Oklahoma

Under Oklahoma’s Forestry Code (the Code), a prescribed burn of vegetative fuels conducted as required by the Code is a property right and in the public interest. 2 Okla. Stat. § 16-28.2(F). Compliance with State law also prohibits liability for public or private nuisance. § 16.28.2(F).

The Code defines prescribed burning as the “controlled application by the owner of croplands, rangelands, or forestlands of fire to naturally occurring vegetative fuel under specified environmental conditions and following appropriate precautionary measures, which causes the fire to be confined to a predetermined area and accomplish land management objectives.” § 16-2(8). Prescribed burning is lawful on croplands, rangelands, grasslands, forestlands, and other wild lands for the purposes of: “(1) Managing and manipulating plant species present whether grass, weeds, brush, or trees; (2) Destroying detrimental or unwanted plants, plant parts, shrubs or trees on the [land]; and (3) Cedar tree eradication.” §16-24.1(A).

A lawful prescribed burn involves four requirements.

1. Prescribed Burn Notification Plan

The landowner must complete a prescribed burn notification plan in the form provided by the statute, see § 16-28.2(C), and submit the plan to the nearest rural fire department. And, if the land prescribed for burning is in a protection area, a copy of the plan also must be submitted to the local office of Oklahoma’s Forestry Division. §16-28.2(C). Oklahoma State University Extension makes a Burn Plan for Prescribed Burning template available with other resources here: https://extension.okstate.edu/fact-sheets/burnplan-for-prescribed-burning.html.

2. Notice to Adjoining Landowners

Within sixty days of the date of the prescribed burn, the landowner must notify, orally or in writing, all adjoining landowners. § 16-28.2(B)(1). Additionally, although the statute permits oral notification, written notification with a copy in your records would better protect against liability if damage or injury occurs. Further, if the prescribed burn involves a large, consolidated tract with multiple adjacent owners, “only those owners with adjoining land within one (1) mile of the proposed burn area must be notified.” § 1628.2(B)(2). The notice must include the proposed date and location of the prescribed burn, and the telephone number where the landowner may be reached for information regarding the prescribed burn. §16-28.2(B)(3).

3. Notice to Rural Fire Department Within Forty-Eight Hours

The landowner—within 48 hours of conducting a prescribed burn—must notify the rural far department receiving a copy of the prescribed burn notification plan that the burn will be conducted. § 16-28.2(E). Additionally, if the land prescribed for burning is in a protection area, the landowner must notify the local office of the Forestry Division at least four (4) hours in advance and receive verbal or written approval. § 16-28.2(E); §16-28.1(A). As stated above, written approval would provide more protection if any claims arise.

4. Adequate Firelines, Manpower, and Equipment

For a burn to be lawful outside a protection area, the landowner must “take reasonable precaution against the spreading of fire to other lands by providing adequate firelines, manpower, and fire fighting equipment for the control of the fire, watch over the fire until it is extinguished, and not permit fire to escape to adjoining land.” § 16-28.1(A)(2).

Additionally, the Code explicitly prohibits the setting of any fire in a county during a “gubernatorially proclaimed extraordinary danger from fire” or an “extreme fire danger” resolution passed by the board of county commissions. § 16-26(A), (B). In the latter scenario, an agricultural producer may proceed with a prescribed burn so long as the requirements above are adhered to and (1) a prescribed burn plan is prepared as outlined in the statute, submitted to the local fire department at least 72 hours in advance, and a copy is available on site during the prescribed burn and (2) the county sheriff and local fire department’s dispatch center are notified prior to conducting the prescribed burn. § 16-26(B)(4).

Oklahoma Controlled Burn Indemnity Fund

The Oklahoma Controlled Burn Indemnity Fund was “established for the benefit of landowners who perform controlled burns . . . [to] compensate landowners for losses incurred from a fire that spreads beyond the control of the burner, except for losses covered by insurance.” 2 Okla. Stat. § 16-28.3(B). To participate in the Fund, a landowner must:

1. Work with the local conservation district office and the Natural Resources Conservation Service of the United States Department of Agriculture to develop a controlled burn plan based on the United States Department of Agriculture Natural Resources Conservation Service guidelines; and

2. At the time of filing the completed plan, provide payment of One Hundred Dollars ($100.00) to the Conservation Commission.

§16-28.3(C). If a loss is incurred, the landowner must present a claim to the Conservation Commission with required evidence.

§16-28.3(D). The Commission has promulgated rules for eligible losses, claims, and deadlines. See Okla. Admin. Code 155:45-1-1 et seq. However, to date the Controlled Burn Indemnity Fund has not received any funding.

Civil Liability Oklahoma

Compliance with the Code for lawful burning protects a landowner from criminal liability and limits recovery for civil liability to actual damages. Specifically, if damage or injury results from “accident or ordinary negligence,” the landowner “shall only be civilly liable for actual damages. § 16-28.2(G)(1). Oklahoma statute provides for three levels of negligence—slight, ordinary, and gross—and defines ordinary negligence as a lack of “ordinary care and diligence.” 25 Okla. Stat. § 6.

Criminal Liability

A landowner found “to have committed gross negligence in conducting the prescribed burn” may be held civilly liable for actual damages and criminally liable, including a fine of up to $500 or imprisonment for no more than six months. 2 Okla. Stat. § 16-28.2(G)(2). Additionally, if a prescribed burn is “carelessly” allowed to burn the land of another, the imprisonment sentence may be as long as one year. § 16-25(B). Further, such carelessness permits the landowner or burner to be held liable for “reasonable costs and expenses” of suppression. § 16-32. If suppression costs and expenses are not paid within 90 days after a written demand by the Forestry Division, then the case may be referred to the district attorney for collection. Id.

Oklahoma case law defines gross negligence as “[t]he intentional failure to perform a manifest duty in reckless disregard of the consequences or in callous indifference to the life, liberty or property of another.” Fox v.Oklahoma Mem’l Hosp., 1989 OK 38, 774 P.2d 459, 461. Although no decisions explore the application of this definition to prescribed fire, an intentional failure to adhere to the requirements above would be an important consideration for the judge or jury.

Oklahoma