Transcript FEDERAL CONTRACTING MECHANISMS

THE TRIBAL FOREST PROTECTION ACT:
OPPORTUNITIES FOR CROSS-BOUNDARY
COLLABORATION BETWEEN
TRIBES AND THE FOREST SERVICE
Objectives
Become familiar with:
 Why the TFPA is important to the Forest Service (FS)
and Tribes.
 What it can be used for.
 How TFPA can play a role landscape scale efforts to
restore and sustain forest resiliency.
Key Terms
 “Tribes”- recognized by the US government.
 “Trust Responsibility”- federal government’s legal
responsibility to protect the interests and rights of
Tribes and their members.
 “Lands in trust”- the US holds the legal title and the
Tribe or individual Indian people hold the beneficial
title.
TFPA Background
 The goal of TFPA is protection of trust lands.
 TFPA is an authority based on trust responsibility and
the
government-to-government relationship,
TFPA Background
 The law recognizes Tribes’ historic and
cultural rights and interests in national
forest management.
 Also that Tribes have relevant knowledge
and skills needed in forest management.
TFPA Background
 Resulted in part from catastrophic fires burning
from federal lands onto reservations with
devastating results.
 In 2002, the Rodeo-Chediski Fire in Arizona
burned 276,000 acres of the Fort Apache
Reservation in east-central Arizona.
 In 2003, several fires originating on federal lands
completely burned 8 reservations and affected
many others in Southern California.
TFPA Background
 Initial response to the fires was the Healthy Forest
Restoration Act.
 Tribes went to Sen. Feinstein and Rep. Pombo for
support and sponsorship.
 Passed in 2004 with bilateral support.
 Authorizes the Secretary of Agriculture to give
special consideration to tribally-proposed projects
on FS administered lands.
TFPA Opportunity
Implementation is consistent with working on a
landscape scale and achieving an "all hands, all lands”
approach to:
Conserve working forest landscapes,
Protect forests from threats, and
Enhance public benefits from trees and forests.
TFPA Elements
 To qualify, the Indian land (either tribal or
allotted) must be in trust or restricted status and
must be forested or have a grass, brush, or other
vegetative cover.
 Burned-over land capable of regenerating
vegetative cover also qualifies.
TFPA Elements
The Tribe must propose its project to take place on FS
administered land which:
 Borders or is adjacent to Indian trust land and
 Poses a fire, insect infestation, disease, or other
threat to the Indian trust land, resources or
community, or is in need of land restoration.
TFPA Elements
The proposal area:
 Should involve a feature or circumstance
unique to the proposing Tribe (i.e., legal,
cultural, archaeological, historic, or biological)
and
 Should not be subject to some other
conflicting agreement or contract.
TFPA Elements
The TFPA states that the Agency should give special consideration to
tribally-related factors in the proposal of the Indian tribe, including:
A.the status of the Indian tribe as an Indian tribe;
B. the trust status of the Indian forest land or range- land of the Indian
tribe;
C. the cultural, traditional, and historical affiliation of the Indian tribe
with the land subject to the proposal;
TFPA Elements
Including:
D. the treaty rights or other reserved rights of the Indian tribe
relating to the land subject to the proposal;
E. the indigenous knowledge and skills of members of the
Indian tribe;
F. Features of the landscape of the land subject to the proposal,
including watersheds and vegetation types;
TFPA Elements
Including:
G. the working relationships between the Indian tribe and
Federal agencies in coordinating activities affecting the land
subject to the proposal; and
H. the access by members of the Indian tribe to the land subject
to the proposal.
TFPA Elements
 The FS may respond to tribal proposals within 120
days.
 Collaboration prior to the submission of a formal
proposal leads to more success.
 Consider developing protocol agreements or
understandings to guide mutually acceptable
communications, consultation and coordination
efforts.
TFPA Elements
The FS can deny a proposal and may:
 Provide the reasons for the denial,
 Identify corrective courses of action, and
 Consult with the Tribe on how to protect the
Indian trust land and tribal interests.
TFPA
TFPA can be an important tool for Tribes to
reduce current and future threats and
restore forest values.
How has it been implemented?
TFPA Success Stories
 The McGinnis Cabin Fuels Reduction Project
between the Confederated Salish-Kootenai Tribes
and Lolo NF in west-central Montana: thinning,
hazard fuels reduction, biomass utilization, road
construction, maintenance (utilizing a stewardship
contract);
 The Mill Creek Fuels Reduction Project between the
Hoopa Tribe and Six Rivers NF in northwestern
California: fuels reduction on over 300 acres next to
the Trinity Alps wilderness and the Hoopa
Reservation (tiered to a master agreement);
TFPA Success Stories
 The Parry Pinyon Pine Protection Project between
the Ramona Band of Cahuilla Indians, the Santa Rosa
Band of Cahuilla Indians and the San Bernardino NF
in southern California: 90 acres of limbing and brush
reduction (informally implemented by volunteers);
 The Lake Quinault Water Treatment Plant between
the Quinault Indian Nation and Olympic NF in
Washington State: water quality at Lake Quinault on
over 3,700 surface acres under a service contract;
Photo Courtesy of Gary Morishima
Blueback are a Quinault National Treasure
Photo Courtesy of Gary Morishima
TFPA Success Stories
 The 16 Springs Stewardship Project between the
Mescalero Tribe and Lincoln NF in New Mexico: fuels
reduction and protection from insect and disease, on
over 6,000 acres (utilizing a stewardship contract and
economic stimulus funding);
 This is the 1st TFPA Stewardship Project.
TFPA Success Stories
Project objectives :
 Reduce reduce the threat of damaging wildfire.
 Develop coordinated landscape treatments.
 Restore natural ecological processes.
 Provide forest products to the local community.
 Establish a fuel break around Ruidoso, New Mexico.
TFPA Success Stories
The Los Burros Project between the White Mountain
Apache Tribe and the Apache-Sitgreaves National
Forest,located in east central Arizona: designed to
reduce the threat of catastrophic fire to the Tribe’s
reservation.
TFPA Sucess Stories
Photo Courtesy of WMAT
TFPA Success Stories
The Los Burros Project 3 Phases:
Phase 1 - sale preparation and layout with tribal
crews on approximately 4,500 acres, included crew
training;
Phase 2 - treatment implementation by a third party
contractor using mechanized equipment under a preexisting stewardship contract; and
Phase 3 - tree thinning conducted by the Tribe.
Lessons Learned from Other Projects
The 2012 Wallow fire revealed the benefit of risk
reduction treatments.
The Apache-Sitgreaves National Forest took the brunt
of this fire.
The Wallow Fire killed fewer trees on the Fort Apache
Reservation and the San Carlos Apache Reservation due
to tribal management treatments.
Maverick Fuel Treatment
Photo by Kim Kelly October 2011
TFPA Implementation
As these examples demonstrate, there are mutual benefits to
collaboration between Tribes and the FS to work across
boundaries and reduce the threat of risks to trust lands,
including national forest lands.
TFPA project development is consistent with FS emphasis on
landscape scaled treatments to restore and sustain forest
resiliency, “all lands, all hands” across ownerships, and the
Administration’s direction on collaborating with Tribes.
Consultation, Collaboration and Consent
 There is an international context.
 Policy is going beyond unilateral consultation to
 Bilateral, interest based collaboration and
cooperation
 Leading to consensus and consent.
Consultation, Collaboration and Consent
The UNDRIP establishes a universal framework of
minimum standards for the survival, dignity, well
being, and rights of indigenous peoples around the
world.
“Consult, Cooperate and Consent” are principles
that has been incorporated explicitly in the UN
Declaration on the Rights Indigenous Peoples
(UNDRIP), adopted in 2007 and signed by the
United States.
Consultation, Collaboration and Consent
UNDRIP Article 32:
States shall consult and cooperate in good faith
with the indigenous peoples concerned through
their own representative institutions in order to
obtain their free and informed consent prior to he
approval of any project affecting their lands or
territories and other resources, particularly in
connection with the development, utilization or
exploitation of mineral, water or other resources.
Considerations for Successful
Implementation Considerations
Consult and collaborate to achieve agreement
on:
 Where to reduce threats, risks and restore
lands.
How to best to meet tribal rights & interests
in forest resource management.
What kind of contract or agreement is best
for the Tribe and Forest.
Collaboration is essential
for success.
Dee Randal, San Carlos Apache Tribe
and Rick Rick Reitz, Tonto National
Forest
Photo Courtesy of Sonia Tamez
Considerations for Successful
Implementation Considerations
Consult and Collaborate to:
Find the right instrument for both the Tribe
and Forest.
Develop criteria for determining “best value”.
Examine the strengths and weaknesses
of options.
Determine how to implement the project.
Implementation Considerations
In general, consider that:
 Contracts provide more specificity, but can be
difficult to change in response to new information or
changes in conditions.
 Agreements are more flexible than contracts, but can
require a match.
 Grants provide funding, but sometimes require a
match.
Implementation Considerations
Small Business Set-Asides for Socio-Economic Groups:
 Small Business (SB): must be independently owned &
operated, and qualified as a SB under the criteria and size
standards set by Small Business Administration (SBA).
www.sba.gov
 8(a) Program: authorizes SBA to enter all types of
contracts with other agencies. Projects may be competed
among 8(a) contractors or may be a sole source award.
Contractors must be certified and in the SBA database.
https://sba8a.symplicity.com/applicants/guide
Implementation Considerations
 Historically Under-Utilized Zone (HUB Zone): Only
small business concern that appears on the Qualified
HUB Zone List maintained by the SBA. Its purpose is
to increase employment opportunities, investment
and economic development in underutilized areas.
https://eweb1.sba.gov/hubzone/internet/
 Service-Disabled Veteran-Owned (SDVO): can be
competed among SDVO contractors or sole source
award http://www.sba.gov/VETS/
Implementation Considerations
Stewardship contracting can be used used to implement TFPA.
TFPA acknowledges that the agency entering into an
agreement or contract in response to a proposal, may
use a best-value basis, and
give specific consideration to tribally-related factors.
Implementation Considerations
“Best value” means the expected outcome of
an acquisition that, in the Government’s
estimation, provides the greatest overall
benefit in response to the requirement.
Federal Acquisition Regulations (FAR) Part
2.1, also see in FS Stewardship Contracting
Training Program at:
http://www.fs.fed.us/forestmanagement/st
ewardship/training/index.shtml).
Implementation Considerations
The FS Handbook 60.5 notes:
“It is the process of selecting a
contractor based on price and non-price
criteria. Evaluation factors may include,
but are not limited to, past
performance, work quality, experience,
and benefits to the local community.”
.
Implementation Considerations
 While best value is mandatory in Stewardship
Contracting, it is discretionary for TFPA projects (that do
not involve stewardship contracts).
 The TFPA does state that the Secretary may use a best
value basis for award and give specific consideration to
tribally related factors in responding to a tribal proposal,
including, but not limited to:
Implementation Considerations
 A. the status of the Indian tribe as an Indian tribe;
 B. the trust status of the Indian forest land or
rangeland of the Indian tribe;
 C. the cultural, traditional, and historical affiliation of
the Indian tribe with the land subject to the proposal;
 D. the treaty rights or other reserved rights of the Indian
tribe relating to the land subject to the proposal;
Implementation Considerations
 E. the indigenous knowledge and skills of members of
the Indian tribe;
 F. the features of the landscape of the land subject to
the proposal, including watersheds and vegetation types;
 G. the working relationships between the Indian
tribe and Federal agencies in coordinating activities
affecting the land subject to the proposal; and
 H. the access by members of the Indian tribe to the land
subject to the proposal.
Implementation Considerations
The FS guidance for TFPA acknowledges the option for
sole source. According to the Forest Service Renewable
Resources Handbook, Chapter 60, Stewardship Contracting
(FSH 2409.10):
“[P]roposals submitted under the Tribal Forest Protection
Act, may be eligible for consideration under applicable sole
source contracting authorities. Follow the procedural
direction for the application, development, execution and
administration of contracts and agreements in FSH 1509.11
and FSH 6309.32.”
Implementation Considerations
The TFPA references tribal-related factors, many of which are
unique and highlight information that could be used to support
the choice of a sole source contract (e.g., treaty or reserved
rights, indigenous knowledge).
Under TFPA, a Tribe initiates a proposal to protect their rights
and interests regarding trust lands, which Tribes are uniquely
positioned to address.
Implementation Considerations
 A Tribe can be uniquely qualified to
provide knowledge or perform a
necessary service (for example, reducing
risk to trust resources) that no one else
could provide.
 TFPA can be used as a sole source
authority.
Agreements
Some of the most commonly used mutual benefit
agreements include:
• Challenge Cost Share
• Participating
• Watershed Restoration and Enhancement
(Wyden Amendment)
Grants
 The Collaborative Forest Landscape Restoration
Program (CFLRP) established under Title IV of the
Omnibus Public Land Management Act of 2009 is
a potential source of support.
 The purpose of the CFLRP is to encourage the
collaborative, science-based ecosystem
restoration of priority forest landscapes.
Grants
The CFLRP provides for up to:
 $40,000,000/yr. for fiscal years 2009 - 2019;
 50 percent of the cost of ecological restoration
treatments on National Forests;
 $4 million annually for any one project;
 Two projects per year in any one FS region; and
 Ten projects per year nationally.
he Agreements’ Decision
Tree & Agreements
Decision Tree for TContracts,
Grants
Does the agreement
Include the exchange or
expenditure of something YES
of value (for example,
funds or services)?
NO
SELECT APPROPRIATE
QUESTIONS/RESPONSES
Does the FS procure goods
and/or services for the
direct benefit of the
agency?
Memorandum
of Understanding
With another Federal agency?
Interagency Agreement
(outgoing funds)
Cost Reimbursable
Agreement
1.
2.
3.
4.
5.
6.
7.
Is there a mutual benefit,
mutual interest,
and cost sharing?
Will the FS perform a
or provide
erator
Does the project deal with
Law Enforcement, Fire
Pollution abatement?
Manpower/job training?
Publication of forestry
history materials?
Interpretive associations?
Forest protection?
Prescribed fire?
Watershed restoration
and enhancement?
Will the FS cooperatively
develop, plan, and implement
a project with a cooperator
that is mutually beneficial
and enhances FS activities?
Does the FS transfer
anything of value, such
as funds, to a recipient to
accomplish a public purpose
as authorized by law?
Note: This is a tool.
Contract (non-FSM 1580)
Does the project cover
one of the following:
NO
A non-FSM 1580
instrument.
Seek advice from
appropriate staff
area (for example,
property transfers).
With a private vendor?
With a college for training
and teaching activities?
Is it a non-binding agreement?
YES
PRIMARY
INSTRUMENT TYPE
ANSWER PRIMARY
FOLLOW-UP QUESTIONS
Is the FS substantially
involved?
?
Is the cooperator a
Federal agency?
aw ?
Participating Agreement
Challenge Cost Share
Agreement
NO
YES
NO
YES
Grant
Cooperative Agreement
Collection Agreement
Interagency Agreement
(incoming funds)
Cooperative Law
Enforcement Agreement
Questions or comments?