Oregon launches prescribed fire liability pilot program

Oregon recently launched a pilot program to provide liability coverage for prescribed burns that don’t go as intended. The program covers up to $1 million in damages per burn. It’s being managed in tandem with the state’s certified burn manager program, which provides training on how to safely and effectively use prescribed fire on a variety of landscapes. Taken together, the two programs are meant to make it easier and less risky for businesses and contractors to conduct prescribed burns in the state.

Amanda Rau is the statewide prescribed fire coordinator for the Oregon Department of Forestry. She joins us to talk more about the programs and how she hopes they’ll increase the use of prescribed fire in Oregon.

Note: The following transcript was transcribed digitally and validated for accuracy, readability and formatting by an OPB volunteer.

Dave Miller: This is Think Out Loud on OPB. I’m Dave Miller. We’re going to end today with two related efforts to increase the number of prescribed burns in Oregon. The state recently launched a pilot program to provide liability coverage for burns that do not go as intended. It’ll cover up to a million dollars in damages for each burn that qualifies. It’s being managed in tandem with the state’s certified burn manager program, which provides training on how to safely and effectively use prescribed fires on a variety of landscapes.

Amanda Rau is a statewide prescribed fire coordinator for the Oregon Department of Forestry. She joins us now. It’s great to have you on the show.

Amanda Rau: It’s great to be here, thank you.

Miller: I want to start with the basics. What are the various reasons that prescribed fires or cultural burning would be put on a landscape?

Rau: Oregon landscapes have evolved with fire since time immemorial, and that has been from both what we would call natural ignitions – generally from lightning – as well as anthropogenic ignitions, which are those that originate with human beings. The landscapes across Oregon evolved with fire, and in quantities that we actually don’t see enough of today.

When you’re looking at cultural burns, you’re really seeing those that are conducted for the sake of ceremony, for subsistence purposes, food, as well as maintenance of conditions that are favorable for game and such. With prescribed fire, it’s more of an attempt to replicate the type of burning that would occur naturally from lightning, as well as cultural fire. Cultural fire really has its own realm that’s specific to tribal fire practitioners and Indigenous people; whereas, prescribed fire is a broader practice that, in many cases, will do some of the work that cultural fire would be doing as well.

Miller: Is it possible to quantify this? I mean, how much prescribed fire or cultural fire is happening on average in Oregon each year?

Rau: Well, there’s actually not a centralized hub for tracking that data, but that is something that the Oregon Department of Forestry is working on, thanks to legislation in Senate Bill 762, which was passed back in 2021. That was the omnibus wildfire bill, which also authorized the certified burn manager program. Under Senate Bill 762, it ensured that the certified burn manager program was implemented, as well as recognizing the need for prescribed fire.

Miller: But, am I right in understanding that officials like you think we need to have way more acreage of applying fire on Oregon landscapes than is currently happening?

Rau: Right. ODF [Oregon Department of Forestry] tracks those acres to the best of its ability, but it’s really relying on those who are mandated to enter it into our smoke management database in that program. The last year that we have comprehensive data for would have been 2022, and that was about 168,000 acres [that] were completed. And that’s accounting for acres that were within Oregon Department of Forestry protected lands, and that includes the U.S. Forest Service.

By contrast, if you look across the Pacific Northwest – this includes Oregon and Washington – we’re looking at a deficit of somewhere around 4 million acres, and that’s just on Forest Service land. So that’s really a deficit of fire that needs to be there. Unfortunately, we don’t really know exactly how much prescribed fire and cultural burning are happening, because much of it is not being tracked. There are attempts to gather that data and then report on them at a national level. But unfortunately, we just don’t see the acres that we would want to see, overall. And that’s both because we don’t know what is happening because there isn’t a centralized tracking of that, and we also know that there’s not enough.

Miller: By a factor of 10 or 20 or more. So, as you’re saying, even if the data is not fully there yet, the numbers are nowhere close to where you need to be.

Rau: Right. If you take 168,000 acres, and you assume that there needs to be about 10 times more than that, that’s still not quite getting to what needs to happen just on the National Forest System lands.

Miller: Right, let alone BLM land or the non-federally managed lands, which is another half of our state.

Rau: Sure, you’re looking at 37% of the landscape is federally-owned. The rest of it is under various other ownerships, so all you have to do is expand that out and realize how far behind we are.

Miller: This gets us to the various programs that you’re either managing or helping to manage right now. I want to turn to the liability piece of this. First, can you describe how this new state pilot program is working, and is going to work?

Rau: This all started in the same bill that was passed back in 2021, with a study that was authorized under House Bill 2571, that was looking at prescribed fire insurance and liability. And while that study wasn’t entirely conclusive, it did reveal that there’s a pretty varied landscape of insurance availability, and that ties to liability. When you look at the standard of care for protecting those who are engaging in the work of prescribed fire, it really comes down to whether or not you can prove negligence. And in Oregon, we don’t really have case law for that. So we don’t know what will happen, but we do know that the perception of the consequences of failure is enough to keep people from doing more prescribed fire.

Essentially, what the liability pilot does is it establishes that safety net by providing a claims fund that can be utilized, rather than submitting to an insurance claim. It’s important that we have that, because not everyone can afford insurance. And we have folks who can afford insurance who are having it either dropped or the rates increase to where it’s not feasible any longer.

So, essentially, what this program is doing is providing that fund for claims that can be utilized for civil damages as well as suppression costs, that will help to build the comfort and hopefully alter that perception that there is a great amount of liability associated with this work. The reality is, it’s actually quite successful –  over 99% – in avoiding escapes and other unintended impacts.

Miller: So the basic idea is that the fear of liability has prevented some people, who otherwise would work on prescribed burns, from doing so.

Rau: Yeah, that’s correct. There’s a couple of different things. One piece is training and certification. Just the knowledge and how to do it, and gaining experience in doing so. And then there’s the piece of perception around, “What if I do something wrong? What would the consequences be?” This really takes care of that piece. And again, there can be a high success rate, but when there are failures, they tend to be substantial. That’s one of the reasons why this is so needed.

Miller: And the private insurance market, it’s simply too expensive for some people?

Rau: Well, the private insurance market is interacting with a larger insurance market that is impacted by things like hurricanes and floods. And so the risk aversion comes into play, where there is a perception that it is not worth providing insurance because the consequences and the loss associated with a failure are too high. That said, there are insurers that continue to provide in the market. It is that many have chosen to leave the market or to restrict it.

Miller: What does it take for somebody, or I should say, for a proposed prescribed burn, to qualify for this public liability program?

Rau: Those who are eligible to participate in the liability pilot include cultural fire practitioners, members of Rangeland Fire Protection Associations, Forest Protective Associations and the Oregon Department of Forestry, as well as certified burn managers.

Miller: And they have to put forward a program or a plan that is checked by somebody at ODF?

Rau: What they have to do is, they have to log into a website where you register your burn and enroll it. In some cases, a burn plan is required; in most cases, a burn permit is required. You need to document having met the requirements for the type of burn that you’re conducting in that online system. That’s the first point of entry, is to get it enrolled in the system, and you have to do that prior to implementing the prescribed fire.

Miller: And then if it’s accepted, you can do it. Then you have to go back to say, “Yep, we did the burn. Everything’s all right.”

Rau: Yeah, once you’ve completed the burn, you have to go in and actually register it as completed. And then once that’s been done, it’s eligible for claims. Now, the assumption is that you’re going to know about an adverse impact or outcome from your burn sometime shortly after it has been completed. But the period of time during which you have to register that your burn is complete is 60 days.

Miller: Now, you’re talking about civil liabilities here. Would this have any bearing on the high profile incident that folks may remember from a couple of years ago in Grant County, where a burn boss was arrested? I mean, the criminal arrest for, I think that the charges were reckless burning?

Rau: Yeah, that’s a great question. This program does not have any bearing on criminal liability or criminal cases – this is for civil liability. This involves damages, injury, economic losses, that sort of thing. It would not have any bearing on a reckless burning charge, which again, that lands in the criminal realm and this program does not have any impact on that.

Miller: Is it also the case where … let’s say somebody went through the proper channels here, in terms of applying for and getting approval for a burn through the Department of Forestry, that qualified for this liability program. And then in the way they actually conducted the burn, it went against best practices, it was somehow reckless. Then if a landowner said, “Hey, I want some money, because there was a car crash.” Or, “You burned some of my livestock.” Something happened. “I’d like some money.” Would that burn still qualify for, potentially, a million dollars of public money?

Rau: You’re asking if a reckless burning charge came into play, if that would have any bearing on a case around civil liability?

Miller: Exactly … yeah.

Rau: Well, that’s a great question. Going back to what happened in Grant County, let’s just game that out. Say the landowner had pursued a civil liability claim, then that would have played out in a different kind of a court case. It wouldn’t have gone the route that it did. It’s kind of an either/or thing.

I’ll be honest, I don’t know how the two would interact, because in the Grant County case, which is the only case we have of a reckless burning charge being brought against a federal burn boss, we just don’t know – they didn’t pursue that avenue. They only pursued the criminal side, which does not give you any kind of recourse for civil damages. In fact, it’s possible that that case would have been more successful if they had pursued civil liability as opposed to criminal, because they might have had an easier time proving that they caused damage that needed to be reimbursed for. They were not able to prove that he was reckless.

Miller: It may have made less of a political statement if they had pursued civil damages instead, which is ...

Rau: Well, that’s a whole other conversation, for sure. And now we understand some of what’s behind what occurred out there, but it remains that the landowner did mention that they wanted to know how it was going to be made right for them. And my thought was, well, go down a different avenue, and see what happens.

Miller: And pursue money, instead of criminal charges.

So briefly, you mentioned the certified burn manager as well. What is the idea behind this program, and what has it meant so far?

Rau: The certified burn manager program was originally authorized under a bill back in 1999, and the rule-making was completed in 2001. And what it did was, it allowed the Oregon Department of Forestry to create a certification program inclusive of training for non-federal burn managers. Those would be folks outside of the system within which the federal government works for national wildfire coordinating. And it wasn’t originally implemented because there were concerns from the private industry about having people light fires and not having the ability to have recourse for civil damages because it has protections from that.

So, in addition to the liability pilot, which is a fund, the certified burn manager program provides limited civil liability protection. And what that means is when either a certified burn manager or an Oregon Department of Forestry burn boss are overseeing a prescribed fire within Oregon Department of Forestry protection, the landowner, those on the burn, and the burn manager, shall not be held liable so long as they are not being negligent.

What that really does is, it teaches good risk management, which is how we keep out of court. It’s how we keep out of criminal and civil liability situations. It’s when we learn to manage risk and minimize the unintended consequences of prescribed fire. That’s really the other side of it, is teaching and training folks, so that they are able to safely and effectively implement prescribed fire on non-federal lands within ODF protection.

Miller: Amanda Rau, thanks very much.

Rau: Thank you.

Miller: Amanda Rau is statewide prescribed fire coordinator for the Oregon Department of Forestry.

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