Did South Carolina law forbid prescribed burns that could harm wildlife in a national forest?

Plain-English summary

In 2011, the South Carolina Attorney General addressed concern that prescribed burns in Francis Marion National Forest could harm nesting birds and other wildlife. The opinion described state law allowing controlled burns when statutory requirements were met. Those requirements included a prescribed fire plan, supervision by a certified manager, notice to the State Forester for outdoor burning, and precautions to keep the fire controlled. The opinion also described a permit exception to a regulation protecting plant and animal life on South Carolina Forestry Commission lands.

The AG did not investigate the U.S. Forest Service's actual burns and did not determine whether any particular burn complied with law. Its conclusion described the state prescribed-fire rules and the provision limiting liability for a landowner or lessee who conducted a prescribed fire under the chapter unless negligence was proved. The opinion identified the possibility of agreements between the state natural resources department and the federal government for wildlife management on national forest land. It did not resolve the application of every cited state provision to a specific federal burn.

Currency note

This opinion was issued in 2011. Subsequent statutory amendments, court decisions, or later
AG opinions may have changed the analysis. Treat this page as historical context, not current
legal advice. Verify current law before relying on any specific rule, deadline, or remedy
mentioned here.

Common questions

Did the AG find the Forest Service's burns unlawful?
A: No. The AG said it could not investigate or verify the burning activity at Francis Marion National Forest. It set out the relevant state legal framework instead.

What did South Carolina's prescribed-fire law require? A: The opinion quoted requirements for an advance fire plan kept on site and followed, and a certified prescribed fire manager present from ignition until the burn was safe. It also discussed notice and precautions under the outdoor burning statute.

Did the state regulation prohibit injury to wildlife on Forestry Commission lands? A: The opinion said the regulation prohibited injury or destruction of plant or animal life on those state lands unless a proper permit authorized it. That regulation addressed Forestry Commission land specifically.

Did the opinion give landowners immunity for any damage from a burn? A: No. It quoted the statutory rule that a landowner, lessee, agent, or employee conducting a prescribed fire under the chapter was not liable for fire damage, injury, or loss unless negligence was proved.

Background and statutory framework

A legislator asked whether landowners could deliberately burn when wildlife harm was expected, in the context of national forest burning practices. The AG reviewed the South Carolina Prescribed Fire Act, outdoor burning precautions, rules for Forestry Commission lands, and a statute authorizing state and federal wildlife-management agreements. The opinion expressly left factual investigation outside its scope.

Citations and references

The opinion quotes §§ 48-34-40, 48-34-50, and 48-35-10 and discusses § 50-1-190. Its liability discussion depended on conducting a prescribed fire pursuant to the statute and on whether negligence was proved.

Official title

Concerning the burning practices used by the US Forest Service in South Carolina.

Requester

The Honorable Joe H. Jefferson, Jr., SC House of Representatives

Source

• Landing page: https://www.scag.gov/opinions/opinions-archive/july-14-2011/
• Original PDF: https://www.scag.gov/wp-content/uploads/2011/07/jefferson-j-h-jr-os-9284-7-14-11-burning-practices-used-by-us-forest-service-in-sc.pdf

Original opinion text

ALAN WILSON
ATIORNEY GENERAL

July 14, 2011

The Honorable Joe H. Jefferson, Jr.
SC House of Representatives
District No. 102 - Berkeley County
1375 Colonel Mahem Drive
Pineville, SC 29468
Dear Representative Jefferson:
We received your letter requesting an opinion of this Office concerning the burning practices used by the US Forest Service in South Carolina. As a way of background, the letter explains that "[s]pring and summer are nesting seasons for all types of native birds found in abundance on the National Forest." It is also explained that national forests such as Francis Marion National Forest is home to "[h]atchling wild turkey" and "new-born whitetail deer." The letter states that acreage goals can easily be met "by burning
[only] in the fall and winter."
The question is specifically posed as to whether the S.C. Code of Laws permits landowners to deliberately burn land when it is known that such burning will cause harm or death to birds and animals.

Law/Analysis
According to the South Carolina Prescribed Fire Act a "prescribed fire" is defined as follows: "Prescribed fire" means a controlled fire applied to forest, brush, or grassland vegetative fuels under specified environmental conditions and precautions which cause the fire to be confined to a predetermined area and allow accomplishment of the planned land management objectives. It also is known as "controlled burn". S.C. Code§ 48-34-20. The State Commission of Forestry is authorized to promulgate regulations for the use of prescribed fire and for the certification of prescribed fire managers. S.C. Code § 48-34-30. The requirements for conducting prescribed fires are as follows:

REMBEIIT C. DENNIS BUil.DING • PosT OrnCE Box 11549 • COLUMBIA, SC 29211-1549 • TELEPHONE 803-734-3970 • FACSIMILE 803-253-6283

The Honorable Joe H. Jefferson, Jr.
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July 14, 2011

Prescribed fires conducted pursuant to this chapter:
(1)
must have a prescribed fire plan prepared before authorization to burn is given by the State Commission of Forestry, and the plan must be on site and followed during the burn; (2) must have at least one certified prescribed fire manager present and supervising the burn from ignition until it is declared safe according to certification guidelines; (3) are considered in the public interest and do not constitute a public or private nuisance when conducted pursuant to state air pollution statutes, smoke management guidelines, and regulations applicable to the use of prescribed fire; (4) are considered a property right of the property owner. S.C. Code§ 48-34-40. Unless negligence is proven, "no property owner or lessee or his agent or employee conducting a prescribed fire pursuant to this chapter is liable for damage, injury or loss caused by fire." S.C. Code§ 48-34-50 (emphasis added). S.C. Code of Laws § 48-35-10 et seq. outlines the procedures to be followed with respect to outdoor burning where one starts a fire in woodlands, grasslands or other places unlawful unless certain precautions are taken. S.C. Code § 48-35-10 states as follows: It shall be unlawful for any owner or lessee of land or any employee of such owner or

lessee or other person to start, or cause to be started, a fire in any woodlands, brushlands, grasslands, ditchbanks, or hedgerows or in any debris, leaves or other flammable material adjacent thereto, except under the following conditions: (a) Proper notification shall be given to the State Forester, or his duly authorized representative or other persons designated by the State Forester. The notice shall contain all information required by the State Forester or his representative. Such persons shall have cleared around the area to be burned and have (b) immediately available sufficient equipment and personnel to adequately secure the fire and prevent its spread. (c) The person starting the burning shall supervise carefully the fire started and have it under control prior to leaving the area. S.C. Code § 48-35-10 (emphasis added). In a prior opinion of this Office dated October 12, 1989, we further explained: Section 48-35-50 provides that the "State Forester may direct at any time, when deemed necessary in the interest of public safety, that fires covered by this chapter not be started." Section 48-35-60 provides criminal penalties for violations of Chapter 35 of Title 48. Additionally, within the Forest Fire Protection Act, Section 48-33-10 et seq., the State Commission of Forestry is given the authority to make and enforce rules and

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July 14, 2011

regulations "necessary for the administration of forest fire protection." S.C. Code § 48-33-70. Op. S.C. Atty. Gen., October 12, 1989 (emphasis added). In other words, a landowner may legally start a fire if the State Forester is properly notified and the required precautions are taken such as appropriately clearing and supervising the land and following any applicable rules or regulations of the State Commission of Forestry. The "State Commission of Forestry may make such rules and regulations as it deems advisable for the protection, preservation, operation and maintenance, and for the most beneficial service to the general public, of the State forests in this State. S.C. Code § 48-23-200. Regulations pertaining to SC Forestry Commission Lands can be found in the S.C. Code of Regulations, 551. In relevant part, S.C. Code of Regulations, 55-1 states that: 12.

Molesting, injuring, poisoning, destroying, or attempting such acts, of any plant or animal life on South Carolina Forestry Commission lands are prohibited except by permit.

S.C. Code of Regulations, 55-1 (12). It is clear that "injuring" or "destroying" "any plant or animal life on South Carolina Forestry Commission lands" is prohibited under S.C. Code of Regulations, 55-1(12); however, an exception is made if one has a proper permit to do so. Therefore, one should ensure that all appropriate permits are obtained and all SC Forestry Commission rules are followed before any burning commences. The letter mentioned that the forest at issue was a national forest, specifically Francis Marion National Forest. S.C. Code of Laws § 50-1-190 governs the agreements made between the SC Department of Natural Resources and the United States: The department may enter into a cooperative agreement with the United States Government, or with the proper authorities thereof, for the protection and management of the wildlife resources of the national forest lands within the State and for the restocking of such lands with desirable species of game, birds and other animals and fish. S.C. Code§ 50-1-190 (emphasis added). The Forest Management Protection Act can be found in Title 50, Chapter 2. The purpose of the act "is to encourage and protect landowners' ability to maintain their land for forest use and to conduct forest management activities." S.C. Code § 50-2-20. Forestry Management Activities, such as controlled burning and fire control are often necessary. S.C. Code § 50-2-30. Such activities take place in an area called a "forestry operation area." S.C. Code § 50-2-30. The Forest Management Protection Act explains that a "forestry operation inherently includes

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lengthy periods between forest management activities and shall be deemed continuously operating so long as the operation supports an actual or developing forest." S.C. Code§ 50-2-30. "No established forestry operation is or may become a nuisance, private or public, if the forestry operation adheres to best management practices as promulgated by the South Carolina Forestry Commission." S.C. Code§ 50-2-50(A) (emphasis added). 1 As stated in many prior opinions, "investigations and determinations of facts are beyond the scope of an opinion of this Office and are better resolved by a court." E.g., Ops. S.C. Atty. Gen., September 14, 2006; April 6, 2006. Therefore, our Office must take the information provided in the request letter and apply the law accordingly. We are unable to perform investigations to verify the burning activity that takes place at Francis Marion National Forest. Conclusion While "injuring" or "destroying" "any plant or animal life on South Carolina Forestry Commission lands" is prohibited under S.C. Code of Regulations, 55-1(12), an exception is made if one has a proper permit to do so. In other words, to "intentionally [bum an animal] to death" would be both criminal and repulsive. However, proper procedures have been put in place by the Legislature and the State Forestry Commission regarding prescribed fires. If one adheres to the relevant statutes discussed above and follows the rules and regulations of the State Forestry Commission, then unless negligence is proven, "no property owner or lessee or his agent or employee conducting a prescribed fire pursuant to this chapter is liable for damage, injury or loss caused by fire." S.C. Code § 48-34-50. Sincerely,

df'~M~~;~
Leigha Blackwell Sink
Assistant Attorney General

REVIEWED AND APPROVED BY:

Deputy Attorney General
1

One should note that "open burning" is prohibited by DHEC Regulation 61-62.2 unless one of the exceptions listed in Section I apply. However, the issue before us would be considered "controlled burning" or a "prescribed fire," not "open burning."