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Opening Pandora's Drip Torch

This week, I was going to do a piece on the Forest Service's "National Prescribed Fire Review" results and what it could possibly mean for State and Private Lands Prescribed Fire planning and implementation going forward. Then this happened...

I got a call last week from a friend: "Hey, you were on the Malheur [National Forest] for a few years right? What do you know about what happened?" At that moment, I didn't know anything about what happened, including what this friend was talking about.

A short conversation and some web searches A Forest Service Burn Boss was arrested for Reckless Burning after a Prescribed Fire escapes read most of the various headlines.

Yes, I did spend 4 years on the Malheur. I was Blue Mountain Ranger District's Fire Prevention/Detection Officer, which meant running the Prevention, Detection (4 seasonal-staffed Fire Lookouts along with writing the Detection Ops Guide used by the rest of the Malheur), Mitigation (4 FireWise Communities), and Education/Outreach (so many schools and public meetings/info booths!) programs for just short of half the Malheur (the half with the most WUI interface and intermix) - and took the lead in coordinating the Forest level work in those areas with my counterparts on Prairie City RD and Burns Interagency Fire Zone. Together, we rebuilt and expanded the Grant-Harney Fire Prevention [and Mitigation/Education] Cooperative along with our friends at Oregon State Fire Marshal's Office, Oregon Department of Forestry, Grant County Office of Emergency Management, and many others who joined our efforts - even eventually including the Grant County Sheriff's Office.

My wife was the City Manager of the City of Seneca for most of my tenure on the Malheur.

I know the people involved, the socio-political "human terrain" involved, and I know the burn unit involved. I've walked or driven almost all of the ~710,000 acres of BMRD in the 4 years I was there. Even without having been present for the event, I'm far better-informed about the situation there than 99.9% of the Fire Speculators circulating around the numerous forums now. I could write entire volumes about that human terrain and the dynamics of trying to communicate fire in that environment, and probably earn a Master's and Doctorate in some sort of interdisciplinary Communications/Applied Psychology field in the process.

Today's volume isn't about that, though.

Today's volume is about the implications and wide-ranging "unforseen consequences" that can potentially unfold from this single event.

First, a little background, beginning with Cerro Grande:

Cerro Grande was a pivotal moment in Prescribed Fire for land management agencies, all the way back in the Spring of 2000. It was hardly the first "escape" of a Prescribed Fire, and not the first to be declared a wildfire, no, but it was and still is one of the most destructive Prescribed Fire Escapes on record, only recently eclipsed by Hermit's Peak and Calf Canyon. I'm not here to rehash the prescription or revisit "what could have gone better", or armchair Battalion Chief it and tell you what I would have done. The only relevant points to the one I'm about to make are these:

  • There was a Prescribed Fire

  • The Prescribed Fire was within prescription and all applicable Agency policies at the time were followed pre- and during ignition

  • It escaped and was declared a wildfire

  • That wildfire subsequently went for 43,000 acres and destroyed over 200 structures, causing more than $1BN in damages - with NO loss of life, thankfully

  • The Burn Boss was never arrested or charged with any crime

Then there's the Las Dispensas Prescribed Fire, which you may know better as the Hermit's Peak Wildfire.

The parallels between Cerro Grande and Las Dispensas/Hermit's Peak have already been written about at length in several articles - but the most important one here, again, is that while the Agency may face backlash and financial claims against it, nobody went to jail for it.

That all changed Wednesday, October 19th, and the implications reach far beyond the John Day Valley and the Malheur National Forest.

You see, virtually every state has some sort of "Reckless Burning" law on the books as a subsection under the general Arson titles - and while some states may grant some limited liability protection to "Certified Burners/Burn Managers" operating under a burn plan, to my knowledge none of those statutes grants protection against criminal prosecution under "Reckless Burning" or Arson charges.

This is a game changer, especially for State/private lands burners - the Federal Government has this thing called "Sovereign Immunity", the short version of which is you have to get permission from the Government to sue the Government. It's a different process from filing a "Claim Against the Government" (which doesn't require permission), but boiled down to its bare essence it's the same thing: you're asking the Government to find against itself and give you money.

Either way, States, Counties, and Cities as well as private citizens don't have that luxury. Even then, what's a little civil liability compared to the prospect of getting picked up and taken to jail? - especially when you follow that up with the criminal court process and a possible conviction and ensuing criminal record!

The ramifications to Prescribed Burning are far-reaching, especially for State and Private Lands the moment your perfectly-planned, lined, well-timed Prescribed Fire creeps or spots across a line on property you don't own (which is going to be the case