The RPF or CAL FIRE project manager may receive a request from Native American individuals or groups for payment of fees for consultation. This section is intended to provide direction on how to respond to such requests. The RPF or CAL FIRE project manager should recognize that in many instances, Native American people are being asked to volunteer their time to provide CAL FIRE with information. Accordingly, the CAL FIRE should consider steps to overcome financial impediments which might 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 a lead agency. In this relationship, the state agency's obligation is to seek and consider the views of participating Native American groups. This means an agency must make a good faith effort to solicit the views of Native American individuals and groups 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 state agencies seek the views of an Indian tribe to fulfill the agency's legal obligation to consult, the agency is not required to pay the tribe for providing 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 agency has made a reasonable and good faith effort to consult with an Indian tribe and the tribe refuses to respond without receiving payment, the agency has met its obligation to consult, and is free to proceed with the project review and approval process.
Under some circumstances, however, an RPF or CAL FIRE may choose to contract with a Native American group or individual for paid consulting services to help develop information which may be needed during project review. 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 lead agency or applicant (usually the RPF representing a private landowner) is formally purchasing the services of the tribe.
Ultimately, a state agency 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. Since these laws and regulations 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 the agency should still document the efforts made to consult with Native Americans. If 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.
In cases where the CAL FIRE representative determines that payment for services would be appropriate to implement a non-THP CAL FIRE project, payment must be arranged within CAL FIRE's standard administrative processes.