Amended in Assembly April 8, 2013

Amended in Assembly March 19, 2013

California Legislature—2013–14 Regular Session

Assembly Bill No. 52

Introduced by Assembly Member Gatto

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(Principal coauthor: Assembly Member Alejo)

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December 21, 2012

An act to amend Section 21083 begin delete of end delete begin insert of, and to add Sections 21073, 21074, 21083.09, 21084.2, 21084.3, and 21097 to, end insert the Public Resources Code, relating to Native Americans.

LEGISLATIVE COUNSEL’S DIGEST

AB 52, as amended, Gatto. Native Americans: California Environmental Quality Act.

Existing law, the Native American Historic Resource Protection Act, establishes a misdemeanor for unlawfully and maliciously excavating upon, removing, destroying, injuring, or defacing a Native American historic, cultural, or sacred site, that is listed or may be eligible for listing in the California Register of Historic Resources.

The California Environmental Quality Act, referred to as CEQA, requires a lead agency, as defined, to prepare, or cause to be prepared, and certify the completion of, an environmental impact report on a project that it proposes to carry out or approve that may have a significant effect on the environment or to adopt a negative declaration if it finds that the project will not have that effect. CEQA also requires a lead agency to prepare a mitigated negative declaration for a project that may have a significant effect on the environment if revisions in the project would avoid or mitigate that effect and there is no substantial evidence that the project, as revised, would have a significant effect on the environment. CEQA requires the lead agency to provide a responsible agency with specified notice and opportunities to comment on a proposed project. CEQA requires the Office of Planning and Research begin delete , referred to as OPR, end delete to prepare begin insert and develop, end insert and the Secretary of the Natural Resources Agency to certify and adopt, guidelines for the implementation of CEQA that include, among other things, criteria for public agencies to following in determining whether or not a proposed project may have a significant effect on the environment.

The bill would begin insert specify that a project having a potential to cause a substantial adverse change in the significance of a tribal resource, as defined, to be a project that may have a significant effect on the environment. The bill would require a lead agency to make best efforts to avoid, preserve, and protect specified Native American resources. The bill would require the lead agency to undertake specified actions if a project may adversely affect tribal cultural resources, or a tribal reservation or rancheria. end insert begin insert The bill would end insert require begin delete OPR end delete begin insert the office end insert to revise the begin insert guidelines to include end insert criteria for determining whether a proposed project has a significant effect on the environment to include effects on begin delete Native American end delete begin insert tribal end insert cultural resources, begin insert including end insert sacred begin delete sites end delete begin insert places end insert , or begin insert a end insert tribal reservation or rancheria community. begin insert The bill would require the office to prepare and develop, and the secretary to certify and adopt, revisions to the guidelines relating to the identification and treatment of tribal cultural resources. end insert By requiring the lead agency to consider these effects relative to Native Americans, this bill would impose a state-mandated local program.

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.

This bill would provide that no reimbursement is required by this act for a specified reason.

Vote: majority. Appropriation: no. Fiscal committee: yes. State-mandated local program: yes.

The people of the State of California do enact as follows:

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begin insert SECTION 1. end insert   

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The Legislature finds and declares all of the
following:

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(a) California had the largest aboriginal population in North
America before contact with non-Native Americans. Yet, California
Native American tribes suffered the greatest losses from
termination, removal, and assimilation policies, including the loss
of a majority of their lands and tribal cultural resources, including
sacred places. This devastation debilitated tribal religious practices
and cultural identity, and threatened the survival of California
Native Americans.

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(b) Spiritual integrity, community identity, political sovereignty,
and governance processes are intertwined in the lifeways and
identity of the California Native American tribes.

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(c) California Native American tribes possess original natural
rights, from time immemorial, recognized in over 200 years of
federal jurisprudence, the federal Constitution, federal and state
laws and administrative policies, and state actions, including,
tribal-state agreements.

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(d) Included in these original natural rights is the right of tribal
governments to enact their own laws and be governed by them and
to engage in their own cultural and spiritual practices. It is a
fundamental obligation of each generation of California Native
Americans to cherish and protect these rights for their children
and for generations to come.

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(e) California Native Americans have used, and continue to use,
natural settings in the conduct of spiritual practices, religious
observances, ceremonies, and cultural uses and beliefs that are
essential elements in tribal communities. Tribes consider these
sacred and cultural places, used by generations, as vital to their
existence, well-being, and identity.

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(f) In addition to the lingering effects of historic termination,
removal, and assimilation policies, the continued loss of tribal
cultural resources, including sacred places and tribal lands in the
past 200 years has caused further debilitating impacts on the
religious practices, cultural traditions, tribal identity, and
self-governance rights of California Native American tribes.

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(g) To uphold California Native American tribes’ original
natural rights with regard to religious practices, cultural traditions,
tribal identity, and self-governance, it is essential that the natural
setting and essential integrity of these tribal cultural resources be
protected and the sacred places be preserved.

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(h) Traditional tribal lands were diminished to reservations
and rancherias that exist today in California with local
governments, state lands, federal lands, and privately owned lands
located adjacent to, and in the vicinity of, tribal government
reservations and rancherias. The land use decisions concerning
lands adjacent to, and in the vicinity of, California Native American
reservations and rancherias affect those tribal communities in
terms of environmental impacts and tribal self-governance rights.

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(i) The California Environmental Quality Act does not readily
or directly solicit, include, or accommodate California Native
American tribes’ concerns and issues, which has resulted in
significant environmental impacts to tribal cultural resources,
including sacred places and tribal government reservations and
rancherias, leaving them unanalyzed and unmitigated. The result
has been significant and unmitigated cumulative impacts to those
resources and California Native American reservations and
rancherias to the detriment of those communities and California’s
environment.

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(j) California Native American tribes are experts concerning
their culturally affiliated resources, tribal history, and practices
concerning those resources. Tribal knowledge about the land and
the resources should be included in environmental assessments
pursuant to state environmental laws for projects that have a
potentially significant impact or effect on those resources.

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(k) State environmental law should not only take into account
the scientific or archaeological value of cultural resources, but
also the tribal cultural values, tribal interpretations, and culturally
appropriate treatment when decisions are made concerning
whether or how to approve a project that may significantly impact
or effect those places and resources.

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begin insert SEC. 2. end insert   

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begin insert Section 21073 is added to the end insert begin insert Public Resources Code end insert begin insert ,
to read: end insert

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begin insert 21073. end insert   

“Native American tribe” means a federally recognized
Indian tribe located in California.

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begin insert SEC. 3. end insert   

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begin insert Section 21074 is added to the end insert begin insert Public Resources Code end insert begin insert ,
to read: end insert

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begin insert 21074. end insert   

(a) “Tribal cultural resource” means a resource that
is any of the following:

(1) A resource listed in, or determined to be eligible for listing
in, the California Register of Historical Resources, a local register
of historical resources, as defined in subdivision (k) of Section
5020.1, or a tribal register of historic resources.

(2) A resource deemed to be significant pursuant to subdivision
(g) of Section 5024.1.

(3) A resource deemed by the lead agency to be a tribal cultural
resource.

(b) Tribal cultural resources include, but are not limited to,
sites, features, places, or objects with cultural value to descendant
communities, traditional culture properties, or tribal cultural
landscapes consistent with the guidance of the federal National
Park Services’ Advisory Council on Historic Preservation.

(c) A tribal cultural resource may also be a historic resource
or a unique archaeological resource.

(d) A tribal cultural resource does not include a resource
demonstrated by clear and convincing evidence to be historically
or culturally not significant.

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begin delete SECTION 1. end delete
begin insert SEC. 4. end insert   

Section 21083 of the Public Resources Code is
amended to read:

21083.  

(a) The Office of Planning and Research shall prepare
and develop proposed guidelines for the implementation of this
division by public agencies. The guidelines shall include objectives
and criteria for the orderly evaluation of projects and the
preparation of environmental impact reports and negative
declarations in a manner consistent with this division.

(b) The guidelines shall specifically include criteria for public
agencies to follow in determining whether or not a proposed project
may have a “significant effect on the environment.” The criteria
shall require a finding that a project may have a “significant effect
on the environment” if one or more of the following conditions
exist:

(1) A proposed project has the potential to degrade the quality
of the environment, curtail the range of the environment, or to
achieve short-term, to the disadvantage of long-term, environmental
goals.

(2) The possible effects of a project are individually limited but
cumulatively considerable. As used in this paragraph,
“cumulatively considerable” means that the incremental effects of
an individual project are considerable when viewed in connection
with the effects of past projects, the effects of other current projects,
and the effects of probable future projects.

(3) The environmental effects of a project will cause substantial
adverse effects on human beings, either directly or indirectly.

(4) A proposed project may have a significant effect on a begin delete Native
American end delete begin insert tribal end insert cultural begin delete resource or end delete begin insert resource, including a end insert sacred
place, or a tribal reservation or rancheria community.

(c) The guidelines shall include procedures for determining the
lead agency pursuant to Section 21165.

(d) The guidelines shall include criteria for public agencies to
use in determining when a proposed project is of sufficient
statewide, regional, or areawide environmental significance that
a draft environmental impact report, a proposed negative
declaration, or a proposed mitigated negative declaration shall be
submitted to appropriate state agencies, through the State
Clearinghouse, for review and comment prior to completion of the
environmental impact report, negative declaration, or mitigated
negative declaration.

(e) The Office of Planning and Research shall develop and
prepare the proposed guidelines as soon as possible and shall
transmit them immediately to the Secretary of the Natural
Resources Agency. The Secretary of the Natural Resources Agency
shall certify and adopt the guidelines pursuant to Chapter 3.5
(commencing with Section 11340) of Part 1 of Division 3 of Title
2 of the Government Code, which shall become effective upon the
filing of the adopted guidelines. However, the guidelines shall not
be adopted without compliance with Sections 11346.4, 11346.5,
and 11346.8 of the Government Code.

(f) The Office of Planning and Research shall, at least once
every two years, review the guidelines adopted pursuant to this
section and shall recommend proposed changes or amendments
to the Secretary of the Natural Resources Agency. The Secretary
of the Natural Resources Agency shall certify and adopt guidelines,
and any amendments to the guidelines, at least once every two
years, pursuant to Chapter 3.5 (commencing with Section 11340)
of Part 1 of Division 3 of Title 2 of the Government Code, which
shall become effective upon the filing of the adopted guidelines
and any amendments to the guidelines. However, guidelines may
not be adopted or amended without compliance with Sections
11346.4, 11346.5, and 11346.8 of the Government Code.

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begin insert SEC. 5. end insert   

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begin insert Section 21083.09 is added to the end insert begin insert Public Resources
Code end insert begin insert , to read: end insert

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begin insert 21083.09. end insert   

On or before January 1, 2015, the Office of Planning
and Research shall prepare and develop, and the Secretary of the
Natural Resources Agency shall certify and adopt, revisions to the
guidelines that do all of the following:

(a) Provide guidance on the implementation of Sections 21084.2
and 21084.3.

(b) Provide advice developed in consultation with the Native
American Heritage Commission, Native American tribes, related
to tribal cultural resources, including sacred places, for all of the
following:

(1) The preservation and protection of, or culturally appropriate
mitigation to impacts to, tribal cultural resources.

(2) Procedures for the protection of the confidentiality of
information concerning the specific identity, location, character,
and use of tribal cultural resources.

(3) Procedures to facilitate the voluntary participation of
landowners to preserve and protect the specific identity, location,
character, and use of tribal cultural resources.

(4) Procedures to facilitate the identification of, and culturally
appropriate treatment of, tribal cultural resources.

(c) Revising Appendix G of Chapter 3 (commencing with Section
15000) of Division 6 of Title 14 of the California Code of
Regulations to separate the consideration of paleontological
resources from cultural resources and updating the relevant sample
questions.

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begin insert SEC. 6. end insert   

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begin insert Section 21084.2 is added to the end insert begin insert Public Resources Code end insert begin insert ,
to read: end insert

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begin insert 21084.2. end insert   

(a) A project may have a significant effect on the
environment if the project has the potential of causing a substantial
adverse change in the significance of a tribal cultural resource.

(b) Because Native American tribes may have expertise in
identifying, interpreting, and determining significance of tribal
cultural resources and whether an impact of a proposed project
to a tribal cultural resource is significant, the lead agency shall
consult with the relevant Native American tribes in making a
determination pursuant to subdivision (a).

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begin insert SEC. 7. end insert   

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begin insert Section 21084.3 is added to the end insert begin insert Public Resources Code end insert begin insert ,
to read: end insert

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begin insert 21084.3. end insert   

If the lead agency determines that a project will have
a significant effect on places, features, and objects described in
Section 5097.9 or 5097.995 and listed in the California Native
American Heritage Commission Sacred Lands File pursuant to
Section 5097.993 or 5097.994, the lead agency shall make its best
effort to ensure that these resources be avoided, preserved, and
protected in place or left in an undisturbed state.

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begin insert SEC. 8. end insert   

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begin insert Section 21097 is added to the end insert begin insert Public Resources Code end insert begin insert ,
to read: end insert

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begin insert 21097. end insert   

(a) If a Native American tribe notifies a lead agency
prior to the commencement of the public review period established
by Section 21091, or if the lead agency determines pursuant to
Section 21084.3, that a project may adversely affect a tribal
cultural resource, including a sacred place, or a tribal reservation
or rancheria and that the tribe wishes to consult to resolve the
potentially adverse impacts, the lead agency shall engage in early
consultation with the affected tribe before or during the
environmental review process. The lead agency shall provide to
the affected tribe copies of any environmental document and its
technical reports. The affected tribe may request the Native
American Heritage Commission, the State Office of Historic
Preservation, and other relevant agencies or entities to participate
in the consultation process and to seek mutually agreeable methods
of avoiding or otherwise resolving the potential adverse effects.
As part of the consultation process, the parties may propose
mitigation measures capable of avoiding or substantially lessening
potential impacts to a tribal cultural resource, including a sacred
place, or a tribal reservation or rancheria. Any binding agreement
reached in this consultation shall be incorporated as mitigation
measures in the final environmental document.

(b) If no agreement is reached pursuant to subdivision (a), or
if an affected tribe identifies significant effects on a tribal cultural
resource, including a sacred place, or the affected tribe’s
reservation or rancheria during the public comment period, the
environmental document shall include both of the following
analyses:

(1) Whether the proposed project has a significant impact on
an identified tribal cultural resource, including a sacred place, or
a tribal reservation or rancheria.

(2) Whether the alternatives or mitigation measures proposed
by the parties pursuant to subdivision (a) or during the public
comment period avoid or substantially lessen the impact to the
identified cultural resource, including a sacred place, or a tribal
reservation or rancheria.

(c) Any information, including, but not limited to, the location,
nature, and use of the place, feature, site, or object that is submitted
by an affected tribe regarding a tribal cultural resource, including
a sacred place, may not be included in the environmental impact
report or otherwise disclosed by the lead agency or any other
public agency to the public without the prior consent of the tribe
that provided the information. The submitted information shall be
published in a confidential appendix to the environmental
document. This subdivision is not intended, and may not be
construed, to prohibit the confidential exchange of the submitted
information between public agencies that have lawful jurisdiction
over the preparation of the environmental document.

(d) The lead agency and any responsible agency for the
proposed project may issue a permit for a project with a significant
impact on an identified tribal cultural resource, including a sacred
place, or a tribal reservation or rancheria only if one of the
following occurs:

(1) Mitigation measures agreed to pursuant to subdivision (a)
have been incorporated into the final environmental document.

(2) The affected tribe accepts the mitigation measures proposed
in the draft or final environmental document.

(3) The affected tribe has received notice of, and has failed to
comment on, the proposed mitigation measures during the comment
period established in Section 21091 and any public hearing
required by or held pursuant to this division.

(4) The lead agency determines that there is no legal or feasible
way to accomplish the projects purpose without causing a
significant effect upon the sacred place, that all feasible mitigation
or avoidance measures have been incorporated, and that there is
an overriding environmental, public health, or safety reason based
on substantial evidence presented by the lead agency that the
project should be approved. These findings may be made only after
the lead agency provides 30 days’ notice of hearing to the affected
tribe and an opportunity for the affected tribe to review and
comment on the proposed finding.

(e) If an agreement is not reached pursuant to subdivision (a)
and if it can be demonstrated that a project will cause significant
effect to a tribal cultural resource, including a sacred place, or a
tribal reservation or rancheria, the lead agency may require all
reasonable efforts to be made to treat the tribal cultural resource,
including a sacred place, or a tribal reservation or rancheria in
a culturally sensitive manner. Examples of culturally sensitive
treatment include, but are not limited to, the following:

(1) Planning construction to avoid those resources or places.

(2) Deeding resources or places into permanent conservation
easements.

(3) Planning parks, greenspace, or other open space to
incorporate those resources or places.

(4) Adopting culturally appropriate mitigation measures that
take into account the tribal value and meaning of the resource or
place.

(f) In determining the presence of tribal cultural resources,
including sacred places, or a tribal reservation or rancheria
community, the lead agency shall use the most current and
up-to-date technology, research, and resources including, but not
limited to, tribal, local, state, and national registers, the Native
American Heritage Commission Sacred Lands File, mapping and
Geographic Information System data, current cultural resources
reports, foot surveys, ethnographic assessment, noninvasive study
techniques, and information submitted by an affected tribe. The
lead agency shall make all reasonable efforts and complete the
research and identification efforts prior to the release of the draft
environmental document and, in any case, no later than the
finalization of the environmental document.

(g) This section is not intended, and may not be construed, to
do either of the following:

(1) Prohibit any person or entity from seeking any damages or
injunction authorized by law.

(2) Limit consultation between the state and tribal governments,
existing confidentiality provisions, or the protection of religious
exercise to the fullest extent permitted under state and federal law.

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begin delete SEC. 2. end delete
begin insert SEC. 9. end insert   

No reimbursement is required by this act pursuant to
Section 6 of Article XIII B of the California Constitution because
a local agency or school district has the authority to levy service
charges, fees, or assessments sufficient to pay for the program or
level of service mandated by this act, within the meaning of Section
17556 of the Government Code.