US Forest Service Prescribed Burn Started New Mexico Wildfire

If DEP Started Wildfire Burned Down Your Home, You Could Not Sue To Recover Damage

NJ Law Quietly Exempted Liability For Property Damage From Prescribed Burns

Why is DEP willing to expand the use of risky prescribed burns – with damage liability exempted – yet they totally reject much less damaging and risky management strategies, like limiting new development in extreme wildfire hazard areas and requiring fireproofing of existing development in those risky areas?

A major wildfire now burning in New Mexico – the largest active fire in the country – was started by the US Forest Service (USFS).

A USFS “prescribed burn” got out of control.

A lot of people are pissed off: (listen to the entire TV news video – here’s an excerpt):

NM lawmakers frustrated with US Forest Service’s role in starting Hermits Peak Fire

Sen. Ben Ray Luján shared his frustration with the U.S. Forest Service’s role in starting the Hermits Peak Fire, which now, combined with the Calf Canyon Fire, is the largest active fire in the country.

“I know that week, where I live, my brother was going to burn the acequias as we were cleaning it, and so sometimes you burn that vegetation off, so you can get a cleaner cut with that shovel,” he said. “Well, we were told by the local fire department, no burning, there were fire restrictions.”

That was the same week the Forest Service started a prescribed burn in Santa Fe National Forest, which has since grown out of control to more than 160,000 acres.

“It makes zero sense to me, and this is also something we have to get to the bottom of,” Sen. Luján said. “I’m terrified that this is the new normal with wildfire behavior across the West.”

He added that state leaders are doing everything they can to hold the federal agency accountable.

“There is a real federal liability here,” said New Mexico Governor Michelle Lujan Grisham in a recent interview with KOB 4.

Congresswoman Teresa Leger Fernandez sent the Forest Service a letter, asking if there has been an investigation, what protocols are in place to prevent a controlled burn from getting out of control, and when those protocols were last updated.

According to officials, the USFS prescribed burn was deemed “safe” by the USFS fire model.

The New Mexico US Forest Service “prescribed burn” wildfire sheds light on the risks of prescribed burns and the resulting liability issues.

Don’t think accidents can’t happen here – for example, in 2013, smoke from a DEP prescribed burn resulted in the death of a firefighter. I wrote:

The death of a fireman was caused during a prescribed burn last year at round Valley Reservoir sheds new light on these risks, see: Prosecutor: Thick smoke blinds driver who hit, killed N.J. fireman at Round Valley].

DEP refused to respond to my OPRA data request regarding data on how many NJ prescribed burns got out of control and caused damage. So we don ‘t know how often it happens here and what the damage is.

Despite these risks, remarkably, the NJ legislature in 2018 eliminated liability for damages caused by a “prescribed burn” that got out of control.

I recently warned about that:

Worse, the 2018  Prescribed Burn Act exempts “prescribed burns” from air pollution permit and compliance requirements and provides exemptions from liability for air pollution impacts (e.g. like sending you asthmatic kid to the hospital).

4) With so many people and so much property at risk from wildfire, why did DEP support legislation that eliminated liability for wildfires caused by poorly managed “prescribed burns”?

The Prescribed Burn Act, specifically see C.13:9-44.16 Prescribed burn deemed to be in public interest; immunity from liability, also exempts wildfires caused by prescribed burns that get out of control and damage people and property (e.g. your barn or house burns down or you animals killed).

Despite the New Mexico prescribed burn disaster which illustrates the poor public policy of the liability exemption in NJ law that lets DEP off the hook for damages they may cause, just yesterday, as the New Mexico fired burned, the Murphy DEP doubled down on the use of “prescribed burns”. see:

• Murphy DEP Denies Climate Wildfire Risk Petition

DEP wrote to note that the causes of a “wildfire” include an out of control “prescribed burn”:

A wildfire or “wildland fire” is defined as “any non-structural fire that occurs in the wildland,” which can be naturally occurring, human-caused, or prescribed and occur in forested, semi-forested, or less developed areas.  Hazard Mitigation Plan at 5.12-2. 

Completely ignoring the risks of an out of control “prescribed burn” and with no mention of the ill-advised the liability relief in NJ law, DEP then touted the benefits of prescribed burn and committed to expanding them:

Each year the Department conducts prescribed burns to reduce forest fuels and undergrowth that contribute to wildfire starts and spread. The prescribed burn program has expanded over time to include both public and private forests. In 2021, the Department conducted prescribed burns on 17,936 acres. For the 2022 season, the Department is targeting a program covering 20,000 to 25,000 acres. 

Just beware that if a DEP prescribed burn” get out of control and burns down your house or barn, you are SOL.

Did you know that?

Did the NJ media report that?

Are you OK with that?

Why is DEP willing to expand the use of risky prescribed burns, yet they reject much less damaging and risky management strategies, like limiting new development in extreme wildfire hazard areas and requiring fireproofing of existing development in those risky areas?