Legislator seeks to ban springtime burns like the ones that sparked the state’s largest wildfire

Proposed legislation would make it illegal for agencies to ignite fires from March through May

By: - January 5, 2023 4:15 am
A burned fence pictured in early September delineates private forestland burned in the government-caused Hermits Peak-Calf Canyon Fire. Grass is on the bottom. Burned trees line in the back in front of dark clouds.

A burned fence pictured in early September delineates private forestland burned in the government-caused Hermits Peak-Calf Canyon Fire. Some of those with damaged forests say they’re facing an unnecessary hurdle getting a detailed public record that would help them apply for aid. (Photo by Patrick Lohmann / Source NM)

Two fires set by federal agencies last year meant to manage vegetation and reduce hazardous fuels ultimately grew out of control and led to the largest wildfire in New Mexico history. This week, a state senator prefiled legislation aimed at making these types of government-managed burns illegal from the beginning of March to the end of May each year.

Sen. Ron Griggs, a Republican from Alamogordo, prefiled legislation on Tuesday that would prohibit the use of prescribed burning during the spring by any government entity.

“I know it may put some challenges on some of the agencies, but when you look at the challenges that people are facing while trying to recover from fires that got out of control, challenges that the agencies face are inconsequential to them,” Griggs said.

Private landowners would still be allowed to conduct burns on their property under certain circumstances.

As written, the proposed bill would allow private landowners to light prescribed burns on their land unless a state forest officials, county or municipality has issued fire restrictions due to drought conditions.

Major mistakes the Forest Service made in starting biggest fire in New Mexico history

The bill also details that any prescribed burn conducted by private landowners must be undertaken with precautionary measures — sufficient personnel and equipment, notification of local fire officials, burn and contingency plans, and techniques “that cause the fire to be confined to a predetermined area.”

Griggs prefiled the bill on the first day lawmakers could do so ahead of the 60-day legislative session that will begin on Jan. 17.

Last year, on April 6, U.S. Forest Service staff ignited a prescribed burn near Las Vegas, N.M., even though forecasts predicted wind gusts of up to 25 mph along with very low humidity. The fire jumped containment and grew rapidly, becoming the Hermits Peak Fire.

A separate fire ignited days later in the hills above Mora and San Miguel Counties. It would come to be known as the Calf Canyon Fire, a blaze the Forest Service later admitted was also started by its crews — the result of a dormant “pile burn” conducted in January 2022. The 374-acre burn lay dormant for months, through three winter storms, before erupting again.

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On the evening of April 22, the two fires merged to become a megafire, the largest in state history. It burned more than 530 square miles of land, displaced many residents and destroyed at least 500 homes. Floodwater rolling down the scorched hillsides of the burn scar continued to devastate communities below for months.

Griggs said the ongoing threat of such flooding was the impetus for filing the bill, along with the Hermits Peak-Calf Canyon Fire, but also recent fires in the Sacramento Mountains near Alamogordo.

“Once you have a fire, and it’s put out, that’s one thing. The next thing is the barren landscape that is subject to flooding and other issues,” he said.

Legality of the bill

The bill, if passed into law as written, would preclude federal, state, local and even tribal governments from conducting any burns in the spring. Whether such a law could be legally enacted or enforced is not clear.

Wendy Mason, a spokesperson for New Mexico’s Energy, Minerals and Natural Resources Department, said the department had not had the opportunity to review the bill so she could not comment on any provisions of it at this time.

Ivan Knudsen, a spokesperson for the U.S. Forest Service said it would be inappropriate for the Forest Service to speculate on any proposed legislation.

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“We value our communities, partners and stakeholders and will continue to work with them to care for the land and serve the people,” he said in a statement. “Applying prescribed fire on the land at the right place, at the right time, under the right conditions is an important tool which benefits the land and the surrounding communities by reducing hazardous fuels.”

Knudsen also pointed to steps taken by the Forest Service last year when the agency paused prescribed burning to conduct a review of its processes.

The Forest Service’s burn plan, released to Source New Mexico last summer, was created in 2018 and guided a series of prescribed burns for the Gallinas Watershed, which provides water to Las Vegas.

The burn plan deemed it safe for crews to conduct a burn like the one that sparked the Hermits Peak fire based on two key indicators: wind speed and relative humidity.

The plan said a burn in the area should only occur with maximum wind speeds of 25 mph and if the relative humidity didn’t fall below 12%.

The forecast that April day called for a relative humidity between 9% and 13%, both above and below the parameter set in the plan. In addition, wind gusts were projected to reach the 25 mph maximum outlined in the burn plan.

The plan was first created in March 2018, and the documents produced by the Forest Service do not include any records specific to the ignition on April 6, 2022. The agency has not yet provided more-recent records requested by Source New Mexico.

Next steps

The bill is only a proposal at this stage in the 2023 legislative process.

Bills proposed during 60-day sessions, which are held during odd-numbered years, can cover any topic and can be filed without approval from the governor.

Bills can undergo significant changes throughout the process, and must pass through committees before being considered by the entire legislative body, meaning that Griggs’ bill has a long road ahead before it can be voted on.

Griggs said the bill is merely the start of a discussion in the legislature, but he feels decisions about land in New Mexico should be made by people who live in the state, not federal workers.

“The challenges that we face as a state is that we have a lot of land controlled by people who don’t live here,” he said. “Who knows more about New Mexico than the people who live here?”

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Ryan Lowery
Ryan Lowery

Ryan Lowery is an award-winning independent journalist based in Albuquerque. He covers politics and criminal justice and has reported on New Mexico for the Las Vegas Optic, Santa Fe Reporter, Los Angeles Times and others. Lowery was awarded the 2020 William S. Dixon First Amendment Freedom Award from the New Mexico Foundation for Open Government, and the 2021 Sunshine Award from the New Mexico Press Association for his reporting that highlighted lack of transparency from multiple government agencies.