As California faces yet another brutal wildfire season, solutions-oriented conversations have turned more frequently toward what, for some, may seem like a counterintuitive mitigation method: more fire.

Controlled or “prescribed” burning of land has long been recognized by Indigenous communities, ecologists, and land management professionals as a practice with numerous environmental benefits — including the strategic reduction of fuel that can be consumed during a wildfire event, making those fires less powerful and destructive.

But in California, there’s been a historical disincentive for private landowners to take the initiative to run a prescribed burn on their property: they can get stuck with a huge bill. Under state law, the current standard under which an individual can be held liable for fire suppression costs related to a fire they’ve started is simple negligence.

“It’s not uncommon for someone to be using prescribed fire, maybe the wind shifts and the fire creeps over the line, and suddenly you need to call your local fire department to come help you,” said Lenya Quinn-Davidson, fire advisor for the University of California Cooperative Extension and director of the Northern California Prescribed Fire Council. “And then you get a bill for $50,000.”

A bill that Gov. Gavin Newsom signed last week aims to remove that disincentive. SB 332 raises the liability standard to gross negligence for people who set prescribed burns. The bill was introduced by Sen. Bill Dodd (D-Napa), whose home region has been one of the hardest hit by wildfires in the state over the past several years.

“The destructive wildfires that are now threatening our state are a painful reminder that we must do all we can to reduce fuels in our parched forests and wildlands,” Dodd said in a statement the day the bill passed the Legislature. “Controlled burning is a valuable tool in addressing this problem. Today we take an important step toward expanding its use to help save our state from ever-worsening conditions caused by drought and climate change.”

SB 332 was supported by a broad coalition of ranchers, conservationists, and tribal governments, but it hasn’t gone unchallenged. An earlier version of the bill that more broadly applied the new liability standard faced opposition from attorneys and insurers, who argued in a March memo that relaxing fire liability “will be catastrophic for California’s property and people.” Those groups withdrew their opposition after the bill was revised to limit the new standard’s application.

Advocates of the bill say that encouraging prescribed burning is crucial not only to reducing the destruction wildfires can cause in California, but also for restoring a natural relationship between land and fire that long precedes California’s statehood.

“It’s a vital process on the California landscape,” Quinn-Davidson said. “We’re a very fire-adapted state, so prescribed fire serves multiple ecosystem benefits. This is the best way to get fire back on the landscape in a safe way.”

A practice with Indigenous roots

The U.S. Forest Service defines a prescribed or controlled burn as “the controlled application of fire by a team of fire experts under specified weather conditions to restore health to ecosystems that depend on fire.” Besides reducing the fuel supply for wildfires, controlled burns have multiple ecological benefits: they can be used to clear downed trees, reduce plant diseases, promote habitats for endangered species, and restore land.

These benefits are well-known to Indigenous people in California and across the country, who have long conducted cultural burns as a religious ceremony and land rejuvenation practice. After Western settlers arrived, displacing tribes and banning cultural burning and other Native traditions, state and federal environmental policy in the U.S. increasingly relied on fire suppression.

Forest management specialist Bill Tripp is a member of the Karuk Tribe, whose ancestral territory is located in Humboldt and Siskiyou Counties, and is the deputy director of eco-cultural revitalization for the Karuk Tribe Department of Natural Resources. He started learning how to burn from his great-grandmother when he was four years old.

“We have our creation stories that we’ve been told as children for millennia. A lot of those have to do with animals and plants, and the different interactions and responsibilities to those animals and plants. So the learning associated with all of this comes at a really early age,” Tripp said. When it comes to burning, he said, “I already got a whole career’s worth of experience under my belt before I turned 18.”

Tripp co-leads the Western Klamath Restoration Partnership, a fire management program aiming to reintroduce fire to the Western Klamath Mountains — which sprawl across northern California and southern Oregon — through prescribed burning. He also works on the tribe’s behalf with the Indigenous Peoples Burning Network, a support network for Native American communities revitalizing their traditional fire practices in a contemporary context.

“People started putting fires out at a certain point in time, instead of putting more fires in to make sure the fires that did occur weren’t the type that were damaging,” Tripp said. “There are so many connections that have been interrupted in this past century that we need to get back to doing again.”

Ecological benefits, liability costs

Wider use of controlled burning has been top of mind in California in recent years, as drier and hotter fire seasons have made it clear that the status quo is untenable. In 2018, the state adopted SB 1260, which expanded the authority of the Department of Forestry and Fire Protection (Cal Fire) to work with other entities on prescribed burns and defined what constitutes “due diligence” in the prescribed burn context. The law also required Cal Fire to develop a “burn boss” certification program for private individuals who wanted to conduct prescribed burns of their own.

But many of those individuals are wary of taking that initiative, Quinn-Davidson says, for fear of being held liable if something goes awry. “If you work for a state or federal agency, you’re indemnified for these kinds of things as an employee,” she said. As a private individual, “if something goes wrong, I’m going to be on the hook.”

According to Quinn-Davidson, it’s very rare that a prescribed burn “escapes” beyond control, causing a full-blown wildfire. Prescribed burners make meticulous plans beforehand, determining what fire behavior is needed to achieve the given objective and what weather conditions are required to create that fire behavior, and then physically preparing the “unit” so the plan can succeed. Burners also often have to acquire permits from Cal Fire and air quality regulators.

“By the time we get out on the day of the burn, we’ve done a ton of prep work,” Quinn-Davidson said. “The burning is the last piece of the puzzle.” On the rare occasion that a prescribed burn escapes, she said, it’s usually the result of unanticipated weather conditions or poor planning by the group implementing it.

Short of a full escape, smaller issues can arise during a prescribed burn, creating three main areas of potential liability. The first is for personal injury to the individuals participating in the burn. (For the burns she runs locally, Quinn-Davidson usually has all participants sign a release.) The second is for damages to property from the fire, or damages caused by the smoke — a highway accident caused by reduced visibility, for example. But the third area, which Quinn-Davidson says is the most common one, is liability for fire suppression costs.

“It’s not that it caused any damages — it’s just that it triggered a suppression response from an agency, and you can be billed for that,” she said. As a burner, she says, burning down a neighbor’s house isn’t “the thing that keeps you up at night. It’s, ‘What if someone sees the flames and calls Cal Fire?’”

This is the problem SB 332 seeks to solve. In an earlier version, the bill loosened the negligence standard for all three areas of liability, leading to objections from the Consumer Attorneys of California and the Personal Insurance Federation.

“We believe it is poor policy to lessen the legal accountability standard of professionals doing one of the most dangerous things one can do in California — start a wildfire,” the groups wrote in a March memo opposing the bill. “If SB 332 were to pass, the burden would fall on yet again the homeowners and community, with homes and lives as payment.”

Those groups withdrew their opposition to the bill after it was amended to limit the change in the liability standard only for fire suppression costs, not for personal injury and property damage.

“If you get in a car accident and the police respond, they don’t send you a bill later,” Quinn-Davidson said. “It should be the same with prescribed fire.”

Tripp adds that the current liability standard isn’t just a deterrent from starting prescribed burns in the first place — it can also have the effect of making them less safe once they’re underway.

“If you do have something that’s starting to look like it might get away, you’re less apt to call for help,” he said. Changing the standard to gross negligence would “make people feel safe calling for help when you need it, instead of waiting until it’s too late.”

Completing the prescribed burn infrastructure

It’s perhaps especially important for private individuals to be involved in land management through fire, along with state and federal agencies, because about 40 percent of California’s 33 million acres of forest land is privately owned. According to the U.S. Department of Agriculture, a third of that privately owned forest is held by timber companies, and the rest by families, individuals, and tribes.

Advocates for prescribed burns say SB 332 is just one piece of the puzzle in creating a more welcoming environment for burns on that privately owned land. Besides the fear of liability the bill seeks to address, the lack of private insurance options for prescribed burns presents another obstacle.

“The whole insurance market is like, ‘We don’t want anything to do with anything with the word ‘fire’ in it,’” Quinn-Davidson said. “No one can get insurance to do this work.”

A $20 million allocation in California’s fire budget this year aims to fill that void by creating an insurance claims fund for prescribed burners that would help them recover costs for damages. Ricardo Lara, California’s insurance commissioner, applauded the allocation after its passage earlier this month, and said it could have the added benefit of encouraging more insurance companies to create policies for controlled burns.

“While prescribed fire is a top priority for reducing the risk of megafires fueled by climate change, lack of insurance is holding back local communities including tribal groups that have used fire constructively for millennia,” Lara said in a statement. “Creating a prescribed fire pilot program will provide data to insurance companies to write more policies and help us close the insurance gap to protect more Californians from wildfires.”

Another piece of recent legislation aims to ensure that the state certification process for prescribed burns doesn’t impede on tribal sovereignty or add barriers for cultural burners. AB 642, which the governor signed earlier this week, includes a provision requiring Cal Fire to engage cultural fire practitioners in its public education efforts, and to recruit tribal members and cultural burners for vacant positions involved with fuel reduction.

And a truly effective prescribed burning program statewide will require a rigorous focus on training and workforce development in the area. Much of Quinn-Davidson’s work involves training aspiring burners in Northern California, and she says even more is needed. “There’s a real deficit of people who know how to do this work,” she said. “We just have to up our game when it comes to that.”

California prescribed burn advocates hope to unite these pieces to create a foundation similar to that in southeastern states like Florida, where laws have been in place for decades to encourage controlled burning. Perhaps the cornerstone in meeting this goal, those advocates say, is loosening the liability standard, which may not only encourage burning in the short term but also make a long-term change to how Californians think about fire.

“In some of those states in the southeast,” Tripp noted, “negligence comes when you’re not burning.”

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