Photo by: Forest Stewards Guild
Earlier this month, I traveled to New Mexico to meet with Eytan Krasilovsky of the Forest Stewards Guild and other leaders from the New Mexico Prescribed Fire Council. I lead the Northern California Prescribed Fire Council, so I was excited to spend time hearing about issues in New Mexico and sharing stories from here. We share some interesting parallels that I hadn’t realized previously: our councils formed in the same year (2009), and both regions had tragic escaped prescribed burns—within a year of each other! (The Lowden Fire, which happened in my home county in July 1999, burned 2,000 acres and 23 homes. Only 10 months later, the Cerro Grande Fire escaped from Bandolier National Monument and burned 48,000 acres and more than 250 homes.) Even now, almost 20 years later, the prescribed fire communities in New Mexico and northern California are still haunted by those events.
Yet the thing that was most striking to me was not these similarities, but some of the differences between the two places, particularly with regard to prescribed fire liability law. Our conversations in New Mexico, and some of the projects that Eytan has been working on, led me to dig through my files for papers on liability law. In the last 15 years, there have been a number of journal articles that have helped clarify different states’ liability laws and the factors that have enabled reforms in some places. Though this may seem like dry reading material, the implications of these laws are huge, and there is a great need for prescribed fire practitioners to understand the legal environments within which they operate.
Take California, for example: everyone knows that this is a highly regulated and litigious state, with strict environmental laws, tons of people and a relatively poor track record of getting prescribed fire on the ground. A fair assumption would be that California has really strict liability laws, but in fact, it falls somewhere in the middle of the national leniency spectrum. This often comes as a surprise to people who live and burn here.
A 2006 paper by Changyou Sun in the journal of Forest Policy and Economics does a nice job summarizing liability laws in the United States. The paper identifies four categories of liability law into which different states fall:
1) Strict liability, which holds a burner liable for damages regardless of the specifics of an incident;
2) Simple negligence, which holds the burner liable for damages only if they can be proven negligent;
3) Gross negligence, which holds the burner liable only if they acted with reckless disregard for the consequences of their activities; and
4) Uncertain liability, which is the most common category, and means that a state has no clear legal language regarding prescribed fire liability.
California has a simple negligence law; New Mexico has uncertain liability. If you don’t already know which category your state is in, take a quick peek at Table 1 to find out!
Liability law reform has been a major objective of prescribed fire councils over the last 20 years, especially in the Southeast. In 2006, when Sun’s paper was published, reforms had taken place in 22 different states. At that time, 18 states had transitioned from strict liability to a simple negligence rule, and four states had adopted gross negligence rules. Many of the states with the most lenient liability laws also have certified burner programs, which ensure that practitioners meet certain standards. In those places, special protections are offered only to those who have been certified. A more recent paper by Sun and Tolver (2012) outlines the details of prescribed fire regulations in southeastern states, and it provides an in-depth history of laws and regulations in Florida—one of the earliest examples of grassroots-inspired changes to prescribed fire liability law.
The importance of bottom-up changes to liability law can’t be overstated. Sun (2006) showed that the primary driver of state liability law reform at that time was the total area of private forestland in each state, which Sun interpreted as a proxy for private demand for prescribed fire. I think this is confirmed by the demographics of prescribed fire councils in the Southeast, which we know to have an overwhelmingly private base. And it raises some important questions for us here in the West, where our burning is concentrated on federal lands, and our private lands managers are not as tightly coordinated around prescribed fire issues. Will we develop a new model for motivating reform, or will we need to work harder to inspire the private lands base?
Here in California, where we already enjoy a simple negligence rule, these reforms are not quite as pressing as in places like New Mexico, where they don’t even have a law to point to. And in states with strict liability laws, the challenges are even more pronounced (albeit more clearly articulated).
I’ll leave you with a final thought on liability law reform that I took away from a paper by Yoder et al. (2003), and which I found profound in an unexpected way. The transition from strict liability law to simple negligence is not just about enabling more burning, or about offering leniency or protection to prescribed burners. It’s about moving society away from a victim mentality—where we prefer and choose the risks of inaction over the inherent risks of good work—toward a model of shared ownership and action. A strict liability rule doesn’t do much to inspire the burner or the burner’s neighbors, because it’ll always be the burner’s “fault” if something goes wrong. Implicit in a negligence rule, however, is a sense of shared responsibility and a respect for the unknown—core philosophies of the prescribed fire community.
Sun, C. (2006). State statutory reforms and retention of prescribed fire liability laws on US forest land. Forest Policy and Economics, 9(4), 392-402.
Sun, C., & Tolver, B. (2012). Assessing administrative laws for forestry prescribed burning in the southern United States: a management-based regulation approach. International Forestry Review, 14(3), 337-348.
Yoder, J., Tilley, M., Engle, D., & Fuhlendorf, S. (2003). Economics and prescribed fire law in the United States. Review of Agricultural Economics, 218-233.
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