Plaintiffs wrap up case

PALMER -- Attorneys for the property owners suing the state's Division of Forestry over the 1996 Miller's Reach fire wrapped up their case last week with the testimony of an expert witness who said he has been paid nearly $60,000 for working as a consultant to the plaintiff's attorneys.

The witness, retired forester Stanley Kunzman, also sits at the center of a huge swirl of information. He has read the depositions of other witnesses and summaries of testimony that preceded his own. He's also gone over training manuals, handbooks and past dissections of the response to the fire. He's even taken a field trip to Houston to walk the area of the initial fire in the woods off Rapalla Street, a cul de sac near the end of Miller's Reach Road. Aside from the jurors, Kunzman may have studied the case more than anyone else who isn't either an attorney, a plaintiff or one of a handful of State of Alaska Division of Forestry employees who have sat through four weeks of testimony so far.

Kunzman resides in Bend, Ore. He is a career forester who told the court he retired from the United States Forest Service in 1994. He is currently listed as a "training coordinator" on the Web site of the National Wildfire Suppression Association, and is one of two employees with contact information at the top of the NWSA home page. NWSA claims to be the largest "association of private sector contractors in the United States," who provide wildland fire support to government agencies. The contractors provide emergency and pre-emergency services for firefighting and emergency management, leasing equipment such as bulldozers or selling services such as catering during a disaster response or training beforehand. NWSA provides training and lobbying efforts on behalf of its members. The association boasts of building relationships with "key congressional leaders" on its Web site.

Plaintiff's attorney Jerry Nolting set Kunzman up with questions to explain his credentials -- much of his recent work has been in the upper echelons of logistics management on large fire fighting mobilizations. Nolting gave Kunzman an opportunity to explain whether he thought of himself as a professional expert witness almost immediately after putting him on the stand.

"I don't know if I'm a professional witness or not," Kunzman said.

Nolting then asked Kunzman to tell him how much he was billing the plaintiff's side.

"$175 per hour," Kunzman said.

"Does the fact that we're paying you to be here have any bearing or influence on your opinions in regards to this case?" Nolting asked.

"No, it doesn't," Kunzman said.

The Miller's Reach Fire started June 2, 1996, escaped on June 3, and burned approximately 37,000 acres during the next 12 and-a-half days, according to a state-generated review. More than 1,000 people were evacuated and 344 structures were destroyed, according to the review. No one was killed in the fire.

The theme of the plaintiff's case against forestry is that the fire was mishandled in the first 27 hours, during the initial attack on the fire. The plaintiffs used Kunzman to provide an overview of their case.

Kunzman's opinion was, perhaps predictably, a mirror image of the arguments the plaintiffs have been building for weeks with eye-witness testimony and the seven-year-old recollections of people on the scene: Forestry should have made better use of local volunteer firefighters instead of sending them home after the initial attack on June 2; at least one forestry employee smoked marijuana on the morning of June 3; forestry firefighters didn't have enough fire hose ready on June 3; and forestry firefighters should have eaten dinner on the fire line on the evening of June 3, but instead left the line for dinner.

Kunzman told the jury that none of his individual criticisms were enough to find forestry negligent, but taken together, several mis-steps added up to negligence.

"If [forestry] had used all of the available resources, they could have mopped up that fire in a 24-hour period instead of planning to mop it up over a three- or four-day period and have three or four days of risk out there," Kunzman said. "My opinion is that [forestry] should have kept the rural fire departments at the cul-de-sac. They had a good water supply … having a type I fire engine there would be an excellent part of a contingency plan in the event of an escaped fire."

The state has blamed the escape of the fire on sudden un-forecasted high winds that stirred embers during forestry's mop-up operation on June 3. The mop-up area was in a stand of black spruce. Whole trees reportedly ignited, and the fire spread through spot fires that were chased down by forestry personnel. Spot fires started outside the fire line and soon the firefighters were calling for an evacuation of Miller's Reach Road and of Big Lake area neighborhoods.

Kunzman told the jury that high winds are often the after-the-fact reason firefighters give when a fire escapes. He also said that when black spruce trees ignite, they can start spot fires with embers thrown as far as 800 feet away. Kunzman said that often the firefighters closest to the fire are likely to over-estimate the wind speed, especially when trees ignite in flames that climb straight up, limb-to-limb.

"Excuse my English, but it scares the hell out of you," Kunzman said. "It is a very startling [thing to see]."

It appeared in court last week that Kunzman's job for the plaintiffs was to provide an overview and to put all of the previous testimony into one package. Two amateur video tapes taken of the fire from a distance were shown to the jury during Kunzman's testimony. Several plaintiff's witnesses already testified that there was no wind, or at least very little wind, on the evening of June 3 when the fire escaped.

The video tapes clearly showed spruce trees swaying in the foreground, and in one -- taken from a runway -- dust flew by the camera's lens. Kunzman pointed out the wind during both screenings, and minimized it. One videotape shows smoke drifting away from the top of the main column of smoke and the camera abruptly tilts upward to track the smoke across the sky. Both videos have fast pans that made it difficult to see which parts of picture Kunzman was trying to point out, but jurors had a better seat than the courtroom audience.

"There is definitely a wind on this fire, and you can see the tops of trees swaying," Kunzman said. Then he pointed out a pole in the picture with some ribbons or flagging attached to it. He told the jury the ribbons weren't flapping enough to indicate high winds. He treated the dust on the runway in similar fashion, pointing it out to the jurors and then commented that it wasn't a "dust devil."

On cross-examination, the state's attorney, Tim Lamb, walked Kunzman through an accounting of how much he was billing the plaintiffs for his time. Attorneys for forestry have hired their own expert witness and this sort of impeachment attempt could replay itself later on in the trial with a different attorney and a different foil.

Lamb -- with help from Kunzman -- crunched the numbers and showed that Kunzman's fees so far were about $59,800 for approximately one quarter of a year's worth of work, based on a 40-hour work week. Kunzman's salary when he retired from the U.S. Forest Service was about $68,000, according to his testimony. Kunzman got laughs from the courtroom when he insisted on adding a caveat to the calculation of his consultant's fee.

"I'd like to add one more calculation to that sir," he told Lamb. "Federal and state taxes take 53 percent of that."

Lamb also tried to raise doubts about whether Kunzman's experience might be too far removed from hands-on firefighting to be relevant. Lamb asked when Kunzman last worked a fire, to which the witness replied: 1988. Lamb tried to establish for the jury that Kunzman's most recent experience was in management on large events with hundreds or even thousands of people responding. Kunzman agreed that it was, and when asked, confirmed for Lamb that the last time Kunzman worked on the initial attack of a fire was in the mid 1970s.

"The basic principals are the same and as we learn more things we put them into our fire line manuals," Kunzman said.

Lamb tried to use Kunzman's expertise to forestry's advantage by asking Kunzman to tell the jury if forestry did anything right during the initial attack.

"Well yes, they did a very good job of stopping the forward rate of spread on June 2," Kunzman said.

Attorneys from both sides had Kunzman dissect firefighting manual entries. The plaintiffs emphasized an entry in one manual that describes "critical protection" areas, or areas in which a fire, if it escapes, can threaten people and private property. One manual recommendation is to attack fires in critical protection areas "immediately and aggressively using available resources until the fire is out."

"Is there anything in that policy that says do it on the cheap?" Nolting asked Kunzman.

This drew an objection from Lamb and the attorneys approached the bench for a moment before Kunzman answered a re-phrased version of the question.

"No," Kunzman said after Nolting rephrased. "I see no fiscal limitations in that policy."

The plaintiffs routinely use such manual entries in their case to try and build an argument that the state violated what their attorneys call "basic rules of firefighting." For their part, the state has been describing the documents as "guidelines," and not hard and fast rules. Since before the lawsuit forestry has maintained that its firefighters followed normal procedures and did nothing wrong.

The state has also been cast into the awkward position of trying to minimize the story of the marijuana-smoking firefighter. Forestry employee Tim Pete admitted in a deposition that he smoked marijuana with "a couple" of other firefighters on the morning of June 3. Pete was a member of forestry's Copper River crew in 1996. The plaintiffs also have a deposition from Pete in which he testified that he got lost when he was sent to bring more hose to firefighters who were chasing spot fires outside the fire line after 7 p.m. that night.

Lamb read an entry from Kunzman's report for the plaintiffs in which he wrote that the marijuana was a factor in rendering the Copper River Crew ineffective. Lamb wanted to know if three people smoking marijuana in the morning would affect their 16-member crew 12 hours later.

"Wouldn't you agree that [the marijuana incident] doesn't render the entire Copper River Crew ineffective 12 hours later does it?" Lamb asked.

Kunzman said he doesn't have direct knowledge of marijuana's effects or how long those effects may last. Lamb asked the witness if he understood the effects of beer, and if he had ever had an alcohol "buzz" or a hangover. Kunzman said he recalled alcohol experiences from while he was "in the service," but stopped short of direct answers. He was, however, adamant that the marijuana opinion in his report was sound.

"I don't have any factual knowledge [about marijuana's effects], not being a medical person," Kunzman said. "What I'm telling them is that there was a violation of [the firefighter's] conditions of hire."

The plaintiff's attorneys finished up the first portion of their case Friday, when they took testimony from their last witness. Forestry's team of defense attorneys started calling witnesses to the stand case last week. Their first witness took the stand Thursday and returned Friday. The defense team expects to call 24 witnesses and expects the testimony to last until Tuesday, April 15. Closing arguments should follow immediately.