AUGUSTA — An ongoing dispute over issuing burn permits by way of private online systems has heated up again after the state forester said any resident conducting a burn using those permits is committing a crime.
Doug Denico, director of the Maine Forest Service, issued an opinion piece earlier this week in which he urged state lawmakers to do two things — reverse the action they took at the close of legislative session that ended last summer to make the use of private online services by fire chiefs and fire wardens to issue burn permits legal and to lift the required $7 fee charged by the Forest Service’s online system.
“The consequences posed by escaped outdoor burns are too great to risk the current and expanded use of unlawful, private online systems,” he wrote.
The state lawmakers who worked on the emergency legislation last year that explicitly made those services legal have a different take on the situation.
“The Maine Forest Service is overstepping its agency power,” Sen. Shenna Bellows, D-Manchester, said Friday. “The Legislature authorized the use of these services because our fire departments told us the systems work well. It’s unfortunate that they are resorting to scare tactics rather than working with these companies and fire departments to make this work and get clarity for everyone.”
Sen. Tom Saviello, R-Wilton, was more blunt.
“That’s a bunch of garbage,” Saviello said of Denico’s contention that anyone conducting an open burn using a permit issued by a private online site is guilty of a class E crime, which is a misdemeanor.
“If I ever sent anything out like that, I would be in front of the Ethics Commission so fast,” he said.
LEGISLATIVE INTERVENTION
Last June, the Maine Forest Service sent a letter to more than 70 cities and towns, declaring that their use of the online platforms Warden’s Report and Burning Permit rendered those permits invalid.
Anyone burning brush, wood debris, grass or agricultural fields in Maine needs a permit issued either by the Maine Forest Service or their own city or town.
The Forest Service imposes a number of regulations on how and when open burns may take place; the state limits them to after 5 p.m., but local fire chiefs have discretion to allow them at other times.
The director of the Maine Forest Service may delegate his or her authority under state law to town forest fire wardens and their deputies for paper permits only, which the Forest Service supplies. State residents may obtain paper permits at no cost from a fire warden — often a fire chief or his or her designee — or they may obtain one from a Maine forest ranger.
Walt Whitcomb, commissioner of the state Department of Agriculture, Conservation and Forestry, and Denico said no private online system issuing permits was developed or authorized by the director of the Maine Forest Service, which is responsible for issuing and enforcing burning permits across the state.
That was news to Gary Hickey II, who with Chris McLaughlin — both West Gardiner firefighters — launched Warden’s Report in 2013.
And it was a surprise to Matthew Scott, who with a software developer created Burning Permit, started under a contract with the state. Scott has been a member of the Gorham Fire Department for more than 25 years.
The services are available to municipalities that pay an annual fee. The permits, issued by fire chiefs or wardens using the online services, are free to state residents.
By contrast, the Forest Service charges $7 per permit. Part of that goes to the state general fund, part goes back to the issuing municipality, and $1 goes to InfoME, which manages the official state of Maine website.
Both said the Forest Service was aware of what they were doing as they were doing it.
An appeal to state lawmakers brought about emergency legislation that passed into law in early July following a brief shutdown of state government over a budget impasse.
It states that the Department of Agriculture, Conservation and Forestry, Bureau of Forestry shall allow municipalities to purchase and use burn permit software sold from a private party to issue burn permits pursuant to the Maine Revised Statutes, Title 12, section 9325, if all statutory requirements of issuing burn permits are met by the software.
Denico, in his latest communication, said the Maine Forest Service identified the statutory requirements for issuing a burn permit and has found six months later that the requirements of the law have not been met and therefore the permits are invalid.
That determination angers both Hickey and Scott. Both say they have contacted the Forest Service repeatedly since July.
Hickey has requested meetings to establish how his service and the state’s online service will operate in their systems.
Scott has been seeking clarification and more information about a document Denico sent out in August listing the state’s requirements for the private online systems to comply with state law.
Neither has received a response.
“The communication has all been one way,” Scott said, “except for their periodic creation of work. As far as I can tell, they have no interest in helping us figure out a solution.”
Both Scott and Hickey say they have reviewed what the Forest Service considers statutory requirements for their systems, and they say the state has come up short; the nine-page document contains only one reference to a statutory requirement among the other guidance it offers.
“The stuff they sent out is not in statute. It’s recommendations, and we pretty much meet all these guidelines,” Hickey said. “It’s just them being bullies.”
“I already had some of those things in place when they asked me to do them,” Scott said. “And I did them in good faith.”
But when Scott sought clarification on some provision, he said he received no answer.
“It’s not the normal course to ask if someone has been convicted of a burning offense,” he said.
But in agreeing to the terms and condition of using his service, he said, the user is agreeing that he or she is eligible to get a burn permit.
AN OPEN QUESTION
Denico was unavailable for an interview Friday, but John Bott, director of communications for the Department of Agriculture, Conservation and Forestry, said having more than one online service confuses the public.
“It’s a potentially dangerous and inherently unsafe system,” he said.
He noted that the Forest Service has received calls from fire chiefs and state residents wanting to know which system they should use.
“The state forester wrote the op-ed calling on the Legislature to fix the problem because of the potential danger it represents,” he said.
It’s unusual to allow functions of state government such as issuing licenses and permits to be done by third parties that are not under state supervision.
The state’s position has been that the systems allow for permits to be issued before the state’s 5 p.m. limit — something that fire chiefs may do at their own discretion, depending on conditions — and Bott said Friday that it’s possible that permits could be issued by people who are not fire professionals.
In his op-ed, Denico suggested that permits issued by services such as Burning Permit and Burning Report might be leading to an increase in the number of fires that get out of hand.
Bott cited three instances in which fires escaped the control of the people tending them, including one in 2012 when a homeowner had used an online permit system to get a permit on a day when fires were banned.
“We’ve seen from those fires out West that all it would take is one fire and we could have a major catastrophe,” Bott said.
Both Hickey and Scott say the essential misunderstanding is about who issues the permits. Their systems don’t; municipal fire chiefs or wardens issue them, as they have always done, under the authority delegated to them by the state. The online systems are the means by which they issue permits, they say.
In earlier interviews with the Kennebec Journal, fire chiefs from around the region have said private online services make their jobs easier by making securing a burn permit easier. When Warden’s Report started, Pittston Fire Chief Jason Farris said the number of illegal burns in Pittston dropped.
“People were doing everything they were supposed to except getting a burn permit,” he said.
The added bonus, they said, was the online permits were free.
Bott said the Maine Forest Service cannot give up the fee it charges because state lawmakers required the charge when they authorized the state’s online service, and it’s up to lawmakers to lift that fee.
He said while the state forester has no authority to waive the fee, he has the authority to issue burn permits and delegate issuing authority and set up requirements for third-party systems to meet.
In enacting the emergency legislation, state lawmakers didn’t change the statute that gave discretion to Denico, Bott said.
But Saviello said they didn’t have to.
Earlier in his legislative career, Saviello served on the L.D. 1 Committee as a state representative. The committee’s charge was to review state regulations that might get in the way of business people doing their jobs. The result of that work, he said, was to move state agencies away from using discretion in setting guidelines; instead, they were required to follow the state’s Administrative Procedures Act to make rules.
That process involves drafting rules for public review and comment and review by the state attorney general before they are implemented. Once they are, they have the force of law.
The state Forest Service, he said, has not engaged in any rule-making.
“Mr. Denico has decided that the only fire permit you can (online) is through his online system,” he said.
While many of the provisions listed in the Forest Service’s requirements are good, common-sense ideas, he said, they are not statutory requirements.
“This is Denico saying, ‘I am king and you will use my system or you are guilty of a class E crime.”
Saviello termed this move a power play in the part of the Forest Service.
“It would be different if they systems had just come into place,” he said.
Even though lawmakers say the emergency legislation explicitly made the online services legal, Bott said questions remain, including whether the private services’ failure to charge a fee violates state law and who is liable if a fire with an online permit issued by an entity other than the state escapes.
“It’s an open question that needs to be resolved by the Legislature, is the short answer,” he said.
“We are happy to make the burn permits issued by the state free,” Bellows said. “If we need to strengthen the law to make it clear that local fire departments can work with these services, we will.”
Jessica Lowell — 621-5632
Twitter: @JLowellKJ
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