Native American Consultation Procedures

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Daniel G. Foster, Senior State Archaeologist and Linda C. Pollack, Associate State Archaeologist
California Department of Forestry and Fire Protection
Date Revised: October 13, 2006

Introduction 

CAL FIRE is required by State law (see PRC Section 21104) and regulations (see 14 CCR Section 15064.5 and 14 CCR Sections 929.1a2 and 929.1b) to consult with the Native American Heritage Commission (NAHC) and local Native American tribes during the development and review of CAL FIRE projects. Tribal groups and individuals identified on the CAL FIRE's Native American Contact List are the appropriate local points of tribal contact. This document provides guidance for successful consultation with Native Americans and applies to all forms of Timber Harvesting Plans (THPs) as well as other CAL FIRE Projects which are either initiated, funded, or permitted by CAL FIRE in its role as lead agency under the California Environmental Quality Act (CEQA). CAL FIRE projects include but are not limited to Timber Harvesting Plans, Non-Industrial Timber Management Plans, Timberland Conversions, projects in the Vegetation Management Program (VMP), California Forest Improvement Program (CFIP), Prop-40 grants, State Forest Timber Sales and other projects, and certain Engineering, and Pre-Fire (Burn/Mechanical Plan) project areas. This set of procedures provides direction to CAL FIRE staff on consultation requirements for non-THP CAL FIRE Projects but is also intended to provide guidance and direction to private sector Registered Professional Foresters (RPFs) preparing THPs, to supplement the direction given to them in the Forest Practice Rules.

Consultation Procedures Statement

CAL FIRE shall consult with the NAHC and listed local tribes for any THP and any CAL FIRE Project which has the potential to cause significant impacts to a Native American cultural resource. Resources of concern that require Native American consultation include prehistoric or ethno-historic archaeological sites, traditional cultural properties, such as sacred places, and gathering localities. In addition to consulting during specific CAL FIRE projects, the Department should also initiate consultation during broad-scale program development and activities. Specific examples include, but are not limited to, the development of management plans, cultural resource inventories on State Forests, typical CAL FIRE projects, or special projects such as archaeological test excavations, archaeological interpretive trails, the development of interpretive materials, CAL FIRE brochures, and other activities as appropriate.

Consultation shall also take place in those sensitive instances, such as the discovery of Native American human remains and burial goods, as specified in State law (see Health and Safety Code Section 7050.5 and PRC Section 5097.98). State agencies should consult with Native American groups and individuals because cultural resources of significance to Indian tribes deserve full consideration in the project planning and review process and tribes possess a special perspective on, and relation to these resources.

Definition of Consultation

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 their 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. We strongly encourage such meetings and correspondence, as a follow-up to the written notifications, as appropriate.

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 CAL FIRE independently discovers that Native American people may have concerns about a proposed CAL FIRE project, the CAL FIRE manager and/or RPF 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.

Typically, consultation regarding CAL FIRE Projects can be completed in a series of steps. The first step, called Initial Consultation, is intended to provide notice of a proposed project and request information about cultural resources known or thought to exist within or adjacent to the project area. The second step, called Second Consultation, is taken when known cultural resources are located within the project.

Initial Consultation

To complete the Initial Consultation, the RPF or CAL FIRE project manager shall send correspondence with maps to the NAHC and to all the appropriate local tribal contacts on the most current list. The CAL FIRE Archaeology Program recommends two map attachments: a vicinity map, and a detailed project map which may be a copy of the appropriate segment of the USGS 7.5' quadrangle. To better facilitate communication, the correspondence should contain:

• 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 RPF (for THPs) or CAL FIRE person (for non-THP CAL FIRE Projects) to contact,
• Information on the time frame to submit written comments (for non-THP CAL FIRE projects, indicate CAL FIRE would appreciate receiving comments at least within 30 days. For THPs, the language concerning timeframes is in the Forest Practice Rules. See also CAL FIRE's Sample Letters),
• A statement that encourages participation in the project review process.

The NAHC will check its Sacred Lands File and reply if sacred lands sites are identified.

Second Consultation

A second consultation step must be completed for any THP or CAL FIRE Project with Native American archaeological or cultural resources located within the project area. If the project area is changed to exclude archaeological 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 is not necessary.

The second step provides clear notice that a proposed project has identified the existence of Native American archaeological or other cultural resources within its boundaries, and the specific actions or project alterations that were developed to protect such resources. It further provides the consulted Native American groups the opportunity to submit comments concerning the adequacy of these protection measures, or offer additional ones for CAL FIRE to consider.

To complete the second consultation, correspondence with attached project and impact specific maps shall be sent to the NAHC and to appropriate local tribal contacts on CAL FIRE's most current list. Two maps are recommended attachments to the correspondence: a vicinity map and a detailed project/impact specific map. A copy of the appropriate segment of the USGS 7.5' quad will usually suffice for the project map. The substance of the correspondence shall 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,
• Name, address, and phone number of the appropriate CAL FIRE staff person to receive comments,
• The date or timeframe for submitting comments (for non-THP CAL FIRE projects this should be at least 30 days from the date of the CAL FIRE correspondence. The time periods for public comment on THPs are specified in the Forest Practice Rules.)

Sometimes the initial and second consultation may be completed in a single step. This is the case if the CAL FIRE 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 conducting 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.

Additional Consultation Efforts

The CAL FIRE shall conduct additional Native American consultation beyond Initial and Second Consultation if it is judged to be appropriate and necessary. The purpose here is to fully evaluate potential effects, and provide the NAHC and local listed tribes additional opportunity to participate in the project review process. For example, this type of consultation might include escorts of appropriate Native American persons or groups to inspect archaeological resources and prescribed CAL FIRE treatments.

Documentation

The CAL FIRE shall keep documentation of all Native American consultation in the project file, and be prepared to demonstrate compliance with applicable State law and regulation.

If the CAL FIRE project manager receives requests from the NAHC and/or local tribes that appear to be outside the primary topic for consultation (potential impacts to cultural resources), a CAL FIRE Archaeologist should be contacted for assistance.

Payment of Fees

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.