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Understand Prescribed Burn Liability in Your State

By Chan Glidewell

Posted Mar. 12, 2007

Why don't more people use prescribed burning in Oklahoma and Texas? One reason that comes to mind is the fact that most of the Noble Research Institute's service area was under a burn ban this time last year, which happens to be the peak time for conducting prescribed burns. Outside of a burn ban, liability is a big deterrent associated with using and promoting prescribed burning in Oklahoma and Texas.

Liability varies from state to state. Oklahoma is known as a "strict liability" state, which means that if you start the fire and it escapes, you are civilly liable for actual damages. Comparatively, Texas is considered a "negligence" state, which means the one setting the fire is presumed innocent if the fire escapes. Texas law also provides that the liability for an escaped fire is placed on the prescribed burn manager (if certified) whereas, in Oklahoma, the landowner is generally held responsible.

Texas has established a Prescribed Burning Board and an Advisory Committee, which has developed standards for prescribed burns and certification requirements. One of the requirements for receiving certification is for the prescribed burn manager to carry a minimum of $1 million in liability insurance. This requirement is a key obstacle in certifying more prescribed burn managers in Texas. Some landowners in Texas are self-insuring their ranch managers so that they can receive certification. These ranch managers can only burn on their ranch, but they can burn during a burn ban, which is a key reason why burn managers want to be certified in Texas.

Ways to Reduce Risk if You Decide to Burn

Join or form a prescribed burning association (PBA) in your area.

  • In Oklahoma, there are currently 10 PBAs throughout the state.
  • The model for most PBAs is the Edwards Plateau Prescribed Burning Association (EPPBA) in central Texas, which has more than 200 members and covers more than a million acres. The EPPBA is made up of several chapters that operate under the nonprofit organizational umbrella of the EPPBA.
  • The average dues for joining a PBA are about $25 per year. Now, I call that "bang for your buck." This fee gives you access to equipment, personnel and training that would otherwise be unavailable. The driving force behind these types of "co-ops" is a willingness to help your neighbors and, in turn, allow your neighbors to help you.

Hire a contractor to do the burn for you.

  • In Oklahoma, the landowner is still responsible for escapes, but why not pay someone who does this kind of work for a living? More than likely, contractors have adequate equipment and manpower to be safe and conscientious or they won't stay in business for long.
  • In Texas, if you need to burn during a burn ban, you have no choice but to use a certified prescribed burn manager.
  • Prepare adequate fireguards. This is often a prerequisite to enlisting the service of a contract burner for your ranch.

Keep good records.

  • Document when you prepared your fireguards and provide details regarding their dimensions (take pictures).
  • If you do the burning yourself, make sure that you have developed and follow a prescribed burn management plan (PBMP).
  • Fulfill all of the notification requirements as required by your state/local authorities.
  • Measure and record weather conditions (wind speed, direction, temperature, humidity, etc.) on the day of and during the burn so you will have proof that you burned within the parameters of your PBMP.
  • A PBMP is crucial. If you need help drafting one, contact a wildlife and fisheries or range and pasture specialist at the Noble Research Institute, or get with your local Natural Resources Conservation Service office and they can help you devise a plan or point you in the right direction to get started.