Print friendly
E-mail story
Tip Us Off
iPod friendly
Comments
Bookmark This
del.icio.us.
Digg!
furl
google
newsvine
reddit
technorati
Facebook
Yahoo!At an early morning press conference, clearly sensitive to criticism by 1st District Supervisor Salud Carbajal over the seeming lack of progress in Jesusita Fire investigation, Acting District Attorney Josh Lynn noted that the process of completing the investigation, reviewing all of the documents, and coming to a decision as to how to proceed was extremely time intensive. “It was very important our office get it right,” Lynn said, rather “than to get it done quickly.”
Paul Wellman
Acting District Attorney Joshua E. Lynn opens the Jesusita Fire press conference with County Fire Chief Michael Dyer.
After a few additional statements, including a thanks to all of those in emergency response organizations for bringing an end to what Lynn termed “a disaster that was devastating to our community,” Lynn opened up the balance of the press conference to questions for Senior Deputy District Attorney Jerry Lulejian, who will be prosecuting the case.
Two main areas of questioning emerged: the charge of operating a weed whacker without a “hot work permit,” and the connection between this violation and the cause of the Jesusita Fire.
Lulejian noted that whenever any type of equipment capable of starting a fire is brought into a high fire risk area, a hot work permit is required along with what he termed a “laundry list of procedures that need to be followed” to insure that the work is done safely including having a shovel, fire extinguishing equipment, and personnel to watch over the area for at least 30 minutes after the work is completed to make sure there are no hot spots left behind. “We do believe the code does apply and that the charge is appropriate,” Lulejian said.
Strings Only: When further pressed regarding what actually is meant by hot work, which typically would involve an open flame as during a welding operation, or sparking, as occurred in the use of the grinding equipment which caused the 2007 Zaca Fire, Lulejian admitted that a typical weed whacker outfitted with nylon string would not need a permit, so home owner’s who do brush clearance would likely not need a permit.
Paul Wellman
Santa Barbara Senior Deputy District Attorney Jerry Lulejian
“When you put a metal blade on a weed whacker,” Lulejian added, “then a hot work permit is needed.” When asked if the defendants were using a weed whacker with a metal blade, Lulejian responed, “That would be the case.”
Lulejian further explained that each agency takes responsibility for setting its own guidelines for use of equipment in high fire risk areas. Because the equipment was being operated on State-responsibility lands, the Santa Barbara Municipal Code and California Fire Code apply. Had the work been done within Los Padres Forest, he said, its rules would have applied. Interestingly, though the work was being done on a section of the public trail that passes through Santa Barbara County property, the easement for maintaining the trail is held by the Forest Service, which may cloud the issue of whose rules prevail.
Proving Cause: The defendants are not being charged with starting the fire, only for operating equipment without the required permit. Lulejian was questioned extensively regarding the connection between the charge (operating without the hot permit), and the cause of the Jesusita Fire.
As noted in the press release, the DA’s office plans to seek criminal restitution should Olsen and Ilenstine be convicted and it appears CalFire may seek civil cost recovery as well. Lulejian said his office may seek such damages even if defendants aren’t being charged with starting the fire, and as part of seeking criminal restitution during prosecution of the case he will be required to prove causation between the use of the equipment and the start of the fire. “I won’t get into the details of the case,” he said, “but proving cause will be a part of it.”
In making the connection between Ilenstine, Larsen, and the fire itself, it appears the DA will need to connect the use of the weed whacker to a time frame close to the time when the fire started. Lulejian would not comment on the time of the day the equipment was being used.
Paul Wellman
Santa Barbara Senior Deputy District Attorney Jerry Lulejian (right) and County Fire Chief Michael Dyer discuss the Jesusita Fire case
Attorney Disputes Charges: When civil attorney Kathy Johnson read about the charges stemming from the Jesusita Fire investigation, she was incensed. She and her husband lost their home on Coyote Drive in the Tea Fire and understand the desire to find someone responsible for their loss.
“Obviously losing a home is traumatic, but we have tried to keep a positive outlook on life,” Johnson explained to me over the phone. “We were somewhat frustrated with the way the DA handled the kids who likely started the Tea Fire. As a lawyer, I understand that it may have been difficult to prove that the bonfire became the inferno called the Tea Fire, but there was no question that those kids were trespassing and built a fire.
“This case has me furious because the fellows charged were engaged in a public service, came forward of their own volition and do not believe that their actions caused the fire. The DA’s office seems to be stretching to find someone to charge with something, and in the process they are seriously damaging the reputations of good, upstanding citizens. These are adults with families who live and work in this community, not a bunch of irresponsible students,” she said. “It’s just completely unfair.”
Johnson is particularly concerned that the statute that Larsen and Ilenstine have been charged with violating was never intended to apply to weed whackers used to clear brush.
“The statute is in a chapter of the California Fire Code entitled ‘Welding and Other Hot Work’,” she said. “That is clearly intended to regulate welding, brazing, soldering, and other open-flame type activity, not brush clearance.
“The provisions of the Fire Code that relate to brush clearance have no mention whatsoever of any permit requirement. Contrast that with the Santa Barbara Municipal Code [Title 08 - Fire Code] has some specific statutes that deal with fire safety and suppression. Section 4715.5 is the section that specifically regulates to brush-clearing activities with power tools. It says you only need to have a shovel and a fire extinguisher on hand - no mention of a permit.
Paul Wellman
L to R Santa Barbara Senior Deputy District Attorney Jerry Lulejian (left) leaves the Jesusita Fire press conference with a bundle of paperwork related to the case, with former Acting District Attorney Joshua E. Lynn and County Fire PIO Capt. David Sadecki
“In that same statute, a different section [4715.8] regulates open-flame activities, like welding and the other true ‘hot work.’ This section clearly requires a permit. If the portion of the trail where brush clearing was going on was in the City of Santa Barbara, those statutes would apply and there would be no grounds for any charges relating to a permit requirement. The County Code is much more vague, but I think you can see that ‘hot work’ and operating power tools for brush clearance are clearly two different things.”
“It looks to me like the DA’s office has really stretched to try to find a statute to fit their political desire to bring charges against someone, anyone, in connection with this fire,” Johnson said.
Johnson also wonders how Lulejian, should he succeed in applying the hot permit code requirement when the case comes to trial, will link the violation to the cause of the fire.
“If they were able to do that,” she says, “then they would have filed more serious charges relating to the fire itself. We are talking six months of investigation between County Fire and the District Attorney’s office and this is all they can come up with?”
Related Links
Double-clicking on any word or phrase in this story will open a reference window with definitions and links to other reference material.
Previous Month
Comments
Discussion Guidelines
Power tools generate heat when operated... duh. Tools with metal blades cause sparks... duh. Operating power tools with metal blades in hot dry conditions is doubly stupid. End of story.
LRaf (anonymous profile)
December 11, 2009 at 4:25 p.m. (Suggest removal)
Cutting brush in the national forest with gasoline powered tools on a hot windy day is beyond stupidity and is a nice fit for criminal negligence. Society has to be protected from the dim witted and clue less. Instead of lawyering up OJ style some karma can be redeemed by a public mea culpa and a few thousand hours shoveling ashes and mud.
reality_check (anonymous profile)
December 12, 2009 at 11:07 a.m. (Suggest removal)
I have to agree with Kathy Johnson. The DA is charging them with violation of a law that has NEVER been enforced and there is no proof the weed whacking started the fire.
DA's office seems to be stretching to find someone to charge with something.
Top that with the Tea fire 10 punishment -- this it is a waste of time and money on everyones part...
loneranger (anonymous profile)
December 12, 2009 at 3:18 p.m. (Suggest removal)
TRULY STRANGE LEGALISTIC "value structure" - OR its conspicuously noted absence - within an 'a-moral' DA office =
Starting a fire which destroyed 78 homes; eliminated more than 5,000 acres of U. S. Forestry land; disrupted thousands of local residents through mandated evacuations -- is a less serious crime ['misdemeanor'] in the eyes of the local DA -- than a returning Iraq War veteran, who 'righteously protested' the quality of VA medical and mental health care on a Highway 101 over-pass, which local law enforcement opted to shut-down that freeway for hours - "in the interests of public safety"!
MY GAWD, people!
For how much longer shall governments - at all levels - be allowed to continue running amok?
THEY REMAIN SEEMINGLY out-of-control, at all levels?
NEVER MIND that the US Veterans Administration [VA] continues to prescribe medications for PTSD diagnosed combat war zone vets WITH FATAL SIDE EFFECTS - without any criminal prosecution of the VA itself.
For evidence: Just see "The New England Journal of Medicine" (January 15, 2009 edition) and an article therein titled "Alternative Anti-psychotic Medications ..."!
THE 'status quo' - in this country IS TRULY SCARY!!
And precisely how does the VA next treat its wide-spread critics? By silencing them!
The VA response - with timely assists by local lawyers in this DA's office = Medicate those vet[s], then place them under lock-down in a VA psych ward - just like the former Soviet Union did with its notorious Gulag "re-education" camps during the Cold War!
For veterans still home-less - from the Asian [Vietnam, Laos, Cambodia] and other Middle East [Kuwait, Iraq] OR South Asian [Afghanistan, Pakistan] subsequent wars - who find themselves on Santa Barbara streets this Christmas = It sort of makes you wonder just "who the real enemy was" during that Cold War and afterward!
Were those 'enemies' overseas -- or were they here at the US, after our "home-comings"![?]!
gogosian2001 (anonymous profile)
December 14, 2009 at 2:58 a.m. (Suggest removal)
General Comments:
This case will now ensure even futher decline in volunteer and activism projects and public/community service especially with "trail gnomes".
Opposition to Suit:
1) Metal blades DON'T spark on dirt, brush or other NON metallic surfaces. I have yet to see a metal handrail or any metal objects on Jesusita trail, maybe a sign or some litter?
2) If this were the case of a GAS powered motor being "exposed" to the elements, why do we allow VEHICLES into the area and homes with BBQ's and other flammable tools, substances and uses. Not to mention their own weed whackers.
Personal:
1) Sorry everyone lost memories, pets, maybe even suffered a material loss. But unfortunately you had a choice or your family had a choice from which you inherited your property if you did not build yourself. You built in a risky, high fire area which statistically goes up on a regular basis from a natural fire or a man created disaster.
2) DA is trying to use this case to redeem their public opinion from the complete failure in properly handling the tea fire teens. The tea fire I know had two TERRIBLY injured people involved and they let them get away on top of HUGE MATERIAL LOSS and countless other misdemeanor and in fractional breaches of law including but not limited to trespassing, open fire in high fire area, loitering , probably underage drinking.
3) After six months of effort they need to show a result(DA's office) , or else so why not blame public servants. Maybe well get lucky and they will make a habit out of this. We can sue county fire and the DA's office next for wasting 6 months of research chasing down leads to try and make this "joke of a case". Honestly, as Kathy Johnson stated, they are stretching the law beyond a reasonable doubt. Instead of wasting 6 months on research and fire investigations lets just hire more fire fighters, and have them SURVEY any work in high fire from BUILDING YOUR BEAUTIFUL HOMES with those POWER TOOLS , to gardening , or how about installing an outdoor fireplace or even buying a BBQ.
4) In closing, my advice would to plead innocent, they have no proof and as long as you can show that you had a fire extinguisher and shovel and you WERE NOT operating a torch or open flame tool or any kind. Then the charges must be dropped. Else, your opening up a FREE loophole for these politicians to feel justified in wasting 6 months of tax payer money. (Note: DA John Lynn "It was very important our office get it right." Looks like you are getting it wrong so far.
jonny827 (anonymous profile)
December 14, 2009 at 4:34 a.m. (Suggest removal)
My first thought would be to plead no contest, but Jurors don't know what that means and so they would side with your plaintiff in any civil case unfortunately so that can't shield you from the civil suit's. Let these "get it right" DA's office and County fire prove beyond a reasonable doubt that a metal blade on WOOD and dirt can cause a spark, let them prove the INTENT of the law for those torches applied to gas driven tools not just open flame. Innocent until proven guilty! It could have been a smoker, an arsonist or a natural cause, or a MILLION other things.
Note: Does the city have "hot work" permits for those tractors they have at the water treatment plant? I bet I could build a case on those starting the fire too since their smoke stacks expose the combustion of a DIESEL motor which requires a HIGH COMPRESSION SPARK to turn over. I don't see fire extinguishers or shovels around them. The other issue is law in general. For a law to be just and enforceable it has to be equally enforced . These two individuals are being discriminated against as selected from a group, I would bet if they subpoena the records from the Sheriffs department and other governing agencies there hasn't been a ticket or citation given for this in numerous years since its "low priority" or maybe its just NOT BEING ENFORCED. Then I would subpoena EVERY trail gnome that worked on a trail with any kind of power tool since the last citation was handed out and require testimony to them working with a gas powered power tool. Why don't we charge them all and we can reopen some investigations of ever fire we have no justified cause for and use the weed whacker excuse...
Also, note the COUNTY PARKS DEPARTMENT IS GUILTY OF BREAKING THEIR OWN LAW. County Parks , such as Torro Canyon, Manning Park, Arroyo Burro etc ALL USE power tools to clear. At Toro Canyon they clear the trails yearly with Chainsaws, weed whackers and gas powered leaf blowers. So counter suit time because I know they don't have a shovel and extinguisher around when they use them. I should know as I was a volunteer for them.
So discrimination suit or will the DA do the REAL RIGHT THING?
jonny827 (anonymous profile)
December 14, 2009 at 4:35 a.m. (Suggest removal)
rstein9 (anonymous profile)
December 14, 2009 at 6:14 a.m.
Reality Check, to compare what the trail gnomes did to what OJ did (non-defensive double homicide) is beyond disgusting.
And really, they shouldn't get lawyers to help them against this prosecution which could ruin them and their families for generations? Really? I don't believe for a moment that you would apply that standard to yourself or anyone you care about. "Shoveling ashes and mud"? Like, you think they don't do that already? They're trail volunteers, that's what they do. You do any public service yourself? Or is that in your mind reserved only as punishment for the dim-witted?
Trail gnomes, don't plead guilty! The equal protection clause of the US constitution protects you from retaliatory enforcement of laws! It's not open & shut, but here's just one opinion I found in a .5 second Google search: http://www.scalc.net/decisions.aspx?q...
"The equal protection clause requires that all persons similarly situated be treated alike. "Regulatory or enforcement decisions based on personal dislike, vendetta, or some other impermissible consideration, are anathemas to the American tradition honoring the rule of law." 421 Corp. v. Metropolitan Gov't of Nashville and Davidson County, 36 S.W.3d 469 (Tenn. App. 2000)."
Nitz (anonymous profile)
December 14, 2009 at 8:56 a.m. (Suggest removal)
Let's not forget, that "acting DA" Joshua Lynn is running for the permanent DA job! Such candidates seek all the publicity they can get......and if it isn't there, they try to create it! Lynn has a reputation of being blustery, abrasive, crude, insensitive, and combative with the defense bar in this county, and is also not well liked by many of his own DA office colleagues because of those traits.
The Acting DA waited months to bring these charges even though he knew from Day One of the fire what had happened. These two men -- honest family men and service-minded citizens -- self-reported that they had been in the area and the tools they had been using. If they had committed a crime, why did it take so many months to charge them? One guess is that no one could find a crime they had committed, or authorities could not establish that their trail work had caused the fire -- and still cannot. It appears the Acting DA politically decided that a permit was needed and that a weed whacker was a "hot tool". Balderdash. Both were faulty political decisions and a travesty that could ruin two men's lives and those of their families.
Here we have two young men doing a volunteer service to the people by clearing brush from a much-hiked trail. Yes, they were using gas-powered weed whackers -- but then so does everyone else, even the city, county, and state trail crews. Other volunteers who have done this work for years cannot recall anyone ever having to get a "hot tool" permit for such work. And when you examine the law, this is no surprise. Hot tools are torches, acetylene cutting tools, etc. -- not weed whackers for which no permit is required.
I think the evidence and the timing of this announcement strongly suggest that Lynn merely waited until he could get some political advantage from filing such charges.
The Petard
ThePetard (anonymous profile)
December 14, 2009 at 9:50 a.m. (Suggest removal)
While there is no doubt the loss of property in this fire has been devastating and determining cause to a certainty should be pursued, one should not again sacrifice the local landscape to the scaping of a goat.
After reading the article and the statements by prosecutors, this little ditty keeps replaying: Small town; small minds.
Draxor (anonymous profile)
December 14, 2009 at 10:33 a.m. (Suggest removal)
A common mistake made by law enforcement and prosecutors is to develop a theory at the beginning of a case and thereafter do everything else to support that theory -- to the exclusion of all other possibilities. In this tragic case, the two citizens working to improve the trail self-reported themselves as having been cutting weeds in the area two hours before the fire started. Aha...a "theory" pops up and thereafter evolves.
There is no way a weed whacker caused a spark that then took two-plus hours to erupt into a fire.That is why the law only requires someone working with so-called "hot tools" to stick around afterward for 30 minutes for fire safety reasons -- but this was not a hot tool.
The Petard
ThePetard (anonymous profile)
December 14, 2009 at 2:19 p.m. (Suggest removal)
To the uneducated... besides dirt, plants and wood there happens to be ALOT of rock out there on our trails and sparks can fly when metal blades have contact with rock, duh. Trained, authorized trail volunteers do not use gas powered weed wackers anyway. And there is a big difference between hiking trails and "parks". Sigh...
LRaf (anonymous profile)
December 14, 2009 at 5:03 p.m. (Suggest removal)
The bottom line; people are starting fires in the wrong place @ the wrong time. The destructive potential for Calif wildfires to destroy communities is huge.In Oakland 25 died,in the Painted Cave 1 died & the fire jumped the freeway & burned the homes @ Modoc & Hollister. The Tea & Jesuita were back to back & unusually late & early in the season. The fellow who drinks 2 cocktails & drives doesn't intend to run over the young woman riding her bicycle @ night & mangle her body, but he does. That is why there are laws in place, to prevent these horrible things from happening. It takes a while for these laws to have their intended impact, just how many lives have been saved because someone was afraid of getting a DUI?.... LOTS! Getting burned to death is a horrible experience. Losing your home isn't much fun either. How can we as a society use the law to prevent these disasters? First step close these high-risk fire areas during the fire season. Second step, determine when the fire season is. Last year it was all year. Should the fire starters be sacrificed to set an example? I personally don't think they should, but people need to know that every one else "lost their privaleges because of their actions. Tequila
tequila (anonymous profile)
December 14, 2009 at 7:54 p.m. (Suggest removal)
Great. You have Salud who does nothing unless he can score political points for it without understanding the process and this "interim" d.a. who is in way over his head.
BeachFan (anonymous profile)
December 18, 2009 at 2:38 p.m. (Suggest removal)