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.