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2014-05-01

Texas Land Notes - prescribed land burns

By James Carter Special to the Courier

Photo by DK Langford
BEFORE: Fall colors before an escaped, prescribed burn on land in Kendall County

Photo by DK Langford
AFTER: Same property after a wildfire occurred at the same time of the year. Note the lack of coloring leaves and general absence of vegetation.

By James Carter Special to the Courier

(Texas Land Notes is written by James Carter, a San Antonio attorney with Drought, Drought & Bobbitt, who focuses on land, mineral rights and estates. He can be reached at jwc@ddb-law.com or 210-225-4031.)

Every year, landowners conduct prescribed burns with the best of intentions. And every year, some of these fires escape and become out of control wildfires, which occasionally cause significant damage. One only need look to the 2011 central Texas wildfires to see the potential for serious, and costly, property loss. For landowners, there are simple and cost effective methods to completely avoid liability.
If the legal guidelines are followed, state law limits landowner liability for damage to others caused by a prescribed burn on agricultural land. These liability limitations should not be overlooked given the generally hot, dry (and often unpredictable) weather conditions in Texas.
An out of control fire during dry, windy conditions is a dangerous proposition for any landowner, not to mention for firefighters and anyone in the fire's path. Sometimes, out of control fires begin as prescribed burns that ignite in less than ideal conditions. In particularly hot burning fires, the land can take years to recover from the damage, if it ever does.
The destruction to property and plant life after a fire will yield both serious and visible damage; yet, periodic wildfires are a natural part of the ecosystem. Native plants are adapted to survive and even thrive when a burn is part of a naturally occurring event. Like wildfires, and when handled correctly, prescribed burns can result in net gains for the landowner. A "properly managed" prescribed burn is a valuable tool to lessen the negative impact of wildfires, to remove invasive plant species, and to improve conditions for indigenous plants and animals.
The key to avoiding liability is "proper management." Recognizing the need for basic training to ensure "proper management," the Texas Department of Agriculture conducts a prescribed burn program. Through this program, the state trains and oversees the certification of prescribed burn managers.
If a landowner uses a state certified and insured prescribed burn manager, then that landowner cannot be held liable for damage to neighboring properties as a result of any escaping fire. The added bonus - such a manager will be apprised of the latest fire control methods.
To find a certified burn manager, contact the Texas Department of Agriculture or visit their website at www.texasagriculture.gov for more information. Once a qualified manager is found, double check that he or she is both certified and insured before a fire is lit in order to capitalize on the Texas Natural Resource Code protections.