(Updated at 8:54 a.m., April 10, 2015 to include information from the state Forestry Division’s Nov. 13, 2014 legal brief.)
Brendan McDonough will testify if legally required about radio conversations between Granite Mountain Hotshots’ senior leaders in the moments immediately leading up to their deaths and 17 other members of the crew, his attorney says.
“Under certain circumstances, Brendan will tell his story to a court of law,” Prescott attorney Dave Shapiro says in an interview with InvestigativeMedia.com.
McDonough is the sole survivor of the 20-member Granite Mountain Hotshot crew that was killed on June 30, 2013 while fighting the Yarnell Hill Fire.
McDonough reportedly heard radio transmissions between Granite Mountain’s supervisor Eric Marsh and the crew’s captain, Jesse Steed. The men reportedly argued over whether to move the crew, with Steed eventually agreeing with Marsh’s request — or possibly order — to leave their safety zone on top of the Weaver Mountains.
Marsh reportedly wanted the crew to join him at the Boulder Springs Ranch in the valley to the east. The Hotshots were overrun by flames at the base of a box canyon about 600-yards west of the ranch. Marsh rejoined his crew moments before the rapidly approaching, 2,000-degree wild fire engulfed them.
Why the crew left its safety zone at the hottest time of the day during an extreme wild fire with an approaching thunderstorm and descended into a treacherous box canyon packed with unburned and highly volatile chaparral has been the major unanswered question looming over the tragedy.
McDonough’s testimony could answer that question. But there are enormous emotional implications not only for McDonough, but also family members of the crew.
Shapiro says he will consider all legal options available to prevent state attorneys from deposing his 23-year-old client who was acting as a lookout for the crew at a location away from the mountain top safety zone. McDonough was forced to abandoned his position by the wild fire shortly before Steed and Marsh communicated about moving the crew.
Attorneys for the state Forestry Division and the Arizona Division of Occupational Safety and Health (ADOSH) learned indirectly last October about what McDonough may have heard. Former Prescott Wildlands Division Chief Darrell Willis relayed the information to the state agencies after McDonough met with Willis on Oct. 3.
“Brendan called me late on a Friday afternoon and said he ‘needed to get something off my shoulders,’” Willis says. “We met in my office.”
Willis says McDonough provided an inconsistent account of what he overheard in radio conversations between Marsh and Steed. “It was an argument. It wasn’t an argument. It was a discussion. That sort of stuff,” Willis says.
McDonough reportedly was in Marsh’s truck preparing to drive it away from the fire line when he heard at least some of the radio traffic between Marsh and Steed.
McDonough’s revelations were so troubling, Willis says, that he and McDonough discussed whether they “needed to drive down to the state Forester’s office and say, ‘Here it is.’”
But, Willis says, it was late on a Friday and state offices would be closed.
Willis says he told McDonough, “I can’t hold this information. I have to go forward.”
Willis says he gave McDonough “the weekend to come forth with this.”
The following Monday, Willis says he contacted Prescott City Attorney Jon Paladini and state Forester Scott Hunt. Willis and Paladini met with attorneys for the Forestry Division, ADOSH and the Attorney General’s office about two weeks later, he says. Willis says McDonough did not attend his meetings with Paladini or the state’s attorneys.
Willis says he provided information to the city and state attorneys because McDonough had revealed new information that was not reported in two previous formal investigations.
“I felt an obligation to reveal the truth,” Willis says. “Whether its good or bad information, that’s information that needs to go forward.”
The state Forestry Division hired outside contractors to prepare the Serious Accident Investigation Report that was released in September 2013. The controversial report concluded that no one had done anything wrong. ADOSH, meanwhile, conducted a second independent investigation based on state workplace safety regulations and issued three citations against the Forestry Division for its handling of the fire and levied a $559,000 fine in December 2013.
ADOSH alleges the Forestry Division “failed to prioritize the safety of firefighters over the protection of non-defensible structures and property” and classified the violations “as willful serious”.
The Forestry Division is appealing the citations and fine through the state’s administrative hearing procedure. As part of the litigation, the Forestry Division and ADOSH agreed last October 29 to seek McDonough’s deposition after they heard Willis’ account. The two agencies argued, however, over when the deposition should be conducted.
Administrative Law Judge Michael Mosesso ordered McDonough’s deposition to be held on Nov. 26 — “so long as Mr. McDonough remains willing to be deposed on that date.” Mosesso’s order also stated that McDonough could be deposed a second time, if necessary.
Forestry Division attorneys stated in a Nov. 13 legal brief that McDonough “heard radio transmissions between crew members about their tragic actions in leaving the safety of ‘the black’ and heading towards the location at which they perished. Mr. McDonough may be the only person alive who heard those communications.”
McDonough, the brief states, “communicated, actually confided, to others that he wants to relieve himself of the burden of carrying information about the last radio transmissions among” the Granite Mountain Hotshots.
McDonough retained Shapiro shortly before the scheduled deposition. Shapiro informed a Forestry Division attorney on Nov. 24 that he was unavailable for a deposition that week and would not be available until mid-February.
The Forestry Division prepared another subpoena to depose McDonough on Feb. 26. Judge Mosesso, however, did not issue an order for the February deposition as he did in November, courts records show. The Feb. 26 deposition never took place.
“There is a legal process for getting Brendan’s statement,” says Shapiro, who is working pro bono.
“There are potential objections to being involved in that process,” he says. “The courts or the administrative courts are responsible for determining whether those objections are sufficient to prevent testimony or deposition. Whatever happens, Brendan will follow the law or the decisions by the courts. There is not going to be any unlawful behavior.”
“The complexities of this situation are sufficient that Brendan isn’t going to make any statement until it is proper for him to do so,” Shapiro says. “When the time comes when it is legally proper for him to tell his side of the story, he will do it.”
McDonough approached Willis to tell his story about what he heard being discussed between Marsh and Steed less than a month after InvestigativeMedia reported last September that a senior Forest Service official who was a member of the Serious Accident Investigation Team stated he was aware of reports about an argument. But Mike Dudley told a gathering of Utah wild land firefighters that the reports of an argument between Marsh and Steed could not be confirmed.
Notes from Dudley’s Serious Accident Investigation Team’s interview with McDonough on July 5, 2013 abruptly end after McDonough tells investigators that after he got into Marsh’s truck he turned up the radio to listen to the crew’s communications. At the time, Granite Mountain was communicating on an intra-crew channel that could only be heard by crew members.
“I started the truck, turned on the AC and made sure the truck radios were on the right channel and turned the volume up,” McDonough told investigators.
Both the Serious Accident Investigation Report and the ADOSH report state that McDonough then overheard Marsh and Steed discussing their options.
But neither report provides any details on what McDonough heard and based on records released to date, no one bothered to ask him.© Copyright 2015 John Dougherty, All rights Reserved. Written For: Investigative MEDIA