Oregon governor signs bill to explore liability changes for prescribed fire

14 June 2021

Published by https://www.capitalpress.com/

USA – SALEM — Oregon Gov. Kate Brown Monday signed into law House Bill 2571, which could potentially lead to a change in liability standards for prescribed fire.

The new law may help expand the use of prescribed fire in Oregon.

Prescribed fire, also known as “planned,” “Rx” or “controlled” fire, is a fire set intentionally to limit hazardous fuels on the landscape — for example, by burning brush under trees in the spring to prevent a larger wildfire in the summer or fall.

House Bill 2571 directs agencies and forest industry leaders to study liability options for prescribed fires. This is important because landowners nationwide cite liability concerns as one of the top reasons they’re reluctant to use prescribed fire.

“Stricter liability standards deter people from doing prescribed burns because they’re afraid of getting sued if there’s an escape,” said Lenya Quinn-Davidson, who directs the Northern California Prescribed Fire Council. “As a burn boss, you take on a lot of personal responsibility.”

Liability means the legal responsibility a person holds for their acts or omissions.

The U.S. has three main liability standards for prescribed burning: strict liability, which holds a person responsible for harm even if he wasn’t negligent; simple negligence, which holds a person responsible if he didn’t take reasonable care; and gross negligence, which holds someone responsible only if he showed reckless disregard for safety.

Most states, including Oregon, have simple negligence standards. Eight use a gross negligence standard.

In states with lower liability standards, people do more prescribed burns. Oregon, for example, a simple negligence state, burned only 200,629 acres in 2019, while Florida, a gross negligence state, burned more than 1 million acres the same year.

To incentivize more prescribed burning on private lands, Oregon is exploring making the shift from simple to gross negligence.

But the law signed Monday won’t automatically change Oregon’s liability standard. Instead, it’ll open the conversation and prompt a study — first steps.

“It’s not 100% clear yet if changing the standard will enable more prescribed fire, but we do want to have that conversation,” said Jenna Knobloch, administrative coordinator at the Oregon Prescribed Fire Council.

The new law directs the Department of Consumer and Business Services to consult with the state Forestry Department, Oregon Forest and Industries Council, Oregon Small Woodlands Association, Oregon State University, the Oregon Prescribed Fire Council and a representative of the insurance industry to study liability and insurance coverage options for prescribed fires.

The study’s results will be used to craft future prescribed fire policies and incentives.

“We totally support the concept of more prescribed fire on the landscape,” said Kyle Williams, director of forest protection at the Oregon Forest and Industries Council. “So, we did voice support for (House Bill) 2571 to start those conversations. To ask those questions about liability is important.”

But Williams has some concerns about changing the liability standard because it’s important to him that burners should also get voluntary “rock-solid” burn training.

A separate Oregon bill moving through the Legislature, House Bill 2572, deals with this concern. The bill, if passed, would create a program to train private citizens to become burn bosses. If Oregon changes to gross negligence standard, experts say the lower standard would likely only be offered to people trained as certified burn managers.

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