BILL ANALYSIS                                                                                                                                                                                                    



                                        
                       SENATE LOCAL GOVERNMENT COMMITTEE
                          Senator Tom Torlakson, Chair


          BILL NO:  SB 18                       HEARING:  8/12/04
          AUTHOR:  Burton                       FISCAL:  Yes
          VERSION:  7/1/04                      CONSULTANT:  Detwiler
          
                       TRADITIONAL TRIBAL CULTURAL PLACES

                           Background and Existing Law  

          Every county and city must adopt a general plan with seven  
          required elements (land use, circulation, housing, open  
          space, conservation, noise, safety).  The Planning and  
          Zoning Law spells out the procedures that local officials  
          must follow when adopting and amending their general plans.  
           These procedures include public notices, public hearings,  
          and consultations with interest groups, public utilities,  
          and other governments.

          The Native American Heritage Commission identifies and  
          catalogs places of special religious or social significance  
          to California Native American tribes.  The Commission  
          maintains a contact list of California Native American  
          tribes, including nonfederally recognized tribes.

          California's continuing population growth and suburban  
          expansion threaten California Native Americans' tribal  
          cultural places with conversion to developed uses.  New  
          subdivisions and public works can impose on prehistoric,  
          archeological, cultural, spiritual, and ceremonial places  
          that are not located on tribal reservations or rancherias.   
          Tribal governments want local officials to recognize the  
          importance of traditional tribal cultural places when they  
          make local land use planning and development decisions.


                                   Proposed Law  

          Senate Bill 18 contains legislative findings and  
          declarations, and makes seven statements of legislative  
          intent.  SB 18 also makes six changes to the state laws  
          affecting local land use planning and development decisions  
          regarding California Native American places, features, and  
          objects:

          I.   Consultations  .  Starting March 1, 2005, Senate Bill 18  




           
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          requires cities and counties to conduct consultations with  
          California Native American tribes before the local  
          officials adopt or amend their general plans.  These  
          consultations are for preserving or mitigating impacts to  
          Native American historic, cultural, sacred sites, features,  
          and objects located within the city or county.  The city or  
          county must protect the confidentiality of information  
          about the specific identity, location, character, and use  
          of those places, features, and objects, consistent with the  
          General Plan Guidelines issued by the Governor's Office of  
          Planning and Research.

          The California Native American tribe must be on the Native  
          American Heritage Commission's contact list.  A tribe has  
          90 days from the date of contact to request a consultation,  
          unless the tribe agrees to a shorter timeframe.  SB 18  
          defines "consultation."

          Starting on March 1, 2005, if land designated or proposed  
          to be designated as open space contains Native American  
          historic, cultural, sacred sites, features, and objects,  
          Senate Bill 18 requires a city or county to conduct  
          consultations with any California Native American tribe  
          that has asked the city or county for notice to determine  
          the level of confidentiality required to protect the  
          specific identity, location, or use of the place, feature,  
          or object and to develop dignified treatment of the place,  
          feature, or object in any corresponding management plan.

          II.   Open Space Element  .  Every local general plan must  
          contain an open space element which focuses local  
          officials' attention on open space land for:
                     Preservation of natural resources.
                     Managed production of resources.
                     Outdoor recreation.
                     Public health and safety.

          Senate Bill 18 adds a fifth category to the open space  
          element --- open space land for the protection of Native  
          American historic, cultural, sacred sites, features, and  
          objects.

          III.   General Plan Guidelines  .  The Governor's Office of  
          Planning and Research (OPR) must adopt advisory guidelines  
          for the preparation and content of local general plans.   





           
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          Senate Bill 18 requires OPR, by March 1, 2005, to add  
          advice to its General Plan Guidelines for consulting with  
          California Native American tribes about:
                 Preserving or mitigating impacts to Native American  
               historic, cultural, sacred sites, features, and  
               objects.
                 Procedures for identifying appropriate California  
               Native American tribes.
                 Procedures for continuing to protect the  
               confidentiality of information about the specific  
               identity, location, character, and use of those  
               places, features, and objects.
                 Procedures to facilitate voluntary landowner  
               participation to preserve and protect the specific  
               identity, location, character, and use of those  
               places, features, and objects.

          OPR must develop its advice in consultation with the Native  
          American Heritage Commission.

          IV.   Public Notices  .  The Planning and Zoning Law requires  
          local officials to mail and publish public notices about  
          public hearings on the adoption and amendment of general  
          plans, specific plans, and zoning ordinances.  In addition,  
          local officials must mail these public notices to any  
          person who has requested mailed notices.  Senate Bill 18  
          explicitly states that a California Native American tribe  
          that is on the Native American Heritage Commission's  
          contact list is a "person" who can request these public  
          notices.

          V.   Plan Referrals  .  The Planning and Zoning Law requires  
          local officials to refer proposals to adopt or amend their  
          general plans to a list of local, regional, and federal  
          agencies.  These other groups have 45 days to comment.   
          These requirements also apply to specific plans.  Starting  
          on March 1, 2005, Senate Bill 18 requires local officials  
          to send their plan proposals to California Native American  
          tribes that are on the Native American Heritage  
          Commission's contact list if the tribes have traditional  
          lands within the city or county.

          VI.   Conservation Easements  .  State law limits the types of  
          organizations that can acquire and hold conservation  
          easements to nonprofit organizations organized to preserve  





           
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          and protect open space, and to public agencies if they have  
          the statutory authority to own real property and if the  
          easements are voluntarily conveyed.  Senate Bill 18 adds  
          California Native American tribes to the list of  
          organizations that can acquire and hold conservation  
          easements.  A tribe must be federally recognized or must be  
          on the Native American Heritage Commission's contact list,  
          and the easement must be voluntarily conveyed.


                                     Comments  

          1.   Consultation, not confrontation  .  As semi-sovereign  
          nations, Native American tribes have an unusual niche in  
          American federalism.  With the increased potential for land  
          use conflicts between local officials and California Native  
          American tribes, tribal officials want more opportunities  
          to talk with counties and cities about their land use  
          plans.  The Planning and Zoning Law does not provide  
          California Native American tribes the same statutory  
          standing as local governments or public utilities.  SB 18  
          creates new procedures so that California Native American  
          tribes can consult with counties and cities about proposals  
          to adopt or amend local plans.  If early consultation leads  
          to more understanding and less litigation, then SB 18 will  
          have achieved its purpose.

          2.   More voices, more problems  ?  The Planning and Zoning  
          Law already requires local officials to consult with a long  
          list of potentially affected governments and public  
          utilities.  SB 18 adds California Native American tribes to  
          this already complicated mix of interests.  In larger  
          counties, several tribes may be interested in the same  
          general plan amendment, requiring county officials to  
          conduct multiple, simultaneous consultations.  Although the  
          procedures may become smoother as the counties and tribes  
          learn to work with each other, legislators should expect  
          considerable confusion and possible disruption during the  
          bill's initial implementation.  The Committee may wish to  
          consider whether these new complications will slow down  
          local actions on developers' requests for plan amendments.

          3.   Performance anxiety  .  SB 18 requires OPR to include  
          advice for local consultations with California Native  
          American tribes in its General Plan Guidelines by March 1,  





           
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          2005.  Starting March 1, 2005, local officials must notify  
          California Native American tribes about any proposed plan  
          adoptions and amendments and then they must conduct  
          consultations with the tribes that request consultations.   
          Local officials rely on the Native American Heritage  
          Commission to identify the affected tribes.  Neither OPR  
          nor the Native American Heritage Commission has a large  
          staff.  The Committee may wish to consider whether OPR and  
          the Native American Heritage Commission have enough  
          resources to swiftly implement SB 18's requirements.  If  
          state officials can't deliver, it going to be tough for  
          cities and counties to comply.

          4.   The Committee's choices  .  When a bill comes back to the  
          Senate for concurrence in Assembly amendments and the  
          Senate Rules Committee refers the measure to a policy  
          committee for review, Senate Rule 29.10 gives the policy  
          committee two basic choices:
                 Hold the bill ,  or  
                 Return the bill to the Senate Floor for a vote.
          If the committee sends the bill back to the Senate Floor,  
          the committee can:
                 Recommend Senate concurrence in the Assembly  
               amendments,  or  
                 Recommend Senate nonconcurrence in the Assembly  
               amendments,  or  
                 Return the bill to the Senate Floor without any  
               recommendation.

          5.   Precedents  .  SB 18 is not the first attempt to insert a  
          new interest into local planning requirements.  Two years  
          ago, the Legislature added military installation to the  
          open space element and required OPR to add military  
          readiness activities to the General Plan Guidelines (SB  
          1468, Knight, 2002).  Four years ago, the Legislature  
          required local officials to send public notices to "the  
          blind, aged, and disabled communities" when considering use  
          permits for drive-through businesses (SB 2001, Poochigian,  
          2000).  In the late 20th Century, the Legislature required  
          local officials to give expanded public notice before  
          acting on converting cemeteries to other uses (AB 2866,  
          LaFollette, 1988).  The Committee may wish to consider  
          whether including Native American tribes in the local  
          planning process is consistent with its earlier actions to  
          expand public participation in land use planning and  





           
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          development decisions.

          6.   Chaptering problem  .  Both SB 18 and AB 2055 (Wolk)  
          change the definition of "open-space land" in the statutory  
          requirements for local general plans' open space elements.   
          Both of those bills amend Government Code 65560, but in  
          different ways.  The Wolk bill is on the Senate Floor.   
          Unless the Senate adds double-jointing amendments to the  
          Wolk bill, AB 2055 could chapter-out the changes made by  
          the Burton bill.

          7.   Legislative history  .  When the Senate passed SB 18 in  
          June 2003, the bill was a minor measure relating to Native  
          American sacred sites.  Several sets of Assembly amendments  
          expanded the bill's scope.  In September 2003, the Assembly  
          defeated SB 18.  After reconsideration, the bill went back  
          through the Assembly Local Government Committee and the  
          Assembly Appropriations Committee in 2004 where there were  
          additional amendments before it came back to the Assembly  
          Floor.


                                 Assembly Actions  

          Assembly Natural Resources Committee (2003):  8-4
          Assembly Appropriations Committee (2003):16-6
          Assembly Natural Resources Committee (2003):  7-3
          Assembly Floor (2003):             33-11
          Assembly Appropriations (2003):         17-1
          Assembly Reconsideration (2003):        50-12
          Assembly Floor (2003):             38-14
          Assembly Local Government Committee (2004):  7-1
          Assembly Appropriations Committee (2004):15-0
          Assembly Floor (2004):             72-4
           

                        Support and Opposition  (8/10/04)

           Support  :  Alliance of California Tribes, Amah Mutsun Tribal  
          Band, Aqua Caliente Band of Cahuilla Indians, Cahto Tribe  
          of the Laytonville Rancheria, Cabazon Band of Mission  
          Indians, Coyote Valley Tribal Council, Habematolel Pomo of  
          Upper Lake Tribe, Inaja Cosmit Band of Mission Indians, Los  
          Coyotes Band of Indians, Mechoopda Indian Tribe of Chico  
          Rancheria, Morongo Band of Mission Indians, Native American  





           
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          Veterans of Laytonville, North Fork Mono Rancheria,  
          Picayune Rancheria of the Chukchansi Indians, Pomo Heritage  
          Institute, Quechan Indian Nation, Ramona Band of Cahuilla  
          Indians, Robinson Rancheria, Rumsey Indian Rancheria,  
          Sycuan Band of the Kumeyaay Nation, Table Mountain  
          Rancheria, Temecula Band of Luiseno Mission Indians,  
          Pechanga Reservation, Tule River Tribal Council, League of  
          California Cities, City of Huntington Beach, California  
          Space Authority.

           Opposition  :  Unknown.