RANDY PENCH / Bee file, 2008

A canopy of burned trees was left after the two-week Moonlight fire destroyed 65,000 acres in Plumas and Lassen counties in 2007. The battle over responsibility for the blaze is still in court.

Forest Service in legal stew over coverup of lookout's alleged marijuana use

Published: Sunday, Mar. 25, 2012 - 12:00 am | Page 1B
Last Modified: Wednesday, Jul. 18, 2012 - 6:25 am

The Moonlight fire was the U.S. Forest Service's worst nightmare.

For two weeks in September 2007 it raged like a fire-breathing dragon across 65,000 acres in Plumas and Lassen counties, devouring everything in its path, including 46,000 acres of lush national forest.

But there is an additional troubling dimension to this catastrophe, one that, like the fire itself, still haunts the Forest Service. From the start, there was a recognition of potential legal complications if it became known that a Forest Service patrol officer claimed another agency employee may have been smoking marijuana while he manned the lookout tower closest to the site where the fire started.

That fear has now been realized. A timber company being sued for causing the fire has filed documents in court that reveal the government tried to cover up the claim, causing dissension within the Forest Service.

Long before the devastating wildfire was contained, federal and state investigators were satisfied that a bulldozer belonging to a company harvesting timber for Sierra Pacific Industries hit a rock and a spark flew into dry duff on private property.

Sierra Pacific and the logger, Howell's Forest Harvesting, strongly dispute that.

The final report on the fire, publicly released on June 30, 2009, included no mention of suspected marijuana use by the Red Rock lookout the day the fire started.

In court papers, Sierra Pacific lawyers describe the report as "completely sanitized."

Yet, their cooperation and that of two federal judges was enlisted by assistant U.S. attorneys in sealing and redacting court records regarding the marijuana claim, despite the fact that once they were part of the court file they were public by law.

The Bee went to court in January to thwart the government's latest maneuver to hide the records. As a result, 544 pages of material, plus redactions, were placed on the public docket by Sierra Pacific lawyers.

In defending their client, the lawyers insist that seasonal Forest Service employee Caleb Lief was "distracted" at the time the fire emerged from an incipient, smoldering stage and, by the time he became aware of it, the flames were beyond control.

"If Lief had spotted the Moonlight fire as soon as it became visible from the Red Rock lookout, the fire would have been contained and extinguished before it could reach" national forest land, SPI lawyers argue in court papers.

They further argue that the Forest Service "suppressed evidence of this misconduct in an effort to protect its position" in a tangle of litigation.

U.S. Attorney Benjamin Wagner said in a prepared statement: "We dispute the allegations regarding the USFS employee at the Red Rock lookout, but in any event, we consider those allegations to be merely an effort to distract from the central issue of the case" – that is, whether Sierra Pacific and others are responsible for starting the fire.

Troubling report

The accusations at the core of the imbroglio came from patrol officer Karen Juska, who reported that when she went to the Red Rock lookout station that day to pick up a radio in need of repair, Lief's "hand and the radio had a heavy odor of marijuana." She also reported seeing a small glass pipe in the tower's cabin.

As she and Lief stood by her truck shortly thereafter, Juska said in a written report, she spotted smoke and pointed it out to Lief. The fire was 10 miles from the tower, which had a direct line of sight to the location.

Lief is adamant he saw the smoke and drew Juska's attention to it. He denies he possessed or used marijuana at the tower. He insists he is the victim of a Juska vendetta because he discussed her shortcomings with her supervisor, who then told her.

Court documents show Juska's accusations reverberated through the USFS bureaucracy:

• Assistant Plumas Forest Manager Ron Heinbockel, who supervised both Juska and Lief, informed his own supervisor of the written report submitted by Juska.

• Heinbockel, who told superiors he wouldn't rehire Lief as a seasonal lookout, and others in the Plumas chain of command questioned whether the Forest Service should be employing Lief.

• Putting together the report on the Moonlight fire, Diane Welton, a special agent with the Forest Service's law enforcement unit, encountered Juska's accusations and told her not to talk about what she had seen at Red Rock. Welton testified she relayed Juska's story to her supervisor, who assured her he would follow up.

Yet, no one within the Forest Service ever investigated the accusations themselves, which means there was never an official resolution.

Lief takes action

Lief was informed in March 2008 that he would not be rehired as the job was going to an injured female employee on light duty. He filed a gender discrimination complaint.

Court documents reveal:

• Over his protests, Heinbockel was forced to write a good performance review of Lief because it was mere "speculation" that he had or was using pot on the day the Moonlight fire started, and to rehire Lief "to settle the EEO complaint." Heinbockel emailed his supervisor on Sept. 21, 2007, that he was "very uncomfortable" with what was going on. "I have heard that this was not the first time Caleb has had this situation observed while on duty at other forests," he wrote. He raised the specter of legal problems if Lief was passed off as reliable to a future employer, and he warned that the decision to rehire him as a lookout created a serious "safety" risk.

• Juska was forced to rewrite the report on her Sept. 3, 2007, visit to Red Rock and eliminate all mention of marijuana.

• Lief was fired in 2009 over a separate incident involving Juska. He filed another EEO complaint, this time claiming wrongful termination.

Throughout this period, it was the mantra of more than one USFS official that the marijuana allegations were never proved. And throughout this period, testimony shows, more than one USFS official had in mind the potential legal risk those allegations held.

"This is our main lookout in Moonlight Valley," Heinbockel told an investigator looking into Lief's wrongful-termination complaint. "I could just see all sorts of legal problems; that the attorneys would say the main lookout is stoned and let the fire go."

Maria Garcia, who was deputy Plumas National Forest supervisor and now supervises the Santa Fe National Forest in New Mexico, testified there should have been an investigation of the Red Rock incident, and she knew that the fact there was not would be an issue at some point, and the question would be whether Lief spotted the Moonlight fire as soon as possible.

Garcia's boss at the Plumas Forest, Alice Carlton, now supervisor of the Umpqua National Forest in Oregon, testified, "I remember … intuitively understanding that … somebody could try to make hay out of this or twist the facts … later on, use it for their own gain."

But, Carlton added, "There was never any intention to cover up."

Carlton acknowledged that, due to the lack of proof regarding marijuana, she made it clear to her subordinates that Lief should receive a positive performance review and should be rehired as a seasonal lookout.

Heinbockel testified that he believes Carlton wanted to make sure Lief "stayed on (the government's) side."

Given what's at stake, it's doubtful defense lawyers will quit pressing Red Rock and related matters as critical evidence favoring their client.

The lawyers told the court: "Much as the government would like to run from Red Rock, it is a central issue" … because "any recovery by the United States is reduced in proportion to its responsibility for its own damages."

Lief colorfully sums up the other side: "What we have here is Sierra Pacific trying to throw spaghetti against the wall and see what sticks. Excuse the pun, but this is a smokescreen, a diversionary tactic to turn attention away from its own negligence and make me the fall guy for this fire."

© Copyright The Sacramento Bee. All rights reserved.

Read more articles by Denny Walsh



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