The U.S. Attorney’s Office has taken over the investigation of last spring’s Sawmill Fire, raising the possibility of some kind of legal action against the Border Patrol agent who told authorities he accidentally started it while off-duty.
But the parent federal agency that employs the agent is standing firm on its refusal to release information about the agent, including his salary, job title and employment status.
The U.S. Forest Service finished its work last week investigating the fire, which burned more than 70 square miles last spring on land owned by three state and federal agencies.
“That is our chain of command,” to turn the case over to the U.S. Attorney’s Office at this point, said Coronado National Forest Supervisor Kerwin Dewberry. “All of the information related to the case has been turned over to the U.S. attorney.”
Although the fire started on state land north of the Santa Rita Mountains, the feds have been leading the investigation ever since because federal property was damaged in the blaze, Dewberry said.
Dennis Dickey, an off-duty Border Patrol agent, has admitted to investigators that he accidentally triggered the fire through his use of an exploding target containing a compound known as Tannerite. Dewberry and U.S. attorney’s spokesman Cosme Lopez would not comment on specifics of the case since the investigation is ongoing.
The fire started on the state-owned Santa Rita Experimental Range that’s used to test sustainable grazing methods. It later spread to Forest Service land to the east before reaching the Bureau of Land Management-owned Las Cienegas National Conservation Area. It cost about $7.3 million to contain the fire.
No buildings were burned and no people were injured in the blaze, which began in late April and lasted more than a week. But hundreds of homeowners were warned they may have to evacuate their homes and dozens of homes were evacuated for a time. Parts of Arizona 83, the scenic drive from Interstate 10 to Sonoita, which separates the Santa Ritas from Las Cienegas, were also closed for a time during the fire.
C.J. Karamargin, district director for U.S. Rep. Martha McSally, R-Arizona, said the Forest Service couldn’t provide him with a timeline for the investigation when he called last week.
“When you have a fire that consumes 47,000 acres and costs more than $7 million to contain, there is obviously going to be a degree of public interest in the investigation,” he said. “That investigation, however, needs to be as thorough, accurate and detailed as possible.”
Attorney Sean Chapman, who represents Dickey, didn’t return phone calls seeking comment.
The U.S. Customs and Border Protection agency, which oversees the Border Patrol, last week upheld its earlier decision not to give the Star information about Dickey’s salary, his tenure with the Border Patrol or his employment status during the ongoing investigation. It turned down an appeal by the Star of that decision, which also barred release of investigative reports on the blaze through the federal Freedom of Information Act.
The agency cited an exemption to the act that it says justifies withholding records or information kept for law-enforcement purposes.
“There is an ongoing investigation involving the activities of a government agency,” wrote Shari Suzuki, chief of the agency’s FOIA appeals, policy and litigation branch, in an Aug. 4 letter to the Star. “The premature release of evidence or the scope and direction of the investigation could interfere with the integrity of the investigation; i.e., it could interfere with the government’s ability to make accurate factual and legal determinations.”
Release of these records could lead to inappropriate disclosure of evidence, witnesses including government employees and prospective testimony, Suzuki wrote.
Suzuki’s comments drew sharp criticism from the nonprofit Reporters Committee for Freedom of the Press, which filed the appeal for the Star, and David Cuillier, director of the University of Arizona’s School of Journalism.
The Forest Service and the Arizona State Land Department also have refused to discuss this case. The state agency did provide a set of public records on the fire in response to a records request.
Adam Marshall, an attorney for the reporters’ committee, said he’s frustrated and disappointed at the agency’s stance.
“It’s not clear at all why some of the information that you requested, including the title and salary of the employee, would interfere with the investigation. That’s just silly,” Marshall said Tuesday. “They don’t explain how release of that information would interfere with any law-enforcement activity.”
The agency discusses a lot of past court cases on similar issues, but doesn’t offer a convincing explanation as to why the records the Star sought can be withheld, said Marshall.
“Under FOIA, it’s the government that has the burden of showing that records are exempt. The burden is not on requesters to show they have the right to them,” Marshall said. “They’re frankly not taking into account the great public interest that there is in finding out what happened here.”
It's outrageous that the agency would withhold such basic information as an employee's salary or job title, Cuillier added
"These basic facts are routinely provided by any city, school district, or state agency, and taxpayers are entitled to it – it’s their money at work here," he said.
If the agency has information about the investigation whose release could be damaging, the agency should simply black out those facts, explain the harm and release the rest, Cuillier said.
“People want to know how a public employee caused a serious fire that cost taxpayers a lot of money. What does the Border Patrol have to hide?” he said.
Because the enforcement case remains open, the agency isn’t in a position to provide more information, said Roger Maier, a CBP spokesman in Washington, D.C.
