Amended in Assembly May 30, 2013

Amended in Assembly April 19, 2013

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

(Principal coauthor: Assembly Member Alejo)

December 21, 2012

An act to amend begin delete Section end delete begin insert Sections 21080.3, end insert 21083 begin insert , 21083.2, and 21104 end insert of, and to add Sections 21073, 21074, 21083.09, 21084.2, 21084.3, and 21097 to, 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. begin insert CEQA defines “unique archaeological resource end insert begin insert ” for the purposes of CEQA. end insert CEQA requires the Office of Planning and Research to prepare and develop, 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 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 begin delete , or a tribal reservation or rancheria end delete . begin insert The bill would additionally define “unique archaeological resource” to include archaeological artifacts, objects, or sites, including those that are tribal cultural resources end insert begin insert . end insert The bill would require the office to revise the guidelines to include begin insert among the end insert criteria for determining whether a proposed project has a significant effect on the environment begin delete to include end delete begin insert the end insert effects on tribal cultural resources, including sacred places begin delete , or a tribal reservation or rancheria community end delete . 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. By requiring the lead agency to consider these effects relative to Native Americans begin insert and to conduct additional consultations end insert , 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:

SECTION 1.  

The Legislature finds and declares all of the
following:

(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.

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

(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.

(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.

(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.

(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 begin insert , end insert has caused further debilitating impacts on the
religious practices, cultural traditions, tribal identity, and
self-governance rights of California Native American tribes.

(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.

(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.

(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.

(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.

(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 begin delete effect end delete
begin insert affect end insert those places and resources.

SEC. 2.  

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

21073.  

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

SEC. 3.  

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

21074.  

(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 begin delete , or a tribal register of historic resources end delete .

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

(3) A resource deemed by the lead agency begin insert after a public hearing end insert
to be a tribal cultural resource begin insert based upon substa end insert begin insert ntial evidence
presented to the lead agency end insert .

(b) Tribal cultural resources include, but are not limited to, sites,
features, places, or objects with cultural value to descendant
communities, traditional begin delete culture end delete begin insert cultural end insert 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.

begin insert

begin insert SEC. 4. end insert   

end insert

begin insert Section 21080.3 of the end insert begin insert Public Resources Code end insert begin insert is
amended to read: end insert

21080.3.  

(a) Prior to determining whether a negative
declaration or environmental impact report is required for a project,
the lead agency shall consult with all responsible agencies begin delete and end delete begin insert , end insert
trustee agencies begin insert , and affected Native American tribes end insert . Prior to that
required consultation, the lead agency may informally contact any
of those agencies begin insert or tribes end insert .

(b) In order to expedite the requirements of subdivision (a), the
Office of Planning and Research, upon request of a lead agency,
shall assist the lead agency in determining the various responsible
agencies and trustee agencies, for a proposed project. In the case
of a project described in subdivision (c) of Section 21065, the
request may also be made by the project applicant.

begin delete SEC. 4. end delete
begin insert SEC. 5. 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 tribal
cultural resource, including a 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.

begin delete SEC. 5. end delete
begin insert SEC. 6. end insert   

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

21083.09.  

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
begin delete mitigation to end delete begin insert measures to mitigate significant end insert 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 do both of the following:

(1)  Separate the consideration of paleontological resources
from cultural resources and update the relevant sample questions.

(2) Add consideration of tribal cultural resources, including
sacred places, with relevant sample questions.

begin insert

begin insert SEC. 7. end insert   

end insert

begin insert Section 21083.2 of the end insert begin insert Public Resources Code end insert begin insert is
amended to read: end insert

21083.2.  

(a) As part of the determination made pursuant to
Section 21080.1, the lead agency shall determine whether the
project may have a significant effect on archaeological resources.
If the lead agency determines that the project may have a significant
effect on unique archaeological resources, the environmental
impact report shall address the issue of those resources. An
environmental impact report, if otherwise necessary, shall not
address the issue of nonunique archaeological resources. A negative
declaration shall be issued with respect to a project if, but for the
issue of nonunique archaeological resources, the negative
declaration would be otherwise issued.

(b) If it can be demonstrated that a project will cause damage
to a unique archaeological resource, the lead agency may require
reasonable efforts to be made to permit any or all of these resources
to be preserved in place or left in an undisturbed state. Examples
of that treatment, in no order of preference, may include, but are
not limited to, any of the following:

(1) Planning construction to avoid archaeological sites.

(2) Deeding archaeological sites into permanent conservation
easements.

(3) Capping or covering archaeological sites with a layer of soil
before building on the sites.

(4) Planning parks, greenspace, or other open space to
incorporate archaeological sites.

(c) To the extent that unique archaeological resources are not
preserved in place or not left in an undisturbed state, mitigation
measures shall be required as provided in this subdivision. The
project applicant shall provide a guarantee to the lead agency to
pay one-half the estimated cost of mitigating the significant effects
of the project on unique archaeological resources. In determining
payment, the lead agency shall give due consideration to the in-kind
value of project design or expenditures that are intended to permit
any or all archaeological resources or California Native American
culturally significant sites to be preserved in place or left in an
undisturbed state. When a final decision is made to carry out or
approve the project, the lead agency shall, if necessary, reduce the
specified mitigation measures to those which can be funded with
the money guaranteed by the project applicant plus the money
voluntarily guaranteed by any other person or persons for those
mitigation purposes. In order to allow time for interested persons
to provide the funding guarantee referred to in this subdivision, a
final decision to carry out or approve a project shall not occur
sooner than 60 days after completion of the recommended special
environmental impact report required by this section.

(d) Excavation as mitigation shall be restricted to those parts of
the unique archaeological resource that would be damaged or
destroyed by the project. Excavation as mitigation shall not be
required for a unique archaeological resource if the lead agency
determines that testing or studies already completed have
adequately recovered the scientifically consequential information
from and about the resource, if this determination is documented
in the environmental impact report.

(e) In no event shall the amount paid by a project applicant for
mitigation measures required pursuant to subdivision (c) exceed
the following amounts:

(1) An amount equal to one-half of 1 percent of the projected
cost of the project for mitigation measures undertaken within the
site boundaries of a commercial or industrial project.

(2) An amount equal to three-fourths of 1 percent of the
projected cost of the project for mitigation measures undertaken
within the site boundaries of a housing project consisting of a
single unit.

(3) If a housing project consists of more than a single unit, an
amount equal to three-fourths of 1 percent of the projected cost of
the project for mitigation measures undertaken within the site
boundaries of the project for the first unit plus the sum of the
following:

(A) Two hundred dollars ($200) per unit for any of the next 99
units.

(B) One hundred fifty dollars ($150) per unit for any of the next
400 units.

(C) One hundred dollars ($100) per unit in excess of 500 units.

(f) Unless special or unusual circumstances warrant an
exception, the field excavation phase of an approved mitigation
plan shall be completed within 90 days after final approval
necessary to implement the physical development of the project
or, if a phased project, in connection with the phased portion to
which the specific mitigation measures are applicable. However,
the project applicant may extend that period if he or she so elects.
Nothing in this section shall nullify protections for Indian
cemeteries under any other provision of law.

(g) As used in this section, “unique archaeological resource”
means an archaeological artifact, object, or site about which it can
be clearly demonstrated that, without merely adding to the current
body of knowledge, there is a high probability that it meets any of
the following criteria:

(1) Contains information needed to answer important scientific
research questions and that there is a demonstrable public interest
in that information.

(2) Has a special and particular quality such as being the oldest
of its type or the best available example of its type.

(3) Is directly associated with a scientifically recognized
important prehistoric or historic event or person.

begin insert

(4) Is a tribal cultural resource.

end insert

(h) As used in this section, “nonunique archaeological resource”
means an archaeological artifact, object, or site which does not
meet the criteria in subdivision (g). A nonunique archaeological
resource need be given no further consideration, other than the
simple recording of its existence by the lead agency if it so elects.

(i) As part of the objectives, criteria, and procedures required
by Section 21082 or as part of conditions imposed for mitigation,
a lead agency may make provisions for archaeological sites
accidentally discovered during construction. These provisions may
include an immediate evaluation of the find. If the find is
determined to be a unique archaeological resource, contingency
funding and a time allotment sufficient to allow recovering an
archaeological sample or to employ one of the avoidance measures
may be required under the provisions set forth in this section.
Construction work may continue on other parts of the building site
while archaeological mitigation takes place.

(j) This section does not apply to any project described in
subdivision (a) or (b) of Section 21065 if the lead agency elects
to comply with all other applicable provisions of this division.
This section does not apply to any project described in subdivision
(c) of Section 21065 if the applicant and the lead agency jointly
elect to comply with all other applicable provisions of this division.

(k) Any additional costs to any local agency as a result of
complying with this section with respect to a project of other than
a public agency shall be borne by the project applicant.

(l) Nothing in this section is intended to affect or modify the
requirements of Section 21084 or 21084.1.

begin delete SEC. 6. end delete
begin insert SEC. 8. end insert   

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

21084.2.  

(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).

begin delete SEC. 7. end delete
begin insert SEC. 9. end insert   

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

21084.3.  

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.

begin delete SEC. 8. end delete
begin insert SEC. 10. end insert   

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

21097.  

(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 begin delete , or a tribal reservation or rancheria end delete . 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 begin delete , or
a tribal reservation or rancheria end delete .

(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) (1) 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.

(2) This subdivision does not affect or alter the application of
subdivision (r) of Section 6254 of the Government Code.

(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,
begin delete or a tribal reservation or rancheria end delete only if one of the following
occurs:

begin delete

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

end delete begin delete

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

end delete begin insert

(1) Meaningful consultation between the affected Native
American tribes and the lead agency has occurred pursuant to
Section 65352.4 of the Government Code and Sections 21080.3
and 21104. The lead agency has given major consideration to
preventing impacts to tribal cultural resources and has
demonstrated best efforts to protect and preserve sacred places
in a culturally appropriate manner with dignity so as not to further
debilitate tribal religious practices, traditions, and identities.

end insert begin delete

(3)

end delete

begin insert ( end insert begin insert 2) end insert  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.

begin delete

(4)

end delete

begin insert ( end insert begin insert 3) end insert  The lead agency determines that there is no legal or feasible
way to accomplish the begin delete projects end delete begin insert project end insert begin insert ’s end insert purpose without causing
a significant effect upon the sacred place, that all feasible
mitigation or avoidance measures have been incorporated, and begin delete 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 end delete begin insert that specific overriding economic,
legal, social, technological, or other benefits of the project
outweigh the significant effects on the environment end insert . 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, begin delete or a
tribal reservation or rancheria, end delete the lead agency may require all
reasonable efforts to be made to treat the tribal cultural resource,
including a sacred place, begin delete or a tribal reservation or rancheria end delete 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, begin delete or a tribal reservation or rancheria
community, end delete 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.

begin insert

begin insert SEC. 11. end insert   

end insert

begin insert Section 21104 of the end insert begin insert Public Resources Code end insert begin insert is
amended to read: end insert

21104.  

(a) Prior to completing an environmental impact report,
the state lead agency shall consult with, and obtain comments
from, each responsible agency, trustee agency, begin insert affected Native
American tribes, end insert any public agency that has jurisdiction by law
with respect to the project, and any city or county that borders on
a city or county within which the project is located unless otherwise
designated annually by agreement between the state lead agency
and the city or county, and may consult with any person who has
special expertise with respect to any environmental impact
involved. In the case of a project described in subdivision (c) of
Section 21065, the state lead agency shall, upon the request of the
applicant, provide for early consultation to identify the range of
actions, alternatives, mitigation measures, and significant effects
to be analyzed in depth in the environmental impact report. The
state lead agency may consult with persons identified by the
applicant who the applicant believes will be concerned with the
environmental effects of the project and may consult with members
of the public who have made a written request to be consulted on
the project. A request by the applicant for early consultation shall
be made not later than 30 days after the determination required by
Section 21080.1 with respect to the project.

(b) The state lead agency shall consult with, and obtain
comments from, the State Air Resources Board in preparing an
environmental impact report on a highway or freeway project, as
to the air pollution impact of the potential vehicular use of the
highway or freeway.

(c) A responsible agency or other public agency shall only make
substantive comments regarding those activities involved in a
project that are within an area of expertise of the agency or that
are required to be carried out or approved by the agency. Those
comments shall be supported by specific documentation.

begin delete SEC. 9. end delete
begin insert SEC. 12. end insert   

This act does not alter or expand the applicability of
the California Environmental Quality Act (Division 13
(commencing with Section 21000) of the Public Resources Code)
for projects occurring on Native American tribal reservations or
rancherias.

begin delete SEC. 10. end delete
begin insert SEC. 13. 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.