Provision Of Fire And Emergency Services To Persons And Property Within The Reservation Of A Federally Recognized Indian Tribe

AGO 2021 No. 3 - Jul 8 2021

Attorney General Bob Ferguson

INDIANS—TRIBAL/STATE COMPACT—FIRE PROTECTION/FIRE CODE—Provision Of Fire And Emergency Services To Persons And Property Within The Reservation Of A Federally Recognized Indian Tribe

1. A fire protection district may not refuse to provide fire and emergency services to persons or property within the reservation of a federally recognized Indian tribe.

2. The fees charged by a fire protection district for providing services relating to untaxed property within the reservation of a federally recognized Indian tribe may be negotiated between the tribe and the fire protection district.

3. Fire protection districts lack the authority to unilaterally impose fees upon tribes, but incentives exist for both sides to reach agreement.

4. Where property within reservation boundaries is divided between or among more than one fire protection district, fire and emergency services may be provided by a single fire protection district by mutual agreement.

July 8, 2021

The Honorable Debra Lekanoff
State Representative, District 40
PO Box 40600
Olympia, WA 98504-0600

Cite As:
AGO 2021 No. 3

Dear Representative Lekanoff:

By letter previously acknowledged, you have requested our opinion on four questions, which we paraphrase as follows:

1. May a fire protection district refuse to provide fire and emergency services to persons or property within the reservation of a federally recognized Indian tribe within Washington State?

2. Are the fees that a fire protection district may charge a federally recognized Indian tribe for fire and emergency services on a reservation within Washington State subject to any financial limits or reasonableness standards?

3. What recourse, if any, does a federally recognized Indian tribe have if it believes that a fee for fire and emergency services charged by a fire protection district is unreasonable or punitive?

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4. If two fire protection districts’ service areas include the reservation of a federally recognized Indian tribe in Washington State, may the tribe and fire protection districts agree that only one of the fire protection districts will provide fire and emergency services for the entire reservation?

BRIEF ANSWERS

1. No. Under current law, including RCW 52.02.020(1), once a fire protection district establishes its boundaries, it must provide fire and emergency services to persons and property within those boundaries. This is the case regardless of whether the persons benefitted are residents within the district or visitors, and regardless of whether the property is within the borders of a federally recognized tribe’s reservation.

2. No. The legislature has not established financial limits or a reasonableness standard for fees paid for fire and emergency services. While there are no statutory limitations or standards, incentives exist for fire protection districts and tribes to reach agreement as to the compensation amount. In the absence of agreement on payment, fire protection districts must still provide services to all persons and property within the district service area, even to tax exempt properties, but may also withdraw territory from the district service area.

3. Fire protection districts do not have the authority to unilaterally impose a fee for fire and emergency services on a tribe. Instead, tribes and fire protection districts negotiate the fees charged for fire and emergency services. Tribes have no obligation to enter an agreement on terms they deem unreasonable. The individual agreements entered into by fire protection districts and tribes may provide recourse for resolving disputes, including providing for withdrawal from the agreement.

4. Yes, if both fire protection districts agree. Under current law, fire protection districts can provide services within another district by a number of methods, which generally require the agreement of both districts. For example, tribes may participate in the creation of a regional fire protection service authority with both districts under RCW 52.26 or contract with both fire protection districts. In addition, one of the fire protection districts may annex the reservation area or withdraw from the area, in which case services could be provided by other methods such as forming a regional fire protection service authority or annexing into the other district.

BACKGROUND

In Washington, a number of different entities provide fire and emergency services. The questions posed to us focus on fire protection districts formed under RCW Title 52. We recognize that municipalities provide fire protection services within incorporated areas unless an arrangement is in place for another entity to provide the service. See RCW 52.08.025, .021. In addition, counties can provide fire protection services. RCW 36.32.470. Tribes may also provide

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fire protection services. Because the questions here focus on the duties and structures of fire protection districts, we limit our response to those entities.

Fire protection districts are municipal corporations. RCW 52.12.011. RCW 52.02 sets forth the process to establish fire protection districts. These districts exist to provide “fire prevention services, fire suppression services, emergency medical services, and for the protection of life and property[.]” RCW 52.02.020(1). In this opinion, we use the phrase “fire and emergency services” to cover these services provided by a fire protection district. A district generally provides services within the unincorporated areas within its boundaries. See RCW 52.08.025, .021.

Your letter describes situations where tribes may not have established financial arrangements with local governments that define how much the tribe pays for fire and emergency services. Gaming compacts between a tribe and the state often address fire protection costs and relationships with fire protection districts by negotiating payment of impact fees to local governments. But tribes that do not engage in gaming may not have contractual arrangements that address fire protection costs. You have asked about the duties of fire protection districts with respect to such tribes and the extent of any limitations on fees for fire protection services within a tribe’s reservation.

We also recognize that land ownership within the boundaries of most reservations is varied. Land and structures may be owned by tribal members as well as non-members. The tribe itself may own land in fee and land may be held in trust for the tribe. The tribe may be engaging in a variety of governmental, service, conservation, economic development, and business functions on the tribe’s trust and fee lands. We do not address questions of the specific ownership, use, or taxability of individual properties within a reservation in this opinion.

ANALYSIS

1. May a fire protection district refuse to provide fire and emergency services to persons or property within the reservation of a federally recognized Indian tribe within Washington State?

Fire protection districts are formed specifically to provide fire and emergency services within the prescribed boundaries of the district. RCW 52.02.020(1). Fire protection “constitutes one of the oldest functions of American local government,” and “[i]t not only is within the power, but it is the duty of municipalities to adopt proper and reasonable regulations for the protection of the lives and safety of persons, as well as the protection of property, against the danger of . . . fire.” 7A Eugene McQullin, The Law of Municipal Corporations § 24:457, Westlaw (3d ed. & Suppl. Aug. 2020). The boundaries of fire protection districts are established under RCW 52.02 and may include areas within the reservation of a federally recognized Indian tribe. Once a county legislative authority approves the creation of a fire protection district and establishes its boundaries, state law prohibits the fire protection district from excluding land within those boundaries from the district. RCW 52.02.060. Such boundaries cannot be changed without following a statutory process such as annexation of additional territory (RCW 52.04), merger with

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another district (RCW 52.06), withdrawal of territory from the district (RCW 52.08; RCW 52.04), or dissolution of the district (RCW 52.10).

While the level of service provided is a matter of policy of each jurisdiction, districts may not refuse to provide service to persons or properties located in the district. We have previously opined that a fire protection district has the statutory duty to serve persons and properties within its boundaries. AGO 55-57 No. 180, at. 2; see also RCW 52.02.060. As we concluded in an informal opinion, fire protection districts have no “implied power to exclude certain buildings or structures from general fire prevention and suppression services.” Letter from Charles Zalesky, Assistant Attorney General, State of Washington, to Bruce Chandler & David Taylor, Washington State Representatives (Sept. 14, 2015), at 3 (copy attached). The legislature did not provide that fire protection districts can withhold services as a remedy for an individual owner’s failure to pay property tax levies, nor may districts withhold services from properties exempt from taxation. When tax-exempt tribal property is located within a fire protection district, the district is authorized to enter into an agreement with the tribe to address fire protection services funding. RCW 52.30.080. That statute makes no reference to declining services as an alternative. RCW 52.30.080. Additionally, RCW 52.30.020 provides that state agencies and municipal corporations must contract with a fire protection district for needed fire and emergency services, but does not explicitly authorize the district to simply refuse to provide services.

Without that authorization to refuse to provide services, we conclude that fire protection districts have the responsibility to provide services to all land within their boundaries. Thus, we answer your question in the negative. When district boundaries include the reservation of a federally recognized Indian tribe, fire protection districts cannot refuse to provide services to persons or property within the reservation.

While no statute specifically requires tribes to reimburse fire protection districts for fire and emergency services, fire protection districts have statutory authority to enter into contracts with tribes to compensate districts for providing fire protection services. RCW 52.30.080. The statute provides:

When exempt tribal property is located within the boundaries of a fire protection district or a regional fire protection service authority, the fire protection district or authority is authorized to contract with the tribe for compensation for providing fire protection services in an amount and under such terms as are mutually agreed upon by the fire protection district or authority and the tribe.

RCW 52.30.080(1).

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This statute applies with respect to certain tribal property exempt from property taxes and located within the boundaries of a fire protection district or a regional fire protection service authority. All property belonging exclusively to any federally recognized Indian tribe is exempt from property taxes under RCW 84.36.010(1) if: “(a) the tribe is located in the state, and (b) the property is used exclusively for essential government services[.]” “Essential government services” means “services such as tribal administration, public facilities, fire, police, public health, education, sewer, water, environmental and land use, transportation, utility services, and economic development.” RCW 84.36.010(2)(b). “Economic development” means “commercial activities, including those that facilitate the creation or retention of business or jobs, or that improve the standard of living or economic health of tribal communities.” RCW 84.36.010(2)(c).

In authorizing contracts for fire and emergency services, the legislature provided that the compensation amount and terms would be “mutually agreed upon by the fire protection district or authority and the tribe.” RCW 52.30.080(1). Thus, the legislature did not establish financial limits or a reasonableness standard beyond those upon which the parties can reach agreement. In addition, fire protection districts also have authority to contract with tribes pursuant to the Interlocal Cooperation Act, RCW 39.34, to “consolidate, provide, or cooperate for fire prevention protection, fire suppression, investigation, and emergency medical purposes.” RCW 52.12.031(4). That statute likewise does not establish financial limitations or a reasonableness standard with respect to the terms of such agreements.

While the legislature included no specific statutory limitations or standards, incentives exist for fire protection districts and tribes to reach agreement as to the compensation amount. An incentive for fire protection districts stems from the conclusion above that they are obligated to provide fire protection and suppression services with respect to buildings and other structures located within their districts regardless of whether the property is subject to property taxes. An incentive for tribes to agree comes from the fire protection districts’ authority to withdraw territory from their service areas by following the procedures established in RCW 52.04.056 or RCW 52.08.011. Another incentive may be simply that by entering into such an agreement, a tribe may contract for a specific quality or nature of services. In short, when tribes and fire protection districts reach agreements on compensation, tribes gain certainty on services and fire protection districts gain certainty on funding for those services.

3. What recourse, if any, does a federally recognized Indian tribe have if it believes that a fee for fire and emergency services charged by a fire protection district is unreasonable or punitive?

Fire protection districts do not have the authority to unilaterally impose a fee for fire and emergency services on a tribe. Instead, the two parties typically negotiate an agreement for provision of services. Tribes have no obligation to enter an agreement on terms they deem unreasonable. As described above, both parties have incentives to agree on terms that they believe are fair and reasonable. Those agreed-upon terms control the recourse available to each party.

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In addition, pursuant to RCW 52.08.011, the territory could be withdrawn from the fire protection district, and the tribe could enter into an agreement with another fire protection district or establish its own fire protection services.

You ask about a situation in which different parts of a reservation are served by two different fire protection districts. There are a number of ways for a single district to serve the entire reservation in this scenario, if this is the objective. We recognize that tribes are sovereign nations and do not need the permission or authorization of the state or entities created under state law to provide services to their members and within their reservations. We assume for this analysis that the tribe wishes to have a fire protection district provide fire and emergency services on the reservation rather than establishing its own independent service. Thus, the methods we list below assume that a fire protection district formed under state law will provide the fire and emergency services. We also recognize that this is not an exhaustive list and there are likely other ways to accomplish this goal.

Under current law, fire protection districts can provide services within another district, but generally this must happen with the agreement of both existing fire protection districts. The most straightforward way that a fire protection district can provide services within the boundaries of another fire protection district is for both districts to enter into a contract for that purpose. RCW 52.12.031(4) provides that districts may “contract with any governmental entity under RCW 39.34 or private person or entity to consolidate, provide, or cooperate for fire prevention protection, fire suppression, investigation, and emergency medical purposes.” We have previously opined that districts have wide latitude to contract to provide fire and emergency services, but when the contract includes services within the boundaries of a different established fire protection district, the contract must be made between the two districts. AGO 55-57 No. 180, at. 2. A tribe may also be a party to the contract and/or involved in the negotiations of the contract between the two districts. That contract can address the funding mechanisms for fire and emergency services. Reservations typically include a mix of land ownership. Some properties will be tax exempt as described above and others may be subject to existing property tax levies assessed to fund the fire protection districts. Similar to the impact fees negotiated for fire and emergency services in the context of gaming compacts, a contract between fire districts and tribes can address whether the tribe will provide additional funding for service to the reservation, subject to the mutual incentives described in response to your second question, above.

Tribes may negotiate with fire protection districts not only for fire and emergency services generally within the boundaries of the reservation but also specifically with respect to tax-exempt tribal property. As discussed above, under RCW 52.30.080(1), fire protection districts and regional authorities may contract with tribes for compensation when exempt tribal property is located within the boundaries of a fire protection district or a regional fire protection service authority.

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This provision provides authority for a district to enter such a contract but does not require a district to do so. Further, the provision explicitly states that the terms of such a contract must be mutually agreeable. The questions asked of us assume a broader focus than the tribe’s tax-exempt property, but we raise this provision as an option for consideration.

Formation of a regional fire protection service authority is another option that allows fire and emergency services to be provided across district boundaries. A regional fire protection service authority is defined as “a municipal corporation . . . whose boundaries are coextensive with two or more fire protection jurisdictions located within reasonable proximity and that has been created by a vote of the people under this chapter to implement a regional fire protection service authority plan.” RCW 52.26.020(6). The fire protection jurisdictions allowed to form a regional authority include fire districts, regional fire protection service authorities, cities, towns, port districts, municipal airports, and tribes. RCW 52.26.020(3). Thus, in the scenario presented here, the tribe and one or both of the fire protection districts serving the tribe’s reservation may form the regional authority. RCW 52.26 provides details and procedures for forming such an authority, determining the scope of services provided, and funding the authority.

In addition to these options, fire protection districts may change their boundaries in various ways. Fire protection districts are not static. Districts can annex or withdraw areas from the districts. Districts can merge or dissolve. Other entities, such as a municipal fire department, can assume the duties of the fire protection district. RCW 52.06.090 provides that one district can transfer part of its district to another district. “A part of one district may be transferred and merged with a district located within reasonable proximity if the area can be better served by the merged district.” RCW 52.06.090. This option would provide for the permanent service of the merged area by a new fire protection district. In addition, areas can be withdrawn from a fire protection district (RCW 52.08.011) or a district can be dissolved (RCW 52.10.010). Once no longer within a district’s boundaries, another fire protection district can provide services to the area by contract (RCW 52.12.031(4); see also AGO 55-57 No. 180, at 2; AGO 1989 No. 6, at 7-8) or the area can be annexed into another district (RCW 52.26.300).

We trust that the foregoing will be useful to you.

ROBERT W. FERGUSON
Attorney General
s/ Kristin Mitchell
KRISTEN MITCHELL
Deputy Attorney General
s/ Jessica Fogel
JESSICA FOGEL
Assistant Attorney General

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