In 2017, a group of prescribed fire researchers (including me!) set out to answer the age-old question…is prescribed fire liability…prescribed fire’s scapegoat? Check out this work that talks about the Edwards Plateau Prescribed Burn Association escape prescribed fire lawsuit here.
Although use of prescribed ﬁre by private landowners in the southern Great Plains has increased during the past 30 yr, studies have determined that liability concerns are a major reason why many landowners do not use or promote the use of prescribed ﬁre. Generally, perceptions of prescribed ﬁre−related liability are based on concerns over legal repercussions for escaped ﬁre. This paper reviews the history and current legal liability standards used in the United States for prescribed ﬁre, it examines how perceived and acceptable risk decisions about engagement in prescribed burning and other activities differ, and it presents unanticipated outcomes in two cases of prescribed ﬁre insurance aimed at promoting the use of prescribed ﬁre. We demonstrate that the empirical risk of liability from escaped ﬁres is minimal and that other underlying factors may be leading to landowners’ exaggerated concerns of risk of liability when applying prescribed ﬁre. We conclude that providing liability insurance may not be the most effective approach for increasing the use of prescribed ﬁre by private landowners. Clearly differentiating the risks of applying prescribed ﬁre from those of catastrophic wildﬁre damages, changing state statutes to reduce legal liability for escaped ﬁre, and expanding landowner membership in prescribed burn associations may be more effective alternatives for attaining this goal. Fear of liability is a major deterrent to the use of prescribed ﬁre; however, an evaluation of the risks from escaped ﬁre does not support perceptions that using prescribed ﬁre as a land management tool is risky. Prescribed burning associations and agencies that support land management improvement have an important role to play in spreading this message.
In the second case, insurance provided to members of a PBA in Central Texas contributed to the initiation of multiple lawsuits following an escaped ﬁre that negatively affected the use of prescribed ﬁre by some landowners. The speciﬁcs of this incident and its aftermath were obtained through interviews with people involved in the lawsuits and through analysis of legal briefs and motions ﬁled with the Sutton County court. In March 2011, a contractor who was neither certiﬁed as a burn manager nor insured was hired by a pair of private landowners in Sutton County, Texas to conduct a prescribed burn on their property during a burn ban. The contractor had recently become a member of the local PBA and counseled the landowners who hired him to also join the PBAs so that they would be covered by the prescribed ﬁre insurance provided by the association to its members. To comply with the PBA’s insurance requirements, the contractor also ﬁled a burn plan with the PBA. In addition, these people requested an exemption from the county judge to apply prescribed ﬁre during the burn ban. The judge ruled that only certiﬁed burn bosses would be granted a variance and denied the request. In contravention to this ruling, the contractor nevertheless proceeded with the planned burn. In preparation for the burn, the ﬁre crew pre-burned backﬁres along ﬁrebreaks to create blacklines on the downwind side of the planned ﬁre. During blackline burning, the wind direction shifted, causing the ﬁre to ignite a stand of extremely dry juniper trees. Embers from the burning junipers were blown outside of the burn unit and initiated an escaped ﬁre that burned approximately 405 ha on the contracting landowners’ property and three adjacent properties. Even though there was no major property damage or injury, the escaped ﬁre led to multiple lawsuits. Three plaintiffs ﬁled lawsuits involving the landowner’s property, where the ﬁre started; the PBA; and a founding member of the PBA who had disapproved the proposed burn. Two insurance companies became involved in claims by the three landowners including the company that underwrote the PBA’s prescribed ﬁre insurance policy and the company that provided insurance for the landowners who had signed the contract for the burn. Initially, the latter insurance company stated its policy did not cover prescribed ﬁre damage but ultimately agreed to pay for the claimed damages to settle the litigation. Once the insurance companies agreed to pay for the speciﬁed damages, the defendants were dropped from the lawsuit. The ultimate effect of the lawsuits for the unapproved burn was that the insurance company withdrew coverage of the PBA’s prescribed ﬁre insurance policy. Importantly, the insurance company omitted to include an “illegal activities” clause in the policy with which the insurance company would not have had to pay any claims because this was a ﬁre conducted against
the ruling of a county judge. The PBA was named in the lawsuit due to wording in its bylaws that erroneously made it appear that the PBA did contract burning for landowners. As a result, numerous PBAs rewrote their bylaws to emphasize they only provide education, training, and opportunities for landowners to conduct prescribed burns and to clarify that PBA membership does not provide the right to burn outside state laws or prescribed burning guidelines set by the PBA. The fear of liability from this one incident has dramatically reduced the use of prescribed ﬁre in the region, even though the escaped ﬁre and subsequent lawsuits stemmed from an illegally and improperly conducted burn. One informative statement came from an individual who was a PBA member and had burned regularly but became concerned about risk following the outcome of the lawsuits stemming from this illegal burn in which he had no part. He stated: “How could I get started burning in 2003 without checking my insurance coverage for hostile (escaped) ﬁre? There was no visceral ‘fear.’ Also, there were no escapes on my30-plus ﬁres. Now the fear is intellectual. With it comes inertia. No one wants to have an escape, and we all know that with any ﬁre there is always that risk. Why doesn’t planning allay that fear? The damage done by the arrogance of the escaped ﬁre in 2011 hangs around our shoulders like a cloak.”
This individual experienced risk reversal and stopped using prescribed ﬁre because of concerns about the actions of others—in this case a lawsuit initiated by a neighbor because his land was burned and due to the existence of an insurance policy against which he could claim. Most other people in the area who had used prescribed ﬁre and were not covered by the PBA’s insurance policy continued to burn undeterred.