Prescribed Burning on Arizona Private Land: Policy Issues

Arizona is a diverse land with the largest intact ponderosa pine forest in the country as well as extensive grasslands and deserts.  Throughout history, natural fires have played an important part in maintaining the health and vigor of such vegetation communities.  However, with more concentrated land settlements in recent times, these benefits were lost as the most frequent response to fires was to suppress them.  

Ecologists and landowners today want to bring back the benefits of fires through controlled prescribed burns.  These fires, sometimes in combination with cattle grazing, are used to control tree density, woody shrubs, and invasive species to promote healthy grasslands. After a fire, grazing animals are attracted to the lush re-growth of grass and concentrate their grazing in burned areas.  Additionally, regularly applied fire can reduce the intensity of unplanned fires, a particularly important consideration as drought and higher than average temperatures are ever more common. 

Despite these benefits, widespread use of prescribed fires on private lands in Arizona and elsewhere has been limited by concerns about liability for fires that may escape control of the fire manager.  Arizona has a legal framework for federal and state officials to conduct the fires where public land agencies self-insure their risk and have their own program for training fire managers.  However, at this time, Arizona state law does not provide the structure for private landowners to initiate prescribed fires, although such a structure is possible. 

For instance, Colorado has a prescribed fire law that includes private lands [2017 § 24-33.5-1217, CRS] and New Mexico enacted House Bill 57 on March 18, 2021 authorizing the state’s private landowners to conduct prescribed burns on their own property unless restricted from doing so because of drought.  In the New Mexico case, a fire must be conducted using appropriate precautionary measures such as sufficient personnel and equipment; and landowners must provide prior notification to local fire officials.[i]  In addition, counties may require private landowners to obtain permits prior to conducting a prescribed burn and a prescribed burn manager certification program is being created for private landowners.  This certification is critical for limiting liability for any damage caused by the fire.  A landowner who is not certified under this program will be responsible for two times the amount of damage caused by a fire, while a certified landowner is liable only for the value of the damage. 

Arizona does not have an equivalent law or program for conducting prescribed burns.[ii]  Instead, Arizona landowners are required to seek approval from the representative state land management agency and then from the Arizona Department of Environmental Quality to carry out a prescribed burn.  Although a trivial number of fires set in the country have resulted in a claim against insurance companies, a standard of liability for landowners who conduct the fires as well as a process for certification has not been legislated in Arizona, thus deterring landowners from seeking approval for conducting a prescribed burn.  To gain momentum for this type of legislation in Arizona, landowner associations and conservation organizations will need to work together to bring this important issue to the attention of the Arizona legislature. 

For more information about current Arizona prescribed fire regulations, the following references are provided.  Note: Since this blog was written, there have been new developments on the national stage for prescribed fire funding that may apply to private lands at high risk for wildfire.  See:  https://forestpolicypub.com/2021/05/22/check-out-the-national-prescribed-fire-act-of-2021/

 

References

New Mexico House Bill 57 – Prescribed Burning Act (As Signed by Governor, March 2021).

https://nmrxfire.nmsu.edu/documents/hb0057.pdf

Governor Michelle Lujan Grisham signs bipartisan measure to improve forest management, help N.M. avoid catastrophic fires. Press Release, March 18, 2021.

https://www.governor.state.nm.us/2021/03/18/gov-signs-bipartisan-measure-to-improve-forest-management-help-n-m-avoid-catastrophic-fires/

Expanding the Use of Prescribed Fire in New Mexico Working Group Report to the New Mexico Legislature. (2020). Report No. CG49-HO-HM 42 Final.  https://foreststewardsguild.org/wp-content/uploads/2020/08/CG49-HO-HM_42_Final_Report.pdf (Note: Good references on liability issues).

Ruyle, G., & Eisenberg, J. (2018). Prescribed Fire [Memorandum]. https://extension.arizona.edu/sites/extension.arizona.edu/files/attachment/prescribed-fire-memo2018.pdf

 

Additional Resources:  Factors in Conducting Prescribed Fires

Brown, S. (2015). Administrative and Legal Review Opportunities for Collaborative Groups (p. 12) [ERI White Paper-Issues in Forest Restoration]. Ecological Restoration Institute. https://cdm17192.contentdm.oclc.org/digital/collection/p17192coll1/id/633/rec/2

Fire Adapted Communities Network - Resources

Forest Land Steward Newsletter. (2013). Fire: An important management tool. Spring, 2-12. https://ucanr.edu/sites/forestry/newsletters/Forestland_Steward_Newsletters54695.pdf

Prescribed Fire Training Exchange - T​oolkit for Burn Unit Hosts and Landowners (The Nature Conservancy runs this Training Exchange (TREX); Toolkit includes contracts, liability waiver forms, and liability considerations)

https://www.conservationgateway.org/ConservationPractices/FireLandscapes/HabitatProtectionandRestoration/Training/TrainingExchanges/Pages/TREX-Host-Toolkit.aspx

• Prescribed Fire Training Exchange (TREX) Oct 18th – Nov 1st, 2021 based in Flagstaff, Arizona (Tentative Dates)

Quinn-Davidson, L. and Stackhouse, J. 2020. Prescribed Fire Liability in California. University of California Cooperative Extension. Eureka, CA. https://ucanr.edu/sites/forestry/files/326484.pdf

Quirke, D. (2018). Summary of State Prescribed Fire Laws in Eleven Western States: Arizona. In Legal Appendix: An Overview of the Clean Air Act and State-Level Air Quality Regulation in Prescribed Fire Policy Barriers and Opportunities: A Diversity of Challenges and Strategies Across the West (pp. 10–14). Ecosystem Workforce Program, University of Oregon and Colorado State University. https://ewp.uoregon.edu/sites/ewp.uoregon.edu/files/WP_86Appendix.pdf (Note: This reference has the most complete review of all the statutes associated with prescribed burning in Arizona at least in relationship to air quality, in addition, notes that Maricopa and Pima and Pinal Counties have additional requirements.)

• Arizona Smoke Management Areas Map https://legacy.azdeq.gov/environ/air/smoke/images/mgmt.jpg
• Pima County: Pre-Application Guidance—Open Burning. (2021). https://webcms.pima.gov/cms/one.aspx?portalId=169&pageId=59896
• Maricopa County: Outdoor Fires Air Pollution Control Regulations https://www.maricopa.gov/DocumentCenter/View/5200/Rule-314---Outdoor-Fires-and-Commercial--Institutional-Solid-Fuel-Burning-PDF?bidId=
• Pinal County: https://www.pinalcountyaz.gov/AirQuality/Documents/Burn/Article%208%20-%...

Schultz, C., Huber-Stearns, H., Mccaffrey, S., Quirke, D., Ricco, G., & Moseley, C. (2018). Prescribed Fire Policy Barriers and Opportunities: A Diversity of Challenges and Strategies Across the West. http://ewp.uoregon.edu/sites/ewp.uoregon.edu/files/WP_86.pdf (Note: See Quirke 2018 above)

Tubbesing, C., Smith, J., & Martinez, D. (2021). Prioritizing Forest Health Investments. Recommendations from the Science Advisory Panel to the Forest Management Task Force (pp. 1–97). https://www.swcasc.arizona.edu/system/files/SAP%20Prioritization%20Report%20Final%20-%20May21.pdf

U.S. Department of Agriculture's Natural Resources Conservation Service (NRCS) does provide financial assistance for some aspects of controlled burns. https://www.nrcs.usda.gov/wps/portal/nrcs/ia/newsroom/releases/nrcs142p2_008740/

 

Deeper Dive: Research about Legal Issues Surrounding Prescribed Fires

Berry, F., Deaton, L., & Steinberg, M. (2016). FIREWISE: The Value of Voluntary Action and Standard Approaches to Reducing Wildfire Risk. ARIZONA STATE LAW JOURNAL, 48(1), 181–203. https://arizonastatelawjournal.org/wp-content/uploads/2016/04/Berry_Final.pdf

Coalition of Prescribed Fire Councils, Inc. (2020). 2020 Prescribed Fire Use Report (Technical Bulletin 04-20). https://www.stateforesters.org/wp-content/uploads/2020/12/2020-Prescribed-Fire-Use-Report.pdf

Engel, K. H. (2014). Perverse Incentives: The Case of Wildfire Smoke Regulation. University of Arizona, James E. Rogers College of Law, 1–51. https://doi.org/10.2139/ssrn.2131366

Keiter, R. B. (2006). The Law of Fire: Reshaping Public Land Policy in an Era of Ecology and Litigation. Environmental Law, 36, 301–384. https://law.lclark.edu/live/files/251-362keiter

Oldham, C. H. (2016). Wildfire Liability and the Federal Government: A Double-Edged Sword. Arizona State Law Journal, 48(1), 205–220. https://arizonastatelawjournal.org/2016/04/05/wildfire-liability-and-the-federal-government-a-double-edged-sword/

Schultz, C., & Moseley, C. (2021). Policy Barriers to Prescribed Fire: Identifying Opportunities and Mechanisms for Change (JFSP Project ID: 16-1-02=8; pp. 1–38). Joint Fire Science Program, firescience.gov. https://www.firescience.gov/projects/16-1-02-8/project/16-1-02-8_final_report.pdf

Stackhouse, J., & Quinn-Davidson, L. (2019). Options for Prescribed Fire on Private Lands in California. Grasslands - California Native Grasslands Association, 29(2), 12–15. https://ucanr.edu/sites/forestry/files/312926.pdf

Toledo, D., Kreuter, U. P., Sorice, M. G., & Taylor, C. A. (2014). The role of prescribed burn associations in the application of prescribed fires in rangeland ecosystems. Journal of Environmental Management, 132, 323–328. https://doi.org/10.1016/j.jenvman.2013.11.014

Weir, J. R., Kreuter, U. P., Wonkka, C. L., Twidwell, D., Stroman, D. A., Russell, M., & Taylor, C. A. (2019). Liability and Prescribed Fire: Perception and Reality. Rangeland Ecology & Management, 72(3), 533–538. https://doi.org/10.1016/j.rama.2018.11.010

https://www.sciencedirect.com/science/article/pii/S1550742418301283

Weir, J., Twidwell, D., & Wonkka, C. L. (2016). From Grassroots to National Alliance: The Emerging Trajectory for Landowner Prescribed Burn Associations | Elsevier Enhanced Reader. https://doi.org/10.1016/j.rala.2016.02.005

Wonkka, C. L., Rogers, W. E., & Kreuter, U. P. (2015). Legal barriers to effective ecosystem management: Exploring linkages between liability, regulations, and prescribed fire. Ecological Applications, 25(8), 2382–2393. https://doi.org/10.1890/14-1791.1

Yoder, J. (2008). Effects of Liability and Regulation on Prescribed Fire Risk in the United States (PSW-GTR-208; p. PSW-GTR-208). U.S. Department of Agriculture, Forest Service, Pacific Southwest Research Station. https://doi.org/10.2737/PSW-GTR-208