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.