Amended in Senate September 5, 2013

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 Bill No. 52

Introduced by Assembly Member Gatto

(Principal coauthor: Assembly Member Alejo)

(Coauthors: Assembly Members Chesbro and Lowenthal)

December 21, 2012

An act to add Sections 21073, 21074, 21080.3.1, 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. 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.

This 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 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. The bill would require a lead agency to 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 begin delete authorize end delete begin insert require end insert 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. The bill would require the Office of Planning and Research to revise the guidelines to begin delete include among the criteria for determining whether a proposed project has a significant effect on the environment the effects on tribal cultural resources. end delete begin insert separate the consideration of cultural resources from that for paleontological resources and add consideration of tribal cultural resources. end insert 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:

begin delete

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

(b) 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.

(c) Traditional tribal lands were diminished to reservations and
rancherias that exist today with tribes losing a majority of their
tribal cultural resources and sacred places.

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

(e) The California Environmental Quality Act, which is the
primary environmental protection law in California, does not
readily or directly solicit, include, or accommodate California
Native American tribes’ concerns and issues. This 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 to the detriment of those communities and California’s
environment.

(f) California Native American tribes are experts concerning
their traditionally and 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.

(g) 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 affect
those places and resources.

end delete

begin insert

begin insert SECTION 1. end insert   

end insert

begin insert (a) end insert begin insert   end insert begin insert The Legislature finds and declares all of the
following: end insert

begin insert

(1) Current state law provides a limited measure of protection
for sites, features, places, objects, and landscapes with cultural
value to California Native American tribes.

end insert begin insert

(2) Existing law provides limited protection for Native American
sacred places, including, but not limited to, places of worship,
religious or ceremonial sites, and sacred shrines.

end insert begin insert

(3) The California Environmental Quality Act (Division 13
(commencing with Section 21000) of the Public Resources Code)
does not readily or directly include California Native American
tribes’ knowledge and concerns. This has resulted in significant
environmental impacts to tribal cultural resources and sacred
places, including cumulative impacts, to the detriment of California
Native American tribes and California’s environment.

end insert begin insert

(4) As California Native Americans have used, and continue to
use, natural settings in the conduct of spiritual practices, religious
observances, ceremonies, cultural practices, and beliefs, these
resources reflect the tribes’ continuing cultural ties to the land
and their traditional heritages.

end insert begin insert

(5) Many of these archaeological, historical, cultural, and
sacred sites are not located within the current boundaries of
California Native American reservations and rancherias, and
therefore are not covered by the protectionist policies of tribal
governments.

end insert begin insert

(b) In recognition of California Native American tribal
sovereignty and the unique relationship of California local
governments and public agencies with California Native American
tribal governments, and respecting the interests and roles of project
proponents, it is the intent of the Legislature, in enacting this act,
to accomplish all of the following:

end insert begin insert

(1) Recognize that California Native American prehistoric,
historic, archaeological, cultural, and sacred places are essential
elements in tribal cultural traditions, heritages, and identities.

end insert begin insert

(2) Establish that federally recognized California Native
American tribes have a tribal government role in the California
Environmental Quality Act.

end insert begin insert

(3) Establish a new category of resources in the California
Environmental Quality Act called “tribal cultural resources” that
considers the tribal cultural values in addition to the scientific and
archaeological values.

end insert begin insert

(4) Recognize California Native American tribes have expertise
with regard to their tribal history and practices, which concern
the tribal cultural resources with which they are traditionally and
culturally affiliated. Because the California Environmental Quality
Act calls for a sufficient degree of analysis, tribal knowledge about
the land and tribal cultural resources at issue should be included
in environmental assessments for projects that may have a
significant impact on those resources.

end insert begin insert

(5) Establish a meaningful consultation process between
California Native American tribal governments and lead agencies,
respecting the interests and roles of project proponents and the
level of required confidentiality concerning tribal cultural
resources, at the earliest possible point in the California
Environmental Quality Act environmental review process, so that
tribal cultural resources can be identified, and culturally
appropriate mitigation and mitigation monitoring programs can
be considered by the decisionmaking body of the lead agency.

end insert begin insert

(6) Ensure that local and tribal governments, public agencies,
and project proponents have information available early in the
California Environmental Quality Act environmental review
process, for purposes of identifying and addressing potential
adverse impacts to tribal cultural resources and to reduce the
potential for delay and conflicts in the environmental review
process.

end insert begin insert

(7) Enable California Native American tribes to manage and
accept conveyances of, and act as caretakers of, tribal cultural
resources.

end insert begin insert

(8) Establish that a substantial adverse change to a tribal
cultural resource has a significant effect on the environment.

end insert

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 resources” means either of the
following:

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

(A) The California Register of Historical Resources.

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

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

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

(A) Listed on the California Native American Heritage
Commission’s Sacred Lands File pursuant to Section 5097.94 or
5097.96.

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

(b) A begin delete tribal cultural end delete begin insert historical end insert resource begin delete may also be a historical
resource pursuant to end delete begin insert described in end insert Section begin delete 21084.1 or end delete begin insert 21084.1, end insert a
unique archaeological resource begin delete pursuant to end delete begin insert as defined in end insert
subdivision (g) of Section begin delete 21083.2. A tribal cultural resource
classified as end delete begin insert 21083.2, or end insert a “nonunique archaeological resource”
begin delete remains a tribal cultural resource and shall be given consideration
pursuant to this division. end delete begin insert as defined in subdivision (h) of Section
21083.2, may be a tribal cultural resource if it conforms with the
criteria of subdivision (a). end insert

SEC. 4.  

Section 21080.3.1 is added to the Public Resources
Code, to read:

21080.3.1.  

(a) Prior to determining whether a negative
declaration, mitigated negative declaration, or environmental
impact report is required for a project, the lead agency shall begin delete consult end delete
begin insert initiate consultation end insert 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.
For an activity directly undertaken by a public agency, the lead
agency may begin insert also end insert provide for early consultation begin insert as described in
Section 21097 end insert to identify alternatives, mitigation measures, and
significant effects regarding issues of concern to the Native
American tribe to be analyzed in depth in the environmental begin delete impact
report. end delete begin insert documents. end insert

(b) Because Native American tribes that are traditionally and
culturally affiliated with a geographic area may have expertise
concerning their tribal lands and resources 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
Native American tribes begin insert , as set forth in subdivision (a), end insert in making
a determination pursuant to subdivision (a) and as set forth in
Sections 21084.2 and 21097.

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

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

(2) The consultation shall be considered concluded at the point
at which the parties to the consultation come to a mutual agreement
concerning the appropriate measures for preservation or begin delete mitigation,
or either the lead agency end delete begin insert mitigation that will be recommended to
the lead agency, or either the authorized representative of the lead
agency participating in the consultation end insert or Native American tribe,
acting in good faith and after reasonable effort, concludes that
mutual agreement cannot be reached concerning begin insert recommended end insert
appropriate measures of preservation or mitigation.

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

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

SEC. 5.  

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 begin delete do all end delete begin insert revise Appendix G of Chapter 3 (commencing
with Section 15000) of Division 6 of Title 4 of the California Code
of Regulations to do both end insert of the following:

begin delete

(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
measures to mitigate significant 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)

end delete

begin insert (a) end insert   Separate the consideration of paleontological resources
from cultural resources and update the relevant sample questions.

begin delete

(2)

end delete

begin insert (b) end insert  Add consideration of tribal cultural begin delete resources, including
sacred places, end delete begin insert resources end insert with relevant sample questions.

SEC. 6.  

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.

begin delete

(b) Because Native American tribes may have expertise in
identifying, interpreting, and determining the 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).

end delete begin delete

(c)

end delete

begin insert (b) end insert  This section shall apply only to a project that has a notice
of preparation or a notice of negative declaration or mitigated
negative declaration filed on or after January 1, 2014.

SEC. 7.  

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

21084.3.  

(a) If the lead agency determines that a project begin delete will
have end delete begin insert may cause end insert a substantial adverse change begin delete on end delete begin insert to end insert a tribal cultural
resource, the following mitigation measures begin insert are recommended end insert , in
order of preference, that may avoid or minimize the significant
adverse impacts begin insert and end insert shall be begin delete implemented, end delete begin insert considered, end insert if feasible:

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

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

begin delete

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

end delete begin insert

(3) Conveyance of resources into permanent conservation
easements or other interests in real property, with culturally
appropriate management criteria for the purposes of preserving
or utilizing the resources or places.

end insert

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

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

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

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

(5) Any of the examples of treatments set forth in Section
21083.2 begin insert , if executed with culturally appropriate dignity end insert .

begin delete

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

end delete begin delete

(c)

end delete

begin insert (b) end insert  This section shall apply only to a project that has a notice
of preparation or a notice of negative declaration or mitigated
negative declaration filed on or after January 1, 2014.

SEC. 8.  

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

21097.  

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

(b) Any mitigation measures agreed upon begin delete by the lead agency
and Native American tribe end delete in the consultation shall be begin delete incorporated end delete
begin insert recommended by the lead agency staff to the decisionmaking body
of the lead agency participating in the consultation end insert as mitigation
measures in the final environmental document and begin insert the mitigation
monitoring program, if determined to avoid or lessen the impact
pursuant to paragraph (2) of subdivision (c), and shall be end insert fully
enforceable through conditions, agreements, or measures.

(c) If a project may have begin delete an end delete begin insert a significant end insert impact on a tribal
cultural resource, the lead agency’s environmental document shall
discuss both of the following:

(1) Whether the proposed project has a significant impact on
an identified begin insert tribal end insert cultural resource.

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

(d) (1) Any information, including, but not limited to, the
begin delete location, nature, and use of the place, feature, site, or object end delete begin insert tribal
cultural resource end insert that is submitted by a Native American tribe
begin delete regarding a tribal cultural resource end delete during the consultation process
may not be included in the environmental document 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. Any information submitted by a Native American
tribe during the consultation process shall be published in a
confidential appendix to the environmental document unless the
tribe consents begin insert , in writing, end insert to disclosure of all or some of the
information to the public. 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.

begin insert

(3) This subdivision does not prevent a lead agency or other
public agency from describing the information in general terms
in the environmental document so as to inform the public of the
basis of the lead agency’s or other public agency’s decision without
breaching the confidentiality required by this subdivision.

end insert

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

(1) Mitigation measures agreed to during the consultation
process pursuant to subdivision (b) or another agreement have
been begin delete incorporated into end delete begin insert recommended to the decisionmaking body
of the lead agency as mitigation measures in end insert the final
environmental document and mitigation monitoring program.

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

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

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

(f) If begin delete an agreement is not reached pursuant to this section end delete begin insert the
mitigation measures recommended by the staff of the lead agency
as a result of the consultation process are not included in the
environmental document or if there are no agreed upon mitigation
measures at the conclusion of the consultation, end insert and if substantial
evidence demonstrates that a project will cause a significant effect
to a tribal cultural begin delete resource end delete begin insert resource, end insert the lead agency shall begin delete require end delete
begin insert consider end insert feasible mitigation pursuant to subdivision (a) of Section
begin delete 21084.3 and, if applicable, mitigation pursuant to subdivision (b)
of Section end delete 21084.3.

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

(h) This section is not intended, and may not be construed, to
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.

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

SEC. 9.  

(a) 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)
concerning projects occurring on Native American tribal
reservations or rancherias.

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

SEC. 10.  

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.