BILL ANALYSIS Ķ
AB 52
Page 1
Date of Hearing: June 24, 2013
ASSEMBLY COMMITTEE ON NATURAL RESOURCES
Wesley Chesbro, Chair
AB 52 (Gatto) - As Amended: May 30, 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 (CEQA) review
process to avoid significant effects on tribal cultural
resources.
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 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 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
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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.
THIS BILL:
1)Requires a lead agency to consult with affected Native
American tribes prior to determining whether a negative
declaration or environmental impact report (EIR) is required
for a project pursuant to CEQA.
2)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.
3)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.
4)Add a "tribal cultural resource" to the definition of a
"unique archaeological resource" under CEQA.
5)Establishes that a project may have a significant effect on
the environment if the project has the potential to cause 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, requires the lead agency to consult with the
relevant Native American tribes in making a "significant
effect" determination.
6)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.
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7)Authorizes a lead agency and any responsible agency for a
proposed project to issue a permit for a project with a
significant impact on an identified tribal cultural resource
if any of the following occurs:
a) There has been meaningful consultation between the
affected Native American tribes and the lead agency; the
lead agency has given major consideration to preventing
impacts to tribal cultural resources; and the lead agency
has demonstrated best efforts to protect and preserve
sacred places in a culturally appropriate manner with
dignity so as not to further debilitate tribal religious
practices, traditions, and identities;
b) The affected tribe has been given notice and failed to
comment on the proposed mitigation measures; or
c) The lead agency determines that there is no legal or
feasible way to accomplish the projects purpose without
causing a significant effect upon a sacred place; that all
feasible mitigation or avoidance measures have been
incorporated; and that specific overriding economic, legal,
social, technological, or other benefits of the project
outweigh the significant effects on the environment.
8)Require the state lead agency, prior to completing an EIR, to
consult with, and obtain comments from, affected Native
American tribes.
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 :
Author's Intent. According to the author, existing laws lack a
formal process for tribes to be involved in the CEQA process as
tribal governments. CEQA projects that impact tribal resources
have experienced uncertainty and delays as lead agencies attempt
to work with tribes to address impacts on tribal resources.
With this bill, it is the author's intent to establish certainty
and standards for assessment and treatment of tribal sacred
places and cultural resources during the CEQA process.
Examples of the Problem. Last legislative session, the
Legislature considered two bills (AB 742 (Lowenthal) and SB 833
(Vargas)) that proposed to stop two large-scale projects planned
on or near Native American sacred sites.
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
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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 is 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
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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 some
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 projects.
May 30th Amendments. This bill was heard and passed by the
Assembly Natural Resources Committee on April 15, 2013. The
bill was amended by the author on May 30, 2013 to deal with the
following issues raised by the opponents:
1)With regard to the CEQA consultation process for tribes, the
opponents objected to the tribes' ability to decide that
mitigation measures put forward by the lead agency are
inadequate. The opponents referred to this as the "tribal
veto." The May 30th amendments remove the "tribal veto"
completely, but require "meaningful consultation."
2)With regard to the definition and standards for assessment and
treatment of sacred places and tribal cultural resources, the
opponents were concerned that any tribe can claim any land as
a sacred site. The May 30th amendments strike the ability for
tribes to have their own "register of historic resources,"
leaving only sites that have been registered with the
California Register of Historical Resources or a local
register of historical resources, or sites that a lead agency
deems a tribal cultural resource.
3)With regard to the lead agency's ability to approve a project
using a statement of overriding consideration, the bill would
have precluded an agency to consider factors such as economic,
legal, social, technological, or other benefits, which are in
current CEQA law. The May 30th amendments allow these factors
to be considered.
4)With regard to the scope of "tribal cultural resource," the
opponents have objected to including reservations and
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rancherias. The opponents believe that effects on
reservations and racherias can be dealt with through existing
provisions in CEQA regarding effects on communities. The
author's office has stated to the committee that the May 30th
amendments strike all reservation and rancheria language in
the bill. While the amendments delete this language in
several areas of the bill, it is still included in lines 20,
21, 23 and 24 on page 4; lines 29 and 30 on page 6; and lines
10, 11, 29, 30, 38, and 39 on page 12.
REGISTERED SUPPORT / OPPOSITION :
Support
California Tribal Business Alliance
Habematolel Pomo of Upper Lake
Pala Band of Mission Indians
Viejas Band of Kumeyaay Indians
Opposition
Associated Builders and Contractors of California
American Council of Engineering Companies
California Association of Realtors
California Building Industry Association
California Business Properties Association
California Chamber of Commerce
California Manufacturers and Technology Association
Independent Energy Producers
Large-scale Solar Association
Analysis Prepared by : Mario DeBernardo / NAT. RES. / (916)
319-2092