Act No. 529

Public Acts of 2004

Approved by the Governor

December 30, 2004

Filed with the Secretary of State

January 3, 2005

EFFECTIVE DATE: January 3, 2005

STATE OF MICHIGAN

92ND LEGISLATURE

REGULAR SESSION OF 2004

Introduced by Senators McManus and Jelinek

ENROLLED SENATE BILL No. 925

AN ACT to amend 1994 PA 451, entitled "An act to protect the environment and natural resources of the state; to codify, revise, consolidate, and classify laws relating to the environment and natural resources of the state; to regulate the discharge of certain substances into the environment; to regulate the use of certain lands, waters, and other natural resources of the state; to prescribe the powers and duties of certain state and local agencies and officials; to provide for certain charges, fees, and assessments; to provide certain appropriations; to prescribe penalties and provide remedies; torepeal certain parts of this act on a specific date; and to repeal certain acts and parts of acts," by amending sections 51501, 51506, 51509, 51510, and 51513 (MCL 324.51501, 324.51506, 324.51509, 324.51510, and 324.51513), as added by 1995 PA 57, and by adding section 51503b.

The People of the State of Michigan enact:

Sec. 51501. As used in this part:

(a) "Certified prescribed burn manager" means an individual who has successfully completed the certification program of the department under section 51513 and possesses a valid certification number.

(b) "Department" means the department of natural resources.

(c) "Domestic purposes" refers to burning that is any of the following:

(i) A fire within the curtilage of a dwelling where the material being burned has been properly placed in a debris burner constructed of metal or masonry, with metal covering device with openings no larger than 3/4 of an inch.

(ii) A campfire.

(iii) Any fire within a building.

(d) "Extinguished", in reference to prescribed burning, means that there is no longer any spreading flame.

(e) "Forest land", subject to subdivision (f), means any of the following:

(i) Timber land, potential timber-producing land, or cutover or burned timber land.

(ii) Wetland.

(iii) Prairie or other land dominated by grasses or forbes.

(f) "Forest land" does not include land devoted to agriculture.

(g) "Flammable material" means any substance that will burn, including, but not limited to, refuse, debris, waste forest material, brush, stumps, logs, rubbish, fallen timber, grass, stubble, leaves, fallow land, slash, crops, or crop residue.

(h) "Prescribed burn" or "prescribed burning" means the burning, in compliance with a prescription and to meet planned fire or land management objectives, of a continuous cover of fuels.

(i) "Prescription" means a written plan establishing the criteria necessary for starting, controlling, and extinguishing a burn.

(j) "Wetland" means land characterized by the presence of water at a frequency and duration sufficient to support, and that under normal circumstances does support, wetland vegetation or aquatic life, and is commonly referred to as a bog, swamp, or marsh.

Sec. 51503b. (1) Prescribed burning does not constitute a public or private nuisance when conducted in compliance with this part, part 55, and rules promulgated to implement this part or part 55.

(2) Subject to subsections (3) and (4), a property owner or his or her agent conducting prescribed burning is not liable for damage or injury caused by the fire or resulting smoke.

(3) Subsections (1) and (2) apply to a prescribed burn only if all of the following requirements are met:

(a) The landowner or his or her designee has specifically consented to the prescribed burn.

(b) The requirements of section 51503 are met.

(c) There are adequate firebreaks at the burn site and sufficient personnel and firefighting equipment for the control of the fire.

(d) A certified prescribed burn manager is present on site with a copy of the prescription, from ignition of the prescribed burn to its completion.

(e) The damage or injury does not result from the fire escaping the boundary of the area authorized in the permit under section 51503.

(f) The property owner or his or her agent is not grossly negligent.

(4) Subsection (2) does not affect liability for injury to or death of a person engaged in the prescribed burning.

Sec. 51506. (1) Except as provided in section 51503b, a person who, in violating this part, causes a forest or grass fire is liable for all damages resulting from that fire, including the cost of any governmental unit fighting the fire.

(2) Except as provided in section 51503b, this part does not affect any other right of action for damages.

Sec. 51509. (1) Except as provided in section 51503b, a person who sets fire on any land and negligently allows the fire to escape and become a forest or grass fire is liable for all expenses incurred by the state in the suppression of the fire.

(2) The department shall certify, in writing, to the person the claim of the state under subsection (1) and shall list the items of expense incurred in the suppression of the fire. The claim shall be paid within 60 days and, if not paid within that time, the department may bring suit against the person in a court of competent jurisdiction in the county of the residence of the defendant or of any defendant if there is more than 1, for the collection of the claim at any time within 2 years after the fire. If the amount of the claim is cognizable by a circuit court, the department may file the suit in the circuit court of Ingham county, or in the circuit court of the county of the residence of the defendant or any defendant if there is more than 1.

Sec. 51510. (1) A person shall not do any of the following:

(a) Willfully, maliciously, or wantonly set fire or cause or procure to be set on fire any forest land, lands adjacent to forest land, or flammable material on such forest land.

(b) Willfully, maliciously, or wantonly set, throw, or place any device, instrument, paraphernalia, or substance in or adjacent to any forest land with intent to set fire to the land or which in the natural course of events would result in fire being set to the forest land.

(2) This section does not apply to a prescribed burn conducted in compliance with section 51503b.

Sec. 51513. (1) The department shall administer this part and shall promulgate rules necessary to implement this part. The department shall adopt rules governing prescribed burning and for certifying and decertifying prescribed burn managers based on their past experience, training, certification by another state, and record of compliance with section 51503b. The department shall submit the proposed rules for public hearing pursuant to the administrative procedures act of 1969, 1969 PA 306, MCL 24.201 to 24.328, within 6 months after the effective date of the 2004 amendatory act that amended this section.

(2) The department may make, conduct, or participate in investigations and surveys designed to establish the cause of or responsibility for a particular forest fire or forest fire conditions generally.

(3) This part does not limit or otherwise impair the jurisdiction or powers of any other department, agency, or officer of this state to investigate, apprehend, and prosecute violators of this part. This part does not preempt local ordinances or local regulations that are as restrictive or more restrictive than this part, except to the extent the ordinances or regulations conflict with the exemption from liability for, or otherwise apply to either of the following:

(a) Prescribed burns conducted in compliance with section 51503b.

(b) Prescribed burns conducted by a federal agency or state agency on land that the agency is authorized to manage.

This act is ordered to take immediate effect.

Secretary of the Senate

Clerk of the House of Representatives

Approved

Governor