Legal barriers to effective ecosystem management: exploring linkages between liability, regulations, and prescribed fire

Resistance to the use of prescribed fire is strong among many private land managers despite the advantages it offers for maintaining fire‐adapted ecosystems. Even managers who are aware of the benefits of using prescribed fire as a management tool avoid using it, citing potential liability as a major reason for their aversion. Recognizing the importance of prescribed fire for ecosystem management and the constraints current statutory schemes impose on its use, several states in the United States have undertaken prescribed burn statutory reform. The stated purpose of these statutory reforms, often called “right to burn” or “prescribed burning” acts, is to encourage prescribed burning for resource protection, public safety, and land management. Our research assessed the consequences of prescribed burn statutory reform by identifying legal incentives and impediments to prescribed fire application for ecosystem restoration and management, as well as fuel reduction. Specifically, we explored the relationship between prescribed burning laws and decisions made by land managers by exploiting a geographic‐based natural experiment to compare landowner‐prescribed fire use in contiguous counties with different regulations and legal liability standards. Controlling for potentially confounding variables, we found that private landowners in counties with gross negligence liability standards burn significantly more hectares than those in counties with simple negligence standards (F₆,₇₂ = 4.16, P = 0.046). There was no difference in hectares burned on private land between counties with additional statutorily mandated regulatory requirements and those requiring only a permit to complete a prescribed burn (F₆,₇₂ = 1.42, P = 0.24) or between counties with burn ban exemptions for certified prescribed burn managers and those with no exemptions during burn bans (F₆,₇₂ = 1.39, P = 0.24). Lawmakers attempting to develop prescribed burning statutes to promote the safe use of prescribed fire should consider the benefits of lower legal liability standards in conjunction with regulatory requirements that promote safety for those managing forests and rangelands with fire. Moreover, ecologists and land managers might be better prepared and motivated to educate stakeholder groups who influence prescribed fire policies if they are cognizant of the manner in which policy regulations and liability concerns create legal barriers that inhibit the implementation of effective ecosystem management strategies.