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Illegal burning case bares gray area

Jackson County health officials thought they had an open-and-shut case against a Wimer man they cited for an illegal burn in October.

Willard Herzberg freely admits he was burning a pile of slash on his 20-acre property off East Evans Creek when it got out of control and scorched about 2 acres.

But, in an appearance Tuesday before Donald Rubenstein, a Jackson County hearings officer, Herzberg insisted he had called the Oregon Department of Forestry for permission on Oct. 24, the day of the burn. That, he said, should get him off the hook for the $600 fine he faced.

Herzberg's case revealed a crack in the county's system of protecting air quality. Daniel Hough of Jackson County Environmental Health said ODF rules can supersede the county's no-burn rules even when air quality is questionable, leading to confusion about when it's permissible to burn.

"The gray area lies in burns on private properties that are being cleared for forest practices," he said.

Some of these large burns could be on commercial logging operations.

That doesn't mean Herzberg will get off with no fine. Hough said the ODF doesn't have any record that Herzberg had permission to start a burn pile on Oct. 24. Only one property in Josephine County and two others in Jackson County had permission from the ODF to burn slash piles on that day.

Hough also noted that even if Herzberg had a permit from ODF to burn slash piles, the permit still required him to call Jackson County first to make sure weather conditions would allow it.

Jackson County, working with local rural fire departments, has stepped up enforcement efforts against illegal burns. Since 2005, there have been seven citations filed against property owners. Hough said he has no record that any were issued before then, though thousands of warnings have been given.

Brian Ballou, a fire prevention specialist for ODF, said that if Herzberg had a general permit to burn slash from his department, he would still need to get permission to burn on a particular day.

"For the day of the big ignition, you need to call to see if it's legally allowed," he said.

Ballou said ODF tracks meteorological conditions to determine if burn piles at higher altitudes or in remote areas would cause any problems in the lower valleys, which often are socked in by inversion layers during winter months.

"It's obviously not a perfect science," he said. "But it works most of the time."

However, when it doesn't, Ballou said his department has been criticized by the public because the burning was allowed by ODF on a no-burn day in Jackson County. Also, the ODF-approved burns are generally large.

"It's something we hear from the public quite a lot," he said.

Four neighbors who have objected to Herzberg's burning practices previously also attended the Tuesday hearing.

Neighbor Mary Wacker said she saw black smoke rising from Herzberg's property on Oct. 24. She assumed from past conversations with Herzberg that he was burning a tire, but acknowledged the material from the fire could have been wet.

She recalled a previous comment from Herzberg, in which she said he told her, "'Throwing a tire on it really makes it go good.'"

William Fuller, Evans Valley fire chief, said he saw no evidence at the scene that anything other than slash was burned.

Herzberg told the hearings officer he didn't think the fire would spread, saying he'd already received 5 inches of rain at his property during the fall.

"I'm trying to be cautious or whatever," he said. "I'm trying to keep it cleared up along the neighbor's property."

Herzberg said he has been trying to clean up the forest around his house to make it safer, and looking back on the incident he said the 2-acre fire helped that effort.

"Actually, the fire was a great benefit," said Herzberg.

Reach reporter Damian Mann at 776-4476 or dmann@mailtribune.com.