Liability and the Use of Prescribed Fire in the Southern Plains, USA: A Survey of District Court Judges

Alissa Hinojosa,Carissa L Wonkka,Urs P Kreuter

doi:10.3390/land9090318

Abstract

Suppression of historical fire regimes has changed the composition and structure of many fire-dependent ecosystems, frequently resulting in decreased grazing productivity and biodiversity in grasslands and savannas. Land managers have attempted to reverse these trends through the application of prescribed fire, but regulations and liability concerns often deter them. District court judges play a key role in defining the legal context of prescribed burning by interpreting applicable statutes in personal injury or property damage cases resulting from escaped prescribed fire. However, information about the way judges interpret open burning statutes and regulations is difficult to obtain. We conducted a mail survey of district court judges in Texas and Oklahoma, USA to shed light on decisions judges might make presiding over an escaped fire case. The survey included questions regarding their perception of prescribed fire, their understanding of the laws affecting prescribed burning, and hypothetical questions to determine how they would apply relevant law in an escaped fire case. We found that judges cited fewer factors as evidence of gross negligence than simple negligence. This suggests that a shift toward a gross negligence liability standard for escaped prescribed fire cases might result in fewer findings of prescribed burner liability.

Highlights

Elevated fuel loads, or changes in fuel types, together with hotter and drier climatic conditions are projected to lead to more frequent wildfires in many parts of the world [1,2,3]
We modeled the difference in the number of variables selected as evidence of simple negligence versus gross negligence using a generalized linear mixed model fit by maximum likelihood (Laplace approximation)
Of the 39 usable questionnaires, 56.5% were from Texas and 43.5% were from Oklahoma

Summary

Introduction

Changes in fuel types, together with hotter and drier climatic conditions are projected to lead to more frequent wildfires in many parts of the world [1,2,3]. Recognition that changing climates, woody plant encroachment, and decades of fuel accumulation are increasing wildfire hazard [1,2,4] has led to calls for fire management reform, including the use of prescribed fire. While prescribed fire is a useful land management tool for fuel reduction and slowing or reversing woody plant expansion, the public and many landowners are wary of its use due to the possibilities of smoke hazards and escaped fires [5,6]. Liability has been frequently cited as a major concern for burners and is one of the most often cited reasons for private landowners not applying prescribed fire on their own land [5,7,8,9,10,11]. Actual risks of applying prescribed fire are far lower than those commonly perceived by the public, partly because of the general lack of differentiation between prescribed fire and destructive wildfire [12,13,14].

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