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Forest and Wildlife Research CenterMississippi State UniversityResearch Bulletin

The Forest and Wildlife Research Center at Mississippi State University was established by the MississippiLegislature with the passage of the Renewable Natural Resources Research Act of 1994. The mission of theCenter is to conduct research and technical assistance programs relevant to the efficient management andutilization of the forest, wildlife, and fisheries of the state and region, and the protection and enhancementof the natural environment associated with these resources. FWRC scientists conduct research in laboratoriesand forests administered by the University and cooperating agencies and industries throughout the country.Research results are made available to potential users through the University’s educational program andthrough Center publications such as this, which are directed as appropriate to forest landowners and managers,manufacturers and users of forest products, leaders of government and industry, the scientific community, andthe general public. Dr. George M. Hopper is director of the Forest and Wildlife Research Center.To Order CopiesCopies of this and other Forest and Wildlife Research Center publications are available from:Publications OfficeForest and Wildlife Research CenterBox 9680Mississippi State, MS 39762-9680Please indicate author(s), title and publication number if known.Publications are also available at the web site at www.fwrc.msstate.eduAuthorsChangyou “Edwin” Sun is an assistant professor in the Department of Forestry. His research interest includeforest law and policy. Andrew J. Londo is an associate professor and coordinator of extension forestry in theDepartment of Forestry. His research interest include silviculture and fire ecology.CitationSun, C., A.J. Londo. 2008. Legal environment for forestry prescribed burning in Mississippi. Forest andWildlife Research Center, Research Bulletin FO351, Mississippi State University. 22 pp.Research Bulletin FO351Forest and Wildlife Research CenterMississippi State University

Legal Environment for ForestryPrescribed Burning in MississippibyChangyou Sun and Andrew J. LondoForest and Wildlife Research CenterMississippi State University

Table of ContentsIntroduction. 1Common Law for Prescribed Burning in Mississippi. 2Statutory Law for Prescribed Burning in Mississippi. 4Administrative Law for Prescribed Burning in Mississippi. 6Summary. 10Useful Linkages to Prescribed Burning. 11References Cited. 12Exhibit l. 13Exhibit ll. 17Exhibit lll. 19Figure 1 Site Map. 21Figure 2 Area Map. 22

IntroductionFor the 19.8 million acres of forest land inMississippi, prescribed burning has been one ofthe major management tools available to forestlandowners. Benefits associated with prescribedburning have long been recognized in the forestrycommunity. These include vegetation control,wildlife habitat improvement, site preparation forregeneration, disease control, fuel reduction, andwildfire prevention (McNabb 2001). Yet, even withthese advantages, the use of prescribed burninghas become more challenging in recent years. To alarge degree, this is due to the increasing concernsof landowners over liability exposure and legalconsequences from smoke and escaped fires.The legal environment of prescribed burning onforest land is composed of various laws. In general,laws come from four sources: common law, statutorylaw, administrative law, and Constitutional law (Esheeet al. 2005). Common law is rooted in the commonpractices of people. As a body of law derived fromjudicial decisions, common law also is referred to asjudge-made law. Statutes are created by legislativebodies (i.e., the U.S. Congress and state legislatures).While common law has greater flexibility in dealingwith specific factual circumstances, statutory lawusually provide more specific treatments for agiven issue. Administrative law refers to the vastbody of law promulgated by various administrativeagencies which operate much of our governmenton a daily basis. Constitutions are the basis of thegovernment framework and the cornerstone of thelegal system. For prescribed burning, commonlaw has been the dominant source of law for manyyears while Constitutional law has rarely been thecenter. Statutory laws and associated administrativeregulations have become gradually more important forprescribed burning on forest land in the South since1990.The purpose of this publication is to reviewrelevant laws related to the use of prescribedburning on forest land in Mississippi. These laws aresummarized under three categories: common law,statutory law, and administrative law. Several courtcases are reviewed to elaborate the legal principlesthat have been required by the courts in Mississippi.This is followed by the examination of statutory lawsrelated to prescribed burning in Mississippi. Emphasiswill be placed on the Mississippi Prescribed BurningAct of 1992, a statutory law specifically enacted forprescribed fire. Administrative laws and regulationsrelated to this Act have been promulgated by theMississippi Forestry Commission and they also willbe analyzed. At the end, useful linkages relatedto the legal environment of prescribed burning arepresented. This publication will be helpful for forestlandowners and managers in Mississippi to understandthe legal environment ofprescribed burning. It alsocan raise the awareness ofthese existing administrativeregulations for prescribedburning, and increasethe complianceamong forestlandowners andprofessionals inMississippi.1

Common Law for Prescribed Burning inMississippiTwo aspects of common law are related toprescribed burning on forest land—property law andtort law. Property law deals with the right of ownersto use their land as they see fit in relationship to othersin society (Eshee et al. 2005). For forest landowners,it has been long recognized and rooted in commonlaw that they have the right to set fire intentionallyon their land for a legitimate management purpose,such as burning brush. In contrast, tort law pertainsto civil harms occurring to people or properties, and itcovers all civil wrongdoing except breach of contract.Prescribed fire may spread onto someone’s land,and cause personal injuries or property damages, orboth. Considering property law and tort law togetherfor forest landowners, the balance between propertyrights and tort protection specifies the way of usingprescribed burning on forest land.When prescribed burning results in personal injuryor property loss, tort law can provide the remedyto resolve the dispute between the injurer (i.e.,landowner or burner) and the victim. Among thevarious tort rules, discussions of the common law forprescribed burning usually concentrate on negligencetort rules. Several cases in Mississippi have elaboratedthese negligence rules well. In addition, forestlandowners may also be held vicariously liable forthe negligent acts of their employees or independentcontractors. Vicarious liability and the relevant casesare also examined below.a manner which is not negligent toward them.Different activities and situations dictate specialduties. When the duty has been established, thenext determination is whether or not the defendanthas breached the duty. Should the conduct of aperson not achieve the standard of care demandedby society and decided by the court, then the dutyhas been breached. Furthermore, there should be aclose causal connection between the breach of dutyby the defendant and the loss sustained by the victim.Finally, the plaintiff must prove that actual loss hasbeen suffered.The number of Mississippi cases involvingprescribed burning is small. However, the few casesthat have been decided offer good guidance (Esheeand Savelle 1993). In the case of Wofford v. Johnson(1964), Holliday, an employee of the defendantJohnson, pushed up several piles of brush with abulldozer and set one pile on fire at about 3:00 p.m.on March 23, 1964. The pile was approximatelythirty feet in diameter and about one hundred andfifty-two feet from the woods on Johnson’s land. Theburning pile and woods were separated by a stretchof green rye grass. The fire was not checked thatnight. The next morning Holliday observed Johnson’swoods burning but made no effort to control thefire. Johnson was informed of the fire but madeno effort to control it. The fire spread to Wofford’sproperty where it burned over six hundred and eightytwo acres causing extensive damage. The weatherconditions for that time of the year were very dry.The court held that when a property owner or hisemployees set a fire on his own property for a lawfulpurpose, he would not be liable for damage causedby the spread of the fire to the property of anotherunless he was negligent in starting or controlling thefire. The court found that the measure of diligencerequired was ordinary care. Ordinary care wasdefined as such care, caution and diligence as aprudent and reasonable person would exercise underNegligence Tort Rules and Mississippi NegligenceCasesNegligence rules permit a defense that theaccident occurred despite the fact that the defendantsatisfied all applicable standards of care. Thus, theymay allow the defendant to reduce or even avoidliability (Eshee et al. 2005). Proof of negligencerequires four elements: duty, breach of a duty (i.e.,fault), causation, and loss. Duty is the obligationthat each person in society owes others to act in2

the circumstances to prevent damage to others. Suchcare must be used in setting the fire and in keepingit or preventing its spread. The duty of ordinary careshould be commensurate with the danger reasonablyto be anticipated and dependent on the circumstancesin the particular case. Given these standards andfacts, the court found that the landowner in this casewas negligent.In Robinson v. Turfit (1941), the court stated thatin determining what action would be negligence, thecourt held that many factors had to be considered.Some of these factors included: conditions andcircumstances surrounding the guarding of fire toprevent its spread, the number and magnitude of fires,the condition of the soil and the amount of litter, thestate of the weather, the direction and force of thewind, and the relative situation and exposure of theproperty of the plaintiff. Other factors to considerwould be the type of fuel in the fire, the number offire fighters available, the experience and level oftraining of the fire fighters, and the type and amountof equipment available for controlling the fire.type he was hired to perform during the workinghours. Thus, a forest landowner, whose agents oremployees are negligent in conducting prescribedburning, may be held vicariously liable for thenegligent acts of his employees, if such agents oremployees were acting within the scope of theiremployment when the negligence occurred.Gloster Lumber Company v. Wilkerson (1918)illustrated the doctrine of Respondeat Superior and itsapplication to prescribed burning well. In this case,the employees of Gloster Lumber Company wereburning a tract of land. The fire crossed over ontothe land of the plaintiff and burned over fifty acres.The employees of Gloster Lumber Company werefound negligent in their control of the fire, and as aconsequence the employer, Gloster Lumber Company,was held vicariously liable for the damages caused bytheir negligence. The negligent employees were alsoheld liable (Eshee and Savelle 1993).In Gulf Oil Corp. v. Turner (1970), the burnercontracted as an independent contractor with thelandowner Gulf Oil Corp. to burn 100 acres ofwoodland (See Exhibit I). However, during theburning, the foreman from Gulf Oil Corp. controlledthe burner in setting the fire. As a result, the courtrefused to admit the contract and held that the burnerwas not independent of Gulf. The burner as theemployee of Gulf was not responsible for the burningwhich produced smoke that covered a portion of thehighway where an automobile accident ultimatelyoccurred. Gulf as the landowner and employer wasresponsible for all the negligence and damages fromthe fire.It should be noted that an employer cannotprotect himself from liability by imposing safety ruleson his employees or by giving his employees specificand detailed orders to proceed with their work in acareful manner (Eshee et al. 2005). The doctrine ofRespondeat Superior goes beyond negligent torts.The employer may be held liable for intentionaltorts of the employee when the intentional torts arereasonably connected with the employment and arewithin the scope of employment.Vicarious Liability of Landowners for TortsCommitted by Burners as EmployeesForest landowners must be aware that the actsof their employees or agents may subject them tovicarious liability. Vicarious liability is the liability ofone individual, without any wrongful conduct on hispart, for the wrong committed by another (Eshee et al.2005).Under the doctrine of Respondeat Superior,an employer is liable for the negligent acts of hisemployee, if such negligent acts occurred whilethe employee was acting within the scope of hisemployment (Eshee and Savelle 1993, Eshee et al.2005). An employee is a person employed to renderservices to an employer. The employer retains theright to control the employee in the method and wayof rendering services. The essential feature of theemployer/employee relationship is that the employerhas the right to control the physical activities of theemployee, as well as the manner of accomplishmentof the employment duties. Scope of employmentmeans the work the employee is engaged in is the3

independent contractor usually owns his own businessand uses his own tools, while the employee generallydepends on the employer to furnish these items.The purpose for distinguishing between theemployee and the independent contractor is becausethe doctrine of Respondeat Superior usually appliesto the employee but not the independent contractor.The employer will generally not be held liable fornegligent wrongs of an independent contractorunless ultra-hazardous activities are conducted. TheSupreme Court of Florida in Madison v. Midyette(1989) held prescribed burning to be an inherentlydangerous activity and ruled that the employer (i.e.,the forest landowner in the case) was vicariouslyliable for a burning contractor’s negligence. Thecourt said that setting a fire clearly is a dangerousactivity because it is inherently dangerous. To date,Mississippi courts have not defined prescribed burningas an ultra-hazardous or inherently dangerous activity.Vicarious Liability of Landowners for TortsCommitted by Burners as Independent ContractorsAn independent contractor is different froman employee in several aspects. Although theindependent contractor works for the employer,the employer has no right to control the contractorin the method, way, or mode of accomplishing andcompleting the work. The independent contractorcontracts with the employer regarding the resultsto be accomplished—not regarding the manner orprocedure for accomplishing and completing thework. The independent contractor is usually paid anegotiated, lump sum for the entire job, while theemployee is normally paid a wage. Although thecompleted job must meet certain specifications,the method of performance is entirely within thediscretion of the contractor. The independentcontractor usually possesses a higher degree ofskill or expertise than the normal employee. TheStatutory Law for Prescribed Burning inMississippiSeveral statutes in Mississippi are related to theintentional use of fire for forest land management.While the Mississippi Prescribed Burning Act of 1992was specifically enacted for prescribed burning onforest land, two other statutes are also related, asexplained below.Two existing statutes in Mississippi are closelyrelated to prescribed burning on forest land. Onedeals with arson and willfully or negligently settingfires to woods, defined in Section 97-17-13 ofMississippi Code Annotated (1972 as amended). Theother is about trespass by firing woods, defined inSection 95-5-25 of Mississippi Code Annotated (1972as amended). The two statutes are listed as follows.Section 97-17-13 Arson; willfully or negligently firing woods, marsh,meadow, etc.“If any person willfully, maliciously, and feloniously sets on fire any woods, meadow,marsh, field or prairie, not his own, he shall be guilty of a felony and shall, upon conviction, be sentencedto the state penitentiary for not more than two (2) years nor less than one year, or fined not less than twohundred dollars ( 200.00) nor more than one thousand dollars ( 1,000.00), or both, in the discretion ofthe court.Provided, however, if any person recklessly or with gross negligence causes fire to be communicated toany woods, meadow, marsh, field or prairie, not his own, he shall be guilty of a misdemeanor and shall, onconviction, be fined not less than twenty dollars ( 20.00) nor more than five hundred dollars ( 500.00), orimprisoned in the county jail not more than three (3) months, or both, in the discretion of the court.”4

Section 95-5-25 By firingwoodsis the intentional failure to perform a manifest dutyin reckless disregard of the consequences affectingthe life, health or property of another. One foundgrossly negligent in conducting his prescribed burningactivities may be held liable for damages caused by hisgross negligence. That person would also be subjectto criminal prosecution for the same acts of grossnegligence.Both of these statutes have their origination fromcodes enacted over 100 years ago. The primarypurposes of these statutes are to protect forests andprivate property. In contrast, prescribed burning onforest land is intentional use of fires with forest landmanagement as the legitimate purpose. Thus, thetwo statutes may not apply to prescribed burning onforest land in many situations. Nevertheless, theyare related to the use of fires on forest land and oftendeclared in courts by plaintiffs.“If any person shall set on fire any landsof another, or shall wantonly, negligently, or carelesslyallow any fire to get into the lands of another, heshall be liable to the person injured thereby, not onlyfor the injury to or destruction of buildings, fences,and the like, but for the burning and injury of trees,timber, and grass, and damage to the range as well;and shall moreover be liable to a penalty of onehundred and fifty dollars in favor of the owner.”These statutes are closely related to intentionaltorts or gross negligence. Intentional torts likearson are similar to crimes in many as

The legal environment of prescribed burning on forest land is composed of various laws. in general, laws come from four sources: common law, statutory law, administrative law, and Constitutional law (Eshee et al. 2005). Common law is rooted in the common practices of people. As a body of law derived from

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