Amended in Senate August 26, 2013

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 BillNo. 52


Introduced by Assembly Member Gatto

(Principal coauthor: Assembly Member Alejo)

begin insert

(Coauthors: Assembly Members Chesbro and Lowenthal)

end insert

December 21, 2012


An act tobegin delete amend Sections 21080.3, 21083, 21083.2, and 21104 of, and toend delete add Sections 21073, 21074,begin insert 21080.3.1,end insert 21083.09, 21084.2, 21084.3, and 21097begin delete to,end deletebegin insert toend 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.begin delete CEQA defines “unique archaeological resource” for the purposes of CEQA.end delete 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.

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The

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begin insertThisend insert 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.begin insert The bill would require the implementation, if feasible, of specified mitigation measures if the lead agency determines that a project will have a substantial adverse change on a tribal cultural resource. For a tribal cultural resource that is a sacred place, the bill would prohibit severe or irreparable damage to that resource, or interference with the free expression or exercise of a Native American religion unless a clear and convincing showing that the public interest and necessity so require.end insert The bill would require a lead agency tobegin delete 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. The bill would additionally define “unique archaeological resource” to include archaeological artifacts, objects, or sites, including those that are tribal cultural resources.end deletebegin insert consult with Native American tribes that are traditionally and culturally affiliated with the geographic area of the proposed project that have requested, in writing, to be informed by the lead agency of proposed projects in that geographic area prior to determining whether a negative declaration, mitigated negative declaration, or environmental impact report is required for a project. The bill would authorize the Native American tribe wishing to consult the lead agency regarding a project to notify the lead agency, as specified. The bill would make the above provisions applicable to projects that have filed a notice of preparation or a notice of negative declaration or mitigated negative declaration on or after January 1, 2014.end insert The bill would require thebegin delete officeend deletebegin insert Office of Planning and Researchend insert to revise the guidelines to include among the criteria for determining whether a proposed project has a significant effect on the environment the effects onbegin delete tribal cultural resources, including sacred places. 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 ofend delete tribal cultural resources. By requiring the lead agency to consider these effects relative to Native Americans and to conduct additional consultations, 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:

P3    1

SECTION 1.  

The Legislature finds and declares all of the
2following:

3(a) California had the largest aboriginal population in North
4America before contact with non-Native Americans.begin delete Yet, California
5Native American tribes suffered the greatest losses from
6termination, removal, and assimilation policies, including the loss
7of a majority of their lands and tribal cultural resources, including
8sacred places. This devastation debilitated tribal religious practices
9and cultural identity, and threatened the survival of California
10Native Americans.end delete
begin insert Spiritual integrity, community identity, political
11sovereignty, and governance processes are intertwined in the
12lifeways and identity of the California Native American tribes.end insert

begin delete

13(b) Spiritual integrity, community identity, political sovereignty,
14and governance processes are intertwined in the lifeways and
15identity of the California Native American tribes.

P4    1(c) California Native American tribes possess original natural
2rights, from time immemorial, recognized in over 200 years of
3federal jurisprudence, the Federal Constitution, federal and state
4laws and administrative policies, and state actions, including,
5tribal-state agreements.

6(d) Included in these original natural rights is the right of tribal
7governments to enact their own laws and be governed by them
8and to engage in their own cultural and spiritual practices. It is a
9fundamental obligation of each generation of California Native
10Americans to cherish and protect these rights for their children
11and for generations to come.

end delete
begin delete

25 12(e)

end delete

13begin insert(b)end insert California Native Americans have used, and continue to use,
14natural settings in the conduct of spiritual practices, religious
15observances, ceremonies, and cultural uses and beliefs that are
16essential elements in tribal communities. Tribes consider these
17sacred and cultural places, used by generations, as vital to their
18existence, well-being, and identity.

begin delete

19(f) In addition to the lingering effects of historic termination,
20removal, and assimilation policies, the continued loss of tribal
21cultural resources, including sacred places and tribal lands in the
22past 200 years, has caused further debilitating impacts on the
23religious practices, cultural traditions, tribal identity, and
24self-governance rights of California Native American tribes.

end delete
begin delete

25(g) To uphold California Native American tribes’ original natural
26rights with regard to religious practices, cultural traditions, tribal
27identity, and self-governance, it is essential that the natural setting
28and essential integrity of these tribal cultural resources be protected
29and the sacred places be preserved.

end delete
begin delete

8 30(h)

end delete

31begin insert(c)end insert Traditional tribal lands were diminished to reservations and
32rancherias that exist todaybegin delete in California with local governments,
33state lands, federal lands, and privately owned lands located
34adjacent to, and in the vicinity of, tribal government reservations
35and rancherias. The land use decisions concerning lands adjacent
36to, and in the vicinity of, California Native American reservations
37and rancherias affect those tribal communities in terms of
38environmental impacts and tribal self-governance rightsend delete
begin insert with tribes
39losing a majority of their tribal cultural resources and sacred
40placesend insert
.

begin insert

P5    1(d) Honoring the rights of California Native American tribes’
2efforts to protect the natural setting and integrity of sacred places
3is essential.

end insert
begin delete

16 4(i)

end delete

5begin insert(e)end insert The California Environmental Quality Actbegin insert, which is the
6primary environmental protection law in California,end insert
does not
7readily or directly solicit, include, or accommodate California
8Native American tribes’ concerns andbegin delete issues, whichend deletebegin insert issues. Thisend insert
9 has resulted in significant environmental impacts to tribal cultural
10resources, including sacred places and tribal government
11reservations and rancherias, leaving them unanalyzed and
12unmitigated. The result has been significant and unmitigated
13cumulative impacts to those resourcesbegin delete and California Native
14American reservations and rancheriasend delete
to the detriment of those
15communities and California’s environment.

begin delete

26 16(j)

end delete

17begin insert(f)end insert California Native American tribes are experts concerning
18theirbegin insert traditionally andend insert culturally affiliated resources, tribal history,
19and practices concerning those resources. Tribal knowledge about
20the land and the resources should be included in environmental
21assessments pursuant to state environmental laws for projects that
22have a potentially significant impact or effect on those resources.

begin delete

32 23(k)

end delete

24begin insert(g)end insert State environmental law should not only take into account
25the scientific or archaeological value of cultural resources, but also
26the tribal cultural values, tribal interpretations, and culturally
27appropriate treatment when decisions are made concerning whether
28or how to approve a project that may significantly impact or affect
29those places and resources.

30

SEC. 2.  

Section 21073 is added to the Public Resources Code,
31to read:

32

21073.  

“Native American tribe” means a federally recognized
33Indian tribe located in California.

begin delete
34

SEC. 3.  

Section 21074 is added to the Public Resources Code,
35to read:

36

21074.  

(a) “Tribal cultural resource” means a resource that is
37any of the following:

38(1) A resource listed in, or determined to be eligible for listing
39in, the California Register of Historical Resources, a local register
P6    1of historical resources, as defined in subdivision (k) of Section
25020.1.

3(2) A resource deemed to be significant pursuant to subdivision
4(g) of Section 5024.1.

5(3) A resource deemed by the lead agency after a public hearing
6to be a tribal cultural resource based upon substantial evidence
7presented to the lead agency.

8(b) Tribal cultural resources include, but are not limited to, sites,
9features, places, or objects with cultural value to descendant
10communities, traditional cultural properties, or tribal cultural
11landscapes consistent with the guidance of the federal National
12Park Services’ Advisory Council on Historic Preservation.

13(c) A tribal cultural resource may also be a historic resource or
14a unique archaeological resource.

15(d) A tribal cultural resource does not include a resource
16demonstrated by clear and convincing evidence to be historically
17or culturally not significant.

18

SEC. 4.  

Section 21080.3 of the Public Resources Code is
19amended to read:

20

21080.3.  

(a) Prior to determining whether a negative
21declaration or environmental impact report is required for a project,
22the lead agency shall consult with all responsible agencies, trustee
23agencies, and affected Native American tribes. Prior to that required
24consultation, the lead agency may informally contact any of those
25agencies or tribes.

26(b) In order to expedite the requirements of subdivision (a), the
27Office of Planning and Research, upon request of a lead agency,
28shall assist the lead agency in determining the various responsible
29agencies and trustee agencies, for a proposed project. In the case
30of a project described in subdivision (c) of Section 21065, the
31request may also be made by the project applicant.

32

SEC. 5.  

Section 21083 of the Public Resources Code is
33amended to read:

34

21083.  

(a) The Office of Planning and Research shall prepare
35and develop proposed guidelines for the implementation of this
36division by public agencies. The guidelines shall include objectives
37and criteria for the orderly evaluation of projects and the
38preparation of environmental impact reports and negative
39declarations in a manner consistent with this division.

P7    1(b) The guidelines shall specifically include criteria for public
2agencies to follow in determining whether or not a proposed project
3may have a “significant effect on the environment.” The criteria
4shall require a finding that a project may have a “significant effect
5on the environment” if one or more of the following conditions
6exist:

7(1) A proposed project has the potential to degrade the quality
8of the environment, curtail the range of the environment, or to
9achieve short-term, to the disadvantage of long-term, environmental
10goals.

11(2) The possible effects of a project are individually limited but
12cumulatively considerable. As used in this paragraph,
13“cumulatively considerable” means that the incremental effects of
14an individual project are considerable when viewed in connection
15with the effects of past projects, the effects of other current projects,
16and the effects of probable future projects.

17(3) The environmental effects of a project will cause substantial
18adverse effects on human beings, either directly or indirectly.

19(4) A proposed project may have a significant effect on a tribal
20cultural resource, including a sacred place, or a tribal reservation
21or rancheria community.

22(c) The guidelines shall include procedures for determining the
23lead agency pursuant to Section 21165.

24(d) The guidelines shall include criteria for public agencies to
25use in determining when a proposed project is of sufficient
26statewide, regional, or areawide environmental significance that
27a draft environmental impact report, a proposed negative
28declaration, or a proposed mitigated negative declaration shall be
29submitted to appropriate state agencies, through the State
30Clearinghouse, for review and comment prior to completion of the
31environmental impact report, negative declaration, or mitigated
32negative declaration.

33(e) The Office of Planning and Research shall develop and
34prepare the proposed guidelines as soon as possible and shall
35transmit them immediately to the Secretary of the Natural
36Resources Agency. The Secretary of the Natural Resources Agency
37shall certify and adopt the guidelines pursuant to Chapter 3.5
38(commencing with Section 11340) of Part 1 of Division 3 of Title
392 of the Government Code, which shall become effective upon the
40filing of the adopted guidelines. However, the guidelines shall not
P8    1be adopted without compliance with Sections 11346.4, 11346.5,
2and 11346.8 of the Government Code.

3(f) The Office of Planning and Research shall, at least once
4every two years, review the guidelines adopted pursuant to this
5section and shall recommend proposed changes or amendments
6to the Secretary of the Natural Resources Agency. The Secretary
7of the Natural Resources Agency shall certify and adopt guidelines,
8and any amendments to the guidelines, at least once every two
9years, pursuant to Chapter 3.5 (commencing with Section 11340)
10of Part 1 of Division 3 of Title 2 of the Government Code, which
11shall become effective upon the filing of the adopted guidelines
12and any amendments to the guidelines. However, guidelines may
13not be adopted or amended without compliance with Sections
1411346.4, 11346.5, and 11346.8 of the Government Code.

end delete
15begin insert

begin insertSEC. 3.end insert  

end insert

begin insertSection 21074 is added to the end insertbegin insertPublic Resources Codeend insertbegin insert,
16to read:end insert

begin insert
17

begin insert21074.end insert  

(a) “Tribal cultural resources” means either of the
18following:

19(1) Sites, features, places, objects with cultural value to
20descendant communities, or cultural landscapes that are consistent
21with the guidance of the United States National Park Service and
22the federal Advisory Council on Historic Preservation, that are
23listed in or determined to be eligible for listing in any of the
24following:

25(A) The California Register of Historical Resources.

26(B) A local register of historical resources as defined in
27subdivision (k) of Section 5020.1.

28(C) A resource deemed to be significant pursuant to subdivision
29(g) of Section 5024.1.

30(2) Sacred places including, but not limited to, Native American
31sanctified cemeteries, places of worship, religious or ceremonial
32sites, or sacred shrines that meet either of the following criteria:

33(A) Listed on the California Native American Heritage
34Commission’s Sacred Lands File pursuant to Section 5097.94 or
355097.96.

36(B) Listed or determined to be eligible for listing in the
37California Register of Historical Resources.

38(b) A tribal cultural resource may also be a historical resource
39pursuant to Section 21084.1 or a unique archaeological resource
40pursuant to subdivision (g) of Section 21083.2. A tribal cultural
P9    1resource classified as a “nonunique archaeological resource”
2 remains a tribal cultural resource and shall be given consideration
3pursuant to this division.

end insert
4begin insert

begin insertSEC. 4.end insert  

end insert

begin insertSection 21080.3.1 is added to the end insertbegin insertPublic Resources
5Code
end insert
begin insert, to read:end insert

begin insert
6

begin insert21080.3.1.end insert  

(a) Prior to determining whether a negative
7declaration, mitigated negative declaration, or environmental
8impact report is required for a project, the lead agency shall
9consult with Native American tribes that are traditionally and
10culturally affiliated with the geographic area of the proposed
11project that have requested, in writing, to be informed by the lead
12agency of proposed projects in that geographic area. For an
13activity directly undertaken by a public agency, the lead agency
14may provide for early consultation to identify alternatives,
15mitigation measures, and significant effects regarding issues of
16concern to the Native American tribe to be analyzed in depth in
17the environmental impact report.

18(b) Because Native American tribes that are traditionally and
19culturally affiliated with a geographic area may have expertise
20concerning their tribal lands and resources in identifying,
21interpreting, and determining significance of tribal cultural
22resources and whether an impact of a proposed project to a tribal
23cultural resource is significant, the lead agency shall consult with
24Native American tribes in making a determination pursuant to
25subdivision (a) and as set forth in Sections 21084.2 and 21097.

26(c) To expedite the requirements of this section, the Native
27American Heritage Commission shall assist the lead agency in
28identifying the traditionally and culturally affiliated Native
29American tribes.

30(d) (1) For the purposes of this section and Section 21097,
31“consultation” means the meaningful and timely process of
32seeking, discussing, and considering carefully the view of others,
33in a manner that is cognizant of all parties’ cultural values and,
34where feasible, seeking agreement. Consultation between public
35agencies and Native American tribes shall be conducted in a way
36that is mutually respectful of each party’s sovereignty. Consultation
37shall recognize the tribes’ potential needs for confidentiality with
38respect to places that have traditional tribal cultural significance.
39Consultation shall also recognize the need for the exchange and
P10   1provision of project information essential to the topic of the
2consultation.

3(2) The consultation shall be considered concluded at the point
4at which the parties to the consultation come to a mutual agreement
5concerning the appropriate measures for preservation or
6mitigation, or either the lead agency or Native American tribe,
7acting in good faith and after reasonable effort, concludes that
8mutual agreement cannot be reached concerning appropriate
9measures of preservation or mitigation.

10(3) If the project proponent or its consultants participate in the
11consultation, those parties shall respect the principles set forth in
12this subdivision.

13(e) This section shall apply only to a project that has a notice
14of preparation or a notice of negative declaration or mitigated
15negative declaration filed on or after January 1, 2014.

end insert
16

begin deleteSEC. 6.end delete
17begin insertSEC. 5.end insert  

Section 21083.09 is added to the Public Resources
18Code
, to read:

19

21083.09.  

On or before January 1, 2015, the Office of Planning
20and Research shall prepare and develop, and the Secretary of the
21Natural Resources Agency shall certify and adopt, revisions to the
22guidelines that do all of the following:

23(a) Provide guidance on the implementation of Sections 21084.2
24and 21084.3.

25(b) Provide advice developed in consultation with the Native
26American Heritage Commission, Native American tribes, related
27to tribal cultural resources, including sacred places, for all of the
28following:

29(1) The preservation and protection of, or culturally appropriate
30measures to mitigate significant impacts to, tribal cultural
31resources.

32(2) Procedures for the protection of the confidentiality of
33information concerning the specific identity, location, character,
34and use of tribal cultural resources.

35(3) Procedures to facilitate the voluntary participation of
36landowners to preserve and protect the specific identity, location,
37character, and use of tribal cultural resources.

38(4) Procedures to facilitate the identification of, and culturally
39appropriate treatment of, tribal cultural resources.

P11   1(c) Revising Appendix G of Chapter 3 (commencing with
2Section 15000) of Division 6 of Title 14 of the California Code of
3Regulations to do both of the following:

4(1)  Separate the consideration of paleontological resources
5from cultural resources and update the relevant sample questions.

6(2) Add consideration of tribal cultural resources, including
7sacred places, with relevant sample questions.

begin delete
8

SEC. 7.  

Section 21083.2 of the Public Resources Code is
9amended to read:

10

21083.2.  

(a) As part of the determination made pursuant to
11Section 21080.1, the lead agency shall determine whether the
12project may have a significant effect on archaeological resources.
13If the lead agency determines that the project may have a significant
14effect on unique archaeological resources, the environmental
15impact report shall address the issue of those resources. An
16environmental impact report, if otherwise necessary, shall not
17address the issue of nonunique archaeological resources. A negative
18declaration shall be issued with respect to a project if, but for the
19issue of nonunique archaeological resources, the negative
20declaration would be otherwise issued.

21(b) If it can be demonstrated that a project will cause damage
22to a unique archaeological resource, the lead agency may require
23reasonable efforts to be made to permit any or all of these resources
24to be preserved in place or left in an undisturbed state. Examples
25of that treatment, in no order of preference, may include, but are
26not limited to, any of the following:

27(1) Planning construction to avoid archaeological sites.

28(2) Deeding archaeological sites into permanent conservation
29easements.

30(3) Capping or covering archaeological sites with a layer of soil
31before building on the sites.

32(4) Planning parks, greenspace, or other open space to
33incorporate archaeological sites.

34(c) To the extent that unique archaeological resources are not
35 preserved in place or not left in an undisturbed state, mitigation
36measures shall be required as provided in this subdivision. The
37project applicant shall provide a guarantee to the lead agency to
38pay one-half the estimated cost of mitigating the significant effects
39of the project on unique archaeological resources. In determining
40payment, the lead agency shall give due consideration to the in-kind
P12   1value of project design or expenditures that are intended to permit
2any or all archaeological resources or California Native American
3culturally significant sites to be preserved in place or left in an
4undisturbed state. When a final decision is made to carry out or
5approve the project, the lead agency shall, if necessary, reduce the
6specified mitigation measures to those which can be funded with
7the money guaranteed by the project applicant plus the money
8voluntarily guaranteed by any other person or persons for those
9mitigation purposes. In order to allow time for interested persons
10to provide the funding guarantee referred to in this subdivision, a
11final decision to carry out or approve a project shall not occur
12sooner than 60 days after completion of the recommended special
13environmental impact report required by this section.

14(d) Excavation as mitigation shall be restricted to those parts of
15the unique archaeological resource that would be damaged or
16destroyed by the project. Excavation as mitigation shall not be
17required for a unique archaeological resource if the lead agency
18determines that testing or studies already completed have
19adequately recovered the scientifically consequential information
20from and about the resource, if this determination is documented
21in the environmental impact report.

22(e) In no event shall the amount paid by a project applicant for
23mitigation measures required pursuant to subdivision (c) exceed
24the following amounts:

25(1) An amount equal to one-half of 1 percent of the projected
26cost of the project for mitigation measures undertaken within the
27site boundaries of a commercial or industrial project.

28(2) An amount equal to three-fourths of 1 percent of the
29projected cost of the project for mitigation measures undertaken
30within the site boundaries of a housing project consisting of a
31single unit.

32(3) If a housing project consists of more than a single unit, an
33amount equal to three-fourths of 1 percent of the projected cost of
34the project for mitigation measures undertaken within the site
35boundaries of the project for the first unit plus the sum of the
36following:

37(A) Two hundred dollars ($200) per unit for any of the next 99
38units.

39(B) One hundred fifty dollars ($150) per unit for any of the next
40400 units.

P13   1(C) One hundred dollars ($100) per unit in excess of 500 units.

2(f) Unless special or unusual circumstances warrant an
3exception, the field excavation phase of an approved mitigation
4plan shall be completed within 90 days after final approval
5necessary to implement the physical development of the project
6or, if a phased project, in connection with the phased portion to
7which the specific mitigation measures are applicable. However,
8the project applicant may extend that period if he or she so elects.
9Nothing in this section shall nullify protections for Indian
10cemeteries under any other provision of law.

11(g) As used in this section, “unique archaeological resource”
12means an archaeological artifact, object, or site about which it can
13be clearly demonstrated that, without merely adding to the current
14body of knowledge, there is a high probability that it meets any of
15the following criteria:

16(1) Contains information needed to answer important scientific
17research questions and that there is a demonstrable public interest
18in that information.

19(2) Has a special and particular quality such as being the oldest
20of its type or the best available example of its type.

21(3) Is directly associated with a scientifically recognized
22important prehistoric or historic event or person.

23(4) Is a tribal cultural resource.

24(h) As used in this section, “nonunique archaeological resource”
25means an archaeological artifact, object, or site which does not
26meet the criteria in subdivision (g). A nonunique archaeological
27resource need be given no further consideration, other than the
28simple recording of its existence by the lead agency if it so elects.

29(i) As part of the objectives, criteria, and procedures required
30by Section 21082 or as part of conditions imposed for mitigation,
31a lead agency may make provisions for archaeological sites
32accidentally discovered during construction. These provisions may
33include an immediate evaluation of the find. If the find is
34determined to be a unique archaeological resource, contingency
35funding and a time allotment sufficient to allow recovering an
36archaeological sample or to employ one of the avoidance measures
37may be required under the provisions set forth in this section.
38 Construction work may continue on other parts of the building site
39while archaeological mitigation takes place.

P14   1(j) This section does not apply to any project described in
2subdivision (a) or (b) of Section 21065 if the lead agency elects
3to comply with all other applicable provisions of this division.
4This section does not apply to any project described in subdivision
5(c) of Section 21065 if the applicant and the lead agency jointly
6elect to comply with all other applicable provisions of this division.

7(k) Any additional costs to any local agency as a result of
8complying with this section with respect to a project of other than
9a public agency shall be borne by the project applicant.

10(l) Nothing in this section is intended to affect or modify the
11requirements of Section 21084 or 21084.1.

end delete
12

begin deleteSEC. 8.end delete
13begin insertSEC. 6.end insert  

Section 21084.2 is added to the Public Resources Code,
14to read:

15

21084.2.  

(a) A project may have a significant effect on the
16environment if the project has the potential of causing a substantial
17adverse change in the significance of a tribal cultural resource.

18(b) Because Native American tribes may have expertise in
19identifying, interpreting, and determiningbegin insert theend insert significance of tribal
20cultural resources and whether an impact of a proposed project to
21a tribal cultural resource is significant, the lead agency shall consult
22with the relevant Native American tribes in making a determination
23pursuant to subdivision (a).

begin insert

24(c) This section shall apply only to a project that has a notice
25of preparation or a notice of negative declaration or mitigated
26negative declaration filed on or after January 1, 2014.

end insert
begin delete
27

SEC. 9.  

Section 21084.3 is added to the Public Resources Code,
28to read:

29

21084.3.  

If the lead agency determines that a project will have
30a significant effect on places, features, and objects described in
31Section 5097.9 or 5097.995 and listed in the California Native
32American Heritage Commission Sacred Lands File pursuant to
33Section 5097.993 or 5097.994, the lead agency shall make its best
34effort to ensure that these resources be avoided, preserved, and
35protected in place or left in an undisturbed state.

36

SEC. 10.  

Section 21097 is added to the Public Resources Code,
37to read:

38

21097.  

(a) If a Native American tribe notifies a lead agency
39prior to the commencement of the public review period established
40by Section 21091, or if the lead agency determines pursuant to
P15   1Section 21084.3, that a project may adversely affect a tribal cultural
2resource, including a sacred place, or a tribal reservation or
3rancheria and that the tribe wishes to consult to resolve the
4potentially adverse impacts, the lead agency shall engage in early
5consultation with the affected tribe before or during the
6environmental review process. The lead agency shall provide to
7the affected tribe copies of any environmental document and its
8technical reports. The affected tribe may request the Native
9American Heritage Commission, the State Office of Historic
10Preservation, and other relevant agencies or entities to participate
11 in the consultation process and to seek mutually agreeable methods
12of avoiding or otherwise resolving the potential adverse effects.
13As part of the consultation process, the parties may propose
14mitigation measures capable of avoiding or substantially lessening
15potential impacts to a tribal cultural resource, including a sacred
16place. Any binding agreement reached in this consultation shall
17be incorporated as mitigation measures in the final environmental
18document.

19(b) If no agreement is reached pursuant to subdivision (a), or if
20an affected tribe identifies significant effects on a tribal cultural
21resource, including a sacred place, or the affected tribe’s reservation
22or rancheria during the public comment period, the environmental
23document shall include both of the following analyses:

24(1) Whether the proposed project has a significant impact on
25an identified tribal cultural resource, including a sacred place.

26(2) Whether the alternatives or mitigation measures proposed
27by the parties pursuant to subdivision (a) or during the public
28comment period avoid or substantially lessen the impact to the
29identified cultural resource, including a sacred place, or a tribal
30reservation or rancheria.

31(c) (1) Any information, including, but not limited to, the
32location, nature, and use of the place, feature, site, or object that
33is submitted by an affected tribe regarding a tribal cultural resource,
34including a sacred place, may not be included in the environmental
35impact report or otherwise disclosed by the lead agency or any
36other public agency to the public without the prior consent of the
37tribe that provided the information. The submitted information
38shall be published in a confidential appendix to the environmental
39document. This subdivision is not intended, and may not be
40construed, to prohibit the confidential exchange of the submitted
P16   1information between public agencies that have lawful jurisdiction
2over the preparation of the environmental document.

3(2) This subdivision does not affect or alter the application of
4subdivision (r) of Section 6254 of the Government Code.

5(d) The lead agency and any responsible agency for the proposed
6project may issue a permit for a project with a significant impact
7on an identified tribal cultural resource, including a sacred place,
8only if one of the following occurs:

9(1) Meaningful consultation between the affected Native
10American tribes and the lead agency has occurred pursuant to
11Section 65352.4 of the Government Code and Sections 21080.3
12and 21104. The lead agency has given major consideration to
13preventing impacts to tribal cultural resources and has demonstrated
14best efforts to protect and preserve sacred places in a culturally
15appropriate manner with dignity so as not to further debilitate tribal
16religious practices, traditions, and identities.

17(2) The affected tribe has received notice of, and has failed to
18comment on, the proposed mitigation measures during the comment
19period established in Section 21091 and any public hearing required
20by or held pursuant to this division.

21(3) The lead agency determines that there is no legal or feasible
22way to accomplish the project’s purpose without causing a
23significant effect upon the sacred place, that all feasible mitigation
24or avoidance measures have been incorporated, and that specific
25overriding economic, legal, social, technological, or other benefits
26of the project outweigh the significant effects on the environment.
27These findings may be made only after the lead agency provides
2830 days’ notice of hearing to the affected tribe and an opportunity
29for the affected tribe to review and comment on the proposed
30finding.

31(e) If an agreement is not reached pursuant to subdivision (a)
32and if it can be demonstrated that a project will cause significant
33effect to a tribal cultural resource, including a sacred place, the
34lead agency may require all reasonable efforts to be made to treat
35the tribal cultural resource, including a sacred place, in a culturally
36sensitive manner. Examples of culturally sensitive treatment
37include, but are not limited to, the following:

38(1) Planning construction to avoid those resources or places.

39(2) Deeding resources or places into permanent conservation
40easements.

P17   1(3) Planning parks, greenspace, or other open space to
2incorporate those resources or places.

3(4) Adopting culturally appropriate mitigation measures that
4take into account the tribal value and meaning of the resource or
5place.

6(f) In determining the presence of tribal cultural resources,
7including sacred places, the lead agency shall use the most current
8and up-to-date technology, research, and resources including, but
9not limited to, tribal, local, state, and national registers, the Native
10American Heritage Commission Sacred Lands File, mapping and
11Geographic Information System data, current cultural resources
12reports, foot surveys, ethnographic assessment, noninvasive study
13techniques, and information submitted by an affected tribe. The
14lead agency shall make all reasonable efforts and complete the
15research and identification efforts prior to the release of the draft
16environmental document and, in any case, no later than the
17finalization of the environmental document.

18(g) This section is not intended, and may not be construed, to
19do either of the following:

20(1) Prohibit any person or entity from seeking any damages or
21injunction authorized by law.

22(2) Limit consultation between the state and tribal governments,
23existing confidentiality provisions, or the protection of religious
24exercise to the fullest extent permitted under state and federal law.

25

SEC. 11.  

Section 21104 of the Public Resources Code is
26amended to read:

27

21104.  

(a) Prior to completing an environmental impact report,
28the state lead agency shall consult with, and obtain comments
29from, each responsible agency, trustee agency, affected Native
30American tribes, any public agency that has jurisdiction by law
31with respect to the project, and any city or county that borders on
32a city or county within which the project is located unless otherwise
33designated annually by agreement between the state lead agency
34and the city or county, and may consult with any person who has
35special expertise with respect to any environmental impact
36involved. In the case of a project described in subdivision (c) of
37Section 21065, the state lead agency shall, upon the request of the
38applicant, provide for early consultation to identify the range of
39actions, alternatives, mitigation measures, and significant effects
40to be analyzed in depth in the environmental impact report. The
P18   1state lead agency may consult with persons identified by the
2applicant who the applicant believes will be concerned with the
3environmental effects of the project and may consult with members
4of the public who have made a written request to be consulted on
5the project. A request by the applicant for early consultation shall
6be made not later than 30 days after the determination required by
7Section 21080.1 with respect to the project.

8(b) The state lead agency shall consult with, and obtain
9comments from, the State Air Resources Board in preparing an
10environmental impact report on a highway or freeway project, as
11to the air pollution impact of the potential vehicular use of the
12highway or freeway.

13(c) A responsible agency or other public agency shall only make
14substantive comments regarding those activities involved in a
15project that are within an area of expertise of the agency or that
16are required to be carried out or approved by the agency. Those
17comments shall be supported by specific documentation.

end delete
18begin insert

begin insertSEC. 7.end insert  

end insert

begin insertSection 21084.3 is added to the end insertbegin insertPublic Resources Codeend insertbegin insert,
19to read:end insert

begin insert
20

begin insert21084.3.end insert  

(a) If the lead agency determines that a project will
21have a substantial adverse change on a tribal cultural resource,
22the following mitigation measures, in order of preference, that
23may avoid or minimize the significant adverse impacts shall be
24implemented, if feasible:

25(1) Planning construction to avoid the resources and protect
26the cultural and natural context, or planning greenspace, parks,
27or other open space, to incorporate the resources with culturally
28appropriate protection and management criteria.

29(2) Consideration of project alternatives that protect the
30resources.

31(3) Protecting resources or places through conveyance to an
32appropriate Native American tribe of permanent easements, or
33other interests in real property, with culturally appropriate
34management criteria for the purpose of preserving or utilizing the
35resources or places.

36(4) Adopting mitigation measures that treat the resources with
37culturally appropriate dignity taking into account the tribal value
38and meaning of the resource including, but not limited to, the
39following:

P19   1(A) Mitigation that protects the cultural character and integrity
2of the resource.

3(B) Mitigation that protects the traditional use of the resource.

4(C) Mitigation that protects the confidentiality of the resource.

5(5) Any of the examples of treatments set forth in Section
621083.2.

7(b) If the lead agency determines that a project will have a
8significant adverse impact on a tribal cultural resource that is a
9sacred place as described in paragraph (2) of subdivision (a) of
10Section 21074, no severe or irreparable damage shall occur and
11no interference with the free expression or exercise of a Native
12American religion as provided in the United States Constitution
13and the California Constitution shall occur with regard to this
14place except on a clear and convincing showing that the public
15interest and necessity so require.

16(c) This section shall apply only to a project that has a notice
17of preparation or a notice of negative declaration or mitigated
18negative declaration filed on or after January 1, 2014.

end insert
19begin insert

begin insertSEC. 8.end insert  

end insert

begin insertSection 21097 is added to the end insertbegin insertPublic Resources Codeend insertbegin insert,
20to read:end insert

begin insert
21

begin insert21097.end insert  

(a) A Native American tribe that is traditionally and
22culturally affiliated with the geographic area of the proposed
23project wishing to consult with the lead agency to discuss
24potentially feasible means by which potentially significant impacts
25on a tribal cultural resources can be feasibly avoided or minimized
26to less than significant, may notify the lead agency prior to the
27public review period established by Section 21091, but no later
28than 30 days after receipt of the lead agency’s notice of
29preparation of an environmental impact report or 20 days after
30receipt of the lead agency’s notice of a negative declaration or
31mitigated negative declaration. The lead agency shall provide to
32the Native American tribe copies of any environmental document
33or technical report relied on by the lead agency. The Native
34 American tribe may request the project proponent, Native
35American Heritage Commission, the State Office of Historic
36Preservation, and other relevant agencies or entities to participate
37in the consultation process and to seek mutually agreeable methods
38of avoiding or otherwise resolving the potential adverse effects.
39As part of the consultation process, the parties may propose
P20   1mitigation measures capable of avoiding or substantially lessening
2potential significant impacts to a tribal cultural resource.

3(b) Any mitigation measures agreed upon by the lead agency
4and Native American tribe in the consultation shall be incorporated
5as mitigation measures in the final environmental document and
6fully enforceable through conditions, agreements, or measures.

7(c) If a project may have an impact on a tribal cultural resource,
8the lead agency’s environmental document shall discuss both of
9the following:

10(1) Whether the proposed project has a significant impact on
11an identified cultural resource.

12(2) Whether feasible alternatives or mitigation measures,
13including those measures that may be agreed to pursuant to
14subdivision (a), avoid or substantially lessen the impact to the
15identified tribal cultural resource.

16(d) (1) Any information, including, but not limited to, the
17location, nature, and use of the place, feature, site, or object that
18is submitted by a Native American tribe regarding a tribal cultural
19resource during the consultation process may not be included in
20the environmental document or otherwise disclosed by the lead
21agency or any other public agency to the public without the prior
22consent of the tribe that provided the information. Any information
23submitted by a Native American tribe during the consultation
24process shall be published in a confidential appendix to the
25environmental document unless the tribe consents to disclosure of
26all or some of the information to the public. This subdivision is
27not intended, and may not be construed, to prohibit the confidential
28exchange of the submitted information between public agencies
29that have lawful jurisdiction over the preparation of the
30environmental document.

31(2) This subdivision does not affect or alter the application of
32subdivision (r) of Section 6254 of the Government Code.

33(e) The lead agency for the proposed project may issue a permit
34or grant an approval for a project with a significant impact on an
35identified tribal cultural resource only if one of the following
36occurs:

37(1) Mitigation measures agreed to during the consultation
38 process pursuant to subdivision (b) or another agreement have
39been incorporated into the final environmental document and
40mitigation monitoring program.

P21   1(2) The Native American tribe accepts the mitigation measures
2proposed in the draft or final environmental document and
3mitigation monitoring and reporting program.

4(3) Consultation between the Native American tribes and the
5lead agency has occurred pursuant to Section 65352.4 of the
6Government Code and Section 21080.3.1.

7(4) The Native American tribe has received notice of, and has
8failed to comment on or reject, the proposed mitigation measures
9during the public comment period established in Section 21091
10and any public hearing on the project required by or held pursuant
11to this division.

12(f) If an agreement is not reached pursuant to this section and
13if substantial evidence demonstrates that a project will cause a
14significant effect to a tribal cultural resource the lead agency shall
15require feasible mitigation pursuant to subdivision (a) of Section
1621084.3 and, if applicable, mitigation pursuant to subdivision (b)
17of Section 21084.3.

18(g) It is the intent of the Legislature that the lead agency engage
19in early consultation with the Native American tribe before the
20public review period for the environmental documents commences.

21(h) This section is not intended, and may not be construed, to
22limit consultation between the state and tribal governments,
23existing confidentiality provisions, or the protection of religious
24exercise to the fullest extent permitted under state and federal law.

25(i) This section shall apply only to a project that has a notice
26of preparation or a notice of negative declaration or mitigated
27negative declaration filed on or after January 1, 2014.

end insert
28

begin deleteSEC. 12.end delete
29begin insertSEC. 9.end insert  

begin insert(a)end insertbegin insertend insert This act does not alter or expand the applicability
30of the California Environmental Quality Act (Division 13
31(commencing with Section 21000) of the Public Resources Code)
32begin delete forend deletebegin insert concerningend insert projects occurring on Native American tribal
33reservations or rancherias.

begin insert

34(b) This act does not prohibit any Native American tribe or
35nonfederally recognized tribe from participating in the California
36Environmental Quality Act on any issue of concern as an interested
37person, citizen, or member of the public.

end insert
38

begin deleteSEC. 13.end delete
39begin insertSEC. 10.end insert  

No reimbursement is required by this act pursuant to
40Section 6 of Article XIII B of the California Constitution because
P22   1a local agency or school district has the authority to levy service
2charges, fees, or assessments sufficient to pay for the program or
3level of service mandated by this act, within the meaning of Section
417556 of the Government Code.



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