Information Concerning The CAL FIRE Native American Contact List

Daniel G. Foster
Senior State Archaeologist
California Department of Forestry and Fire Protection
Date revised: November 15, 2006

General Information

CAL FIRE created a Native American Contact List to identify the appropriate Native American tribes and individuals to be contacted during the development and review of Timber Harvesting Plans (THPs) and other types of CAL FIRE Projects. The Native American Heritage Commission assisted CAL FIRE in the initial creation of this list and provides CAL FIRE with advice and assistance in the resolution of issues concerning its maintenance and use.

Purpose of Native American Consultation

This list is to be used to initiate consultation with Native Americans. Consultation with Native Americans means affording timely notice and opportunity to comment on a proposed CAL FIRE project. It is also an opportunity to request information on specific cultural resources that may be impacted by a proposed project. Receipt of written or verbal comments, views, and concerns prior to project approval are the essence of consultation. RPFs and CAL FIRE project managers are encouraged to correspond and provide maps of the location of the proposed project. Direct contacts through telephone calls, email correspondence and face-to-face meetings facilitate the development of mutual trust and encourage the exchange of information.

Critical to successful consultation is listening to, and actively considering the views expressed by Native American individuals and/or groups. A principal goal of consultation is to provide Native Americans a reasonable opportunity to express their views on a CAL FIRE project. Although face-to-face meetings are not required for every project, the value of personal contact should not be overlooked.

When the RPFs or CAL FIRE project managers discover that Native American people may have concerns about a proposed CAL FIRE project, they should investigate and consult. In those instances, telephone calls and face-to-face meetings (in an office or out at the project site) should be completed to gather information, answer questions, listen to concerns, and give consideration to any recommendations provided by concerned/interested Native Americans.

List Users

This list is intended for use by Registered Professional Foresters (RPFs) and their supervised designees to carry-out consultation procedures specified in California's Forest Practice Regulations (CFPRs) during the preparation of THPs. It is also intended to be used by CAL FIRE project managers, CAL FIRE archaeologists, consultants, and other key CAL FIRE staff during the preparation and review of other types of CAL FIRE projects.


How the List is Used

The list is used to identify appropriate Native American contacts for notification and consultation regarding CAL FIRE projects. The specific procedures RPFs or their supervised designees shall follow for THPs are identified in Sections 929.1, 949.1, and 969.1 of the CFPRs (14 CCR). The procedures for CAL FIRE staff to follow for other types of CAL FIRE projects are identified in Native American Consultation Procedures for CAL FIRE Projects which is available on this web page.

In general, these procedures require the project manager to provide written notification of a proposed project. The project manager sends correspondence with maps to the NAHC and to all the appropriate local tribal contacts. This correspondence will include an introductory statement of purpose, a brief description of the proposed project, a request for information on archaeological or cultural sites that might exist in the project area, information on when the project is likely to begin, the name, address, and phone number of the appropriate person to contact, and an invitation to participate in the project review process. NAHC will check its Sacred Lands File and reply if sacred lands sites are identified.

The project manager shall also provide a formal written notice if Native American archaeological or cultural resources are identified in an area that might be affected. If the project area is changed to exclude archaeological or cultural sites, and such sites will not be affected, or if archaeological sites are identified, but are historic representations (Euro-American-era resources) the second notice may not be necessary. The second step provides clear notice that a proposed project could affect Native American archaeological or other cultural resources. It further provides the consulted Native American groups the opportunity to submit comments concerning site stewardship, protection, or management for the CAL FIRE to consider. This formal notice will include notification that archaeological resources are present in the proposed project area, a brief project description, a brief description of the identified archaeological and/or cultural resources, the proposed protection measures, an invitation to submit written comments to the CAL FIRE for its consideration prior to project approval, the name, address, and phone number of the appropriate CAL FIRE staff person to receive comments, and information on the time available to submit written comments.

Sometimes the initial and second consultation may be completed in a single step. This is the case if the RPF or CAL FIRE project manager knows that cultural resources are present and how they will be treated. Although it is not a requirement to complete this work in two steps, the usual procedure is to send the first notice prior to the completion of an archaeological survey, and then a second notice after all survey work has been finished and an initial plan for the treatment of cultural resource impacts has been developed.

RPFs and CAL FIRE project managers are encouraged to make telephone calls and/or personal visits, as appropriate, in addition to sending written notices, to attempt to make actual contact with the local Native American groups.

 

Distribution of the List

Prior to 2002, CAL FIRE mailed a copy of its Native American Contact List to all RPFs during December of each year but this practice has been discontinued. In addition to a significant cost to the state (approximately $7000 for each mailing) the process did not allow for frequent revisions necessary to provide list users with the most current information available. CAL FIRE now provides the list to its users through posting on the CAL FIRE Archaeology Program Web Site at http://www.indiana.edu/~e472/CAL FIRE/contacts/ This site may also be visited from the main CAL FIRE Internet Home Page at www.fire.ca.gov From that page, click on Resource Management (found on the left side) and the click on Archaeology (on the right side), then Native American Contacts. Here you will find CAL FIRE's Native American Contacts List in three file formats as well as and other supporting materials.

To secure permission from Native American groups and individuals for posting their name and address on the web page, CAL FIRE sent written notification to all Native American individuals on the January 2002 Native American Contact List informing them of CAL FIRE's need to post the list on the web site. These individuals were given the opportunity to reconfirm their desire to continue to be placed on the list. Those Native American individuals that responded to this notification and gave CAL FIRE permission to include their name, address, and phone number on the web site posting were kept on the list of required contacts. Those individuals that did not provide written permission or did not respond to the notice were deleted from the June 11, 2002 version of the list. These permission records are on file at CAL FIRE Sacramento Headquarters.

List Revisions

CAL FIRE revises the master list on a continous basis, and posts monthly revisions on the first day of each month. Be sure to check the web site to determine if you are using the most current list during preparation of a THP or CAL FIRE project. Please notify CAL FIRE Archaeologist Gerrit Fenenga via email at gerrit.fenenga@fire.ca.gov or by telephone at (916) 651-2021 if any address changes or other errors are observed. California Native American tribes or individuals wishing to be placed on this list must complete the application form (posted on this web site) and submit the application to CAL FIRE for consideration. CAL FIRE will consult with the NAHC and respond in writing. Likewise, California Native American tribes or individuals wishing to be deleted from this list must submit this request to CAL FIRE in writing.

Payment of Consulting Fees

RPFs or CAL FIRE project managers may receive a request from Native American tribes or individuals for payment of fees for consultation, and this section is intended to provide direction on how to respond to such requests. RPFs and CAL FIRE project managers should recognize that in many instances, Native American people are being asked to volunteer their time to provide information. Accordingly, RPFs and CAL FIRE should consider steps to overcome financial impediments that prevent Indian tribes from effectively participating in the consultation process. These steps may include scheduling meetings in places and times that are convenient for the consulting parties.

Consultation is intended to address the identification of sites, site significance evaluation, impacts assessment, and resolution of significant adverse change. Its purpose is to give Native Americans an opportunity to present their interests and concerns to the RPF or CAL FIRE. In this relationship, the RPF's obligation is to seek the views of participating Native American groups and address these views in the THP. CAL FIRE's responsibility in reviewing a THP is to make a good faith effort to consider the views of Native American tribes and individuals and factor these views into the final agency decision. The consultation requirement, thus, gives an Indian tribe the ability to advocate an outcome it would like to see the agency take in the final project decision.

When RPFs or CAL FIRE seek the views of an Indian tribe to fulfill legal requirements to consult, neither the RPF nor CAL FIRE are required to pay the tribe for providing information or its views. The tribe is acting as a responsible agency or an agency with special expertise under CEQA. CEQA does not give agencies acting in these roles authority to charge fees for their response to consultation.

If the RPF or CAL FIRE has made a reasonable and good faith effort to consult with an Indian tribe and the tribe refuses to respond without receiving payment, the RPF or CAL FIRE has met its obligation to consult, and is free to proceed with the project review and approval process.

Under some circumstances, however, CAL FIRE may choose to contract with a Native American group or individual for paid consulting services to help CAL FIRE develop information. Those situations may include when:

CAL FIRE specifically requests a Native American group or individual to conduct a field survey within the CAL FIRE project to address a specific issue requiring their expertise, or

During an archaeological excavation when it is has been determined by a CAL FIRE Archaeologist that a Native American monitor is needed.

In those instances, the agency or applicant is formally purchasing the services of the tribe.

Ultimately, the RPF and CAL FIRE must be able to demonstrate that it made a reasonable and good faith effort. CEQA and the Forest Practice Rules encourage consultation with Indian tribes and their active participation in the planning process. These laws and regulations, however, do not require CAL FIRE or project applicants to pay for consultation. If an agency or applicant attempts to consult with an Indian tribe and the tribe demands payment as a condition of consulting, then the agency or applicant may refuse payment and move to the next step in the review process. In such situations, however, the agency should still document the efforts made to consult with Native Americans. If, on the other hand, the agency or applicant seeks information or documentation that it would normally obtain from a professional contractor or consultant, then they should expect to pay for the work product.

Legal Authority

CAL FIRE is required by State law (see PRC Section 21104) and regulations (see 14 CCR Section 15064.5) to consult with the Native American Heritage Commission (NAHC) and local Native American tribes. Individuals identified on the CAL FIRE's Native American Contact List are the appropriate local points of tribal contact. RPFs preparing THPs are subject to requirements found in the California Forest Practice Rules (CFPRs) (14 CCR Sections 895.1, 929, 949, 969). The following references list those appropriate sections in State law, regulations, and policy that require Native American consultation for THPs and other types of CAL FIRE projects.

CEQA Guidelines Appendix B Appendix B of the CEQA Guidelines (2002) lists those public agencies that have jurisdiction by law and must be consulted by the lead agency whenever a project may affect certain environmental resources. The NAHC has been given statutory authority concerning historic and archaeological sites.

PRC Section 21104 Section 21104 of the CEQA Guidelines (2002) requires CAL FIRE to consult with, and obtain comments from, any public agency with jurisdiction in law with respect to the project. Since the NAHC has been given statutory authority concerning historic and archaeological sites, CAL FIRE must consult with the NAHC for any project that has potential to impact archaeological resources, and for those projects where the existence of archaeological resources has been confirmed. The NAHC requested CAL FIRE to also consult with local tribes on the Native American Contact List during the Environmental Checklist process prior to approval of projects covered under a programmatic EIR. These procedural requirements are identified in CAL FIRE's Program EIRs for CFIP and VMP.

Case Law Environmental Protection Information Center (EPIC) v. Johnson (1985) 170 Cal.App.3d 604. In Epic v. Johnson, the court of appeals held that CAL FIRE's failure to consult with the NAHC constituted an abuse of discretion for failing to proceed in the manner required by law; and that abuse of discretion was prejudicial (170 Cal.App.3d, supra, pp.626-627). The court further ruled that the presence of the archaeological site on the proposed THP mandated CAL FIRE consultation with at least the NAHC, and that CAL FIRE acting as Lead Agency is required to consult with the NAHC before approval of any THP bearing an archaeological site.

PRC Section 21080.3 and 21080.4 Sections 21080.3 and 21080.4 of the CEQA Guidelines (2002) requires CAL FIRE to consult with any public agency with jurisdiction in law (including the NAHC) prior to determining whether a negative declaration or environmental impact report is required and when CAL FIRE determines that an environmental impact report is required. This means CAL FIRE must send the NAHC a copy of the Notice of Preparation when we are preparing an EIR.

PRC Section 15096 Section 15096 of CEQA discusses the role of a Responsible Agency and how they are to respond to consultation.

California's Forest Practice Regulations (14 CCR Sections 895.1, 929, 949, 969) These regulations identify specific requirements for Native American consultation during preparation and review of THPs and other forms of commercial timber operations. The Native American Contact List is defined in these regulations.

CFIP Program EIR The Programmatic EIR for the CFIP Program (1990 - page 67) contains procedural requirements that discuss mitigation measures and CEQA compliance. CAL FIRE is specifically required to send to the NAHC a copy of the project map and a brief project description and seek their review.

VMP Program EIR The Programmatic EIR for the VMP Program contains procedural requirements. One item specifically requires CAL FIRE to contact the NAHC and appropriate Native American tribes and individuals.

 

This Google™ translation feature is provided for informational purposes only.

The California Department of Forestry and Fire Protecton is unable to guarantee the accuracy of this translation and is therefore not liable for any inaccurate information resulting from the translation application tool.

Please consult with a translator for accuracy if you are relying on the translation or are using this site for official business.

If you have any questions please contact us here.

Select a Language Below / Seleccione el Idioma Abajo

Close this box or use the [ X ]