By Mark Gutglueck
A Big Bear resident who took matters into his own hands by using his bulldozer to create an impromptu firebreak when what would become known as the Summit Fire threatened the City of Big Bear in August 2015 has been acquitted of violating federal law, which prosecutors alleged occurred when he damaged federal land during his effort.
Based upon Joaquin Andres Acosta’s actions on August 23, 2015, federal prosecutors charged him with a violation of Federal Code of Regulations Chapter 35 § 261.9 (a), which prohibits anyone “Damaging any natural feature or other property of the United States.” Acosta has lived in Big Bear since 1969. His profession as a logging contractor included significant firefighting experience and it also put into his possession and at his ready disposal earth moving and firefighting equipment which both he and others employed in the face of a fire that was sweeping toward Big Bear. The federal government alleged that Acosta engaged in “vigilante firefighting” that was not requested, was not needed and which ultimately wreaked havoc on a portion of the National Forest bordering Big Bear.
Acosta, maintaining his innocence, represented himself during the initial stages of the proceedings against him, until the court insisted that he be represented by a federal public defender.
In the case, there was no dispute between the federal government and Acosta over the essential facts and there were no material conflicts in the testimony of the various witnesses for both the prosecution and the defense.
On August 23, 2015 at 12:30 p.m. smoke was spotted coming from the San Bernardino National Forest south of Big Bear Lake in the area of Snow Summit. The United States Forest Service was alerted and launched what it referred to as “a massive response,” involving fire engines, water tenders, work crews and an aerial assault. Two bulldozers were ordered into the area, but ultimately were not used in the multi-agency coordinated response, which, according to fire logs, began within minutes. The first responders were on the scene by 12:42 p.m. Official accounts vary as to when the first engine arrived in proximity to the fire, with one showing a fire truck there at 12:52 p.m. and another indicating it was 1:24 p.m.
United States Forest Service Fire Captain Michael Dier was on duty on August 23, 2015, and he responded to the fire. He would testify that he arrived at the scene of where the incident for which Acosta was charged took place, Towne Trail, sometime after 1 pm. Towne Trail is in the San Bernardino National Forest and runs east-west near the edge of the National Forest, which abuts private property south of Big Bear Lake. At one time, Towne Trail had been used as a road, but it had been narrowed to become a hiking and biking trail, with no motor vehicles allowed to transit it. Captain Dier was on foot on Towne Trail and its adjacent slope, as were numerous other firefighters. The firefighting crew had no heavy equipment on the trail. Dier testified that the crew’s objective was to keep the fire south of Towne Trail, as there are homes north of Towne Trail. Dier first encountered Acosta operating a bulldozer on Towne Trail, and witnessed the bulldozer pushing debris and dirt. Dier contacted headquarters and confirmed that Acosta was not assigned to him. When Dier approached Acosta, Acosta said he was there to fight the fire. Acosta then, according to Dier, took his equipment and left.
United States Forest Service Law Enforcement Officer Mark Snyder was on duty on August 23, 2015. He located Acosta after Dier had his exchange with him. Snyder testified Acosta was near his bulldozer, which was parked on Oriole Drive, just north of Towne Trail. Snyder said that Acosta acknowledged he had operated the bulldozer on Towne Trail and that he knew he was not supposed to be there but that he felt he had to do so, given the exigency of the situation. Snyder said he could easily trace the heavy tracks of the bulldozer to Towne Trail and saw the disturbed area where it entered the trail. Two days later, Snyder followed the tracks along the entirety of Towne Trail and saw the bulldozer had widened the trail and “caused substantial damage.” Snyder said he investigated and found no evidence Acosta was employed the U.S. Forest Service or that his bulldozer was licensed to be operating in the National Forest.
Acosta has lived in Big Bear for 47 years. He is a logging industry professional and has significant firefighting experience including continuing to perform some private fire work. He has his own firefighting equipment which is beyond what any other private individual in Big Bear possesses now or on August 23, 2015.
At his trial, Acosta testified that he saw smoke while standing in the yard of his business and called one of his friends, Tom Elbert, who told him the mountain was on fire. Acosta then called the Forest Service about the fire and was told they were aware of it. Acosta said he had equipment available to assist in fighting the fire, but was informed his equipment was not needed and that the crews on the scene could “handle it.” Nevertheless, Acosta drove a 4,000-gallon water tank truck he owned from his yard to Elbert’s house on Oriole Drive, where he saw intense fire and smoke rising 1,000 feet in the air, with flames 100 feet above Towne Trail at Ford Lane, which is approximately 400 yards to the west of Oriole Drive. Both Acosta and Elbert testified that at that point there was ash in the air and “burners” were dropping behind Elbert’s house. Acosta said he saw only one hand crew at that time and he knew fire engines could not go on Towne Trail, and that consequently the crew had to pull thousands of feet of hose.
From listening to United States Forest Service radio transmissions and the communications between firefighters, Acosta concluded there were too many people involved and they were panicking about the fire raging out of control. Acosta testified he “new exactly what was going to happen” and decided to act. Acosta said he went back to his business and got a bulldozer, which he drove to Oriole Drive on a trailer. He then drove the bulldozer up Oriole Drive and turned onto Towne Trail, taking down vegetation to remove fuel for the fire. At one point he saw a burning manzanita on Towne Trail and drove through it, burying it with dirt. A fire crew followed him and put out the fire.
At his trial, Acosta admitted he did not coordinate his efforts with the forest service.
Another witness testifying was Philip Worsman, who lives in the Berkeley landing area of Big Bear. When the Summit Fire started, Worsman was at his shop in Big Bear City. He called his wife, who was at their shop in Big Bear Lake and learned the fire was just up the street. Worsman then went to the incident command center and, based on what he heard, he was concerned his home and business were at risk. Worsman, who has firefighting experience, decided to try to protect his home himself. He knew Acosta had fire hose, and lots of it, so he went to Acosta’s business and got a length of it from Acosta’s wife. He then took the hose and, with four other men, stretched the hose around his neighborhood and prepared to fight the fire from there.
Chad Johnson, a U.S. Forest Service contractor who has been utilized by the Forest Service to perform wildfire suppression with his bulldozer during forest conflagrations, did not testify at the trial but did provide a sworn declaration. He said that on August 23, 2015 he was contacted sometime between 5 p.m. and 6 p.m. and he arrived at the designated location in Big Bear Lake between 7:30 p.m. and 8 p.m. with his bulldozer. Upon reporting his arrival, the Forest Service told him to await further instructions. While Johnson waited, he saw flames from the fire on the mountain. After a wait of about 45 minutes, the Forest Service told Johnson he would not be needed and released him.
Captain Dier testified the fire never reached Town Trail and never threatened the structures near Towne Trail. Snyder testified that in his observations on August 23, the fire was at least 600 feet from any structure. Two days later, when Snyder inspected Towne Trail, he saw evidence of spot fires 75 feet and beyond from the trail. The Forest Service’s documentation in its incident reports for August 25 and August 26, 2015 reflect that there was an objective to keep the fire south of Towne Trail and thus, the fire never reached Towne Trail. In the opinions of both Captain Dier and Snyder, Acosta’s actions did not help the fire suppression efforts. Snyder said he had never heard of non-contract equipment being used to respond to a fire. He testified that it is his experience that individuals untrained in firefighting put themselves at risk and endanger the safety of firefighters who may need to rescue them.
In one of her findings, however, the judge hearing the case against Acosta, U.S. Magistrate Sheri Pym, stated that Acosta “has significant firefighting experience.”
John Swanson, an expert witness in the arena of wildland fire protection, testified on behalf of the defense. Swanson testified the U.S. Forest Service uniformly uses an incident command system to manage and organize firefighting efforts and that the system provides a standardized way to command and coordinate multi-agency firefighting efforts. Swanson said that under the strictures of such a system, the incident command has sole command and that all firefighting resources must be checked in with the command center. Swanson acknowledged that independent actions can cause problems. Nevertheless, Swanson testified every wildland fire is an emergency that threatens its surroundings. He said that in the case of the Summit Fire, as it threatened to sweep into Bear Lake, Towne Trail was an important barrier that defined the boundary between forest and private property. He said the incident card for the fire shows the incident commander assessed it as a potentially significant fire from the start and ordered a large response by ordering bulldozers. The commander, Swanson said, indicated he was anticipating the possible need to create fire lines by scraping vegetation down to the earth, although there is no indication in the reports the commander actuated the strategy of using the bulldozers. Swanson testified that creating fire lines is an established fire suppression method.
Johnson’s declaration established his usual fire suppression work consisted of attempting to “cut a fire line,” which means clearing a pathway of all brush and vegetation down to the surface, leaving bare soil with no fuel to burn.
U.S. Forest Service botanist Deveree Kopp, testified on behalf of the prosecution, which was handled by Assistant U.S. Attorney Anwer Khan. Kopp, who manages a forest service ecological protection program, was assigned after the Summit Fire to assess the damage caused by Acosta’s bulldozer and to formulate a restoration plan. She inspected Towne Trail two days after the fire and later.
Kopp testified that she found substantial damage to a variety of vegetation, soil and wetlands, including uprooted trees, destroyed shrubs and bushes, damage to a spring and substantial soil displacement.
She said that Acosta’s bulldozer widened the trail, gouging the sides and uprooting vegetation in the process.
The crime Acosta was accused of having perpetrated was cataloged as a Class B misdemeanor, with a maximum six-month sentence and a $5,000 fine upon conviction. As such, Acosta had no right to a jury trial or a trial before a district judge. The U.S. Attorney’s Office indicated it would not seek any prison time for Acosta, but that upon conviction the government wanted substantial restitution. The matter was assigned to Pym, who heard the case as a bench trial in which she served as both judge and jury. In the earliest stages of the matter, which was initiated with a citation issued to him on August 23, 2015, Acosta represented himself. In October 2015, Deputy Federal Public Defender Stephanie Thornton-Harris was appointed to represent him. Testifying on behalf of Acosta at his trial was Mario Longsworth, an investigator with the Federal Public Defender’s Office, who took photographs and a video of the areas at issue.
Trial was held in Pym’s courtroom at the Riverside Federal Courthouse beginning on January 27, 2017. On February 22, 2017, Pym issued her judgment in the case of United States of America v. Joaquin A. Acosta.
Pym found “there is no reasonable doubt, or even a dispute, that defendant damaged natural features of the United States in the San Bernardino National Forest on August 23, 2015. There was extensive evidence, including defendant’s own testimony, to prove beyond any reasonable doubt that defendant drove his bulldozer along Towne Trail and damaged many of its natural features by uprooting and destroying trees and other vegetation, inflicting major damage on a spring and other wetlands and re-shaping the trail by gouging its sides and displacing soil. Defendant’s actions were deliberate and intentional and he admitted he knew he was not supposed to be on Towne Trail with his bulldozer. Whether defendant specifically knew he was violating a federal regulation is unclear.”
Pym noted that the section of the law Acosta was charged with violating, Federal Code of Regulations Chapter 35 § 261.9 (a), qualifies as a strict liability offense. A strict liability offense is a type of crime that does not require any fault elements or criminal intent be proved in order to establish guilt. Thus the prosecution needed establish only that the accused performed the prohibited act.
The matter was complicated, however, by the consideration that Federal Code of Regulations Chapter 35 § 261.1 (d) states “(d) None of these prohibitions apply to any person engaged in fire suppression actions.”
Early on and then later in the proceedings against him, Acosta brought a motion under a protocol in the federal judicial system known as “Rule 29,” seeking dismissal of the charges against him based on his assertion the government had not produced sufficient evidence to prove he was not engaged in fire suppression actions. Pym said the common meaning assigned to the language in the law regarding the destruction of federal land and abiding by another element of “Rule 29,” which holds that “the court must view the evidence in the light most favorable to the government,” compelled her to deny the motions to dismiss. Nevertheless, it would ultimately be around the issue of Acosta’s sincere effort to prevent the fire from spreading into Big Bear that Pym at the conclusion of the trial acquitted Acosta.
“If the only issue before the court were whether defendant damaged a natural feature of the United States in a National Forest, the case would be a simple one,” wrote Pym in her decision. “But the regulations at issue provide for an exception for all the offenses. None of these prohibitions apply to any person engaged in fire suppression actions. Defendant contends he was engaged in fire suppression actions when he drove his bulldozer along Towne Trail on August 23, 2015. The government disputes that, arguing defendant’s actions were unauthorized and of no help in suppressing the fire.”
The government was in the position of having to establish by clear and convincing evidence that Acosta was not attempting to arrest the fire’s progression when he did what he did, Pym ruled.
”A further issue to consider is who has the burden of proof with respect to whether the defendant was engaged in fire suppression actions,” Pym said. “There is nothing in the regulatory language that suggests this exception should be treated like an affirmative defense for which the defendant would have the burden of proof. The burden is on the prosecution to plead and prove that the defendant is not within the exception. The court concludes the government had the burden of proving defendant was not engaged in fire suppression actions beyond a reasonable doubt.”
Pym said the government hung its hat on the assertion that it had not authorized Acosta to engage in firefighting activity. And while the government indeed established that Acosta’s action was not authorized, it failed to establish that he was not attempting to stop the fire. Indeed, Pym said, her finding was that he was doing just that. In one of her findings, Pym said she found Acosta, along with all of those who testified at the trial, credible.
“The evidence at trial established that cutting a fire line by scraping away vegetation down to the soil is a common and legitimate fire suppression method, and there is no doubt that is exactly what defendant here intended to do and in fact did,” wrote Pym. “His bulldozer brutally cleared away vegetation from Towne Trail and left a wider path of simply dirt in its wake. He told Captain Dier at the time he was there to fight the fire and indeed his actions would make no sense if that was not the case. The government does not dispute that cutting a fire line may be a legitimate fire suppression action. There is no question defendant was not authorized to operate his bulldozer on Towne Trail. Nonetheless, his lack of authorization does not disqualify him from § 261.1 (d)’ s exception as written.”
Pym responded to the government’s assertion that Acosta’s action did not “actually aid the U.S. Forest Service’s fire suppression efforts and thus were not genuine fire suppression actions.” Pym conceded that “Since the fire never reached the trail, the fire line defendant cut served no purpose. But hindsight is not the proper vantage from which to judge whether fire suppression actions were legitimate. Many fire suppression actions are necessarily precautionary. That certain fire suppression actions may ultimately prove unnecessary does not mean they are not legitimate. The question must be whether, at the time, the actions can be fairly characterized as legitimate fire suppression actions. The court concludes that they can. Although the fire never reached Towne Trail (apart from the burning Manzanita) it got very close. When the defendant acted, he saw flames he believed were only 100 feet above the trail and ‘burners’ were dropping in the residential area. In such circumstances, cutting a fire line along Towne Trail is fairly characterized as a genuine fire suppression action.”
Pym was not overly charitable in remarking on the rashness with which Acosta acted. She noted that a “massive, coordinated response to the fire” was under way “by at least shortly after defendant left the trail, if not before.” She was critical of his presumption that the U.S. Forest Service was moving too slowly or inadequately in meeting the challenge the fire presented. “Although defendant was unimpressed with the U.S. Forest Service response to the fire, it was not up to him to decide to take matters into his own hands – particularly after he was told by the U.S. Forest Service he was not needed,” wrote Pym. “While another Big Bear resident, Philip Worsman, chose to protect his home with a fire hose in his neighborhood, defendant defied the U.S. Forest Service and decided it was his prerogative to destroy public lands because he alone saw the need. By acting on his own outside the incident command system, defendant created a potential hazard – namely [to] himself – as even his own expert witness John Swanson acknowledged. Defendant’s actions were dangerous and destructive and frankly outrageous. Nevertheless, the fact remains defendant was cutting a fire line along a trail with flames only 100 feet away. However misguided defendant’s actions were, under all the circumstances they are fairly characterized as legitimate fire suppression actions within the plain meaning of § 261.1 (d). Accordingly, while not condoning defendant’s unauthorized actions, the court concludes the government has not proved beyond a reasonable doubt that defendant was not engaged in fire suppression actions. For the foregoing reasons, the court finds defendant Joaquin A. Acosta not guilty.”
Acosta told the Sentinel he considered it “the duty of every citizen to serve and protect their family and community and I care deeply for the people and the community of the Big Bear Valley.”
By Mark Gutglueck