DA Explains Jesusita Fire Charges

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.”

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.

“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.

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.

“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?”