Almost a year ago as 31-year-old Adam Stewart set out to survey a vegetation plot in the roadless, grizzly heavy Teton Wilderness, he appeared on paper to be a well-protected employee of a federal contractor.
He was working under a contract with the U.S. Forest Service that said “safety is at all times the first priority.” His boss said backcountry dangers were analyzed and planned for as outlined in federal handbooks. Workers were to check out before field trips, then check back in when done.
Stewart’s boss Steve Rust had declared, and the Forest Service had agreed, to cancel visits to seven wilderness vegetation inventory sites because of the dangers posed in reaching them. Rust thought traveling by horse would be safer but didn’t, or couldn’t, arrange pack-trip support for his crews.
The contract with Rust’s Nature’s Capital, a Boise, Idaho firm, allowed the company to be paid for inventorying a site even if workers turned away from the plot in the face of danger. Twice last summer Stewart’s colleagues did just that when they saw a feeding grizzly bear or signs of one in the area.
But none of those clauses and paragraphs in contracts and manuals, no protocol, plan or hazard analysis whether written, required or overseen by state, federal or private interests — ended up protecting Adam Stewart. A bear — likely a grizzly — killed Stewart Sept. 4, 2014 as he hiked to an inventory site about 8 miles from the trailhead at Brooks Lake near Togwotee Pass. Stewart’s remains lay in the 914-square mile roadless Teton Wilderness for eight days before searchers discovered them. Searchers found no defensive bear spray.
Now, almost a year after Stewart’s death, Nature’s Capital has signed a consent decree with the Wyoming Occupational Safety and Health Administration to pay a fine and make “abatements,” because of Stewart’s death. OSHA alleged the company violated safety standards by failing to protect its employees, and proposed a $15,150 penalty.
Planning the survey
Documents, emails and interviews show many attempts by Nature’s Capital and the Forest Service to hew close to safety standards, attempts that began soon after Nature’s Capital won its contract in July, 2013. It bid $66,807 to inventory 123 plots. The company would earn $543 each time a worker or crew visited a plot, photographed it and recorded the vegetation in keen detail.
Forest Service Region 4 Headquarters in Ogden, Utah, sought bids last year for the “All Condition Vegetation Inventory” under a 2009 program. The agency contracted annually for vegetation surveys on one of a variety of national forests in Utah, Nevada and parts of Wyoming and Idaho. In 2014, Nature’s Capital was to cover the Bridger-Teton National Forest, including the Teton, Bridger and Gros Ventre wilderness areas.
The program expired Aug. 1 this year with one task still being finalized in Utah’s Uinta, Wasatch and Cache national forests. All three of those are outside of known grizzly bear habitat. Nature’s Capital is not employed for those last inventories, forest officials said.
Soon after winning the Bridger-Teton contract in July of 2013, Nature’s Capital began planning for its survey. It first used a contract provision to eliminate sites the company thought were too dangerous to visit. To do so, the contractor documents the hazard, Forest Service spokesman Wade Muehlhof wrote of the process. “If the hazard is found to be legitimate the work would not be done.”
The Forest Service and Nature’s Capital agreed not to inventory seven sites because of travel hazards. No site scratched from the survey in the 2013 round of cuts was done so because of the danger of grizzly bears.
The threats were from river crossings, cliffs, snow and ice, Muehlhof said. Five of the seven eliminated sites were in the Teton Wilderness. The congressionally protected roadless area encompasses the farthest point from a road in the Lower 48 — a site near Hawks Rest. The entire wilderness is core grizzly bear habitat just south of Yellowstone National Park.
After reducing the list to 116 sites, “in Winter and Spring 2014 we completed intensive planning for the Bridger-Teton NF project,” Rust wrote in an email response to WyoFile questions.
In the spring of 2014, Rust wrote Forest Service contracting officer Shawn Atkinson saying he wanted to get crews “spot packed” into the Teton Wilderness. Such an arrangement would ameliorate the arduous task of backpacking. “Use of the Forest’s packer crew would add an element of safety as few others have experience with hazardous terrain and stream crossings,” Rust wrote.
Contractors can’t typically hire federal employees, Atkinson wrote back. Using them “could create an organizational conflict of interest…. Furthermore, hiring Forest Service employees to do spot packing isn’t something that was identified in the task announcement as an available option,” Atkinson wrote. Allowing it after Nature’s Capital had won the bid would be unfair. “I’m sorry but I can’t approve any kind of arrangement where you would be paying for Forest Service employees to provide this service,” Atkinson wrote. Rust quickly agreed.
Rust said he didn’t pursue another option as his planning progressed in the winter and spring of 2014. “…[W]e considered equipment drops and spot-packing, but decided against these approaches,” he wrote. “We did not request approval to [have a commercial outfitter] spot-pack into Teton Wilderness.”
Contracts, handbooks call for safety
Nature’s Capital’s contract included attachments that outlined procedures and safety protocols workers should follow. The Forest Service Health and Safety Code Handbook, one of the guides referenced, calls for line officers to complete a Job Hazard Analysis. First-line supervisors are supposed to identify job-related dangers.
Job Hazard Analyses include writing itineraries and establishing check-out/check-in procedures. “Never travel or work alone in isolated areas without preparing and discussing a detailed [Job Hazard Analysis] that includes emergency evacuation procedures and a communication plan,” the handbook states. A Job Hazard Analysis recommends safety practices including awareness of local conditions, and “animals that may be encountered.” Backcountry travel “may make aid and rescue an impossibility for several days.”
Forest Service officials said they didn’t know whether Nature’s Capital conducted an analysis and weren’t involved in reviewing one if it did. “It is Nature’s Capital responsibility to ensure they are following all applicable local, state and federal safety rules and regulations,” Muehlhof said in an email response to questions. “The Forest Service does not collect program specific assessments such as [Job Hazard Analyses] for contracted work.”
Rust said Nature’s Capital did follow the rule. “We completed hazard analyses of the Bridger-Teton NF project,” he wrote. WyoFile asked for a copy Monday. Regardless of any plan Nature’s Capital might have prepared under the analysis, Wyoming OSHA later cited the company for not having proper check-out/check-in protocols. It also cited Nature’s Capital for not requiring the use of bear spray. The framework for USFS hazard analyses does not mention requiring bear spray.
In addition to safety preparations made before going into the field, workers could turn back in the face of danger without jeopardizing the contractor’s remuneration. If they felt they were in danger, they could abandon a mission and Nature’s Capital still would receive the $543 as if the site had been inventoried, Rust said.
Grizzly bear sign twice made Nature’s Capital researchers retreat from plots in 2014, interviews and documents show. In one instance, field workers were turned around “by a bear eating something and a smell of decay,” one forest service email said. One of the run-ins occurred in the Gros Ventre Wilderness, the other in the Teton Wilderness. “They saw a carcass,” Rust said of one of the incidents. “They left the vicinity immediately.” One of the crews’ encounters with bear sign apparently occurred around the time Stewart was killed, according to the Forest Service emails obtained by WyoFile.
In an email response to questions, Rust pointed to the turnaround option as a safety feature. “The formal vegetation sampling protocol used for the Bridger-Teton NF project makes extensive reference to safety,” he wrote. “One example of this is the standard for reporting a sample location as inaccessible due to hazardous conditions. A number of sites on Bridger-Teton NF were reported in 2014 as inaccessible due to hazardous conditions. These include sites where grizzly bear sign was observed in the vicinity of the site.”
Stewart stumbled upon two deer carcasses and two bear day beds as he hiked through a wooded area, the investigation by the Interagency Grizzly Bear Committee Board of Review found. Vegetation and terrain limited his view of the trail ahead.
(A YouTube video by Ryan Towle and Joey Conconato in a series “My Own Frontier” shows part of the route traveled by Stewart. it was made in July, 2014, about two months before Stewart was killed. The video “Backpacking Wyoming’s Teton Wilderness. Cub Creek, Angel Lakes, Brooks Lake Loop,” follows Stewart’s route for about the first six minutes. Stewart’s route diverts from Towle and Conconato’s shortly after they cross Cub Creek.)
Behind schedule?
As information from field surveys came into the Forest service in August, contracting officer Atkinson quizzed Rust in August whether Nature’s Capital was falling behind schedule. According to the plan first proposed by the company, 16 plots in the Teton Wilderness would be inventoried between Aug. 10 and Aug. 24, 2014. After five Teton Wilderness sites were scratched because of travel hazards, a new schedule set visits to the Teton Wilderness as late as Aug 31. Rust said in an interview last year that revisions are routine and that a late snowmelt was responsible for some of the changes.
On Aug. 18 Atkinson wrote Rust saying “…It appears that you are currently behind schedule. Since the bulk of the remaining plots are in wilderness areas, we have concerns about your ability to complete the work on time.” Rust wrote back four days later referencing a new schedule and saying 90 of 116 plots had been inventoried.
“There is little difference between the schedule attached here … and the schedule submitted in May 2014,” Rust wrote. “I am confident the project will continue on schedule — your suggestion that the project appears to be behind schedule is not correct.”
The Forest Service was not alone in questioning whether the work would be done on time. Stewart also worried about the timetable and traveling alone in the wilderness. He said so in an email to Rust that WyoFile obtained from Stewart’s family. On Aug. 25, ten days before his death, Stewart wrote his boss about dangers in the fall when bears are “fattening up.”
“Now, with the deadline looming and injured personnel, it has become expected I will work alone in more remote locations later in the season than I originally proposed,” Stewart wrote. “Working alone increases risks and [the] possibility of death or lifelong disability…” Stewart’s email said. “…(H)alf-measures can have dire results working in remote areas with winter storms approaching and wildlife becoming more active.”
Rust has challenged Stewart’s view of the work scene and said problems were resolved over the phone.
On Aug. 28 Rust updated progress for the Forest Service, saying crews were working in the Bridger and Teton wilderness areas. On the morning of Sept. 4, 2014, Stewart left the trailhead at Brooks Lake. He was to return the following day, Sept. 5, a Friday. At 12:46 p.m. Sunday, Sept. 7, Rust reported a missing person to the Fremont County Sheriff’s Office. At 12:52 p.m. Tuesday, Sept. 9, Rust sent another email update to the Forest Service.
“We currently have a missing crew member on the Bridger‐Teton…. The Fremont County Sheriff has been notified. A search lead by Fremont County Search and Rescue is active.”
“Thanks for letting me know,” Atkinson replied. “Please keep us posted on this.”
OSHA says Stewart wasn’t kept safe
Nature’s Capital’s revised contract would bring in $63,005 if all 116 plots were completed and paid for. Twenty-nine plots were in the Wind River Range of the Bridger Wilderness, 13 in the Gros Ventre Wilderness and 16 in the Teton Wilderness. The rest of the 116 sites were outside the congressionally protected roadless areas.
The Forest Service made the emails and other documents sought by WyoFile available in June. That reversed a Jan. 28 rejection in which Regional Forester Nora Rasure wrote that releasing the documents “could reasonably be expected to interfere with (law) enforcement proceedings.” Another reason cited federal rules aimed at preventing prejudicial pretrial publicity. WyoFile knows of no charges or legal action against Nature’s Capital other than the OSHA citations.
Among the documents released in June were assessments of work done by Nature’s Capital, most of which were positive. The records show that the Forest Service deemed the company’s work satisfactory. But the federal government is not the principal supervisor of workplace safety, Rust said.
“USDA Forest Service refers extensively to job hazard analyses in the agency’s health and safety planning documents,” Rust wrote in response to WyoFile questions. “OSHA, however, is the occupational health and safety regulatory agency. OSHA (Wyoming Department of Workforce Services) provides health and safety guidelines and regulations for all businesses.”
Stewart’s death above Cub Creek some 6.5 miles from the Brooks Lake trailhead on Togwotee Pass sparked an OSHA investigation. It called the incident a workplace fatality and proposed the $15,120 penalty.
One citation said that Nature’s Capital employees “were not adequately protected from contact with bears, by not providing and requiring the carrying of bear spray, not providing and requiring the wearing of noise making devices (such as bells), not requiring the employees to submit a trip itinerary, and not having and requiring check-in procedures to be followed while working in the Bridger Teton National Forest.”
Whether Nature’s Capital agrees with the OSHA citation is uncertain. The company has signed a “consent decree” in response to the proposed infractions, OSHA spokeswoman Hayley McKee said. Signing the consent decree essentially is an acknowledgement of violations and an agreement to pay at least some fines. OSHA refused to release the consent decree and other documents, saying administrative rules prevent the release of information until cases are closed. Despite the signing of the consent decree, the agency considers the case open until penalties are paid and abatements completed, McKee wrote in a letter.
Nature’s Capital has until the end of this year to pay whatever amount it agreed to in the consent decree, she said. The company was to complete whatever changes to its policies and practices it agreed to by the end of July, the letter said.
Rust would not comment on the dealings with OSHA.
“Once the case is closed with Wyoming OSHA I’d be happy to discuss the case with you in more detail,” he said. “I think it’s important that the public knows how the accident occurred and hopefully we can prevent this from happening in the future.”
Meantime, the Interagency Grizzly Bear Committee Board of Review used Stewart’s death to issue recommendations to guide workers in grizzly occupied backcountry. Some of them may sound familiar.
The two-page paper (see below) said working in parties of two or more or from horseback “has been shown to reduce the risks of bear attack.” Workers should know about the effectiveness of bear spray and companies should provide them with it, the board recommended. Companies should make workers file itineraries to “decrease search and rescue time and reduce risks to Search and Rescue personnel while also providing for more expedient location of lost or injured people and prompt medical care if needed.” A check-out/check-in system also would help rescue workers in emergencies, the recommendations said.
“The Board reiterates that there is no guarantee of safety when working in bear country and application of these practices may not have changed the outcome of the Adam Stewart fatality,” the recommendations say. “The Board believes that adherence to these standard safety practices should reduce the risk of future bear attacks on personnel working in bear country, speed medical care, and reduce the risks to Search and Rescue personnel involved in recovery efforts.”
Board of Review recommendations for workers in grizzly country:
I cannot comprehend someone hiking into bear territory without bear spray and, perhaps, a gun — at minimum, bear spray. OSHA may have determined that Stewart’s employer was negligent, but was he not also responsible for his actions? Being in bear county with no bear spray is unfathomably irresponsible.
Pamela RW Kandt