FOIA records request stonewalled by USDA Forest Service

A records request for fire investigation reports related to forest fires that were possibly started by trains of the Durango & Silverton Narrow Gauge Railroad was stonewalled.

San Juan National Forest FOIA Coordinator Jeremiah Hyslop works under Forest Supervisor Kara Chadwick in a position where he, in theory, is supposed to help facilitate the release of records to people who make FOIA requests.

Hyslop’s ability to respond to my records request may be restricted by officials working outside of the San Juan National Forest, but Hyslop made no attempt to update me on their progress, procrastination or denial of the request.

At some point, officials at the Forest Service obtained the seven fire investigation reports from offices in Albuquerque and elsewhere.

As of October 10, 2018, the documents are under “expedited” review, according to Misty DeSalvo, the Acting Region 2 FOIA Coordinator for the Forest Service.

“Good afternoon, Mr. Howell –

I just wanted to touch base with you about your FOIA request to the San Juan National Forest related to the 7 fires.  We have gathered the responsive documents but they must go through one more level of review before they can be sent out.  We have requested an expedited review and will get the documents to you just as soon as possible,” said DeSalvo. “Thank you for your continued patience.”

My curiosity of how previous wildfire investigation reports related to the train were handled was sparked by the 416 Fire last summer. The Forest Service to this day has not released the findings of their 416 Fire investigation report.

Many people in Durango believe a coal-fired train started it after passing through a neighborhood that’s well accustomed to their ongoing and historic battle with wildfires sparked by by firebrands that blow out of the vent stacks of D&SNGR trains.

My photo of the 416 Fire from Baker’s Bridge is related to my records request.

The 416 Fire was a 55,000-acre wildfire in southwest Colorado that threatened 1300 structures and cost $27 million dollars to fight in the summer of 2018.

It was a fire that very seriously effected everybody in Durango for most of the month of June.

With the impact that the fire also had on the forest, wildlife and the economy, it’s easy to ask why coal-fired trains are even allowed to operate during times of critical fire danger.

If I was going to understand why coal trains are allowed to drive through the forest when fuel moisture and relative humidity were low, I had to understand if and how the train was held accountable for previous fires that they had started.

Since most of the larger forest fires that the train started in the past were contained and controlled under the incident command management of the Forest Service, that meant that I needed to do a records request.

My original FOIA request to the Forest Service was a bit too broad and it would have been too expensive for me to pay for (>$15,000 dollars).

To help me narrow the scope of my records request, the Forest Service provided me with a spreadsheet of wildfires that occurred near the D&SNGR tracks from 1994 through 2013:

Spreadsheet courtesy of San Juan National Forest Supervisor Kara Chadwick.

Narrowed scope of records request

On July 15, 2018 I narrowed the scope of my records request by asking for only the fire investigation reports from the seven larger fires that were possibly started by D&SNGR trains:

1. Goblin
2. Schaff II
3. Schaff
4. Needleton on 06/10/2001
5. Cascade Canyon
6. West Needles
7. Mitchell Lakes

Shortly thereafter, Chadwick requested a 15-day extension for responding to my request based upon the fact that the documents may contain personal identifiable information. Multiple locations had to be searched for the documents, as well. They also needed to consult with the Office of General Counsel, said Chadwick.

I granted them the 15-day extension on the same day of their request on July 25, 2018.

Fifteen working days later, the Forest Service failed to give me an update on their work in obtaining my requested documents.

Hyslop returned to his permanent position as the San Juan National Forest FOIA Coordinator on September 10, whereupon he said that he planned on providing me with the documents that I requested.

To this day, Hyslop is one of several officials who have failed to provide the records that I requested:

1. San Juan National Forest FOIA Coordinator Jeremiah Hyslop
2. San Juan National Forest Supervisor Kara Chadwick
3. Acting Regional FOIA Coordinator Misty DeSalvo
4. Former Regional FOIA Coordinator Marge Gallegos
5. Former San Juan National Forest FOIA Coordinator Russ Christianson.

Hyslop and Chadwick failed to respond to a follow-up email on Sept. 26th, 2018 asking for a response to my FOIA request from July 15, 2018.

In a Sept. 26th letter to Hyslop, I made it clear that the Forest Service had disregarded the 20-day deadline instituted by the FOIA law 5 U.S.C. Section 552 (a)(6)(A)(i) for needing to comply with my records request.

He did not reply after I told him that I had consulted with an attorney regarding my ignored request and that I was preparing for potential legal action.

Records request follows dubious coal train oversight

The 416 Fire was called contained on July 31st, and controlled on October 5, but we still don’t know the outcome of the fire investigation report.

For now, the official cause of the 416 Fire in Durango is unlisted due to the Forest Service having not released the findings of their investigation into the fire’s cause from four months earlier.

We still have no report, even though witnesses saw the 416 Fire start immediately after a coal train of the D&SNGR passed through the Meadowridge subdivision by Irongate Way on June 1, 2018, according to The Durango Herald.

It’s ironic that the same day that the County’s stage 2 fire restrictions began to take effect last summer is the same day that the 416 Fire started.

That day, the coal train was chugging to Silverton despite the volatile fuel conditions along the tracks.

Fuels were dry, but the County’s stage 2 fire restrictions did not apply to coal-fired steam engine locomotives. This lack of regulation existed despite the train’s long and sordid history of starting forest fires along the tracks that sometimes burned hundreds of acres.

Two days before enacting stage 2 fire restrictions, La Plata County Commissioners had a discussion about local wildfire danger, and what the restrictions would apply to.

At no time during this meeting on May 31st did commissioners discuss the threat of wildfire posed by the D&SNGR coal-fired steam locomotives.

A fire incident report for this December 30, 2017 wildfire on Rio Grande Drive was provided by DFPD after I submitted a records request. Photo courtesy of Brian Rittermann.

As a bit of context for the commissioners, DFPD Fire Chief Hal Doughty mentioned that his crews had been dispatched to a small wildfire the day before the meeting that was related to train operations.

During the May 31st meeting, Chief Doughty did not recommend that stage 2 fire restrictions be applied to operation of coal-fired steam engine locomotives.

Yet the next day, the 416 Fire started.

Rain event>>meeting

After three weeks of the fire running up and down hills in the Hermosa Creek Watershed Area and terrorizing the homeowners on the west side of the Animas Valley, the area received some rain over the weekend of June 16th and 17th.

Fire behavior died down momentarily. It was enough to make Chief Doughty want to tell the County Commissioners at their meeting on June 21st that he supports letting the train run again.

“Our railroad here in town as an industry goes far and beyond what they are normally required to do in consideration of protecting our community against the ravages of fire with following engines with crews and firefighting equipment, with hiring a helicopter, which they very graciously don’t just use for the railroad, but allow the local fire departments access to as well in case we need them,” Doughty said.

“And that advent that there are local resources that could come into play that may very well be requested so that we could assure that we get that return of the economic benefits of having our train running, and do everything that we can to protect against having any other fire events happen. It’s my belief that we are at a point where we could support efforts to do that fairly safely. I know I was unasked, but that’s my two cents worth on that.”

Commissioner Julie Westendorf responded to the chief’s comments by clarifying that stage 3 restrictions wouldn’t ban all trains from operating–only coal-fired trains.

Westendorf made it clear that before the 416 Fire started, there may have been crews, firefighting equipment and a helicopter available, but that did not stop the fire from blowing up beyond what local resources could handle.

Commissioner Gwen Lachelt agreed with Westendorf in saying that it was too soon to downgrade back to stage 2 restrictions since fuel conditions would quickly change. Also, the community as a whole would disagree with the train running at the time due to the risk of it starting fires, she said.

Later in the meeting, the commissioners decided against downgrading to stage 2 restrictions.

In all, the commissioners didn’t talk much about the risk that the coal-fired train poses during stage 2 fire restrictions, even though that’s when the train may have started the 416 Fire.

DFPD denies all records requested from 5+years ago

Part of this story involved asking officials at the Durango Fire Protection District for fire incident reports about wildfires it had responded to that were either started by the train, or that had an unknown ignition source by the train tracks.

My records request to DFPD was managed by HR Administrator Megan Kunch. This image used here without the permission of the photographer or poster.

On June 22 I requested the name of the train fire that DFPD responded to in May of 2018.

In response on June 26, DFPD’s HR Administrator Megan Kunch provided me with two fire incident reports from May of 2018:

Fire Incident Report, 5/17/18, US Highway 550
Fire Incident Report, 5/17/18, Shalona Lake

On August 29, 2018 I requested the NFIRS fire incident report for the wildland fire incident that occurred on January 1st, 2018 up by Rio Grande Drive.

Since the fire in question happened two days prior, on December 30, 2017 there was no report from January 1st.

“DFPD has no record of any occurrence in that area during that time frame,” said Kunch.

After I learned the exact address and date of December 30, 2017, when the fire occurred, I submitted another request to Kunch on October 3, 2018, which she responded to on October 8, 2018.

Apparently, if you don’t know the exact date of the fire incident for the record in question, DFPD won’t help you find it.

I wanted to see fire incident reports from fires that DFPD responded to on Irongate Way in 2002, but since I didn’t have the exact dates, and because the records were too old, Kunch was not willing or able to help me.

“The Act does not require District staff to conduct research, answer questions or offer opinions,” said Kunch. “Much of your request involves research,  answers or opinions and does not identify any specific records of the District.”

After asking Kunch about who I could direct my questions to regarding records that were retained by the Durango Fire Rescue Authority in 2002, Kunch said that the District has no legal responsibility to provide such records.

“Durango Fire Protection District conforms to the Colorado Special District Record Retention Schedule,” said Kunch. ” That requires us to maintain fire incident reports for 5 years.”

Reconnaissance/shuttle helicopter for D&SNGRR

Southwest Heliservices is the company that does reconnaissance work for the D&SNGR during the fire season, according to an employee of Aerowestern, a company that’s owned by Southwest Heliservices.

George Ezell, the president of Southwest Heliservices, did not return a voicemail of mine on October 9, 2018, when I requested comment on the services that they offer to the D&SNGR.

The company uses various type 3 helicopters to do wildfire reconnaissance for the D&SNGR.

Train regulation, liability of railroad company
Colorado Revised Statute, Train regulation, penalty for noncompliance
Train regulation, fireguard by plowing

Adam Howell is a writer who lives in Durango. He can be reached by clicking on this link to the contact page.