NOTHING’S REALLY SETTLED IN DEATH OF LITTLE BOY By Cliff Larimer of The Voice
Stories in the Sacramento Bee February 20 and in the Redding Record-Searchlight and Red Bluff Daily News the following day told of a $3.5 million settlement the U.S. government agreed to, as the Bee story says, “extract itself from a lawsuit over the death of 9-year-old Tom Botell in Lassen Volcanic National Park.”
Tommy died on an outing in July 2009 while on a hike with his family in the park. His sister Katrina, 13, was seriously injured when the 2-foot wall on Lassen Peak Trail the two kids were sitting on to pose for a picture suddenly gave way and rolled over on him. Tommy’s skull and brainstem were crushed and he was dead within minutes. Katrina suffered a fractured jaw and other head injuries. Another younger daughter was on the trip but was not hurt.
The last two paragraphs in the Bee account by reporter Denny Walsh one of the most jarring, disturbing things I’ve read in over six decades in the news business:
“As parts of the wall fell upon them, the two children tumbled about 30 feet to the trail below, where the rest of the family hiked behind them. Their father managed to grab his daughter. The mother scrambled to Tommy.
“’Mommy, I can’t see,’ he said, and died in her arms.”
OBVIOUSLY, A DISTURBING ACCOUNT of a horrible, horrible accident that should never have happened. And just as disturbing in other ways is the way the National Park Service, some of its staff and all of its lawyers have conducted themselves since that fateful event. They’ve fought tooth and nail every day since to get the government off the hook, all the time showing callous disregard for the Botell family, the boy’s death, the girl’s injury and the hells the family will have to endure for the remainder of their lives.
My wife and I Iost a teenage son in 1978 and his violent death came on a highway many miles from us. We seldom go through a day without thinking of him and never go through a day without missing him. The agony of the Botells has to be even worse. They witnessed the tragedy and there is no way in heaven or hell that memory will ever dim.
The government doesn’t/didn’t give a good goddamn for the family; it’s only concern was to get off the hook for tons of money.
Same for some of the National Park Service staff. They’ve been more concerned with saving their jobs, covering their butts and possibly finding other staffers to blame.
One name pops right to the top of this, both in the court decisions that led to the settlement and in the despicable actions in the time since the boy was killed.
Darlene Koontz, superintendent of Lassen National Park.
LET THE BEE STORY TELL IT
The ensuing lawsuit on behalf of the family was marred by what Sacramento federal judges perceived as unethical conduct on the part of some park employees, particularly Superintendent Darlene Koontz.
“Defense of the suit began to disintegrate in scathing findings and recommendations authored by U.S. Magistrate Judge Gregory G. Hollows, who said Koontz knew the wall was dangerous yet didn’t fix it, then attempted to orchestrate a cover-up following the incident by causing evidence to be destroyed and lying under oath in a deposition.
U.S. District Judge Troy L. Nunley ultimately stripped the government of its defenses, which led to the settlement. “The conduct of the National Park Service and some of its employees, leading up to this tragedy and during the litigation, make me ashamed that they represent the United States of America,” said Steve Campora, lead lawyer for the Botells.
Through attorney Catia Saraiva, who worked with Campora in pressing the Botells’ claims, the family issued this statement Wednesday:
“This was a horrific event that no family should have to endure. Our grief and loss were compounded by the refusal of the Park Service to accept responsibility and to act responsibly during the lawsuit.”
U.S. Attorney Benjamin Wagner, whose office handled the defense of the Park Service, said Tommy’s death was a tragedy both for his family and the Park Service, and added that he is glad to have the matter behind him.
“As the settlement agreement indicates,” Wagner said, “it is in no way intended to be, and should not be construed as, an admission of fault or wrongdoing on the part of Park Service employees.”
The government’s last stand was based on the so-called “discretionary function” statute. It divests federal district courts of jurisdiction over claims based on “the exercise or performance or the failure to exercise or perform a discretionary function or duty on the part of a federal agency or an employee of the government, whether or not the discretion involved (was) abused.”
Thus, government lawyers argued, even if park employees knew the wall posed a serious danger but did not repair it or block public access, the court had no jurisdiction.
Nunley made short work of that position. He described it as “unavailing” because the park’s safety program mandated closure pending corrective action of known dangers such as the retaining wall that crumbled under Tommy and his sister when they sat on it. The judge found that “the safety program constituted a policy directing mandatory and specific actions that were admittedly not followed.”
Under the terms of the settlement, the family – mother, father and two daughters – will receive direct payments totaling $2.85 million, out of which its attorneys will be paid. In addition, the government will pay $650,000 for annuities to benefit the older daughter, who sat with Tommy on the retaining wall next to a mountain hiking trail and who suffered severe physical and psychological injuries when the wall collapsed; and the younger daughter, who witnessed the death of her brother and suffered emotional injuries.
That’s the Bee account. Most disturbing part, while I know it’s what lawyers have to do to attempt to forestall or diminish further litigation is comment on the settlement, “it is in no way intended to be, and should not be construed as, an admission of fault or wrongdoing on the part of Park Service employees.”
Put that next to part of the Botell family statement, following the announcement of the settlement, “Our grief and loss were compounded by the refusal of the Park Service to accept responsibility and to act responsibly during the lawsuit.”
As of this writing, an individual who might seriously think about acting responsibly and publicly and profusely apologizing to the family is
Superintendent Darlene Koontz
Superintendent Koontz. She should be on her knees begging their forgiveness.
A veteran of more than 30 years with the National Park Service – the last five and a half at Lassen – I have little doubt her career has effectively ended. She’s got enough time in to retire and if she does not the NPS will soon send her to some decrepit federal site or just put her in an office far from Northern California with nothing to do until she quits.
I SPEAK WITH CONSIDERABLE KNOWLEDGE of the inner workings the National Park Service, Bureau of Land Management and the U.S. Forest Service. I spent a year as an information officer with the Southwest Regional Office of the NPS in Santa Fe, New Mexico.
I have stories to tell and, if I live long enough, probably will.
No apology from Koontz or anyone in any of the accounts of this mess that I have read. Nope, to apologize might mean more lawsuits or other actions. And could be ego or such also gets in the way of any act of contrition.
What bothers me about the stories in the Northern California papers, the one in the Red Bluff Daily News in particular is something omitted.
Koontz lives in Red Bluff. She currently is chairman of the Board of Directors of the Red Bluff-Tehama County Chamber of Commerce. Has been since last year. Her term expires in 2015.
“Mommie, I can’t see.”
It will haunt me forever.
– Cliff Larimer
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