Existing law authorizes a person, firm, or corporation, or a group or combination of persons, firms, corporations, or groups, that owns or controls brush-covered land, forest lands, woodland, grassland, shrubland, or any combination thereof within a state responsibility area, as defined, to apply to the Department of Forestry and Fire Protection for permission to utilize prescribed burning for specified public purposes.

This bill would provide that a property owner and his or her agent conducting a prescribed burn, as defined, shall not be liable for damage or injury caused by fire or smoke, unless negligence is proven, when the prescribed burn meets specified conditions, including that the prescribed burn in conducted under the supervision of a certified prescribed burn manager, as defined, and proper burn permits have been obtained from all appropriate state and local agencies.

The bill would require the department, on or before January 1, 2020, to develop a training and certification program for prescribed burn managers. The bill would require the department, on or before July 1, 2020, subject to the receipt of funding, to secure an insurance policy to provide compensation for any injuries or property damage resulting from a prescribed burn operation performed according to the above provisions. The bill would require prescribed burn managers, companies engaging in prescribed burn operations, small landowners, and fire safe councils to be covered under the liability insurance policy.

Existing law authorizes a person, firm, or corporation, or a group or combination of persons, firms, corporations, or groups, that owns or controls brush-covered land, forest lands, woodland, grassland, shrubland, or any combination thereof within a state responsibility area, as defined, to apply to the Department of Forestry and Fire Protection for permission to utilize prescribed burning for specified public purposes.

This bill would provide that a property owner and his or her agent conducting a prescribed burn, as defined, shall not be liable for damage or injury caused by fire or smoke, unless negligence is proven, when the prescribed burn meets specified conditions, including that the prescribed burn in conducted under the supervision of a certified prescribed burn manager, as defined, and proper burn permits have been obtained from all appropriate state and local agencies.

The bill would require the department, on or before January 1, 2020, to develop a training and certification program for prescribed burn managers. The bill would require the department, on or before July 1, 2020, subject to the receipt of funding, to secure an insurance policy to provide compensation for any injuries or property damage resulting from a prescribed burn operation performed according to the above provisions.

Date of Hearing: April 23, 2018

ASSEMBLY COMMITTEE ON NATURAL RESOURCES

Al Muratsuchi, Acting Chair

ABPCA Bill Id:AB 2585 (

Author:Patterson) – As Amended Ver:April 9, 2018

SUBJECT: Prescribed burns: burn managers: liability

SUMMARY: Defines and authorizes prescribed burns for certain purposes. Requires, on or before January 1, 2020, Department of Forestry and Fire Protection (CAL FIRE) to develop a training and certification program for prescribed burn managers. Declares a property owner and his or her agent conducting a prescribed burn shall not be liable for damage or injury caused by fire or smoke, unless negligence is proven, when the prescribed burn meets specified conditions.

EXISTING LAW:

1. Authorizes CAL FIRE to enter into an agreement, including a grant agreement, for prescribed burning or other hazardous fuel reduction. Authorizes the state to assume a proportionate share of the costs of site preparation and prescribed burning or other hazardous fuel reduction on wild lands.
   
2. Requires any contract entered into as part of CAL FIRE’s burning contracts to do all of the following:
   
   1. Vest in the director of CAL FIRE the final authority to determine the time the burn will happen;
      
   2. Clearly state the obligation of each party to the contract;
      
   3. Designate an officer of CAL FIRE to be the fire boss with final authority to approve and amend the plan and formula for the prescribed burn;
      
   4. Specify the duties and any required precaution for the person contracting with Cal FIRE;
      
   5. Specify the value of all materials, services, or equipment provided by the person contracting with CAL FIRE. Specify the total cost of the prescribed burn operation or other hazardous fuel reduction. Requires any person contracting with CAL FIRE to place a deposit for their cost share prior to commencement of any work; and,
      
   6. Authorize CAL FIRE to purchase third-party liability insurance to cover against loss resulting from a wild land fire sustained by any personal or public agency. Requires the policy to name the person CAL FIRE is contracting with. If CAL FIRE does not purchase third-party liability insurance they must then indemnify or hold harmless the person CAL FIRE is contracting with for any liability arising out of the prescribed burn contract.
      
3. Authorizes a person, firm, or corporation to apply to CAL FIRE to utilize prescribed burning for a public purpose. Authorizes CAL FIRE to issue a burn permit. Requires the permit to specify the site preparation requirements and required precautions to be exercised prior to burning.
   
4. Declares a person who allows a fire burning upon his or her property to escape to the property of another, whether privately or publicly owned, without exercising due diligence to control such fire, is liable for the damages to the other property caused by the fire.
   
5. Authorizes any public agency authorized to engage in fire protection activities, including a fire protection district, city, city and county, county, CAL FIRE, or the United States Forest Service to use fire to abate a fire hazard.
   

THIS BILL:

1. Makes various findings, including:
   1. It is the intent of the Legislature that CAL FIRE dedicate an adequate number of staff solely to prescribed burning and vegetation management activities;
   2. It is the intent of the Legislature that CAL FIRE makes spot weather forecasting available to those entities engaged in CAL FIRE approved prescribed burns.
   3. Recognizes that the best results are often achieved by using both prescribed fire and mechanical thinning in combination with one another.
2. Declares compliance with CAL FIRE burn contract requirements or CAL FIRE private burn permit requirements constitutes a prima facie evidence of due diligence.
3. Authorizes a person with a CAL FIRE burn permit to use fire to abate a fire hazard.
4. Defines “certified prescribed burn manager” as an individual who successfully completes the certification program created by CAL FIRE.
5. Defines “prescribed burn” as the controlled application of fire to naturally occurring vegetative fuels under specified environmental conditions and following appropriate precautionary measures, which cause the fire to be confined to a predetermined area and accomplish the planned land management objectives.
6. Requires on or before January 1, 2020, CAL FIRE to develop a training and certification program for prescribed burn managers.
7. Declares a property owner and his or her agent conducting a prescribed burn shall not be liable for damage or injury caused by fire or smoke, unless negligence is proven, when the prescribed burn meets the following conditions:
   1. The prescribed burn is conducted under the supervision of a certified prescribed burn manager;
   2. Proper burn permits have been obtained from all appropriate state and local agencies;
   3. The burn is conducted pursuant to the requirement of the burn permit; and,
   4. The burn is conducted in accordance with all existing air pollution statutes, rules, and regulations.
8. Requires CAL FIRE, on or before July 1, 2020, if it receives funds to secure an insurance policy to provide compensation for any injuries or property damage from a prescribed fire operation to comply with specified provisions of this bill.
9. Requires small landowners and fire safe councils to be covered under the liability policy purchased by the policy.
10. Requires CAL FIRE to submit an estimate of the amount of coverage and anticipated cost of coverage to the Joint Legislative Budget Committee.
11. Requires, on or before July 1, 2019, CAL FIRE to develop a public education program to make citizens and visitors aware of the public safety, resource, and economic benefits of prescribed burning.
12. Authorizes the Board of Forestry and Fire Protection (Board) to adopt any regulations necessary to implement this article.

FISCAL EFFECT: Unknown

COMMENTS:

1. Author’s statement:

Under existing law, forest landowners may conduct prescribed fire if they have a permit from CAL FIRE. There are two different permits: one for non-government entities and one for local municipalities. CAL FIRE currently has a program of their own where, through a cost-share agreement, they will conduct a prescribed burn on forested lands. However, CAL FIRE has recently utilized this program less than its historical average.

The problem is that although CAL FIRE can, and does, conduct prescribed fires, they are limited in what they can achieve because of budget and personnel constraints (including re-tasking personnel to other work). CAL FIRE reached only 70% of its goal for 2016-2017, according to a recently published Little Hoover Commission report Embracing Fire as an Essential Tool for Forest Resiliency, and in recent years the number of acres treated under their Vegetation Management Program have been in decline.

There are ways that non-CAL FIRE entities can utilize prescribed burns by utilizing a permit for a non-government entity or a permit to a government entity from CAL FIRE to conduct a burn. However, for many who would conduct a burn on their own, the risk of being held liable for a prescribed fire dissuades many forest landowners who would otherwise conduct prescribed fire on their own accord.

The remedy is that this bill will help promote the use of prescribed fire by establishing a voluntary certification process for prescribed burn managers under CAL FIRE. A prescribed burn manager will complete a certification program through CAL FIRE and forest landowners who utilize a certified prescribed burn manager will no longer be held liable for damage or injury caused by fire or smoke (unless negligence is proven).

In order to ensure that innocent people and property could still be made whole if an incident did occur, CAL FIRE will secure an insurance policy to provide compensation for any injuries or property damage resulting from the prescribed fire operations performed in accordance with CAL FIRE permitted guidelines and a certified prescribed burn manager.

1. Background. The 2017 fire season was devastating. Over 1.3 million acres burned in high-severity wildfires and over 10,000 structures were destroyed. Fire has always been present in California landscapes either occurring by lightning strikes or used by Native American tribes to preserve certain useful plants and prevent larger fires. Low-intensity fires have clear ecological benefits such as creating habitat and assisting in the regeneration of certain species of plants and trees. Low-intensity fire also reduces surface fuel, which decreases future wildfire intensity. However, after a century of fire exclusion, logging of older growth and more fire-resistant trees, and a significant five-year drought, the size and severity of California’s fires has increased dramatically. Climate change has also contributed to wildfire risk by reducing humidity and precipitation and increasing temperatures.

California’s forests have become overstocked and unhealthy. In the Stanislaus National Forest, a team of UC Berkeley researchers found a density of 400 trees per acre in 2013, compared with 60-90 trees per acre found in historical reports from 1911. In addition, the researchers found more undergrowth species, and a smaller average tree size than in 1911. From 2014 to 2017 over 129 million trees have died due to a combination of drought and bark beetles. New research by UC Berkeley states “these dead trees have created unprecedented levels of fuel, which could create dangerous wildfires in the near future that are beyond the predictive capacity of current fire models.”

In 2016-17 California experienced a record level of precipitation, which caused an unprecedented growth in grasses and shrubs throughout California. During the summer of 2017 extended heat waves dried out the newly grown vegetation. In the fall and winter of 2017 high winds and low humidity created the conditions that led to major fires in Butte, Lake, Los Angeles, Mendocino, Napa, Nevada, Riverside, San Diego, Solano, Sonoma, Ventura, and Yuba counties. This included the Thomas fire, which was the largest wildfire in California history. Between October and December wildfires caused the tragic loss of 44 lives, which is more than the last 10 years combined. Many places in California experienced the worst air quality on record, including for deadly particulate matter 2.5. These massive fires also created significant amounts of greenhouse gas (GHG) emissions. The 2017 wildfires produced more GHG emissions than every car, truck, and big rig on the state’s roads in one year.

There are many efforts by the Administration and the Legislature to address the forest health and the wildfire crisis. In Governor Brown’s State of the State Address he said, “I will convene a task force composed of scientists and knowledgeable forest practitioners to review thoroughly the way our forests are managed and suggest ways to reduce the threat of devastating fires. They will also consider how California can increase resiliency and carbon storage capacity. Trees in California should absorb CO2, not generate huge amounts of black carbon and GHGs as they do today when forest fires rage across the land.” Reports on forest health have also been released by the Public Policy Institute and the Little Hoover Commission. Both advocate for more active management of California’s forests, including increased use of prescribed fire. Last year, CAL FIRE received a $200 million appropriation from the Greenhouse Gas Reduction Fund (GGRF) for forest health and fire prevention, a significant increase from the prior year. CAL FIRE is in the process of reviewing proposals for landscape level forest health projects and developing guidelines for a local assistance fire prevention program. Even with these additional resources and attention, high-severity wildfires are an increasing threat in California.

1. Prescribed fire. Prescribed and managed burns is a type of vegetation management where low-intensity fires are either intentionally lit or allowed to burn in specified weather conditions and in a way that is consistent with a preapproved plan (known as a burn plan) to treat a specified area. The prescribed or managed fire eliminates hazardous surface fuels and achieves other important ecological outcomes. Prescribed and managed burning of forests increase short-term air pollution and GHG emissions in order to mitigate the risk of larger fires with significantly higher air and GHG emissions in the future. For example, recent research has shown that had the land associated with the Rim Fire, a >250,000-acre fire in the Sierra Nevada in 2013, been intentionally managed for resource objectives, the impact could have been five times less. Further, the GHG emissions from the Rim Fire were substantial, releasing an amount equivalent to the annual GHG emissions from 2.3 million vehicles or 3.2 coal-fired power plants.

For Fiscal Year 2016-17, CAL FIRE’s goal was to complete 20,000 acres of prescribed burns. CAL FIRE was only able to reach 70% of that goal. CAL FIRE plans to meet the goal this year and ramp up to 60,000 acres per year by 2030. However, 60,000 acres is far short of what is truly needed to improve forest health. Private and burns done with partnerships between CAL FIRE and other groups are needed to dramatically increase the pace and scale of treated acres. Many barriers exist to doing more private and cooperative burns. They include a lack of experienced practitioners, ability to get permits, enough burn windows, and liability concerns.

There are many places where prescribed fire is not used due to fear that it might escape and cause damage to life or property. Experts claim fire escapes are rare. According to the Little Hoover Commission, between 1996 and 2004, there were only 30 escaped fires or near misses on national forest lands. Another study looked at 16,626 prescribed fires occurring nationwide, which treated 1,971,823 acres. The study only found 14 escaped fires. Experts believe training and adhering to best practices are the best way to prevent escapes. This bill requires CAL FIRE to develop a training and certification program. Currently, no state agency trains or certifies prescribed burn managers. There are several proposals to have the Board, State Fire Marshal (SFM), or CAL FIRE train and certify burners. It might make sense to develop a collaborative process that reviews what other states and the federal government have done. This bill may also unintentionally authorize CAL FIRE to issue a permit for the use of prescribed fire to combat wildfires. Land owners and private prescribed fire practitioners should be able to use prescribed fire to reduce fire risk not to fight fires.

1. Liability. According to Insurance Commissioner Dave Jones, as of January 31, 2018, insurers had received nearly 45,000 insurance claims totaling more than $11.79 billion in losses from the devastating 2017 wildfires. These costs are for property damage, but there will also be other claims for injuries and death. Insurance companies and others suffering damages will seek to recover from whoever is declared responsible for those wildfires. Therefore, landowners that allow prescribed fire and those conducting the prescribed fire could be liable for a significant amount of money if a fire escaped and became a significant wildfire. Current law states that if one uses prescribed fire and it escapes, negligence is accepted by the users unless proven otherwise. This bill reserves that principle and states that if a prescribed burn is done with valid authorization and adhering to law the user is not negligent unless proven otherwise. This might make it more difficult to recover damages from a prescribed fire, but also might encourage more prescribed fire, reducing overall wildfire risk.

When CAL FIRE conducts prescribed burns they self-insure and agree to cover any liability. Any other party that is part of a CAL FIRE prescribed fire contract is liable for their activities on the operation. There are insurance policies for private prescribed fire operations; however, they are expensive and can sometimes only cover up to $5 million in damages. While for most prescribed fire operation the chance of an escape resulting in major damage is extremely low, the liability risk is a major barrier. Eliminating liability, as other states have done, from property owners and their agents conducting prescribed fire also has drawbacks including exacerbating the availability and affordability of home owner insurance in high-risk fire areas and leaving injured parties without compensation.

This bill eliminates liability for property owners and their agents conducting a prescribed burn unless negligence is proven. The bill requires CAL FIRE, a year after the liability exemption takes place and only if it has funding to do so, to secure an insurance policy to cover damages that the property owner is no longer liable for. However, the liability exemption will take effect even if CAL FIRE does not develop an insurance policy. This would likely leave injured parties without compensation for at least a year. In addition, it is unclear what prescribed fire operations would be covered under the insurance policy and whether CAL FIRE would be required to provide compensation even if there was negligence by the property owner or his or her agent. If CAL FIRE does secure the insurance policy how much will that cost? When will CAL FIRE receive funding for the insurance policy and where will the funding come from? Could resources be more cost effective devoted to CAL FIRE conducting fuels reductions directly? This bill does not answer those questions and may have serious unintended consequences.

1. Comments. The author’s office has indicated a willingness to remove all portions of the bill except the requirements that CAL FIRE develop a training and certification process and do a public education campaign. These requirements are duplicative of other bills the committee has passed this year and is considering at the April 23^rd hearing.
2. Related legislation.

AB 1956 (Limón) establishes a fire prevention working group and a local assistance grant program to improve fire prevention in California and ensures that fire prevention activities happen year round. The bill passed out of this committee on a 10-0 vote and is now awaiting hearing in the Assembly Appropriations Committee.

AB 2091 (Grayson) renames the Board as the Board of Forestry and Fire Prevention and Protection. This bill requires the Board to develop a certified specialist for prescribed burning or accept a public agencies certification program if it is created. This bill requires, on or before January 1, 2020, CAL FIRE to develop and implement an insurance pool for prescribed burn managers. The bill passed out of this committee on a 9-0 vote and is now awaiting hearing in the Assembly Appropriations Committee.

AB 2518 (Aguiar-Curry) requires CAL FIRE, in collaboration with the Board to explore markets, including export markets, for milling, development, and expansion of innovative forest products and mass timber, as defined, that are consistent with the state’s climate objectives on forest lands. This bill will also be heard by this committee on April 16.

AB 2551 (Wood) requires CAL FIRE to establish, implement, and administer the Forest and Wildland Health Improvement and Fire Prevention Program (Program). The bill requires CAL FIRE to implement the Program to promote forest and wildland health, restoration, and resilience and improve fire prevention and preparedness throughout the state. The bill would also require that not less than 18% of all moneys in the GGRF be made available annually, upon appropriation in the annual budget act, to CAL FIRE for projects implementing the Program. This bill is awaiting hearing in this committee.

AB 2911 (Friedman) requires the SFM to recommend updating building standards for site and structure fire risk reduction. This bill extends and clarifies the Board’s review process of local government’s safety elements to strengthen state and local collaboration on fire-risk reduction. This bill authorizes CAL FIRE to permit any property owner to construct a fire break if deemed necessary to protect life, property, and natural resources. This bill extends the distances and types of vegetation management required for power lines in the State Responsibility Area. This bill will also be heard by this committee on April 16.

SB 1260 (Jackson) is an omnibus fire prevention and forestry management bill intended to promote long-term forest health and wildfire resiliency. This bill is awaiting hearing in Senate Natural Resources and Water Committee.

1. Double Referral. This bill is also referred to the Assembly Judiciary Committee.

REGISTERED SUPPORT / OPPOSITION:

Support

Butte County Fire Safe Council

California Licensed Foresters Association
Central Coast Rx Fire Council

Central Ventura County Fire Safe Council

Civil Justice Association of California
Sacramento River Watershed Program
Sonoma County Agricultural Preservation and Open Space District

Opposition

Consumer Attorneys of California

Analysis Prepared by: Michael Jarred / NAT. RES. /

Date of Hearing: April 16, 2018

ASSEMBLY COMMITTEE ON NATURAL RESOURCES

Al Muratsuchi, Acting Chair

ABPCA Bill Id:AB 2585 (

Author:Patterson) – As Amended Ver:April 9, 2018

SUBJECT: Prescribed burns: burn managers: liability

SUMMARY: Defines and authorizes prescribed burns for certain purposes. Requires, on or before January 1, 2020, Department of Forestry and Fire Protection (CAL FIRE) to develop a training and certification program for prescribed burn managers. Declares a property owner and his or her agent conducting a prescribed burn shall not be liable for damage or injury caused by fire or smoke, unless negligence is proven, when the prescribed burn meets specified conditions.

EXISTING LAW:

1. Authorizes CAL FIRE to enter into an agreement, including a grant agreement, for prescribed burning or other hazardous fuel reduction. Authorizes the state to assume a proportionate share of the costs of site preparation and prescribed burning or other hazardous fuel reduction on wild lands.
   
2. Requires any contract entered into as part of CAL FIRE’s burning contracts to do all of the following:
   
   1. Vest in the director of CAL FIRE the final authority to determine the time the burn will happen;
      
   2. Clearly state the obligation of each party to the contract;
      
   3. Designate an officer of CAL FIRE to be the fire boss with final authority to approve and amend the plan and formula for the prescribed burn;
      
   4. Specify the duties and any required precaution for the person contracting with Cal FIRE;
      
   5. Specify the value of all materials, services, or equipment provided by the person contracting with CAL FIRE. Specify the total cost of the prescribed burn operation or other hazardous fuel reduction. Requires any person contracting with CAL FIRE to place a deposit for their cost share prior to commencement of any work; and,
      
   6. Authorize CAL FIRE to purchase third-party liability insurance to cover against loss resulting from a wild land fire sustained by any personal or public agency. Requires the policy to name the person CAL FIRE is contracting with. If CAL FIRE does not purchase third-party liability insurance they must then indemnify or hold harmless the person CAL FIRE is contracting with for any liability arising out of the prescribed burn contract.
      
3. Authorizes a person, firm, or corporation to apply to CAL FIRE to utilize prescribed burning for a public purpose. Authorizes CAL FIRE to issue a burn permit. Requires the permit to specify the site preparation requirements and required precautions to be exercised prior to burning.
   
4. Declares a person who allows a fire burning upon his or her property to escape to the property of another, whether privately or publicly owned, without exercising due diligence to control such fire, is liable for the damages to the other property caused by the fire.
   
5. Authorizes any public agency authorized to engage in fire protection activities, including a fire protection district, city, city and county, county, CAL FIRE, or the United States Forest Service to use fire to abate a fire hazard.

THIS BILL:

1. Makes various findings, including:
   1. It is the intent of the Legislature that CAL FIRE dedicate an adequate number of staff solely to prescribed burning and vegetation management activities;
   2. It is the intent of the Legislature that CAL FIRE makes spot weather forecasting available to those entities engaged in CAL FIRE approved prescribed burns.
   3. Recognizes that the best results are often achieved by using both prescribed fire and mechanical thinning in combination with one another.
2. Declares compliance with CAL FIRE burn contract requirements or CAL FIRE private burn permit requirements constitutes a prima facie evidence of due diligence.
3. Authorizes a person with a CAL FIRE burn permit to use fire to abate a fire hazard.
4. Defines “certified prescribed burn manager” as an individual who successfully completes the certification program created by CAL FIRE.
5. Defines “prescribed burn” as the controlled application of fire to naturally occurring vegetative fuels under specified environmental conditions and following appropriate precautionary measures, which cause the fire to be confined to a predetermined area and accomplish the planned land management objectives.
6. Requires on or before January 1, 2020, CAL FIRE to develop a training and certification program for prescribed burn managers.
7. Declares a property owner and his or her agent conducting a prescribed burn shall not be liable for damage or injury caused by fire or smoke, unless negligence is proven, when the prescribed burn meets the following conditions:
   1. The prescribed burn is conducted under the supervision of a certified prescribed burn manager;
   2. Proper burn permits have been obtained from all appropriate state and local agencies;
   3. The burn is conducted pursuant to the requirement of the burn permit; and,
   4. The burn is conducted in accordance with all existing air pollution statutes, rules, and regulations.
8. Requires CAL FIRE, on or before July 1, 2020, if it receives funds to secure an insurance policy to provide compensation for any injuries or property damage from a prescribed fire operation to comply with specified provisions of this bill.
9. Requires small landowners and fire safe councils to be covered under the liability policy purchased by the policy.
10. Requires CAL FIRE to submit an estimate of the amount of coverage and anticipated cost of coverage to the Joint Legislative Budget Committee.
11. Requires, on or before July 1, 2019, CAL FIRE to develop a public education program to make citizens and visitors aware of the public safety, resource, and economic benefits of prescribed burning.
12. Authorizes the Board of Forestry and Fire Protection (Board) to adopt any regulations necessary to implement this article.

FISCAL EFFECT: Unknown

COMMENTS:

1. Author’s statement:

Under existing law, forest landowners may conduct prescribed fire if they have a permit from CAL FIRE. There are two different permits: one for non-government entities and one for local municipalities. CAL FIRE currently has a program of their own where, through a cost-share agreement, they will conduct a prescribed burn on forested lands. However, CAL FIRE has recently utilized this program less than its historical average.

The problem is, that although CAL FIRE can, and does, conduct prescribed fires, they are limited in what they can achieve because of budget and personnel constraints (including re-tasking personnel to other work). CAL FIRE reached only 70% of its goal for 2016-2017, according to a recently published Little Hoover Commission report Embracing Fire as an Essential Tool for Forest Resiliency, and in recent years the number of acres treated under their Vegetation Management Program have been in decline.

There are ways that non-CAL FIRE entities can utilize prescribed burns by utilizing a permit for a non-government entity or a permit to a government entity from CAL FIRE to conduct a burn. However, for many who would conduct a burn on their own, the risk of being held liable for a prescribed fire dissuades many forest landowners who would otherwise conduct prescribed fire on their own accord.

The remedy is that this bill will help promote the use of prescribed fire by establishing a voluntary certification process for prescribed burn managers under CAL FIRE. A prescribed burn manager will complete a certification program through CAL FIRE and forest landowners who utilize a certified prescribed burn manager will no longer be held liable for damage or injury caused by fire or smoke (unless negligence is proven).

In order to ensure that innocent people and property could still be made whole if an incident did occur, CAL FIRE will secure an insurance policy to provide compensation for any injuries or property damage resulting from the prescribed fire operations performed in accordance with CAL FIRE permitted guidelines and a certified prescribed burn manager.

1. Background. The 2017 fire season was devastating. Over 1.3 million acres burned in high-severity wildfires and over 10,000 structures were destroyed. Fire has always been present in California landscapes either occurring by lightning strikes or used by Native American tribes to preserve certain useful plants and prevent larger fires. Low-intensity fires have clear ecological benefits such as creating habitat and assisting in the regeneration of certain species of plants and trees. Low-intensity fire also reduces surface fuel, which decreases future wildfire intensity. However, after a century of fire exclusion, logging of older growth and more fire-resistant trees, and a significant five-year drought, the size and severity of California’s fires has increased dramatically. Climate change has also contributed to wildfire risk by reducing humidity and precipitation and increasing temperatures.

California’s forests have become overstocked and unhealthy. In the Stanislaus National Forest, a team of UC Berkeley researchers found a density of 400 trees per acre in 2013, compared with 60-90 trees per acre found in historical reports from 1911. In addition, the researchers found more undergrowth species, and a smaller average tree size than in 1911. From 2014 to 2017 over 129 million trees have died due to a combination of drought and bark beetles. New research by UC Berkeley states “these dead trees have created unprecedented levels of fuel, which could create dangerous wildfires in the near future that are beyond the predictive capacity of current fire models.”

In 2016-17 California experienced a record level of precipitation, which caused an unprecedented growth in grasses and shrubs throughout California. During the summer of 2017 extended heat waves dried out the newly grown vegetation. In the fall and winter of 2017 high winds and low humidity created the conditions that led to major fires in Butte, Lake, Los Angeles, Mendocino, Napa, Nevada, Riverside, San Diego, Solano, Sonoma, Ventura, and Yuba counties. This included the Thomas fire, which was the largest wildfire in California history. Between October and December wildfires caused the tragic loss of 44 lives, which is more than the last 10 years combined. Many places in California experienced the worst air quality on record, including for deadly particulate matter 2.5. These massive fires also created significant amounts of greenhouse gas (GHG) emissions. The 2017 wildfires produced more GHG emissions than every car, truck, and big rig on the state’s roads in one year.

There are many efforts by the Administration and the Legislature to address the forest health and the wildfire crisis. In Governor Brown’s State of the State Address he said, “I will convene a task force composed of scientists and knowledgeable forest practitioners to review thoroughly the way our forests are managed and suggest ways to reduce the threat of devastating fires. They will also consider how California can increase resiliency and carbon storage capacity. Trees in California should absorb CO2, not generate huge amounts of black carbon and GHGs as they do today when forest fires rage across the land.” Reports on forest health have also been released by the Public Policy Institute and the Little Hoover Commission. Both advocate for more active management of California’s forests, including increased use of prescribed fire. Last year, CAL FIRE received a $200 million appropriation from the Greenhouse Gas Reduction Fund (GGRF) for forest health and fire prevention, a significant increase from the prior year. CAL FIRE is in the process of reviewing proposals for landscape level forest health projects and developing guidelines for a local assistance fire prevention program. Even with these additional resources and attention, high-severity wildfires are an increasing threat in California.

1. Prescribed fire. Prescribed and managed burns is a type of vegetation management where low-intensity fires are either intentionally lit or allowed to burn in specified weather conditions and in a way that is consistent with a preapproved plan (known as a burn plan) to treat a specified area. The prescribed or managed fire eliminates hazardous surface fuels and achieves other important ecological outcomes. Prescribed and managed burning of forests increase short-term air pollution and GHG emissions in order to mitigate the risk of larger fires with significantly higher air and GHG emissions in the future. For example, recent research has shown that had the land associated with the Rim Fire, a >250,000-acre fire in the Sierra Nevada in 2013, been intentionally managed for resource objectives, the impact could have been five times less. Further, the GHG emissions from the Rim Fire were substantial, releasing an amount equivalent to the annual GHG emissions from 2.3 million vehicles or 3.2 coal-fired power plants.

For Fiscal Year 2016-17, CAL FIRE’s goal was to complete 20,000 acres of prescribed burns. CAL FIRE was only able to reach 70% of that goal. CAL FIRE plans to meet the goal this year and ramp up to 60,000 acres per year by 2030. However, 60,000 acres is far short of what is truly needed to improve forest health. Private and burns done with partnerships between CAL FIRE and other groups are needed to dramatically increase the pace and scale of treated acres. Many barriers exist to doing more private and cooperative burns. They include a lack of experienced practitioners, ability to get permits, enough burn windows, and liability concerns.

There are many places where prescribed fire is not used due to fear that it might escape and cause damage to life or property. Experts claim fire escapes are rare. According to the Little Hoover Commission, between 1996 and 2004, there were only 30 escaped fires or near misses on national forest lands. Another study looked at 16,626 prescribed fires occurring nationwide, which treated 1,971,823 acres. The study only found 14 escaped fires. Experts believe training and adhering to best practices are the best way to prevent escapes. This bill requires CAL FIRE to develop a training and certification program. Currently, no state agency trains or certifies prescribed burn managers. There are several proposals to have the Board, State Fire Marshal (SFM), or CAL FIRE train and certify burners. It might make sense to develop a collaborative process that reviews what other states and the federal government have done. This bill may also unintentionally authorize CAL FIRE to issue a permit for the use of prescribed fire to combat wildfires. Land owners and private prescribed fire practitioners should be able to use prescribed fire to reduce fire risk not to fight fires.

1. Liability. According to Insurance Commissioner Dave Jones, as of January 31, 2018, insurers had received nearly 45,000 insurance claims totaling more than $11.79 billion in losses from the devastating 2017 wildfires. These costs are for property damage, but there will also be other claims for injuries and death. Insurance companies and others suffering damages will seek to recover from whoever is declared responsible for those wildfires. Therefore, landowners that allow prescribed fire and those conducting the prescribed fire could be liable for a significant amount of money if a fire escaped and became a significant wildfire. Current law states that if one uses prescribed fire and it escapes, negligence is accepted by the users unless proven otherwise. This bill reserves that principle and states that if a prescribed burn is done with valid authorization and adhering to law the user is not negligent unless proven otherwise. This might make it more difficult to recover damages from a prescribed fire, but also might encourage more prescribed fire, reducing overall wildfire risk.

When CAL FIRE conducts prescribed burns they self-insure and agree to cover any liability. Any other party that is part of a CAL FIRE prescribed fire contract is liable for their activities on the operation. There are insurance policies for private prescribed fire operations; however, they are expensive and can sometimes only cover up to $5 million in damages. While for most prescribed fire operation the chance of an escape resulting in major damage is extremely low, the liability risk is a major barrier. Eliminating liability, as other states have done, from property owners and their agents conducting prescribed fire also has drawbacks including exacerbating the availability and affordability of home owner insurance in high-risk fire areas and leaving injured parties without compensation.

This bill eliminates liability for property owners and their agents conducting a prescribed burn unless negligence is proven. The bill requires CAL FIRE, a year after the liability exemption takes place and only if it has funding to do so, to secure an insurance policy to cover damages that the property owner is no longer liable for. However, the liability exemption will take effect even if CAL FIRE does not develop an insurance policy. This would likely leave injured parties without compensation for at least a year. In addition, it is unclear what prescribed fire operations would be covered under the insurance policy and whether CAL FIRE would be required to provide compensation even if there was negligence by the property owner or his or her agent. If CAL FIRE does secure the insurance policy how much will that cost? When will CAL FIRE receive funding for the insurance policy and where will the funding come from? Could resources be more cost effective devoted to CAL FIRE conducting fuels reductions directly? This bill does not answer those questions and may have serious unintended consequences.

1. Related legislation.

AB 1956 (Limón) establishes a fire prevention working group and a local assistance grant program to improve fire prevention in California and ensures that fire prevention activities happen year round. The bill passed out of this committee on a 10-0 vote and is now awaiting hearing in the Assembly Appropriations Committee.

AB 2091 (Grayson) renames the Board as the Board of Forestry and Fire Prevention and Protection. This bill requires the Board to develop a certified specialist for prescribed burning or accept a public agencies certification program if it is created. This bill requires, on or before January 1, 2020, CAL FIRE to develop and implement an insurance pool for prescribed burn managers. The bill passed out of this committee on a 9-0 vote and is now awaiting hearing in the Assembly Appropriations Committee.

AB 2518 (Aguiar-Curry) requires CAL FIRE, in collaboration with the Board to explore markets, including export markets, for milling, development, and expansion of innovative forest products and mass timber, as defined, that are consistent with the state’s climate objectives on forest lands. This bill will also be heard by this committee on April 16.

AB 2551 (Wood) requires CAL FIRE to establish, implement, and administer the Forest and Wildland Health Improvement and Fire Prevention Program (Program). The bill requires CAL FIRE to implement the Program to promote forest and wildland health, restoration, and resilience and improve fire prevention and preparedness throughout the state. The bill would also require that not less than 18% of all moneys in the GGRF be made available annually, upon appropriation in the annual budget act, to CAL FIRE for projects implementing the Program. This bill is awaiting hearing in this committee.

AB 2911 (Friedman) requires the SFM to recommend updating building standards for site and structure fire risk reduction. This bill extends and clarifies the Board’s review process of local government’s safety elements to strengthen state and local collaboration on fire-risk reduction. This bill authorizes CAL FIRE to permit any property owner to construct a fire break if deemed necessary to protect life, property, and natural resources. This bill extends the distances and types of vegetation management required for power lines in the State Responsibility Area. This bill will also be heard by this committee on April 16.

SB 1260 (Jackson) is an omnibus fire prevention and forestry management bill intended to promote long-term forest health and wildfire resiliency. This bill is awaiting hearing in Senate Natural Resources and Water Committee.

1. Double Referral. This bill is also referred to the Assembly Judiciary Committee.

REGISTERED SUPPORT / OPPOSITION:

Support

Butte County Fire Safe Council
Central Coast Rx Fire Council

California Licensed Foresters Association
Civil Justice Association of California
Sacramento River Watershed Program
Sonoma County Agricultural Preservation and Open Space District

Opposition

Consumer Attorneys of California

Analysis Prepared by: Michael Jarred / NAT. RES. /