The USDA Forest Service reports that in 99.84% of cases, prescribed fires go as planned. It is important to understand the specific practices that maintain this record of safety, as well as the legal context that governs the rare cases where a prescribed fire leads to damages. Although risk and liability cannot be eliminated when working with fire, landowners can take precautions to reduce the chances of fire escaping and causing harm.
Understanding risk and liability
To safely use fire to accomplish land management objectives, let’s look at the difference between risk and liability.
- Risk is the likelihood of harmful consequence resulting from exposure to a hazard such as fire. People may perceive prescribed fire as a high-risk activity, but proper planning and actions may help landowners lower that risk and reduce the potential for harm.
- Liability means legal responsibility for what a person does or does not do. Oregon requires that the (fire) permit holder take “reasonable precautions” to prevent the spread of fire on or from an operation area (ORS 477.625)). Failing to do so could be considered negligent and may lead to costs for suppressing an uncontrolled burn or to damages from a civil liability lawsuit.
Prescribed burning by the numbers
Though the use of fire always involves risk, prescribed fires rarely escape, cause damage or lead to lawsuits. Safe burning involves proper planning, including identifying the right conditions for a burn. Statistics show that prescribed burning is remarkably safe:
- Nationwide, on all federal lands, only about one out of every 1,000 prescribed fires escaped and were declared a wildfire. This is a 99.84% success rate for containing prescribed fires.
- In Oregon, a survey of prescribed fire escapes found nine cases of prescribed burns escaping on federal lands in 20 years, and none on private lands. Depending on conditions, 50,000 to 250,000 acres are treated with prescribed fire every year in Oregon.
Prescribed fire liability in Oregon
Landowner liability laws are complex — this document provides only a brief overview of prescribed fire liability in Oregon and must not be construed as legal advice. Oregon’s codified laws regarding wildfire and prescribed fire can be found in Oregon Revised Statutes (ORS) Chapter 477 — Fire Protection of Forests and Vegetation.
In the United States, prescribed fire liability may fall under one of three liability standards of care: strict liability, simple negligence or gross negligence. In Oregon, a landowner or operator may be held liable for property damage or private claims of harm if a prescribed fire escapes, causes damage, and the landowner or operator can be shown to have been negligent by failing to take reasonable actions to prevent or contain the escaped fire (ORS 477.092). An operator, in this context, is any person who, either personally or through employees, agents, representatives or contractors, is carrying on or has carried on any operation (ORS 477.001). Landowners and operators can reduce their risk of being held civilly responsible for an escaped prescribed fire by utilizing an Oregon Certified Burn Manager to oversee their burn (see sidebar).
In addition to civil liability, Oregon also imposes liability for fire suppression costs upon landowners and operators. The state requires forestland owners to control and extinguish any fire on their property if the fire crosses the property line or poses a potential to do so, unless the adjacent landowner is cooperating with the burn (with such cooperation designated in a shared burn permit). If the landowner or operator cannot extinguish the fire and authorities intervene (ORS 477.066), the state may recover the cost of fire suppression from the owner or operator (ORS 477.068). However, under certain conditions, Oregon offers limited liability applied to the cost of fire suppression if the fire escapes and causes harm to other properties.
- Limited liability means a landowner/operator may have to pay up to $300,000 in fire suppression costs (ORS 477.120). Limited liability applies if an investigation finds that the owner/operator followed all applicable regulations with respect to their prescribed burn and was not negligent. Limited liability only applies to fire suppression costs; it does not apply to civil liability.
- Total liability means the owner/operator may be held liable for all fire suppression costs. It applies when an investigation finds that the owner/operator did not follow all applicable regulations with respect to the burn.
Liability also extends to smoke production from burning on private land. The Oregon Department of Forestry and the Oregon Department of Environmental Quality administer Oregon’s Smoke Management Plan. Landowners and those implementing projects on private land are responsible for following the rules on burning and smoke management.
Insurance
Risk and liability can never be fully eliminated when working with fire. Insurance may provide financial protection from claims associated with your prescribed burn operations. Review your insurance documents in detail to understand if prescribed burning and other resource management-related activities are covered, as well as what your policy excludes from coverage. Agricultural insurance and loggers broad form policies often cover use of prescribed fire as a management practice. It is less common for umbrella policies to cover such activities. It is best to review and discuss your policy with your insurance company.
Oregon’s Division of Financial Regulation protects consumers and regulates insurance. If you have questions or concerns about your insurance, the division’s advocates can help. Call 888-877-4894 to connect with the advocacy team.
Summary
With proper planning and action, prescribed burning can be a safe activity. Although risk is part of working with fire, proper precautions can reduce risk and increase your chances of a safe, successful burn.
This document is provided for general information and educational purposes; it does not constitute legal advice and should not be construed, interpreted or perceived as such. It aims to assist with understanding liability and risk as it pertains to prescribed fire.
Resources
Oregon Department of Forestry, Chapter 629, Division 48 – Smoke Management
Oregon Legislature, Chapter 477 – Fire Protection of Forests and Vegetation
Oregon Department of Environmental Quality, Chapter 340, Division 264 – Rules for Open Burning
Oregon Department of Environmental Quality, Open and Outdoor Burning
Oregon Department of Forestry, Certified Burn Manager program
Oregon Prescribed Fire Council, Planning a Prescribed Fire: A Regulatory Flowchart
