Liability for damages from wildfires

Liability for damages from wildfires is a big issue in California, where utilities PG&E Corp. and Edison International face lawsuits related to fires that were started by powerlines

Could the Forest Service or BLM be held liable for fires that start on federal land and spread to private property?

Oregon law states that:

2017 ORS 477.092
Liability for destruction of property by wildfire

(2) A person is not liable in a civil action for injury to or destruction of property arising out of a wildfire, except to the extent evidence demonstrates that:

(a) An action or inaction of the person constituted negligence or a higher degree of fault; and

(b) The action or inaction caused or contributed to the cause of the wildfire or caused or contributed to the spreading of the wildfire. [emphasis added]

According to the state, “Oregon’s Defensible Space Law enlists the aid of property owners to better protect their homes and firefighters during encroaching wildfires. The law requires property owners to reduce excess vegetation, which may fuel a fire, around homes and other structures. In some cases, it is also necessary to create fuel breaks along property lines and roadsides.” [emphasis added]

I don’t know that this would apply to the Chetco Bar Fire in southwest Oregon, but in some cases, one might make the case that a failure to take action to reduce the chances of wildfire spreading across property lines (fuels reduction, etc.) might have “contributed to the spreading of the wildfire.”

7 thoughts on “Liability for damages from wildfires”

  1. Steve, Most interesting. The key word here seems to be “inaction”. Would failure to properly manage public forest land in WUIs (prescribe burn, remove ladder and heavy fuels, thin over-dense stands) constitute “inaction”? I have a feeling we’ll be seeing this point raised in court.

  2. Coincidentally, received the April/May/June 2018 edition of the Western Forester today (newsletter of the Oregon, Washington State, Inland Empire, Alaska Society of American Foresters divisions). Found this in “Fire and Fuels Management in the Future: Roles and Challenges,” by John Bailey (OSU prof.):

    “Fires frequently cross land ownership boundaries, and in doing so create questions of legal liability for damages associated with the fire event. The current framework for imposing financial responsibility for losses resulting from fires that cross from federal to private forests and vice-versa is a flash point that impedes progress in nearly all discussions regarding fire prevention and suppression efforts. Perceived or actual liability is thought to be a significant impediment to expanding the scale of prescribed burning on private lands.”

  3. Not just private. .remember when the Colorado Governor stopped prescribed burning on state lands?

    And its return in 2017
    “Returning prescribed fire to state lands is a huge milestone for Colorado. The use of fire as a forest management tool was banned by the governor over all non-federal lands in Colorado after the Lower North Fork Fire of 2012 escaped with dire consequences. State agencies were immediately prohibited from participating in any prescribed fire implementation, including slash pile burning and controlled broadcast burns. During that same year, the Waldo Canyon and High Park wildfires destroyed hundreds of homes and damaged critical municipal watersheds for Colorado Springs and Fort Collins.

    The wildfires of 2012 highlighted the need for more effective forest management and fire mitigation, and the state legislature responded by creating the Wildfire Risk Reduction Grant Program (WRRG) in 2013. This program provides financial support for projects that reduce the risk of destructive wildfire to communities on Colorado’s non-federal forest lands, and also requires monitoring to determine the effectiveness of the program.

    CFRI has been involved in the WRRG program since the beginning, and our field based monitoring and science syntheses have helped educate policymakers about the importance of fire as a forest management tool. Our local results on lands Coloradoans know and care about documented the great accomplishments forestry professionals have done to mitigate hazards across non-federal lands. However, our monitoring data and reporting also demonstrated that removing fire from the management toolbox limited the program’s effectiveness by restricting capable professional forestry and fire personnel from implementing the best available management strategies.

    This information helped give state lawmakers the justification needed to expand the WRRG program. During the first few years, funding was only allocated to mechanical fuels reduction activities. Then slash pile burning projects were funded to reduce fuel accumulation. Now, a full broadcast burn has been funded.”

  4. Could the Forest Service or BLM be held liable for fires that start on federal land and spread to private property?

    Would failure to properly manage public forest land in WUIs (prescribe burn, remove ladder and heavy fuels, thin over-dense stands) constitute “inaction”? Highly unlikely, given that even individual hazard tree removal in heavily used areas is considered discretionary. It would probably require a federal statute clearly specifying the circumstances where the Forest Service would have a duty to act (and it’s hard to imagine being faulted for not choosing a specific area to treat in light of competing priorities and limited budgets).

    • This reminds me of our discussion of liability for hazard trees when I worked for the FS attorneys. I remember they said something like “everyone knows you can’t remove all hazard trees, you should have a plan and priorities for which ones you do remove, and you work your plan.” I’m sure I’m missing at least 70% of the legal nuances, but that’s what I remember…

    • As Jon says “highly unlikely” – after the Douglas Complex fires in SW Oregon awhile back (in the BLM/Private land “checkerboard”), private landowners were concerned that they were making the investment to put their lands back into timber production, yet that appeared to be endangered by the lack of action on the adjacent federal (BLM) land. The private landowners asked the state of Oregon to pursue action against the BLM based on a state law. The state was not able to do that. I cannot remember all of the details off the top of my head (hence the very general description here). Might be a different situation if a logging operation on federal lands was the source of the fire that spread to private land, especially if there was negligence on the part of the contractor. In the case of the Chetco Bar Fire, I think it would be difficult to say that the FS could have put the fire out sooner.


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