Fire Management and Cultural Resource Laws

The actions of structural and wildland fire management programs, including planning, are 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. Undertakings related to fire management include:

• Fire management planning;

• Fuel reduction planning and implementation;

• Tactics and strategies to suppress and manage wildfires;

• Detection and suppression system installation in historic buildings, if the installation affects historic fabric;

• Demolition of historic properties damaged by fire; and

• Post-fire rehabilitation and repair.

This section of Cultural Resources and Fire reminds wildland and structural fire managers and park superintendents of the need to comply with relevant cultural resource Federal laws, DOI and NPS policies, and Executive Order 13175 when carrying out their responsibilities. These laws and policies include:

• Antiquities Act;

• Archaeological Resources Protection Act (ARPA);

• Executive Order 13175—Consultation and Coordination With Indian Tribal Governments;

• Department of the Interior (DOI) Policy on Consultation with Indian Tribes;

• Native American Graves Protection and Repatriation Act (NAGPRA);

• National Environmental Policy Act (NEPA);

• National Historic Preservation Act (NHPA), Section 106; and

• Park-specific policies.

Cultural resources are buildings, sites, structures, objects, or landscapes having significance in prehistory or history, or ongoing significance to a Native American tribe or affiliated group. Historic properties are defined as those properties that are listed on or may be eligible for inclusion on the National Register of Historic Places (National Register). While historic properties are cultural resources, not all significant cultural resources are historic properties.

Criteria for recognizing significant cultural resources that should be considered when planning or implementing wildland fire-related activities include:

• Listed, eligible to be listed, or potentially eligible to be listed on the National Register (and subsequently referred to as a historic property);

• Listed in the park’s enabling legislation;

• Of importance to federally-recognized Indian tribe with ties to the park; and

• Of importance to groups with affiliation to the park.

Fire Management Implications

Wildland and structural fire program managers and cultural resource managers should ensure that all fire fighters and incident responders are aware that theft, looting, and vandalism of cultural resources on Federal land are punishable by Federal law. The Antiquities Act and ARPA pertain to museum objects as well as archeological resources and are enforceable even during national emergencies. This information should be included in all fire fighting training.

Consultation Requirements

To comply with Federal cultural resource laws, policies, and Executive Order 13175 the park must document and be able to demonstrate that groups were given opportunities to comment on proposed undertakings and that the comments were taken into consideration before implementing the undertaking, specifically:

• DOI Policy on Consultation with Indian Tribes, Executive Order 13175, NEPA, NHPA, and NAGPRA require that Indian tribes be informed of Federal undertakings with the potential to impact cultural resources and be afforded the opportunity to comment on the proposed undertaking through government-to-government consultation.
• NEPA and NHPA Section 106 require that ALL members of the public be afforded the same opportunities to comment on undertakings with potential to affect historic properties.
• Specific groups associated with cultural resources identified in park-specific legislation may be contacted individually for consultation.

Consultation Requirements for Federal Cultural Resource Laws, Policies, and Executive Order 13175

Public (and associated groups	SHPO	Indian Tribes	Law, Policy, or Executive Order
			Antiquities Act
		X	Archaeological Resources Protection Act (ARPA)
		X	Executive Order 13175—Consultation and Coordination With Indian Tribal Governments
		X	Department of the Interior Policy on Consultation with Indian Tribes
		X	Native American Graves Protection and Repatriation Act (NAGPRA)
X	X	X	National Environmental Policy Act (NEPA)
X	X	X	National Historic Preservation Act (NHPA), Section 106
Potentially	Potentially	Potentially	Park-specific policies

Compliance with NEPA and NHPA

The National Environmental Policy Act (NEPA) of 1970 mandates that Federal agencies consider the effects of their proposed actions on the environment, including effects on cultural resources, before implementation. NEPA emphasizes public involvement in government actions affecting the environment by requiring that the benefits and the risks associated with proposed actions be assessed and publicly disclosed. In accordance with NEPA, all wildland fire management plans must have an associated Environmental Impact Statements (EIS) or Environmental Assessments (EA). The appropriate level of compliance is determined in coordination with resource managers.

The National Historic Preservation Act (NHPA) of 1966 established a comprehensive program to preserve significant cultural resources. NHPA Section 106 requires Federal agencies to consider the effects of Federal undertakings on historic properties. Compliance with NHPA Section 106 entails documentation that the anticipated effects of the undertaking on cultural resources have been taken into account and that comments from the SHPO, Indian tribes, associated groups, and the general public have been considered. Documentation of compliance efforts are part of fire management plans and other planning documents.

Consultations for both NEPA and NHPA may be carried out simultaneously. Five principles guide the NHPA Section 106 process:

• Cultural values are public values; therefore, public input is essential as parks weigh these values against project goals.

• The Section 106 regulations provide a framework for problem-solving.

• Decisions are reached through consultation.

• The Federal agency official (the park superintendent) makes final decisions and is responsible for the success of the Section 106 process. Decision-making and consultation responsibilities cannot be delegated to non-Federal entities.

• The Section 106 process encourages, but does not mandate, preservation. The administrative and consultation record is important for demonstrating how decisions were reached.

More information about the Section 106 process may found in A Citizen’s Guide to Section 106 Review developed by the Advisory Council on Historic Preservation (“Advisory Council”). Although intended for the public, this excellent short guide provides much useful information for Federal managers.

Consultation with American Indian leadership is conducted on a government-to-government basis. This may entail face-to-face meetings, teleconferences, or letters. Consultation with the public and with State and Tribal Historic Preservation Officers 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.

Even though NHPA Section 106 and NEPA compliance are two separate and distinct processes, the results of NHPA Section 106 consultation may inform the outcome of the NEPA process. NHPA Section 106 and NEPA compliance can be coordinated to prevent duplication of effort; coordination of consultation is one way to achieve this. A well-crafted wildland fire management plan will eliminate repetition in NEPA and NHPA consultation and review. NHPA Section 106 activities may be documented through the NEPA process, and parks may use NEPA documents such as an EIS or EA, to convey decisions arrived at through the NHPA Section 106 process. If the project is considered a categorical exclusion under NEPA, however, compliance with NHPA Section 106 for the project is still required.

NEPA and NHPA: A Handbook for Integrating NEPA and Section 106 is intended to help practitioners administer or participate in NEPA and NHPA Section 106 processes in an effective and efficient manner.

Guidance for implementing NHPA Section 106 regulations is available from the Advisory Council on Historic Preservation. Guidance about implementing NEPA is available through the Council for Environmental Quality.

Fire Management Implications

The prudent structural or wildland fire program manager ensures that planning documents and project implementation comply with all Federal cultural resource laws, policies, and Executive Order 13175. Structural and wildland fire management programs demonstrate that State Historic Preservation Officers (SHPOs), Tribal Historic Preservation Officers (THPOs), Indian tribes, Native Hawaiian Organizations (NHOs), other interested parties, and the public were given opportunities to comment and that their comments were taken into consideration before implementation of projects and activities. Thus, consultation and documentation are key to compliance.

NHPA Compliance and Wildfire Emergencies

Although wildfires are unpredictable in extent and occurrence, the park wildland fire management plan outlines the ways that the park will respond to wildfires and the measures that will be taken to protect cultural resources and mitigate the effects of efforts to manage fires. Responses to wildfires that have been formally declared emergencies or disasters are still subject to NHPA Section 106, but an alternate compliance process may be used at the time of response.

The 2008 Programmatic Agreement Among the National Park Service (U.S. Department of the Interior), The Advisory Council on Historic Preservation, and the National Conference of State Historic Preservation Officers for Compliance With Section 106 of the National Historic Preservation Act (“Programmatic Agreement”) provides an alternative to the standard review process that may be utilized on a case-by-case basis. (NHPA compliance during emergencies declared by the park superintendent, however, will be consistent with the NPS Environmental Safeguards Plan for all-Hazards Emergencies.)

Fire Management Implications

As Federal undertakings, fire program planning, projects, and activities must comply with NHPA and NEPA. The park structural fire coordinator; wildland fire program manager; cultural resource managers; superintendent; and NHPA Section 106 coordinator work together to ensure there are opportunities for public comment, and that those comments are taken into account. Consultation protocols specific to individual groups may be developed to assist with NHPA Section 106 compliance.

Within the NHPA Section 106 regulations, 36 CFR 800.12 provides an abbreviated process for compliance with NHPA Section 106 in emergency situations, but it does not remove the need to comply with the law altogether. Several key features of this part of the regulations include:

• Under 36 CFR 800.12(a), the park is encouraged to consult with SHPOs, affected Indian tribes or Native Hawaiian organizations during planning and develop procedures for taking historic properties into account during responses to disasters or emergencies before the emergency occurs.
• Under 36 CFR 800.12(b), in the event that a park proposes an undertaking as part of an essential and immediate response to a disaster or emergency such as a wildfire and no procedures have been developed pursuant to 36 CFR 800.12(a), the park may comply with NHPA Section 106 by:
• Following a programmatic agreement developed through 36 CFR 800.14(b) that includes language dealing with historic properties in emergency situations; or
• Notifying the Advisory Council, the appropriate SHPO and any Indian tribe or Native Hawaiian organization that may attach religious significance to historic properties likely to be affected prior to the fire response and affording them an opportunity to comment within 7 days of receipt of notification.
• 36 CFR 800.12 applies only to undertakings that will be implemented during the 30 days following a formal disaster or emergency declaration. The park may request an extension of the period of applicability from the Advisory Council but the request must be made prior to the expiration of the 30-day period; and
• Also, pursuant to 36 CFR 800.12(d), emergency rescue and salvage operations conducted to preserve life or property from immediate and direct threat of fire are exempt from the provisions of NHPA Section 106. Much information about compliance with NHPA Section 106 during wildland fire emergencies is available in the ACHP Programmatic Agreement (PA) Toolkit.

Fire Management Implications

Structural and wildland fire program managers must ensure that fire-related activities, including planning, protocols, project implementation, and alterations of historic properties comply with Federal cultural resource laws and policies and Executive Order 13175.

NHPA Compliance and Park-Specific Programmatic Agreements

On a case-by-case basis, individual parks can use programmatic agreements for NHPA consultation if developed in advance of a fire. Programmatic agreements are useful in time- and resource-sensitive situations, such as wildfires, because they provide an alternative to the standard review and consultation processes. A programmatic agreement, for example, can include requirements for additional compliance and/or mitigation steps to be followed at the level of the individual project or unplanned event without re-initiating full consultation. If the programmatic agreement compliance measures are not in place or if the agreement has not specified an alternative approach, compliance with the standard requirements of NHPA Section 106 is required before the treatment can be carried out.

Compliance with Executive Order 13175 and DOI Policy on Consultation with Indian Tribes

Executive Order 13175–Consultation and Coordination With Indian Tribal Governments 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.

Fire Management Implications

Structural and wildland fire program manager should ensure that Indian tribal governments are notified of any fire-related activities with the potential to affect tribal interests and provided with opportunities for consultation. Appropriate tribal officials should be contacted at the earliest possible point in the planning process so that tribal input can be incorporated into wildland fire and structural fire planning documents.

Compliance with the Native American Graves Protection Repatriation Act (NAGPRA)

NAGPRA (1990) was enacted to address the rights of lineal descendants, Indian tribes, and Native Hawaiian organizations to Native American cultural items, including human remains, funerary objects, sacred objects, and objects of cultural patrimony. NAGPRA regulations (43 CFR 10.4) provide a process for resolving situations in which NAGPRA-related items are inadvertently discovered on Federal land. Under non-emergency circumstances, the process involves stopping work in the area of the discovery, notifying the appropriate tribal authorities, initiating consultation and, through consultation, developing a plan of action for disposition or reburial of the human remains and/or objects.

Fire Management Implications

Consultations between fire program managers, cultural resource managers, and appropriate tribal representatives to develop a plan of action prior to an inadvertent discovery of Native American human remains and related objects during fire operations will be mutually beneficial. Development of a process and a written plan of action that can be communicated to incident responders in the event that such a discovery occurs ensures that inadvertent discoveries will be properly handled.

More information and guidance about NAGPRA may be found on the National NAGPRA program website.

Compliance with Park-Specific Policies

Enabling legislation for individual parks may identify specific groups that have affiliations with the park unit and that should be included in consultations about park cultural resources that may be affected by fire. Conversely, specific cultural resources may be identified in the park’s enabling legislation. Affiliated groups formed after the enactment of the park’s enabling legislation with interest in those significant cultural resources should also be consulted when planning and undertaking fire-related activities with potential to affect the cultural resources in question.

Fire Management Implications

Fire program managers work with cultural resource managers to identify any groups associated with significant cultural resources in the park unit, and ensure that consultation with these groups takes place. As with all consultation for compliance purposes, the associated groups are provided with opportunities to comment, the consultations are documented, and a record of the ways in which the groups’ comments were taken into account is created.