We didn’t start the fire. No we didn’t light it, But we tried to fight it!1
- Billy Joel
Every twenty-four seconds in the United States, a fire department responds to a fire emergency.2 In August 2018, the Mendocino Complex Fire became the largest wildfire in California history. It indiscriminately consumed 459,123 acres of grasslands and forests, and destroyed over 280 businesses and homes.3 By way of comparison, the incineration was equivalent to approximately 69% of the entire state of Rhode Island burning in less than forty days.4 Firefighters battled the blaze by every means available; from clearing firebreaks to building containment lines, to resorting to old-fashioned water saturation, but it was not enough. Fire suppression teams from around the state, including teams from the Presidio of Monterey, plus over 200 federal troops and several hundred National Guard troops were called to join the battle and, through this community effort, the fire was contained and potentially thousands of homes were saved.5
The Mendocino fire, as well as the recent “Camp Fire” of Butte County, illustrate that federal assistance to state fire and emergency fire fighting forces is morally and ethically in the best interests of American citizens, the Army, and the United States. This article is designed to give the reader an overview of mutual aid agreements (MAAs) for fire suppression and management, as well as to provide a “how to” guide on drafting these agreements for the mutual benefit of both the Army and the local communities.
Evolutionary History of Mutual Aid Agreements
Prior to the enactment of Title 42 of the United States Code, Section 1856a6 in 1955, federal facilities could not expend appropriated funds for the purpose of fighting fires outside of federal reservations unless federal property was endangered. Therefore, federal agencies were prohibited from entering into MAAs with any non-federal firefighting units or organizations.7 Congress enacted 42 U.S.C. § 1856a to remedy this situation and enable the “federal government to provide maximum fire protection for its installations and activities throughout the world at a minimum cost by utilizing local civilian fire protection personnel and facilities on a reciprocal basis.”8
Since the enactment of 42 U.S.C. § 1856a, the Department of Defense (DoD) has emphasized the importance of integrating the military’s emergency response capability with the local community. It is DoD policy to, when called upon and approved by the appropriate authority, make DoD fire and emergency services (F&ES) capabilities available to assist civil authorities under mutual aid agreements, host nation support agreements, and Defense Support of Civil Authorities (DSCA).9
Thanks to these policies, the Army has a long history of successfully teaming with local fire departments for the mutual benefit of both the Army and the local communities with respect to fire suppression and management.10 Mutual aid agreements have allowed Army installations and their surrounding communities to enjoy the benefits of a regional approach to the delivery of fire services by using standardized response protocols and operational procedures, allowing for the exchange of expertise and information, and providing a source of potential resources that are unencumbered by geographical or jurisdictional boundaries.
Benefits of Mutual Aid Agreements
The primary advantage of MAAs is to expand the response resources available to any one jurisdiction. However, these agreements can also help jurisdictions to coordinate planning,11 ensure timely arrival of aid,12 increase a department’s ability to respond to a large scale or complex incident,13 and arrange for specialized resources.14 This is key for many Army installations that do not have the capability to respond to extraordinary events requiring aerial fire suppression or involving hazardous material or chemical warfare. Federal law prohibits the use of DoD appropriated funds for the purpose of entering into a contract for the performance of firefighting functions at any military installation or facility.15 Accordingly, if an installation is unable to provide the needed resources, then they can mitigate those deficiencies through MAAs.
Mutual aid agreements also allow Army installations to provide maximum fire protection for minimum cost.16 The needs of Army installations and jurisdictions vary greatly and require risk assessments to determine potential resource shortfalls in F&ES capabilities. Mutual aid agreements can cost-effectively address these shortfalls by using resources from other jurisdictions and departments to better handle incidents that require resources beyond the installation’s capability. Most fire incidents begin and end locally and are managed by the installation fire department and neighboring county. However, some incidents require additional support or expertise from multiple jurisdictions. A cascading MAA—also known as a tiered MAA—codifies an understanding to provide tiered levels of support when additional resources or capabilities are needed, thus preventing the risk of any jurisdiction from being overwhelmed in times of crisis.17
Under a cascading MAA, the amount of required F&ES resources increases as the size and complexity of the incident increases. For example, an installation’s fire department responds to a fire incident at their installation. As the fire spreads, if the installation does not have enough available resources, or requires special equipment or resources, then they request aid from the local fire department in accordance with their MAA. If those combined resources cannot suppress the fire, then the installation can request resources from the regional fire department, and so on, until the installation has the capabilities to extinguish the fire.
By using a cascading MAA, an Army garrison commander can focus his or her resources where there are perceived vulnerabilities, including increasing response times to emergencies by incorporating municipal or local assets into responding to emergencies. For example, the Ord Military Complex located in Monterey, California—the location of the Defense Language Institute at the Presidio of Monterey and the Naval Post Graduate School—has two housing areas, each located in a separate municipality and the main installation borders two additional municipalities. Through an MAA, the Presidio of Monterey Garrison Commander can incorporate and plan for the municipalities to respond to a fire in the housing areas within their respective jurisdictions. This will decrease the response times to less than nine minutes with an engine and three firefighters, versus the fifteen to eighteen minutes if the more distant firefighting response team from the Presidio of Monterey was required to respond first.18 A decrease of four to seven minutes in response time could mean the difference between life and death.
Recent natural disasters have stretched civil authority resources, resulting in an increase in the Army’s participation in cascading MAAs. It is important to note that as fire incidents change in size, scope, and complexity, Army installations must also adapt their response efforts to meet the requirements of a changing environment. Congress enacted 42 U.S.C. § 1856a to allow federal agencies to meet this demand by using civilian fire protection personnel and facilities on a reciprocal basis. While not specifically addressed, the language of the statute clearly contemplates the use of cascading MAAs as a mechanism for reciprocal fire support with local municipalities.19 Additionally, DoD policy permits installations and civilian fire departments to set their own parameters regarding mutual aid. 20
Difference Between Mutual Aid Agreements and Other Legal Authorities
It is important to note that the MAA process is separate and distinct from the assistance provided under DSCA or the immediate response authority. In the absence of an MAA, installation commanders are authorized to render emergency assistance to preserve life and property in the vicinity of a DoD installation when, in their opinion, such assistance is in the best interest of the United States.21 This assistance can be provided under immediate response authorities22 or emergency response authorities,23 as described in 32 Code of Federal Regulations (CFR) Part 185.4 and Department of Defense Directive (DoDD) 3025.18.24 However, any assistance provided under these authorities must end when the necessity giving rise to the response is no longer present, or within seventy-two hours, whichever comes first. If the necessity extends beyond seventy-two hours, any continuing or additional aid would have to be approved by the Under Secretary of Defense for Acquisition, Technology, and Logistics (USD (AT&L)).25 Furthermore, the phrase, “in the vicinity of” limits how far that assistance can extend.
Such limiting restrictions make the immediate response authorities one sided, allowing for garrison/unit commanders to respond to emergencies in the immediate area around their facility only upon request by a competent authority. An MAA, by contrast, is a much broader method of both providing and receiving assistance when dealing with an urgent fire suppression need.
Requirements for a Mutual Aid Agreement
Building good relationships throughout the community and surrounding fire departments through mutual training and support is important and benefits the communities both on and off an installation. An MAA allows those working relationships to continue despite changes in personnel, mission, and the inevitable loss in understanding due to the passage of time.
Before two parties enter into an MAA, they must first determine whether there’s a possibility that one might need the other’s resources to combat fires or to respond to extraordinary events. If not, then an MAA is not beneficial. However, sometimes it can take a tragic event to show the benefit of mutual aid. For example, on 12 July 1973, a disastrous fire at the National Personnel Records Center destroyed approximately 16–18 million Army and Air Force Official Military Personnel Files. The fire burned for four and a half days and took the participation of forty-two fire districts to combat the blaze.26 A standing, cascading MAA could have produced more manpower and equipment in a timely fashion, resulting in a reduction in time the fire burned and less destruction.27 This is especially important in light of the Comptroller General’s decision that the federal government could not reimburse the forty-two fire districts.28
Another reason for a Garrison Commander to seek an MAA is specialized training, where each respective fire suppression team trains on the greatest likely threat to its jurisdiction. For example, a fire at an ammunition factory off-base may require specialized training and protective equipment which the Army uniquely possesses. Similarly, a rare Class D fire (a fire involving sodium, titanium, and magnesium) on an installation may be more appropriately handled by a civilian firefighting team who has trained in the use of powder for fire suppression. In this scenario, a cascading MAA would allow each signatory to call on the other for those specialized resources.
There are varying opinions regarding the breadth and detail required in an MAA and while this paper does not attempt to resolve that debate, there are certain provisions required by law. First, each MAA must be formally documented and only the Garrison Commander, acting on behalf of the Secretary of the Army, may execute an MAA with an authorized representative of the fire organization.29 Determining who or which authorized representative of the appropriate fire organization(s) is the proper signatory may not be easily apparent. In many jurisdictions, there are several fire organizations operating in the same area, which may require multiple signatories to the MAA. For example, in Monterey County—the area where the Ord Military Community and the Presidio of Monterey are located—the installation may employ services from the County of Monterey, as well as services from the municipalities of Seaside, Marina, Monterey, and Pacific Grove.
Mutual aid agreements with multiple signatories result in the most comprehensive coverage and were anticipated by Congress.30 Furthermore, current Army policy also emphasizes the importance of mutual aid provided by multiple partners.31 In circumstances where there may be several interested municipalities, localities or jurisdictions, each of their fire organizations may be a signatory to the MAA.
Second, an MAA must address the covered response services and permit the external agencies to visit for preplanning purposes.32 Whatever the services provided, MAAs should also clarify that support under the agreement is voluntary and determined on a case-by-case basis; so long as supporting the local community does not interfere with the readiness posture of the Army installation’s fire department. Furthermore, the installation receiving a request for assistance should immediately inform the requesting agency if, for any reason, assistance cannot be rendered.33
Next, each MAA must define the area of coverage and include a provision that states each party will agree to participate in a mutual response system that, when requested, will dispatch the most appropriate response resource(s) available to the incident location, without regard to jurisdictional boundary lines. Additionally, the MAA should state the installation may recall loaned resources to the extent necessary to provide for its own protection.
When determining the coverage area of an MAA, drafters should consider the distance from the facility for planning and response contingencies and not necessarily limit the response location to the vicinity of the installation. The response area and duration of fire suppression allowed under an MAA is much broader than that allowed under 42 U.S.C. § 1856b or the immediate response authority. 34
However, as a best practice note, a savvy judge advocate will have some in-depth conversations with their installation’s Director of Emergency Services, as well as the Garrison Commander, as to how far fire suppression team assistance should be extended. Nonetheless, it is inherently a Garrison Commander’s decision as to how much risk they may wish to assume in committing firefighting assets too far away to be recalled in a timely manner to an emergency at the home station.35
Both the Army and the Air Force have followed DoD guidance when entering into cascading MAAs. The Army deployed F&ES assets to support numerous California fires through activation of cascading MAAs from local, county, and state jurisdictions. The Air Force has a cascading MAA between Beale Air Force Base and the California Fire and Rescue Mutual Aid System, Yuba County Operational Area Fire and Rescue Coordinator’s Office, and other locations throughout California. Similarly, a Garrison Commander has the flexibility to incorporate all available assets regardless of State, county line boundaries, or the contiguousness of counties when considering the best suppression resources to employ.
In addition to minimum and maximum potential areas of coverage, an MAA should also include a provision that states a signatory may not be able to fully comply with the all of the provisions of the MAA, depending on the nature and scope of each incident and the resources available. Such a provision recognizes the various strengths and weakness of each signatory’s fire organization and sets expectations regarding the amount of aid that can be provided at any given moment.
Finally, no discussion of providing reciprocal services would be complete without addressing the issue of the cost of those services. An MAA is based on a mutual agreement to provide aid to each signatory; therefore, it must include the terms for the reimbursement of each party for all or any part of the costs incurred in furnishing aid to the other party,36 as well as a waiver by each party of all claims against every other party for compensation for any loss, damage, personal injury, or death occurring in consequence of the performance of such agreement.37
The DoD Financial Management Regulation specifically discusses reimbursement for fire protection, stating claims pursuant to reciprocal mutual aid are to be submitted to the Federal Emergency Management Agency (FEMA) by the responding firefighting organizations.38 A claim for reimbursement must be filed within ninety days of the incident and is limited to direct expenses or losses over and above normal operating costs including, but not limited to, items such as overtime, fuel, food, and damages to equipment engaged in fire suppression activities.39 If the DoD files the claim for fire protection/suppression, then the reimbursement will go to the installation/fire team which responded to the fire.40
In addition to the required provisions, garrison commanders may want to supplement the MAA with an annex or a companion standard operating procedures (SOP) document, which can be updated as capabilities and technologies evolve. The signatories should each participate in the drafting of any annex/SOP sought in conjunction with the MAA, however, the lack of such documents should not be an impediment or delay implementation of an MAA.
In addition to the Mendocino Complex Fire in 2018, California experienced the deadliest and most destructive fire in the state’s history with eighty-five persons confirmed dead in the Camp Fire and over 19,382 structures destroyed or damaged. 41 For each of those fires, response was swift but the rampant destruction illustrates that even a swift response by a limited force is not always sufficient for a complex incident. Instead, it took the collective local, state, and national emergency firefighting presence to contain these fires. California’s situation is not unique and there will be more opportunities in the future for collective responses in multiple locations. Relationships and coordination of services should be established before the emergency and encapsulated in a reciprocal MAA. The forward-looking garrison commander and judge advocate should consider the benefits of entering into an MAA as a way to respond to the future and inevitable fire in their area. Mutual Aid Agreements facilitate mutual training and standardize response protocols, operational procedures, and command/controls. Furthermore, MAA partners are not limited to a geographic or jurisdictional area, allowing for a more comprehensive response by regional partners and greater exchange of expertise and information. Every twenty-four seconds in the United States, a fire department responds to a fire emergency.42 By engaging in these relationships, garrison commanders can ensure they have a network in place with the necessary resources to effectively manage these disasters and protect the lives entrusted to their care as well as support the local communities in their most desperate time of need. TAL
*The authors wish to thank Chief John W. Staub, Chief, Army Fire and Emergency Services and Chief T. Joyce, Fire Chief Presidio of Monterey Fire & Emergency Services for all of their insight and guidance on this topic.
1. Billy Joel, We Didn’t Start the Fire, on Storm Front (Columbia Records 1989).
2. Reporter’s Guide: The Consequences of Fire, NFPA.org, https://www.nfpa.org/News-and-Research/News-and-media/Press-Room/Reporters-Guide-to-Fire-and-NFPA/Consequences-of-fire [hereinafter Reporter’s Guide].
3. Mendocino Complex Information, InciWeb – Incident Information System, https://inciweb.nwcg.gov/incident/6073/ (last visited Feb. 23, 2019).
4. The entire State of Rhode Island is 1,045 square miles. Fun Facts & Trivia, RI.gov, https://www.ri.gov/facts/trivia.php (last visited Feb. 23, 2019).
5. Ryan Pickrell, The Army is Sending 200 Soldiers to Combat the Wildfires Raging Across the Western US, Business Insider (Aug. 6, 2018), https://www.businessinsider.com/the-army-is-sending-200-active-duty-soldiers-to-fight-fires-out-west-2018-8.
6. “Each agency head charged with the duty of providing fire protection for any property of the United States is authorized to enter into a reciprocal agreement, with any fire organization maintaining fire protection facilities in the vicinity of such property, for mutual aid in furnishing fire protection for such property and for other property for which such organization normally provides fire protection . . . .” 42 U.S.C. § 1856a.
7. Comptroller General Warren to the Secretary of the Navy, 32 Comp. Gen. 91 (1952).
8. S. Rep. No. 274, 84th Cong., 1st Sess. 2 (1955). Additionally, the Comptroller General noted that 42 U.S.C. § 1856a gave broad discretion to heads of federal installations to enter into mutual aid agreements to provide the maximum protection for federal property against fire and related disasters at minimum cost. B-222821 (Comp. Gen. Apr. 6, 1987), https://www.gao.gov/products/449612#mt=e-report.
9. U.S. Dep’t of Def., Instr. 6055.06, DoD Fire and Emergency Services (F&ES) Program, (21 Dec. 2006) [hereinafter DoDI 6055.06]. F&ES includes firefighting, fire prevention, structural, firefighting, aircraft rescue firefighting (ARFF), hazardous material (HAZMAT) response, emergency medical service response, and disaster preparedness planning. Id.
10. First Army policy regarding fire and emergency services and mutual aid was Army Regulation (AR) 420-90, Fire and Emergency Services, 25 September 1992. Current policy continues to emphasize the importance of mutual aid (“Directors of Installation Management Command Regions will promote...cooperative mutual/reciprocal aid agreements with civil sector fire departments.”). U.S. Dep’t of Army, Reg. 420-1, Fire and Emergency Services para. 25-4h (25 Sept. 1992) (RAR 24 Aug. 2012) [hereinafter AR 420-1].
11. “Agreements should facilitate and complement local and regional joint planning for large-scale incidents that will have far-reaching consequences.” Best Practice, Mutual Aid Agreements: Types of Agreements, Homeland Security Digital Library, https://www.hsdl.org/?view&did=765527.
12. Id. The quicker the response, the more lives that could be saved.
13. E-mail from Joyce, T., Fire Chief, Presidio of Monterey Fire and Emergency Services, to LTC William Stephens (Feb. 19, 2019) (on file with author).
14. “Chemical, biological, radiological, nuclear, and explosives (CBRNE) terrorism will demand unique and often scarce resources. Mutual aid agreements should seek to ensure the timely arrival of vital equipment and personnel.” Id.
15. 10 U.S.C. § 2465, Prohibition on contracts for the performance of firefighting or security-guard functions.
16. Fire & emergency services are expensive; the Army’s program is approximately $496 million annually, and that only covers funding civilian personnel requirements to approximately 71% of the modeled requirement.
17. Homeland Security, National Response Framework (3d ed., June 2016), https://www.fema.gov/media-library-data/1466014682982-9bcf8245ba4c60c120aa915abe74e15d/National_Response_Framework3rd.pdf.
18. The POM fire station is five miles away from the installation versus the City Monterey station being located seven miles from the installation. Email from Joyce, T., Fire Chief, Presidio of Monterey Fire and Emergency Services, to LTC William Stephens (Feb. 19, 2019) (on file with author).
19. “Each such agreement shall include a waiver by each party of all claims against every other party for compensation for any loss, damage, personal injury . . . .” 42 U.S.C. § 1856a. Such language anticipates agreements that include more than two signatories.
20. “Mutual aid . . . permits routine assistance to and from local jurisdictions as defined in a mutual aid agreement.” DoDI 6055.06, para. E5.1.4.
21. 42 U.S.C. § 1856b. In the absence of any agreement authorized or ratified by section 1856a of this title, each agency head is authorized to render emergency assistance in extinguishing fires and in preserving life and property from fire, within the vicinity of any place at which such agency maintains fire-protection facilities, when the rendition of such assistance is determined, under regulations prescribed by the agency head, to be in the best interest of the United States. Id.
22. Immediate response authority allows commanders to “temporarily employ resources under their control, subject to any supplemental direction provided by higher headquarters, and provide those resources to save lives, prevent human suffering, or mitigate great property damage in response to a request for assistance from a civil authority, under imminently serious conditions when time does not permit approval from a higher authority within the United States.” U.S. Dep’t of Def., Dir. 3025.18, Defense Support of Civil Authorities (29 Dec. 2010) para. 4.g. [hereinafter DoDD 3025.18].
23. Emergency response authority allows commanders, “in extraordinary emergency circumstances where prior authorization by the President is impossible and duly constituted local authorities are unable to control the situation, to engage temporarily in activities that are necessary to quell large-scale, unexpected civil disturbances because: (1) Such activities are necessary to prevent significant loss of life or wanton destruction of property and are necessary to restore governmental function and public order; or, (2) When duly constituted Federal, State, or local authorities are unable or decline to provide adequate protection for Federal property or Federal governmental functions. Federal action, including the use of Federal military forces, is authorized when necessary to protect the Federal property or functions.” DoDD 3025.18, at 16 (Glossary).
24. DoDD 3025.18.
25. DoDD 3025.18 implementing 32 C.F.R. § 185.
26. Walter W. Stender & Evans Walker, The National Personnel Records Center Fire: A Study in Disaster, Nat’l Archives, https://www.archives.gov/files/st-louis/military-personnel/NPRC_fire_a_study_in_disaster.pdf.
28. To the Administrator, General Services Administration, 53 Comp. Gen. 410 (1973).
29. AR 420-1, para. 25-9e(1) and (2). Furthermore, garrisons must review and update all MAAs every other year. Id.
30. See 42 U.S.C. § 1856a. “Each such agreement shall include a waiver by each party of all claims against every other party for compensation for any loss, damage, personal injury . . . . Any such agreement may provide for the reimbursement of any party for all or any part of the cost incurred by such party in furnishing fire protection for or on behalf of any other party.” Id. (emphasis added).
31. “Directors of Installation Management Command Regions will promote . . . cooperative mutual/reciprocal aid agreements with civil sector fire departments.” AR 420-1, para. 25-4h (emphasis added). As a practice note, installations which are in major metropolitan areas may consider including as many signatories as possible. This may have the added benefit of gaining greater visibility of assets for fire and emergency services among each of the respective jurisdictions.
32. DoDI 6055.06. F&ES include firefighting, fire prevention, structural firefighting, firefighting ARFF, HAZMAT response, emergency medical service response, and disaster preparedness planning. Id.
33. AR 420-1, Figure S-1.
34. As previously noted, an installation garrison commander must follow the guidance of 32 C.F.R. § 185 and DoDD 3025.18 when responding to a request for support from local authorities outside of the MAA coverage. The garrison commander could only provide “emergency assistance in extinguishing fires and in preserving life and property from fire, within the vicinity of any place at which [he] maintains fire-protection facilities, when the rendition of such assistance is determined, under regulations prescribed by the agency head, to be in the best interest of the United States.” 42 U.S.C. § 1856b. If emergency support is provided outside the scope of the MAA for more than seventy-two hours, then the garrison commander must seek approval to provide continued support from USD (AT&L).
35. The garrison commander should also be cognizant of the potential for negative publicity if the fire teams are deployed too far from their home station. For example, it should require a serious national emergency for fire teams from California to be deployed to fight wildfires in Kansas.
36. DoDI 6055.06. Additionally, MAAs must conform to 15 U.S.C. § 2210, which provides for compensation to municipalities for direct costs and losses (over and above normal operating costs) sustained while fighting fire on Federal property.
37. 42 U.S.C. § 1856a. Furthermore, this provision can be tailored to add other specifications, such as indemnification language, with the claims process and contact information for third party claims, detailed in a separate document, should this be desired.
38. U.S. Dep’t of Def., 7000.14-R, DoD Financial Management Regulation vol. 10, ch. 12, *120318 (Sept. 2015) [hereinafter DoD FMR].
39. See https://www.usfa.fema.gov/grants/firefighting_federal_property.html (last visited Nov. 17, 2018). The only costs which cannot be expensed and reimbursed is wear and tear on the vehicles. E-mail from Staub, J. W, Chief, Army Fire and Emergency Services, to LTC William Stephens (Nov. 11, 2018) (on file with author).
40. DoD FMR, section C.12-24.
41. Morgan Winsor, California Wildfire Death Toll Climbs to Eighty-Seven, Almost 500 Still Unaccounted For, ABCNews (Nov. 23, 2018), https://abcnews.go.com/US/relentless-california-wildfires-leave-87-dead-600-unaccounted/story?id=59262994; Camp Fire: Incident Overview, InciWeb – Incident Information System (Nov. 25, 2018), https://inciweb.nwcg.gov/incident/6250/.
42. Reporter’s Guide: supra note 2.