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

SPONSOR King

ORIGINAL DATE

LAST UPDATED

2-6-07

3-16-07 HB 919/aHJC

SHORT TITLE Liability for Costs of Fighting Forest Fires

SB

ANALYST Woods

APPROPRIATION (dollars in thousands)

Appropriation

Recurring

or Non-Rec

Fund

Affected

FY07

FY08

NFI

NFI

(Parenthesis ( ) Indicate Expenditure Decreases)

Duplicates SB798

SOURCES OF INFORMATION

LFC Files

Responses Received From

Energy, Minerals, and Natural Resources Department (EMNRD)

SUMMARY

Synopsis of HJC Amendment

House Judiciary Committee amendment to House Bill 919 replaces the word negligently with

recklessly, on Page 2, line seventeen (17) of the bill. The word “shall", on Page 2, line twenty-

three (23) is replaced with the word “may". The amendment also removes the words “and

litigation, including reasonable attorney fees" on Page 2, line twenty-five (25) and on Page 3,

line one (1). In addition, all of Section 3, beginning on Page 3, line sixteen (16) is removed.

EMNRD notes that the amendment uses the word recklessly instead of negligently when

determining the type of fire start that is eligible for cost reimbursement. A person acts recklessly

when they consciously disregard a substantial and unjustifiable risk. A person who willfully or

recklessly starts a fire now “may", rather than “shall", be liable for fire suppression costs

incurred by the Forestry Division or cooperating entity that has an agreement with the Energy,

Minerals and Natural Resources Department for wildfire suppression. The costs of litigation and

attorney fees relating to fire suppression cost recovery will be borne by the entity attempting to

recover the costs. The amendment removes the reference to NMSA 1978, Section 30-32-4

House Bill 919/aHJC – Page

2

relating to recovery of double damages in a civil action by a private citizen for injury from a

wildfire.

Synopsis of Original Bill

Section 1 of House Bill 919 amends Section 30-32-1 NMSA 1978, which allows the Energy,

Minerals and Natural Resources Department, Forestry Division to recover costs incurred in

fighting forest fires. Currently, a person or entity is liable for fire fighting costs only if they fail

to take reasonable efforts to extinguish a fire that they have started – even if they are negligent or

willful in starting the fire. The amendment would make a person or entity liable for fire fighting

costs if they negligently or willfully set or cause the fire to be set.

Section 2 amends Section 30-32-2 NMSA 1978 to replace the reference “to deputy game and

fish wardens" with “department of game and fish conservation officers" and clarifies that peace

officers have the authority to enforce forest fire regulations and restrictions in addition to state

statutes that deal with forest fires. Section 30-32-2 NMSA 1978 provides that a peace officer of

the state including Department of Game and Fish conservation officers may make arrests for

violations of state forest fire laws.

Section 3 replaces references in Section 30-32-4 NMSA 1978 to fires in woods, marshes or

prairies with “forest fire", which is defined in Section 30-32-1(A) as a “fire burning uncontrolled

on lands covered wholly or in part by timber, brush, grain or other inflammable vegetation".

Section 30-32-4 NMSA 1978 provides that a person who sets a forest fire that injures another

person or damages another’s property is subject to a civil action by the injured person for those

damages.

Section 4 repeals Section 30-32-2 NMSA 1978, which allowed district courts to appoint

voluntary fire wardens, who would serve without pay, at the Forestry Division’s request. The

Forestry Division does not ask district courts to appoint voluntary fire wardens, so this statute is

outdated and not needed.

FISCAL IMPLICATIONS

EMNRD indicates that this amendment would not affect the Forestry Division’s budget, but

could increase reimbursement to the appropriations contingency fund, which is the fund used to

pay for wild land fire suppression costs by improving the Forestry Division’s cost recovery

abilities.

SIGNIFICANT ISSUES

With this amendment, EMNRD suggests that agencies that are under agreement with EMNRD

would have the authority to recover costs incurred for fighting the wild land fire and costs of

investigation and litigation if a person willfully or negligently sets a fire. As mentioned above,

EMNRD can only recover costs if the person fails to take reasonable efforts to control or

extinguish the fire. Many individuals who start fires, even if they are negligent in starting the

fire, will contact fire fighting agencies to suppress the fire. Therefore, because the statute

currently only makes an individual liable for fire fighting costs if they fail to take reasonable

efforts to suppress the fire, EMNRD’s cost recovery efforts have been hampered. In addition,

the current statute does not provide an incentive for individuals to be aware of hazardous fire

House Bill 919/aHJC – Page

3

weather and avoid starting fires during these conditions.

EMNRD notes that the Forestry Division responds to an average of 900 fires per year that occur

within the state’s jurisdiction. Approximately 63 percent of these fires are human caused and the

number of negligent or willful fires is estimated to be approximately twenty per year. First

responders initially determine the cause of the fire and notify the Forestry Division or local law

enforcement if the fire appears to be human caused. Currently the Forestry Division expends

millions of dollars in emergency funds each year on wildfire suppression costs for fires on non-

federal or non-municipal lands in the state.

EMNRD adds that the amendments in this bill will help the Forestry Division in its efforts to

reduce person-caused wild land fires through increased public accountability and cost recovery

efforts. Additionally it will benefit the division’s efforts to reduce the number of person caused

fires that directly impact fire suppression costs, as well as improve the division's capability to

increase public safety and awareness of wild land fire dangers.

CONFLICT, DUPLICATION, COMPANIONSHIP, RELATIONSHIP

Duplicates SB798

OTHER SUBSTANTIVE ISSUES

EMNRD advises that, unlike New Mexico’s current law, other Western states have wild land

cost recovery laws based on willfulness or negligence, including Arizona, California, Idaho,

Oregon and Washington. Utah, Montana and Colorado statutes provide for wild land fire cost

recovery even if the person who causes the fire was not negligent or willful in their actions.

Oregon has an 80 percent success rate for its cost recovery efforts.

WHAT WILL BE THE CONSEQUENCES OF NOT ENACTING THIS BILL

EMNRD anticipates that, if the bill is not enacted, the Forestry Division’s ability to obtain

reimbursement for firefighting costs when a person has negligently or willfully started a wild

land fire will continue to be impaired.

BFW/nt