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NPS Archeology Guide > Cultural Resources and Fire > 5. Cultural Resource Laws

Fire Management and Cultural Resource Laws

Structural and wildland fire management programs, 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. Activities carried out by NPS structural and wildland fire management programs are Federal undertakings. Examples of undertakings related to fire management include:

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

Federal Cultural Resource Laws, Executive Order 13175, and Policies

Wildland fire management plans, projects, protocols, and activities comply with:

Cultural resource managers in parks, regions, and centers compile information to ensure that structural and wildland fire program managers and incident managers have documentation necessary to comply with Federal cultural resource laws, Executive Order 13175, and DOI and NPS 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:

Consultation Requirements

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. More information about compiling relevant cultural resource information for consultation purposes may be found in Cultural Resource Data for Fire Management.

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.

ARPA and the Antiquities Act contain provisions to protect cultural resources from vandalism and looting. Wildland fire situations may increase potential for both, and wildland fire managers and cultural resource managers must be diligent to ensure that cultural resources are protected and considered during planning and project implementation.

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

Public (and
associated groups)

SHPO

Indian Tribes

 

 

 

 

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

Potential

Potential

Potential

Park-specific policies

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.

Compliance with NEPA and NHPA

The National Environmental Policy Act (NEPA) of 1970 is a cornerstone of efforts to protect the environment. It 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 110 requires Federal agencies to establish programs to develop inventories of cultural resources and evaluate their suitability for nomination to the National Register of Historic Places (National Register). Historic properties are defined as those properties that are listed on or may be eligible for inclusion on the National Register, and include sites, structures, buildings, districts, and objects. While historic properties are significant cultural resources, not all significant cultural resources are historic properties. Cultural resources significant to a park but not on the National Register may include cultural resources listed in the park’s enabling legislation, Native American traditional cultural places (TCPs), and ethnographic landscapes.

NHPA Section 106 requires Federal agencies to consider the effects of Federal undertakings on historic properties. Compliance with 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.

Five principles guide the NHPA Section 106 process:

(Advisory Council on Historic Preservation)

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

Consultation with Indian tribal leadership is conducted on a government-to-government basis. This may entail face-to-face meetings, teleconferences, or mailing of documents. 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 Section 106 consultation may inform the outcome of the NEPA process. NHPA Section 106 and NEPA consultation can be coordinated to prevent a duplication of effort; coordination of consultation is one way to achieve this. 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 Section 106 process. A well-crafted wildland fire management plan will eliminate repetition in NEPA and NHPA consultation and review.

The Council on Environmental Quality (CEQ) and the Advisory Council have collaborated on a handbook about integrating NEPA and NHPA Section 106 processes. The handbook, NEPA and NHPA: A Handbook for Integrating NEPA and Section 106 (.pdf), is intended to help practitioners administer or participate in NEPA and Section 106 processes in an effective and efficient manner. The current paradigm for environmental reviews advanced by the Advisory Council and CEQ envisions the compliance process occurring simultaneously and exchanging information so that determinations and recommendations in one inform the other.

If the project is considered a categorical exclusion under NEPA, however, compliance with NHPA Section 106 for the project is still required.

Much guidance for implementing NHPS Section 106 regulations is available from the Advisory Council on Historic Preservation.

Much guidance about implementing NEPA is available through the Council for Environmental Quality.

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 in parks, regions, and centers; superintendents, and Section 106 coordinator work together to ensure that there are opportunities for public comment, and that those comments are taken into account before finalizing plans and before implementation. Consultation and documentation are key elements for compliance. Consultation protocols specific to individual groups may be developed to assist with NHPA Section 106 compliance.

More information about consultation is available in Consultation for Compliance with Federal Laws.

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 nationwide PA (.pdf) (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) 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 will be consistent with the NPS Environmental Safeguards Plan for all-Hazards Emergencies.

Within the NHPA Section 106 regulations, 36 CFR 800.12 provides an abbreviated process for compliance with 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:

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 Programmatic Agreements

On a case-by-case basis for individual parks, programmatic agreements may be used 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.

More information about programmatic agreements may be found at NHPA Programmatic Agreements and Fire.

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.

More information about consultation is available in Consultation for Compliance with Federal Laws.

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 the Archaeological Resources Protection Act (ARPA) and the Antiquities Act

The Antiquities Act (16 U.S.C. 431-433) was the first Federal law to provide general protection for any kind of cultural resource. It established the first national historic preservation policy for the United States. ARPA was enacted when difficulties enforcing the Antiquities Act and weaknesses in the penalties provided by the Antiquities Act became critical. ARPA, in particular, provides a strong basis for archeological protection on Federal and Indian lands. Its anti-trafficking provision also make it an effective tool for discouraging illegal excavation or removal of archeological resources.

The main focus of ARPA is on regulation of legitimate archeological investigation on public lands and the enforcement of penalties against those who loot or vandalize archeological resources.

The NPS Archeology Program website contains more information about ARPA and the Antiquities Act.

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 training that is provided to fire fighters.

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.

Consultation for Compliance with Federal Laws contains more information about consultation procedures.

MJB