Amended in Senate June 16, 2014

Amended in Senate June 2, 2014

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, 21080.3.2, 21082.3, 21083.09, 21084.2, and 21084.3 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 begin delete having a potential to end delete begin insert with an effect that may end insert cause a substantial adverse change begin delete to end delete begin insert in the significance of end insert a tribal cultural resource, as defined, begin delete to be end delete begin insert is end insert a project that may have a significant effect on the environment. The bill would require a lead agency to consult with begin insert a end insert Native American begin delete tribes end delete begin insert tribe end insert that begin delete are end delete begin insert is end insert traditionally and culturally affiliated with the geographic area of the proposed project begin delete and have end delete begin insert , if the tribe end insert requested to the lead agency begin delete or the California Native American Heritage Commission end delete , in writing, to be informed by the lead agency of proposed projects in that geographic area begin insert and the tribe requests consultation, end insert prior to determining whether a negative declaration, mitigated negative declaration, or environmental impact report is required for a project. begin delete The bill would also require the lead agency to consult with Native American tribes on the adequacy of the proposed negative declaration, mitigated negative declaration, or environmental impact required for the project. end delete The bill would specify examples of mitigation measures that may be considered to avoid or minimize impacts on tribal cultural resources. The bill would make the above provisions applicable to projects that have begin delete filed end delete a notice of preparation or a notice of negative declaration begin insert filed end insert or mitigated negative declaration on or after January 1, 2015. The bill would require the Office of Planning and Research to revise the guidelines to separate the consideration of cultural resources from that for paleontological resources and add consideration of 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:

SECTION 1.  

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

(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.

(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.

(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.

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

(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.

(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:

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

(2) Establish begin delete that end delete begin insert a consultation process for end insert federally recognized
Native American tribes in California begin delete have a tribal government role end delete
in the California Environmental Quality Act.

(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 when determining impacts and mitigation.

(4) Recognize that California Native American tribes begin insert may end insert have
expertise with regard to their tribal history and practices, which
concern the tribal cultural resources begin delete and associated environment end delete
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 begin delete land, end delete begin insert land and end insert tribal
cultural resources begin delete , and associated environment end delete at issue should be
included in environmental assessments for projects that may have
a significant impact on those resources.

(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.

(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.

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

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

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) (1)  begin delete Unless a preponderance of the evidence
demonstrates that the resources are not culturally significant, “tribal end delete
begin insert “Tribal end insert cultural resources” are either of the following:

(A) Sites, features, places, begin insert and end insert objects with cultural value to
descendant communities begin insert , as those communities are described in
the 1990 Guidelines for Evaluating and Documenting Traditional
Cultural Properties, National Register Bulletin 38, National
Register of Historic Places, National Park Service, Washington
D.C. end insert , 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 begin delete included in end delete any of the
following:

(i)  begin delete The end delete begin insert Included in the end insert California Register of Historical
Resources.

(ii)  begin delete A end delete begin insert Included in a end insert local register of historical resources as
defined in subdivision (k) of Section 5020.1.

(iii) A resource deemed to be significant pursuant to criteria set
forth in subdivision (c) of Section 5024.1.

(B) 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:

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

(ii) Listed or determined pursuant to criteria set forth in
subdivision (g) of Section 5024.1 to be eligible for listing in the
California Register of Historical Resources.

(2) The fact that a resource is not included in the California
Register of Historic Places, not listed in California Native
American Heritage Commission’s Sacred Lands File, not included
in a local register of historical resources, not deemed significant
pursuant to criteria set forth in subdivision (c) of Section 5024.1,
or not deemed eligible pursuant to criteria set forth in subdivision
(g) of Section 5024.1 for listing in the California Register of
Historic Places shall not preclude a lead agency from determining
whether the resource is a tribal cultural resource for the purposes
of this division.

(b) A historical resource described in Section 21084.1, a unique
archaeological resource as defined in subdivision (g) of Section
21083.2, or a “nonunique archaeological resource” as defined in
subdivision (h) of Section begin delete 21083.2, end delete begin insert 21083.2 end insert may also be a tribal
cultural resource if it conforms with the criteria of paragraph (1)
of, or the lead agency determines the resource to be a tribal cultural
resource pursuant to paragraph (2) of, subdivision (a).

SEC. 4.  

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

21080.3.1.  

(a) Native American tribes that are traditionally
and culturally affiliated with a geographic area may have expertise
concerning their tribal cultural resources begin insert and may assist the lead
agency end insert 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.

(b) Prior to determining whether a negative declaration,
mitigated negative declaration, or environmental impact report is
required for a project, the lead agency shall consult, regarding the
appropriate level of environmental review for a project, with begin insert a end insert
Native American begin delete tribes end delete begin insert tribe end insert that begin delete are end delete begin insert is end insert traditionally and culturally
affiliated with the geographic area of the proposed project begin delete and
have end delete begin insert if: (1) the Native American tribe end insert requested to the lead begin delete agency
or the Native American Heritage Commission, end delete begin insert agency, end insert in writing,
to be informed by the lead agency through formal notification of
proposed projects in that geographic begin delete area. If end delete begin insert area, and (2) end insert the
Native American tribe responds begin delete to end delete begin insert , in writing, within 30 days of
receipt of end insert the formal notification, begin insert and requests end insert the begin delete consultation
shall proceed and shall be deemed concluded as described in
subdivision (d) of Section 21080.3.2. end delete begin insert consultation. end insert For purposes
of this section, “Consultation” shall have the same meaning as
provided in Section 20180.3.2.

(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. The lead agency formal notification to the
traditionally and culturally affiliated Native American tribes that
have requested notice shall be accomplished by means of at least
one written notification that includes information about the project
and the project location and description, consistent with the
information about the project required to be provided under
paragraph (1) of subdivision (b) of Section 21092, and shall be
deemed sufficient to qualify as formal notification pursuant to
subdivision (b).

SEC. 5.  

Section 21080.3.2 is added to the Public Resources
Code, to read:

21080.3.2.  

(a) For the purposes of this section and Section
21080.3.1, “consultation” means the process of acting in good
faith in seeking, discussing, and considering carefully the view of
others, 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, tribal cultural values, and confidentiality as provided
in Section 21082.3.

begin delete

(b) (1) If the lead agency has distributed a proposed negative
declaration or mitigated negative declaration, the lead agency shall
engage in consultation with a Native American tribe that responded
to the formal notification described in Section 21080.3.1 no later
than the comment period described in Section 21091.

(2) If the lead agency has distributed a notice of preparation of
an environmental impact report, the lead agency shall engage in
consultation with a Native American tribe that responded to the
formal notification described in Section 21080.3.1 prior to the end
of the comment period described in Section 21091.

(c)

end delete

begin insert (b) end insert  As a part of the consultation process, the parties may propose
mitigation measures, including, but not limited to, those
recommended in Section 21084.3, capable of avoiding or
substantially lessening potential significant impacts to a tribal
cultural resource or alternatives that would avoid significant
impacts to a tribal cultural resource. If the Native American tribe
requests consultation regarding alternatives to the project,
recommended mitigation measures, begin insert or end insert significant effects, begin delete or ranges
of action to be analyzed, end delete the consultation shall include those topics.
The consultation may include discussion concerning the
significance of tribal cultural resources, the significance of the
project’s impacts on the tribal cultural resources, and, if necessary,
project alternatives or the appropriate measures for preservation
or mitigation that the Native American tribe may recommended
to the lead agency.

begin delete

(d)

end delete

begin insert (c) end insert  The consultation shall be considered concluded at the point
at which the authorized representative of the lead agency
participating in the consultation or the Native American tribe,
acting in good faith, concludes that mutual agreement cannot be
reached.

begin delete

(e)

end delete

begin insert (d) end insert  (1) This section does not limit the ability of a Native
American tribe or the public to submit information to the lead
agency regarding the significance of the tribal cultural resources,
the significance of the project’s impact on tribal cultural resources,
or any appropriate measures to mitigate the impact.

(2) This section does not limit the ability of the lead agency or
project proponent to incorporate changes and additions to the
project as a result of the consultation, even if not legally required.

(3) This section is not intended to replace the existing mitigation
preference for historical and archaeological resources requiring
the lead agency, when feasible, to first consider preservation in
place.

begin delete

(f)

end delete

begin insert (e) end insert  If the project proponent or its consultants participate in the
consultation, those parties shall respect the principles set forth in
this section.

begin delete

(g) It is the intent of the Legislature that the lead agency shall
engage in early and meaningful consultation with Native American
tribes that begins at the scoping period prior to the determination
of project alternatives and before the public review period for the
environmental documents. Each party shall act in good faith in
compliance with these provisions and their compliance shall be
governed by a rule of reason.

end delete begin delete

(h)

end delete

begin insert (f) 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, 2015.

SEC. 6.  

Section 21082.3 is added to the Public Resources Code,
to read:

21082.3.  

(a) Any mitigation measures agreed upon in the
consultation conducted pursuant to Section 21080.3.2 shall be
recommended for inclusion in the environmental document and
in an adopted mitigation monitoring program, if determined to
avoid or lessen the impact pursuant to paragraph (2) of subdivision
(b), and shall be fully enforceable begin delete through conditions, agreements,
or measures end delete .

(b) If a project may have a significant 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 tribal 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.

(c) (1) Any information, including, but not limited to, the
location, nature, and use of the tribal cultural resource that is
submitted by a Native American tribe 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. If the lead agency publishes any information
submitted by a Native American tribe during the consultation
process, that information shall be published in a confidential
appendix to the environmental document unless the tribe that
provided the information consents, in writing, to the disclosure of
some or all of the information to the public. This subdivision does
not 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.

(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.

(d) The lead agency may begin delete issue a permit or grant an approval end delete
begin insert certify an environmental impact report or adopt a mitigated
negative declaration end insert 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 (a) or another agreement have
been recommended to the decisionmaking body of the lead agency
as mitigation measures in 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 21080.3.2.

begin delete

(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.

end delete

(e) If 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, and if
substantial evidence demonstrates that a project will cause a
significant effect to a tribal cultural resource, the lead agency shall
consider feasible mitigation pursuant to subdivision begin delete (a) end delete begin insert (b) end insert of
Section 21084.3.

(f) 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.

(g) 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, 2015.

SEC. 7.  

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

21083.09.  

On or before January 1, 2016, 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 update Appendix G of Chapter 3 (commencing
with Section 15000) of Division 6 of Title 4 of the California Code
of Regulations to do both of the following:

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

(b) Add consideration of tribal cultural resources with relevant
sample questions.

SEC. 8.  

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

21084.2.  

(a) A project begin delete may have a significant effect on the
environment if the project has the potential of causing a substantial
adverse change to a tribal cultural resource end delete begin insert end insert begin insert with an effect that may
cause a substantial adverse change in the significance of a tribal
cultural resource is a project that may have a significant effect on
the environment end insert .

(b) 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, 2015.

SEC. 9.  

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

21084.3.  

(a)  begin delete If end delete begin insert Public agencies shall, when feasible, seek to
avoid damaging effects to any tribal cultural resource. end insert

begin insert (b) end insert begin insert   end insert begin insert If end insert the lead agency determines that a project may cause a
substantial adverse change to a tribal cultural resource, and
measures are not otherwise identified in the consultation process
provided in Section 21080.3.2, the following are examples of
mitigation measures that, if feasible, may be considered to avoid
or minimize the significant adverse impacts:

(1) Avoidance and preservation of the resources in place,
including, but not limited to, planning and 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) Treating the resource with culturally appropriate dignity
taking into account the tribal cultural values and meaning of the
resource, including, but not limited to, the following:

(A) Protecting the cultural character and integrity of the
resource.

(B) Protecting the traditional use of the resource.

(C) Protecting the confidentiality of the resource.

(3) 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.

(4) Protecting the resource.

begin delete

(5) (a) Any of the examples of treatments set forth in Section
21083.2, if they do not conflict with paragraphs (1) to (4),
inclusive.

(b) Public agencies shall, when feasible, seek to avoid damaging
effects to any tribal cultural resource.

end delete

(c) 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, 2015.

SEC. 10.  

(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.

(c) This act does not prohibit any lead agency from consulting
with nonfederally recognized Native American tribes.

SEC. 11.  

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.