Enforcing fire restrictions: Does the punishment fit the crime?
Local law enforcement, attorneys discuss the complexities of enforcing fire restrictions as the stakes get higher and higher
The early arrival of Eagle County’s first large wildfire of the season last week and, with it, Stage 2 fire restrictions has resurfaced an inevitable question: What should happen to those who don’t do their part to prevent fires?
The Eagle County Sheriff’s Office typically takes an education-forward approach to dealing with people who violate the county’s fire mitigation restrictions, but there are a few criminal charges that can be utilized in more extreme cases, Sheriff James van Beek said.
“We wrote the (fire restriction) ordinance in such a way as that it’s more of an education piece … but it gives us a set of teeth should we need it,” van Beek said. “We approach it from the community policing standpoint of we need everyone to do their part because we’re all part of this community and if everyone does their part, then that lowers the risk.”
The criminal trial of the two individuals who started the 2018 Lake Christine Fire, which cost over $30 million to contain and destroyed the homes of three couples, was an outlier to how fire restriction violations are typically handled because of the damages incurred, van Beek said.
In that case, Richard Miller and Allison Marcus each were charged with three counts of fourth-degree arson, a Class 4 felony, and one count of setting fire to woods or prairie, a Class 6 felony. One charge of arson was brought against them for each home destroyed.
District Attorney for the 5th Judicial District Heidi McCollum, who was one of the prosecutors on that case, said prosecutors considered a few key things when determining the charges to bring forward: the evidence behind what occurred, the intent of the individuals and, finally, the damage that was done as a result of the alleged crime.
An arson charge is used for crimes that “have the potential to completely devastate,” McCollum said.
Ultimately, Marcus and Miller both took plea deals, bargaining the setting fire to woods or prairie charge down to a Class 2 misdemeanor and pleading guilty in exchange for the dismissal of the three felony arson charges.
What justice looks like
Arson charges are not a good fit for wildfire cases as arson is typically used to prosecute people who set fire to houses or cars, often intentionally, Stan Garnett, defense attorney for Marcus, said Tuesday.
The “setting fire to woods or prairie” charge is a relatively new concept, passed through the Colorado state Legislature to provide another option for prosecuting instances when fires are set and then spread beyond one’s own property, said Garnett, who alsois the former district attorney for Boulder County’s 20th Judicial District.
In response to the growing threat of wildfires, the state Legislature amended the statute in 2013 to give prosecutors the option to raise the charge to a Class 6 felony if the situation involves the violation of a fire mitigation ordinance, Garnett said.
The Lake Christine Fire was a landmark trial in many ways, van Beek said.
It significantly changed public sentiment around what justice looks like when it comes to wildfires. The destruction and fear caused by increasingly severe wildfires has left the question of a suitable punishment supercharged with emotion and trauma.
During the trial of Marcus and Miller, Kara Williams, a local resident who was forced to evacuate during the fire and ultimately lost her home, asked the question on the minds of many in the room.
“Is the proposed 45-day jail sentence and hundred thousand dollars in restitution fair for the crimes they committed?” Williams asked. “Honestly, that’s a hard question for me to answer. I do appreciate that these specific punishments represent, in part, some of the suffering my family has endured. When they go to jail, they’ll be forced from their homes like we were.”
“Public sentiment matters to every community,” McCollum said, but the District Attorney’s Office files charges based on interpretation of state statute, not based on what the public wants.
That being said, McCollum said she experiences an added level of passion and controlled anger when prosecuting arson cases.
“It’s all-consuming for so many people, and it’s devastating on a community,” she said. “…That can make someone a better prosecutor if it is personal because it matters to them. What can’t happen is that that emotion takes over or that that emotion drives it.”
Warnings, education and fines
The reality is that most people who violate the county’s fire restrictions will see no charges at all, even if they make the exact same mistake as Miller and Marcus did which, in their case, was using incendiary ammunition while shooting at a shooting range in Basalt.
Most first-time offenders are let off with a warning and educated on the risk of violating restrictions, van Beek said. Other times, fines may be imposed of $500 for the first offense, $750 for the second and $1,000 for subsequent offenses.
Eagle County law enforcement responded to at least 59 reports of campfire-related fire restriction violations between May 1, 2020, and the present day, said Amber Mulson-Barrett, a public information officer for the Sheriff’s Office. Of these, 36 resulted in a fire being found and extinguished, but only a “handful” of citations were issued, she said.
This does not include calls received by other regional agencies such as the Bureau of Land Management or the U.S. Forest Service or violations of other restrictions such as the ban on recreational shooting, welding or traffic violations like dragging chains.
Focusing on education rather than being overly punitive is the best way to get more community members to think critically and altruistically about their responsibility in preventing wildfires, van Beek said.
The U.S. Forest Service, on the other hand, seems to give out fines a bit more readily. The agency issued 37 citations and 35 warnings related to fire restrictions last year, spokesperson David Boyd said.
Fines on National Forest System lands are strong and become stronger depending on the stage of fire restrictions in effect, Boyd said.
A first-time offender is charged $500 when Stage 1 restrictions are in effect and double that during Stage 2 restrictions. Repeat offenders are required to appear before a federal magistrate that can impose fines of up to $5,000 and/or a sentence of up to six months in jail, he said.
“We do hope that as the frequency and severity of wildfires increases, so too will the public’s awareness of how to minimize the risks of starting a wildfire,” Boyd said in a written statement Wednesday.
A speeding ticket approach?
Garnett said he agrees that educating the public on the risks of violating fire restrictions is hugely important but said the disparity in how law enforcement responds depending on the outcome of the violation does not always make sense.
In short, why should some violators receive no punishment just because they got lucky and didn’t cause a fire?
Garnett argued that law enforcement officials should be given more discretion and should use that discretion to issue more tickets and fines, which would create a stronger deterrent similar to the effectiveness of speeding tickets. This approach would be clear and consistent rather than some people receiving heavy criminal charges while others walk off scot-free.
“My view is if you had law enforcement empowered to impose clear, but low-level consequences like fines by issuing a ticket, in most of these cases you would accomplish what you really want to, which is to stop the dangerous behavior,” he said.
Arson cases aren’t the only instances where two people can make the same poor decision but receive very different penalties based on what the outcome happened to be, McCollum said.
She gave the example of two people who may decide to drive under the influence of drugs or alcohol. The person who gets pulled over for speeding will receive different charges than the person who crashes into another car and kills two people, even if they have the same amount of alcohol or drugs in their system, she said.
The devastation of losing one’s home to a wildfire cannot be understated, McCollum said, and, in order to fulfill her duty of bringing about justice, this devastating outcome must be weighed heavily in prosecuting people like Marcus and Miller.
The damage done by a wildfire is often used as a determinant in deciding how to charge the people that allegedly started it, but Garnett said the damage often has more to do with the “foolishness of the victim.”
As climate change brings more frequent and more severe natural disasters from wildfires to hurricanes, there simply are places that are no longer suitable for construction, residential or otherwise, he said.
Moving forward, homeowners must also be educated about the risks associated with purchasing homes far from town in wildfire-prone areas, Garnett said.
“They need to take responsibility for that,” he said.
Garnett, McCollum and van Beek all seemed to agree that, in the case of the Lake Christine Fire, the system worked as it should, and justice was served as well as it could have been given the situation.
Marcus and Miller served 60 days in jail, were ordered to pay $100,000 each in restitution and were required to complete six months of full-time community service related to damage caused by the fire.
While the combined $200,000 in restitution doesn’t come close to the more than $30 million it took to contain the fire, McCollum said that there would have been no point in slapping Marcus and Miller with obscene fees that they could never pay.
Ultimately, no amount of money will replace the personal belongings and family photos of the three couples who lost their homes, she said.
“You can’t give back someone their home,” McCollum said. “You can’t give back the picturesque mountainside that’s now scarred, you can’t give that back. So what they can give back is their time to the community.”
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