This may come as a surprise to you, but I am not a fire person. Yes, my name means firewood in Spanish, and yes, most of my time is spent thinking and talking about fire—but fire is not my element. I’m really much more aquatic.
This winter I took up open water swimming in the coastal lagoons north of where I live. I’ve always loved to swim, and in the absence of warm, tropical waters, I’d become curious about the rare swimmers I’d seen braving the North Coast waters. So finally, this January, I bought a wetsuit, gloves, booties and a swim buoy, I recruited two adventurous friends to join me, and we set out across Stone Lagoon, in all of its ~50 degree glory.
So far, we’ve enjoyed the lagoon a handful of times, and it’s becoming our preferred weekend morning routine. And I have to say, our new hobby has come with some surprises. First, it’s relaxing. The buoyancy of the wetsuit, coupled with the pillow-like qualities of the swim buoy, the calm early morning waters, the simultaneous sensations of cold and hot, the birds chirping, the fog lifting and the almost complete solitude of the lagoon, make it more like a spa session than a workout. A couple weekends ago, on my way back across the lagoon, I caught up with my friend Tami, who—with her head resting on her buoy—was almost asleep. The sun was warming her back, and she—like the buffleheads bobbing nearby—was momentarily lost to this world.
The second surprise has been the shock this sport inspires in other people. The other day, a fisherman boated by in disbelief, yelling out “you’re not really swimming, are you?” After offering a rescue, he went on his way, shaking his head and smiling as he cracked the morning’s first beer. The next weekend, as we approached shore, we noticed a full family lined up there, pointing, discussing and craning to see us as we neared. The little boy jumped and laughed as I stepped out of the water, then pointed to my friend Jesse who was still swimming and said “why is she doing that?!” Other people have congratulated us and commended our bravery, commented on how miserable it looks, and told us they’ve read about people like us in the local newspaper.
This kind of disbelieving curiosity is familiar to those of us who work in prescribed fire. When you try to describe your work to a distant relative, or to someone on an airplane, they struggle to understand how or why you would purposefully light a fire. It seems so risky, so out of control—so much potential for things to go wrong. But we know that, just as I’ve found with open water swimming, the perceived risks of prescribed fire tend to stray far from the lived experience. While onlookers see discomfort and danger, we are in our element.
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This past winter found me dabbling in more than open water swimming. I’ve also jumped head first into policy work here in California, supporting the development of a couple of bills in the state legislature and helping roll out the state’s new, legislatively mandated state-certified burn boss program. One of the bills I’ve been working on, Senate Bill 332 (Dodd), is momentous. If successful, it would confer a gross negligence liability standard onto the new state-certified burn bosses, ensuring that the certified burn boss is not held liable for damages caused by a prescribed burn unless the prescribed burn was conducted in a grossly negligent manner. Non-certified people would still have the right to burn, but they would be held to the more stringent simple negligence standard that currently applies to everyone in California.
This is a setup that at least five other states have (including Florida, which leads the country with its two million acres of burning each year), but one that I never thought we’d see proposed here in California. In my mind, this simple structural change in our state’s liability law is the single most promising way for us to proliferate the use of prescribed fire on private lands in California. From the dozens and dozens of support letters that the bill has already received, it’s clear that many landowners, ranchers, private contractors, environmental and community-based organizations, fire safe councils, tribes and others share my sentiment.
However, though we prescribed fire enthusiasts are thrilled at the prospect of a gross negligence standard, it turns out that it’s a hard thing to describe to a layperson. Of course the term “gross” is a bit off-putting, and the thought of wanting to hold someone liable only after they’ve shown reckless disregard for their actions may also be cause for alarm. When we in the fire community have such a penchant for safety and care, why in the world would we need this kind of change to make a difference in our work?
This topic has been a central focus for my colleague John Weir, who I like to call the godfather of prescribed burn associations. John, with Oklahoma State University extension, has led the charge on prescribed fire across the Great Plains, and he’s authored many important papers on topics related to prescribed fire. One of his more recent papers (from 2019)—Liability and Prescribed Fire: Perception and Reality—drills into this topic of prescribed fire liability, and helps shed light on the power of perceived risk and how it can stand in the way of good work.
As Weir and his co-authors explain, fear of liability remains one of the primary reasons that private landowners aren’t using more prescribed fire. And Weir’s not the only one to document this—many other researchers (including me) have shown this to be true. However, we also know that the risks of prescribed fire are relatively minimal—rates of prescribed fire escapes are consistently low, and most escapes are small and result in no injuries, damages, or insurance claims. As Weir notes in the paper, there are many practitioners who have been burning for their entire careers without incident. He points to our shared colleague and friend John Stivers, who has conducted more than 2,000 burns in the last 14 years for a total of ~350,000 acres—all without any issues. Similarly, a metastudy that Weir published in 2020 showed an escape rate of only 1% across more than 23,000 burns (including both federal and private), with only one insurance claim and one injury.
So given all of this, why is liability such a central focus and concern?
Weir explains that risk perception is largely driven by emotions, and it tends to be inflated by uncertainty. As described in a recent report on barriers to prescribed fire in California, a simple negligence standard, as we have now, can lead to a great deal of uncertainty, because so much is left to interpretation. If something goes wrong, burners need to show that they were doing what a “reasonable and prudent person” would have done—and how clearly defined is that? Likewise, activities have different levels of “acceptable risk,” defined as the level of risk that an individual (or society) is willing to tolerate to secure the benefits of an activity. (E.g., driving is very risky, but also has high levels of acceptable risk.) Unfortunately, prescribed fire suffers from a case of highly exaggerated perceived risk layered with unfairly low levels of acceptable risk. Hence the unsubstantiated focus on liability.
Now let’s circle back to gross negligence. We prescribed fire practitioners do not seek this standard because we wish to operate any differently or with any less care. Rather, a gross negligence standard is critical because it brings the risk profile of prescribed fire back into balance. By reducing the uncertainty that comes with a simple negligence standard, gross negligence lowers the perceived risk. And because a change like this would represent a statewide vote of confidence for the importance of prescribed fire, it would also elevate its acceptable risk. Other efforts to support prescribed fire (like development of insurance options) may be helpful, but they don’t have the rebalancing power of a changed liability standard. Changing the liability standard is the most direct route to changing the comfort and culture around prescribed fire.
Now I must admit, I’m glad open water swimming is not a popular sport. I’d hate to share those crisp winter mornings on the lagoon with any more people—the solitude is part of the charm, and I’m grateful that onlookers see it as a cold, risky, miserable endeavor. But if I did want to popularize it, I know that giving people a thick wetsuit and a swim buoy—and assuring them open water swimming is actually really relaxing and fun and safe—wouldn’t necessarily get them in the water. The water would need to be warmer.
When it comes to prescribed fire, we in California have so many people with the skills, resources and ambition to lead this work, and now we also have a way to certify them. In other words, we have the wetsuits and we know how to swim. What we need now is the bold vision and leadership to warm the prescribed fire waters, bring more people into our element, and show that we don’t need a rescue—we are the rescue.
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