- There is an important purpose and need for the use of prescribed fire across the West to mitigate the uncharacteristic, high severity wildfires that are occurring due to hundreds of years of fire suppression.
- Stringent liability laws on standards of care are continuously cited as a key challenge and barrier to the implementation of prescribed fire in forest restoration projects, especially in projects that require cross boundary, multi-ownership planning and implementation.
- In response to increased wildfire risks affecting all Oregonians, Governor Brown signed an executive order creating the Governor’s Council on Wildfire Response in January 2019. The Council is tasked with reviewing Oregon’s current model for wildfire prevention, preparedness and response, and analyzing the sustainability of the current model to provide recommendations to strengthen, improve, or replace existing systems.
- This brief offers policy recommendations to change Oregon’s tort law from simple negligence to gross negligence and to act on existing legislation to develop a statewide burn manager certification program.
Prescribed fire is an important tool used by land managers, private landowners, and Native American communities in order to achieve land management goals (Kolden 2019). This practice, along with thinning and other fuels reduction techniques is integral to mitigate the effect of uncharacteristic wildfire severity across many landscapes in the West. The behavior of any fire is dependent on fuels, weather, and topography, and when trained teams are able to assess these characteristics along with risk factors, prescribed fire can be an achievable and safe land management practice.
There is a huge need for the use of prescribed fire across the West to mitigate the uncharacteristic, high severity wildfires that are occurring due to hundreds of years of fire suppression. While there are a diversity of challenges and barriers to the implementation of prescribed fire, the issue of liability and state laws on standards of care are continuously cited as a key challenge, especially in projects that require cross boundary, multi-ownership planning and implementation (Schultz et al. 2018). Broadly speaking, many people cite general risk aversion as an important factor in willingness to conduct prescribed fires, with agency willingness being influenced by political concerns (Schultz et al. 2018). On a local, landowner level, Oregon’s liability laws are generally regarded as being too strict to facilitate the amount of landscape scale restoration that is necessary to achieve the wildfire mitigation goals set out by the Governor’s Council on Wildfire.
This policy brief examines Oregon’s liability laws and provide recommendations of establishing gross negligence as the standard of care for prescribed fire liability and by setting standards for prescribed burn implementation through a statewide Burn Manager Certification Program. This brief is intended to be useful to legislators, members of the public, and partnerships working in the realm of prescribed fire such as the Oregon Prescribed Fire Council, the Klamath Lake Forest Health Partnership, and forest collaboratives. This policy brief is part of an overall Master’s project to create literature that will be used in Oregon’s next legislative session, and further research recommendations will also be provided.
Current Policy Critiques:
Current liability laws in Oregon decrease the incentive and therefore the implementation of an incredibly important management tool for not only healthy ecosystems, but also community and firefighter safety. The effectiveness in managing risk within these different liability laws depends on who bears the costs and what agencies or landscapes benefit, and the roles of these partners in being able to reduce risk. Liability law does not consider the broad social and ecological benefits of prescribed fire, or factor in the risk of not burning, which discourages the implementation of prescribed fire (Yoder 2004).
Yoder (2004) also acknowledges that changing in laws could have a backfiring effect in that it may lead to too much prescribed fire, too soon, and with too little knowledge. One of the main pushbacks regarding policy recommendations on loosening laws is the perceived vacuum of accountability on the part of the landowner and the increased risk perceived by adjacent landowners and neighbors. This again highlights the need for laws and policy conversations to consider the no action alternative for fuels reduction, as well as innovative ways to continue reducing the risk of escaped fires while removing the barriers to treatment implementation. This shows not only a need for less stringent laws, but also an increase in landowner education regarding prescribed fire. Many states have addressed this issue by developing burn manager certification programs. The development of a burn manager certification program for Oregon will be discussed in the policy recommendations.
Recommendation 1: Change Oregon’s Standard of Care from Simple to Gross Negligence
Simple negligence requires the plaintiff to show negligence. Gross negligence would require the plaintiff to show reckless disregard for duty of care. In Oregon, liability for damage and liability for suppression costs are treated separately. A move from Simple to Gross negligence would be liability for damage only. This will be paired with policies that define what duty of care is for conducting a prescribed fire, including burn manager certification and Oregon’s permitting regulations.
Florida, Georgia, Michigan, Colorado, and Nevada all have gross negligence as the standard of care for prescribed fire conducted by burners that have training and education that meets state standards. These policies were established in recognition of the critical importance of bringing fire to the landscape.
Recommendation 2: Establish Statewide Burn Manager Certification Program for Oregon
A Statewide Prescribed Burn Manager Certification would develop training standards and track the credentials of burn professionals across the state. Certified burn managers would be aware of the steps they need to take and the factors they need to consider in order to expect a fire to be carried out safely. Defining these standards at a state level would bring clarity to burn managers, landowners, neighbors, and others about what they should expect.
The goals of an Oregon burn manager certification program would be:
1. Provide burners with training, knowledge and experience to safely conduct prescribed burns,
2. Educate and inform the public on the legitimacy and necessity of prescribed burning practices, and what it means to live in a fire adapted region.
3. Address concerns and answer questions about liability laws that limit burning by private landowners, contractors, and local governments and assemble information to help landowners make informed decisions about legal risks associated with fire use. Useful information would include data on prescribed fires that escape, the frequency and context of prescribed fire litigation cases, and easy to understand steps to follow liability laws.
4. Certified burn managers that conduct prescribed fires in accordance with Oregon State Laws and other important permitting regulations will receive liability protection under a gross negligence standard for damages caused by smoke or fire.
There are currently 13 states with formal and active certified burn manager programs. For example, the State of Michigan’s Public Act 529 of 2004 calls for the development of a certification program, but the Department of Natural Resources did not develop or implement the program due to lack of funding. Efforts to develop new programs are ongoing in Washington, California, Minnesota, and West Virginia, and interested parties are pushing for a burning act and certification program in New Mexico. Some states offer trainings for prescribed burning that are not tied to a prescribed burn law, such as Arkansas, Ohio, Oklahoma, and Missouri. (Matonis, 2020)
Perhaps of most importance to this policy recommendation is the fact that Oregon already has an unimplemented authority and legal framework for a Prescribed Burn Manager Program in ORS 526.360. This legislation, enacted in 1992, empowers the State Board of Forestry to establish a burn manager certification program.
The language from ORS 526.360 is as follows:
(3)To accomplish the purposes set forth in subsection (1) of this section, the State Board of Forestry may establish by rule a Certified Burn Manager program. The rules shall include:
(a)Certification standards, requirements and procedures;
(b)Standards, requirements and procedures to revoke certification;
(c)Actions and activities that a Certified Burn Manager must perform;
(d)Actions and activities that a Certified Burn Manager may not allow or perform;
(e)Limitations on the use of a Certified Burn Manager; and
(f)Any other standard, requirement or procedure that the board considers necessary for the safe and effective administration of the program.
(4)When any burning for any of the purposes stated in subsection (1) of this section on forestland classified pursuant to ORS 526.328 (Hearing) or 526.340 (Classification by State Forester) is started under the supervision of and supervised by the forester or a Certified Burn Manager, no person shall be liable for property damage resulting from that burning unless the damage is caused by the negligence of the person. [Amended by 1965 c.253 §42; 1967 c.429 §33; 1999 c.101 §2]
(Authority of State Forester to enter private land to administer Forest Practices Act, 1978)
In addition to this authority, there are already important partnerships that have been built on the ground to support the success of this policy recommendation. Newly funded extension positions in the OSU Extension Fire Program would provide place based professionals to develop curriculum interfaces and landowner outreach. The Oregon Prescribed Fire Council, the Klamath Lake Forest Health Partnership, The Nature Conservancy, the Natural Resources Conservation Service, The Forest Stewards Guild, Watershed Councils, Forest Collaboratives and many other groups are already addressing barriers to prescribed fire, working directly with landowners interested in prescribed fire, and developing Community Response Plans in Smoke Sensitive Receptor Areas to mitigate smoke impacts on public health from both prescribed and wild fire events.
The outcome of changing Oregon’s standard of care to Gross Negligence and establishing a burn manager certification program would result in more skilled and fire adapted communities, a larger prescribed fire workforce, safer communities and healthier frequent-fire ecosystems.
The landscapes of Oregon and other Western states have adapted to fire over millennia. Historical policies of fire suppression, climate change, and population growth create conditions for increased risk to communities, economies, and forest health for Oregonians, and all Americans. One of the best tools at the disposal of land managers is to facilitate the return of good fire back to the landscape (Evans 2017). This will require cross-boundary collaboration and innovative polices that support treatment on private land, the wildland urban interface, and other high risk forest sites. State policies that support an innovative community of practice for mitigating wildfire is necessary, timely, and recommended. Addressing the legal barriers to prescribed fire will result in a healthier and safer Oregon and Pacific Northwest.
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