McDonough will testify if legally required

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(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.

 Investigators inspect the location where the Granite Mountain Hotshots were entrapped by flames three days earlier.

Investigators inspect the location where the Granite Mountain Hotshots were entrapped by flames three days earlier.

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.

Wildland Division Chief Darrell Willis, center, answers media questions at the deployment site where the Granite Mountain Hotshots died. Photo: John Dougherty

Wildland Division Chief Darrell Willis, center, answers media questions at the deployment site where the Granite Mountain Hotshots died. Photo: John Dougherty

“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.”

In the meantime, McDonough is not expected to make any statement.Screenshot 2014-11-10 14.26.50

“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

Comments

  1. Robert M. Winston says

    I have a story to tell about that “arrogance” and hyper “esprit de corps” that Mr. Larry Sall states in his comment above.

    I was “lured” out to Prescott from Boston to be hired and work in what I thought was going to be my dream-job in wildland/urban interface fire protection. That was back in late 2001 and that dream job ended abruptly in 2002 during the huge Rodeo-Chediski Fire near Show Low, AZ. I was an “outsider” from a big city fire department and was assigned as an Engine Strike Team Leader (trainee) at that fire. The Type-1 IMT’s Operations Chief was Roy Hall, who is one of three individuals that had been named in a litigation for alleged negligence as the IC at the Yarnell Hill Fire.

    During my time at the Rodeo-Chediski Fire I had the “nerve” to show my concern about what I thought were violations of firefighting safety protocols and was immediately “black-listed” by Hall and others in the wildland fire world in AZ. My “dream job” ended and I, in writing, requested a hearing on why I had been concerned about Firefighter safety and why I was being treated so cruely. I was denied that request by a deafening silence. There was a lot more to that story and I wish that I could tell it all. It has troubled me all these years.

    • Joy A Collura says

      Thank you. Thank you. Thank you Mr. Winston. It is history accounts like yours and people who were on the yarnell fire who we did not go to you…you came to us. Do you read Mr. Winston comment. Beautiful. Hard to do. You all know exactly who you are that I am speaking about that the world and these nineteen men and their loved ones NEED you to be simple and pure like Mr. Winston just did. There may come a time and even know you were led to us we may have start. dropping names on who to John/select few/ OSHA and it will be hard to do because we know the sensitive matter of your life and career would be on the line. I wish I can say ITS TIME but only God will do that. Thank you thank you thank you Mr Winston because theree is many accounts just like yours and I hope they read your comment and this thread becomes a pure confessional area.

    • The Hikers says

      We really appreciated your comment. We truly hope EVERYONE that came to us that was on that fire read YOUR comment.. We hope they realize going to the hikers with their account…the people who need to hear YOU ALL are people on here and investigators because we are just the hikers.
      why share to us?

      • Sonny Gilligan says

        My turn. Seems to me they are trying to lay all the blame on Marsh and Steed.
        ConvenientlyWillis stated that all communications were lost after Marsh/Steed were safe in black. Who then convinced them to drop off in that canyon. When that hot day early on you could not driven me. down there with a stick. It would be nice to have all the phone records to investigatorsto determine who made those last communications and to whom. Nineteen deaths demands strick examination and the closest scrutiny of all evidence

    • Larry Sall says

      Hey Robert,

      If you feel like telling the rest of your story go ahead! The sooner we identify the “hay seeds” and remove them from professional wildland firefighting the better. Once we get them by the nuts don’t let go.

      Larry

    • WantsToKnowTheTruth says

      Also adding my own ‘Thank You’ to Mr. Winston for having the courage and taking the time to share his ‘story’.

      It IS relevant to what most likely happened in Yarnell on June 30, 2013.

      The ‘story’ that has always been ( slowly and painfully ) emerging from the Yarnell Hill Fire tragedy involves the existing ‘culture’ of Wildland Firefighting as much as it does any tactical and decision making errors.

      Brendan McDonough himself was specifically asked about the existing ( and hard-wrought ) RULES of WFF firefighting ( The 10/18 and LCES ) during one of his ADOSH interviews and his response was that he considered most of that to just be “Hillbilly stuff”.

      He also said “We’re smarter than that now”.

      That displays an arrogance and a kind of ‘campfire talk’ that exceeds his only 2 full seasons of experience as a WFF firefighter… so it is more than likely he was just reflecting what he was ‘taught’ or ‘told’ in that timeframe by the people and the supervisors he was working with.

      SAFETY is, first and foremost, about ATTITUDE… and only then can the actual established rules of the profession come into play and be respected as well as observed at all times.

      If there is some kind of ‘good ‘ol boy’ and/or ‘go along to get along’ syndrome that is prevalent in this multi-billion ( yes, billion with a ‘B’ ) industry that has become institutionalized to the point where people can be KILLED because of it… the guess what?

      That’s a PROBLEM.

      A PROBLEM that needs to be FIXED.

      Being afraid to lose your frickin’ job to the point where you would NOT speak up because of ‘safety’ issues or when you are being asked to take unnecessary risks is unacceptable.

      So thanks again to Mr. Winston for sharing ‘his story’.

      I hope others do the same.

      If MORE people actually do… then CHANGE ( for the better ) in this area is inevitable.

  2. Larry Sall says

    You’re right . John is doing a fantastic job following up on the Yarnell Hill Fire fiasco. Any information relevant to why the Granite Mountain HS moved from the black into the green needs to be exposed. Let’s get Brendan deposed and pry the lid off of this investigation.

    I have always suspected the actions of Marsh involved his ego. A hyper “esprit de corps” if you will. Throughout history mistakes have been made through arrogance instead of fear. Bad decisions were made on Yarnell Hill from the top down and Marsh may have been lost in the “Fog of War” seeing a chance to save a structure and win the day!

    In my opinion the same bravado killed the El Cariso Hot Shots on the Loop Fire in 1966 on the Angeles National Forest in Southern California. History does repeat itself and even “lessons learned” in print, through lectures or “staff rides” cannot gaurantee the same tragedy won’t happen again. It will.

    When a person signs up for a season or a career in firefighting, he or she takes the Risk. What kind of supervisor will you get? Will you get the Supervisor with that logical sixth sense in a tight spot or the one that cuts and runs into the brush. Who knows?

    Be safe.
    Keep one foot in the Black.

    Larry Sall
    Little Tujunga Hot Shot
    Angeles National Forest
    1970/71

  3. WantsToKnowTheTruth says

    Kudos to John Dougherty and InvestigativeMEDIA for this ‘update’ on the news that’s been ‘popping’ lately with regards to this ongoing and unfolding story.

    But it is still UNCLEAR what is actually STOPPING Brendan from “telling all he knows”.

    Mr. Shapiro makes some vague references to things, but still does NOT make it clear why the already-scheduled February 26, 2015 under-oath deposition did NOT take place.

    According to public documents in the ALJ Hearing File(s)… that pre-scheduled deposition of Brendan McDonough was ‘all arranged” and BOTH sides of the ‘table’ ( Arizona Forestry and ADOSH ) appeared to be fully in agreement that it CAN and SHOULD take place and they were both in the process of ‘preparing’ for it… when it was suddenly ‘cancelled’.

    Was it actually cancelled by Mr. Shapiro himself?

    We still don’t seem to know.

    We also still don’t know what Mr. Shapiro really means by “The PROPER TIME”.

    The PROPER TIME for Brendan McDonough to have told all he knows was during the actual official investigation(s) of the Yarnell incident. He chose NOT to do that… so it’s hard to say now what Mr. Shapiro thinks is the ‘new’ PROPER TIME for him to do what he should have done in the first place.

    Anyway… thanks again for your good work here.
    More to come on this, I’m sure.

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