BILL ANALYSIS Ķ
AB 52
Page 1
ASSEMBLY THIRD READING
AB 52 (Gatto)
As Amended April 19, 2013
Majority vote
NATURAL RESOURCES 5-0 APPROPRIATIONS 12-0
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|Ayes:|Chesbro, Muratsuchi, |Ayes:|Gatto, Bocanegra, |
| |Skinner, Stone Williams | |Bradford, |
| | | |Ian Calderon, Campos, |
| | | |Eggman, Gomez, Hall, |
| | | |Ammiano, Pan, Quirk, |
| | | |Weber |
| | | | |
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SUMMARY : Provides a process for a Native American tribe to
engage in the California Environmental Quality Act (CEQA) review
process to avoid significant effects on tribal cultural
resources. Specifically, this bill:
1)Requires, pursuant to criteria developed and proposed by the
Office of Planning and Research (OPR) 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.
2)Requires, on or before January 1, 2015, OPR to prepare and
develop, and the Secretary of the Natural Resources Agency to
certify and adopt, revisions to the CEQA Guidelines that help
preserve and protect, or mitigate impacts to, tribal cultural
resources as specified.
3)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"
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determination.
4)Requires the lead agency to engage in early consultation with
the affected tribe before or during the environmental review
process to resolve the potentially adverse impacts of a
project if a Native American tribe notifies a lead agency
prior to the commencement of the CEQA public review period or
if the lead agency determines that a project may adversely
affect a tribal cultural resource.
5)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 project's 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.
6)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
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require all reasonable efforts to be made to treat the tribal
cultural resource.
EXISTING LAW :
1)Requires, pursuant to CEQA, a lead agency 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).
2)Requires, pursuant to CEQA, 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. If a project may cause a significant effect to a
historical resource or a unique archaeological resources, CEQA
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.
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.
FISCAL EFFECT : According to the Assembly Appropriations
Committee, additional costs to OPR and the Natural Resources
Agency in the hundreds of thousands of dollars to expand the
CEQA guidelines. OPR is scheduled to begin updating CEQA
guidelines in 2014.
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COMMENTS : 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."
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.
A major problem with the quarry is that it would have been
located in an area that the Pechanga Tribe of Luiseņo 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.
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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.
Located in Gregory Canyon is Gregory Mountain, called "Chokla"
by the Luiseņo. The mountain is one of the most spiritually
important places in the Luiseņo 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 Luiseņo.
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
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through a lengthy and costly permitting process (and in comes
cases, lawsuits) simply because an affected 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 kill a project.
Analysis Prepared by : Mario DeBernardo / NAT. RES. / (916)
319-2092
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