itself and towards others, shall be selfish, corrupt, and tyrannical, or rational and enlightened, just and noble." (emphasis added)
Source: John Stuart Mill, excerpt from Univ. of St. Andrews Inaugural (very lengthy) Speech (February 1, 1867). ( https://en.wikisource.org/wiki/Inaugural_address_delivered_to_the_University_of_St._Andrews,_Feb._1st_1867 )
The Authority to Lead versus the Decision to Lead. The authority to lead is established by law. Whether the authority is based on federal, state, or local law, we are legal agents exercising authority on behalf of our organizations.
"The ability to lead is a different matter; it is something that cannot be legislated. To be effective, leaders must earn the respect and trust of others. A leader's journey is a perpetual cycle of acquiring, shaping and honing the knowledge and skill of leadership. The leadership journey is never finished." (emphasis added) (Leading in the Wildland Fire Service)
"If fear is cultivated, it will become stronger. If faith is cultivated, it will achieve mastery." John Paul Jones, Merchant Mariner and Revolutionary War Hero
Crisis of Conscience author Tom Mueller (2019) closes his book with these thought provoking excerpts: "The scores of whistelblowers [we favor the term Truth Tellers] ... embody an independence and spirit, a fearlessness, we desperately need. They take responsibility for seeing with their own eyes and following their individual conscience, cutting through cant [hypocritical and sanctimonious talk, typically of a moral, religious, or political nature] and rationalization to comprehend things as they really are. They show us why we cannot always accept the technical artifacts of 'experts' - ... as anything more than objective-looking concretizations [The process of concretizing a general principle or idea by delineating, particularize, particularizing, or exemplifying it.] ... [Truth Tellers] understand that people in groups do things that each group member, individually, would never dream of or dare. ...we must constantly question authority in all of its forms, and resist, and resist the false solace of submission. [Truth Tellers] strip away the Orwellian absurdity of euphemisms, revealing bedrock meanings ... At the same time [they] reveal the dark side of such traits as loyalty, patriotism, and devotion to the team [read Team Player], and show that other words, however debased by cynicism, still have heft and meaning that we long for: honor, justice, truth." (emphasis added)
"No wonder that Orwell is a best seller in America again, [Truth Tellers] remind us all of this. They cry out when double-speak and double-think has become second nature to many, ... We must learn to hear their voices, to escape as they have the spell of secrecy and authoritarianism, if we hope to wake from this deadly daze." (emphasis added)
Disturbingly, the Department of Justice (DOJ) record in adjudicating Truth Teller retaliation complaints steadfastly remains anti-Truth Teller. A 2015 GAO report found that the DOJ only sided with the Truth Tellers in three of the seventy-two cases reviewed, and the Truth Tellers suffered savage retaliation that sometimes lasted over a decade.
( https://www.gao.gov/products/GAO-15-112 ) The 2015 GAO report (Whistleblower Protection: Additional Actions Needed to Improve DOJ's Handling of FBI Retaliation Complaints) is available as a PDF in this link. In addition, this 2020 Federal News Network article also contains information about an FBI Truth Teller and links to the 2015 GAO report. (FBI whistleblower still seeking appeal rights after 2016 law falls short)
( https://federalnewsnetwork.com/workforce-rightsgovernance/2020/01/fbi-whistleblowers-still-seeking-appeal-rights-after-2016-law-falls-short/ ) The Project on Government Oversight (POGO) has a slew of good articles and links about Truth Tellers in the Federal Government. "Caught Between Conscience and Career" is one of many. ( https://www.pogo.org/analysis/2019/03/caught-between-conscience-and-career/ )
The Federal Obstruction of Justice law, which applies to ALL PEOPLE, government employees or not, protects whistleblowers (Truth Tellers) from retaliation by making it a crime to retaliate. We believe that the DOJ, the Arizona US Attorney's Office, the Ninth Circuit Court of Appeals, and the USDA Forest Service engaged, in varying degrees, in these alleged illegal practices regarding the June 30, 2013, USFS AFUE records.
18 U.S. Code Chapter 73 - Obstruction of Justice
18 U.S. Code § 1515. Definitions for certain provisions; general provision
"(3) the term “misleading conduct” means - (A) knowingly making a false statement;
(B) intentionally omitting information from a statement and thereby causing a portion of such statement to be misleading, or intentionally concealing a material fact, and thereby creating a false impression by such statement;
(C) with intent to mislead, knowingly submitting or inviting reliance on a writing or recording that is false, forged, altered, or otherwise lacking in authenticity;
(D) with intent to mislead, knowingly submitting or inviting reliance on a sample, specimen, map, photograph, boundary mark, or other object that is misleading in a material respect; or
(E) knowingly using a trick, scheme, or device with intent to mislead;" (all emphasis added in the above)
We confidently allege that the entire June 30, 2013, YH Fire SAIT and SAIT-SAIR and the USDA / USFS AFUE debacles, including the germane Federal legal system, are rife with the above.
The statutory definition of a “Federal record” can be found at 44 U.S.C. 3301. To paraphrase, Federal records are documentary materials regardless of physical form or characteristics, which are made or received by an agency of the United States Government, and preserved and appropriate for preservation as evidence of actions taken or decisions made by or on behalf of the United States Government. This can be simplified still further.
A Federal record is any recorded information that is:
• Created in the course of agency business,
• Received for action in the course of agency business, or
• Preserved to document actions taken or decisions made in the course of agency business.
The entire June 30, 2013 YH Fire debacle and GMHS tragedy fall within these parameters.
Consider now a brief to extensive (depending on your interest level) look into the Federal criminal statutes (18 U.S.C.) below dealing with the USDA USFS AFUE Federal records. And most importantly, USDA Forest Service and USDA Office of Special Counsel personnel were allegedly involved in this based on email threads that admit to possessing these USFS AFUE records and ensuring that "copies are carefully made for preservation purposes" due to their importance, as noted below.
"I also understand it is now in the hands of our [OGC] office. Needless to say, please make sure nothing happens to those tapes. Also, please have some copies carefully made for preservation purposes." Furthermore, a USFS Briefing Paper also stated: "All data collected by the AFUE was turned over to the investigation team." (emphasis added)
( https://www.yarnellhillfirerevelations.com/post/2018/10/12/fred-j-schoeffler-the-usfs-aerial-firefighting-use-and-effectiveness-afue-study-was-utili )
"The taking of a public record or document is prohibited by 18 U.S.C. § 641. The destruction of such records may be reached under 18 U.S.C. § 1361. In both instances, however, proving a $100 loss, the prerequisite to a felony conviction, may be difficult. Thus, neither of these statutes adequately protects government records. (emphasis added)
"The necessary measure of protection for government documents and records is provided by 18 U.S.C. § 2071. Section 2071(a) contains a broad prohibition against destruction of government records or attempts to destroy such records. This section provides that whoever: willfully and unlawfully; conceals, removes, mutilates, obliterates or destroys; or attempts to conceal, remove, mutilate, obliterate or destroy; or carries away with intent to conceal, remove, mutilate, obliterate or destroy; any record, proceeding, map, book, paper, document or other thing deposited in any public office may be punished by imprisonment for three years, a $2, 000 fine, or both. (emphasis added)
"There are several important aspects to this offense. First, it is a specific intent crime. This means that the defendant must act intentionally with knowledge that he is violating the law. See United States v. Simpson, 460 F.2d 515, 518 (9th Cir. 1972). Moreover, one case has suggested that this specific intent requires that the defendant know that the documents involved are public records. See United States v. DeGroat, 30 F. 764, 765 (E.D.Mich. 1887). (emphasis added)
"The acts proscribed by this section are defined broadly. Essentially three types of conduct are prohibited by 18 U.S.C. § 2071(a). These are: (1) concealment, removal, mutilation, obliteration or destruction of records; (2) any attempt to commit these proscribed acts; and (3) carrying away any record with the intent to conceal, remove, mutilate or destroy it. It should be noted that all of these acts involve either misappropriation of or damage to public records. This has led one court to conclude that the mere photocopying of these records does not violate 18 U.S.C. § 2071. See United States v. Rosner, 352 F. Supp. 915, 919-22 (S.D.N.Y. 1972). (emphasis added)
"Subsection (b) of 18 U.S.C. § 2071 contains a similar prohibition specifically directed at custodians of public records. Any custodian of a public record who "willfully and unlawfully conceals, removes, mutilates, obliterates, falsifies, or destroys (any record) shall be fined not more than $2,000 or imprisoned not more than three years, or both; and shall forfeit his office and be disqualified from holding any office under the United States." While the range of acts proscribed by this subsection is somewhat narrower than subsection (a), it does provide the additional penalty of forfeiture of position with the United States. (emphasis added)
"Title 18 contains two other provisions, of somewhat narrower application, which relate to public records. Section 285 prohibits the unauthorized taking, use and attempted use of any document, record or file relating to a claim against the United States for purposes of procuring payment of that claim. Section 1506 prohibits the theft, alteration or falsification of any record or process in any court of the United States. Both of these sections are punishable by a $5,000 fine or imprisonment for five years." (emphasis added)
18 U.S. Code § 641. Public money, property or records
18 U.S. Code § 1519. Destruction, alteration, or falsification of records in Federal investigations and bankruptcy
( https://www.law.cornell.edu/uscode/text/18/1519 )
18 U.S. Code § 1663. Protection Of Government Property -- Protection Of Public Records And Documents
( https://www.justice.gov/archives/jm/criminal-resource-manual-1663-protection-government-property-protection-public-records-and )
1664. Protection Of Government Property -- Theft Of Government Information ( https://www.justice.gov/archives/jm/criminal-resource-manual-1664-protection-government-property-theft-government-information )
1666. Destruction Of Government Property -- 18 U.S.C. § 1361 ( https://www.justice.gov/archives/jm/criminal-resource-manual-1666-destruction-government-property-18-usc-1361 )
18 U.S. Code § 1519. Destruction, alteration, or falsification of records in Federal investigations and bankruptcy ( https://www.law.cornell.edu/uscode/text/18/1519 )
Clearly, destruction of Government records and other malfeasance, with intent and otherwise, is illegal. One would presume that the Federal officials (i.e. OGC personnel) would surely be aware of that and advise their own personnel and clients that they represent accordingly.
Regarding Government and Agency lawyers lying to the judiciary, Crisis of Conscience author Mueller perceptively points out: 'Sometimes, ... the judiciary actively helps the Executive branch to keep its illegitimate secrets.'
In the case of the USFS YH Fire AFUE records, it seems as if the Arizona District Court and the Ninth Circuit Appeals Court and the Executive Branch have disingenuously crafted somewhat of a uniquely perverted States Secret Privilege (minus National Security issues) that deals specifically with concealing the USFS AFUE records about the June 30, 2013, YH Fire.
Consider now the the Aerial Firefighting Use and Effectiveness (AFUE) Study that was initiated in 2012 in response to recommendations in Government Accountability Office (GAO) Report 13-684, and the expectations requiring development of an Aircraft Modernization Strategy for Wildland Fire. The GAO report recommended that the Forest Service expand its efforts to collect information on the performance and effectiveness of the federal firefighting aircraft fleet. These results covered training improvements, mission selection and mission execution, and fleet planning, leading to overall improvement in aviation cost effectiveness and the potential realization of future fire suppression cost savings.
AFUE collects data on aircraft retardant drop locations and information including: objectives and outcomes for each retardant/water drop; terrain, slope, fuel type; fire spread characteristics; weather conditions and other environmental factors that may influence retardant drop effectiveness. AFUE data gathering is very intensive and complex, and involves collecting qualitative and quantitative information throughout the life-cycle of individual fires. Yet, where are those Air-to-Ground recordings?
The nationwide, multi-year AFUE study is chartered by the U.S. Forest Service Fire and Aviation Management Program. The AFUE Study uses four “observation modules,” each comprised of three qualified firefighters, as well as a dedicated aircraft, to collect ground and aerial data at wildfires throughout the nation during fire season.
There was - in fact - a June 30, 2013, Yarnell Hill Fire Air-to-Ground (A-G) radio conversation between the Aerial Supervision Module (ASM2) and DIVS A Eric Marsh around 1600 that contains germane and compelling evidence as to the decisions and actions of DIVS A and the GMHS prior to, during, and within their Deployment Site and ultimate Fatality Site. An ASM2 is a fixed wing aircraft with two crewmembers who perform the functions of traditional air attack and low-level lead plane operations.
These AFUE transcripts contained key A-G radio transmissions "every five minutes" from DIVS A Marsh insisting on "Air Support" [aerial retardant] in their "egress." This was stored in a 3-ring binder by a USFS employee, and witnessed by and made known to numerous other USFS and other WFs and FFs. These A-G radio transmissions were likely heard by many WFs and FFs that were on the YH Fire at that time, and monitoring that specific A-G radio channel and frequency.
It was ultimately seized by this USFS employee's supervisor and he was warned to cease and desist any further evidence collection about the YH Fire or the GMHS. This was the basis of my USDA Forest Service lawsuit and journey through the convoluted and costly Federal legal system.
The following transcript excerpt was posted on page 26 of the Serious Accident Investigation Team - Serious Accident Investigation Report (SAIT-SAIR).
"At approximately 1600, ASM2 overhears a comment on the radio referencing a crew and a safety zone. ASM2 calls OPS1 and clarifies, “I heard a crew in a safety zone, do we need to call a time out?” OPS1 replies, “No, they’re in a good place. They’re safe and it’s Granite Mountain.” They talk about flying over to check on the crew, but for now, they think the crew is safe in the black. (emphasis added)
"Following this conversation, ASM2 hears DIVS A announce on the radio, “We’re going down our escape route to our safety zone.” ASM2 asks, “Is everything okay?” to which DIVS A replies, “Yes, we’re just moving.” At 1637, ASM2 flies a drop path for a VLAT north of Yarnell west to east and apparently over DIVS A, turning northward to avoid high ground at the end of Yarnell. DIVS A, seeing the flight, calls and calmly says, “[ASM2], Division Alpha, That’s exactly what we’re looking for. That’s where we want the retardant.” ...” [Footnote omitted] (emphasis added)
It is interesting to note the GMHS "We’re going down our escape route to our safety zone" A / G radio transmission. An Escape Route leads from danger to safety. The GMHS had already done that and were safely ensconced in the black. They then perverted that phrase when they left their safety Zone to travel through deadly unburned chutes and chimneys.
This GMHS and / or DIVS A (Marsh) radio transmission along with the 3-ring binder transcripts was the basis for my USFS AFUE FOIA Requests and my USDA lawsuit.
"Firefighter Demands Info on Yarnell Hill Fire Disaster" Courthouse News by Jamie Ross. January 18, 2017
The original lawsuit can be attained from the link below within the first sentence at the blue word / link "sued."
Lawsuit seeks radio recordings from Yarnell Hill Fire that killed 19 Granite Mountain Hotshots
“Radio recordings that reportedly could shed light on the 2013 Yarnell Hill Fire tragedy are at issue in an ongoing lawsuit that was heard by the 9th Circuit Court of Appeals in Phoenix on Feb. 7. A three-justice panel of the 9th Circuit heard an appeal of a lower court’s ruling on former Payson Hotshot superintendent Fred Schoeffler’s ongoing legal effort to get information that he claims has been hidden by the U.S. Department of Agriculture (USDA)."
"The suit, filed in 2017, seeks aircraft radio transmission recordings from the June 2013 Yarnell Hill Fire that killed 19 members of Prescott’s Granite Mountain Hotshots crew." (emphasis added) The half-hour-long hearing by the panel pits arguments by Schoeffler’s attorney David Richard Schwartz against those by USDA attorney Bill Solomon. At issue in the suit is whether the USDA adequately searched for the documents that Schoeffler asked for in a 2016 Freedom of Information Act request."
"On Feb. 7, Schwartz told the 9th Circuit panel: “This case involves whether the USDA is knowingly hiding records related to the Hotshot deaths in the Yarnell Hill Fire. According to the original January 2017 complaint in U.S. District Court, Schoeffler sent a FOIA request to the USDA’s Forest Service in June 2016, seeking all voice recordings and written transcripts related to the June 30, 2013 Yarnell Hill Fire, as well as communications 'to and from any and all air resources and any and all Incident Management Team and any and all operational and ground personnel.'”
"The complaint adds that Schoeffler's certain that these air-to-ground records exist.' The USDA later responded that it had turned over the information to a state investigator and that the information had already been made public. But Schoeffler’s lawsuit claimed that the USDA’s answer was not responsive to his request." Regarding the "USDA later responded that it had turned over the information to a state investigator and that the information had already been made public" issue. The SAIT did get a copy, however, they would not share it with the ADOSH investigators. And only some of the AFUE audio recording were released to the public in Drop Boxes.
"In 2018, Chief U.S. Judge of the U.S. District Court G. Murray Snow ruled that Schoeffler had not exhausted administrative appeals, and the case went on to the 9th Circuit."
"Schwartz maintained that the lower court erred, in part, because the USDA has told the courts that the department no longer has the original records. 'It’s not true, and there’s evidence in the record it’s not true,' Schwartz told the panel. 'It’s undisputed that in August (2013), USDA FOIA was telling news organizations, ‘we have the recordings.’”
"Although the USDA responded that the information had been made public in a Dropbox, Schwartz said, “There is no FOIA exemption that says ‘Oh, we gave it to somebody else, and they made them publicly available; we don’t have to produce what we have.’ That doesn’t exist.”
"Judge Andrew Hurwitz pointed out, however, that FOIA requires that a 'reasonably adequate search' be conducted. 'The fact that you’ve discovered a document that wasn’t produced in the search isn’t evidence that they didn’t conduct a reasonably adequate one,' he told Schwartz.
USDA attorney Solomon also emphasized that point, telling the 9th Circuit panel, 'The issue is not whether there might exist some other records possibly responsive to appellant’s FOIA request; the issue is whether the search for those records was adequate.'"
Citing case law, Solomon said, 'Failure to produce or identify a few isolated records — which is what we’re arguing about here — cannot by itself defeat the adequacy of a search.' Soloman added: “'The fact that the document once existed does not mean it now exists. And the fact that an agency created a document doesn’t necessarily imply that the agency has retained the document.'”
"In Solomon’s conclusion, he asked the 9th Circuit panel to uphold Snow’s earlier ruling. 'In this case, as in any FOIA case, the appellant is entitled to a reasonable search, not a perfect one,' he said. 'And a reasonable search is what he got. And for that reason, the Department of Agriculture respectfully requests that this court uphold Chief Judge Snow’s rulings …'
Schoeffler’s attorney Schwartz concluded by asking the court to reverse the lower court’s ruling and remand the case back for bench trial."
'Whatever they have, we want it,' he told the panel. 'There’s no declaration, no affidavit; there’s no evidence that they don’t have it today. Give it to us if you’ve got them.' Judge Hurwitz concluded by saying the case had been submitted.'”
Several sentences above in this thread were incorporated into paragraph form to consolidate and better readability and comprehension.
Joy A. Collura also sought these records in a 2015-2016 FOIA Request, including seeking a "Index Log" of others seeking the same public records, as well as the "Custodian Ownership" and "Transfer Logs." These are still both pending FOIA and Public Records Requests (PRR) that have never been answered by the USFS or the AZ State Forestry; except Bill Boyd claims Collura received everything they had on YHF already and the AFUE information was not included.
See our YHFR post (December 15, 2019) for more details - "Part 2 of 5 - Underneath every simple, obvious story about ‘human error,’ there is a deeper, more complex story - a story about the system in which people work. Will these formerly unrevealed public records change the account of what occurred on June 30, 2013?"
( https://www.yarnellhillfirerevelations.com/post/2019/12/15/part-2-of-5-underneath-every-simple-obvious-story-about-human-error-there-is-a-deeper-m )
In Figure 38 of the above December 15, 2019, YHFR post, the left USFS document image is a PDF JPEG image of Joy A. Collura's USFS FOIA Request for the AFUE records, including specific reference to a "3-ring binder."
A brief history of the Aerial Firefighting Utilization and Effectiveness (AFUE) study records on the June 30, 2013, YH Fire, is in order here for more detail here as follows: (1) On July 1, 2013, an AFUE Team Leader gave a 'hard drive' of the June 30, 2013, YH Fire AFUE recordings to a 'SAIT team member;' (2) how the USFS then admitted to ABC News Investigative Reporter James Meeks, learned of an AFUE Study Group in Yarnell on June 30, 2013, ‘recording data’ and filed numerous FOIA Requests; (3) the Collura AFUE FOIA Request was partially fulfilled with some key revealing records having probative value; (4) while other FOIA Requesters were denied and told there were "no records responsive to your request;" (5) Collura filed a USFS (April 2015) FOIA Request for the June 30, 2013, YH Fire AFUE records specifically requesting those contained within a "3-ring binder;" and (6) a former USFS Hot Shot Supt. also filed an AFUE FOIA Request (YH Fire) based on a fellow USFS Hot Shot Supt. colleague telling him that he possessed the 'AFUE record transcripts in a 3-ring binder.'
The first former USFS Hot Shot Supt. eventually filed a Federal lawsuit as shown in the link that immediately follows for the USFS failure to release the June 30, 2013, YH Fire AFUE records ( http://foiaproject.org/case_detail/?title=on&style=foia&case_id=30561 ).
The second former USFS Hot Shot Supt. that initially had the 3-ring binder transcripts, repeatedly verbally assured the lawsuit attorneys that he was willing to testify in court if needed to get the truth out; and he did so in a verbal Declaration on the AFUE 3-ring binder issue.
Eventually, the USFS pressured him enough to submit a written Declaration for the USFS, considerably contradicting his previous verbal Declaration (see Figure 38 b. ). By this time, he had then clearly prevaricated and waffled on his earlier AFUE stance. Thus, the alleged Hot Shot "Brother" turned Quisling, and betrayed me. See the following link for the genesis of the pejorative term Quisling.
Consider further the following alleged Hot Shot "Brother" turned Quisling Dean Whitney memo by a Udall-Shumway paralegal dated December 8, 2016, indicating that Whitney "immediately began collecting" YH Fire documenttion (sic); because "things [tragedy documents] tend to disappear;" the importance of this particular record (i.e. DIVS A Marsh's insistence on Air Support every five minutes) and this record "was the missing piece in everybody's timeline."
Figure 2. Dean Whitney memo by Udall-Shumway paralegal dated December 8, 2016, detailing specifics on the June 30, 2013, USFS AFUE records. Source: Udall-Shumway, Schoeffler
Schoeffler alleges and contends that the Hot Shot "Brother" Whitney turned Quisling by retracting and lying on his revised, pressured Declaration. He was then dutifully "rewarded" with a promotion to a managerial position in Fire Management and transferred to the USFS Northern Region, a long-established maneuver by the USFS to show their gratitude for a job well-done, (i.e. lying in his coerced revised, written declaration). Collura had filed a similar AFUE FOIA Request in 2015-2016, specifically asking for a "3-ring binder' of the YH Fire, June 30, 2013, AFUE records.
Consider now Whitney's convoluted revised stance on the AFUE issue in this September 20, 2017, Declaration - while on a wildland fire assignment in California.
Figure 2a. September 20, 2017, Declaration of U.S. Forest Service Globe Hot Shot Supt. Dean Whitney regarding his revised stance on the USFS AFUE 3-ring binder and AFUE Transcript Records Source: U.S. DOJ, Public Records Request
Figure 3. ADOSH Marshall Krotenberg YH Fire Investigation FOIA Request for USFS AFUE recordings and records. Source: Collura Public records Request
According to ADOSH Investigator Krotenberg's August 16, 2013, letter to Federal OSHA employee Zachary Barnett and ADOSH Director William Warren: "We have run into a roadblock / delay regarding access to Federal employees and audio / video recordings generated by Federal employees. ... Based on discussions with USFS personnel, radio communications and video generated as part of a fire retardant study were recorded at the Yarnell Hill Fire on June 30, 2013. These recordings have reportedly been provided to the [SAIT] commissioned by the Arizona State Forester. The USDA - Forest Service, has reportedly ordered the SAIT not to provide this information to ADOSH. On or about June 16, 2013, ADOSH requested copies of all audio and video from the AZ State Forester. It wasn't until last week that we learned that the subject audio/video was the exclusive property of the US Forest Service." (emphasis added)
Consider now this email thread below from the AZ Archives Library clearly debunking the USDA Attorney Solomon's stating: "We do not have [the] AFUE study that includes the analysis of the Yarnell [F[ire in 2013" (emphasis added) So then, it's pretty clear that somebody is lying!
Figure 4. Email thread from Collura to the Arizona Archives Library regarding the June 30, 2013, YH Fire AFUE public records ("AFUE study that includes the analysis of the Yarnell [F[ire in 2013. We do not have it. ..." Source: Collura
Figure 5. 9th Circuit Appeals Court hearing transcript excerpts between Judge Hurwitz and USDA Attorney Solomon at Figure 15 on lines 14-17 "... the agency gave all of these records to the state. The state posted them on a Dropbox site ... that's what happened with the records. These are ... requested recordings and transcripts specifically from the AFU (sic) study group." Source: Jennifer L. MacGregor (AAERT CET-817) CVV Transcripts, Snippet
Figure 5a. 9th Circuit Appeals Court hearing transcript excerpts between Judge Hurwitz and USDA Attorney Solomon Figure 15 on lines 20-28 "These are requested recordings and transcripts specifically from the AFU (sic) study group. ... the states (sic) got them ... All those records were taken from the AFU (sic) group, they were provided to the State of Arizona, the original records. The state posted them on the [Dropbox site]." Source: Jennifer L. MacGregor (AAERT CET-817) CVV Transcripts, Snippet
Consider the State Secrets Privilege, originally intended for national security issues, that "allows government officials to evade their respective accountability for illegal acts and to conceal such acts from the public ... " a legal tool that started as a limited shield intended to protect legitimate and critical government national security secrets, but which the government has turned into a sword to block Americans seeking to enforce the law and the Constitution." (emphasis added) Source: Electronic Frontier Foundation ( https://www.eff.org/nsa-spying/state-secrets-privilege ) and Wikipedia
Setty, S. (2009) Litigating Secrets: Comparative Perspectives on the State Secrets Privilege. Western New England University School of Law, email@example.com ( https://www1.wne.edu/law/faculty-and-staff/faculty.cfm?uid=520 )
( https://www.google.com/url?sa=t&rct=j&q=&esrc=s&source=web&cd=1&cad=rja&uact=8&ved=2ahUKEwjdjL_QqMPpAhVZFjQIHWXJC7oQFjAAegQIAxAB&url=https%3A%2F%2Fdigitalcommons.law.wne.edu%2Fcgi%2Fviewcontent.cgi%3Farticle%3D1016%26context%3Dfacschol&usg=AOvVaw1QUYl7qySnt-zNODjFjkTu )
"The state secrets privilege is an evidentiary rule created by United States legal precedent. Application of the privilege results in exclusion of evidence from a legal case based solely on affidavits submitted by the government stating that court proceedings might disclose sensitive information which might endanger national security. (footnotes and citation omitted), ... (emphasis added)
"Following a claim of "state secrets privilege", the court rarely conducts an in camera examination of the evidence to evaluate whether there is sufficient cause to support the use of this doctrine. This results in court rulings in which even the judge has not verified the veracity of the assertion. (citation omitted) The privileged material is completely removed from the litigation, and the court must determine how the unavailability of the privileged information affects the case. (citations omitted) (emphasis added)
"The purpose of the state secrets privilege is to prevent courts from revealing state secrets in the course of civil litigation ... . The government may intervene in any civil suit, including when it is not a party to the litigation, to ask the court to exclude state secrets evidence. While the courts may examine such evidence closely, in practice they generally defer to the Executive Branch. Once the court has agreed that evidence is subject to the state secrets privilege, it is excluded from the litigation. Often, as a practical matter, the plaintiff cannot continue the suit without the privileged information, and drops the case. Recently, courts have been more inclined to dismiss cases outright, if the subject matter of the case is a state secret. (footnote omitted) (emphasis added)
"Executive abuse of the privilege to conceal embarrassing facts
"Commentators have suggested that the state secrets privilege might be used as often o prevent disclosure of embarrassing facts as to protect legitimate secrets. (footnotes omitted) Or, in the words of Professors William G. Weaver and Robert M. Pallitto in an article in the Political Science Quarterly: [T]he incentive on the part of administrators is to use the privilege to avoid embarrassment, handicap political enemies, and to prevent criminal investigation of administrative action. (footnotes omitted)
This assertion is especially significant. "In several prominent cases, the evidence that the government successfully excluded was later revealed to contain no state secrets: United States v. Reynolds, Sterling v. Tenet, Edmonds v. Department of Justice, and the Pentagon Papers.
Expansion into a justiciability doctrine
"Some academics and practitioners have criticized the expansion of the state secrets privilege from an evidentiary privilege (designed to exclude certain pieces of evidence) to a justiciability doctrine (designed to exclude entire lawsuits). Under its original formulation, the state secrets privilege was meant only to exclude a very narrow class of evidence whose revelation would harm national security. However, in a large percentage of recent cases, courts have gone a step further, dismissing entire cases in which the government asserts the privilege, in essence converting an evidentiary rule into a justiciability rule. The government response has been that in certain cases, the subject of the case is itself privileged. In these cases, the government argues, there is no plausible way to respond to a complaint without revealing state secrets. (emphasis added)
"The ultimate lesson here is that secrecy is not an immunity trump card and no government agency should be above the law. There is no better example of this than the original state secrets case, US v. Reynolds. The government, at the time, claimed the evidence it was withholding would reveal critical national security secrets and the Court agreed. But in 2000, when the documents at issue were finally declassified, they contained no secrets at all. The only thing the documents contained was evidence of government negligence - which would have validated the plaintiff’s case. (emphasis added)
Even from a non-legal background, it readily appears that the USDA USFS, along with the U.S. DOJ and U.S. Attorneys Office may have crafted and utilized a perverse State Secrets Privilege in the June 30, 2013, USFS AFUE lawsuit for failure to release the June 30, 2013, Air to Ground records.
Consider now the video / audio hearing for the following Figure 6. Ninth Circuit Court of Appeals case #18-16371 Fred Schoeffler v. USDA presented on February 7, 2020, in the WP Casey Armstrong Great Hall, Arizona State University (ASU) Law School, before 9th Circuit Tashima, Hurwitz, and Miller. David Schwartz Appellant attorney and Bill Solomon Defendant attorney. One redeeming feature of this was the fact that over 400 law school students were attending, so now there are that many newly informed citizens aware of this YHF debacle. The written transcript follows below (Figures 1 to 19c).
Figure 6. 18-16371 Fred Schoeffler v. USDA. Plaintiff appeals the district court's judgment in favor of the U.S.D.A. in a FOIA action seeking information related to a fire near Yarnell, Arizona where nineteen firefighters perished. Source: YouTube, U.S. Court of Appeals for the Ninth Circuit
Enemies disguise themselves with their lips, but in their hearts they harbor deceit. Though their speech is charming, do not believe them, for seven abominations fill their hearts. Their malice may be concealed by deception, but their wickedness will be exposed in the assembly. Proverbs 26:24-26
“The way to right wrongs is to turn the light of truth upon them.” Ida B. Wells-Barnett, Investigative Journalist
Consider now the 18-page, professionally transcribed record of the Ninth Circuit Court of Appeals case #18-16371 Fred Schoeffler v. USDA - presented on February 7, 2020, in the WP Casey Armstrong Great Hall, Arizona State University (ASU) Law School, before 9th Circuit Tashima, Hurwitz, and Miller. David Schwartz Appellant attorney and Bill Solomon Defendant attorney.
Figure 1. US District Court for the District of Arizona Schoeffler v. US Department of Agriculture (USDA) CV-17-00055-PHX-GMS. Ninth Circuit Court of Appeals case #18-16371 Fred J. Schoeffler v. USDA. Page 1 /18 (begins with attorney Schwartz) Source: Jennifer L. MacGregor (AAERT CET-817) CVV Transcripts
Figure 2. US District Court for the District of Arizona Schoeffler v. US Department of Agriculture (USDA) CV-17-00055-PHX-GMS. Ninth Circuit Court of Appeals case #18-16371 Fred Schoeffler v. USDA. Page 2 /18 Source: Jennifer L. MacGregor (AAERT CET-817) CVV Transcripts
Figure 3. US District Court for the District of Arizona Schoeffler v. US Department of Agriculture (USDA) CV-17-00055-PHX-GMS. Ninth Circuit Court of Appeals case #18-16371 Fred Schoeffler v. USDA. Page 3 /18 Source: Jennifer L. MacGregor (AAERT CET-817) CVV Transcripts
Figure 4. US District Court for the District of Arizona Schoeffler v. US Department of Agriculture (USDA) CV-17-00055-PHX-GMS. Ninth Circuit Court of Appeals case #18-16371 Fred Schoeffler v. USDA. Page 4 /18 Source: Jennifer L. MacGregor (AAERT CET-817) CVV Transcripts
Figure 5. US District Court for the District of Arizona Schoeffler v. US Department of Agriculture (USDA) CV-17-00055-PHX-GMS. Ninth Circuit Court of Appeals case #18-16371 Fred Schoeffler v. USDA. Page 5 /18 Source: Jennifer L. MacGregor (AAERT CET-817) CVV Transcripts
Figure 6. US District Court for the District of Arizona Schoeffler v. US Department of Agriculture (USDA) CV-17-00055-PHX-GMS. Ninth Circuit Court of Appeals case #18-16371 Fred Schoeffler v. USDA. Page 6 /18 Source: Jennifer L. MacGregor (AAERT CET-817) CVV Transcripts
Figure 7. US District Court for the District of Arizona Schoeffler v. US Department of Agriculture (USDA) CV-17-00055-PHX-GMS. Ninth Circuit Court of Appeals case #18-16371 Fred Schoeffler v. USDA. Page 7 /18 Source: Jennifer L. MacGregor (AAERT CET-817) CVV Transcripts
Figure 8. US District Court for the District of Arizona Schoeffler v. US Department of Agriculture (USDA) CV-17-00055-PHX-GMS. Ninth Circuit Court of Appeals case #18-16371 Fred Schoeffler v. USDA. Page 8 /18 Source: Jennifer L. MacGregor (AAERT CET-817) CVV Transcripts
Figure 9. US District Court for the District of Arizona Schoeffler v. US Department of Agriculture (USDA) CV-17-00055-PHX-GMS. Ninth Circuit Court of Appeals case #18-16371 Fred Schoeffler v. USDA. Page 9/18 (begins USDA attorney Solomon) Source: Jennifer L. MacGregor (AAERT CET-817) CVV Transcripts
Figure 10. US District Court for the District of Arizona Schoeffler v. US Department of Agriculture (USDA) CV-17-00055-PHX-GMS. Ninth Circuit Court of Appeals case #18-16371 Fred Schoeffler v. USDA. Page 10 /18 Source: Jennifer L. MacGregor (AAERT CET-817) CVV Transcripts
Figure 11. US District Court for the District of Arizona Schoeffler v. US Department of Agriculture (USDA) CV-17-00055-PHX-GMS. Ninth Circuit Court of Appeals case #18-16371 Fred Schoeffler v. USDA. Page 11 /18 Source: Jennifer L. MacGregor (AAERT CET-817) CVV Transcripts
Figure 12. US District Court for the District of Arizona Schoeffler v. US Department of Agriculture (USDA) CV-17-00055-PHX-GMS. Ninth Circuit Court of Appeals case #18-16371 Fred Schoeffler v. USDA. Page 12 /18 Source: Jennifer L. MacGregor (AAERT CET-817) CVV Transcripts
Figure 13. US District Court for the District of Arizona Schoeffler v. US Department of Agriculture (USDA) CV-17-00055-PHX-GMS. Ninth Circuit Court of Appeals case #18-16371 Fred Schoeffler v. USDA. Page 13 /18 Source: Jennifer L. MacGregor (AAERT CET-817) CVV Transcripts
Figure 14. US District Court for the District of Arizona Schoeffler v. US Department of Agriculture (USDA) CV-17-00055-PHX-GMS. Ninth Circuit Court of Appeals cas