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 SB 18 -- 7/1/04 -- Page 2 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. SB 18 -- 7/1/04 -- Page 3 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 SB 18 -- 7/1/04 -- Page 4 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, SB 18 -- 7/1/04 -- Page 5 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 SB 18 -- 7/1/04 -- Page 6 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 SB 18 -- 7/1/04 -- Page 7 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.