Fire Administration for Special Situations

As many Nature Conservancy fire management programs have developed close working relationships with private and public partners, the number of non-standard, or special fire management situations, has grown significantly. This is a positive step for the organization, but we must be mindful to ensure proper documentation is in place to protect the Conservancy and our staff, and to clearly define working relationships on collaborative projects.

Examples of special situations include:

• Conservancy Representatives directing prescribed fire management on land not owned by the Conservancy
• Individuals who are not Conservancy Representatives directing prescribed fire management on Conservancy land at our request
• Conservancy Representatives participate on cooperative prescribed burns not directly under the control of TNC
• Conservancy staff participating in mutual aid or suppression efforts with partner agencies or organizations

The following sections explain these special circumstances and the administrative procedures associated with them. Be sure to accurately determine your situation. If your situation does not fit any of those described, or if you have questions, contact your Fire Manager or the Fire Management Coordinator.

When TNC Does Fire Management for Others

There are a variety of reasons for the Conservancy to burn on non-TNC land. For example, the organization may have a management agreement on private land, may be demonstrating the efficacy of prescribed fire as a management tool, or may be assisting in native seed production. All TNC fire management requirements and guidelines apply to burns conducted by Conservancy Representatives on lands belonging to others.

When the Conservancy burns on non-TNC property, we must obtain: 1) written permission to enter the property, and 2) permission to conduct the burn. See the legal section of the Fire Intranet site for permission forms and consult with your regional attorney regarding which one to use.

It is usually in the Conservancy's best interest and appropriate to have the landowner waive claims he or she may have against the Conservancy related to a prescribed burn. Different waivers afford varying degrees of protection to the Conservancy; which waiver is used in a given situation is determined at the program or state level. Additional information on waivers and example documents are included on the Fire Intranet site. Your Conservancy Attorney should always be consulted for advice on the wording of waivers and legal ramifications.The Fire Manager should be consulted on burn complexity and risk management strategies as waivers are considered. If special circumstances arise over liability and indemnification, you should also consult the Fire Management Coordinator.

If one of the waiver forms available on the legal section of the Conservancy Fire Intranet site does not fit your situation, your Conservancy attorney will help you develop a customized waiver.

All of the permission, waiver and indemnity agreements used must include the following two attachments:

Map: A map showing the landowner's property must be attached to each form. The map must be of good quality and plainly locate and label the burn unit within the property boundaries.

Information for Landowners: Each form must include as an attachment the handout entitled "Important Information for Landowners About Risks from Prescribed Burn Activities." Give the landowner time to read this handout and an opportunity to ask questions before signing the form.

When TNC Participates on Burns of Partner Organizations or Agencies

When Conservancy Representatives participate on burns that are under the direction of another agency or partner (non-TNC Representatives), our Representatives must meet and follow all TNC guidelines concerning physical fitness and safety, including PPE. The agency or organization conducting the burn must follow burn procedures that are equivalent to, but not necessarily exactly the same as, the Conservancy's. In other words, such burns must have an agency/organization approved burn plan, be conducted with a high regard for safety, and be led by an experienced Burn Boss. If there are questions or reservations about regard for safety, risk management, adequate equipment, training, or other serious concerns, Conservancy staff should not participate on the non-TNC burn.

The special circumstances and requirements involved in cooperating on non-TNC burns are frequently spelled out in a formal Memorandum of Understanding or Cooperative Agreement between the Conservancy and its partner organization/agency. It may be useful to develop such a document if you foresee cooperative burning to be a regular event. See examples of MOUs and Cooperative Agreements. Your Conservancy Attorney can provide assistance in developing an appropriate memorandum.

If a Conservancy Representative serves as the Burn Boss directing non-TNC crew members on a burn in this category, then the burn is considered a TNC-conducted burn and all TNC requirements and guidelines apply.

When Others Do Fire Management for TNC

The Conservancy may request individuals representing another organization, agency or corporation to conduct prescribed burns on Conservancy land. Two typical examples are:

• A private corporation or individual is under contract with the Conservancy to conduct a prescribed burn. Whether this service is performed for a fee or gratis is irrelevant to the definition or administrative treatment of this situation.
• A public agency conducts fire management on Conservancy land as part of its official function.

Contractors and others who conduct this activity must show proof of workers' compensation and adequate liability protection through their own insurance. We may ask others to include the Conservancy as named insureds under the policies of others. It is very important that these independent contractors have adequate insurance coverage. Consult with your regional attorney to ensure that the Conservancy is adequately protected in these situations.

In some states, the concept of strict liability may apply. Strict liability means, essentially, liability without fault. This type of liability is established by statute based on a policy determination that responsibility should follow engaging in particularly hazardous activity regardless of fault. In some states prescribed burning is considered to be such an inherently dangerous activity and in those states it does not matter whether the Conservancy is at fault in a loss. In these states, if a fire conducted by a contractor would escape the property and cause damage, the Conservancy could still be held liable. Contact your TNC regional attorney to determine whether strict liability applies to your area or situation. Your Review of Laws and Regulations should verify if strict liability applies to your area or situation.

The Fire Manager must be consulted in choosing a contractor or engaging an agency to burn on TNC land. Guidance is available on the legal section of the Conservancy's Fire Intranet site for selecting a contractor and developing the contract. This document is not a substitute for consultation with a Conservancy attorney. The Fire Management Coordinator may be contacted for advice or contract review, but it is not required.

All agreements to perform fire management for the Conservancy must be in writing and be approved by the Conservancy attorney. The attorney will review the risks and liability, and verify TNC obligations.

If prescribed burning is to be directed by someone representing a public agency, questions of liability and coverage must still be discussed with your Conservancy attorney, as legal restrictions and right to indemnify vary from state to state. In this case, a Cooperative Agreement may be a better form of written agreement than a contract.

Some state fire control agencies offer various prescribed fire services to private landowners for a nominal fee. These services may range from fireline plowing to standby burning assistance to actually conducting the burns. If you use these services, the responsibility assumed by the agency should be fully understood and documented in the burn plan.

When Conservancy Representatives Participate in Mutual Aid Agreements

Conservancy Representatives may participate with partner agencies or organizations in a range of activities defined in a written and signed Mutual Aid Agreement. The activities included must be explicitly stated in the agreement, but may include, for example, initial attack or extended attack on wildfires, prescribed burns, or emergency response for floods or other natural disasters. The nature of this type of agreement is that the services provided are reciprocal. If the Conservancy assists in initial attack on state lands, for example, then state personnel would assist in initial attack on Conservancy land. Mutual Aid Agreements may include multiple entities who must come to common understanding of expectation on the scope and type of work covered by the agreement.

The Mutual Aid Agreement must address liability, compensation and training qualifications. The Fire Manager must be consulted in developing a Mutual Aid Agreement. A Conservancy attorney must review the document before it is signed.

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Last updated April 21, 2008.