By: M.L. Russell and T.D. Lashmet; Assistant Professor and Extension Range Specialist – Ecosystem Science and Management, and Assistant Professor and Extension Specialist – Agricultural Law
Throughout Texas, prescribed burning is a popular grassland management tool you can use to manage invasive brush and rejuvenate native, perennial grasses. These burns, when conducted carefully, can be used to maintain and restore native grasslands, control weeds, improve forage quality, and even prevent wildfires.
However, when not conducted in a careful manner, disaster can strike and damage can be severe and far-reaching. Anyone that contemplates using prescribed burning must consider their potential liability if the burn causes injury or property damage. Landowners should know all the requirements of prescribed burning statutes in their state—these statutes generally offer limited liability if requirements are met. Two of the key requirements for Texas’ limited liability statute involve insurance coverage and who conducts the burn.
I. Legal approaches to burn liability
There are three legal approaches to liability in the event a controlled burn causes injury or damage: ordinary negligence, gross negligence, and strict liability. Most states, including Texas, use the ordinary negligence standard for prescribed burning. The ordinary negligence standard imposes liability if a burner fails to exercise reasonable care under the circumstances of the burn. Other states that use the ordinary negligence approach include North Carolina and Alabama. The second approach is gross negligence, which generally means that liability is imposed only if the landowner acts with extreme, conscious disregard. Gross negligence states include Florida and Nevada. The third standard is strict liability, which imposes liability for damage, regardless of the level of care used by the landowner. Though very few states use this standard, those that do include Minnesota and Hawaii. An important first step for anyone considering a prescribed burn is to determine the standard followed by his or her state.
II. Limited liability statutes
In addition to which type of liability is followed in the burner’s state, a burner should also be aware of any statutory provisions related to prescribed burning. Many states, including Texas, offer limited liability to landowners if certain requirements are met.
A. Limited liability for landowners, lessees, and occupiers of land
In Texas, a statute offers limited liability to a landowner, lessee, or occupier if certain conditions are met. There is no legal requirement that a person comply with these standards to conduct a burn, but limited liability is only available if the statutory requirements are followed. Even if a landowner qualifies for limited liability under this statute, he or she should still strongly consider having a liability insurance policy in place that covers the use of prescribed burning.
There are two requirements to qualify for limited liability in Texas. First, limited liability is available only if a prescribed burn is conducted on “agricultural or conservation land.” “Agricultural or conservation land” is defined as land that is “suitable for the use and production of plants and fruits for human or animal consumption, the production of plants grown for the production of fiber, floriculture, viticulture, horticulture, or planting seed; forestry and the growing of trees for the rendering of trees into lumber, fiber, or other items used for industrial, commercial, or personal consumption; domestic or native farm or ranch animals kept for use or profit; management of native or exotic wildlife; or conservation management of an ecosystem, a forest, a habitat, a species, water, or wildlife.”
Second, to receive limited liability, the burn must be conducted under the supervision of a certified and insured prescribed burn manager (CIPBM) or by the members of prescribed burn organization (PBO).
1. Becoming a certified and insured prescribed burn manager
A CIPBM has the ultimate authority and responsibility when conducting a prescribed burn. A CIPBM must provide reasonable assurance that a prescribed burn will be confined to a predetermined area, that the effects of smoke emissions are minimized, and that a prescribed burn will be conducted in a manner that will accomplish land management objectives.
Becoming a private certified and insured prescribed burn manager requires licensing by the Texas Department of Agriculture and approval by the Prescribed Burning Board. A CIPBM must meet the minimum standards of training and experience, and maintain required insurance. Certification and renewal fees are 500 dollars for a two-year license, contingent upon annual proof of insurance and continuing fire training requirements. Applicants for certification as a CIPBM must complete a training course approved by the prescribed burn board and pass an exam. The course consists of general fire training and specialized training for the region in which the person is seeking certification, using training materials developed by the prescribed burn board. The course contains formal classroom lectures and practical field sessions, including a prescribed burn. The prescribed burn board may consider other training courses to meet the required training necessary for certification.
Regarding experience, applicants must be able to document a minimum of three years of prescribed burning within a specific region, thirty days of prescribed burning not limited by region, and five days of prescribed burning as the responsible individual.
Minimum liability insurance is also required for certification. To be certified, a CIPBM must always carry at least one million dollars of liability insurance coverage for each single occurrence of bodily injury to or destruction of property and a policy period minimum aggregate limit of at least two million dollars.
There are four types of CIPBMs, and landowners should select the type that is appropriate to the given situation. A commercial CIPBM may conduct prescribed burns for hire on any property allowed by certification. A private CIPBM may conduct burns only on property owned by, leased by, or occupied by the CIPBM or his or her employer. A not-forprofit CIPBM conducts burns on property owned or leased by a prescribed burning organization, or on property owned or leased by a person who is a member of a prescribed burning organization. Finally, a governmental CIPBM is employed by or acts on behalf of a government unit and may only conduct burns on land owned, leased, or controlled by the governmental unit.
There is an important exception included within the limited liability statute, which provides that this limited liability does not apply to a landowner, lessee, or occupant of agricultural or conservation land who is a CIPBM and conducts a burn on that land. Thus, a CIPBM who wishes to burn on his own property and have the statutory limited liability must either have another CIPBM supervise and conduct the burn, or be a member of a prescribed burn organization that meets the statutory requirements for limited liability to apply.
2. Prescribed burn organization membership
A prescribed burn organization is defined as “an entity established for the purpose of promoting the use of prescribed burning as a tool for land management.” The members of a prescribed burn association are afforded statutory limited liability when conducting burns if two conditions are met.
First, the member in charge of the burn must have completed the training curriculum approved by the Prescribed Burn Board.
Second, the PBO must carry insurance coverage of at least one million dollars of liability coverage for each single occurrence of bodily injury to or destruction of property and a policy maximum aggregate limit of at least two million dollars. Under this statute, if a prescribed burn organization does not carry this level of insurance, its members are not afforded limited liability under the statute, unless a CIPBM conducts the burn.
B. Analyzing required insurance coverage
As noted by statute, whether a burn is conducted by a CIPBM or members of prescribed burn organization, a specific level of liability insurance must be in place for a landowner, lessee, or occupier of land to receive limited liability pursuant to the Texas statute. Analyzing insurance coverage is critical for landowners, lessees, or occupiers who plan to conduct a burn, for anyone interested in becoming a CIPBM, and for members of a PBO.
Although a private landowner is not required to obtain liability insurance to conduct a burn or receive limited liability pursuant to the statute, having this coverage in place is prudent. Often, landowners may have some form of prescribed burn coverage based on their farm and ranch liability policy. Landowners must carefully review their policy, including the declarations page, policy pages, endorsements, exclusions, and limitations to determine whether this coverage is included. If prescribed burn coverage is not included, you can purchase additional policies that specifically cover prescribed burning.
Additionally, a landowner, lessee, or occupier intending to conduct a prescribed burn who wants to ensure limited liability applies should confirm that the CIBPM conducting the burn, or the PBO of which the landowner, lessee, or occupier is a member carries the required insurance coverage.
The following checklist outlines TDA’s insurance requirements for certification as a CIPBM. This list can also help landowners analyze their own policy or the policy of a PBO of which they are a member. Actual examples of coverage contained in common insurance policies are provided in Table 1.
- Coverage limits meet program requirements (one million dollars per occurrence/two million dollars aggregate) for bodily injury and property damage. This typically involves review of the “insuring agreement,” usually contained in “Coverage H” of most CGL or farm liability policies.
- The policy contains the “hostile fire” exception to the pollution exclusion, which is normally the clause that covers prescribed burning activities. Note, a contractor’s pollution liability coverage policy will usually have different language that affords coverage for prescribed burning activities. A CGL policy may include a “total pollution exclusion” but offer protection through a special endorsement that covers prescribed burning activities. Ensure that the policy covers damage resulting from heat, smoke, fumes, and other consequences of prescribed burning.
- The definition of the “insured” should be broad enough to cover the acts of the CIPBM while engaged in prescribed burning activities. Sometimes a burn manager may be named insured on the policy; sometimes a burn manager may try to qualify as an employee under a farm and ranch policy.
- “Coverage territory” or “insured premises” are broad enough to include all locations where prescribed burning activities will take place. A CGL policy submitted in support of the commercial certified insured prescribed burn manager (CCIPBM) category must offer broad coverage for any location where prescribed burning activities will take place during the policy period. A policy submitted in support of the not-for-profit certified insured prescribed burn manager (GCIPBM) and private insured prescribed burn manager (PCIPBM) categories only need to show coverage for specific named locations where the applicant will conduct burns—for example, the farm and ranch in question.
- Ensure there are no provisions that take prescribed burning activities out of coverage. Review the contents of the policy, as well as all endorsements, exclusions, and limitations. For example, a typical “forester’s” policy has a total pollution exclusion, but provides coverage for prescribed burning activities through a “forester’s endorsement.”
Prescribed burning can benefit landowners when conducted carefully and in accordance with a state’s rules. Before conducting a prescribed burn, landowners should understand their state’s liability approach. It is also important to determine if there are any burning requirements or statutes that limit liability for landowners. To qualify for limited liability in Texas, a landowner must use a CIPBM who is properly licensed and insured or be a member of an adequately insured prescribed burn organization. Further, it is critical that landowners analyze their own insurance policy and the policies of the CIPBM or PBO involved.
Finally, there is no substitute for common sense. Anyone conducting a controlled burn should use best management practices such as having and executing a well-thought-out burn plan, checking weather conditions, being aware of any forecast changes, and being in contact with neighbors and local fire departments.
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