Wildland Fire Contractors and the MSPA
An Introduction to the Legislative History, Judicial History, and Impacts on Wildland Fire Contracting and Response
If you are reading this, I wish to thank you for your commitment to protecting our wildland fire contracting workforce, our workers, and our ability to provide resources critical to the success of our nation’s ability to respond to wildfire emergencies. While the application of the MSPA could have negative impacts on our individual companies, the more immediate threat is to our wildland firefighters and wildfire support workers and on the workforce as a whole, which will in turn have immediate and perhaps catastrophic impacts on wildfire response as soon as this fire season. That said, we must remember that this is an issue that needs to be handled delicately and through the proper channels. The Forest Service largely has their hands tied on this issue. The following information is accurate to the best of our knowledge. Please educate yourselves on the issue and reach out if you have any questions or concerns.
In 2023, the US Department of Labor (DOL) began applying the Migrant and Seasonal Agricultural Worker Protection Act (MSPA) to wildland fire contractors with US Forest Service agreements under their Virtual Incident Procurement (VIPR) program. While this act may be well suited for agricultural employment, it is not suitable at all for application to wildland fire contractors, and such application will cause irreparable harm to contractors, their employees, and the entire wildland fire workforce. Additionally, it will create formidable obstacles in our nation’s ability to respond to wildfires. The following information (1) demonstrates that this law does not legally apply, (2) demonstrates that application would provide no new worker protections, and (3) walks the reader through the negative impacts on employees, the wildland fire workforce, contractors, and our ability as a nation to respond to wildland fire emergencies, should the DOL continue to inappropriately apply this law to wildland fire contractors.
US Department of Labor Fact Sheet #63
The US DOL cites their Fact Sheet #63: Application of Federal Labor Laws to Reforestation as the reason they apply the MSPA to wildland fire contractors. In it, there is a statement that reads: “The MSPA applies to any person who solicits, recruits, hires, employs, furnishes, or transports any migrant or seasonal agricultural worker. The MSPA applies to reforestation workers engaged in predominately manual work (e.g., tree-planting, brush-clearing, pre-commercial thinning, forest fire-fighting) if they otherwise meet the definition of a migrant or seasonal agricultural worker.” There are 3 reasons that Fact Sheet #63 does not stipulate that the MSPA applies to wildland fire contractors. (1) Wildland fire contractors do not do reforestation work as part of their VIPR agreement obligations. (2) The phrase “if they otherwise meet the definition of a migrant or seasonal agricultural worker” is problematic for the DOL argument because this very fact sheet is their only published document indicating that wildland firefighters may meet the definition of migrant or seasonal agricultural workers. In other words, they otherwise do not meet the definition. (3) Fact Sheet #63 also states “This publication is for general information and is not to be considered in the same light as official statements of position contained in the regulations.” If the Code of Federal Regulations does not contain language applying the MSPA to wildland firefighters, this fact sheet is, by its own definition, irrelevant.
Applicability to Wildland Fire
Fact Sheet #63 – Not Applicable
Title 29, Part 500 of the Code of Federal Regulations
The full text of Title 29, Part 500 of the Code of Federal Regulations, pertaining to the MSPA, contains no mention of firefighting in any of its forms.
Applicability to Wildland Fire
Fact Sheet #63 – Not Applicable
29 CFR 500 – Not Applicable
Title 29, Chapter 20 of the United States Code
The full text of the MSPA law found in Title 29 USC 1801 et seq. also contains no mention of firefighting in any of its forms.
Applicability to Wildland Fire
Fact Sheet #63 – Not Applicable
29 CFR 500 – Not Applicable
29 USC 1801 et seq. – Not Applicable
Bresgal v. Brock, US District Court for the District of Oregon
The DOL will refer back to a 9th Circuit Court of Appeals decision from 1987, Bresgal v. Brock, as the origin of the phrase “forest fire fighting” in Fact Sheet #63. With the duty of an appellate court being only to affirm, reject, or remand a decision from a lower court, we must first look at the original case heard in US District Court in Oregon, that was decided in 1986. The plaintiffs were the Northwest Forest Workers Association and individual migrant agricultural workers who have worked in forestry on a seasonal basis. They sued the Secretary of Labor to cease refusing to enforce the MSPA on forestry workers. The ruling was in favor of the plaintiffs, resulting in a declaratory judgment reading, “Defendant has a mandatory duty to enforce the MSPA, as to recruiting, soliciting, hiring, employing, furnishing or transporting any migrant or seasonal workers as tree planters, thinners, and other forest laborers”, and an injunctive relief reading, “Secretary of Labor William Brock and his successors in office are enjoined to cease refusing to enforce the MSPA as to forestry work and to take the following actions in addition to other appropriate enforcement actions: (1) integrating forestry work into the U.S. Department of Labor’s Coordinated Enforcement Plan, when the Plan is next reviewed by the Department; (2) amending the regulations implementing the MSPA to reflect that the MSPA applies to forestry work, within 180 days after entry of this judgment; and (3) informing the U.S. Department of Agriculture (including the U.S. Forest Service) and of the Interior (including the Bureau of Land Management), and all persons on the lists maintained by the National Forests and the Bureau of Land Management of bidders on contracts for forestry work, that the MSPA applies to forestry work, by providing copies of this judgment and injunction or otherwise, within 90 days after entry of this judgment.” There is no mention of wildland fire in neither the declaratory judgment nor the injunctive relief, nor in the entirety of the published opinion, leading to the conclusion that, while the application of the MSPA to forestry was being tried, extension of that application to wildland fire contractors was not.
Applicability to Wildland Fire
Fact Sheet #63 – Not Applicable
29 CFR 500 – Not Applicable
29 USC 1801 et seq. – Not Applicable
Bresgal V. Brock – US District Court Oregon – Not Part of Trial
Bresgal v. Brock, 9th Circuit Court of Appeals
The US District Court case was appealed to the 9th Circuit Court of Appeals and a decision was filed in 1987 affirming the district court’s declaratory judgement and affirming but modifying the injunctive relief, creating a new permanent injunction that read, “William Brock and his successors in office are enjoined to cease refusing to enforce the Migrant and Seasonal Agricultural Workers Protection Act, Pub.L. 97-470, 96 Stat. 2583 (1983), codified as 20 U.S.C. § 1801 et seq., as to recruiting, soliciting, hiring, employing, furnishing or transporting any migrant or seasonal worker for all predominantly manual forestry work, including but not limited to tree planting, brush clearing, precommercial tree thinning and forest fire fighting.” Judge Farris, in his majority opinion, presented a detailed rationale, complete with citations for several prior cases, explaining the removal of the language requiring the Secretary to amend departmental regulations, re-write the departmental Coordinated Enforcement Plan, and notify others of the court’s ruling. He did not, however, present any rationale explaining the addition of the words “forest fire fighting”. This supports the conclusion that Judge Farris interpreted the original injunctive relief to include all of the tasks that forestry workers may do, which includes forest fire fighting. If instead, Judge Farris intended to expand the scope of the district court’s decision to require the Secretary of Labor to enforce the MSPA on all wildland firefighters, even outside of the commercial forestry industry, it would be expected that there would also have been an equally detailed rationale for that modification.
Additionally, Judge Farris makes the following statements in his majority opinion showing his clear and consistent understanding that the declaratory judgment and the injunctive relief in the district court’s decision applied only to the commercial forestry industry.
In his dissenting opinion, Judge Anderson clearly shares the same understanding of the scope with which the decision is to be applied with the following statement.
Applicability to Wildland Fire
Fact Sheet #63 – Not Applicable
29 CFR 500 – Not Applicable
29 USC 1801 et seq. – Not Applicable
Bresgal V. Brock – US District Court Oregon – Not Part of Trial
Bresgal V. Brock – 9th Circuit Court of Appeals – Not Discussed
Consistent Application of Agricultural Laws
If it is the opinion of the DOL that wildland firefighting is agricultural in nature, one would think they would have also applied the H-2A Temporary Agricultural Worker Program for any workers who are not US citizens. The DOL has instead applied the H-2B Temporary Non-Agricultural Worker Program to VIPR contracts. Similarly, if it is the opinion of the DOL that wildland firefighters are forestry workers, the appropriate wage determination for wildland firefighters would be an occupation code and title from Service Contract Act category 08000 Forestry and Logging Operations. The DOL instead has applied a wage determination for occupation code and title 27070 Firefighter from the category 27000 Protective Service Occupations. This shows clear arbitrary and capricious application of various federal laws to wildland fire contractors.
Applicability to Wildland Fire
Fact Sheet #63 – Not Applicable
29 CFR 500 – Not Applicable
29 USC 1801 et seq. – Not Applicable
Bresgal V. Brock – US District Court Oregon – Not Part of Trial
Bresgal V. Brock – 9th Circuit Court of Appeals – Not Discussed
Consistent Application of Agricultural Laws – No Consistency
Possibility for 100% Compliance in Emergency Services
If applied to wildland fire contractors, the MSPA would require disclosing where and for how long firefighters would be gone even before ever getting dispatched to a fire. It would require pre-certification by a state or local health authority or other appropriate agency, including a Federal agency, that any facility or real property used to house firefighters overnight meets applicable safety and health standards prior to being occupied by a firefighter, which would prove impossible on a wildfire incident. In some cases, it would be a violation of the MSPA for firefighters to travel to a fire in their own engine. Ultimately, it is impossible to recruit firefighters and respond to wildfires while being 100% compliant with the MSPA.
Applicability to Wildland Fire
Fact Sheet #63 – Not Applicable
29 CFR 500 – Not Applicable
29 USC 1801 et seq. – Not Applicable
Bresgal V. Brock – US District Court Oregon – Not Part of Trial
Bresgal V. Brock – 9th Circuit Court of Appeals – Not Discussed
Consistent Application of Agricultural Laws – No Consistency
Possibility for 100% Compliance in Emergency Services – Not Possible
Employee Protections
While there are many worker protections provided by the MSPA, there are no new protections not already provided by the Fair Labor Standards Act, Federal Motor Carrier Safety Administration regulations, various state laws, and the contractual obligations of the VIPR agreements. In addition to protections provided by these laws and regulations, firefighters working for wildland fire contractors also receive protections provided by the Service Contract Act, which guarantees firefighters at least $28.73 per hour, as well as Executive Order 13706, which guarantees firefighters a health and welfare benefit of $4.93 per hour for the first 40 hours; 1 hour of paid sick leave for every 30 hours they work, up to 56 hours of paid sick leave each year; 2 weeks paid vacation after 1 year of service with a contractor or successor, 3 weeks after 10 years, and 4 weeks after 15 years; and a minimum of eleven paid holidays per year.
Applicability to Wildland Fire
Fact Sheet #63 – Not Applicable
29 CFR 500 – Not Applicable
29 USC 1801 et seq. – Not Applicable
Bresgal V. Brock – US District Court Oregon – Not Part of Trial
Bresgal V. Brock – 9th Circuit Court of Appeals – Not Discussed
Consistent Application of Agricultural Laws – No Consistency
Possibility for 100% Compliance in Emergency Services – Not Possible
Employee Protections – No New Protections
Impacts on Employees
The administrative burden created by the annual registration of companies, their drivers, their vehicles, and their housing would create instances where companies may be temporarily ineligible to accept resource orders, which would in turn create great financial harm to firefighters impacted by these turned down resource orders. In addition, the MSPA contains regulations that would create definite safety issues, should it be applied to wildland fire activities.
Applicability to Wildland Fire
Fact Sheet #63 – Not Applicable
29 CFR 500 – Not Applicable
29 USC 1801 et seq. – Not Applicable
Bresgal V. Brock – US District Court Oregon – Not Part of Trial
Bresgal V. Brock – 9th Circuit Court of Appeals – Not Discussed
Consistent Application of Agricultural Laws – No Consistency
Possibility for 100% Compliance in Emergency Services – Not Possible
Employee Protections – No New Protections
Impacts on Employees – Negative Impacts
Impacts on the Workforce
It is unusual for a contract firefighter to be ordered to more than 4-5 fires in an average fire season. This depends upon many things completely outside of the control of wildland fire contractors, such as weather, fuel moistures, fire occurrence, location of fires, and agencies having dispatching rules that prioritize every other category of fire resource over contractors. In addition, these firefighters must also have an arrangement with any other employers to be able to take off large blocks of time in order to go on wildfire assignments, or have seasonal employment that ends before fire season. When a particular line of work presents an opportunity to make a lot of money in some years, but can also result in not making very much money at all in other years, it requires a type of person that is willing to manage that balance of good and bad years. When additional uncertainties arise in a workforce, like the potential to miss fire assignments simply because a replacement driver is not registered with the DOL, only those comfortable with the new level of uncertainty will remain in that workforce.
Applicability to Wildland Fire
Fact Sheet #63 – Not Applicable
29 CFR 500 – Not Applicable
29 USC 1801 et seq. – Not Applicable
Bresgal V. Brock – US District Court Oregon – Not Part of Trial
Bresgal V. Brock – 9th Circuit Court of Appeals – Not Discussed
Consistent Application of Agricultural Laws – No Consistency
Possibility for 100% Compliance in Emergency Services – Not Possible
Employee Protections – No New Protections
Impacts on Employees – Negative Impacts
Impacts on Workforce – Negative Impacts
Impacts on Businesses
The equipment that wildland fire contractors provide is very expensive and many must enter into long-term loans to even have these resources available for wildfire response. Both the threat of needing to turn down a resource order for purely administrative reasons, and the shrinking of the workforce that will result from that threat, could spell disaster to wildland fire contract companies.
Applicability to Wildland Fire
Fact Sheet #63 – Not Applicable
29 CFR 500 – Not Applicable
29 USC 1801 et seq. – Not Applicable
Bresgal V. Brock – US District Court Oregon – Not Part of Trial
Bresgal V. Brock – 9th Circuit Court of Appeals – Not Discussed
Consistent Application of Agricultural Laws – No Consistency
Possibility for 100% Compliance in Emergency Services – Not Possible
Employee Protections – No New Protections
Impacts on Employees – Negative Impacts
Impacts on Workforce – Negative Impacts
Impacts on Businesses – Negative Impacts
Impacts on Our Nation’s Ability to Respond to Wildland Fire Emergencies
When a resource is turned down, it is then offered to the next resource on the list. When there is an imminent threat to life and property, that list is prioritized by proximity to the incident. That means that it will take longer for the next resource to respond than it would have for the first. At national Preparedness Level 5, when nearly all resources are committed, making it a violation of federal law for some contract resources to respond to wildifres will undoubtedly lead to fatalities and destruction of property. When you add in the expected number of companies that would go out of business and the number of firefighters who will leave the workforce should the MSPA be applied to contract wildland firefighting, the reality of the threat to our ability to respond as a nation to wildland fire emergencies becomes crystal clear.
Applicability to Wildland Fire
Fact Sheet #63 – Not Applicable
29 CFR 500 – Not Applicable
29 USC 1801 et seq. – Not Applicable
Bresgal V. Brock – US District Court Oregon – Not Part of Trial
Bresgal V. Brock – 9th Circuit Court of Appeals – Not Discussed
Consistent Application of Agricultural Laws – No Consistency
Possibility for 100% Compliance in Emergency Services – Not Possible
Employee Protections – No New Protections
Impacts on Employees – Negative Impacts
Impacts on Workforce – Negative Impacts
Impacts on Businesses – Negative Impacts
Impacts on our Nation’s ability to Respond to Wildland Fires – Potentially Disastrous Impacts
Summing it All Up
If a mechanic had a small fire in his shop, and he fights that fire commensurate with his training and abilities, he does not cease being a mechanic in the moment when he is fighting the small fire. In the same way, a worker who was recruited and hired to work in commercial forestry would not cease being a forestry worker if he were to fight a small forest fire on the timber tract on which he was working. I don’t think anyone would argue with that. In the first example, a structural firefighter called to fight the mechanic shop fire if it escaped control would not become a mechanic for fighting that fire, but this is exactly the logic that the DOL fails to apply to wildland firefighters. They would not only insist that someone who was recruited and hired to work as a wildland firefighter would become a forestry worker for fighting the forest fire, but would also insist that every other wildland firefighter is also a forestry worker regardless of whether they fight fires in forests, sagebrush, desert scrub, grasslands, the wildland-urban interface, or in any other fuel type.
The need to remove this arbitrary and capricious application of the MSPA on wildland fire contractors by the DOL cannot be overstated. There is no legal basis for its application. It provides no unique worker protections, and even creates both financial risks and safety risks for the workers it seeks to protect. It is impossible for companies to comply with, because the law is being applied to an employment sector it was never intended to apply to. This threatens the workforce, the contractors, and our ability as a nation to respond to wildfire emergencies.
Wildland Fire Contractors and the MSPA Video
This video takes a deep dive into the problems arising from the application of the MSPA to the private wildland fire contracting industry.
Fact Sheet: Private Wildland Firefighters and the MSPA
● The Department of Labor in the Pacific Northwest recently instructed the US Forest Service to insert language into Virtual Incident Procurement (VIPR) agreements that VIPR contractors are subject to the Migrant and Seasonal Agricultural Worker Protection Act (MSPA).
● Their argument stems from a 1987 9th Circuit Court of Appeals decision, Bresgal V. Brock, where it was decided that the MSPA applied to migrant agricultural workers working in forestry. In this decision, Judge Farris misquoted the stated examples of forestry work from the declaratory judgement in the appealed District Court (Oregon) decision. The District Court declaratory judgement included the phrase “tree planters, thinners, and other forest laborers”. Judge Farris erroneously referenced this declaratory judgement to instead read “manual forestry work, including but not limited to tree planting, brush clearing, precommercial tree thinning and forest fire fighting”.
● It is plainly clear that the MSPA was never intended to apply to private wildland fire companies or their employees, regardless of whether it was intended to apply to manual forestry work or not. Now, 36 years later, the Department of Labor is asserting that all private wildland firefighters are considered forestry workers, simply because forestry workers may sometimes fight fire. This has far-reaching impacts on our ability to safely and efficiently fulfill the duties of our agreements, and even our ability to provide work for our firefighters. The MSPA provides no real protections for workers that are not already provided by other legislation or our VIPR agreements. The net effect is negative for the businesses and the employees, all while threatening the ability for private wildland firefighters to respond to wildfire emergencies.
● Saying that the MSPA applies to all private wildland firefighters because forestry workers sometimes fight fire is like saying regulations applicable to cattle producers should apply to fence builders because ranchers sometimes build their own fences, or that regulations applicable to farmers should apply to herbicide applicators because farmers sometimes apply herbicide to their own crops.
● The application of the MSPA to private wildland companies and their firefighters would significantly increase the administrative burden on these companies and employees, due to unreasonably long (5-weeks plus) DOL registration processes for the company, all drivers, and all vehicles, every single year.
● Should registration of a new employee or vehicle become necessary mid-fire season, it would create an instance where a company would be in violation of the MSPA, should it accept a resource order for a fire assignment without all DOL registrations being in place, resulting in the necessity to turn down the fire assignment, and further resulting in an immediate threat to life and safety.
● Additionally, when a busy fire season only results in 4-5 fire assignments on average, turning down a fire assignment will eliminate 20% – 25% of an employee’s annual income. In a slow season, it could represent 50% or more of an employee’s annual income. This is not worker protection, but rather a worker obstruction.
● Creating a situation that increases the likelihood that businesses will fail and that employees will miss opportunities to work will decimate the private wildland fire workforce at a time when Federal wildland firefighter hiring and retention is also struggling. This could have catastrophic consequences to our nation’s ability to respond to wildland fire emergencies.
● The MSPA language will be inserted into water handling (fire engines and water tenders) agreements in the next 2-3 months, so there is not much time to avert what could amount to a disaster this fire season.
● I am requesting language be inserted into the next appropriate bill “exempting all wildland firefighting activities from the Migrant and Seasonal Agricultural Worker Protection Act” in order to avoid any negative consequences of the MSPA language being inserted into our VIPR agreements.