Fire use for brush control is nature's way of keeping the ecosystem thriving but as the 20th century progressed, natural methods gave way to environmental lobbying and legal bullying. California, which led the nation in environmental activism, has seen fire hazards run out of control. 

This was no surprise to experts in land management. Dr. Bill Rogers, a Texas A&M AgriLife Research professor in the department of ecosystem science and management in College Station, notes that fire has historically played an important role in achieving land management objectives and further eliminating its use could have detrimental effects.

This has modern implications. A standoff in Oregon over environmental policy is out of phase from environmentalists protesting logging by occupying trees, but philosophically the same. In 2001, the Hammond Ranch, which leased land from the Bureau of Land Management in addition to its own, used fire control which spread on to 139 acres of that leased BLM acreage. 

They were taken to Federal court and were tried and convicted under the Antiterrorism and Effective Death Penalty Act of 1996. This was obviously not what Congress intended in creating the statute, said U.S. District Judge Michael R. Hogan in their 2012 sentencing, so he reduced the sentences of the two family members to three months and to one year from the minimum five. In 2014, the 9th U.S. Circuit Court of Appeals, the most overturned (by the Supreme Court) appeals court in the nation, overturned Hogan and a new judge gave them a minimum 5 year sentence. They were told to report for prison January 4th, 2016. 

Advocates were outraged that this land, leased by the family, and burnt during fire control, was labeled an act of terrorism and the onerous sentencing length mobilized some. It's equally easy to imagine that activists would occupy a few buildings on public land if an environmentalist got such a judgment, they have done so many times.

At least for landowners, this has had a real "icy chill" effect, since they don't have the hundreds of millions of dollars for lawyers and lobbyists that environmental groups like Natural Resources Defense Council and others command.

A paper in Ecological Applications journal discusses liability, regulations and prescribed fire. Prescribed fire is a cost-effective tool that allows for tailoring of range and forest restoration and management, Rogers said. Without it, valuable timber species such as loblolly pine have been replaced by less economically desirable species in southeastern forests. In the grasslands of the Great Plains, prescribed fire prevents shrub encroachment, lower forage productivity and a degradation of habitat for wildlife, he said. In addition, fire suppression and limited prescribed burning has resulted in the accumulation of fuels in both forests and encroached grasslands, increasing the risk of catastrophic wildfire.

However, landowners are hesitant to utilize this tool as they may open themselves up to a potential lawsuit in the event that a prescribed fire causes injury or property damage. Prescribed burning is regulated by state law and states apply one of three liability standards to lawsuits involving prescribed burns: strict liability, simple negligence and gross negligence.

  • Strict liability is the most stringent standard and holds burners liable for any property damage caused by an escaped prescribed fire, regardless of the action of the burner.

  • Simple negligence standards require the burner to practice reasonable care, and it requires the plaintiff to show negligence on the part of the defendant in order to collect damages in a lawsuit. This is the most common liability standard.

  • Gross negligence, the most lenient liability standard, holds that if the burner follows outlined regulations, the plaintiff must show reckless disregard by the burner in order to collect damages.

Recognizing the considerable ecosystem changes that have resulted from prolonged fire suppression policies and the need to make this tool available as a management option, many states, especially in the southeastern U.S., have undergone statutory reform to promote safe use of prescribed fire. The purpose of these statutory reforms, often called ''right to burn'' or ''prescribed burning'' acts, is to encourage use of controlled fire for resource protection, public safety and land management. 

Environmentalists are, as expected, against it.

That is one of the reasons private landowners in counties with gross negligence liability standards burn significantly more acres than those in counties with simple negligence standards. In addition, no difference existed between counties with statutorily mandated regulatory requirements and those requiring only a permit to complete a prescribed burn. 

Regulatory requirements, such as adequate firebreaks, personnel, equipment, written burn plans and certified prescribed burn managers on-site do not decrease the amount of burning on private land.

 "The ramifications for this work should extend well beyond the regions examined and will provide sound evidence for the increasingly recognized importance of integrated or interconnected ecological, economic and socio-political influences on natural resource management," Rogers said.