New California law changes liability for out-of-control prescribed burns

SACRAMENTO, Calif. (KION) Dozens of new California laws went into effect on Jan. 1, 2022, including a law hoping to encourage more landowners to help fight fire with fire.

Senate Bill 332, introduced by State Senator Bill Dodd, D-Napa, adds legal protections for those who manage prescribed burns. The law now requires controlled burn users to show gross negligence before they can be liable for paying fire suppression costs.

"So if we're running a burn and we're having problems, like maybe the wind has picked up in a way which we weren't expecting… we can actually call Cal Fire and ask for support from them like it was a wildfire," said Jared Childress, coordinator for the Central Coast Prescribed Burn Association. "Pre SB 332, making that phone call meant that you could open yourself up to potential litigation from Cal Fire and from the state of California. That no longer is the case, with the exception of if you're found to be negligent, meaning you know you were doing things not in the industry standard specific way."

Previous law only required controlled burn users to show simple negligence to be found liable. Opponents said the liability change leaves wildfire victims with a more difficult and less efficient cost recovery process. But Childress compares the change to firefighters helping to put out a house fire.

"If you were to have your house catch on fire for who knows what reason, could be electrical, could be arson. We all know that you can call the fire department and you're not going to get a bill from them, right? So there's a recognition that there is a common good in having fire departments respond to house fires. SB 332 is the same in that there's a recognition that there's a common good in having Cal Fire support prescribed burners."

The burns covered must be for wildfire hazard reduction, ecological maintenance and restoration, cultural burning, forest management or agriculture.

"If you were doing something found to be unsafe, like let's say you were lighting a fire by yourself. You had no burn plan. You had no control lines and you were by yourself. Everyone would look at that and go, 'Yes, you're doing it in a negligent fashion.' You could still, of course, be found liable in that situation. This just means that if you're doing things in a safe fashion, but you're having issues, Cal Fire is there to support," said Childress.

More than 2.5 million acres burned across California in 2021. Hotter and drier weather has contributed to an increase in the number of acres burned by wildfires. But Childress says, prescribed burns can help get rid of excess fuel that helps prolong those wildfires.

"Our wildlands evolved with 15,000 years of indigenous burning, and by doing fire suppression and keeping fire off the landscape, we are having a dangerous build up of lots of dead wood, flammable material and brush. And so prescribed fire, along with mechanical treatments, are a really important way for us to be able to address those issues.

About 40% of California's forest land is privately owned. But many are discouraged from holding prescribed burns, fearing they'll be liable if it gets out-of-control, like we saw with the Estrada Fire near Mount Madonna last October. But Childress says it's rare for controlled burns to "escape," or get unmanageable.

"There was a meta study done looking at data of both federal and state burns. Of 20,000 different burns, they found that less than 1% had any kind of escape. And of those 1% of escapes, only about 1% actually had any destruction of property," said Childress. "Lots of planning goes into prescribed burns. We spend about a year working with the landowners to decide what their objectives are, to figure out what the control issues are and what the control lines are going to be and work on burn plans that identify all these details."

To learn more about scheduling or helping with a prescribed burn, visit: calpba.org/centralcoastpba.