California ‘burn bosses’ set controlled forest fires. Should they be safe from lawsuits?

Ryan Sabalow, Dale Kasler
·7 min read

Across California, property owners and their “burn bosses” are setting fires. When the weather is cool, calm and wet enough, these planned forest fires are designed to clear overgrown vegetation that could accelerate a wildfire in dry months.

They do this knowing they risk financial ruin from a lawsuit if something goes wrong.

Now, Native American tribes, ranchers, timber companies and conservation groups are teaming up to reduce those liability risks in a battle that pits them against the state’s powerful trial lawyers and insurance industries.

New legislation introduced by Sen. Bill Dodd, D-Napa, would buffer state-certified burn bosses — and private property owners on whose land the fires are set — against personal liability lawsuits if a fire escapes and hurts someone or damages property. They could still be sued, but only if the burn was “conducted in a grossly negligent manner.”

There is near-universal agreement from scientists and fire officials that intentionally set “prescribed” fires are critical to restoring the health of California’s forests and easing the misery of the state’s increasingly long fire seasons.

For their part, Native American tribes have known this for centuries. And at least three California tribes support the new legislation, Senate Bill 332.

“There are a lot of barriers out there in the world to being able to scale up our cultural and prescribed fire use in California and throughout the West. And liability is one of the big ones,” said Bill Tripp, the natural resources and environmental policy director for the Karuk Tribe.

In legal parlance, gross negligence means someone shows a reckless and conscious disregard for a clear risk of danger, beyond routine carelessness.

The insurance industry, which is opposing Dodd’s bill, argues the proposed legislation would let someone off the hook even if their actions are careless.

Seren Taylor, senior legislative advocate at the Personal Insurance Federation of California, said his organization isn’t opposed to prescribed fires but thinks Dodd’s bill goes too far in absolving a burn boss if a prescribed fire gets loose.

He said burn bosses should “act reasonably” and should be held to that standard. California should try to “make sure we don’t have prescribed burns that get out of control.” Taylor’s organizations lobbies for the major property-casualty insurers doing business in California.

Generally, burn bosses working for Cal Fire and the U.S. Forest Service are protected if something goes awry. But private bosses, working primarily on private land, face the prospect of litigation if a fire gets out of control, said Lenya Quinn-Davidson, who heads the Northern California Prescribed Fire Council.

Gov. Gavin Newsom’s $1 billion wildfire budget already includes $65 million specifically for increasing the rate of controlled burns, and the state is currently ramping up its efforts to certify more burn bosses, many of whom can’t get insurance to cover them under the current liability standards, Dodd told The Sacramento Bee in an interview Wednesday.

Dodd said there shouldn’t be “any opposition to this, given what this state has gone through, and the magnitude of the work that we have to do, and the fact that burn bosses are not able to get insurance readily. (That) could set back the state’s ability to burn the amount of acreage that it needs to burn.”

Too little fire for too long

Advocates for prescribed burns say the state is paying the price for a century of trying to put out every fire as quickly as possible to protect timber stocks and development. As a result, much of the state’s wild places are unnaturally dense with small trees and brush ready to ignite during the state’s dry summers and falls, a problem made all the more dangerous as the climate warms.

One solution, advocates say, is to bring fire back when conditions are safer and the fuels aren’t tinder-dry, similar to how native Californians prior to European settlement burned large swaths of the state every year to protect villages and keep habitats healthy.

Researchers estimate that prior to the arrival of Europeans, fires burned around 4.5 million acres of land every year, much of them intentionally set. Last year, the state’s worst wildfire season in modern history, burned 4.25 million acres.

“If you look at just the scale of the fires that happened in 2020, the scientists are saying that’s a pretty close match to how much would have burned in California annually,” said Tripp of the Karuk Tribe, one of the supporters of Dodd’s bill. “It’s just that most of that would have burned at a different time of year when it wouldn’t have behaved in such a volatile manner.”

California has been ramping up its prescribed fire regime, and currently intentionally burns about 125,000 acres each year, according to estimates by the California Air Resources Board.

Still, that’s barely making a dent in the buildup of fire fuels. California has 33 million acres of forests, plus another 15 million acres of grassland and scrubby terrain called chaparral, the dense brush that surrounds many foothill communities up and down the state.

There are numerous barriers to starting more prescribed fires — from air quality concerns to environmental reviews that can take years to burn just a few thousand acres — on top of the fear of getting sued.

“There are a lot of burn bosses out there who are well experienced about burning, and they have the time and the resources to do it,” said Kirk Wilbur of the California Cattlemen’s Association. “But they’re so afraid of being sued for those very rare circumstances in which a fire escapes … This keeps them from entering into more contracts and blackening more acreage.”

The Northern California Prescribed Fire Council’s Quinn-Davidson said SB 332 would be critical to making prescribed burns more widely used in California.

States such as Florida, which use prescribed fire much more frequently, offer their burn bosses the type of liability protections SB 332 would provide, she said. Florida deliberately burns about 2 million acres a year — or about 16 times more than California, a state with far greater wildfire risk. Dodd said Colorado and Washington also have similar standards.

Quinn-Davidson said the problem isn’t just liability, “it’s also perceived liability — people are scared to get involved in prescribed fire. Escape rates are very limited but for the private practitioner who wants to get involved in this work, it’s a barrier.”

Choosing when California burns

Runaway prescribed burns are rare — advocates say less than 1 percent of them escape and are usually small in size — but they tend to generate considerable publicity and can turn public opinion against what is still a controversial concept.

A recent local example occurred in October 2019, when the Forest Service lost control of a prescribed burn deep in the Eldorado National Forest, not far from the Kirkwood ski resort. Several days after it started, the fire escaped its pre-set boundaries and became an official incident called the Caples Fire.

While it wasn’t huge — the fire only burned an additional 325 acres and no one was hurt — the Caples Fire was unsettling because it took place during a PG&E Corp. “public safety power shutoff.” Communication was spotty and residents weren’t sure what was going on.

Other incidents have had more serious ramifications. In 2016, a prescribed fire that got loose near Reno destroyed 23 homes. A jury convicted the Nevada Division of Forestry of negligence and the state paid $25 million in damages.

One of the nation’s worst out-of-control prescribed burns came in 2000, when a fire in the Bandelier National Monument in New Mexico escaped containment. The fire burned 75 square miles, destroyed more than 200 homes and damaged the Los Alamos nuclear weapons laboratory.

Blasting the planning behind the fire as badly flawed, then-Interior Secretary Bruce Babbitt and Agriculture Secretary Dan Glickman ordered a 30-day suspension of all prescribed fires in the western half of the United States so a stricter approval process could be implemented.

Prescribed fire planning and implementation have improved since then, advocates say, but they acknowledge there’s no way to completely reduce the risks.

Still, the devastating wildfires in recent years show that the risks of not using prescribed fire more widely are far worse, said Don Hankins, a Chico State University professor and “cultural fire practitioner,” someone who uses the fire management methods of the people native to an area.

“You’re either doing it when the conditions are favorable, or wildfires are going to happen,” Hankins said. “I look at it as that’s the real liability — that it’s going to happen at some point anyways potentially.”