BILL NUMBER: SB 18 CHAPTERED
BILL TEXT
CHAPTER 905
FILED WITH SECRETARY OF STATE SEPTEMBER 30, 2004
APPROVED BY GOVERNOR SEPTEMBER 29, 2004
PASSED THE SENATE AUGUST 19, 2004
PASSED THE ASSEMBLY AUGUST 9, 2004
AMENDED IN ASSEMBLY JULY 1, 2004
AMENDED IN ASSEMBLY JUNE 28, 2004
AMENDED IN ASSEMBLY JUNE 14, 2004
AMENDED IN ASSEMBLY JUNE 10, 2004
AMENDED IN ASSEMBLY SEPTEMBER 12, 2003
AMENDED IN ASSEMBLY SEPTEMBER 5, 2003
AMENDED IN ASSEMBLY AUGUST 25, 2003
AMENDED IN ASSEMBLY AUGUST 18, 2003
AMENDED IN ASSEMBLY JULY 9, 2003
INTRODUCED BY Senators Burton, Chesbro, and Ducheny
DECEMBER 2, 2002
An act to amend Section 815.3 of the Civil Code, to amend Sections
65040.2, 65092, 65351, 65352, and 65560 of, and to add Sections
65352.3, 65352.4, and 65562.5 to the Government Code, relating to
traditional tribal cultural places.
LEGISLATIVE COUNSEL'S DIGEST
SB 18, Burton. Traditional tribal cultural places.
(1) Existing law establishes the Native American Heritage
Commission and authorizes the commission to bring an action to
prevent severe and irreparable damage to, or assure appropriate
access for Native Americans to, a Native American sanctified
cemetery, place of worship, religious or ceremonial site, or sacred
shrine located on public property.
Existing law authorizes only specified entities or organizations,
including certain tax-exempt nonprofit organizations, and local
government entities to acquire and hold conservation easements, if
those entities and organizations meet certain conditions.
This bill would include a federally recognized California Native
American tribe or a nonfederally recognized California Native
American tribe that is on the contact list maintained by the Native
American Heritage Commission, among those entities and organizations
that may acquire and hold conservation easements, as specified.
(2) Existing law requires the Office of Planning and Research to
implement various long range planning and research policies and goals
that are intended to shape statewide development patterns and
significantly influence the quality of the state's environment and,
in connection with those responsibilities, to adopt guidelines for
the preparation and content of the mandatory elements required in
city and county general plans.
This bill would require that, by March 1, 2005, the guidelines
contain advice, developed in consultation with the Native American
Heritage Commission, for consulting with California Native American
tribes for the preservation of, or the mitigation of impacts to,
specified Native American places, features, and objects. The bill
would also require those guidelines to address procedures for
identifying the appropriate California Native American tribes, for
continuing to protect the confidentiality of information concerning
the specific identity, location, character, and use of those places,
features, and objects, and for facilitating voluntary landowner
participation to preserve and protect the specific identity,
location, character, and use of those places, features, and objects.
The bill would define a California Native American tribe that is on
the contact list maintained by the Native American Heritage
Commission as a "person" for purposes of provisions relating to
public notice of hearings relating to local planning issues.
(3) Existing law requires a planning agency during the preparation
or amendment of the general plan, to provide opportunities for the
involvement of citizens, public agencies, public utility companies,
and civic, education, and other community groups, through public
hearings and any other means the city or county deems appropriate.
This bill would require the planning agency on and after March 1,
2005, to refer the proposed action to California Native American
tribes, as specified, and also provide opportunities for involvement
of California Native American tribes. The bill would require that,
prior to the adoption or amendment of a city or county's general
plan, the city or county conduct consultations with California Native
American tribes for the purpose of preserving specified places,
features, and objects that are located within the city or county's
jurisdiction. The bill would define the term "consultation" for
purposes of those provisions. By imposing new duties on local
governments with respect to consultations regarding the protection
and preservation of California Native American historical, cultural,
and sacred sites, the bill would impose a state-mandated local
program.
On and after March 1, 2005, this bill would include open space
for the protection of California Native American historical,
cultural, and sacred sites within the definition of "local open-space
plan" for purposes of provisions governing the preparation of the
open-space element of a city and county general plan.
(4) The California Constitution requires the state to reimburse
local agencies and school districts for certain costs mandated by the
state. Statutory provisions establish procedures for making that
reimbursement, including the creation of a State Mandates Claims Fund
to pay the costs of mandates that do not exceed $1,000,000 statewide
and other procedures for claims whose statewide costs exceed
$1,000,000.
This bill would provide that with regard to certain mandates no
reimbursement is required by this act for a specified reason.
With regard to any other mandates, this bill would provide that,
if the Commission on State Mandates determines that the bill contains
costs so mandated by the state, reimbursement for those costs shall
be made pursuant to the statutory provisions noted above.
THE PEOPLE OF THE STATE OF CALIFORNIA DO ENACT AS FOLLOWS:
SECTION 1. (a) The Legislature finds and declares all of the
following:
(1) Current state law provides a limited measure of protection for
California Native American prehistoric, archaeological, cultural,
spiritual, and ceremonial places.
(2) Existing law provides limited protection for Native American
sanctified cemeteries, places of worship, religious, ceremonial
sites, sacred shrines, historic or prehistoric ruins, burial grounds,
archaeological or historic sites, inscriptions made by Native
Americans at those sites, archaeological or historic Native American
rock art, and archaeological or historic features of Native American
historic, cultural, and sacred sites.
(3) Native American places of prehistoric, archaeological,
cultural, spiritual, and ceremonial importance reflect the tribes'
continuing cultural ties to the land and to their traditional
heritages.
(4) Many of these historical, cultural, and religious sites are
not located within the current boundaries of California Native
American reservations and rancherias, and therefore are not covered
by the protectionist policies of tribal governments.
(b) In recognition of California Native American tribal
sovereignty and the unique relationship between California local
governments and California tribal governments, it is the intent of
the Legislature, in enacting this act, to accomplish all of the
following:
(1) Recognize that California Native American prehistoric,
archaeological, cultural, spiritual, and ceremonial places are
essential elements in tribal cultural traditions, heritages, and
identities.
(2) Establish meaningful consultations between California Native
American tribal governments and California local governments at the
earliest possible point in the local government land use planning
process so that these places can be identified and considered.
(3) Establish government-to-government consultations regarding
potential means to preserve those places, determine the level of
necessary confidentiality of their specific location, and develop
proper treatment and management plans.
(4) Ensure that local and tribal governments have information
available early in the land use planning process to avoid potential
conflicts over the preservation of California Native American
prehistoric, archaeological, cultural, spiritual, and ceremonial
places.
(5) Enable California Native American tribes to manage and act as
caretakers of California Native American prehistoric, archaeological,
cultural, spiritual, and ceremonial places.
(6) Encourage local governments to consider preservation of
California Native American prehistoric, archaeological, cultural,
spiritual, and ceremonial places in their land use planning processes
by placing them in open space.
(7) Encourage local governments to consider the cultural aspects
of California Native American prehistoric, archaeological, cultural,
spiritual, and ceremonial places early in land use planning
processes.
SEC. 2. Section 815.3 of the Civil Code is amended to read:
815.3. Only the following entities or organizations may acquire
and hold conservation easements:
(a) A tax-exempt nonprofit organization qualified under Section
501(c)(3) of the Internal Revenue Code and qualified to do business
in this state which has as its primary purpose the preservation,
protection, or enhancement of land in its natural, scenic,
historical, agricultural, forested, or open-space condition or use.
(b) The state or any city, county, city and county, district, or
other state or local governmental entity, if otherwise authorized to
acquire and hold title to real property and if the conservation
easement is voluntarily conveyed. No local governmental entity may
condition the issuance of an entitlement for use on the applicant's
granting of a conservation easement pursuant to this chapter.
(c) A federally recognized California Native American tribe or a
nonfederally recognized California Native American tribe that is on
the contact list maintained by the Native American Heritage
Commission to protect a California Native American prehistoric,
archaeological, cultural, spiritual, or ceremonial place, if the
conservation easement is voluntarily conveyed.
SEC. 3. Section 65040.2 of the Government Code is amended to read:
65040.2. (a) In connection with its responsibilities under
subdivision (l) of Section 65040, the office shall develop and adopt
guidelines for the preparation and content of the mandatory elements
required in city and county general plans by Article 5 (commencing
with Section 65300) of Chapter 3. For purposes of this section, the
guidelines prepared pursuant to Section 50459 of the Health and
Safety Code shall be the guidelines for the housing element required
by Section 65302. In the event that additional elements are
hereafter required in city and county general plans by Article 5
(commencing with Section 65300) of Chapter 3, the office shall adopt
guidelines for those elements within six months of the effective date
of the legislation requiring those additional elements.
(b) The office may request from each state department and agency,
as it deems appropriate, and the department or agency shall provide,
technical assistance in readopting, amending, or repealing the
guidelines.
(c) The guidelines shall be advisory to each city and county in
order to provide assistance in preparing and maintaining their
respective general plans.
(d) The guidelines shall contain the guidelines for addressing
environmental justice matters developed pursuant to Section 65040.12.
(e) The guidelines shall contain advice including recommendations
for best practices to allow for collaborative land use planning of
adjacent civilian and military lands and facilities. The guidelines
shall encourage enhanced land use compatibility between civilian
lands and any adjacent or nearby military facilities through the
examination of potential impacts upon one another.
(f) The guidelines shall contain advice for addressing the effects
of civilian development on military readiness activities carried out
on all of the following:
(1) Military installations.
(2) Military operating areas.
(3) Military training areas.
(4) Military training routes.
(5) Military airspace.
(6) Other territory adjacent to those installations and areas.
(g) By March 1, 2005, the guidelines shall contain advice,
developed in consultation with the Native American Heritage
Commission, for consulting with California Native American tribes for
all of the following:
(1) The preservation of, or the mitigation of impacts to, places,
features, and objects described in Sections 5097.9 and 5097.995 of
the Public Resources Code.
(2) Procedures for identifying through the Native American
Heritage Commission the appropriate California Native American
tribes.
(3) Procedures for continuing to protect the confidentiality of
information concerning the specific identity, location, character,
and use of those places, features, and objects.
(4) Procedures to facilitate voluntary landowner participation to
preserve and protect the specific identity, location, character, and
use of those places, features, and objects.
(h) The office shall provide for regular review and revision of
the guidelines established pursuant to this section.
SEC. 4. Section 65092 of the Government Code is amended to read:
65092. (a) When a provision of this title requires notice of a
public hearing to be given pursuant to Section 65090 or 65091, the
notice shall also be mailed or delivered at least 10 days prior to
the hearing to any person who has filed a written request for notice
with either the clerk of the governing body or with any other person
designated by the governing body to receive these requests. The
local agency may charge a fee which is reasonably related to the
costs of providing this service and the local agency may require each
request to be annually renewed.
(b) As used in this chapter, "person" includes a California Native
American tribe that is on the contact list maintained by the Native
American Heritage Commission.
SEC. 5. Section 65351 of the Government Code is amended to read:
65351. During the preparation or amendment of the general plan,
the planning agency shall provide opportunities for the involvement
of citizens California Native American Indian tribes, public
agencies, public utility companies, and civic, education, and other
community groups, through public hearings and any other means the
city or county deems appropriate.
SEC. 6. Section 65352 of the Government Code is amended to read:
65352. (a) Prior to action by a legislative body to adopt or
substantially amend a general plan, the planning agency shall refer
the proposed action to all of the following entities:
(1) A city or county, within or abutting the area covered by the
proposal, and a special district that may be significantly affected
by the proposed action, as determined by the planning agency.
(2) An elementary, high school, or unified school district within
the area covered by the proposed action.
(3) The local agency formation commission.
(4) An areawide planning agency whose operations may be
significantly affected by the proposed action, as determined by the
planning agency.
(5) A federal agency if its operations or lands within its
jurisdiction may be significantly affected by the proposed action, as
determined by the planning agency.
(6) A public water system, as defined in Section 116275 of the
Health and Safety Code, with 3,000 or more service connections, that
serves water to customers within the area covered by the proposal.
The public water system shall have at least 45 days to comment on the
proposed plan, in accordance with subdivision (b), and to provide
the planning agency with the information set forth in Section
65352.5.
(7) The Bay Area Air Quality Management District for a proposed
action within the boundaries of the district.
(8) On and after March 1, 2005, a California Native American
tribe, that is on the contact list maintained by the Native American
Heritage Commission, with traditional lands located within the city
or county's jurisdiction.
(b) Each entity receiving a proposed general plan or amendment of
a general plan pursuant to this section shall have 45 days from the
date the referring agency mails it or delivers it in which to comment
unless a longer period is specified by the planning agency.
(c) (1) This section is directory, not mandatory, and the failure
to refer a proposed action to the other entities specified in this
section does not affect the validity of the action, if adopted.
(2) To the extent that the requirements of this section conflict
with the requirements of Chapter 4.4 (commencing with Section 65919),
the requirements of Chapter 4.4 shall prevail.
SEC. 7. Section 65352.3 is added to the Government Code, to read:
65352.3. (a) (1) Prior to the adoption or any amendment of a city
or county's general plan, proposed on or after March 1, 2005, the
city or county shall conduct consultations with California Native
American tribes that are on the contact list maintained by the Native
American Heritage Commission for the purpose of preserving or
mitigating impacts to places, features, and objects described in
Sections 5097.9 and 5097.995 of the Public Resources Code that are
located within the city or county's jurisdiction.
(2) From the date on which a California Native American tribe is
contacted by a city or county pursuant to this subdivision, the tribe
has 90 days in which to request a consultation, unless a shorter
timeframe has been agreed to by that tribe.
(b) Consistent with the guidelines developed and adopted by the
Office of Planning and Research pursuant to Section 65040.2, the city
or county shall protect the confidentiality of information
concerning the specific identity, location, character, and use of
those places, features, and objects.
SEC. 8. Section 65352.4 is added to the Government Code, to read:
65352.4. For purposes of Section 65351, 65352.3, and 65562.5,
"consultation" means the meaningful and timely process of seeking,
discussing, and considering carefully the views of others, in a
manner that is cognizant of all parties' cultural values and, where
feasible, seeking agreement. Consultation between government
agencies and Native American tribes shall be conducted in a way that
is mutually respectful of each party's sovereignty. Consultation
shall also recognize the tribes' potential needs for confidentiality
with respect to places that have traditional tribal cultural
significance.
SEC. 9. Section 65560 of the Government Code is amended to read:
65560. (a) "Local open-space plan" is the open-space element of a
county or city general plan adopted by the board or council, either
as the local open-space plan or as the interim local open-space plan
adopted pursuant to Section 65563.
(b) "Open-space land" is any parcel or area of land or water that
is essentially unimproved and devoted to an open-space use as defined
in this section, and that is designated on a local, regional or
state open-space plan as any of the following:
(1) Open space for the preservation of natural resources
including, but not limited to, areas required for the preservation of
plant and animal life, including habitat for fish and wildlife
species; areas required for ecologic and other scientific study
purposes; rivers, streams, bays and estuaries; areas adjacent to
military installations, military training routes, and restricted
airspace that can provide additional buffer zones to military
activities and complement the resource values of the military lands;
and coastal beaches, lakeshores, banks of rivers and streams, and
watershed lands.
(2) Open space used for the managed production of resources,
including but not limited to, forest lands, rangeland, agricultural
lands and areas of economic importance for the production of food or
fiber; areas required for recharge of ground water basins; bays,
estuaries, marshes, rivers and streams which are important for the
management of commercial fisheries; and areas containing major
mineral deposits, including those in short supply.
(3) Open space for outdoor recreation, including, but not limited
to, areas of outstanding scenic, historic and cultural value; areas
particularly suited for park and recreation purposes, including
access to lakeshores, beaches, and rivers and streams; and areas
which serve as links between major recreation and open-space
reservations, including utility easements, banks of rivers and
streams, trails, and scenic highway corridors.
(4) Open space for public health and safety, including, but not
limited to, areas which require special management or regulation
because of hazardous or special conditions such as earthquake fault
zones, unstable soil areas, flood plains, watersheds, areas
presenting high fire risks, areas required for the protection of
water quality and water reservoirs and areas required for the
protection and enhancement of air quality.
(5) Open space for the protection of places, features, and objects
described in Sections 5097.9 and 5097.995 of the Public Resources
Code.
SEC. 10. Section 65562.5 is added to the Government Code, to read:
65562.5. On and after March 1, 2005, if land designated, or
proposed to be designated as open space, contains a place, feature,
or object described in Sections 5097.9 and 5097.995 of the Public
Resources Code, the city or county in which the place, feature, or
object is located shall conduct consultations with the California
Native American tribe, if any, that has given notice pursuant to
Section 65092 for the purpose of determining the level of
confidentiality required to protect the specific identity, location,
character, or use of the place, feature, or object and for the
purpose of developing treatment with appropriate dignity of the
place, feature, or object in any corresponding management plan.
SEC. 11. No reimbursement is required by this act pursuant to
Section 6 of Article XIII B of the California Constitution for
certain costs that may be incurred by a local agency or school
district because in that regard this act creates a new crime or
infraction, eliminates a crime or infraction, or changes the penalty
for a crime or infraction, within the meaning of Section 17556 of the
Government Code, or changes the definition of a crime within the
meaning of Section 6 of Article XIII B of the California
Constitution.
However, notwithstanding Section 17610 of the Government Code, if
the Commission on State Mandates determines that this act contains
other costs mandated by the state, reimbursement to local agencies
and school districts for those costs shall be made pursuant to Part 7
(commencing with Section 17500) of Division 4 of Title 2 of the
Government Code. If the statewide cost of the claim for
reimbursement does not exceed one million dollars ($1,000,000),
reimbursement shall be made from the State Mandates Claims Fund.