According to state code Section 9-13-11, a burn manager must obtain a permit from the Alabama Forestry Commission and take “reasonably necessary precautions” to avoid fire escape. Specifically, the “area surrounding said material to be burned shall be cleared of all inflammable material for a reasonably safe distance in all directions and maintained free of all inflammable material so long as such fire shall continue to burn”. The criteria for “reasonably safe distance” would likely depend on factors such as fuel levels and arrangement and weather, with elevated heavy fuels needing more distance than light understory fuels. Of course, plowing multiple fire lanes would probably be considered an excessive burden, so under the concept of reasonable precautions, the burner would probably be expected to conduct the fire such that huge fire lanes would not be required (e.g. burning away from the fire lanes). While not stated explicitly in the section, the Commission expects adequate personnel and equipment to be present since this is required information when applying for a permit. In addition, the burn manager is expected to remain with the fire until it is “dead out”, although the code does not specify that there must be no smoke from debris, or just no open flames. Section 9-13-13 mandates that unless measures (“all possible care and precaution”) are taken to prevent fire escape, the landowner is responsible for ensuring that all neighbors are given written notices of the intended burn at least five days before. Since Section 9-13-11 already requires firelanes and reasonable precautions, notification of neighbors is probably not required by law and there is nothing on the Commission website (www.forestry.state.al.us) that suggests otherwise. However, given the importance of cooperation and good relations with neighbors, notification is still recommended. Finally, Alabama has official smoke management guidelines contained within the Guide to Prescribed Burning in Alabama, although these are non-regulatory unless the burn manager wishes to be protected under the Prescribed Burning Act.
Under Section 9-13-12, if the burn manager loses control of the fire while it is still onsite and the fire has to be extinguished by the state, the burn manager can be liable for the suppression costs. If firelanes were not used, then both the landowner and the burn manager are liable for Class B misdemeanors under Section 9-13-11. If the burn escapes and the State decides that reasonable precautions in addition to firelanes were not taken, the burner and landowner can be charged with a Class B misdemeanor under the same Section.
If a burn manager only follows the guidelines of the previous sections, there is no liability protection for fire or smoke damage if the burn escapes. The Prescribed Burning Act was designed to promote prescribed burning with increased liability protection. Section 9-13-273 of the Act provides increased protection from fire and smoke liability if a state-certified fire manager conducts the burn using a notarized fire prescription. This prescription would entail additional restrictions and requirements, including the use of smoke guidelines. However, the language used in the Act is somewhat vague and may be of limited use in a lawsuit; although as of March 2006, there have been two court cases in Baldwin County where the Act’s protection was been upheld. The section states that “no property owner or his or her agent, conducting a prescribed burn in compliance with this article shall be liable for damage or injury caused by fire or resulting smoke unless it is shown that the property owner or his or her agent failed to act within that degree of care required of others similarly situated”. The “degree of care” criteria might be thought of as common standards of experienced and competent burn managers and since Alabama provides official guides on prescribed burning and smoke management, these could be expected to form the standards. Unlike most Southern states, Alabama does not use the written criteria of simple or gross negligence in the Act, although according to L. Louis Hyman, Assistant Division Director of the Commission’s Fire Division, the act’s wording is the Alabama common law definition of simple negligence.
Note: the Alabama Forestry Commission provides a PDF on Forestry and Related Laws that contains all relevent statues, but without intrepetation.
Title 9. Conservation and Natural Resources. (Entire title)
Chapter 13. Forests and Forest Products. (Entire chapter)
Article 1 General Provisions.
9-13-12. (Uncontrolled fires declared public nuisances; liability for refusal or neglect to control or extinguish same.)
9-13-13. (Setting on fire, etc., of woods, etc., without written notice to adjacent landowners.)
Article 11 Prescribed Burning.
9-13-273. (Liability for damage caused by fire; requirements; rules and guidelines; fees for certification or training.)
9-13-274. (No certification as prescribed burn manager required in certain circumstances.)
Section 9-13-11. (Willful, malicious or intentional setting on fire, etc., of woodlands, grasslands, etc.; burning permits; fire alerts; placement of areas under organized forest fire protection; disposition of fines, etc.)
(a) It shall be a Class C felony for every person, firm, association, or corporation who:
(1) Willfully, maliciously or intentionally burns, sets fire to, or causes to be burned or any fire to be set to any forest, grass, woodlands, or other inflammable vegetation on any lands not owned, leased, controlled, or in the lawful possession of the person, firm, association, or corporation setting such fire or burning such lands or causing such fire to be set or lands to be burned;
(2) Shall have in his or her possession or shall set, throw or place any device, instrument, or paraphernalia in or adjacent to any forest, grass, woodlands, or other inflammable vegetation, which forest, grass, woodland or other inflammable vegetation is not owned, leased, controlled, or in the lawful possession of the person possessing such device, instrument, or paraphernalia.
(b) It shall be a Class B misdemeanor for any person, firm, association, or corporation:
(1) Who allows a fire to escape from land owned, leased, or controlled by him or her, whereby any property of another is injured or destroyed;
(2) Who shall burn any brush, stumps, logs, rubbish, fallen timber, grass, stubble, or debris of any sort, whether on one's own land or that of another, without taking reasonably necessary precautions, both before lighting the fire and all times thereafter to prevent the escape thereof;
(3) Who shall set fire to any brush, stumps, logs, rubbish, fallen timber, grass, stubble, or debris of any sort within or near any forest or woodland, unless the area surrounding said material to be burned shall be cleared of all inflammable material for a reasonably safe distance in all directions and maintained free of all inflammable material so long as such fire shall continue to burn;
(4) Who shall set a fire within or near any forest, woodland, or grassland without clearing the ground immediately around it free from material which will carry fire, or shall leave such fire before it is totally extinguished or start a fire in any forest, woodland, or grassland by throwing away a lighted cigar, cigarette, match or by the use of firearms or in any other manner and leave the same unextinguished;
(5) Who shall destroy, remove, injure, or deface any fire warning or notices or deface any inscription or devices comprising such notices;
(6) Who shall burn any new ground, field, grasslands, or woodlands, or adjoining woodlands or grasslands of another within any area which has been placed under organized forest fire protection by the State Forestry Commission without first obtaining verbal authorization from the State Forestry Commission by obtaining a burning permit number.
(c) (1) Burning permits may be obtained from the district operations center when the center is in active operation. The following criteria must be met:
a. The person requesting the permit must have adequate tools, equipment, and manpower to stay with and control the fire during the entire burning period.
b. The person requesting the permit is responsible to keep the fire confined.
c. In no case will the person requesting the permit allow the fire to be unattended until it is dead out.
(2) Burning permits will be issued if the individual requesting the permit states that the above criteria will be met unless the State Forester shall declare a fire alert. Under fire alert conditions the State Forester may allow issuance of permits at his or her discretion, taking into account the number of fires burning in the district, current and projected weather conditions, the ability of the person seeking the permit to contain the fire and that individual's knowledge of fire behavior, and other factors which may affect fires and fire behavior. A fire alert will be issued by the State Forester for any district or portion of a district that in the opinion of the State Forester, has existing conditions which produce extraordinary danger from fire or smoke.
(3) If subsequent to issuance of a permit a lawfully authorized fire escapes to the lands of another and an investigation reveals that the permit holder did not meet all the criteria as set forth above, the fire will be treated as if no legal authorization had been obtained.
(4) A burning permit once issued may be revoked if the person requesting the permit fails to comply with proper burning procedures or if weather conditions develop which may result in erratic fire or smoke behavior.
(d) An area shall be deemed legally placed under organized forest fire protection by the State Forestry Commission of the State of Alabama upon proclamation of the State Forester. Such proclamation shall describe the lands placed in said area and shall be published once a week for two consecutive weeks in a newspaper published in the county where the lands composing said area are located. If there are no newspapers published in the county where said lands are located, then said proclamation shall be published in a newspaper of an adjoining county. In the event the lands composing said area are located in more than one county, such proclamation shall be so published in a newspaper in each county where said lands are located. Beginning with the twelfth day after the first publication of said proclamation in said newspaper or newspapers, the lands described in the proclamation shall be deemed in an area under organized forest fire protection. Upon the trial of any person, firm, or corporation for the violation of any provision of this section, a certified copy of said proclamation executed by the State Forester shall be admissible in evidence and shall be conclusive evidence of the fact that the lands described in said proclamation constitute an area under organized forest fire protection within the meaning of this section.
(e) All moneys collected for any violation of this section as fines, forfeitures, etc., shall go to the Alabama Forestry Commission Fund and shall be used in defraying the expense of the administration of such State Forestry Commission.
[Class B misdemeanor for burn manager and landowner for not constructing fire lanes or allowing fire escape. Permits are required for burning.]
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Section 9-13-12. (Uncontrolled fires declared public nuisances; liability for refusal or neglect to control or extinguish same.)
Any fire burning uncontrolled on any forested, cutover, brushland or grassland area is hereby declared to be a public nuisance by reason of its menace to life and property. Any person, firm, association or corporation responsible either for the starting or the existence of such fire is hereby required to make a reasonable effort to control or extinguish it as soon as he has knowledge thereof, and if such person, firm, association or corporation shall refuse or neglect to do so, any organized fire suppression force may suppress the nuisance thus constituted by controlling and extinguishing the fire, and the cost thereof may be recovered from said person, firm, association or corporation responsible for the starting or existence of such fire.
[If an onsite fire has to be controlled by the state, the burn manager will be liable for the suppression charges. Since the Section uses the terms “either” and “or” for responsibility, this suggests that the landowner is not held responsible unless they are the burn manager]
Section 9-13-13. (Setting on fire, etc., of woods, etc., without written notice to adjacent landowners.)
Any person or corporation who shall set fire to or procure another to set fire to any woods, logs, brush, weeds, grass or clearing upon his or its own land without giving adjacent landowners five days' written notice of such intention to do so, unless he or it shall have taken all possible care and precaution against the spread of such fire, shall be guilty of a misdemeanor.
[Unless measures are taken to prevent fire escape, the landowner is responsible for ensuring that all neighbors are given written notices of the intended burn at least five days before.]
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Section 9-13-273. (Liability for damage caused by fire; requirements; rules and guidelines; fees for certification or training.)
(a) No property owner or his or her agent, conducting a prescribed burn in compliance with this article, shall be liable for damage or injury caused by fire or resulting smoke unless it is shown that the property owner or his or her agent failed to act within that degree of care required of others similarly situated.
(b) Prescribed burning conducted in compliance with this article shall be considered in the public interest if it meets all of the following requirements:
(1) It is accomplished only when at least one certified prescribed burn manager is supervising the burn or burns that are being conducted.
(2) A written prescription is prepared and witnessed or notarized prior to prescribed burning.
(3) A burning permit is obtained from the Alabama Forestry Commission.
(4) It is conducted pursuant to state law and rules applicable to prescribed burning.
(c) The Alabama Forestry Commission may promulgate rules for the certification of prescribed burn managers and guidelines for a prescribed burn prescription.
(d) The Alabama Forestry Commission may charge and collect fees and other payments from persons applying for certification or training as a prescribed burn manager as may be necessary to provide training required for certification as a prescribed burn manager and to carry out other administrative aspects of this article; however the expenditure of any fees charged by the Forestry Commission under this subsection shall be budgeted and allotted pursuant to the Budget Management Act and Article 4 of Chapter 4 of Title 41.
[If a state-certified burn manager conducts the fire with a notarized prescription, they have limited liability protection for offsite fire and smoke damage unless common practices (“degree of care”) were not followed]
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Section 9-13-274. (No certification as prescribed burn manager required in certain circumstances.)
Nothing in this article shall be construed as requiring certification as a prescribed burn manager in order to conduct burning operations on one's own property or on the lands of another with the landowner's permission as long as applicable state laws and rules relating to prescribed burning are complied with.
Webpage was last updated on 31 January 2007 by D. Marshall, UGA
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