By ALAN TRESEMER
I recently ran into a situation where the local responding agencies did not respect the unique authority of the local fire chief. What a crime! As a totally biased third party (the neighboring fire chief), I researched the legal foundations that controlled the issue. My findings surprised me.
A holdover lightning strike fire on mountainous U.S. Forest Service (USFS) land was discovered when at the size of 40 acres. That size fire is much larger than usual for the USFS. It usually spots these fires when they are “1⁄10 acre or less.” But visibility was bad because of all the other fires burning upwind. Four helicopters (two heavies!), a dozer, three 20-person trail crews, and the local ranger district’s two engines were sent. Two volunteer fire districts supplied an additional 10 engines and 20 firefighters with overhead management and logistics support. A bit more than 100 people responded and expected that the fire would be active for the next month.
The fire was less than a mile from private ground and structures. The prevailing westerly winds suggested that the fire might reach those structures within the next 24 hours. The locals know the road system to be difficult: narrow, steep dirt driveways with ruts and even washouts, no passing zones, and no signs. If anyone is driving out, nobody can drive in to reach the structures. Responding engines will stop people from evacuating. There would be instant gridlock, and no safety zones are within reach.
The local fire chief lives here. He knows the roads, the structures, and the people by name. Some of his firefighters live in the homes that are immediately threatened. They have already responded to the station, donned their wildland gear, and are waiting in their rigs at the bottom of the hill as a column of heavy black smoke blocks out the afternoon sun. They are ready to do the very difficult job of protecting their neighbors’ homes from the oncoming fire.
Here in Montana, state law says that, within his jurisdiction, the local fire chief is the Principal Executive of the Political Subdivision1 and has the ultimate command of all emergency and disaster events2 (and a slew of other activities) other than primarily law enforcement responses where the sheriff would take the lead. The fire chief has the authority to call all the shots as long as he uses other agencies for their proper duties.3 The incident command system (ICS) refers to this person as “the authority having jurisdiction.” On USFS land, the Feds call the shots, although state law still prevails; on state lands, the Department of Natural Resources and Conservation does. If there is a railway involved, the rail representatives have some say but only for technical issues relevant to railway operations. Although the rail companies have ownership rights, they usually don’t have legal jurisdiction over emergency operations.
If you have an incident where more than one agency has legal jurisdiction, you’re talking about Unified Command, where each agency brings its authority to the table and each agency’s representative is an incident commander (IC) for his area of expertise. Hopefully, there will be good communication and consent among all these ICs. If not, each IC can default to making the key decisions about his area without consensus. For instance, the sheriff would decide how to deal with the shooter, the power company technician would decide on how to deenergize the local grid, and the propane truck supervisor would decide how to offload an overturned truck. But, ultimately, on private property and the roads that serve it, the fire chief has overall authority over the issues that affect the safety of people and things. And it is the chief who declares an emergency and controls subsequent evacuations.
“Authority of principal executive officer. A local emergency proclamation or disaster declaration may be issued only by the principal executive officer of a political subdivision [such as a fire district (author)] … (a) direct and compel the evacuation … b) control the ingress and egress… includes the authority to close wildland areas to access during periods of extreme fire danger ….” 4
At this incident, the USFS IC told the fire chief that they were operating under Unified Command, but nobody else was told. As a consequence and despite the fire chief’s protestations, the sheriff’s deputies set up a roadblock and stopped everyone from entering the fire area. Not even firefighters in personal protective equipment could get past the deputies. Supplies that the chief ordered could not get to the people who needed them. Residents who had pumps, hose, and sprinkler kits could not bring them in to protect their homes. And, if residents left the area, they could not get back in. Residents were running the roadblock or using logging roads to access their homes. These circumstances went on for days before the situation was resolved. At a time of high stress, everyone was getting a bit upset. Fortunately, the fire was brought to heel before any structures were lost. But the bad feelings remain.
Two big issues were involved. The first issue is, what authority does any agency director (and, therefore, his appointed representatives) have? Each state has its own laws regarding authority of public agencies. Montana makes it clear that, in his designated operational area, the fire chief is king for all emergencies other than criminal events. The law even states, “Parts 1 through 4 of this chapter may not be construed to give any state, local, or interjurisdictional agency or public official authority [such as a county over a political subdivision (author)] to: (3) affect the jurisdiction or responsibilities of police forces, firefighting forces [italics author’s], units of the armed forces of the United States, or any personnel of those entities when on active duty, but state, local, and interjurisdictional disaster and emergency plans must place reliance upon the forces available for performance of functions related to emergencies and disasters” [italics author’s].5
As our county attorney once told me, the fire district and the county stand at the same level. Neither is above the other. Each is king for its respective duties. Once a county creates a fire district, the county cannot come back into the picture without the permission of that fire district.
Clearly, in Montana, this gives the chief and his designated representatives the power to command without interference. It also leaves the authority of evacuation and resident access up to the chief (or the governor, in certain cases), with the actual tasks to be carried out by law enforcement at the chief’s direction.
Fire officers who have had the pleasure of having a national incident management team (IMT) come into their area to manage a big event (I’ve had half a dozen) know that one of the first documents placed before you for your signature is the Delegation of Authority, which, among other things, gives the IMT irrevocable control over evacuations and access issues.6 The IMT recognizes that you have such authority, and they want you to give it to them. Think before you sign any such document. You are allowed to make modifications. If you are under Unified Command, much of it may not be needed because you are present to make those decisions. Would that IMT sign any of its authority over to you? Never. Regardless of whether you sign over your powers, you are still ultimately responsible for whatever happens.7
In Montana, it is also common for the county to try to assume such authority. It doesn’t have the authority unless the chief gives it to them. At this incident, the county declared a countywide emergency so it could control this incident. This was not exactly legal, but there’s nothing new about that. The laws are complex, and agencies do what they think is right or expedient. I am fortunate that, in my county, the sheriff says, “Hey, fire is your stuff. You’re the expert. You just let me know how I can help.” He understands that we are all working for the same end. The next time I respond to one of his law enforcement emergencies, I hope I have the presence of mind to do the same for him.
The second issue is, how do multi-agency responses work? Although the chief is king over his domain, all the other agencies have dominion over their areas of jurisdiction and expertise. For example, for environmental emergencies, the Environmental Protection Agency; the National Institute for Occupational Safety and Health; or state Fish, Wildlife, and Parks representatives might have some jurisdiction. Each can step into an IC position for the issues for which they are legally responsible. The bottom line is, when an event transitions to Unified Command, you no longer have one IC—you have several ICs.
FEMA and Unified Command
As stated in Federal Emergency Management Agency (FEMA) courses8 and in the National Incident Management System (FEMA, Third Ed. October 2017) and accepted by just about every government agency in the country,9 “The Unified Command organization consists of the Incident Commanders from the various jurisdictions or agencies operating together to form a single command structure in the field … and make joint decisions and speak as one voice.”
In Unified Command, there is a single Operations Section chief to ensure that the objectives are carried out smoothly and without conflict, even though he may sometimes have to adjust to conflicting instructions from Command.
How does your state delegate these authorities? Many states use the “Principal Executive of the Political Subdivision” concept. Ohio operates similar to Montana, except that a group of political subdivisions in a county can appoint one “director/coordinator” who has super-authority.10 California differs regarding evacuations: Any broadly defined peace officer can initiate an evacuation. It is unclear who has authority to cancel an evacuation.11
Consult your state’s laws, which spell out the rules. Do not trust someone to tell you how it works. They may not know or may have their own agenda. There is always going to be competition for power and control. It’s human nature. You need to go to the source, your state’s laws. How will you deal with law enforcement at your next motor vehicle accident? Who decides whether to open the road? Learn your laws and then talk to the agencies that might be involved before the next incident. Armed with the facts, you can work out the kinks so that you can deliver the best service to your community while avoiding the bad feelings.
1. Montana Code Annotated (MCA) 10-3-103.
2. MCA 7-33-2201.
3. MCA 10-3-102.
4. MCA 10-3-402.
5. MCA 10-3-102.
6. FEMA IS200 Lesson 3.
7. FEMA IS200b Unit 3 Delegation of Authority.
8. FEMA IS100b Lesson 5,6.
9. U.S. National Response Team (NRT) Unified Command Technical Assistance Document.
10. Ohio Administrative Code 4501:3-6-01, 5502.26, .27, .271.
11. California Penal Code 409.5.
ALAN TRESEMER, MSEL/GCU, has been an EMT in several states, a search and rescue member, a sheriff’s deputy, and a commercial pilot. Over the past 35 years, he has been a firefighter/officer at all levels including incident commander, logistics chief, and operations chief. He is the chief of Painted Rocks (MT) Fire Rescue Company. He is president of the First Responder Institute for Research and Education and a Federal Emergency Management Agency all-hazards lead instructor.