EFFECTIVE DATE: 01/31/1991
DURATION: This supplement is effective until superseded or removed. / 5170
Page 1 of 26
FSM 5100 – fire management
Chapter 5170 - fire management cooperation
5170.3 - Policy.
The New Mexico and Arizona State Foresters are provided with State-wide responsibility for forest fire prevention and suppression on all non-Federal, non-municipal lands under New Mexico statute 62-3-6.2 and Arizona statute ARS 37-623, as are their appointed agents. It is Region 3 policy for Forest officers to assist the State foresters in carrying out their fire protection responsibilities by implementing the joint powers agreements as approved by the cooperating Federal agencies and the States of New Mexico and Arizona.
5171 - AGREEMENTS WITH FEDERAL AGENCIES.
Forest Supervisors are responsible for annual negotiation of initial attack boundaries with cooperating agencies under the two Regionally negotiated joint powers agreements. Regional Office, State and Private Forestry, State Representatives, and the Director, Aviation and Fire Management shall coordinate between agencies under these agreements.
1. JOINT POWERS AGREEMENT BETWEEN THE STATE OF NEW MEXICO AND THE FEDERAL AGENCIES OF THE DEPARTMENTS OF AGRICULTURE AND INTERIOR
REF.NO.-FS-16-R3-77-0003
No.-CANMSO -90
No.-66-4
JOINT POWERS AGREEMENT
BETWEEN THE
STATE OF NEW MEXICO
AND THE
FEDERAL AGENCIES OF THE DEPARTMENTS
OF
AGRICULTURE AND INTERIOR
WITH
FIRE RESPONSIBILITIES
This is a joint powers agreement pursuant to the Joint Powers Agreement Act, Sections 4-22-1. et seq., NMSA, 1953 comp.
This Joint Powers Agreement supersedes and replaces a similar cooperative agreement between the same agencies dated May 7, 1968; however, this agreement in no way waives or modifies those existing agreements for fire suppression between cooperating Federal agencies.
PURPOSE
The purpose of this Joint Powers Agreement is to provide for mutual wildland fire assistance between the Forestry Division, Natural Resources Department of New Mexico, as the agent of all cooperating State agencies, and the following Federal agencies, as provided by Section 62-3-6, NMSA, 1953 Comp. and Article XV, Section 2 of the New Mexico Constitution.
1. For the State of New Mexico, hereinafter called the cooperating State agencies:
Natural Resources Department
Forestry Division
Parks and Recreation Division
Department of Game and Fish
Office of Military Affairs
Civil Emergency Preparedness Division
National Guard
Criminal Justice Department
State Police Division (New Mexico State Police)
State Highway Department
Forest Service
Department of the Interior
Bureau of Land Management
Bureau of Indian Affairs
National Park Service
FEDERAL AUTHORITY
The authority for Federal agencies or organizations is as follows:
U.S. Department of Agriculture, Forest Service - Section 5, Act of April 24, 1950 (16 USC 572), the Act of June 30, 1914 (16 USC 498), and the Act of September 21, 1944 (16 USC 580), the Act of December 12, 1975 (16 USC 565a-1-3) and the Annual Department of the Interior and Related Agencies Appropriations Act.
U.S. Department of the Interior, Bureau of Land Management - 42 Stat. 857; 16 USC 594; 48 Stat. 1270; 43 USC 315a, 90 Stat. 2766, 43 USC 1737.
USDI, National Park Service - 16 USC 1b(1).
USDI, Bureau of Indian Affairs - 42 Stat 857; 16 USC 594; 69 Stat. 66; Section 16 of Order 2503 (Secretary of the Interior).
Authority applicable to all Federal agencies - Reciprocal Fire Protection Act of 1955 (42 USC 1856), and the Economy Act of June 30, 1932 (31 USC 686).
NOW, THEREFORE, the parties hereto, in consideration of the covenants and conditions hereinafter set forth, do agree as follows.
A. DEFINITIONS
1. "Fire Protection Services" shall mean fire suppression, support and facilitating services as used by all parties.
2. "Reciprocal Fire Protection Services" shall mean non-reimbursable fire protection services provided by a fire organization maintaining fire protection service in the vicinity of the other's lands prior to notification of the responsible agency of the fire.
3. "Cooperative Fire Protection Services" shall mean fire protection services performed by the cooperating parties as fully reimbursable work on lands that are the responsibility of the other parties.
4. "Reimbursable Work" shall mean all cost of fire protection services by any party that are furnished as a cooperative fire protection service.
5. "Initial Attack Forces" means the suppression personnel plus equipment of any agency dispatched prior to notification of the responsible agency of the fire.
6. "Reinforcements" shall mean all forces subsequent to initial attack forces.
B. RECIPROCAL FIRE PROTECTION SERVICES. When reciprocal fire protection services are furnished by any party to the agreement on lands for which another has fire protection responsibility, the party having responsibility must take over the fire when notified or requested that the initial attack party, continue suppression action. Such request for continued suppression action, if agreed to by the initial attack party, will be subject to full reimbursement. Every reasonable effort will be made to make prompt notification to the responsible agency.
C. COOPERATIVE FIRE PROTECTION SERVICES. It is mutually agreed by all parties that the cost of furnishing cooperative fire protection services will be subject to full reimbursement. Matters of reimbursement will be handled by direct billing between the cooperating Federal or State agencies involved in the particular suppression effort. Reimbursement of expense incurred by one cooperating agency for suppressing fires on lands of another will be as follows (except for the National Guard, which is exempt when mobilized as a full unit under the terms of a Governor's declared emergency):
1. Salaries and expenses of employees. The responsible agency will reimburse the agency furnishing assistance by paying salary costs (including regular pay, overtime, hazardous duty pay, etc.) for regular, seasonal and casual employees.
2. Travel and per diem. The responsible agency will reimburse the agency furnishing assistance for travel and per diem expenses of all such persons engaged in the suppression of each particular fire.
3. Equipment use. Each agency will be reimbursed for equipment use at the current, regularly established equipment rates of the furnishing agency. Equipment loaned by one party to the other becomes the responsibility of the borrower, and shall be returned in the same condition as when received, fair wear and tear excepted. Damage in excess of fair wear and tear will be repaired. Lost or destroyed items will be replaced or reimbursed.
4. Other expenses. Reimbursement for supplies and expenses of cooperating State agencies and of cooperating Federal agencies, other than as provided under 1, 2, and 3 above, will be on an actual cost basis, or replacement in kind.
5. Indirect cost. Indirect expenses are an inherent element of the cost of doing work. Therefore, overhead and other indirect expenses may be billed and paid by parties to this agreement.
6. The parties to this agreement shall maintain strict
accountability for all receipts and disbursements. Itemized statement of costs covering all reimbursable expenses will be submitted within 120 days by the agency furnishing assistance to the responsible agency receiving assistance.
7. For purposes of workmen's compensation coverage, employees of the State of New Mexico assisting in suppressing fires on lands of the other agencies party to this agreement are to be considered as State employees.
For purposes of Federal employee's compensation coverage, employees of the Federal Government assisting in suppression fires on lands of the other agencies party to this agreement are to be considered as employees of the Federal Government.
8. National Guardsmen and other State employees who, as individuals, with the consent of the proper State officers, voluntarily offer their services to fight fires will be employed as firefighters as determined by the guidelines of the employing agency.
9. It is agreed among the agencies that each agency will be solely responsible for the acts and omissions of its officers and employees resulting in damage or injuries to third parties to the same extent that such agency is responsible under its applicable laws and regulations.
10. No property shall be acquired as a result of the joint exercise of powers under this Joint Powers agreement.
D. FIRES ON OR THREATENING LANDS OF BOTH PARTIES.
1. When two or more cooperating agencies party to this agreement are involved in a joint fire suppression effort, it is agreed:
a. The cooperating agencies involved will decide upon and designate in writing an individual as Fire Boss, considering in this designation the lands threatened, and the qualifications of available Fire Boss personnel as determined by the National Fire Qualification System.
b. The cooperating agencies involved will participate jointly in strategy sessions to reach mutual agreement on strategy and tactics, subject to final decision by the Fire Boss but within policy guidelines prescribed by the responsible agency.
c. The Fire Boss will base his decision on an appraisal of the most approprate strategy and tactics to control the fire and consideration of the particular land use requirement. If it is necessary to set priorities due to limited suppression forces, he will consider both the values of resources or improvements at stake and the fuel potential ahead of the fire.
d. Suppression costs of such joint action fires will generally be on prorata share based upon the individual cooperating agency percentages of the total area of the fire. Exceptions will be: (1) when for some reason it is necessary to expend an unusual amount to halt the forward spread of the fire that threatens lands under the protection responsibility of one agency; (2) when the Fire Boss determines through mutual agency consent that the fire is no longer a joint fire because it has been controlled on the lands of one cooperating agency and is then only a threat to the other cooperating agency or agencies. Costs incurred up to this point will be prorated on the acreage involved up to the time of the fire's ceasing to be a joint fire (in this case, mop up and patrol on the lands for which the fire has been controlled will be borne by the agency having protection responsibility); (3) when the fire has been caused by willful or negligent action of an employee or contractor of one cooperating agency; (4) when the fire is in part on the lands that are under contract for protection by one of the cooperating agencies, in which case the cooperating agency holding the contract to provide protection will assume the prorata share of the costs for those lands.
E. GENERAL PROVISIONS
1. Employees of each cooperating State agency and each cooperating Federal agency shall take immediate action to report any fire discovered by them that occurs on or threatens the lands of other cooperating agencies and to assist in fire suppression to the extent of available suppression resources when called upon by the other cooperating agency.
2. Requests for aid. All requests for aid to be provided by State agencies under this agreement will be made to the New Mexico State Forester, Santa Fe. He will notify the proper State agency director. Federal agency assistance under
this agreement will be requested through the Region 3 Forest Service Fire Coordinator, Albuquerque, for the Forest Service; through the Natural Resources Specialist, Santa Fe, for the National Park Service; through the Chief Branch of Protection, Santa Fe, for the Bureau of Land Management; through the Area Fire Management Officer, Albuquerque Area Office, for the Bureau of Indian Affairs; or through the Fire Protection Officer, Window Rock, for the Bureau of Indian Affairs, Navajo Area.
All attempts shall be made to obtain suppression resources and assistance from the closest available source.
3. Law Enforcement. Initial attack forces will gather and preserve evidence concerning the cause of the fire. This evidence will be turned over to the agency with protection responsibility as soon as possible to initiate law enforcement action. On fires that burn on lands of more than one agency, the agencies will coordinate law enforcement efforts. If a fire on which initial attack is made is determined to have been started through negligence, or a willful or illegal act, it is agreed that the appropriate party will attempt collection of all costs, including initial attack, incurred in suppressing such fire.
4. Liaison. The State Forester of the State of New Mexico, or his authorized representative, will be the primary liaison between the cooperating State agency and the cooperating Federal agencies, and it is understood that the head of each Federal agency within the State of New Mexico, or his authorized representative, is the primary liaison between each of the cooperating Federal agencies and the cooperating State agency. It is understood the New Mexico State Office of Civil Emergency Preparedness will be kept advised of developing fire situations with potentials for civil disaster, through the New Mexico State Forester or his authorized representative.
It is understood that, except for the New Mexico National Guard, local unit managers may represent their cooperating agency as liaison officers under this agreement, to the extent of their normal authorities to commit available fire suppression resources and to obligate funds. National Guard assistance will be obtained at the State level of the New Mexico State Forester through the Adjutant General of New Mexico, or his authorized representative.
The Fire Boss will advise the State Forester upon the termination of the fire emergency for purposes of demobilizing the National Guard. At that time, the State Forester will advise the New Mexico Adjutant General that the fire emergency no longer exists. If the responsible agency decides that guardsmen should continue on the fire, and meet the criteria set forth in paragraph C8 of this agreement payment shall be made to those remaining as if hired as private citizens.
5. Before the start of fire season each year, representatves of the parties hereto will meet within each of the five State Forestry Districts to prepare and adopt annual operating plans. The New Mexico Division of State Forestry will be responsible for calling each meeting.
6. A meeting will be held annually prior to April 1 to review this agreement. The New Mexico Division of State Forestry will be responsible for calling said meeting.
7. Termination. Participation in this Joint Powers agreement may be terminated by any cooperating agency named in this agreement by notification in writing to all other cooperating agencies at least 90 days prior to the intended date of termination. By such termination, no party may nullify obligations already incurred for performance or failure to perform prior to the date of termination.
8. No member of, or delegate to, Congress or Resident Commissioner shall be admitted to any share or part of this Joint Powers agreement, or to any benefit that may arise therefrom; but this provision shall not be construed to extend to this agreement if made with a corporation for its general benefit.
9. The extension of benefits under the provisions of this Joint Powers agreement shall be without discrimination as to race, color, creed, sex, or national origin.
10. Each of the parties to this Joint Powers agreement does hereby expressly waive all claims against every other party for compensation for any loss, damage, personal injury, or death except as otherwise provided herein occurring in consequence of the performance of this agreement.
11. Nothing in the Joint Powers agreement shall be construed as obligating the cooperating agencies to expend money in excess of appropriations authorized by law.
12. It is the intent of this Joint Powers agreement that all parties are each acting as the others' agents when performing work under this agreement on lands for which the others have the fire protection responsibility.
13. Amendment. This Joint Powers agreement shall not be altered, changed, or amended except by instrument in writing executed by the parties hereto.
14. Term. This Joint Powers agreement shall not become effective until approved by the Office of the New Mexico Attorney General, the New Mexico Board of Finance, and all parties hereto. This Joint Powers agreement shall remain in full force and effect unless terminated pursuant to paragraph E7.
15. The Comptroller General of the United States or any of his duly authorized representatives shall, until the expiration of five (5) calendar years after the close of each calendar year, have access to and the right to examine any pertinent books, documents, papers and records relating to any reimbursable expenses paid to the State for that calendar year and provided for under this agreement.
APPROVED:
FORESTRY DIVISION
BY /s/
State Forester
Date 5/15/78
CIVIL EMERGENCY PREPAREDNESS DIVISION
BY /s/
Director Forester
Date 5/17/78
OFFICE OF MIITARY AFFAIRS
BY /s/
Major General
The Adjutant General
Date 5/17/78
NEW MEXICO STATE POLICE
BY /s/
Director
Date 5/18/78
UNITED STATE OF AMERICA
USDI, BUREAU OF INDIAN AFFAIRS
BY /s/
Area Director
Albuquerque Area Office
Date 5/18/78
UNITED STATES OF AMERICA
USDI, BUREA OF INDIAN AFFAIRS
BY /s/
Area Directorr
Navajo Area Office
Date 5/15/78
APPROVED:
UNITED STATES OF AMERICA
USDI, NATIONAL PARK SERVICE
BY /s/
Regional Director
Southwest Region
Date 5/19/78
APPROVED AS TO LEGAL FORM AND SUFFICIENCY:
OFFICE OF THE ATTORNEY GENERAL
BY /s/
Date 5/19/78
DEPARTMENT OF FINANCE AND ADMINISTRATION
BY /s/
Date 5/15/78
APPROVED:
NEW MEXICO DEPARTMENT OF GAME AND FISH
BY /s/
Director
Date 5/18/78
PARKS AND RECREATION DIVISION
BY /s/
Director
Date 5/18/78
NEW MEXICO STATE HIGHWAY DEPARTMENT
BY /s/
State Highway Engineer
Date 5/26/78
APPROVED:
UNITED STATES OF AMERICAN
USDA, FOREST SERVICE
BY /s/
Regional Forester
Southwestern Region
Date 5/22/78
UNITED STATES OF AMERICA
USDI, BUREAU OF LAND MANAGEMENT
BY /s/
State Director, New Mexico
Date 5/17/78
CRIMINAL JUSTICE DEPARTMENT
BY /s/
Secretary
Date 5/26/78
NATIONAL RESOURCES DEPARTMENT
BY /s/
Secretary
Date 5/19/78
2. JOINT POWERS AGREEMENT BETWEEN THE STATE OF ARIZONA AND THE FEDERAL AGENCIES OF THE DEPARTMENTS OF AGRICULTURE AND INTERIOR.