Opening Pandora's Drip Torch
- Mark Howell
- Nov 3, 2022
- 7 min read
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 later...wow. 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 for most private landowners). Opportunities are ripe for neighbors with a bone to pick, or an activist anti-fire law enforcement agency, to press charges and take things to criminal court, on top of the possible civil liability issues. Even if you're eventually found innocent, as many have observed in our current legal systems: "The Process is the Punishment." You're forced to dole out thousands in lawyer fees and possibly lose your livelihood as a result - who wants to take the chance on that? I can tell you that I, personally, will be much more circumspect with regards to when, where, under what conditions, and for whom I will take on Burn Boss roles going forward in the future, regardless of the outcome in the Malheur incident.
What's the fix, then?
I'm a big proponent of "Recognize Problems, Propose Solutions" (as opposed to just "complain about problems" as many are wont to do). Back in 2019, while still on the Malheur, I went to Boise, ID for "Community Mitigation Assistance Teams/Best Practices" training at the National Interagency Fire Center. One of the central points of that training was that we need to engage in Cross-Boundary Mitigation work - now that doesn't automatically mean burning, but the fuels reduction and hazard mitigation work needs to cross "boundaries" because fire doesn't recognize our political/geographic lines. Along that theme, I had already developed FireWise Communities that adjoined or were surrounded by Malheur land, and corollary to that, it was up to the Forest to "do its part". To that end, I was part of the team to work with the FireWise Community and surrounding area landowners to plan a Categorial Exclusion for Hazardous Fuels Reduction work (CE authority granted in the 2016 Farm Bill for the NEPA Police out there) in the Laycock Creek area. The FireWise Community residents had done their part, now it was time for the Forest to do its share.
Solution #1: "Boundaries" are a people thing. Nature doesn't recognize them (neither fire, nor flood, nor wildlife) - and we need to recognize that as a Ground Truth and start reaching across boundaries to work with our neighbors. View them as partners, not adversaries.
Secondly we need to make some legal changes. Currently Federal laws regarding fire (especially USFS and DOI Code of Federal Regulations) are "general intent, strict liability" - this means "you did or caused this prohibited thing therefore we are charging you; your intent doesn't matter". 36CFR261.5(c) is violated when one "causes timber, trees, grass, brush, or slash to burn except as authorized by permit" note that this means a Forest Service permit, not a State/County Burn Permit; likewise 36CFR261.5(e) "causing and failing to maintain control of a fire that is not a prescribed fire that damages the National Forest System". On first read, it's tempting to take it that "prescribed fire" means a Forest Service prescribed fire, but the language of 261.5(g) seems to clarify that and introduces negligence into the equation: "Negligently failing to maintain control of a prescribed fire on Non-National Forest System lands that damages the National Forest System." Note: in all of these cases "damages the National Forest System" means any degree of damage - technically a small spot fire that eats up some duff is "damage" to National Forest System lands, and under (c) just merely being the cause of a fire is sufficient to charge that offense.
Solution #2: Revisit and revise the laws, both State and Federal, regarding fire/arson/burning to specific intent crimes (meaning, the suspect/defendant must have had a deliberate intent as one of the elements of the crime). Absent injury or death of others, which can be prosecuted under other statutes such as Battery, Manslaughter, Negligent Homicide, etc, the tort claims system is much better suited to address grievances of "damage to property" as an unintended consequence of a planned action.
The ultimate take-away here is that Prescribed Fire is an important tool in the resource management toolbox. "Log and graze it" is not the end-all be-all solution some think it is. Certain ecosystems have evolved to be dependent on frequent, low-mixed severity fire for their health and even as part of their reproductive cycle (e.g. "serotinous" species such as Giant Sequoia, Lodgepole Pine, and Jack Pine). Fire is a force of nature and while we can do our best to control it, there's a reason we formally and legally call it "prescribed fire" and not "controlled burning": despite the best prescriptions, models, and predictions of man, sometimes things can catch us sideways and deal us a serious blow.
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