AN ORDINANCE OF BACA COUNTY, A POLITICAL SUBDIVISION OF THE STATE OF COLORADO, REGULATING AND RESTRICTING OPEN FIRES AND OPEN BURNING IN THE UNINCORPORATED AREAS OF BACA COUNTY.

BE IT ORDAINED BY THE BOARD OF COUNTY COMMISSIONERS OF BACA COUNTY, A POLITICAL SUBDIVISION OF THE STATE OF COLORADO, THAT:

Whereas, §30-15-401(1)(n.5), C.R.S., authorizes the Board of County Commissioners to ban open fires to a degree and in a manner that the Board deems necessary to reduce the dangers of wildfires within those areas of Baca County where the danger of forest or grass fires is found to be high based on competent evidence; and

Whereas, the Board of County Commissioners deems it is in the best interest of the citizens of Baca County and the general public that open fires and open burning in Baca County be regulated and restricted to reduce the danger of wildfires in said county; and

Whereas, due consideration has been given to existing laws and processes regulating open burning in the State of Colorado, and the Board of County Commissioners finds that this Ordinance is consistent with all such laws and processes; and

Whereas, the Board of County Commissioners finds that this Ordinance is both desirable and necessary for the purpose of providing the Baca County Sheriff with a law enforcement protocol to prevent such fires from occurring and by providing appropriate punitive measures for those who fail to comply with the open fire and open burning restrictions set forth herein.

Whereas, there has been full compliance with all statutory requirements concerning notice to the public of this proposed Ordinance and publication of said Ordinance, and the public has now been afforded full opportunity to be heard on this proposed Ordinance at a first reading and a second reading as required by §30-15-404 through §30-15-407, C.R.S.,

NOW THEREFORE, the Board of County Commissioners finds and declares as follows:

PART ONE: STATEMENT OF PURPOSE AND SCOPE

Section 1: This Ordinance shall be known as the “Baca County Open Fire and Open Burning Ordinance”.

Section 2: The purpose of this Ordinance is to preserve and protect the public health, safety and welfare of the citizens of Baca County by restricting open fires and open burning in Baca County at certain times in order to prevent forest and prairie fires when a high danger of such fires exists.

Section 3: This Ordinance shall apply throughout all unincorporated areas of Baca County, including public, private and state lands.

Section 4: The Board of County Commissioners hereby declares that there shall be three stages of fire bans that may be imposed for Baca County or portions thereof, and that each of these three stages creates restrictions on open fires and open burning during those periods of time when one or more of these three stages of fire bans may be in effect.

Section 5: Upon issuance of a Red Flag Warning, the Sheriff or Emergency Manager is authorized to implement temporary Stage I restrictions, subject to ratification by the Board at the next available meeting.

Section 6: At any regularly scheduled meeting, special meeting or emergency meeting of the Board of County Commissioners, the Board may, by resolution, impose Stage I, Stage II or Stage III restrictions based upon a finding that the danger of forest fires or grass fires occurring in Baca County is high. Such a resolution shall be based on competent evidence which may include:

• The recommendation of the Baca County Sheriff;
• The recommendation of the Fire Chief of any fire department stationed in Baca County;
• The recommendation of the Baca County Emergency Manager;
• The recommendation of any other recognized firefighting entity providing assistance in Baca County for the suppression of forest fires and prairie fires;
• Any similar ban imposed under the authority of the Governor of the State of Colorado;
• Any recommendation from the State Forest Service, the National Park Service, the United States Forest Service, or any other agency of the state or federal government;
• A similar ban imposed in any county adjacent to Baca County.

Section 7: Any such resolution imposing a fire ban shall specify whether Stage I restrictions, Stage II restrictions, or Stage III restrictions shall be in effect and shall further specify whether the restrictions are in effect for all areas of Baca County or for a specific portion thereof. When a Red Flag Warning has been issued by the National Weather Service for any portion of unincorporated Baca County, Stage I Fire restrictions will be in place automatically for all of unincorporated Baca County without the need for a meeting or resolution; the restriction will automatically expire with the Red Flag Warning.

Section 8: Any such resolution shall specify an expiration date for the ban. However, the ban may be extended in the same manner as its original imposition upon competent evidence that the wildfire danger continues.

Section 9: Any resolution imposing a fire ban pursuant to this Part One shall be promptly published through a general press release to local media outlets and shall also be posted on the Baca County internet website. The Baca County Office of Emergency Management and the Baca County Sheriff shall be notified immediately upon imposition of any fire ban. Likewise, when restrictions are in effect and changing conditions indicate that a reduction or increase in any such restrictions should be imposed, the same notification to the public, the Baca County Office of Emergency Management, and the Baca County Sheriff shall be provided. A temporary Stage I fire restriction during Red Flag Warning events will be exempt from the posting requirements of this section.

PART TWO: DEFINITIONS

“Agricultural Open Burning” means the burning of cover vegetation for the purpose of preparing the soil for crop production, weed control, maintenance of water conveyance structures related to agricultural operations, and other agricultural cultivation purposes. The open burning of animal parts or carcasses is not agricultural open burning, nor is the open burning of household trash, wood and yard debris on agricultural land.

“Burn manager” means an individual who is responsible for the order, plan, build, control, extinguishment, and otherwise supervises an open burn.

“Competent evidence” includes the use of the national fire danger rating system and any other similar indices or information.

“Developed area” means areas improved with permanent structures, maintained landscaping, or designated recreation facilities.

“Fireworks” shall be defined as set forth in §12-28-101, C.R.S.

“Open Fire” is defined as any outdoor fire, including, but not limited to, campfires, warming fires, charcoal grill fires, fires in wood-burning stoves, the use of explosives, outdoor welding or hot work, fireworks of all kinds and brands, and the outdoor burning of trash and debris.

“Open Burning” means the intentional ignition of unwanted fuels, in place or collected, for the purpose of eliminating those fuels. Open burning is further defined by Stage I, Stage II and Stage III restrictions as set forth in this Ordinance.

“Slash” means woody material less than six inches in diameter consisting of limbs, branches and stems that are free of dirt. “Slash” does not include tree stumps, roots, or any other material.

“Emergency meeting” means a meeting of the Board of County Commissioners called by the Chairman or Acting Chairman of the Board when an emergency situation exists based on competent evidence from the Baca County Sheriff or other professional source that the danger of a forest fire or grass fire is high and an immediate temporary ban is essential. Such special meeting shall be conducted in person or by telephonic conference and shall be recorded by the clerk of the Board. A temporary ban so issued shall be ratified at the next regular meeting of the Board of County Commissioners.

PART THREE: STAGE I, II AND III FIRE BANS

Stage I Fire Ban: When the Board of County Commissioners imposes a Stage I Fire Ban the following restrictions are imposed on open fires and open burning: When the National Weather Service has issued a Red Flag Warning for any portion of unincorporated Baca County, a Stage I Fire restriction will be in place automatically for all of unincorporated Baca County without the need for a meeting or resolution, the restriction will automatically expire with the Red Flag Warning:

• Building, maintaining, attending or using a fire, campfire, coal or wood stove, fireplace, or open fire of any type outdoors shall be temporarily suspended in all undeveloped areas.
• Campfires contained in constructed permanent fire pits or fire grates within a developed recreation area shall be allowed (Prohibited during Red Flag Warnings).
• Enclosed grills using propane and other bottled fuels and any type of enclosed grill being charcoal-fueled or wood-fueled shall be allowed, but only in areas free of flammable vegetation and other flammable materials. Such fires must be used and maintained in such a manner that no fire danger is presented to the surrounding area. (Outdoor charcoal and wood burning grills prohibited during Red Flag Warnings)
• All open fires allowed by subparagraphs (b) and (c) above must be attended at all times, and an adequate water supply and/or a fire extinguisher shall be on site at all times while such an open fire is burning.
• All burning of trash, refuse or debris shall be temporarily suspended.
• Smoking shall be temporarily suspended except within an enclosed vehicle, building, or outdoor smoking area that is hard-surfaced or barren or otherwise cleared of all flammable vegetation or material.
• Discarding smoking materials in a receptacle not designed for disposal of smoking materials, discarding smoking materials from a moving or stationary motor vehicle, and discarding smoking materials in any other outdoor location is expressly prohibited at all times.
• The use of explosive materials including fireworks, solid fuel rockets, blasting caps, or any other incendiary device which may result in the ignition of flammable materials shall be temporarily suspended.
• Outdoor welding, grinding, or use of any type of torch in any area which presents the possibility of igniting vegetation or other combustible material shall be temporarily suspended unless there is an adequate water supply and/or fire extinguisher on site.
• Operating any outdoor equipment or machinery with an internal combustion engine in an undeveloped area shall be temporarily suspended unless said equipment or machinery is equipped with a spark-arresting device properly installed, maintained, and in good working order.
• The sale, possession and use of fireworks, including permissible fireworks as defined in §12-28-101, C.R.S., shall be temporarily suspended during the imposition of a Stage I Fire Ban. Such a restriction on fireworks within unincorporated areas of Baca County shall not last longer than a period of one year, and shall not be in effect between May 31 and July 5 of each year unless there is an express finding of a high fire danger by resolution of the Board of County Commissioners based on competent evidence as that term is defined herein.

Stage II Fire Ban: When the Board of County Commissioners imposes a Stage II Fire Ban, all the prohibited activities set forth in the Stage I Fire Ban shall be in effect, and, in addition, the following restrictions shall also be in effect:

• Building, maintaining, attending or using a fire, campfire, coal-burning or wood-burning stove, charcoal-fueled or wood-fueled cooking, or other open fires of any type at any location shall be temporarily suspended.
• Grills using propane or other bottled fuels shall be allowed only in areas free of flammable vegetation and other flammable materials, and must be used in a manner that presents no fire danger to the surrounding area.
• No grill in use shall be left unattended, and there shall be an adequate water supply and/or a fire extinguisher on site during such use.
• Use of a coal-burning or wood-burning stove or fireplace in a private residence shall be allowed only if the flue pipe, chimney, or other exhaust structure is equipped with a properly installed NFPA-approved spark arrestor such as a chimney cap.
• Off-road use or parking of a motor vehicle in an area which presents the possibility of sparks or exhaust heat igniting surrounding flammable vegetation shall be temporarily suspended during the period of time a Stage II Fire Ban is in effect.

*National Fire Protection Association

Stage III Fire Ban: When the Board of County Commissioners imposes a Stage III Fire Ban, all the restrictions set forth in the Stage I and Stage II Fire Bans shall be in effect, and all open burning of any kind shall be prohibited. In addition, the Board shall have the authority to temporarily close an area to entry or use. Such action will have an extreme impact on the public and on the responsible firefighting agencies and will not be considered except under the most severe conditions. Closures are justified by fire danger alone, but should be driven by the potential for imminent risk to life and safety due to extreme fire behavior, high potential for human-caused fires, severe shortages of resources, and numerous large fires within the state. Some examples of such situations where a Stage III Fire Ban may be necessary are:

• Potential loss of life due to explosive fire conditions;
• Potential for extreme or blow-up fire behavior;
• Stage I or Stage II Fire Bans are ineffective in reducing the number of human-caused fires;
• Resources for fighting wildfires across the geographic area are at a critical shortage level;
• The extent of wildland urban interface.

Areas of public lands subject to a Stage III Fire Ban shall be closed to all entry except for individuals carrying written permits from the Baca County Sheriff, federal, state and local officers, members of organized search and rescue or firefighting forces performing official duties, and resident landowners and lessees and their invitees and agents.

PART FOUR: EXCEPTIONS TO STAGE ONE, TWO AND THREE RESTRICTIONS

Section 1. The following shall be exceptions to the prohibited activities set forth in Part Three:

• Agricultural burning by a producer on property owned by or in the care of the agricultural producer. Agricultural burning on Red Flag Warning days is highly discouraged as it could present an extreme danger to life and property, such burns, along with any burn that ultimately violates Colorado Revised Statute(s), including ARSON, can be criminally prosecuted.
• Fireworks displays properly permitted pursuant to §12-28-103, C.R.S.
• Open fires or open burning by any federal, state or local officer or member of an organized fire protection district or department in the performance of official fire suppression, prevention, training function, or other duties.

PART FIVE: UNLAWFUL ACTS

Section 1: It shall be unlawful for any person to build, maintain, attend or use an open fire or conduct an open burning activity in the unincorporated areas of Baca County, including public, private, state and federal lands, when the same is prohibited by a Stage I, Stage II or Stage III fire ban being in effect.

Section 2: It shall further be unlawful for any person to conduct outdoor burn activities including agricultural burning at any time without first notifying the Baca County Sheriff’s Office of such burn. (Notification is not necessary for outdoor hot work, welding, cooking grills or legal campfires.)

Section 3: It shall further be unlawful for any person to leave an open fire or open burning activity of any type unattended at any time that creates a risk of ignition or escape, regardless of whether or not a fire ban is in effect.

PART SIX: PENALTIES

Section 1. Any person who commits a violation of an open fire or open burning ban imposed under the authority of this Ordinance commits a civil infraction under §30-15-402(1), C.R.S., and upon conviction thereof shall be punished by a fine and/or imprisonment as follows:

• Not less than two hundred fifty dollars ($250) and not more than one thousand dollars ($1,000) for violation of a Stage I ban.
• Not less than five hundred dollars ($500) and not more than one thousand dollars ($1,000) for violation of a Stage II ban.
• Not less than seven hundred fifty dollars ($750) and not more than one thousand dollars ($1,000) for violation of a Stage III ban.

Section 2. A violation of the Notice requirement as set forth in Section 2 of Part Five shall be punished by a fine of two hundred fifty dollars ($250).

Section 3: Any person who violates Section 3 of Part Five by leaving an open fire or an open burning activity unattended shall be guilty of a civil infraction and shall be punished by a fine of five hundred dollars ($500).

Section 4. In addition to any fine imposed, a defendant shall be subject to all mandatory statutory surcharges, including but not limited to the surcharge set forth in §30-15-402(2), C.R.S., and any applicable court costs.

Section 5. The penalty assessment procedure set forth in §16-2-201, C.R.S., shall be followed by law enforcement officers charged with enforcement of this Ordinance.

Section 6. Civil Cost Recovery for Fire Suppression and Emergency Response.

Liability for Costs. Any person who causes, sets, maintains, or allows a fire or ignition source in violation of this Ordinance, and whose actions result in or materially contribute to the ignition, spread, or suppression of a fire, shall be liable to Baca County and any responding agency for all reasonable costs incurred in connection with:

• Fire suppression and containment;
• Emergency response services;
• Rescue operations;
• Investigation of the fire;
• Rehabilitation and mitigation of affected areas; and
• Administrative and personnel costs reasonably related to such response.

Standard of Liability. Liability under this section shall apply where the violation of this Ordinance is a proximate cause of the fire, regardless of whether the conduct was negligent, reckless, or intentional.

Joint and Several Liability. Where more than one person contributes to the violation or resulting fire, such persons may be held jointly and severally liable.

Recovery Method. Costs may be recovered by:

• Civil action brought by the County or any affected fire protection district;
• Administrative billing issued by the County or responding agency; or
• Any other lawful means available under Colorado law.

No Limitation by Criminal Penalty. The recovery of costs under this section is separate from and in addition to any criminal penalties imposed and shall not be limited by the maximum fine authorized for a petty offense.

Section 7. Additional Remedies. In addition to any other remedy, the County may seek:

• Injunctive relief to prevent ongoing or threatened violations;
• Recovery of attorney fees and costs where authorized by law;
• Any other relief available under Colorado law.

Section 8. Disposition of Fines. All fines collected pursuant to this Ordinance shall be paid to the Baca County Treasurer and deposited in the County’s general fund in accordance with §30-15-408, C.R.S., and appropriated as determined by the Board of County Commissioners.

PART SEVEN: EFFECTIVE DATE

This Ordinance shall be effective immediately following adoption on second reading and shall apply to all open burning violations occurring or committed on or after said date.

PART EIGHT: REPEAL OF PRIOR ORDINANCES

Upon the effective date of this Ordinance, all prior fire ban ordinances or fire restriction ordinances including, but not limited to, Ordinance No ___, shall be deemed repealed and shall be of no further validity or effect.

The Board of County Commissioners for Baca County, State of Colorado