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SALT LAKE CITY — After the Brian Head fire torched 13 homes and an expanse of forest the size of Salt Lake City, authorities in southern Utah were intent on holding the cabin owner who sparked it to account.
Prosecutors charged him with reckless burning, a class A misdemeanor, but they ran into a problem.
A conviction would prevent the state from tapping into insurance money to cover costs of rebuilding homes and fighting the fire. Some companies, including the defendant's insurer, don't pony up for damage caused by reckless conduct.
"It prevents what is justice, and that is trying to make victims whole," said Iron County Attorney Chad Dotson, a prosecutor on the Brian Head case. The insurance issue tends to crop up in cases tied to big fires wherein a defendant doesn't have the cash to cover exorbitant costs, he said, so authorities must seek to recoup costs through the person's insurance.
Now, a Utah lawmaker is exploring ways to close the gap so the state doesn't necessarily have to choose between a payout and pursuing a criminal conviction. No bill is filed or draft written, but Rep. Rex Shipp says he wants to make sure those who are careless in sparking fires will face stiff penalties.
"In my estimation, there needs to be enough of a penalty there that's going to keep people from doing that sort of thing," the Republican from Cedar City told KSL.com. "It's really dangerous out there, and people need to realize that they can't be doing something that's going to start a wildfire and burn up our forests."
Gov. Spencer Cox and local leaders around the state have pledged to make sure anyone who ignites a blaze will face consequences as the state remains tinder-dry. Shipp said he doesn't want the gap in the law to block such efforts in the future and plans to bring the proposal to the 2022 Legislature.
After Robert Ray Lyman used lighter fluid to burn a pile of brush around his home on June 17, 2017, the fire raged out of control and torched more than 100 square miles near the southern Utah resort town of Brian Head.
Prosecutors ultimately dropped the reckless burning count and Lyman pleaded no contest to burning without a permit, a class B misdemeanor. His plea was held in abeyance under the terms of a bargain with prosecutors, meaning it will be dismissed altogether if he adheres to conditions of his probation.
Defense attorney Andrew Deiss has said Lyman paid a high price as the subject of widespread scorn. As a retired basketball coach, court records show he's completed a year of probation and over 150 hours of community service by coaching at Snow Canyon High School in St. George.
But Dotson, the Iron County prosecutor, said the misdemeanor conviction doesn't reflect the damage and danger the blaze created in summer 2017.
Dotson is hopeful Utah lawmakers will throw their support behind a new offense of negligent burning that could range from a misdemeanor up to a felony — carrying the potential for prison time — depending on how far and how long a fire rages.
A conviction based on negligence, a lesser legal standard than recklessness, would allow the state to still recoup money from insurance, he said.
State fire investigator Jason Curry said the insurance problem doesn't crop up in every case but posed a similar issue in Wasatch County in recent years.
"It's just something that we have to look at case by case to make sure that we're doing our due diligence and doing our best to recover the taxpayer dollars that were spent," Curry said.
He noted that a person doesn't need to break the law when starting a fire in order for the state to seek suppression costs for small fires, whether the sparks are ignited due to a firework, poorly maintained axles or another issue. He noted the state has hired an extra attorney to do so.
"We're putting more time and effort into it this year than ever before," Curry said.
