BILL ANALYSIS �
AB 52
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Date of Hearing: April 15, 2013
ASSEMBLY COMMITTEE ON NATURAL RESOURCES
Wesley Chesbro, Chair
AB 52 (Gatto) - As Amended: April 8, 2013
SUBJECT : Native Americans: California Environmental Quality
Act
SUMMARY : Provides a process for a Native American tribe to
engage in the California Environmental Quality Act review
process to avoid significant effects on tribal cultural
resources.
EXISTING LAW :
1)Pursuant to CEQA
a) Requires lead agencies with the principal responsibility
for carrying out or approving a proposed project to prepare
a negative declaration, mitigated negative declaration, or
environmental impact report (EIR) for this action, unless
the project is exempt from CEQA (CEQA includes various
statutory exemptions, as well as categorical exemptions in
the CEQA guidelines).
b) Requires that any project that causes substantial
adverse change in significance of a historical resource or
a unique archaeological resources, is a "significant
effect" requiring the preparation of an EIR. The CEQA
Guidelines require a mandatory finding of significance
where a project has the potential to eliminate important
examples of the major periods of California history or
prehistory.
c) If a project may cause a significant effect to a
historical resource or a unique archaeological resources,
requires the lead agency to consider means to mitigate that
effect. The law favors leaving the resource in place or
left in an undisturbed state.
d) Requires the lead agency to balance, as applicable, the
economic, legal, social, technological, or other benefits,
including region-wide or statewide environmental benefits,
of a proposed project against its unavoidable environmental
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risks when determining whether to approve the project. If
the specific economic, legal, social, technological, or
other benefits, including region-wide or statewide
environmental benefits, of a proposed project outweigh the
unavoidable adverse environmental effects, the adverse
environmental effects may be considered "acceptable."
2)Establishes the California Native American Heritage Commission
as the state's "trustee agency" for the protection and
preservation of Native American cultural resources, sacred
sites on public land and Native American burial sites. The
Commission, among other things, facilitates consultations
between California Native tribes and local governments.
3)Prior to the adoption or any amendment of a city or county's
general plan, requires the city or county to conduct
consultations with California Native American tribes that are
on the contact list maintained by the Native American Heritage
Commission for the purpose of preserving or mitigating impacts
to places, features, and objects listed in the California
Native American Heritage Commission Sacred Lands File that are
located within the city or county's jurisdiction. From the
date on which a California Native American tribe is contacted
by a city or county pursuant to this subdivision, the tribe
has 90 days in which to request a consultation, unless a
shorter timeframe has been agreed to by that tribe.
4)Defines "consultation" as the meaningful and timely process of
seeking, discussing, and considering carefully the views of
others, in a manner that is cognizant of all parties' cultural
values and, where feasible, seeking agreement. Consultation
between government agencies and Native American tribes shall
be conducted in a way that is mutually respectful of each
party's sovereignty. Consultation shall also recognize the
tribes' potential needs for confidentiality with respect to
places that have traditional tribal cultural significance.
THIS BILL :
1)Defines "Native American tribe" as a federally recognized
Indian tribe located in California.
2)Defines "tribal cultural resource" as a resource that is any
of the following:
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a) A resource listed in, or determined to be eligible for
listing in, the California Register of Historical
Resources, a local register of historical resources, or a
tribal register of historic resources;
b) A resource identified as significant in an historical
resource survey, as specified; or
c) A resource deemed by the lead agency to be a tribal
cultural resource.
3)Specifies that tribal cultural resources include, but are not
limited to, sites, features, places, or objects with cultural
value to descendant communities, traditional culture
properties, or tribal cultural landscapes consistent with the
guidance of the federal National Park Services' Advisory
Council on Historic Preservation. A tribal cultural resource
may also be a historic resource or a unique archaeological
resource. A tribal cultural resource does not include a
resource demonstrated by clear and convincing evidence to be
historically or culturally not significant
4)Requires, pursuant to criteria developed and proposed by the
Office of Planning and Research in the CEQA Guidelines, a
public agency to find that a project may have a "significant
effect on the environment" if a proposed project may have a
significant effect on a "tribal cultural resource," including
a sacred place, or a tribal reservation or rancheria
community.
5)Requires, on or before January 1, 2015, the Office of Planning
and Research to prepare and develop, and the Secretary of the
Natural Resources Agency to certify and adopt, revisions to
the CEQA Guidelines that do all of the following:
a) Provide guidance on the implementation of the process
described below in 6) and 7).
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:
i) The preservation and protection of, or culturally
appropriate mitigation to impacts to, tribal cultural
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resources;
ii) Procedures for the protection of the confidentiality
of information concerning the specific identity,
location, character, and use of tribal cultural
resources;
iii) Procedures to facilitate the voluntary participation
of landowners to preserve and protect the specific
identity, location, character, and use of tribal cultural
resources;
iv) Procedures to facilitate the identification of, and
culturally appropriate treatment of, tribal cultural
resources.
c) Revise the initial study checklist (Appendix G of the
CEQA Guidelines) to separate the consideration of
paleontological resources from cultural resources and
updating the relevant sample questions.
6)Establishes that 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. Because Native American tribes may have
expertise in identifying, interpreting, and determining
significance of tribal cultural resources and whether an
impact of a proposed project to a tribal cultural resource is
significant, the lead agency shall consult with the relevant
Native American tribes in making a "significant effect"
determination.
7)If the lead agency determines that a project will have a
significant effect on places, features, and objects listed in
the California Native American Heritage Commission Sacred
Lands File, requires the lead agency to make its best effort
to ensure that these resources be avoided, preserved, and
protected in place or left in an undisturbed state.
8)If a Native American tribe notifies a lead agency prior to the
commencement of the CEQA public review period (which is not
less than 30 days for a draft EIR or 30 days for a negative
declaration), or if the lead agency determines that a project
may adversely affect a tribal cultural resource, including a
sacred place, or a tribal reservation or rancheria and that
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the tribe wishes to consult to resolve the potentially adverse
impacts, requires the lead agency to engage in early
consultation with the affected tribe before or during the
environmental review process. The lead agency shall provide
to the affected tribe copies of any environmental document and
its technical reports. The affected tribe may request the
Native American Heritage Commission, the State Office of
Historic Preservation, and other relevant agencies or entities
to participate in the consultation process and to seek
mutually agreeable methods of avoiding or otherwise resolving
the potential adverse effects. As part of the consultation
process, the parties may propose mitigation measures capable
of avoiding or substantially lessening potential impacts to a
tribal cultural resource, including a sacred place, or a
tribal reservation or rancheria. Any binding agreement
reached in this consultation shall be incorporated as
mitigation measures in the final environmental document. If
no agreement is reached, or if an affected tribe identifies
significant effects on a tribal cultural resource, including a
sacred place, or the affected tribe's reservation or rancheria
during the public comment period, the environmental document
shall include both of the following analyses:
a) Whether the proposed project has a significant impact on
an identified tribal cultural resource, including a sacred
place, or a tribal reservation or rancheria.
b) Whether the alternatives or mitigation measures proposed
by the parties avoid or substantially lessen the impact to
the identified cultural resource, including a sacred place,
or a tribal reservation or rancheria.
9)Prohibits any information, including, but not limited to, the
location, nature, and use of the place, feature, site, or
object that is submitted by an affected tribe regarding a
tribal cultural resource, including a sacred place, to be
included in the EIR or otherwise disclosed by the lead agency
or any other public agency to the public without the prior
consent of the tribe that provided the information. The
submitted information shall be published in a confidential
appendix to the environmental document. This bill does not
prohibit the confidential exchange of the submitted
information between public agencies that have lawful
jurisdiction over the preparation of the environmental
document.
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10)Authorizes the lead agency and any responsible agency for the
proposed project to issue a permit for a project with a
significant impact on an identified tribal cultural resource,
including a sacred place, or a tribal reservation or rancheria
only if one of the following occurs:
a) Agreed on mitigation measures have been incorporated
into the final environmental document;
b) The affected tribe accepts the mitigation measures
proposed in the draft or final environmental document;
c) The affected tribe has received notice of, and has
failed to comment on, the proposed mitigation measures
during the comment period and any public hearing required
by or held pursuant to CEQA; or
d) The lead agency determines that there is no legal or
feasible way to accomplish the projects purpose without
causing a significant effect upon the sacred place, that
all feasible mitigation or avoidance measures have been
incorporated, and that there is an overriding
environmental, public health, or safety reason based on
substantial evidence presented by the lead agency that the
project should be approved. These findings may be made
only after the lead agency provides 30 days' notice of
hearing to the affected tribe and an opportunity for the
affected tribe to review and comment on the proposed
finding.
11)If a mutual agreement is not reached and if it can be
demonstrated that a project will cause significant effect to a
tribal cultural resource, including a sacred place, or a
tribal reservation or rancheria, authorizes the lead agency to
require all reasonable efforts to be made to treat the tribal
cultural resource, including a sacred place, or a tribal
reservation or rancheria in a culturally sensitive manner.
Examples of culturally sensitive treatment include, but are
not limited to, the following:
a) Planning construction to avoid those resources or
places;
b) Deeding resources or places into permanent conservation
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easements;
c) Planning parks, greenspace, or other open space to
incorporate those resources or places; or
d) Adopting culturally appropriate mitigation measures that
take into account the tribal value and meaning of the
resource or place.
12)In determining the presence of tribal cultural resources,
including sacred places, or a tribal reservation or rancheria
community, requires the lead agency to use the most current
and up-to-date technology, research, and resources including,
but not limited to, tribal, local, state, and national
registers, the Native American Heritage Commission Sacred
Lands File, mapping and Geographic Information System data,
current cultural resources reports, foot surveys, ethnographic
assessment, noninvasive study techniques, and information
submitted by an affected tribe. The lead agency shall make all
reasonable efforts and complete the research and
identification efforts prior to the release of the draft
environmental document and, in any case, no later than the
finalization of the environmental document.
13)Does not intend, and may not be construed, to do either of
the following:
a) Prohibit any person or entity from seeking any damages
or injunction authorized by law; or
b) 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.
FISCAL EFFECT : Unknown
COMMENTS :
1)The Current System is Broken. Last legislative session, the
Legislature considered two bills (AB 742 (Lownethal) and SB
833 (Vargas)) that proposed to stop two large-scale projects
planned on or near Native American sacred sites at the
"eleventh hour."
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According to the Senate Natural Resources and Water Committee
analysis, AB 742 proposed to prohibit the permitting of a 155
acre rock quarry in Riverside County planned to produce up to
5 million tons of aggregate each year for 75 years. The
facility would have included the quarry, concrete and asphalt
mixing, and various other ancillary activities. The proposed
pit would have been approximately one mile long and 1,000 feet
deep. The project proposed to obtain aggregate from rock that
would have been crushed after explosives were blasted to
loosen the material.
The quarry, however, would have been located at the location
that the Pechanga Tribe of Luiseno Peoples considers the most
important sacred place, the place considered to be the Place
of Creation.
The bill was introduced after the project proponents had
drafted an 8,500 page draft environmental report and spent
several years following the permitting process. The tribe
sponsoring the bill clearly did not feel that its concerns
were being adequately considered during the planning process.
Recognizing the problems with the way tribal issues are
treated as part of the permitting process, the committee
analysis for AB 742 suggested that the author consider a more
comprehensive statewide solution to the issue posed in the
bill. The analysis further stated that "[s]uch a solution
could include an improved local or regional planning process
that could include stronger protections for Native American
sacred sites?" The bill was sent to the Senate Rules
Committee, where it ultimately died. A few months later, the
Pechanga Tribe purchased the property and settled its lawsuit
with the mining company. The deal cost the tribe over $20
million; the tribe paid $3 million for the property and
another $17.35 million as part of a separate agreement to end
the quarry dispute.
SB 833 proposed to stop the development of a landfill and
recycling center located at Gregory Canyon in San Diego
County. The entire landfill project comprises of
approximately 308 acres. The proposed landfill, which has an
estimated 30 year life, will add approximately 30 million tons
of landfill capacity to the solid waste disposal system in San
Diego County.
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Located in Gregory Canyon is Gregory Mountain, called "Chokla"
by the Luise�o. The mountain is one of the most spiritually
important places in the Luise�o world. It is believed to be
one of the residing places of "Taakwic," a powerful and feared
spirit that is the guardian spirit of many Shoshonean shamans.
The entire mountain, including the area within the proposed
landfill boundary, is considered an important place for
fasting, praying, and conducting ceremonies by the Luise�o.
As in the case with the quarry project in AB 742, the affected
tribe did not feel like its concerns were adequately handled
through the planning process.
SB 833 was ultimately vetoed by the Governor, who felt
compelled to let the project go forward because of local
support and adequate environmental planning. The Governor's
veto message expressed the angst he felt over his decision by
stating the following:
I am deeply concerned about the objections raised with
respect to the sacred site, but I don't believe it is
appropriate for the Legislature to now intervene and
overturn this hard fought local land-use decision.
This dispute pains me given the unspeakable injustices
the native peoples have endured and the profound
importance of their spirituality and connection to the
land. There's no question that more thought needs to
be given to how we resolve this inherently difficult
decision and to find ways for native peoples and their
fellow Californians to coexist in an inexorably
modernizing world.
As indicated in the AB 742 committee analysis and the
Governor's SB 833 veto message, the current planning process
needs reform to provide stronger protections for Native
American cultural resources. Without such reform, we may see
more bills in the future that attempt to defeat projects after
they have gone through a lengthy and costly permitting process
(and in comes cases, lawsuits) simply because an effected
tribe was not brought into the planning process in a
meaningful way. The purpose of this bill is to reform the
planning process by bringing tribes into the CEQA process in a
manner that will avoid legislation at the eleventh hour to
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kill a project.
2)How AB 52 Works. The author's office has neatly described the
AB 52 process as follows:
STEP 1: (1) A federally-recognized tribe must notify a lead
agency that they would like to be consulted on projects. For
example, projects within a certain agency's jurisdiction or a
specific geographic area, or (2) a lead agency may identify a
tribe that may want to be consulted on a development project.
STEP 2: The lead agency must share any environmental documents
or technical reports with the tribe.
The lead agency shall make all reasonable efforts and complete
the research and identification of any tribal cultural
resources prior to release of the draft environmental
documents and no later than the finalization of the
environmental documents.***
STEP 3: The lead agency must consult with the tribe before or
during the environmental review process.
The tribe may request that the Native American Heritage
Commission, the State Office of Historic Preservation, and
other relevant agencies or entities participate in the
consultation. As part of the consultation, parties may propose
mitigation measures capable of avoiding or lessening impacts
to tribal cultural resources. Any binding agreement reached
in consultation shall be incorporated as mitigation measures
in the final EIR.
STEP 4: Regardless of whether an agreement with the tribe was
reached, the environmental document shall include (1) an
analysis on whether the project has a significant impact on a
tribal cultural resource, and (2) an analysis on whether the
alternatives or mitigation measures proposed by the parties
avoid or substantially lessen impacts to tribal cultural
resources.
STEP 5: If an agreement is not reached with the tribes, a lead
agency may still require that "all reasonable efforts" be made
to treat the tribal cultural resources in a "culturally
sensitive manner." This may include avoidance of those
resources where possible, deeding resources into conservation
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easements, setting aside the resources in greenspaces or
parks, or adopting culturally appropriate mitigation measures.
STEP 6: If a tribe did not ask for consultation, but
identifies significant concerns during public commentary,
follow STEP 4.
STEP 7: If no agreement with the tribes is reached, the lead
agency can still move forward with a project if (1) they
determine there is no legal or feasible way to accomplish the
projects purpose without causing a significant effect upon the
tribal cultural resources; (2) All feasible mitigation or
avoidance measures have been incorporated; and (3) The lead
agency makes a statement of overriding consideration that
there is an overriding environmental, public health, or safety
reason based on substantial evidence that the project should
be approved.
**Lead agency must give 30 days' notice of hearing to the
tribes to review and comment on the findings
***In determining the presence of tribal cultural resources,
the lead agency shall use the most current and up-to-date
technology, research and resources, including tribal, local,
state, and national registers, the Native American Heritage
Commission Sacred Lands File, mapping and Geographic
Information System data, current cultural resources reports,
foot surveys, ethnographic assessments, noninvasive study
techniques, and information submitted by affected tribes.
***Any information on sacred sites or tribal cultural
resources submitted by the tribe to the lead agency are
confidential and may not be published in the EIR.
REGISTERED SUPPORT / OPPOSITION :
Support
California Tribal Business Alliance
Pechanga Indian Reservation
Sierra Club California
Opposition
American Council of Engineering Companies
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California Building Industry Association
California Business Properties Association
California Chamber of Commerce
Large-scale Solar Association
Rural County Representatives of California
Analysis Prepared by : Mario DeBernardo / NAT. RES. / (916)
319-2092