Fire Law Update
+ Critical Thinking
mike.johns@usdoj.gov
602-514-7566
Bray Fire
-Escaped Campfire.
-Timing of fire
restrictions?
-Discretionary
function.
Bio:
Helitack Crew
Hotshot Foreman
Payson RD
Tonto NF
AUSA 35
years
Packrat
Fire
My place again, 2002
New FS policy I can agree with:
FSM 5130, Appendix A
My place again 2004
Wildland Urban Interface
Still a pretty good sawyer, for an old lawyer!
February Fire 2006
burning along fuel break
above Bunk House
February Fire
2006
Absolute immunity for common law torts,
committed in the scope of employment.
Old Style Findings:
-Violation of 10 and 18
-Rule violations
as causal factors
-Normal attribution
errors in:
-causation
-responsibility
-blame
Cramer Fire
“Causal Factors”
Examples:
No WFSA or Complexity Analysis
prepared on Cramer.
No Safety Officer requested.
OSHA recognized debate existed
about the 10 Standard Fire Orders.
“According to several off-the-record statements,
it is accepted by many firefighters that
at least one or more of the Standard Fire Orders
must be violated in order to
successfully suppress most if not all fires.”
Cramer Fire OSHA Briefing Paper.
“The Ten
Standard Fire Orders:
Can Anyone Follow Them?”
Ted Putnam, Ph. D., USFS Retired
-contends it is not possible to follow the 10 SFOs
and still fight the fire
“Standard Failures”
Wildfire, 2007
Curt Braun, Ph.D.
-very likely that firefighters can comply
with the 10 SFOs and still place safety in
jeopardy
OSHA advised OIG in 30 Mile criminal investigation
that it viewed the 10 and 18 as industry standards.
OIG Affidavit in support of
30 Mile Criminal
Complaint:
Explained that OSHA found
all 10 SFOs violated, and
Cited the FS for “willful”
Violations of the OSHA Act.
OSHA “willfulness” findings require:
-Conscious disregard of, or
-Plain Indifference to,
dangers of wildland firefighting.
-OSHA’s “willfulness” finding was against
the entire fire management program.
-Was “not meant to point blame
at the Incident Commander.”
OSHA Regulation willfully violated:
“(a) The head of each agency
shall furnish to each employee
employment and a place of employment
which are free from recognized hazards
that are causing or are likely to cause
death or serious physical harm.”
29 C.F.R. § 1960.8
Hazard pay is only authorized by law if:
“(2) Using the knowledge, skills, and abilities
that are described in the position description,
the employee cannot control the hazard
or physical hardship;
thus, the risk is not reduced
to a less than significant level.”
5 C.F.R. § 550.904(b)(2)
Hazard Pay Acceptable: “significant” risk
Outcome
OSHA Unacceptable: “likelihood” of harm
Backfire 2000
v. USA
Compliance with
the 10 and 18
is a
“discretionary
function”
“. . . these policies contained mandates.
But each mandatory directive provides discretion to the
firefighter. * * * The Orders tend toward vagueness.
Standard Fire Order Number Ten instructs firefighters
to ‘stay alert, keep calm, think clearly, act decisively.’
This is the language of discretion,
not of specific mandatory actions or protocols.
The non-specific language of the Government’s policies
and directives, such as the Standing Orders and Watchout
Situations, supports the Government’s position.
These are flexible principles to be used in fighting
fire, an activity that depends on firefighters’ judgment,
common sense, and experience.”
-District Court opinion in Backfire 2000.
Esperanza Fire
Settlement w/OSHA
OSHA agreed
that 10 SFO’s
and 18 watchouts
were not rules &
should not be used
to measure
performance.
Backbone Helibase
Willful OSHA violation
for refusal of FS to give
SAI evidence to OSHA
(10/2/09).
FS/OSHA working
toward improved
protocols.
OIG Report on
Esperanza Fire
November 2009
-No adverse findings
or recommendations
re Fire Fighting.
-Did not use SAI
witness statements.
-Much improved
since 30 Mile.
Cramer Fire
Involuntary
Manslaughter
18 U.S.C. 1112
Elements:
-Unlawful killing without malice,
-in the commission of a lawful act,
-which might produce death,
-without due caution and circumspection.
Gross negligence must also be alleged and proven.
Negligence is a failure to exercise due care
under the circumstances.
Gross Negligence requires
-Wanton or reckless disregard
for human life,
-And either actual knowledge
of the threat to life,
-or knowledge of circumstances
which pose a foreseeable threat to life.
Cramer Fire resulted in
Pretrial Diversion:
-Discretionary agreement for
resolution.
-Adequate, non-criminal
alternative to prosecution.
-Criminal charges are either
never filed, or are dismissed.
-Probation for up to 18 months
with standard conditions plus
any conditions suitable for the
circumstances.
30 Mile Fire
-Manslaughter
charges dismissed.
-Plea Agreement to
misdemeanor false
statements.
Accountability
-Just World Heuristic
Watch out for:
Hindsight Bias
Outcome Bias
RepresentativenessInverse Fallacy
Situational factors
Factors Affecting Decisions and Judging:
-Cognitive Biases
-Heuristics
-Coherence Shifts
-Four Decision Methods
-Causal Attribution Errors
-Dispositionist Thinking
-Other Human Factors
Optional Reading from Presenter:
“What Was He Thinking . . .”
Bias blind spot
Planning fallacy
Confirmation bias
Availability bias
Self affirming biases
Framing
Anchoring
Zero risk bias
Neglect of probability
Avoidance of cognitive dissonance
Valence effect (wishful thinking)
Etc.
?
Critical Thinking can close or move a hole
in James Reason’s accident model.
The hole is Normal Human Decision Error
More optional reading: CT Training paper.
CT isThinking critically
about one’s own
thinking (metacognition).
Awareness of the
process and products
of one’s own thinking.
Effortful method to
correct for errors.
General public does not
engage in CT.
CT must be learned and
practiced.
Decision Support Systems
and group practices
can help force CT.
Recognition Primed
Decision making (RPD)
is natural, fast, and
usually sufficient – based
on expertise & training.
CT is consciously effortful,
slower, useful in uncertainty
based on learning about
the mind.
Military Training combines RPD and CT.
Produces two experts in one person –
-An expert with quick RPD ability
-An expert in properly resolving ambiguity
ARI Newsletter — Spring 2001:
“Training Critical Thinking Skills for Battle
Command: How to Think, Not What to Think”
-Army CT training is proven effective.
Improvement with officer CT training:
Reaction-initiative
53%
Mission purpose
23%
Pro-action plans
38%
Tactics
32%
Methods
34%
Options generated
40%
Issues considered
30%
ID of conflicting evidence
58%
No. of explanations
27%
No. of alternatives
41%
Accuracy of assessment
42%
Assessment agreement
41%
Assessment Confidence
20%
Contingency planning
217%
ARI Newsletter
U.S. Army Research Institute
for the Behavioral and Social Sciences
Critical Thinking as Dialogue:
A New Approach to Training
Critical Thinking
-Army uses CT as dialogue
to improve Situation Awareness
Situation Awareness
External Situation
(environment)
Internal Situation
(the mind)
CT expands the boundaries of “Intuitive Expertise”
created by the “Wicked” wildland fire task environment.
CT as dialogue-
-With self
-With others
Fire Doctrine
Communicating
Leaders Intent
Enhanced by CT
practiced as dialogue
An IM Team is a communication entity.
-Communication errors – latent or active slices?
-CT as dialogue closes the holes or moves
them out of alignment.
CT promotes a “Just Culture”.
CT enhances “High Reliability Organizing.”
Sample CT exercises (military & law):
1. “STEP” case analysis:
A. build the Story.
B. Test the story.
C. Evaluate the story.
D. formulate contingency Plans.
2. Part of this story appears to be wrong,
explain why it could be wrong.
3. CT as dialogue
question, defend,
explain, critique,
revise the story.
4. Seriously consider the opposite.
5. Act or think more?
Sample exercises for “educating intuition” (Hogarth):
1.
2.
3.
4.
5.
6.
7.
8.
Engineer your task environment for valid learning.
Seek valid feedback.
Impose circuit breakers to interrupt tacit decisions.
Acknowledge emotions as data.
Explore connections through imaginative narratives.
Accept conflict in choice-ask what are the trade offs.
Make scientific method intuitive.
Test the intuitive “first impression”.
More from Hogarth:
-Don’t just look, learn to see- identify assumptions,
what don’t you see, what’s missing.
-Learn from what we see AND what we do not see.
-Observe, Speculate, Test
(seek to disconfirm, seek alternatives)
-Generalize to other knowledge/contexts.
-What could change your mind?
-Why do I think that?
-How would I know if my idea is wrong?
-Practice, practice, practice.
Indians Fire
Accident Prevention
Analysis.
Recognized 20 “decision factors” affecting result.
-Practice CT as dialogue to avoid decision errors.
-Experts avoid being second-guessed in hindsight.
“Any questions?”