Part of a series of articles titled NPS Archeology Guide: Cultural Resources and Fire.
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Consultation for Compliance with Cultural Resource 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 orders. These include:
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National Environmental Policy Act (NEPA);
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National Historic Preservation Act (NHPA), Section 106;
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Native American Graves Protection and Repatriation Act (NAGPRA);
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Executive Order 13175–Consultation and Coordination With Indian Tribal Governments; and
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Department of the Interior (DOI) Policy on Consultation with Indian Tribes.
All of these laws require consultation before finalizing planning and implementation. 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 compliance with Federal cultural resource laws and policies and Executive Order 13175.
Government-to-Government Consultation with Indian Tribes
NHPA Section 106 and NEPA consultation is required between Federal agencies and appropriate federally-recognized tribes. In addition, 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. These and other consultation protocols maintain a respectful environment that facilitates the meaningful exchange of information and opinions. 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.
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. A number of Federal agencies maintain contact lists of federally-recognized Indian tribes (for example, HUD’s Tribal Directory).
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 State Historic Preservation Office
Parks must determine the appropriate State Historic Preservation Office (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.
Consultation Coordination
Wildland and structural fire managers and cultural resource managers 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 NHPA Section 106 consultation will inform the outcome of NEPA compliance.
Consultations may be coordinated through an event-specific consultation schedule that is approved by all consulting parties and included in planning documents. Managers use planning 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.
Last updated: August 31, 2021