Forest Service improperly withholding fire records, attorney says

2022 Jemez-area fire spurs lawsuit, allegations of cover-up

By the time criminal investigators from the U.S. Forest Service arrived in early June 2022, …

For the past five months, officials with the U.S. Forest Service have refused to turn over records they say are related to a law enforcement investigation into the cause of last year’s Cerro Pelado wildfire in the Jemez mountains.

But an Albuquerque attorney requesting the records alleges in a recent court filing that it’s no secret that the investigation involves allegations that U.S. Forest Service personnel falsified statements regarding the origin of the fire, “as well as backburning to attempt cover-up.”

Albuquerque attorney Christopher Bauman, of B&D Law offices, also contended in a lawsuit that the Cerro Pelado wildfire started April 22, 2022, as a “prescribed burn” by the U.S. Forest Service. The Forest Service hasn’t publicly announced the cause.

The Cerro Pelado wildfire began two weeks after a prescribed burn west of Las Vegas, N.M., led to the biggest wildfire in state history — the Calf Canyon/Hermits Peak Fire. The Cerro Pelado fire in the Jemez mountains destroyed more than 45,000 acres before it was fully contained in mid-June 2022.

Bauman has sued the Forest Service for improperly withholding agency reports and plans about the Cerro Pelado wildfire in violation of federal public records law.

Officials with the Forest Service’s Southwest Regional Office didn’t return a request for comment last week. Neither did the agency’s national press office.

But in responding to the FOIA request in March, Forest Service Law Enforcement Bureau Special Agent in Charge James Alford wrote, “Based on the nature of the investigation of the Cerro Pelado Fire, withholding the investigative documents during the investigatory period is appropriate.”

“Early disclosure of findings may interfere with pending enforcement proceedings related to the Cerro Pelado Fire,” he wrote. The correspondence was attached as an exhibit to the lawsuit filed June 14.

Bauman, who didn’t respond to Journal requests seeking comment, is asking a U.S. magistrate judge to issue an injunction requiring the documents be produced.

Bauman’s firm is representing TC Company, a Rio Arriba County firm that lost property and income due to the Cerro Pelado fire, the lawsuit states. The company requires the records from the Forest Service to assess “any further litigation against the USFS from the Cerro Pelado fire,” the lawsuit states.

A U.S. magistrate judge has scheduled a hearing next month in the case, but it’s unclear whether any of the requested records will become public then.

An assistant U.S. attorney representing the Forest Service in the lawsuit said through a spokeswoman last week, “We have informed the agency of the action and they are in the process of gathering responsive documents to the FOIA request.”

Bauman is seeking reports on the fire produced by three employees, two of whom are special agents with the Forest Service’s law enforcement bureau.

One of the employees, Bauman alleged in his FOIA request, wrote a report that contained “flagrant factual misrepresentations” that were discovered by one Forest Service official and confirmed by another.

In an initial request under FOIA, the Freedom of Information Act, Bauman asked for the unedited versions of the reports, before the Forest Service made edits, and the versions after the edits. He also asked for all “cause and origin” reports on the fire.

In a follow-up request Feb. 27, Bauman also asked for the “burn plans” related to the Cerro Pelado wildfire and modifications to such plans, which typically set out how prescribed burns will be handled once ignited.

Prescribed burns are considered crucial to reduce the risk of wildfires, but they attracted new scrutiny after the Calf Canyon/Hermits Peak wildfire.

The Hermits Peak fire west of Las Vegas began on April 6, 2022, as a routine prescribed burn that quickly got out of control in dry conditions and high winds.

The nearby Calf Canyon Fire erupted from burn piles that had been set months earlier by Forest Service crews and had been considered dormant.

By the time the Calf Canyon/Hermits Peak blaze was fully contained in August 2022, it had burned more than 341,000 acres and destroyed more than 400 homes. The Forest Service in May suspended prescribed burn operations for 90-days across the U.S. to conduct its own nationwide review.

Meanwhile, the Jemez fire was fully contained in less than two months, partially burning within the burn scar of the 2011 Las Conchas Fire, and near those of the 2013 Thompson Ridge Fire and the 2017 Cajete Fire.

At least 10 structures were lost in the fire, but no injuries were reported. Sandoval County issued evacuation orders for Sierra de Los Pinos and other communities near the fire. And Bandelier National Monument was closed for a time as a precaution.

Los Alamos Fire Chief Troy Hughes told the Journal last week his crews helped provide support to the firefighting crews on the Cerro Pelado Fire and he was at the fire scene the first day.

It was “definitely not” a prescribed burn, Hughes said, adding, “It came out of nowhere, we had tremendous winds that night.”