Consultation for Compliance with Federal Laws
Structural and wildland fire management activities, including planning and implementation, are considered Federal undertakings. A Federal undertaking is a project, activity, or program funded in whole or in part under the direct or indirect jurisdiction of a Federal agency, including those carried out by or on behalf of a Federal agency; those carried out with Federal financial assistance; and those requiring a Federal permit, license, or approval.
As Federal undertakings, structural and wildland fire program plans, projects, and activities must comply with Federal cultural resource laws, policies, and Executive Order 13175. These laws and policies include:
- National Environmental Policy Act (NEPA);
- National Historic Preservation Act (NHPA), Section 106;
- Native American Graves Protection and Repatriation Act (NAGPRA);
- Executive Order 13175–Consultation and Coordination With Indian Tribal Governments; and
- Department of the Interior (DOI) Policy on Consultation with Indian Tribes.
All of these laws require consultation. Depending on the specific law, Executive Order 13175, or policy, consultation participants may be different. Consultations may take place with State Historic Preservation Officers (SHPOs), Tribal Historic Preservation Officers (THPOs), Indian tribes, Native Hawaiian organizations, and other parties concerned about the effects of Federal undertakings on cultural resources.
This section of Cultural Resources and Fire is intended for any park personnel who may be involved in arranging and participating in consultations for Federal cultural resource laws, Executive Order 13175, and policy compliance.
Elements of Consultation
Consultations serve multiple purposes. NEPA and NHPA allow all stakeholders to voice concerns about effects of Federal undertakings on cultural resources. Government-to-government consultations also are required by Executive Order 13175 and DOI policies to provide Indian tribes, Alaska Native organizations, and Native Hawaiian organizations with opportunities outside of the NHPA Section 106 process to share information about cultural resources of importance. Consultations required by NAGPRA create a context for developing protocols for appropriately responding to inadvertent discoveries of Native American human remains and objects.
The importance of early and sustained consultation during the development of cultural resource content in wildland fire management plans cannot be over-emphasized. Initial consultation may help to identify the potential benefits of fire applications on cultural resource management, such as rehabilitating a cultural landscape, or protecting archeological features through managing native plant areas. Consultation can also help parks to find solutions for fire management challenges that mutually benefit fire and cultural resource programs.
Differences in park sizes and cultural resource types, and specific Native American and public concerns may often result in widely different consultation procedures. Some parks may have only a few acres to manage (e.g., battlefields), and the full range of concerns may be identified in a single consultation, with all concerned parties present at the same meeting. Other parks cover millions of acres and contain thousands of archeological sites, cultural landscapes, or other historic properties important to Indian tribes, historic preservation groups, and the public. All effective consultations, however, share key elements of respectful listening and candid information sharing between park managers and the consulting parties.
Key elements to demonstrate that appropriate consultation has been conducted include:
- Ensuring that all appropriate parties have been contacted and invited to comment;
- Ensuring that all appropriate parties were able to access and review all relevant documents;
- Ensuring that all appropriate parties were given opportunities to comment on plans and projects;
- Demonstrating that comments and recommendations were considered before finalizing plans and projects;
- Documentation that a good faith effort was made to carry out consultations; and
- Demonstrating that sensitive information about cultural resource locations or importance is kept secure.
No single set of consultation procedures will identify concerns for all specific undertakings. Federal agency consultations, however, should be sufficient for the other consulting parties to understand the procedures that the park will use to inform and involve them in fire management activities, and the management direction that the park will follow in considering cultural resources during fire management activities.
Government-to-Government Consultation with Indian Tribes
NHPA Section 106 and NEPA consultation is required between Federal agencies and appropriate federally-recognized tribal government officials including Tribal Historic Preservation Officers (THPOs), and Native Hawaiian Organizations. Executive Order 13175 and the DOI Policy on Consultation with Indian Tribes require that the NPS conduct government-to-government consultations with federally-recognized Indian tribes when undertaking any Federal action that may have a direct impact on tribes or tribal lands. Tribes may have concerns about natural and cultural resources that may not necessarily be addressed during the NHPA Section 106 process.
For parks that manage large land areas that have not been fully inventoried for historic properties, one objective of tribal consultation during the preparation of protocol documents may be to establish a schedule describing the circumstances for future consultation related to fire activities. Consultation protocols maintain a respectful environment that facilitates the meaningful exchange of information and opinions.
For more information about conducting government-to-government consultations, the Toolbox document Guidance for Government-to-Government Consultations with Native American Tribes (.docx) contains links to a variety of Federal agency guides for conducting consultations.
A first step in successful consultation is to contact appropriate Indian tribes, Alaska Native organizations, or Native Hawaiian organizations associated with the park. Consultation lists and procedures may vary according to the circumstances of the specific park and the relationships that the park already may have with Indian tribes.
Consultation with the Public
Consultation with the public is an important element of NHPA and NEPA compliance. Consultation may be carried out through a variety of communication media; posting documents for comment on the NPS Planning Environment, and Public Comment (PEPC) website is recommended. Letters, posters, public meetings, and other opportunities for comment may be needed.
Consultation with the SHPO
Parks must determine the appropriate State Historic Preservation Officer (SHPO) with jurisdiction over the park unit. Initial consultations to establish a preferred schedule for communication will facilitate consultations related to wildland and structural fire-related planning, protocols, and project implementation. A current list of contact information for State Historic Preservation Officers is available on the Advisory Council on Historic Preservation website.
Fire Management Implications
There is no substitution for consultation, and responsibilities for consultations cannot be delegated to non-Federal parties. Structural and wildland fire managers work closely with cultural resource managers in parks, regions, and centers, and Section 106 coordinators to ensure that fire-related Federal undertakings comply with Federal cultural resource laws, policies, and Executive Order 13175. Disregard of the laws can result in legal proceedings. Also, NPS personnel involved in consultations have responsibilities to keep sensitive cultural resource information secure.
Fire Management and Cultural Resource Laws contains more information about structural and wildland fire management program compliance requirements with Federal cultural resource laws, policies, and Executive Order 13175.
Wildland and structural fire managers and cultural resource managers in parks, regions, and centers can coordinate consultations stemming from NHPA and consultations stemming from compliance with other laws. For example, NHPA and NEPA are two separate and distinct laws, but the processes can occur simultaneously so that the results of Section 106 consultation will inform the outcome of NEPA compliance.
Another way to coordinate consultations is to develop an event-specific consultation schedule that is included in planning documents and is approved by all consulting parties. In preparing planning documents, managers use opportunities to discuss consultation requirements prior to implementation of the plans where an alternative consultation process does not compromise the adequate consideration of cultural resources.
The circumstances under which park managers consults with the SHPO in assessing information needs depends on the nature of the undertaking and potential sensitivity of cultural resource issues that may arise. In the absence of controversy or particular problems, for many routine fire-related activities, individual parks may be able to use an alternative consultation process. Alternative procedures can be developed either through a park-specific programmatic agreement or the nationwide programmatic agreement on a case-by-case basis. In order for parks to use the NHPA nationwide programmatic agreement for alternative consultation processes, the appropriate tribal leaders must be a signatory to the programmatic agreement.
Fire Management Implications
The consultation schedule is important to document compliance with Federal cultural resource laws, policies, and Executive Order 13175 that require consultation. Under certain circumstances and on a case-by-case basis, the consultation schedule or use of a programmatic agreement can reduce or eliminate unneeded consultations.