mutual aid, federal agencies

[Richard Boyden <richard.boyden@sanbruno.nara.gov>]

fyi, my report to NARA management re federal agencies' and mutual aid
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This reports on my June 4, 1998 meeting with National Parks Service representatives Brian Johnson, Emergency Coordinator, Golden Gate National Recreation Area, and Susan Ewing Haley, GGNRA Park Archivist, at the Presidio of San Francisco.  This meeting followed up on my presentation to the GGNRA Emergency Planning Group on April 29, 1998.  The subject of both meetings was mutual aid for disaster response between NARA and GGNRA, other Federal agencies, and the archives and library communities.

We discussed the problem of Federal agencies* legal barriers to entering into such pacts with non-Federal entities.  NPS cited National Oil Contingency Plan between Coast Guard and a variety of Federal and State agencies as a possible model.  (On April 29, Laurie Friedman, NPS contractor, writing the GGNRA disaster plan, promised to contact a friend in FEMA central office to get details.)  We will also explore various wildland fire agreements.  What is worrying us is that non-reimbursed mutual aid in the NPS-BLM-USFS-CDF Cooperative Fire Protection Agreement contains the following language:

<<Federal law regarding the obligating of Federal appropriations prohibits expenditures of wildland fire protection funds when there is no Federal interest in the lands.  Fire occurring on any State Responsibility Area in the Direct Protection Areas of the Federal Agencies will virtually always be a threat to Federal lands. (1996 Agreement, p. 3, par. 14, Protection of State Responsibility Area.)>>

This means that the barrier related to us by OGC in January still obtains, i.e., that we can*t promise to help a public library or historical society in a mutual aid agreement without obligating funds, shifting appropriations, etc.  While OGC told us we could sign an agreement with the proviso *to the extent permitted by law,* this means, evidently, that if the Economy Act or something else is lurking out there, we can sign all the agreements we want, but we still can*t do anything.

The other problem is the indemnification from liability clause that OGC told us to drop (we complied).  It reads:

<<Each party to this agreement shall defend, indemnify and hold harmless all other parties to this Agreement from and against any and all liability, loss, expense, attorneys fees, or claims for injury or damages arising out of the performance of this Agreement, but only in proportion to and to the extent such liability, loss, expense, attorneys' fees, or claims for injury or damages are caused by or result from the negligent or intentional acts or omissions of the party, its officers, agents or employees.>>

The Fed-State fire agreement contains the following language:

<<Waiver of Claims.  The State and Federal Agencies hereby waive all claims between and against each other, arising in the performance of this agreement, for compensation for loss or damage to each other*s property, and personal injury, including death, of employees, agents and contractors, except that this waiver shall not apply to intentional torts or acts of violence against such persons or property. (1996 Agreement, p. 16, par. 61.)>>

We are hoping that we can get OGC to agree to this language as a substitute.  Brian Johnson, who negotiates all mutual aid agreements for NPS (fire and law enforcement) with jurisdictions contiguous with GGNRA, says that no one ever signs mutual aid agreements without waiver of claims language.  So realistically, we can forget mutual aid if we don*t include it.  Johnson is forwarding these issues to the DOI regional solicitor*s office for review.  As of now, we don*t know what is the statutory basis of this waiver clause.

In the meantime, while the Fed-non-Fed relationship is being investigated, there is no such impediment to formation of a pact within the Federal government.  Mr. Johnson favors the idea of NARA and GGNRA entering into an agreement on this basis, possibly to include any other Federal agencies we can persuade to join (so far, as previously reported, the Court of Appeals, NASA, EPA, and DOE are possibilities).   We established what we think would be a realistic timetable for an NPS-NARA process: 1) 90 days for an Interior Solicitor response; 2) 60 days for NARA OGC concurrence; 3) four additional months for GGNRA and NARA management concurrence, Holiday rush, etc., with a completion target date of MARCH 1, 1999.

In addition, GGNRA will try to set up a disaster supplies box like ours on the Presidio.  They think they can get GGNRA Association (non-Federal) funds to do this.  Susan Ewing Haley is taking this task on.   We are also discussing joint training, for both agencies and others who would be interested.  This would take place on the Presidio.  No timetable for this activity has been set.  In the meantime, the non-Federal network has grown to 33 libraries, library systems, and archives, including the newest affiliate, the California Historical Society.  The Agreement now includes virtually all the public libraries in San Francisco, Alameda, Contra Costa, San Mateo, and Santa Clara counties, and many college and university libraries, with a client population of about six million.  All these institutions have been told that they can access NARA disaster supplies here in San Bruno on the condition that they replace them in 30 days, pursuant to our previous discussions.  
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