Magistrate Finds Lassen Volcanic National Park Officials Destroyed Evidence In Boy's Death

Lassen Volcanic National Park officials "purposely destroyed material evidence" in the case of a young boy who was killed when a retaining wall on the Lassen Peak Trail collapsed, a U.S. magistrate has concluded.

Tommy Botell, 9, died and a sister, "K.B.," were injured when the retaining wall they were sitting on collapsed on July 29, 2009. The children's parents filed a wrongful death and personal injury lawsuit against the federal government in June 2011.

Though a trial on the lawsuit isn't scheduled until later this year, the family sought sanctions against the government for destroying evidence -- namely, the retaining wall and internal documents pertaining to its condition.

"Over the course of hearing several motions to compel brought by plaintiffs, it has become all too apparent that defendant has purposely destroyed material evidence in this case," U.S. Magistrate Gregory G. Hollows ruled Wednesday. "For this reason, the court must recommend sanctions in the form of a finding of negligence by defendant in causing this death and injury."

The trail runs 2.5 miles one-way to the top of 10,457-foot Lassen Peak. Much of the mountain is barren, lacking of trees and other vegetation that could help stabilize the flanks. The trail begins at the peak parking area at an elevation of 8,500 feet and zig-zags across this steep and rocky landscape to the summit. There were 50-60 people hiking the trail when the wall collapsed, and some came to the family's aid.

In his ruling, the magistrate said Lassen Volcanic Superintendent Darlene Koontz violated Park Service policies by ordering the retaining wall to be dismantled before a special agent for the agency could inspect it as part of an investigation into the boy's death. Special Agent Alan Foster stated in a deposition that "this act compromised his investigation, and the scene was not documented to the level he thought it needed to be," the magistrate noted.

"(T)he wall still should have been preserved in its untouched post-accident condition until a thorough investigation was completed," Magistrate Hollows wrote in his ruling (attached below). "... the court finds that defendant unnecessarily spoliated evidence by destroying the remaining portion of the wall. And, there is no doubt that the scene of the accident, i.e., the remaining part of the wall, was important for investigative purposes. Agent Foster so declared, and the court finds his evidence compelling. It also complies with common sense that a remaining part of an 'unsafe wall' would speak volumes about why the accident occurred."

The magistrate found that park officials also failed to preserve additional evidence involving emails pertaining to the accident and the retaining wall, including one email that referenced a draft document containing "strong language" about the condition of the wall.

"... defendant made it exceedingly difficult for plaintiffs to discover this email, which is not the actual draft report. Moreover, it is undisputed that defendant destroyed the draft report," the ruling states.

While the Park Service argued that document wasn't relevant, as it stemmed from an inspection of the retaining wall after the fatal accident, Magistrate Hollows disagreed, holding that that theory "is belied by Kootnz's order to take out the strong language and the destruction of this draft report."

The magistrate also found that the Park Service destroyed the retaining wall "for no apparent purpose, other than to render the scene degraded in terms of any complete investigation," failed to close the Lassen Peak Trail for investigative purposes as Park Service regulations required, that "there is a complete lack of evidence of communication or documentation by Darlene Koontz concerning her decision to destroy the wall," and that the park's chief of maintenance wrongly destroyed all his files, including some that involved visitor safety issues, when he retired at the end of 2009.

"Based on the evidence presented, the court can only conclude that defendant’s conduct in spoliating evidence pertaining to the retaining walls was willful and material. As a sanction for this conduct, the court recommends that defendant be found negligent for all purposes in this case, in causing the death of Tommy Botell and injury to plaintiff K.B.," the magistrate wrote.

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Botell vs. Lassen Volcanic Park.pdf791.46 KB

Comments

Why on Earth would a park superintendent actively engage in destroying evidence, especially evidence pertinent to an accidental fatality?

Something simply doesn't sound right in this case. I surmise that this is probably an isolated incident and definitely not indicative of a standard of practice elsewhere inside the NPS.

I wouldn't say it is standard practice, but it doesn't surprise me at all. I read this and thought, "I can easily see this happening at the parks where I've worked." The modern NPS promotes a lot of weasels who's primary skills are to take credit for others' accomplishments, and to pass off blame for their mistakes. The only surprise is that they were apparently so ham handed about it. With project funds increasing in importance to a park's budget, many parks have exhaustively, and often exaggeratedly, documented every conceivable safety hazard in an attempt to get project money to fix them. In all but the most extreme cases, it would not occur to someone to close a trail, even though they probably have a safety SOP on a shelf somewhere saying that they have to if they document a hazard. So now, if someone gets hurt, and they have a lawyer who knows to ask to look at project proposals and work orders, chances are they can find out that the park knew about a hazard, and that their own rules say that they should have done something. That said, I've seen pictures of that wall and it was appalling. Mortared wall, especially crap mortared wall in loose soil like that, has no place in the backcountry. They could have just kicked the thing out and replaced it with drylaid wall, but I suspect that they thought it was photogenic and could get them some project money.

Hey Owen, take a look at this Lassen Superintendent Koontz was the head of her local chamber of commerce this past year. Can anyone say conflict of interests? http://redbluffchamber.com/index.php?page=boardofdirectors
Very interesting Perpetual! I think this is simply another outstanding example of NPS community outreach and collaboration with local park partners whose livelihoods may depend on sustained park visitation.
Based on second hand information, my understanding is that the Superintendent of Mt. Lassen has been allowed to quietly retire. I was also interested in the willj comment, and I believe he is right, dry wall construction on trails in these type of areas is the way to go. There was much debate in the 1960's in Yosemite about using concrete to build these walls on backcountry trails, but common sense prevailed.
So an NPS superintendent who's duty may require him or her to make decisions that negatively impact local businesses has no conflict in being the head of an organization who's whole reason for being is to promote local businesses? I believe the agency put out a letter of instruction a few years ago stating NPS personnel could not even become full-fledged members of a chamber of commerce. By the way in case anyone was wondering who put this person to that position it was then Pacific Regional Director Johnathan Jarvis. http://www.nps.gov/lavo/parknews/nr07_new_superintendent.htm How ironic it was to read that her husband was a special agent in the NPS Office of Professional Responsibility. The text in this link copied from Inside NPS makes for interesting reading of all the interlocking connections that let this person once again prove the Peter Principal. https://groups.google.com/forum/#!searchin/parklandsupdate/koontz$20retire/parklandsupdate/Yt7THs5dYsY/j6kv3A0uohYJ
Perpetural....isn't it rather routine, if not commonplace, for park superintendents to serve on local Chamber's of Commerce of gateway communities?

Owen -

Good question, and it points up some of challenges facing parks and superintendents. It can be tricky for park managers to find the right balance between being too close to or too aloof from local interests, whether we're talking about businesses, advocacy groups for various causes, elected political officials, civic organizations, and on and on.

Parks certainly don't exist in a vacuum; what happens in a park impacts the surrounding area, and vice versa, so it's generally better for everyone concerned if there's a spirit of cooperation whenever possible. The difficulty arises when the relationship between a park official and any local interest becomes, or is perceived as, being too cozy. This can be a classic slipperly slope to a conflict of interest situation.

I don't know how it is these days, but during my career my impression was that superintendents were expected by NPS higher-ups to be active in organizations such as the Lions, Rotary, or Optomist Club and Chamber of Commerce in the local community. I think a manager's perceived success in working with such "partners" was even an element on the manger's performance rating.

I think it's reasonable to ask, however, if it's prudent for a park employee to be the "head" of any such organization. That seems to be a set-up for trouble.

I agree. In a small community near a park, everyone is part of the community. The person at the next table at the bake sale, the guy on the stairmaster in the local gym, those folks parking next to you at the grocery store, are all just as likely to be parkies as they are not. In a local event, whether Rotary club meeting or city council hearing, parkies chosing en masse not to be involved would be conspicuous in their absence. By the same token, striving to be leaders of local organizations, especially in an elected or other competitive situation, could be problematic, in my opinion.
Jim, Totally agree. I see nothing wrong with a park service superintendent being a member (as an advocate for the park) but it is probably not appropriate to be its head - where the sup becomes an advocate for the group in actions that might not be in the interest of the park.
RickB, EC, I also think Jim's post is right on, thank you Jim. On the issue of tampering/destruction of evidence, it is probable that the US Attorney's Office declined to take it on. However, I do think the Interior Department should have taken some action administratively. It is important not to be vindictive towards people and I am not a zero tolerance advocate, we are human. However, malfeasance of office (violation of the public trust) should be effectively dealt with at some level, not just ignored. NPS law enforcement policy is quite progressive, the lowest effective level of enforcement is encouraged, the situation and severity of the offense being taken into consideration. Jim is this still NPS procedure?

Ron -

The "lowest effective level of enforcement" was the approach during my years in the NPS, but I've been out over 12 years now, so I'm probably not a good source on that question. A U.S. Attorney's office isn't bound by that philosophy, but someone would have to convince any such office to take on a case.

My experience with the Assistant U. S. Attorneys I worked with in several parks was very positive, but like any other part of the judicial system, they were stretched past the breaking point for staff and dollars. Hard decisions had to be made every day about which cases are serious enough (or reasonably likely to result in a conviction) to warrant spending scarce resources on a prosecution.

Once the magistrate has published results, and regardless of whether or not the legal system chooses to act, the Interior Department's IG _should_ be taking administrative action.
But Ron, wasn't "lowest level of effective enforcement" meant for dealing with infractions by visitors? Shouldn't NPS personnel be held to a much higher standard?
Lee, not sure about that, but certainly they should adhere to the same standard, at least in my view. All of us in the public sector, and in the private sector, know the best approach, whenever possible, is a friendly, educational one. It is much easier to escalate a situation than to deescalate. This is true in dealing with both visitors and customers at least that has been my experience. I do think managers, political leaders, etc. should hold them selves to the same standards. In the case of a supervisor asking an employee at any level to break the law is wrong, if this is the case then an effective action should be taken. Perhaps a little idealistic, but...