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F I S C A L I M P A C T R E P O R T

SPONSOR Gardner

ORIGINAL DATE

LAST UPDATED

1-26-07

2-24-07 HB 507/aHJC

SHORT TITLE Wildland Firefighter Criminal Liability

SB

ANALYST Woods

APPROPRIATION (dollars in thousands)

Appropriation

Recurring

or Non-Rec

Fund

Affected

FY07

FY08

NFI

NFI

(Parenthesis ( ) Indicate Expenditure Decreases)

SOURCES OF INFORMATION

LFC Files

Responses Received From

Energy, Minerals and Natural Resources Department (EMNRD)

SUMMARY

Synopsis of HJC Amendment

House Judiciary Amendment to House Bill 507 adds the word “solely" after the word “liability"

on line twenty-three of the bill. The amendment carried no appropriation language.

EMNRD advises that this amendment clarifies that employees or agents of governmental entities

who authorize volunteer firefighters not certified to national standards to respond to wildland

fires shall not be subject to criminal liability solely for allowing those volunteer firefighters to

engage in firefighting activities. In the bill’s original form some thought could be interpreted

that the employees or government agents are not subject to criminal liability for activities other

than allowing volunteers to engage in firefighting activities.

Synopsis of Original Bill

House Bill 507 seeks to enact a new section of Chapter 68 NMSA 1978 to protect wild land

firefighters responding to wild land fires from criminal liability. Specifically, the language

states:

House Bill 507/aHJC – Page

2

Employees or agents of governmental entities who authorize volunteer firefighters not

certified according to national wild land firefighting standards to respond to wild land fires

shall not be subject to criminal liability for allowing those volunteer firefighters to engage

in firefighting activities.

SIGNIFICANT ISSUES

EMNRD indicates that the department’s Forestry Division is in the process of updating all of the

Municipal Cooperative Wild land Fire Joint Powers Agreements. These agreements identify the

relationship between the EMNRD Forestry Division and New Mexico municipal fire

departments, as it relates to wildfire suppression. The new agreements identify minimum

training, qualification and equipment standards municipal fire departments must have in order to

be reimbursed by EMNRD for wildfires outside their jurisdiction. Some of the fire departments

have expressed concerns that their volunteer members will not be able to pass the physical

fitness requirement. The physical fitness requirement consists of the firefighter walking three

miles in 45 minutes while wearing a pack that weighs 45 pounds. This is called the “pack test"

and is recognized as a national standard.

EMNRD notes that in the last few years, district attorneys in two western states have filed

criminal charges against fire line supervisors because of fatalities that occurred on fires. If any

fire line supervisor has knowledge that any individual on a wild land fire is not properly qualified

or physically fit to the national standard and is killed, they can be held criminally liable.

Qualified fire line commanders and supervisors are hesitant to respond to wildfires where non-

certified firefighters are working due to the current risk of criminal prosecution.

The Forestry Division has an obligation to protect its employees who serve as fire line

supervisors on wildfires within its jurisdiction from criminal liability. While EMNRD believes

that many municipal fire department members will be able to meet these standards, some

volunteer firefighters will not qualify. Timely initial attack responses to wildfires in rural New

Mexico may be hampered if volunteer fire department members don’t respond.

EMNRD would enter into agreements without requiring national standards for volunteer

firefighters if the criminal liability regarding volunteers meeting national standards was removed.

This bill would remove the criminal liability from Forestry Division employees or other agents

of governmental entities who authorize volunteer firefighters, not certified according to national

wild land firefighting standards, to respond to and work on wild land fires.

PERFORMANCE IMPLICATIONS

EMNRD indicates that the bill could benefit the Forestry Division’s efforts to continue work

with local government entities and to continue to quickly suppress wildfires in rural areas of

New Mexico.

ADMINISTRATIVE IMPLICATIONS

If the bill is enacted, EMNRD will be revising its agreements.

House Bill 507/aHJC – Page

3

WHAT WILL BE THE CONSEQUENCES OF NOT ENACTING THIS BILL

EMNRD suggests that if this bill is not enacted, qualified federal, state and local government

wild land firefighters could face criminal liability if an unqualified volunteer fire department

member they oversee is injured or killed on a wild land fire. Qualified fire line commanders and

supervisors will continue to be hesitant to respond to wildfires where unqualified firefighters are

working, due to the current risk of criminal prosecution. This could cause delays in initial attack

responses. Volunteers who do not meet national standards will not be dispatched or given

assignments on state or federal fires and municipalities would not be reimbursed for volunteer’s

time spent on these wildfires if the volunteer responds.

BFW/mt