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Prescribed Burning of Land in Florida

February 9, 2018 Construction Industry Legal Blog

Reading Time: 4 minutes

The legislature has recognized the importance of prescribed fire as a land management tool that benefits the safety of the public, the environment, and the economy of Florida.  Prescribed burning can present complex legal issues touching on property rights, safety concerns, public health, negligence and regulatory hurdles.

Prescribed burning is essential to the perpetuation, restoration, and management of many plant and animal communities.  Prescribed burning reduces vegetative fuels within wild land areas. The control of this excess fuel load reduces the risk and severity of wildfire, thereby reducing the threat of loss of life and property in Florida, particularly in urban areas.  Forestland and rangeland constitute significant economic, biological, and aesthetic resources of statewide importance. Burning on forestland prepares sites for reforestation, removes undesirable competing vegetation, expedites nutrient cycling, and controls or eliminates certain forest pathogens. On rangeland, prescribed burning improves the quality and quantity of herbaceous vegetation necessary for livestock production.

590.125, Florida Statutes defines “Prescribed burning” as the application of fire by broadcast burning for vegetative fuels under specified environmental conditions, while following appropriate measures to guard against the spread of fire beyond the predetermined area to accomplish the planned fire or land management objectives.  In planning the burn under the statute, there must be a burn plan or “prescription” prepared and filed.  A prescription is a written plan establishing the conditions and methods for conducting a certified prescribed burn.  The Florida Division of Forestry has prepared information and regulations regarding the burn plan preparation.  In addition, there are certain education course that can be taken to achieve the status of Florida Certified Prescribed Burn Manager.  These courses are designed to train individuals in public and private agencies that are charged with the responsibility of performing prescribed burns.

Regardless of how important prescribed fire may be for the natural health of Florida, the fact remains that setting a fire is inherently dangerous.  In Midyette v. Madison 599 So.2d 1126 (Fla. 1990) the Supreme Court of Florida ruled that: 1) setting a fire is an inherently dangerous activity; 2) a landowner is liable for damages to others for negligence in setting or maintaining that fire; 3) liability is not delegable to an independent contractor who is actually conducting the burn and; 4) a landowner wishing to use fire to manage forest land, native pastures, or to clear land must know what accepted forestry or burn standards are and be certain they are applied during the burn.

Anyone who violates the laws and regulations dealing with prescribed burning is civilly liable for any damages that occur under Section 590.13, Florida Statutes.  However, a property owner or leaseholder or his or her agent, contractor, or legally authorized designee and who has a prescribed burn plan is not liable pursuant to Section 590.13 for damage or injury caused by the fire, including the re-ignition of a smoldering, previously contained burn, or resulting smoke unless gross negligence is proven.  Gross negligence can also open the door to a claim of punitive damages under Section 768.72, Florida Statutes. The intentional or reckless setting of fire is a felony in Florida.

Since prescribed burning is considered to be in the public interest, it will not constitute a public or private nuisance when conducted under applicable state air pollution statutes and rules. Considerations of sovereign immunity are also at play with prescribed burning as The Florida Forest Service may not liable for burns for which it issues authorizations.  Prior to igniting the burn, Florida law requires that an authorization to burn be obtained from the Florida Forest Service and a written prescription be prepared before receiving the authorization to burn. There must be adequate firebreaks at the burn site and sufficient personnel and firefighting equipment to contain the fire within the authorized burn area.  During the burn, the operations may only commenced when a certified prescribed burn manager is present on site with a copy of the prescription and directly supervises the certified prescribed burn until the burn is completed.

Given the inherent danger with igniting forestland and rangeland in Florida, careful attention should be given not only to environmental and weather conditions, but also to the regulatory and legal implications to setting a prescribed burn.

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