Friday, May 28, 2021
CapitalPress.com 5
There’s a Renaissance happening in prescribed burn law
By SIERRA DAWN MCCLAIN
Capital Press
Courtesy of Lenya Quinn-Davidson
A prescribed, or controlled, fi re in California. Prescribed fi re is one of many tools used
to limit hazardous fuels on landscapes to mitigate wildfi re risk.
Liability
John Weir, prescribed fi re
researcher at Oklahoma State
University, said landowners
nationwide cite liability con-
cerns as one of the main rea-
sons they’re reluctant to use
prescribed fi re. They fear
being sued if fi re escapes.
Liability means the legal
responsibility a person holds
for their acts or omissions.
The U.S. has three main
liability standards for pre-
scribed burning: strict lia-
bility, which holds a person
responsible for harm even if
they weren’t negligent, sim-
ple negligence, which holds
a person responsible if they
didn’t take reasonable care,
and gross negligence, which
holds someone responsible
only if they showed reckless
disregard for safety.
Most states have sim-
ple negligence standards.
Eight use a gross negligence
standard.
In states with lower lia-
bility standards, people are
inclined to do more prescribed
burns. Oregon, for example,
a simple negligence state,
burned only 200,629 acres in
2019, while Florida, a gross
negligence state, burned more
than 1 million acres the same
year.
To incentivize more pre-
scribed burning on private
lands, some Western states
are exploring making the
shift from simple to gross
negligence.
Naturally, this strikes fear
in critics.
“People are like: ‘Why
would you want people burn-
ing less safely?’ It’s not about
that. It’s about people hav-
ing confi dence they won’t get
sued over minor details,” said
Quinn-Davidson of the North-
ern California Prescribed Fire
Council.
CA: California is a simple
negligence state. Senate Bill
332, in the Legislature, would
change state law so a certifi ed
burn boss, unless grossly neg-
ligent, would not be liable for
fi re suppression costs in case
of an escape.
OR: Oregon is also a sim-
Insurance
Courtesy of Lenya Quinn-Davidson
A prescribed fi re in California.
ple negligence state. House
Bill 2571, moving through
the Legislature with biparti-
san support, would prompt
a study of prescribed fi re lia-
bility options. Kyle Williams,
director of forest protection at
the Oregon Forest and Indus-
tries Council, said OFIC sup-
ports the bill.
WA: In 2018, Washing-
ton passed House Bill 2733,
which increased liability pro-
tection from simple to gross
negligence for anyone cer-
tifi ed by the state as a burn
manager. The new certifi ca-
tion program is rolling out this
spring.
ID: Idaho is a simple
negligence state. Heather
Heward, chair of the Idaho
Prescribed Fire Council, said
Idaho is in early conversa-
tions about changing liability
standards, with no legislation
introduced yet – “in the rafters
and watching this stuff unfold
in other states fi rst.”
Some states apply the
gross negligence standard to
the public. Others, like Wash-
ington under its new law, only
off er that protection to certi-
fi ed burn managers.
Certifi ed burn manager
programs
A certifi ed burn manager
program trains and certifi es
private individuals, like land-
owners, to conduct prescribed
burns. This is diff erent from
an ag burn permit, which has
a narrower farm application.
Twenty-one states cur-
rently authorize agencies to
oversee certifi ed burn training
programs.
Certifi cation
programs
vary widely by state. Some
are voluntary, others man-
datory. In some states, like
Florida, certifi cations are rel-
atively easy to obtain, while
in others, like Colorado, cer-
tifi cation is hard to get. Some
states incentivize certifi cation
by off ering a less burdensome
liability standard to people
who get trained, while other
states off er no such reward.
Quinn-Davidson, of the
Northern California Pre-
scribed Fire Council, said she
thinks it’s important for states
to “fi nd the sweet spot.”
“How do we set a high bar,
but one that people are still
willing and able to get over?”
she said.
Western states are wres-
tling with that question this
spring.
CA: In 2018, Califor-
nia passed Senate Bill 1260,
which ordered develop-
ment of a state-led certifi ca-
tion program for private fi re
burn bosses. Experts say this
was “a solid step in the right
direction,” but the certifi ca-
tion is relatively hard to get
Weir of Oklahoma State
University said it’s rare for
insurance companies any-
where in the U.S., but espe-
cially in the West, to insure
prescribed fi res.
Some insurance com-
panies say they’d be more
inclined to back prescribed
burners if those burners had
gross rather than simple negli-
gence liability. This is on law-
makers’ minds.
CA: California fi re experts
and lawmakers are in con-
versations about a possible
state-sponsored
insurance
program for prescribed burns.
This could be controversial,
as the primary funding source
would probably be taxpayers.
OR: Oregon’s House Bill
2571 would prompt a study
of various insurance options.
Insiders say Oregon will try
to move the private insur-
ance market fi rst, but Oregon
is also having conversations
about state-backed insurance.
WA: Like California,
Washington is in early con-
versations about a possible
state insurance plan for pre-
scribed burns, but no legisla-
tion has been introduced.
ID: Idaho is watching
what other states do before
making a move, but tends to
favor incentivizing private
insurance companies to insure
burns.
Smoke
In most of the U.S., liability
is the primary force deterring
people from burning. But in
the West, studies show strin-
gent air quality standards are
equally likely to limit people’s
willingness and ability to con-
duct prescribed burns.
First, across the West –
especially in Oregon and
Washington – it’s hard to get a
smoke permit. And secondly,
burners can be held to a sim-
ple negligence standard for
smoke impacts, such as when
smoke blows across a road,
limiting visibility.
But experts say “rum-
blings” of potential change
can be heard if you listen
closely.
CA: In California, local
air districts are in control,
meaning what a burn boss
can do varies by region. For
a 300-acre burn in Hum-
boldt County, a burner must
pay $1,310 in fees. The exact
same burn in Siskiyou County
requires no fees. California
offi cials are currently in con-
versations about how to mod-
ify district-by-district guide-
lines to encourage more
prescribed fi re.
OR: Experts say Ore-
gon’s requirements for get-
ting a prescribed burn smoke
permit are “very strict.” At
the local level, counties are
crafting community response
plans to help alleviate the
burden. At the federal level,
Sen. Ron Wyden, D-Ore., has
introduced the National Pre-
scribed Fire Act of 2020, a
bill that would push for fl ex-
ibility under the Clean Air Act
to allow for more controlled
burns.
WA: Chris Martin, chair
of the Washington Prescribed
Fire Council, said Washington
has “some of the most restric-
tive smoke management plans
in the country.” State agencies
are currently reviewing smoke
guidelines and considering
potential changes, but Martin
said it will be hard for offi cials
to alter rules because no one
wants to be perceived as low-
ering air quality standards.
ID: Idaho’s Department of
Environmental Quality is also
in conversations this spring
about developing new air
quality rules to promote pre-
scribed burns.
National picture
On the federal level, too,
lawmakers are considering
how to expand prescribed fi re.
Both Wyden and Sen. Dianne
Feinstein, D-Calif., intro-
duced bills after 2020’s dev-
astating fi res – proposals that
would create more prescribed
fi re councils, coordinate fed-
eral and state land laws and
provide funding for controlled
burning.
“I never thought I’d see
this day,” said Quinn-David-
son, who created the West’s
fi rst prescribed fi re council.
“There’s so much interest in
prescribed fi re. I’m just blown
away.”
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In 2009, Lenya Quinn-Da-
vidson, then a grad student,
helped found the Northern
California Prescribed Fire
Council, the fi rst of its kind in
the West, of which she is now
director.
Her vision didn’t fi t Cali-
fornia’s culture. She hoped to
expand the use of prescribed
fi re – also called “controlled,”
“good” or “Rx” fi re – to limit
hazardous fuels on the land-
scape, like brush under trees
that can serve as a tinderbox
for wildfi res.
Prescribed fi re is popu-
lar in the Southeast. In con-
trast, apart from indigenous
tribes conducting burns, the
West has long had an aversion
to, and misunderstanding of,
controlled burns.
“A person might imagine
their neighbor running around
with a blowtorch, lighting
things up,” said Jenna Kno-
bloch, administrative coordi-
nator at the Oregon Prescribed
Fire Council.
Westerners are also likely
to assume prescribes fi res
often escape human control,
although nationwide data
across decades show escapes
happen 1% of the time, human
injuries are rare and property
damages are typically minor.
It was in this context and
culture that Quinn-Davidson
started her fi re council. For
nearly a decade, she envied
other states’ liability laws, pri-
vate land burning opportuni-
ties and certifi ed burner pro-
grams, but she never thought
such policies could exist in
her state.
“It’s California. It’s just
too diff erent,” she recalls
thinking.
Then the 2017 fi res hit.
Suddenly, people listened.
Californians started pre-
scribed fi re councils and local
burn associations, and law-
makers sought to learn more
about controlled burning.
Lately, Quinn-Davidson
has been developing curricu-
lum for the state’s new burn
manager certifi cation pro-
gram, which she calls a “huge
milestone.”
The cultural shift startled
many. One California cat-
tle industry leader described
it as an awakening or rebirth
– a kind of “Renaissance” in
fi re law.
California isn’t alone.
Across the West, many states
are reevaluating prescribed
burning.
But just saying “let’s burn
more” and doing it are diff er-
ent. Experts say most Western
states have legal frameworks
that make prescribed burns
diffi cult to conduct and actu-
ally deter burn bosses from
doing their work.
That could change. Across
California, Oregon, Wash-
ington and Idaho, new bills
and discussions are shaking
things up. States are explor-
ing new fi re laws relating to
liability, training programs for
prescribed burning, insurance
and air quality requirements.
and burn bosses don’t receive
improved liability protection.
If passed, Senate Bill 332
would improve liability pro-
tection for certifi ed burners.
OR: In 1999, Oregon’s
Legislature passed a bill
authorizing the State Board of
Forestry to create a prescribed
burn certifi cation program,
but the program was never
created. House Bill 2572,
moving through the Legisla-
ture now, would require the
Board to consult with the Ore-
gon Prescribed Fire Coun-
cil about how to create a cer-
tifi cation program. Williams
of OFIC said he supports the
bill but hopes any certifi ca-
tion program created will be
voluntary.
WA: Washington is on a
roughly parallel track with
California. In 2018, Washing-
ton passed House Bill 2733,
which created the certifi ca-
tion program the state is roll-
ing out now. Unlike Califor-
nia’s model, it will off er burn
bosses the gross negligence
standard.
ID: Idaho does not have
a certifi ed burn manager pro-
gram yet. Experts say Idaho
is again watching to see what
other states do fi rst. Any pro-
gram Idaho creates will prob-
ably be voluntary.
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