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WILDFIRE IN FLORIDA: ISSUES OF LAW AND FORESTRY PRACTICES

A REPORT TO THE CITY OF WALDO, FLORIDA

JUNE, 2001

UNIVERSITY OF FLORIDA CONSERVATION CLINIC

J. Morgan Varner, Ph.D. Candidate, Ecology Program David Steinau, J.D. Candidate

Professor Thomas T. Ankersen, Conservation Clinic Director Professor F. E. Putz, Department of Botany, Faculty Advisor

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TABLE OF CONTENTS Executive Summary and Conclusions Introduction: Wildfire in the Contemporary Landscape I. Wildfire Damage in Waldo and northern Florida in 1998 II. Fire: Causes and Changes Following European Settlement III. Potential Management-Based Solutions to the Wildfire Problem

A. Existing stands B. Afforestation IV. Firewise Communities and �Fire-Safe Forestlands� Introduction: Legal, Regulatory, and Land Use Planning Issues Related to Wildfire Overview of Issues Addressed V. Why the use of Prescribed Fire and other Fuel Management Techniques is not moreWidespread

A. The Fear of Liability Discourages the Use of Prescribed Fire B. The Lack of Liability for Failing to Use Prescribed Fire: No Legal

Motivation Exists for Landowners to Burn VI. Legal Status of Prescribed Fire in Florida before 1990: Legal to Burn, High Risk of Liability VII. The Florida Prescribed Burning Act of 1990

A. Background, Legislative Findings and Purpose: A Strong Statement in Favor of Prescribed Burning

B. Liability and Nuisance Provisions: Strong Protection for Certified Burners

1. General Provisions

2. Authorized Burning

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3. Certified Burning

4. Comparison of Certified and Authorized Burning, Effect on Liability

C. State Conducted Prescribed Burning: DOF Authorized to Burn Private Land

VIII. Local Government Measures Requiring or Encouraging Prescribed Burning

A. Statewide Trend Favors Use of Prescribed Fire

B. City of North Port Ordinance : Underbrush Build-Up Prohibited, Government-Conducted Burning Authorized

C. Flagler County Ordinance: Wildfire Hazard Defined, Burning by DOF and

County Authorized

D. Effectiveness of Local Regulation Limited by the Florida Right to Farm Act

E. Air Pollution Concerns May Limit the Amount of Prescribed Burning That Can be Conducted in a Local Jurisdiction

IX. Common-Law Liability for Failure to Conduct Prescribed Burning: No Duty to Burn, No Liability for Not Burning X. Efforts to Protect Communities from Wildfire without Regulating Forest Management

A. The Firewise Communities Program B. Wildfire Mitigation Objective in Proposed Conservation and Open Space Element of the Alachua County Comprehensive Plan

XI. Conclusions and Recommendations

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WILDFIRE IN FLORIDA: ISSUES OF LAW AND FORESTRY PRACTICES

A REPORT TO THE CITY OF WALDO, FLORIDA

JUNE, 2001

UNIVERSITY OF FLORIDA CONSERVATION CLINIC

J. Morgan Varner, Ph.D. Candidate, Ecology Program

David Steinau, J.D. 2001

Professor Thomas T. Ankersen, Conservation Clinic Director Professor F. E. Putz, Faculty Advisor, Department of Botany

Executive Summary and Conclusions The University of Florida Conservation Clinic is an interdisciplinary legal clinic housed in the Center for Governmental Responsibility at the University of Florida Levin College of Law. The Clinic provides applied educational opportunities to graduate and law students at the University of Florida by offering its services to government entities, not-for-profit private organizations, and individuals pursuing conservation objectives. The City of Waldo sought the Clinic�s assistance with the challenges wildfires present to local governments in Florida. A law student and an ecology doctoral student from the Clinic researched issues of timberland management and state and local law related to wildfire in Florida. The Clinic team�s findings and conclusions are summarized below. In addition, the Clinic, the City of Waldo, The Forest Management Trust, and the University�s School of Forest Resources and Conservation sponsored a workshop entitled �Wildfire in Florida�s Forests: Issues of Law and Management�. The workshop brought forestry, fire, legal, and planning experts together to examine the difficulties Waldo and communities throughout Florida face in attempting to cope with the threats posed by wildfire in an increasingly fragmented silvicultural landscape. The conclusions and recommendations provided in this report represent the opinions of the Clinic and not the workshop�s other sponsors or participants. This report addresses the relationship between wildfire and forest management in northern Florida, especially its effect on rural communities. Utilizing a case study from Waldo, the site of a devastating 7,000 acre wildfire in 1998, we review forest management, legal, land use planning, and community measures that have the potential to reduce future wildfire risk while maintaining forestry as a dominant land use. Potential management measures include increased use of prescribed burns in adjacent lands, increased use of chemical and mechanical vegetation control, increased

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harvest of pine straw, increased intermediate stand management, and improved fire management planning and infrastructure. Potential legal and planning measures include fuels management zoning, greater incentives for fuel management, especially prescribed burning, the elimination or reduction of current disincentives to prescribed burning, ecological services subsidies for natural forest management, local ordinances and comprehensive plan language reinforcing prescribed burning and deterring residential sprawl in forested areas, and deterring sprawling development in forested areas. A recommended community-sponsored measure was certification of rural forestland communities in the FireWise Program and fuel management education. This three-tiered approach: forestland management; planning; and community-based measures, will be necessary to protect rural forestland communities while encouraging continuation of forestry as a dominant land use in north Florida. The accumulation of flammable underbrush on intensively managed forestland and on fallow platted land greatly increases the risk and severity of wildfire in the pine forests of the southeastern United States. Before widespread human efforts at fire prevention and development, fires that occurred every few years controlled the build up of underbrush. These frequent fires were generally �surface fires� that destroyed only the flammable underbrush and not �crown fires� which destroy pine trees. Intensification of management techniques in pine plantations have resulted in widespread abandonment of prescribed burning practices on commercial forestland. Indeed, the natural north Florida pine forest depends on fire for its ecological health. Human intervention has disrupted this natural burning regime, leading to greater accumulations of flammable material in wooded areas, potentially devastating wildfires, and diminished ecological services. Prescribed burning reduces the risk and severity of wildfire by replicating the frequent surface fires that once eliminated fuel build-up in the forests. Prescribed burning also provides a valuable ecological service by mimicking presettlement ecological processes. Unfortunately, prescribed burning no longer represents a significant management tool on intensively managed silvicultural lands such as those around Waldo. Liability concerns, changed industry practices, changed and changing land ownership and land use patterns, and the lack of meaningful incentives have all but eliminated the use this valuable forest management tool on private lands in Florida. Although prescribed burning is encouraged by law, economic and regulatory factors have proved to be even greater disincentives to its use. The Florida Prescribed Burning Act encourages the use of prescribed fire by providing significant liability protection. However, Florida law does not require the use of prescribed burning or any other method of fuel reduction on private land. The Florida Division of Forestry is authorized by statute to conduct prescribed burning of private land, even without the owner�s consent in some circumstances. Likewise, some local governments in Florida have considered ordinances requiring prescribed burning of

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land determined to be a wildfire hazard. These tools have generally been directed toward fallow woodlands that persist in platted residential subdivisions at the wildland -urban interface rather than lands in active forest management. In addition, local governments authority to regulate forest management practices has been constrained by recent amendments to the Florida Right to Farm Act. Moreover, Florida law does not currently provide a private cause of action against landowners for contributing to the risk of wildfire by failing to manage woodlands. The Firewise Communities Program provides examples of what steps local governments can take to make themselves safer from wildfires. The program�s �defensible space� construction and landscaping guidelines should be incorporated into local governments� land development regulations. The proposed Conservation and Open Space Element of the Alachua County Comprehensive Plan contains policies on wildfire mitigation. If adopted, these policies could help reduce the risk and severity of wildfire in Waldo and throughout the county. Finally, consideration needs to be given to providing forest landowners with appropriate incentives and subsidies to reintroduce prescribed fire as the preferred fuel and forest management tool in North Florida. State and local conservation land acquisition programs, particularly those that permit continued productive use of forestland while fulfilling their conservation purpose, should be aggressively pursued. It is also abundantly clear that when it comes to fires like the 1998 Waldo fire, the City of Waldo, and similarly situated incorporated rural communities, remain at the mercy of forest management activities and regulatory programs outside of their political jurisdiction. Accordingly, the City should participate in the planning and regulatory processes of state and local government related to wildfire and forest management to ensure that the City�s interests are adequately addressed.

I. WILDFIRE DAMAGE IN WALDO AND NORTHERN FLORIDA IN 1998

• BETWEEN JUNE 15 AND JULY 15, 1998 WILDFIRES IN FLORIDA CAUSED 204 INJURIES, THOUSANDS OF EVACUATIONS, 337 DAMAGED HOMES, 450,000 BURNED ACRES AND TOTAL DAMAGES OF APPROXIMATELY 640 MILLION DOLLARS.

• WILDFIRES IN THE VICINTY OF WALDO IN 1988 BURNED 7,000 ACRES,

CAUSED MASS EVACUATIONS, AND DESTROYED ONE BUILDING.

• WILDFIRES EMANATING FROM PRIVATE LANDS RESULTED IN PUBLICLY INCURRED RESPONSE COSTS (SUCH AS CONTAINMENT, PUBLIC SAFETY AND HEATH RESPONSES).

II. FIRE: CHANGES AND CAUSES FOLLOWING EUROPEAN SETTLEMENT

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• PRIOR TO EUROPEAN SETTLEMENT, LIGHTNING AND AMERINDIANS IGNITED FIRES IN MANY OF FLORIDA�S FORESTS SEVERAL TIMES PER DECADE.

PRE-SETTLEMENT FORESTS WERE COMPOSED OF WIDELY SPACED TREES AND FREQUENT FIRES CONSUMED LOW LYING FUELS, MAINTAINING A �FIRE-SAFE� LANDSCAPE THAT PREVENTED CATASTROPHIC WILDFIRE.

• FOLLOWING EUROPEAN SETTLEMENT, LARGE AREAS OF LAND

WERE CLEARED AND DEVELOPED, CREATING DISCONTINUITIES IN THE FORESTED LANDSCAPE.

THESE DISCONTINUITIES CREATED FIRE BREAKS THAT LIMITED THE ABILITY OF NATURAL AND ANTHROPOGENIC SURFACE FIRES TO SPREAD ACROSS THE LANDSCAPE AND MAINTAIN LOW FUEL LOADS. FORESTRY PRACTICES CONVERTED NATURAL FORESTS TO INTENSIVELY MANAGED FORESTS WITH HIGH TREE DENSITY, HIGHER FUEL LOADS AND AN INCREASE IN LADDER FUELS.

• THE CONTEMPORARY EFFECT OF THESE HISTORICAL LAND USE

CHANGES IS A RURAL SEMI-FORESTED LANDSCAPE WHERE FUELS AND FIRES ARE MORE DIFFICULT TO CONTROL.

III. POTENTIAL FOREST MANAGEMENT BASED SOLUTIONS TO THE

WILDFIRE PROBLEM

• THERE ARE A VARIETY OF FOREST MANAGEMENT PRESCRIPTIONS THAT CAN REDUCE FUEL LOADS AND THE THREAT OF WILDFIRE. THESE INCLUDE:

o MORE WIDESPREAD AND ROUTINE USE OF PRESCRIBED FIRE o INTERMEDIATE STAND MANAGEMENT (i.e., THINNING) o PINE STRAW HARVESTING o EVALUATION OF SPECIES CHOICE o CHEMICAL VEGETATION MANAGEMENT o MECHANICAL VEGETATION MANAGEMENT o INSTALLATION OF FIRE INFRASTRUCTURE (FIREBREAKS &

ACCESS ROADS).

• PRESCRIBED FIRE REPRESENTS THE MOST ECOLOGICALLY APPROPRIATE FIRE MANAGEMENT PRESCRIPTION.

IV. THE USE OF PRESCRIBED FIRE ON PRIVATE FORESTLANDS

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• ALTHOUGH FLORIDA IS A NATIONAL LEADER IN PRESCRIBED BURN

ACREAGE, THE NUMBER OF ACRES OF PRIVATE FOREST LANDS THAT ARE BURNED HAS BEEN DECLINING.

o CONTRIBUTING FACTORS TO THIS PHENOMENON INCLUDE

FORESTRY ECONOMICS, LIABILITY CONCERNS, LANDSCAPE FRAGMENTATION, REGULATORY PROCESS, FUEL BUILDUP AND LOSS OF TRADITIONAL KNOWLEDGE.

• THE FLORIDA PRESCRIBED BURNING ACT OF 1990 PROVIDED

LIABILITY PROTECTION FOR APPROVED PRESCRIBED BURNING.

• HOWEVER, THIS HAS NOT PROVED TO BE A SUFFICIENT INCENTIVE TO INCREASE PRESCRIBED BURNING ON PRIVATE FOREST LANDS.

V. STATE AND LOCAL MEASURES THAT IMPOSE PRESCRIBED BURNING

• FLORIDA LAW AUTHORIZES THE STATE DIVISION OF FORESTRY TO

DECLARE PRIVATE LANDS A WILDFIRE HAZARD AND, AFTER NOTIFICATION PROCEDURES ARE FOLLOWED, UNDERTAKE WILDFIRE HAZARD MITIGATION BURNING.

o TO DATE, THIS AUTHORITY HAS BEEN USED SPARINGLY, AND

ONLY TO CONDUCT BURNING ON FALLOW PLATTED LANDS OWNED BY ABSENTEE LANDOWNERS.

o IT HAS NOT BEEN USED ON INTENSIVELY MANAGED

FORESTLANDS SUCH AS THOSE THAT PRECIPITATED THE WALDO FIRE.

• LOCAL ORDINANCES ALSO EXIST THAT IDENTIFY ACCUMULATED

FUEL AS A FIRE HAZARD AND/OR A PUBLIC NUISANCE.

o AT LEAST ONE LOCAL ORDINANCE (NORTHPORT AND PALM COAST) REQUIRES MITIGATION, INCLUDING PRESCRIBED BURNING, WHICH LOCAL OFFICIALS MAY CONDUCT AFTER EFFORTS TO NOTIFY THE LANDOWNER ARE EXHAUSTED.

o THESE LOCAL MEASURSES ALSO DO NOT APPEAR TO BE

DIRECTED TOWARD INTENSIVELY MANAGED FORESTLANDS.

o MOREOVER, THESE MEASURES MAY IMPLICATE THE FLORIDA RIGHT TO FARM ACT, DISCUSSED BELOW.

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• THE FLORIDA RIGHT TO FARM ACT MAY PREEMPT LOCAL EFFORTS TO REGULATE FUEL MANAGEMENT ACTIVITIES ON PRIVATE LANDS.

o THE RIGHT TO FARM ACT PRECLUDES A LOCAL GOVERNMENT

FROM REGULATING A FARM ACTIVITY THAT IS OPERATING UNDER APPROVED BEST MANAGEMENT PRACTICES (BMP�S).

o SILVICULTURE IS CONSIDERRD A FARMING ACTIVITY UNDER

THE ACT AND HAS ASSOCIATED BMP�S.

o HOWEVER, CURRENTLY APPROVED BMP�S RELATE TO WATER QUALITY CONCERNS AND NOT OTHER ASPECTS OF FOREST HEALTH.

o THEREFORE, IT IS ARGUABLE WHETHER THE RIGHT TO FARM

ACT WOULD PREEMPT LOCAL GOVERNMENT REGULATION OF ACTIVITIES THAT ARE NOT GOVERNED BY BEST MANAGEMENT PRACTICES.

• AIR POLLUTION CONCERNS MAY ALSO LIMIT THE AMOUNT OF

PRESCRIBED BURNING THAT MAY BE CONDUCTED IN A LOCAL JURISDICTION.

o UNDER THE CLEAN AIR ACT, ALACHUA COUNTY IS AN

ATTAINMENT AREA FOR AIR POLLUTANTS EMITTED THROUGH PRESCRIBED BURNING.

o AIR QUALITY AREAS THAT HAVE 3 OR MORE EXCEEDANCES

OF STATE AIR QUALITY STANDARDS FOR 3 CONSECUTIVE YEARS MAY BE SUBJECT TO DESIGNATION AS NON-ATTAINMENT AREAS.

o IN 1998, AS A RESULT OF THE FLORIDA FIRESTORMS,

INCLUDING THE WALDO FIRE, ALACHUA COUNTY HAD 9 EXCEEDANCES.

o THE PROPOSED ALACHUA COUNTY LOCAL AIR QUALITY

PROGRAM WOULD ADOPT STATE STANDARDS FOR THESE POLLUTANTS AND DOES NOT OTHERWISE ADDRESS PRESCRIBED BURNING.

o A PROPOSED EPA REGULATION WOULD PROVIDE

CONDITIONED EXEMPTIONS FROM AIR QUALITY COMPLIANCE FOR PRESCRIBED BURNING.

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VI. COMMON-LAW LIABILITY FOR FAILING TO CONDUCT PRESCRIBED BURNING.

• THERE ARE NO REPORTED CIVIL CASES FROM FLORIDA COURTS

WHERE A LANDOWNER HAS BEEN HELD LIABLE FOR FAILURE TO MANAGE LAND TO DETER WILDFIRE.

• AN ADMINISTRATIVE CASE INVOLVING BILLBOARD DAMAGE FROM A

WILDFIRE DID FIND THAT PRESCRIBED BURNING MAY REDUCE THE CHANCE THAT A WILDFIRE WILL SPREAD ON TO A NEIGHBORING PROPERTY, BUT CONCLUDED THAT THERE WAS NO COMMON LAW DUTY TO PRESCRIBED BURN.

VII. EFFORTS TO PROTECT COMMUNITIES FROM WILDFIRE WITHOUT

REGULATING FOREST MANAGEMENT

• THE FIREWISE COMMUNITIES PROGRAM OFFERS DEVELOPMENT, CONSTRUCTION AND LANDSCAPING GUIDELINES THAT CAN BE ADOPTED BY A LOCAL GOVERNMENT TO REDUCE THE RISK OF PROPERTY DAMAGE FROM WILDFIRE.

• THE PROPOSED CONSERVATION AND OPEN SPACE ELEMENT OF THE

ALACHUACOUNTY COMPREHENSIVE PLAN CONTAINS A WILDFIRE MITIGATION OBJECTIVE AND POLICIES DIRECTED AT REDUCING THE RISK OF WILDFIRE.

• THE POTENTIAL FOR FINANCIAL SUBSIDIES AND TAX INCENTIVES

FOR WILDFIRE HAZARD MITIGATION SHOULD BE EXPLORED.

• THE ELIGIBILITY OF FORESTLANDS FOR LESS THAN FEE LAND ACQUISTION PROGRAMS SHOULD BE EXAMINED.

• IMPROVED DIALOGUE WITH FOREST LANDOWNERS MAY

FACILITATE INCREASED USE OF DESIRABLE MANAGEMENT TECHNIQUES.

• ADDITIONAL PUBLIC EDUCATION IS NEEDED REGARDING THE

BENEFITS OF PRESCRIBED FIRE, PARTICULARLY ITS ROLE IN PREVENTING WILDFIRE.

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Introduction: Wildfire in the Contemporary Landscape

In 1998, in Waldo, and throughout northeastern Florida, rural communities and

forestlands were under attack by wildfire. Wildfires raced through forest canopies, and

lapped at the edges of small towns like Waldo, threatening homes, townspeople, and

automobile drivers with uncontrollable flames and incessant smoke. This problem,

wildfire in the contemporary landscape, has several causes that need to be addressed in

Florida and nationwide lest we are doomed to repeat the disasters of 1998.

I. Wildfire Damage in Waldo and northern Florida in 1998

During the month-long firestorms in northeast Florida from June 15 to July 15,

1998, 204 people were injured, thousands were evacuated from their homes, 337 homes

were damaged or destroyed, 450,000 acres were burned, and Interstate 95 was closed

for four of the busiest tourist days of the year, July 2 to July 6. A conservative estimate

of damage exceeded $640 million1.

The Federal Emergency Management Administration (FEMA) declared Waldo

and many other areas in northeastern Florida �disaster areas,� making funds available

to assist with fire fighting and response costs. But, if these fires could have been

avoided, or more easily controlled, then taxpayer money would have been saved. This

example of an �externality� of intensive forestry begs for equity. One suggested

solution, which will be addressed in this paper, is to assign liability to forestland

owners and managers for creating the dangerous wildfire-facilitating conditions. On its

1 Mercer, D. E., J.M. Pye, J.P.Prestemon, D.T.Butry, and T.P.Holmes. 2000. Economic Effects of Catastrophic Wildfires. Unpublished final report. Forestry Sciences Laboratory, Research Triangle Park, NC 27709. 64 pages.

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face this suggestion may seem benign to those who are not forestland owners and

managers because improving management would also provide more open and

biologically diverse forests for wildlife, create forests with higher value timber products

by shifting from pulpwood to saw timber markets, and improve the scenery while

reducing wildfire risks. However, the liability approach comes with a few caveats; the

dangers of �scaring away� forestry as a land use in northern Florida and creating an �us

against them� mentality between rural communities and forestland owners and

managers.

Over the past several decades, forestry as a land use has declined in northern

Florida. With increased settlement and commercialization in fast-growing Florida,

lands that were previously rural and undeveloped are now engulfed by residential and

commercial real estate. This shift, far from tailing off, is especially acute in northern

Florida. The fast-growing urban areas of Orlando, Ocala, Gainesville, Jacksonville, and

coastal areas in Flagler and Volusia counties have overtaken many formerly rural

forestland areas. Urban sprawl affects north Florida not only by the loss of acreage and

increase in bare land values, but also by the attitude shift of neighbors who view

forestry operations such as harvesting, site preparation, and prescribed burning, as

affronts to their pieces of Eden.2 These factors make it increasingly difficult to practice

forestry and agriculture.

2 Wade, D. D. and J. D. Brenner. 1995. �Florida's Solution to Liability Issues�. Pages 131-137 in: The Biswell Symposium: Fire Issues and Solutions in Urban Interface and Wildland Ecosystems. USDA Forest Service Gen. Tech. Rep. PSW-GTR-158.

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Forestry is among the most beneficial land uses in north Florida. Among its

societal benefits are provision of clean air, clean water, maintenance of plant and animal

biological diversity, maintenance and enhancement of game and non-game wildlife,

sinks for atmospheric carbon, aesthetically pleasing landscapes, and a multitude of jobs

in growing, harvesting, and manufacturing wood products. These values appeal to

many rural communities, like the City of Waldo, for the services they provide for little

to no cost. Balancing these benefits is the increased risk of catastrophic fire, an

increasingly common outcome of intensive forestry without fuels management.

There are several reasons to specifically focus on forestry, and not other similarly

wildfire-facilitating land uses. While other land uses contribute to wildfire activity and

create difficult fire-fighting situations, forestry is the overwhelmingly dominant land

use in Waldo�s smokeshed.3 Forestry also represents a stable, identifiable target for

incentive programs, regulation, and outreach. At present, there exists no Society of

American Absentee and Overgrown Fuel Lands or Florida Overgrown Absentee Lots

Association, while such associations and societies are popular in forestry. The last

rationale for focusing efforts on forestry is the fact that forestry grows fuel. Growing

trees without fire or periodic chemical or mechanical control of vegetation results in

heavy loads of woody fuels not encountered in any comparable land use.

3 Approximatley 85% of the surrounding 20,000 acres is classified as Timberland by Alachua County Appraiser�s Office, see Appendix 3 for further detail.

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II. Fire: Causes and Changes Following European Settlement

Wildfires are caused by three factors; oxygen, fuel, and heat. In forests and

wildlands, oxygen is ubiquitous and not under much human control. Heat sources and

fuels are, however, under human control and can be manipulated to create desired

outcomes.

Heat, or ignition sources, can be divided into two categories: natural and human

sources. Nature ignites fires primarily by lightning strikes. Prior to European

settlement, lightning-ignited fires swept over north Florida�s upland pine forests every

1 to 3 years.4 Humans have ignited fires both prior to and following European

settlement. Native Americans burned regularly and for a multitude of reasons: to clear

land for agriculture, drive game, reduce pests and biting insects, and protect from

invasion, among others 4,5. After settlement, white settlers burned the forests for

improved grazing, reduced wildfire risk, and to dispose of waste.5 In contemporary

north Florida, woods-burners start fires to improve wildlife habitat, reduce wildfire

risk, and control pests, among many other ecological and cultural reasons6.

Fuels, similarly, have changed since European settlement, and more recently

there has been a radical shift in land management practices. Pre-settlement forests were

composed of widely-spaced trees and a grassy understory that provided an open, park- 4 Frost, C. C. 1998. Presettlement Fire Regimes of the United States: A First Approximation. Tall Timbers Fire Ecology Proceedings 20: 70-81. Tall Timbers Research Station, Tallahassee, FL. 460 p. 5 Komarek, E. 1974. Tall Timbers Fire Ecology Proceedings 8: 17-43. Tall Timbers Research Station, Tallahassee, FL. 5 Pyne, S. J. 1995. World Fire: The Culture of Fire on Earth. Henry Holt, New York. 379 p. 6 Frost, C. C. 1993. Four Centuries of Changing Landscape Patterns in the Longleaf Pine Ecosystem. Tall Timbers Fire Ecology Proceedings 18: 17-43. Tall Timbers Research Station, Tallahassee, FL. 418 p.

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like aspect. Ladder fuels, vegetation connecting taller vegetation to low under-story or

mid-story vegetation such as vines and shrubs, were largely absent. Frequent fires

traversed these landscapes several times each decade, consuming the low-lying fuels

and maintaining a �fire-safe� landscape where catastrophic wildfire was unlikely.

Since settlement, humans have cleared large areas of land for agriculture,

residential and commercial development, and roads. These clearings created

discontinuities in the fire landscape, that is, flames that once carried across the uplands

were extinguished by these breaks in fuel. The continued alteration of these lands

lessened the degree to which single ignition sources, such as lightning, could affect

lands and fuels. As these lands were removed from fire sources they were subject to

increases in their tree density, their fuel loads, and their vertical continuity. These

effects transformed fire-safe landscapes into patchy landscapes where fuels and

catastrophic fires are difficult to control.

Changes to the structure of north Florida forests are just one of the recent

conditions that have made wildfires more damaging to forestlands and rural

communities. Climate, urban sprawl, and people are also major causes. Climate,

specifically an extended 36+ month drought 6(beginning in May 1998) that rivals the

most severe dry period over the last 100 years, led to dry fuels that ignite easily and are

difficult to extinguish. Urban sprawl is another important factor in increased fire

danger because it places humans and structures closer to forested wildlands. Sprawling

6 National Climate Data Center (NCDC). 2001. Palmer Drought Severity Index data for Florida Region 2. US Dept. of Commerce National Oceanic and Atmospheric Administration NCDC. Available at http://www.ncdc.gov.

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areas are often erected with little planning that addresses fire danger. Placing

structures within forestland �smokesheds� and within fire danger makes wildfire

damage more probable. Finally, people and their access to forestlands, either by

trespass or careless burning near forestland areas, have played their part in

transforming the once fire-safe Florida into a tinderbox.

III. Potential Management-Based Solutions to the Wildfire Problem

Potential solutions to the wildfire problem include options that can be used

during each phase of the timber production process from initial tree planting,

throughout the rotation, and in marketing of final products.

A. Existing stands

Dense stands are high wildfire risks, because they have many ladder fuels and

heavy fuel accumulations, but can be treated to reduce the risk of catastrophic fire or of

difficult-to-suppress wildfires. These measures include increased use of prescribed fire,

thinnings, chemical vegetation management, mechanical vegetation management, pine

straw harvesting, and fire infrastructure installation and maintenance.

Increasing the use of prescribed fire is an obvious and often recommended

remedy for the fire risk posed by fire-excluded forestlands. Prescribed fire has long

been known to reduce fuel loads, reduce ladder fuels, control competing vegetation,

reduce stand density, and create more fire-safe landscapes. Indeed, in Waldo�s case in

1998, Clark Smith, a landowner who burned his property annually, was reportedly

responsible for providing a firebreak that helped save the City from more severe fire

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damage.7 Increasing burning in the landscape would also provide many other benefits

to the forest including: promoting more biodiversity-friendly forestry; reducing

wildfire risk; increasing control; and increasing access for harvesting and intermediate

stand management. Problems with more widespread reliance on prescribed fire

include the cost of burning, shifting manpower, lack of burner expertise, volume loss,

product defects, and the risk of fire escape. Burning is costly, both in man-hours and

training. The expertise required to conduct prescribed burning is scarce, especially for

plantation stands that are difficult to burn. Fire also causes both a loss in wood volume8

and increases in certain product defects such as char in pulpwood. The added risk of

fire escape is especially acute in intensively managed landscapes with multiple stand

types in close proximity. Finally, the unfavorable public perception of fire, and fear of

liability by forest managers and landowners may counter-balance all the beneficial

effects of frequent prescribed fire.

Overstory thinning, which creates space between tree crowns, is a viable option

for reducing wildfire risk that could also be profitable. Many thinnings performed in

these situations are termed �pre-commercial thinnings�, for the reason that they impose

initial costs on landowners. However, with time lower tree density leads to increased

growth and increased marketability and stumpage value. A problem with this

approach is that lands are planted for pulpwood rotation with the intention of

7 Matus, R.. State Foresters Call Waldo Man a Hero, The Gainesville Sun (August 2, 1998), http://www.sunone.com/news/articles/08-02-98c.html 8 Boyer, W. D. 1987. Volume growth loss: A hidden cost of periodic prescribed burning in longleaf pine? Southern Journal of Applied Forestry 11:154-157.

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providing fiber to mills. Without this stock of pulpwood land, these mills� wood

supplies would decrease possibly forcing them to close, lay off employees, and shift

operations to sawmills or pole mills, or to sell operations altogether. Also, the benefits

reaped from canopy openness may increase the growth of flammable under- and

midstory fuels (i.e. Serenoa repens and Ilex glabra �palmetto-gallberry� fuels that

dominate many flatwoods ecosystems), unintentionally increasing fire risk. This option

is deserving of more study, perhaps with treatments aligned to stand-specific situations

(i.e. presence or absence of fuel types).

Another potential option is pine straw harvesting. Pine straw is a major

component of fuels but it can be raked and sold as a landscaping material. In some

areas, the North Carolina sandhills for example, pine straw produces greater financial

return than timber harvesting. However, straw quality varies with stand history,

management regime, density, and stand age. Straw quality also varies by species, for

example longleaf pine straw is more favored than loblolly pine straw. Stands harvested

for straw need space to operate and a reduced under-story and mid-story. These

features would require intermediate stand management, such as herbicide or

mechanical control of woody under-story and mid-story and perhaps thinning, which

are costly and stand-specific operations. Many stands in Waldo�s smokeshed have

under- and midstory fuel conditions that are not amenable to pine straw harvest.

Additionally, straw harvesting would only minimize surface fuels, ignoring the dense

structural conditions that both makes stands candidates for straw harvesting and

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increases their risk of wildfire damage. Finally, pine straw harvests also deplete site

nutrients; leading to declines in future stand productivity.9

Chemical vegetation management through the use of herbicides is another

method of controlling draped and ladder fuels and controlling hardwood competition.

Herbicides have been shown to significantly reduce wildfire risk.10 Herbicide

application can be accomplished by aerial spraying allowing for landscape-level

application. Wide scale application of herbicides is a strategy presently employed in

forestlands in north Florida, so it would require a smaller amount of technology

transfer and adoption measures. Problems with herbicide applications include the cost,

public attitudes to chemical application in forestlands, and the lag between application

and the onset of fire-proofing.

Mechanical vegetation management can also be effective in controlling fuels and

vegetation. As with thinning, mechanical controls have the potential to increase growth

of residual target trees. Large, firebreaks surrounding �problem stands� may also

provide some decrease in risk from surface fires. Cost and manpower are limitations to

the use of this method on very large landholdings. On smaller acreages, like Waldo�s

interface, this practice may provide the greatest protection, while also being

operationally feasible.

9 McLeod, K. W., C. Sherrod, and T. E. Porch. 1979. Response of longleaf pine plantations to litter removal. Forest Ecology and Management 2:1-12. 10 Brose, P. 2000. A computer-simulated evaluation of three silvicultural practices for reducing hazardous fuel conditions and extreme fire behavior in pine flatwood forests. Unpublished Final Report, USDA Northeastern Research Station, Irvine, PA 16329

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B. Afforestation

Reducing wildfire risks early in a rotation, especially when planting abandoned

lands, should be a priority for land managers. Several areas can be addressed in

afforestation stands: planting density, species choice, and fire infrastructure planning.

Intensive site preparation that reduces or eliminates ground fuels may provide

the best preventative measure for newly planted stands. Combining mechanical,

chemical, and fire treatments also have many benefits for increased stand growth. Far

from perfect, this management regime may have serious results for stand biological

diversity of both plants and animals, thereby negating many of the benefits of

perpetuating forestry as a land use. This management may be appropriate, however,

on selected lands near Waldo�s interface.

Stand density is often cited as problematic in wildfire management. Dense

stands have both horizontal and vertical continuity, allowing small, controllable fires to

erupt into large, uncontrollable landscape fires. Decreasing initial planting density may

allow for more efficient intermediate stand management such as access for thinning,

mechanical and/or chemical vegetation management, and straw harvest while

decreasing immediate fire danger. Obvious problems with this approach are decreased

revenue from plantations and perhaps increased vegetation management problems.

The latter might also create fuel loads that, again, may increase wildfire danger (though

control would be easier). This approach may be appropriate in specific areas or for

specific land ownerships (i.e., Non-industrial private forestland owners in Waldo�s

smokeshed).

18

Manipulation of species composition of afforested stands may also assist in

wildfire management. Different species have different fuel behavior and differential

survival following fire. In north Florida, slash (P. elliottii) and loblolly (P. taeda) are the

most commonly planted timber species. Longleaf pine, however, is the most fire

tolerant pine, and would therefore reduce fire losses on timberlands. The obvious

problem with this prescription is that both slash and loblolly pines grow faster, at least

initially, and are more amenable to the intensive culture required on industrial lands.

However, if prescribed fire is to be part of future stand management, the transition back

to longleaf pine management may negate its drawbacks. On lands not being managed

for intensive culture, assistance with longleaf pine afforestation and management

should be undertaken.

Fire infrastructure planning is another advantage that can be realized during

afforestation. Installation of firebreaks at this stage would both protect the investment

in the planted stands, as well as isolate any fires that occur in these blocks. These

firebreaks would also facilitate the introduction of prescribed fire into these future

stands.

Federal, State, and local programs are in place to provide landowner assistance

for many of these recommendations, and should be coordinated for a Waldo-specific

project.

19

IV. Firewise Communities and �Fire-Safe Forestlands�

Over the past decade, the startling losses to wildfire have led to efforts to

minimize the danger where wildlands and urban areas meet, the so-called �wildland

urban interface.� The most advanced of these programs is the nationally acclaimed

�FireWise Communities� Program, coordinated in Florida by the Florida Division of

Forestry. FireWise is a proactive program that addresses fire problems for future

development and planning, and takes a community and landscape centered approach.

During FireWise Workshops, groups of stakeholders including: planners, bankers,

emergency managers, insurance agents, builders, fire fighters, and land managers,

examine a hypothetical town with a hypothetical development case.

We strongly encourage Waldo and similar rural forestland communities to

participate in FireWise Workshops. The State of Florida has been a leader in design and

implementation of this program. Adoption of these principles and plans is a good way

to proactively address fire problems along the interface in the future. Information on

this program is available in the Appendix 1.

Introduction: Legal, Regulatory, and Land Use Planning Issues Related to Wildfire The threat of catastrophic wildfires and the damages resulting from them could

be reduced if more wooded land was subject to fire-friendly forest management

practices. Prescribed fire is perhaps the most widely used and most effective tool for

eliminating the accumulations of underbrush that increase the risk of catastrophic fires.

Despite the well-recognized benefits of prescribed fire, its use has not been as

widespread as many forestry experts would like. Legal measures leading to increased

20

use of forest management techniques that reduce the risk of wildfire could help solve

the wildfire problem.

Forest management is one factor in the wildfire damage equation, but population

growth and sprawling development patterns in Florida are also factors. Developments

on the fringe of urban areas, in the �wildland-urban interface,� are at greater risk of

damage from wildfires. Development policies and practices aimed at reducing the risk

of wildfire damage could also help solve the wildfire problem.

Overview of Legal Issues Addressed

This part of the report will explore legal issues related to wildfires and forest

management in Florida with an emphasis on the legal status of prescribed fire. Part V

explores why prescribed fire is not used more often. The legal landscape for prescribed

burning that existed before 1990 is examined in part VI. The focus then turns, in part

VII, to the Florida Prescribed Burning Act of 1990 and related statutes. Local

government measures addressing the use of prescribed fire are evaluated in part VIII.

A discussion of the potential for common-law liability for failing to use prescribed fire

follows in part IX. Part X examines measures that seek to protect communities from

wildfire damage without regulating forest management. The conclusion and

recommendations section summarizes the findings and reviews the alternatives

available to local governments in Florida for addressing the problem of wildfire.

V. Why the use of Prescribed Fire and other Fuel Management Techniques is not more Widespread

A. The Fear of Liability Discourages the Use of Prescribed Fire

21

The specter of legal liability is a significant deterrent to more extensive use of

prescribed fire. The act of intentionally setting a fire obviously raises legal issues and

concerns. Landowners can be held liable for damages if a prescribed fire gets out of

control. Prescribed burners can potentially be subject to liability under several legal

theories:

Negligence-based on the allegation that the controlled burn was conducted in an unreasonable manner causing damage.

Nuisance-based on the allegation that the controlled burn was conducted in an unreasonable manner that interfered with another person�s use and enjoyment of their property. Strict Liability-based on the allegation that controlled burning is an ultra-hazardous and/or inherently dangerous activity, and this activity caused damage.

Trespass-based on the allegation that the defendant intentionally, willfully and/or with reckless disregard caused fire or smoke to invade a neighboring property, thereby causing damage.11

It would be in the public interest to provide greater encouragement and legal protection

for prescribed burning. Florida provides a measure of liability protection for prescribed

burners. This may be part of the reason why Florida leads the nation in the number of

hectares of land burned by prescription, about 800,000 per year.12

B. The Lack of Liability for Failing to Use Prescribed Fire: No Legal Motivation Exists for Landowners to Burn

Encouraging and protecting the use of prescribed fire should help reduce the risk

and severity of wild fires. Requiring landowners to use prescribed fire, or some other

11 Gary L. Achtemeier, et al, The Smoke Dilemma: A Head-on Collision!, 62nd North American Wildlife and Natural Resources Conference 415, 418. 12 Dale Wade & Ken Outcalt, Prescription Fire to Manage Southern Pine Plantations-Damned if you do, Damned if you don�t, 1999 International Environmental Conference 455, 457.

22

means of fuel reduction, would further reduce this risk. Even with legal protection of

prescribed fire, landowners may not be sufficiently motivated to burn. A timberland

owner is not liable for damages caused by a wild fire that originates on his land.

However, a wild fire started by natural means may cause far more damage than a

prescribed fire on the same land. Additionally, if the land has not been managed with

prescribed fire, or some other method to reduce the build up of vegetative fuels, then

the damage from a wild fire will be even greater. The conclusion can be drawn that a

landowner who does not conduct prescribed burning creates a risk of greater damage

from wild fire.

It can be argued that by creating an increased risk of severe wildfire, landowners

should be liable for damages to neighboring landowners and residents and to the public

at large if and when wildfires occur. Nevertheless, no cases are available that hold a

landowner liable for not conducting prescribed burning. Legislation may be required to

create some kind of cause of action against timberland owners for increasing the risk of

catastrophic fire by allowing flammable underbrush to accumulate.

There is some concern that creating additional grounds of liability for

commercial foresters will discourage silviculture as a land use activity. The conversion

of timberlands to other uses is a possible negative consequence of increasing the

liability of commercial foresters. For this reason, it may be advisable to pursue less

confrontational approaches in any attempt to increase the use of prescribed fire by the

timber industry and other private landowners.

23

VI. Legal Status of Prescribed Fire in Florida before 1990: Legal to Burn, High Risk of Liability Florida common law prior to 1990 imposed strict liability for damages resulting

from prescribed fires.13 The strict liability standard required no finding of fault or

negligence by the conductor of a prescribed burn. The degree of care exercised by a

burner was not relevant to the determination of liability. There were a number of cases

in Florida from this era in which plaintiffs sought damages resulting from allegedly

negligent prescribed burning. Often these cases arose from traffic collisions caused by

smoke drifting over roadways and interfering with drivers� vision.14

Florida Statute Chapter 590.012 regulated prescribed burning before 1990.15 The

statute made it unlawful to conduct a prescribed burn without Division of Forestry

authorization. Burners were required to provide adequate fire lines, manpower, and

firefighting equipment to control the fire. In addition, burners were required to

monitor the fire until it was extinguished. Chapter 590.14 provided for criminal

penalties for violations of other parts of Chapter 590. Willful or intentional violations

were punishable as third degree felonies. A careless violation was a second-degree

misdemeanor. The statute further provided that a person who started an unauthorized

fire, or who allowed an authorized fire to escape, was liable for all reasonable costs of

suppressing that fire. Chapter 590.14(3)(b) provided for vicarious liability for any

13 Kimberly A. Heuberger, Fire in the Suburbs: Ecological, Social, and Legal Implications of Prescribed Fire in Remnant Longleaf Pine Sandhill. M. S. Thesis, University of Florida, 1988, p. 75. 14 See, e.g.: Waters v. ITT Rayonier, Inc, 493 So.2d 67 (Fla. App. 1986). 15 Id.

24

person, firm, or corporation that directed or permitted an unauthorized or out-of-

control fire.

Chapter 590.15 governed criminal prosecutions and civil actions for violations of

Chapter 590. A prescribed burner defendant had the burden of proving that he had the

right to set the fire to establish that right as an affirmative defense. Even if a defendant

was able to establish his right to set the fire, he would still have been liable for �all

reasonable costs of suppressing that fire� under Chapter 590.14. Therefore, the

affirmative defense was only effective against a charge of starting an unauthorized fire

and did not relieve a prescribed burner of liability for damages from an authorized fire.

VII. The Florida Prescribed Burning Act of 1990

A. Background, Legislative Findings and Purpose: A Strong Statement in Favor of Prescribed Burning

The broad recognition of the value of prescribed burning in timber management

prompted a diverse coalition of interests to lobby the Florida Legislature for greater

protection for burners. Conservationists, preservationists, timber companies, ranchers,

and public agencies all sought to promote, protect, and provide guidelines for the use of

prescribed fire. The result of this lobbying effort was the passage of the Florida

Prescribed Burning Act of 1990.16

The Act defines prescribed burning as, �the controlled application of fire in

accordance with a written prescription for vegetative fuels under specified

environmental conditions while following appropriate precautionary measures that

16 Id at 76.

25

ensure that the fire is confined to a predetermined area to accomplish the planned fire

or land management objectives.�17 In the findings and purpose section of the Act, the

Legislature made a strong statement favoring prescribed burning:

a. The application of prescribed burning is a land management tool that benefits the safety of the public, the environment, and the economy of the state.

(1) Prescribed burning reduces vegetative fuels within wild land

areas. Reduction of the fuel load reduces the risk and severity of wildfire, thereby reducing the threat of loss of life and property, particularly in urban areas.

(2) Most of Florida�s natural communities require periodic fire for maintenance of their ecological integrity. Prescribed burning is essential to the perpetuation, restoration, and management of many plant and animal communities. Significant loss of the state�s biological diversity will occur if fire is excluded from fire-dependent systems.

(3) Forestland and rangeland constitute significant economic, biological, and aesthetic resources of statewide importance. Prescribed 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.18

B. Liability and Nuisance Provisions: Strong Protection for Certified Burners

1. General Provisions

The Act�s findings and purpose section also acknowledges that concerns over

liability hinder prescribed burning efforts, �As Florida�s population continues to grow,

pressures from liability issues and nuisance complaints inhibit the use of prescribed

17 F.S. § 590.125(1)(a)(West 2000). 18 Id. at § 590.125(3)(a)(1-3).

26

burning.�19 The Act addresses the nuisance issue by stating that prescribed burning, �Is

considered to be in the public interest and does not constitute a public or private

nuisance when conducted under applicable state air pollution statutes and rules.�20 The

Act also addresses the liability issue in providing that, �A property owner or his or her

agent is neither liable for damage or injury caused by the fire or resulting smoke nor

considered to be in violation of subsection (2) for burns conducted in accordance with

this subsection unless gross negligence is proven.�21 The Act therefore relieves a

prescribed burner from liability if he follows the rules unless it can be proved that he

acted with gross negligence. The gross negligence standard provides landowners with

considerably more protection than they had prior to passage of the Act. The Act further

provides that prescribed burning is a property right of the property owner if it is used

to burn vegetative fuels as required under the Act.22

In order to enjoy the protection afforded by the Act, landowners must conduct

prescribed burns in accordance with the rules laid out in the Act and in related

regulations of the Division of Forestry. The Act imposes various conditions that must

be met in order for a prescribed burn to be either �certified� or �authorized.�

2. Authorized Burning

Authorized burning is covered by the Act in chapter 590.125(2)(a). There must

be specific consent of the landowner or his designee. Authorization must be obtained

from the Division of Forestry. Adequate firebreaks, sufficient personnel and

19 Id. at § 590.125(3)(a)(7). 20 Id. at § 590.125(3)(b)(6). 21 Id. at § 590.125(3)(c). 22 Id. at 590.125(3)(b)(7).

27

firefighting equipment for control of the fire are required at the burn site. The fire must

remain within the boundary of the authorized area. Someone must remain at the burn

site until the fire is extinguished. The Division of Forestry has to determine that air

quality and fire danger conditions are favorable for safe burning and the division has

the authority to cancel its authorization.

3. Certified Burning

The conditions for certified burning are set out in the Act in chapter

590.125(3)(b). Certified burning requires a written prescription plan to be submitted to

the Division of Forestry before authorization to burn will be granted. The plan must

establish criteria for starting, controlling, and extinguishing the burn. A certified burn

manager must be present on site with a copy of the prescription from the time the fire is

ignited until its completion. A certified prescribed burn manager is someone who has

completed the certification program offered by the Division of Forestry. Certified

burning requires the specific consent of the landowner or his designee and this consent

must be obtained before the burner requests authorization from the Division of

Forestry. Authorization must be obtained before the fire is ignited. There must be

adequate firebreaks and sufficient personnel and firefighting equipment to control the

fire at the burn site. Certified burning is permitted only where related to silviculture,

wildlife management, ecological maintenance and restoration, or range management.23

4. Comparison of Certified and Authorized Burning, Effect on Liability

23 F.A.C. § 5I-2.006(2).

28

Several distinctions between authorized and certified burning exist. One is that

certified burning requires the presence of a certified burn manager and the submission

of a written prescription plan. A careful reading of the statute reveals that the

legislative findings and purposes are in the subsection concerning certified burning

which is separate from the subsection dealing with authorized, non-certified burning.

In addition, the provisions relieving landowners from liability and stating that

prescribed burning is not a nuisance are located in the certified burning subsection.

Therefore the increased protection offered by the Act only applies to certified burners.

The Florida Administrative Code confirms that the protection offered by the Act is only

available to certified prescribed burners.24 Authorized burners may still be subject to

the liability standards that existed before the passage of the Act.

C. State Conducted Prescribed Burning: DOF Authorized to Burn Private Land

Chapter 590 authorizes the Division of Forestry to conduct prescribed burning of

privately owned land in order to reduce the hazard of wildfire.25 The division may

burn land �reasonably determined to be in danger of wildfire�26 if it follows the

procedures set forth in the statute. The Division must describe the areas to be burned to

the affected local government entity. The Division must publish a prescribed burn

notice in at least one newspaper of general circulation in the area of the burn ten days

before the burn. The Division must prepare a notice that the county tax collector will

24 Id. 25 Id. at 590.125(4). 26 F.S. § 590.125(4) authorizes DOF to burn �any wild land�. F.S. § 590.015(5) defines �wild land� as, �***any public or private managed or unmanaged forest, urban/interface, range land, recreation lands, or any other land at risk of wildfire.�

29

send with the annual tax statement to all landowners in townships that the division

designates as wildfire hazard areas. The notice must describe the area to be burned,

provide the tentative burning date or dates, state the reasons for the burning, and list

the benefits expected to be achieved by the burn.

The Division of Forestry is required to consider any landowner objections to the

prescribed burning of his or her property. A landowner may apply to the Director of

the Division for a review of alternative methods of fuel reduction on the property. If

the landowner�s objection is not resolved by this review, then the Director must

convene a panel composed of the local forestry unit manager, the fire chief of the

jurisdiction, and the affected county or city manager. The panel will make a

recommendation, and if it is not acceptable to the landowner then he may request

further consideration by the Commissioner of Agriculture. After all these procedures

have been exhausted, the landowner is entitled to an administrative hearing. The

records of the Division of Administrative Hearings contain no reports or references to

any hearings related to this provision of the Act.

The Division of Forestry�s authority to conduct prescribed burns on private land

could be valuable to local governments seeking to promote prescribed burning within

their jurisdiction. A local government could lobby the Division to conduct prescribed

burns of private property in its jurisdiction. Also, a local government could use the

possibility of state conducted burns as leverage in negotiating with property owners to

conduct their own prescribed burns. The Division�s authority is significant as an

instance in which private land can be burned without the owner�s consent. This is an

30

important step beyond the provisions of the Prescribed Burning Act, which merely

encourage landowners to use prescribed fire without requiring them to do so.

VIII. Local Government Measures Requiring or Encouraging Prescribed Burning

A. Statewide Trend Favors Use of Prescribed Fire

Prescribed burning enjoys a great deal of support among local governments in

Florida. The majority of Florida�s County Commissions have passed resolutions in

support of prescribed burning.27 All 33 counties in North Florida and 15 of 26 in

Central Florida have passed ordinances stating that the use of prescribed fire is a

property owner�s right.28 Additionally, some local governments have considered

ordinances that require prescribed burning or other fuel reduction techniques under

some circumstances.

B. City of North Port Ordinance : Underbrush Build-Up Prohibited, Government-Conducted Burning Authorized

The City of North Port, in Sarasota County, enacted an ordinance that addresses

the problem of high vegetative fuel levels from underbrush build up.29 North Port

suffers from an inordinately high number of wildfires as a result of dangerously high

fuel levels that can be attributed to a lack of prescribed burning. The city�s ordinance,

Environmental Division-Chapter 6, Ordinance no. 86-206, prohibits the accumulation of

underbrush higher than twelve inches as well as the growth of vegetation beyond the

legal confines of the property. Because of the high number of absentee landowners,

27 1999 International Environmental Conference at 457. 28 Id. 29 Heuberger, pp. 81-82. This ordinance may not be in effect; Mr. Douglas Voltolina, of the DOF regional office that includes North Port, is not aware of such an ordinance.

31

North Port has instituted a program under which the city conducts prescribed burning

of privately owned wooded areas. The North Port ordinance is evidence of how a local

government in Florida could attempt to combat the accumulation of vegetative fuel on

private land.

C. Flagler County Ordinance: Wildfire Hazard Defined, Burning by DOF and County Authorized

Flagler County also enacted an ordinance directed at combating fuel

accumulation. Ordinance 98-14 was enacted following the 1998 fires to provide for

wildfire hazard mitigation. The ordinance addresses the property damage sustained by

the Palm Coast community in Flagler County. The ordinance is not currently in effect

because Palm Coast became a city shortly after its enactment and has not adopted or

implemented it.30 Palm Coast is a 42,000 acre planned development located on former

silvicultural land. Prescribed fire was used to control vegetative fuel buildup on this

land before it was developed. Palm Coast was a �lot sales venture� where individuals

purchased lots through a long-term payment plan with the intention of building on

them at some future date. Palm Coast has a densely developed core but there are also

many homes built sporadically throughout the development. Undeveloped, wooded

lots that are no longer subject to prescribed burning or any other form of timber

management surround these homes.

A 1985 wildfire destroyed 100 homes in Palm Coast and damaged 200 more. A

study by the Florida Division of Forestry found a correlation between fuel build-up and 30 The City of Palm Coast decided that the ordinance, in the form adopted by Flagler County, was not workable but the City has written its own version which was approved by the City Council in 2001. The citation to the 2001 Ordinance is not yet available.

32

the destruction or damage of a residential structure. Palm Coast suffered further

property damage during the 1998 fires. The ordinance states that the presence of highly

flammable vegetation on undeveloped properties creates an imminent danger of

conflagration that could endanger the health, safety, and welfare of the citizens of Palm

Coast. The Division of Forestry�s authority to conduct prescribed �mitigation� burning

on private land is acknowledged, but declared to be of limited utility in Palm Coast due

to the spreading and scattering of new homes being built in the pine plantation. The

County decided to exercise its home rule power in coordination with the Division of

Forestry to address wildfire hazard mitigation through the passage of the ordinance.

The ordinance defines fire hazard in several ways:

�trees, brush or other vegetation by reason of their nature, location or condition may cause loss, damage, or injury to persons or property by reason of fire. Brush on undeveloped lots averaging over three (3) feet tall within thirty (30) feet of an existing residential structure and pine trees on undeveloped lots averaging over five inches in diameter at four and one-half (4 ½) feet above grade spaced in such a way that the average crown closure is more than 75% are considered fire hazards.31

The ordinance provides that the County will work jointly with the Division of Forestry

to identify, ��undeveloped properties determined to have a wildfire hazard risk that

exists to a greater degree than that customarily recognized as normal by persons in the

public service regularly engaged in preventing, suppressing and extinguishing fires.�32

The ordinance declares that such properties are public nuisances.33 The County and the

Division of Forestry are charged with developing a plan for mitigating the hazards

31 Flagler County Ordinance No. 98-14, section 2 32 Id at Section 3 33 Id.

33

posed by these identified properties. Prescribed fire is identified as the preferred

hazard mitigation tool. Selective brush mowing and removal of the portion of the pine

canopy that constitutes a fire hazard are identified as the mitigation methods to be

employed where prescribed burning is not feasible or appropriate.

The County and the Division of Forestry are required to notify property owners

that their land has been identified as hazardous and inform them of the required

mitigation measures. Property owners have the right to appeal the identification of

their land as a hazard to the County Code Enforcement Board.34 An owner may

perform the prescribed mitigation work himself or let the County and the Division of

Forestry perform it. If the County and the Division of Forestry perform the work, the

costs will be charged as a lien on the owner�s property. Costs are defined as, ��all

expenditures by the State Division of Forestry, the County or their authorized agents for

labor, supplies, equipment use, contractors and services related to implementing the

mitigation plan for the property.� If the prescribed mitigation work includes removing

trees and the County and the Division of Forestry perform the work, then the County

and the Division may sell the timber to defray their costs.35

D. Effectiveness of Local Regulation Limited by the Florida Right to Farm Act

The Flagler County and North Port ordinances provide examples of how a local

government might be able to require private landowners to reduce fuel buildup. The

usefulness of these ordinances as models for other local governments in Florida may be

34 Id at Section 4 35 The revised version of the ordinance under consideration by the City of Palm Coast does not authorize tree removal and only addresses hazardous brush, according to Mr. Michael Kuypers of the DOF Bunnell office.

34

limited. The Flagler County ordinance applies to land intended for future residential

development by individual owners and not to land in active timber production.

Likewise, the North Port ordinance is directed at absentee landowners rather than

silviculturalists. These are critical distinctions as the ability of local governments to

regulate silvicultural activities may be limited.

The Florida Right to Farm Act bars a local government from adopting an

ordinance that prohibits, restricts, regulates, or otherwise limits an activity of a farm

conducted on land classified as agricultural.36 The Act does not specifically mention

silviculture but it defines �farm� broadly and it likely includes timber production

among the activities it protects. The limitation on local government regulation only

applies to farming activities regulated by implemented and statutorily adopted Best

Management Practices (BMP�s) developed by the Department of Environmental

Protection, the Department of Agriculture and Consumer Services, or Water

Management Districts. Silviculture is regulated by BMP�s adopted by the Division of

Forestry, which is a part of the Department of Agriculture and Consumer Services. The

most recent (1993) Silviculture BMP�s are directed at preserving water quality and do

not address prescribed burning or other management practices related to wildfire

hazards.

The failure of the best management practices to address activities related to

wildfire hazard mitigation may open the door for local government regulation.

36 F.S. § 823.14(4)(b)(6)(West 2000).

35

However, the Florida Right to Farm Act protects farm operations from nuisance suits,37

thereby creating additional barriers to local government regulation. The Flagler County

ordinance, for example, functions by defining hazardous lands as public nuisances.38

The Right to Farm Act prevents farmland from being declared a nuisance and therefore

may render an ordinance that operates by declaring hazardous land a public nuisance

ineffective against silvicultural land.

E. Air Pollution Concerns May Limit the Amount of Prescribed Burning That Can be Conducted in a Local Jurisdiction

Smoke from fires, whether prescribed or wild, produces air pollutants in the

form of particulate matter and various gases. Increasing the use of prescribed fire could

have the unintended affect of violating federal, state, and/or local air quality

regulations. A local government that attempts to institute prescribed fire program

should investigate the possibility that more burning will run afoul of air emissions

rules. If air pollution rules are a barrier to increased prescribed burning, an effort

should be made to reform such rules to acknowledge that prescribed burning may

prevent wildfires that emit much greater amounts of pollutants.

IX. Common-Law Liability for Failure to Conduct Prescribed Burning: No Duty to Burn, No Liability for Not Burning

There are no reported court cases in Florida where a timberland owner has been

held liable for failing to reduce vegetative fuel levels. Further, there are no reported

court cases where such a claim has been brought against a timberland owner.

However, the theory that landowners should be liable for failing to conduct prescribed 37 Id at § 823.14(4)(a) 38 Flagler County Ordinance No. 98-14, section 2

36

burning has been advanced in administrative hearings in Florida. Owners of billboards

that were destroyed by the 1998 wildfires claimed that the failure of some property

owners to engage in prescriptive burning caused the spread of the fires that destroyed

their signs. Several billboard companies made this argument in a series of four

administrative cases involving the Florida Department of Transportation.39

The case with the fullest discussion of the prescribed burning issue is Department

of Transportation v. Whiteco Metrocom.40 The signs at issue were erected prior to the

enactment of state and federal regulations limiting billboards along highways. The

signs did not meet the requirements of these regulations but the company was

permitted to maintain them as non-conforming signs under �grandfather� clauses in the

regulations. The regulations allow non-conforming signs to be re-erected only if they

are destroyed by vandalism, or other criminal or tortious acts.41 The provision relating

to vandalism, crimes, and torts, is an exception to the prohibition on re-erecting non-

conforming signs that are destroyed. Since this provision is an exception to the general

rule, the company bore the burden of proving by a preponderance of the evidence that

its signs met the exception.42 There was no suggestion that vandalism or criminal acts

39 Department of Transportation, v. Whiteco Metrocom, Department of Transportation v. Chancellor Media Whiteco Outdoor Corporation, 1999 WL 1486516 (Fla. Div. Admin. Hrgs.); Department of Transportation v. Lamar EastFlorida, 1999 WL 1486479 (Fla. Div. Admin. Hrgs.);Department of Transportation v. Universal Outdoor Atlantic Coast, 1999 WL 1486495 (Fla. Div. Admin. Hrgs.); Department of Transportation v. Whiteco Metrocom, Department of Transportation v. Chancellor Media Whiteco Outdoor Corporation, 1999 WL 1486515 (Fla. Div. Admin. Hrgs.) 40 Department of Transportation, v. Whiteco Metrocom, Department of Transportation v. Chancellor Media Whiteco Outdoor Corporation, 1999 WL 1486516, (Fla. Div. Admin. Hrgs.) 41 Fla. Admin. Code 14-10.007(1)(f) 42 Whiteco, at ¶ 66.

37

were involved, so the company needed to show that its signs were destroyed by a

tortious act in order to be allowed to re-erect them.

The company alleged that the failure the Division of Forestry and certain

landowners to use prescribed fire was a tort. The company argued that controlled

burning would have reduced the fuel loads in the areas that were eventually burned by

the fire. The Findings of Fact in the Recommended Order included a finding that one of

the primary purposes of prescribed burning is to reduce fuel loads and thereby reduce

fire hazard.43 The Order further found that the failure to prescribed burn increases the

possibility of a wildfire and that if prescribed burns are not done in an area over time

the possibility of the spread of wildfire is foreseeable.44

In the Conclusions of Law section of the Recommended Order, the

Administrative Law Judge (ALJ) stated that the Division of Forestry has no ability to

require prescribed burning and that the DOF cannot enter onto property to conduct

prescribed burning without landowner consent.45 This may be an incorrect

interpretation of the law, as Section 590.125(4), Florida Statutes, provides the DOF with

the authority to conduct prescribed burning on private land. The statute requires

notification of the landowner and requires the DOF to �consider� landowner objections

but it does not require landowner consent. The ALJ appears to have been referring to

provisions of the Prescribed Burning Act that prohibit private parties from burning

without landowner consent. However, even if the ALJ had concluded that the DOF has

43 Id at ¶ 54. 44 Id at ¶ 55. 45 Id at ¶ 75.

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the authority to prescribe burn private land, it may not have changed his ultimate

conclusion. The ALJ determined that the DOF had no common law duty to ask

landowners to use prescribed fire.46 If the ALJ had concluded that the DOF had the

authority to conduct prescribed burning without landowner consent, it still seems likely

that he would have found that the DOF had no duty to do so.

The ALJ further concluded that a property owner does not have a duty to use

prescribed fire to reduce the potential for naturally occurring wildfires to spread on or

across his property.47 The ALJ observed that no duty to engage in prescriptive burning

is found in Florida statutory or case law and that where no duty exists, there can be no

tort liability.48 The ALJ acknowledged the existence of the public policy encouraging

prescribed burning but stated that the failure to act in accordance with public policy, in

the absence of a legal duty to do so, is not a tort.49

The Administrative Law Judges in the other three cases reached the same

conclusions regarding the lack of liability for landowners who fail to prescribe burn.

Unlike court cases, administrative cases do not create binding precedents. Therefore, a

court judge confronted with the same issue could rule differently than the

administrative law judges did in the billboard cases. However, the fact that a judge in a

court case would be interpreting the same law as the administrative law judges reduces

the likelihood of a different outcome. One aspect of the billboard cases that could

lead to a different result in a court case is that the sign companies may not have made

46 Id. 47 Id at ¶ 76. 48 Id. 49 Id.

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the most sympathetic plaintiffs. The sign companies were attempting to take advantage

of a limited exception that would allow them to re-erect their non-conforming signs.

The companies� arguments that landowners committed a tort by failing to use

prescribed fire received much skepticism from the administrative law judges.

Individuals whose homes were destroyed, or even a timberland owner whose trees

were destroyed, might face less skepticism of their motives in bringing such claims.

X. Efforts to Protect Communities from Wildfire without Regulating Forest Management There are alternatives available to local governments concerned with wildfires

that do not require regulation of forest management practices. These alternatives focus

on defensive strategies that reduce the risk of wildfires destroying homes and

communities rather than on reducing the overall risk of fires. Development in the

interface between urban and wild areas increases the risk of property damage from

wildfires. Development policy contributes to property damage from wildfires and must

be addressed in any comprehensive effort to solve the wildfire problem in Florida.

An example of such an alternative is the FireWise Program that promotes

construction and landscaping guidelines to reduce the risk of damage and destruction

from wildland fires. Local governments may incorporate these guidelines into their

land development regulations and building codes. The FireWise Program

acknowledges the vulnerability of structures built in the interface between wildland

and expanding urban areas. The program�s guidelines include special requirements for

developments in this �urban/wildland interface.�

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Alachua County is considering adding a Conservation and Open Space Element

to its comprehensive plan that includes provisions for wildfire mitigation. Many of the

policies outlined in the draft element reflect the principles of the FireWise Program.

Additionally, the draft element would involve land use planning in the effort to reduce

the risk of damage from wildfires by restricting certain uses from designated high-risk

areas. The wildfire mitigation objective of the draft element may represent the most

significant steps that a local government can take under Florida law to protect its

citizens from fire damage.

A. The FireWise Communities Program

The National Fire Protection Association and the U.S. Forest Service developed

the FireWise Communities Program to protect communities in the urban/wildland

interface from wildfire.50 The program is promoted in Florida by the Division of

Forestry and the Department of Community Affairs, Division of Emergency

Management.51 The Program encourages the use of construction and landscaping

techniques to make homes more fire safe.

The City of Ormond Beach is conducting a �FireWise House Demonstration

Project� that provides an example of how local governments can incorporate FireWise

principles into their land development regulations.52 A local government that wishes to

adopt FireWise principles should determine where moderate to high wildfire hazard

50 http://www.firewise.org, March 16, 2001; Letter dated September 26, 2000 from Mr. Bill Butler, Landscape Architect, City of Ormond Beach, to Mr. James B. Harrell, Wildfire Mitigation Coordinator, Bureau of Forest Protection, Division of Forestry, entitled �Firewise House Demonstration Project�. 51 Ibid 52 Ibid

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areas exist in their jurisdiction. Proposed subdivisions in these areas could be subject to

FireWise guidelines. One example is providing a thirty to fifty foot greenbelt buffer

around the perimeter of the subdivision site to be thinned of trees and underbrush.53

Another example is requiring subdivision owners to thin trees in the building footprint

areas of undeveloped lots so that no more than seventy-five percent closure of the tree

canopy remains.54 Removal of underbrush in these areas could be allowed if the lots

were declared to be in high to moderate fire hazard areas. Lands put in conservation

easements in subdivision developments could be subject to management according to

best management practices in perpetuity, which could include controlled burning or

other means of vegetation management and thinning of tree canopy closure.55

Underground utilities and two-way access in and out of subdivisions could be

required.56 On the wildland/urban interface, perimeter lots could be required to be a

minimum of one-half acre in size to allow at least thirty feet of defensible space and

proved greater separation between structures.57

Local governments could require that, if half-acre perimeter lots are not

provided, all lots in the development should be subject to the following requirements:

boxed roof eaves with masonry, metal or wood soffits and metal screens over vents;

non-combustible or combustion resistant exterior building materials; �Class B� or better

roofing materials; irrigated lawn areas; inorganic shrubbery mulch (no wood product or

53 Ibid 54 Ibid 55 Ibid 56 Ibid 57 Ibid

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pine needle mulches); pine tree canopy thinning to less than seventy-five percent of

closure and removing underbrush to achieve at least thirty feet of defensible space

around the structure; wood decks must be constructed so that all crawl space areas

under deck have metal mesh screening and use at least two-by-six-inch pressure treated

wood; and, windows that are double insulated or made of a plastic composite material

that will not shatter from the heat of a fire.58

Local governments could also adopt FireWise landscaping guidelines as

regulations and require eliminating ladder fuels such as vines and low branches of

trees, using fire resistant plants, and providing two to three feet of clearance between

structures and shrubs.59 Owners of existing homes who wish to protect themselves

from fire could follow the FireWise construction and landscaping guidelines. Tax

incentives or low-interest loans could be provided to homeowners to defray the costs of

�FireWise� improvements.

B. Wildfire Mitigation Objective in Proposed Conservation and Open Space Element of the Alachua County Comprehensive Plan

Alachua County is considering adding a Conservation and Open Space Element

to its Comprehensive Plan.60 The draft of this element contains an objective and several

policies for wildfire mitigation. The objective is to, �protect life, property, and the

economy by eliminating or minimizing the present and future vulnerability to wildfire

58 Ibid 59 Ibid 60 The draft Conservation and Open Space Element was presented to the Local Planning Agency at a public hearing on April 16, 2001. A revised draft was presented to the Alachua County Board of County Commissioners at workshops in April and May, 2001.

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hazards.�61 One of the policies calls for mapping and ranking areas of wildfire hazard

within the county using features such as plant community type and development stage,

canopy cover, hydrology, soils, slope, aspect, and elevation.62 The mapping will

initially be based on the Fire Risk Assessment Model contracted by the Florida Division

of Forestry for completion in 2002.63 The mapping is to be reviewed annually and will

be updated as necessary in response to changing fuel conditions.64

Another policy calls for educating the public, especially those at high risk from

wildfires, to promote awareness of proactive steps that can be taken to mitigate wildfire

damage.65 The County intends to implement a FireWise Model Community Program

involving community fire preparation and evaluation and will seek certification by the

state FireWise Communities Certification Program.66

Other policies involve land use planning in the effort to mitigate wildfire risks.

The County will restrict or prohibit land uses in areas at risk from wildfire as necessary

to assure public health, safety, and welfare and the protection of property.67 Land uses

and specific development plans for which adequate wildfire mitigation cannot be

provided, or that would preclude or severely limit the use of wildfire mitigation or

natural resource management options such as prescribed fire, shall not be authorized in

61 Draft Conservation and Open Space Element, Objective 5.6. 62 Ibid at Policy 5.6.1 63 Ibid 64 Ibid 65 Ibid at Policy 5.6.2 66 Ibid at Policy 5.6.4 67 Ibid at Policy 5.6.5, the draft element does not list any particular land uses that may be restricted or prohibited in wildfire hazard areas.

44

severe wildfire hazard areas.68 Development in wildfire hazard areas will be required

to comply with the following minimum standards:

1. All new development shall complete and implement a wildfire mitigation plan specific to that development, subject to review and approval by the Alachua County Fire Rescue Department.

a. The mitigation plan shall include suggested project and parcel design features, such as defensible project perimeters, interior project fuel breaks, individual site defensible space, landscaping guidelines and plant material suggestions, and the placement of structures.

b. Provisions shall be made for community support for and education about the mitigation plan.

c. The mitigation plan shall be reviewed annually and, as necessary, updated in response to changing site conditions.

2. Structures shall be designed to minimize the potential for loss of life and property from wildfires, through requirements for sprinkler systems, fire-resistant materials or treatments, and appropriate site design practices. 3. Water storage facilities, accessible by standard fire-fighting equipment, shall be provided, dedicated, or identified for fighting wildfires. Where public supply is available, fire hydrants of sufficient pressure shall be required. 4. Streets, roads, driveways, bridges, culverts, and cul-de-sacs shall be designed to assure access by fire fighting equipment providing for weight class, cornering, turnaround and overhead clearance.69

The wildfire mitigation objective calls for the County to implement a fuels

management program that would focus on the wildland/urban interface as a wildfire

hazard area.70 This program would include practices such as prescribed burning,

68 Ibid 69 Ibid at Policy 5.6.6. 70 Ibid at Policy 5.6.8.

45

mechanical fuel reduction, and thinning, to reduce wildfire hazards and protect natural

resources.71 Increasing public awareness of both the benefits of both prescribed burning

and the inevitability of resulting smoke is to be a goal of the program.72 The program

will further seek acknowledgement by occupants of areas where prescribed burning is

appropriate that they have been informed that prescribed burning may be used to

manage wildfire hazards and that smoke will occasionally be present.73

The wildfire mitigation objective of Alachua County�s draft element contains a

variety of measures that seek to protect communities from fire damage without

attempting to regulate the forestry industry. These measures acknowledge the fact that

developing in the urban/wildland interface increases the risk of property damage from

wildfires. Forest management is one factor in Florida�s wildfire problem equation, but

development policy is another. Sound forest management practices can reduce the

chance of wildfires occurring in the first place. Responsible land use and development

policies can reduce the risk of damage from wildfires once they do occur.

XI. Conclusions and Recommendations

The Florida Prescribed Burning Act provides significant liability protection for

prescribed burners. The City could encourage landowners to take advantage of the

opportunities under the Act to conduct prescribed burning. The City should initiate a

dialogue with local forestland owners and managers. This dialogue could include a

roundtable discussion between community leaders and landowners concerning

71 Ibid 72 Ibid 73 Ibid

46

management practices. The objectives of such a discussion should include gathering

feedback from landowners on the feasibility of implementing the various management

practices recommended in this report. The City may also investigate the possibility of

sponsoring a prescribed fire education program for local landowners and managers.

Officials from the Division of Forestry should be involved in such a program and could

work with local landowners to facilitate the use of prescribed fire.

Florida Statutes also provide a precedent for government-conducted, involuntary

burning of private land. The City could seek to have the Division of Forestry burn

private land under these provisions of the Act.

There are precedents for requiring prescribed burning in local government

ordinances in Florida. The City could enact an ordinance using existing ordinances

from elsewhere in the state as examples. However, since much of the forestland at issue

lies outside of the Waldo city limits, it would be more effective to seek enactment of an

ordinance by Alachua County. It should be noted that the Florida Right to Farm Act

could prevent the application of an ordinance to any land that is in active timber

production.

Florida case law does not provide support for the idea of imposing liability on a

timberland owner who fails to reduce the accumulation of flammable vegetation on his

property. The City of Waldo could lobby the state legislature to create a cause of action

against landowners who do not employ wildfire hazard mitigation measures. Attaining

legislative action could prove difficult and controversial. Additionally, the potential

47

liability that such a cause of action would create might have the undesirable effect of

discouraging forestry as a land use.

The proposed Conservation and Open Space Element of the Alachua County

Comprehensive Plan contains policies relating to wildfire mitigation that could benefit

the City of Waldo and communities throughout the county. The City should support

the adoption of the draft element into the comprehensive plan. The City may also

consider incorporating principles of the FireWise Communities Program into its own

regulations. The City should also consider having the appropriate officials attend a

FireWise workshop. Since the City may lack the authority to regulate forest

management practices, adopting defensive strategies may be the most significant step it

can take to protect its residents from the threats posed by wildfire.

The availability of financial subsidies and tax incentives for wildfire hazard

mitigation should be explored. Federal, State, and local programs are in place to

provide such assistance, and should be coordinated for a Waldo-specific project. The

eligibility of timberlands for conservation easements under various programs,

including Alachua County Forever, should also be examined.74

Educating the public about the benefits of prescribed fire is also recommended.

Residents of areas where prescribed burning is to be conducted must be made aware of

its benefits. These residents should be informed that prescribed fire will produce smoke

74 One potential source of assistance is the �Rural and Family Lands Protection Act� passed by the Florida Legislature in the 2001 session. The Act is scheduled to go into effect on July 1, 2001 and will be codified in Florida Statutes §§ 570.70-71. The Act calls for incentives to reward landowners for good stewardship of land and natural resources. The Act established programs for land acquisition, perpetual conservation easements, agricultural protection agreements, and resource conservation agreements. The Act calls for these programs to give preferences to ranch and timberlands managed using sustainable practices.

48

but that this is a minor inconvenience compared to the damage and destruction from

smoke and fire that a wildfire would produce. Because there is great public awareness

of and concern over the threats posed by wildfire, it is particularly important for the

public to understand that prescribed fire reduces the risk of wildfire.

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APPENDIX 1

Sources of Information on Wildfire in Florida Prescribed Fire Information from Florida Division of Forestry�s Fire and Forest Protection Bureau http://flame.fl-dof.com/Env/fire.html Florida Fire Weather from Florida Division of Forestry�s Fire and Forest Protection Bureau http://flame.fl-dof.com/fire_weather/nws/ Florida Division of Forestry�s Wildland Fire Information

http://www.fl-dof.com/fire2001/index.html Florida Division of Forestry�s Wildfire Season Forecast http://flame.fl-dof.com/fire_weather/lr_outlook/seasonal.html "Fight Fire with Fire!" is a web site designed for Floridians to learn how to protect themselves and their homes from the threat of wildfire. http://www.prescribed-fire.org/ A Guide for Prescribed Fire in Southern Forests USDA, Forest Service Southern Region, 1989; Tech. Pub. R8-TP 11 Dale D. Wade, Southeastern Forest Experiment Station; and James D. Lunsford, Fire Management, Southern Region, USDA Forest Service http://flame.fl-dof.com/Env/RX/guide/ USDA Forest Service�s Fire site http://www.fs.fed.us/fire/ National Interagency Fire Center�s site (all federal agencies responsible for fire management � Bureau of Land Management, Bureau of Indian Affairs, US Fish and Wildlife Service, National Park Service, US Forest Service, National Oceanic and Atmospheric Administration, Office of Aircraft Services, and National Association of State Foresters) http://www.nifc.gov/ Fire in Florida�s Ecosystems A fire ecology instructional package for Florida educators (training and materials) http://pandionsystems.com/FIFE/ Woods on fire (from the Why Files)

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This edition of The Why Files examines the role of fire in natural systems, and the role of science in understanding wildfires. http://whyfiles.org/018forest_fire/ FireWise � the National Wildland � Urban Interface Fire Protection Program

http://www.firewise.org/ Tall Timbers Research Station � the originators of fire ecology research & education. Check out their Fire Ecology Literature Database! http://www.talltimbers.org/ For the latest KBDI (the Keetch Byram Drought Index � an index of fuel moisture): http://flame.fl-dof.com/fire_weather/kbdi/ For information on climate, check out the National Oceanic and Atmospheric Association (NOAA) National Climatic Data Center: http://www.ncdc.noaa.gov/ncdc.html

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APPENDIX 2

Workshop �Wildfire in Florida�s Forests: Issues of Law and Management�

Public review of our presentation was given to recognized experts in fire management, land planning, and environmental law in northern Florida. Below is the invitation list, letter of invitation, and agenda for the Workshop. Invitees (in alphabetical order by affiliation): Alachua County Attorney�s Office Dave Wagner County Attorney

Dave Schwartz Alachua County Commission Dave Newport, Chair

Mike Byerly Robert Hutchinson Rodney Long Penny Wheat

Alachua County Environmental Protection Chris Byrd Alachua County Fire Rescue Will May Alachua County Growth Management Rick Drummond Alachua County Office of Emergency Management Steve Abrams Auburn University School of Forestry & Wildlife Sciences Mark Dubois Glenn Glover, Private Forest Management Team City of Waldo

Louie Davis, Mayor Lee Vincent, City Manager

Consulting Foresters Bob Simons, Gainesville Russell Weber, F & W Forestry Services

Florida Division of Forestry Jim Brenner Dave Conser

Mike Long Doug Voltolina

Don West

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Florida Forestry Association Jeff Doran, Executive Vice President Georgia-Pacific

Phil Parker Joseph W. Jones Ecological Research Center at Ichauway Kevin McIntyre Natural Resources Planning Service Tom Mastin Pandion Systems Anne Barkdoll Susan Marynowski Rayonier Dan Roach St. John�s River Water Management District Clay Albright, Governing Board

Steven Miller Lori Hazel Suwannee River Water Management District Charlie Houder Tall Timbers Research Station Lane Green, Director The Longleaf Alliance Mark Hainds The Nature Conservancy Fire Management Paula Seamon USDA Forest Service Southern Research Station Annie Hermansen Thomas Holmes

Ken Outcalt Dale Wade University of Florida Department of Botany Dr. F. E. �Jack� Putz University of Florida College of Natural Resources and Environment Dr. Stephen Humphrey, Dean University of Florida Frederic G. Levin College of Law Tom Ankersen Center for Governmental Responsibility

Richard Hamann Center for Governmental Responsibility University of Florida School of Forest Resources and Conservation Dr. Wayne Smith, Director Dr. Janaki Alavalapati Dr. Doug Carter Dr. Mary Duryea Dr. Eric Jokela

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Dr. Alan Long Dr. Martha Monroe Dr. Dan Zarin

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Wildfire in Florida�s Forests: Issues of Law and Management Workshop Date: March 28, 2001

Location: Austin Cary Memorial Forest, near Gainesville, FL (see map)

AGENDA

1:00 � 1:15: Sponsor Welcome and Introductions 1:15 � 2:00: Case Study: The Waldo Fire of 1998�Wildfire Impacts on Local

Communities, Forest Management and Forestry�s Future in the Southeast Morgan Varner and David Steinau, Univ. of Florida Conservation Law Clinic

2:00 � 2:20: Critical Issues Identification 2:20 � 2:45: Coffee Break and Critical Issue Ranking 2:45 � 3:45: Presentations by Invited Representatives from: Florida Division of Forestry, Fire Management Administration Florida Forestry Association Alachua County Government Association of Consulting Foresters 3:45 � 4:45: Questions, Comments, and Facilitated Discussion 4:45 � 5:00: Closing Comments

Sponsored by: The Forest Management Trust University of Florida School of Forest Resources and Conservation University of Florida Levin College of Law Conservation Law Clinic City of Waldo Directions to the Austin Cary Memorial Forest: From I-75 Exit 76, travel East through Gainesville to Waldo Road (FL State Road 24). Turn left (North) and travel 8.3 miles to the ACMF � follow signs to Conference Center. See attached map, and please call if confused. Contacts: Morgan Varner David Steinau Stephen Taranto Ph. D. Candidate J. D. Candidate Program Manager U. of Florida Ecology Program U. of Florida Levin College of Law The Forest Management Trust (352) 392-7165 (904) 389-2501 (352) 846-2240 longleaf@ufl.edu dsteinau@yahoo.com staranto@foresttrust.org

Tom Ankersen, J. D. F. E. �Jack� Putz, Ph. D. Director & Professor Professor U. of Florida Conservation Clinic U. of Florida Botany Department (352) 392-2237 (352) 392-1486 ankersen@law.ufl.edu fep@botany.ufl.edu

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February 28, 2001 Name Organization Address

Dear ________,

Following up on our earlier communication, we are pleased to invite you to a workshop entitled �Wildfire in Florida�s Forests: Issues of Law and Management� to be convened at the Austin Cary Memorial Forest on March 28th. In response to the devastating effects of the 1998 fires on rural communities, The Forest Management Trust, the University of Florida School of Forest Resources and Conservation, the University of Florida Conservation Law Clinic, and the City of Waldo are sponsoring a half-day workshop addressing:

• The influence of land management practices on wildfires • Legal issues associated with wildfire and forest management • Strategies for forest owners and managers to reduce fuels • Strategies for rural communities to address fire danger • The future of forestry as a land-use in an increasingly suburban southeast

The meeting will convene wildfire, forestry, and legal experts from the southeast, present a case study from Waldo, and generate management, legal, and planning suggestions to address this important issue. Our hope is that attendees will provide expert criticism of our work to date, join in spirited discussions with other invited experts, and leave the workshop with a greater understanding of the linkages among law, wildfire, and forest management. Please join us March 28th. For more information, please contact The Forest Management Trust at (352) 846-2240. Sincerely, Morgan Varner Stephen Taranto Ph. D. Candidate Program Manager Ecology Program The Forest Management Trust University of Florida (352) 846-2240 (352) 392-7165 staranto@foresttrust.org longleaf@ufl.edu

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Appendix 3. Large Timberland Owners (> 100 acre parcels) in Waldo, FL�s surrounding 20,000 + acres. Listings are in alphabetical order. Compiled from Alachua County Property Appraiser�s 2001 data. 1. Bontemps, Sonia 443 Middle Street West Newbury, MA 01985-1720 2. Burch, E W, Jr. 4337 NW 6th St Suite B Gainesville, FL 32609-1792 3. Crapps, P C, Jr. & Virginia PO Box 328 Live Oak, FL 32064-0328 4. Dougherty & Sanders PO Box 206 Waldo, FL 32694-0206 5. Drew, O Dale Trustee PO Box 18 Waldo, FL 32694-0018 6. Florida Timber Co. (incl. Chivas, Inc. and Golden Pond Farms Inc.) PO Box 357133 Gainesville, FL 32635-7133 7. Harris & Harris & Harris (and other Harris�s) PO Box 131 Waldo, FL 32694-0131 8. Hudson Pulp and Paper Corporation PO Box 1040 Palatka, FL 32178-1040 9. North America Timber Corporation 100 Peachtree St NW Suite 2650 Atlanta, GA 30303-1933 10. Padgett, C D & Jackie (and other Padgett�s in Gainesville & other FL addresses) PO Box 13743 Gainesville, FL 32604-1743 11. Rayonier Timberlands Rayonier Woodlands, LLC

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PO Box 728 Fernandina Beach, FL 32035 12. Robinson & Robinson & Robinson & Turner (& other Robinson�s in Hawthorne) PO Box 2048 Hawthorne, FL 32640-2048 13. Smith, C G & Juanita PO Box 175 Waldo, FL 32694-0175 14. State of Florida 15. Suwannee River Water Management District 9225 County Road 49 Live Oak, FL 32060-7056 16. Tatum Timber & Land LTD PO Box A Lawtey, FL 32058-0701 Summary Table of Land Ownerships in 20,480 acre area surrounding Waldo, FL. Number of sections 32 Approx. acreage 20480 Number of parcels 1007 Timberland acres 17376 84.8% Large (>100 ac) owners 16 see above for information Residential acres 1913.6 9.4% Commercial acres 710.4 3.5% Other uses acres 480 2.4% Number of sections with One owner 10 (31.3%) Fewer than 4 owners 17 (53.1%) Less than 70% timberland 3 (9.4%) divided among 680 owners