BILL ANALYSIS                                                                                                                                                                                                    Ó



                                                                 AB 52
                                                                       

                      SENATE COMMITTEE ON ENVIRONMENTAL QUALITY
                              Senator Jerry Hill, Chair
                              2013-2014 Regular Session
                                           
           BILL NO:    AB 52
           AUTHOR:     Gatto
           AMENDED:    June 16, 2014
           FISCAL:     Yes               HEARING DATE:     June 25, 2014
           URGENCY:    No                CONSULTANT:       Joanne Roy
            
           SUBJECT  :    CALIFORNIA ENVIRONMENTAL QUALITY ACT (CEQA):   
                          NATIVE AMERICAN TRIBES


                 TOPIC                                          PAGE  
                  Summary                                                
                1    
                   o         Existing Law                                 
                     1
                   o         This Bill                                     
                                   5
                  Comments                                               
                9
                   o         Background                                  
                     10
                   o         Issues Within AB 52 Language                 
                     13
                   o         Broader Policy Issues Related to AB 52    25
                   o         Options For the Committee To Consider   27
                   o         Past Legislation                            
                     30
                  List of Support & Opposition                          
                32   


            SUMMARY  :    
           
            Existing law  :

           1) Under the California Environmental Quality Act (CEQA):

              a)    Requires lead agencies with the principal  
                 responsibility for carrying out or approving a proposed  









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                 discretionary project to prepare a negative declaration  
                 (ND), mitigated negative declaration (MND), 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).  (Public Resources  
                 Code (PRC) §21000 et seq.).  If there is substantial  
                 evidence, in light of the whole record before a lead  
                 agency, that a project may have a significant effect on  
                 the environment, the lead agency must prepare a draft  
                 EIR.  (CEQA Guidelines §15064(a)(1), (f)(1)).

              b)    Prior to or during preparation of an EIR, authorizes  
                 the lead agency to consult with any person,  
                 organization, or government agency it believes will be  
                 concerned with the environmental effects of a project.   
                 (Guidelines §15083).  

              c)    Requires the lead agency to work with the most likely  
                 descendant as designated by the Native American Heritage  
                 Commission (NAHC) when an initial study identifies the  
                 existence of, or probable likelihood of, Native American  
                 human remains within the project site.  (Guidelines  
                 §15064.5(d)).

              d)    Defines "significant effect on the environment" as "a  
                 substantial, or potentially substantial, adverse change  
                 in the environment."  (PRC §21068).

              e)    Defines "environment" as "the physical conditions  
                 which exist within the area which will be affected by a  
                 proposed project including land, air, water, minerals,  
                 flora, fauna, ambient noise, and objects of historic and  
                 aesthetic significance.  The area involved shall be the  
                 area in which significant effects would occur either  
                 directly or indirectly as a result of the project.  The  
                 'environment' includes both natural and man-made  
                 conditions."  (Guidelines §15360). 

              f)    Provides that any information about the specific  
                 location of archaeological sites and sacred lands must  
                 not be included in the environmental review document  
                 circulated for public review.  (Guidelines §15120(d)).









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              g)    Directs the lead agency on a project to determine  
                 whether the project may have a significant effect on  
                 archaeological resources.  If the lead agency determines  
                 that a project may have a significant effect on unique  
                 archaeological resources, then requires the EIR to  
                 address those issues. The lead agency need not address  
                 an issue of nonunique archaeological resources.   (PRC  
                 §21083.2).

              h)    Provides that an archaeological resource is "unique"  
                 if it:

                 i)         Is associated with an event or person of  
                      recognized significance in California or American  
                      history or recognized scientific importance in  
                      prehistory;

                 ii)        Can provide information of demonstrable  
                      public interest and is useful in addressing  
                      scientifically consequential and reasonable  
                      research questions; 

                 iii)       Has a special or particular quality such as  
                      oldest, best example, largest, or last surviving  
                      example of its kind.  (PRC §21083.2).

              i)    Provides that a project, which may have a significant  
                 adverse change in the significance of a historical  
                 resource, is a project that may have a significant  
                 effect on the environment.  Provides requirements for  
                 what is considered a historical resource for purposes of  
                 an environmental review.  (PRC §21084.1, Guidelines  
                 §15064.5). 

           2) Prohibits public agencies from interfering with Native  
              American religious practices, sites, or shrines unless  
              there is a clear and convincing showing that public  
              interest and necessity require such interference and  
              specifies that it is not intended to limit CEQA  
              requirements.  (PRC §5097.9).

           3) Establishes NAHC, made up of nine members appointed by the  









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              Governor, five of whom must be elders, traditional people,  
              or spiritual leaders of California Native American tribes.   
              Requires NAHC to identify and catalog places of special  
              religious or social significance to Native Americans, and  
              known graves and cemeteries of Native Americans on private  
              lands, and to perform other duties regarding the  
              preservation and accessibility of sacred sites and burials  
              and the disposition of Native American human remains and  
              burial items.   (PRC §5097.91 et seq.).

           4) Requires NAHC to investigate the effect of proposed actions  
              by a public agency if such action may cause severe or  
              irreparable damage to a Native American sacred site located  
              on public property or may bar appropriate access to the  
              sacred site by Native Americans.  Authorizes NAHC to  
              recommend mitigation measures for consideration by the  
              agency if NAHC finds, after a public hearing, that the  
              proposed action would result in damage or interference.   
              Allows NAHC to ask the Attorney General to take action if  
              the agency fails to accept the mitigation measures.  (PRC  
              §5097.97).

           5) Includes a California Native American tribe, which is on  
              the contact list maintained by NAHC, in the definition of  
              "person" to whom notice of public hearings must be sent by  
              local governments for provisions under the Planning and  
              Zoning Law, Title 7 of the Government Code.  (Government  
              Code (GOV) §65092).

           6) Requires local governments to conduct meaningful  
              consultation with California Native American tribes on the  
              contact list maintained by the NAHC prior to the adoption  
              or amendment of a city or county general plan for the  
              purpose of protecting cultural places on lands affected by  
              the proposal.  (GOV §§65352.3, 65352.4). 

           7) For purposes of preparation, adoption, and amendment of a  
              General Plan, 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.  Requires consultation between  
              government agencies and Native American tribes to be  









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              conducted in a way that is mutually respectful of each  
              party's sovereignty.  Requires consultation to recognize  
              the tribes' potential needs for confidentiality with  
              respect to places that have traditional tribal cultural  
              significance.  (GOV §65352.4).  

           8) Requires local governments to conduct meaningful  
              consultation with California Native American tribes on the  
              contact list maintained by NAHC for the purpose of  
              protecting cultural places located within open space.   
              Includes protection of Native American cultural places as  
              an acceptable designation of open space.  (GOV §§65560,  
              65562.5).

           9) Exempts from disclosure - records of Native American  
              graves, cemeteries, and sacred places, and records of  
              Native American places, features, and objects as specified  
              that are maintained by NAHC.  (GOV §6254(r)).

           10)Enacts the Native American Historic Resource Protection  
              Act, which establishes as a misdemeanor, punishable by up  
              to a $10,000 fine and/or imprisonment, the unlawful and  
              malicious excavation, removal, or destruction of Native  
              American archeological or historic sites on public or  
              private lands.  Exempts certain legal acts by landowners.   
              (PRC §5097.993-§5097.994).


            This bill  :  

           1) Makes several findings and declarations.

           2) Defines "Native American tribe" as a federally recognized  
              Indian tribe located in California.

           3) Defines "Tribal Cultural Resources (TCRs)" to mean either  
              of the following:

              a)    Sites, features, places, and objects with cultural  
                 value to descendant communities, as those communities  
                 are described in the 1990 Guidelines for Evaluating and  
                 Documenting Traditional Cultural Properties, National  
                 Register Bulletin 38, National Register of Historic  









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                 Places, National Park Service, Washington, D.C., or  
                 cultural landscapes that are consistent with the  
                 guidance of the U.S. National Park Service and the  
                 federal Advisory Council on Historic Preservation, that  
                 are any of the following:

                 i)         Included in the California Register of  
                      Historical Resources.
                 ii)        Included in a local register of historical  
                      resources as defined in §5020.1(k).
                 iii)       A resource deemed to be significant pursuant  
                      to criteria set forth in §5024.1(c).

              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 NAHC's Sacred Lands File pursuant  
                      to §5097.94 or §5097.96; or,

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

              c)    Provides that the fact that a resource is not  
                 included in the California Register of Historic Places,  
                 not listed in NAHC's Sacred Lands File, not included in  
                 a local register of historical resources, not deemed  
                 significant pursuant to criteria set forth in  
                 §5024.1(c), or not deemed eligible pursuant to criteria  
                 set forth in §5024.1(g) for listing in the California  
                 Register of Historic Places shall not preclude a lead  
                 agency from determining whether the resource is a TCR  
                 for the purposes of CEQA.

              d)    Provides that a historical resource described in  
                 §21084.1, a unique archaeological resource as defined in  
                 §21083.2(g), or a "nonunique archaeological resource" as  
                 defined in §21083.2(h) may also be a TCR if it conforms  
                 with the criteria of (a) or (b) above, or the lead  
                 agency determines the resource to be a TCR pursuant to  
                 (c) above.









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           4) Provides that Native American tribes, which are  
              traditionally and culturally affiliated with a geographic  
              area, may have expertise concerning TCRs.

           5) Authorizes Native American tribes to assist the lead agency  
              in identifying, interpreting, and determining significance  
              of TCRs and whether an impact of a proposed project to a  
              TCR is significant.

           6) Creates the first of two consultation processes, which  
              requires the lead agency to consult with a Native American  
              tribe regarding the appropriate level of environmental  
              review for a project if:  (1) the tribe requests the lead  
              agency to be informed through formal notification of  
              proposed projects in that geographic area; and, (2) the  
              tribe responds within 30 days of receipt of the formal  
              notification and requests consultation.

              a)    Requires NAHC to assist the lead agency in  
                 identifying traditionally and culturally affiliated  
                 Native American tribes.  

              b)    Requires the lead agency's formal notification to  
                 tribes that have requested notice must be accomplished  
                 by means of at least one written notification that  
                 includes information about the project and the project  
                 location and description.

           7) Defines "consultation" as 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 tribes must be  
              conducted in a way that is mutually respectful of each  
              party's sovereignty, tribal cultural values, and  
              confidentiality.

           8) Creates a second consultation process authorizing the  
              parties to propose mitigation measures capable of avoiding  
              or substantially lessening potential significant impacts to  
              a TCR or alternatives that would avoid significant impacts  
              to a TCR.  










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              a)    If the Native American tribe requests consultation  
                 regarding alternatives to the project, recommended  
                 mitigation measures, or significant effects, requires  
                 the second consultation to include those topics.

              b)    Authorizes this consultation to include discussion  
                 concerning the projects impacts on TCRs, and, if  
                 necessary, project alternatives or the appropriate  
                 measures for preservation or mitigation that the tribe  
                 may recommend to the lead agency.

              c)    Provides that the consultation has concluded when the  
                 lead agency or tribe, acting in good faith, concludes  
                 that mutual agreement cannot be reached.

              d)    Provides that this consultation: 

                 i)         Does not limit the tribe or public to submit  
                      information to the lead agency regarding the  
                      significance of the TCRs, the significance of the  
                      project's impact on the TCRs, or appropriate  
                      measures to mitigate the impact.

                 ii)        Does not limit the ability of the lead agency  
                      or project proponent to incorporate changes and  
                      additions to the project as a result of  
                      consultation, even if not legally required.

                 iii)       Is not intended to replace existing  
                      mitigation preference for historical and  
                      archaeological resources requiring the lead agency,  
                      when feasible, to first consider preservation in  
                      place.

           9) Requires any mitigation measures agreed upon in the second  
              consultation to be recommended for inclusion in the  
              environmental document and in an adopted mitigation  
              monitoring program, if determined to avoid or lessen the  
              impact and shall be fully enforceable.

           10)If a project may have a significant impact on a TCR,  
              requires the lead agency's environmental document to  
              discuss both of the following:









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              a)    Whether the proposed project has a significant impact  
                 on a TCR.

              b)    Whether feasible alternatives or mitigation measures,  
                 including those measures that may be agreed to, avoid or  
                 substantially lessen the impact to the identified TCR.

           11)Prohibits information submitted by a tribe during the  
              consultation processes from being included in the  
              environmental document or otherwise disclosed by the lead  
              agency or other public agency to the public without prior  
              consent of the tribe.  If the lead agency does publish such  
              information, requires that it shall be in a confidential  
              appendix to the environmental document unless the tribe  
              consents to disclosure.  The information may be described  
              in general terms in the environmental document.

           12)Authorizes the lead agency to certify an EIR or adopt an  
              MND for a project with a significant impact on an  
              identified TCR only if one of the following occurs:

              a)    Mitigation measures agreed to during consultation 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;

              b)    The tribe accepts the mitigation measures proposed in  
                 the draft or final environmental document and mitigation  
                 monitoring and reporting program; or,

              c)    The second consultation between the tribes and the  
                 lead agency occurred.

           13)Requires the lead agency to consider a specified list of  
              mitigation measures if the mitigation measures recommended  
              by the staff of the lead agency as a result of the  
              consultation 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 TCR.









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           14)Provides that a project with an effect that may cause a  
              substantial adverse change in the significance of a TCR is  
              a project that may have a significant effect on the  
              environment.

           15)Requires public agencies, when feasible, to seek to avoid  
              damaging effects to a TCR.

           16)If the lead agency determines that a project may cause a  
              substantial adverse change to a TCR, and measures are not  
              identified in the second consultation process, provides a  
              list of examples of mitigation measures that may be  
              considered to avoid or minimize significant adverse  
              impacts.

           17)Provides that this act does not prohibit any Native  
              American tribe or non-federally recognized tribe from  
              participating in CEQA on any issue of concern as an  
              interested person, citizen, or member of the public.

           18)Provides that this act does not prohibit any lead agency  
              from consulting with non-federally recognized Native  
              American tribes.

           19)On or before January 1, 2016, requires the Office of  
              Planning and Research to prepare and develop revisions to  
              the Guidelines Appendix G to:

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

              b)    Add consideration of TCRs with relevant sample  
                 questions.


            COMMENTS  :
           
            1) Purpose of Bill  .  According to the author, "The premise  
              that one culture's sacred sites and historical landmarks  
              aren't given the same value as another culture basically  
              amounts to cultural imperialism.  California has the most  









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              tribes in the nation, and we need to treat these areas with  
              the dignity and respect they deserve."  (Indian Country  
              Today Media Network, "California Sacred Sites Bill Would  
              Boost Protections but Exclude Some 50 Tribes," March 6,  
              2014.)

           The author further states, "?CEQA projects which impact tribal  
              resources have experienced delays and inconsistencies as  
              lead agencies attempt to work with tribes to address  
              impacts on tribal resources.  Today CEQA projects are still  
              being processed with no clarification as to a tribe's  
              involvement concerning environmental impacts that affect  
              tribes.  This leaves applicant [sic] agencies without  
              certainty as to the timing and viability of projects.  The  
              inclusion of tribes in the CEQA process lacks uniformity,  
              statewide, often leaving tribes, local agencies and  
              developers frustrated with the process."  The author states  
              that this bill seeks to achieve the following goals:  set  
              forth a process and scope that clarifies tribal government  
              involvement in the CEQA process, including specific  
              requirements and timing for tribal participation and  
              preparation of documents and information; amend CEQA to  
              include definition and standards for assessment and  
              treatment of sacred places and TCRs; preserve existing  
              confidentiality of cultural resources information; and  
              preserve the lead agency's ability to approve using a  
              statement of overriding consideration.

            Support Statement  .  Supporters state, "Lack of consideration  
              of tribal sacred places and cultural resources has had a  
                                                         detrimental effect on many tribes in California.  This bill  
              recognizes that tribes have a right to consult on the  
              impacts of projects that take place outside their given  
              trust lands and reservation boundaries.  Morever, due to  
              the termination era many California tribes are still  
              landless.  We are well aware of the lengthy, costly,  
              arduous and often politically charged fee-to-trust process;  
              the land base restored likely will never encompass their  
              original indigenous boundaries or measure up to the lands  
              they once possessed.  Thus aboriginal lands are frequently  
              under private control and outside tribal boundaries."

            Background









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            2) Background on CEQA  .  
            
               a)    Overview of the CEQA Process  .  CEQA provides a  
                 process for evaluating the environmental effects of a  
                 project, and includes statutory exemptions, as well as  
                 categorical exemptions in the CEQA Guidelines.  If a  
                 project is not exempt from CEQA, an initial study is  
                 prepared to determine whether a project may have a  
                 significant effect on the environment.  If the initial  
                 study shows that there would not be a significant effect  
                 on the environment, the lead agency must prepare a  
                 negative declaration.  If the initial study shows that  
                 the project may have a significant effect on the  
                 environment, the lead agency must prepare an EIR.

              Generally, an EIR must accurately describe the proposed  
                 project, identify and analyze each significant  
                 environmental impact expected to result from the  
                 proposed project, identify mitigation measures to reduce  
                 those impacts to the extent feasible, and evaluate a  
                 range of reasonable alternatives to the proposed  
                 project.  Prior to approving any project that has  
                 received environmental review, an agency must make  
                 certain findings.  If mitigation measures are required  
                 or incorporated into a project, the agency must adopt a  
                 reporting or monitoring program to ensure compliance  
                 with those measures.

              If a mitigation measure would cause one or more significant  
                 effects in addition to those that would be caused by the  
                 proposed project, the effects of the mitigation measure  
                 must be discussed but in less detail than the  
                 significant effects of the proposed project.

               b)    What Is Analyzed In an Environmental Review  ?   
                 Pursuant to CEQA, an environmental review analyzing the  
                 significant direct and indirect environmental impacts of  
                 a proposed project, may include water quality, surface  
                 and subsurface hydrology, land use and agricultural  
                 resources, transportation and circulation, air quality  
                 and greenhouse gas emissions, terrestrial and aquatic  
                 biological resources, aesthetics, geology and soils,  









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                 recreation, public services and utilities such as water  
                 supply and wastewater disposal, and cultural resources  
                 such as historical and archaeological resources.  As  
                 noted above, CEQA defines "environment" as the physical  
                 conditions which exist within the area which will be  
                 affected by a proposed project.

               c)    CEQA:  Historical and Archeological Resources  .  The  
                 environmental review must identify and evaluate the  
                 potential for a project to adversely affect  
                 paleontological, historical, and archaeological  
                 resources. The resources of concern include, but are not  
                 limited to, fossils, prehistoric and historic artifacts,  
                 burials, sites of religious or cultural significance to  
                 Native American groups, and historic structures.  CEQA  
                 provides special rules for determining whether impacts  
                 on historical and archaeological resources are  
                 potentially significant.  The Guidelines specify that a  
                 substantial adverse change in the significance of an  
                 historical resource is a significant effect requiring  
                 preparation of an EIR.  

              In determining if there is a significant impact to a  
                 historic resource, there is a two-part test:  (1) Is the  
                 resource "historically significant"; and, (2) Would the  
                 project cause a substantial adverse change in the  
                 significance of the resource?

              The rules relating to historic resources are defined  
                 broadly to include archeological resources.  If an  
                 archaeological site meets the definition of historical  
                 resource, then it may be treated like any other  
                 historical resource.  If the archaeological site does  
                 not fall within the definition of historical resource,  
                 but does meet the definition of a "unique archaeological  
                 resource" (PRC §21083.2), then the site may be treated  
                 in accordance with the specific provisions for such  
                 resources.  However, if an archaeological site is  
                 neither a "unique" archaeological resource nor a  
                 historical resource, any effect to it shall not be  
                 considered significant.

               d)    Early Consultation and Scoping  .   Prior to or during  









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                 preparation of an EIR, the lead agency may consult with  
                 any person, organization, or government agency it  
                 believes will be concerned with the environmental  
                 effects of a project (Guidelines §15083).  According to  
                 the CEQA Guidelines, early consultation "solves many  
                 potential problems that would arise in more serious  
                 forms later in the review process."  The Guidelines also  
                 provide that scoping "has been helpful to agencies in  
                 identifying the range of actions, alternatives,  
                 mitigation measures, and significant effects to be  
                 analyzed in depth in an EIR and in eliminating from  
                 detailed study issues found not to be important."  The  
                 Guidelines further note that scoping "has been found to  
                 be an effective way to bring together and resolve the  
                 concerns of affected federal, state, and local agencies,  
                 the proponent of the action, and other interested  
                 persons including those who might not be in accord with  
                 the action on environmental grounds."  
               
            3) Background:  What Does "Traditionally and Culturally  
              Affiliated" Mean  ?  This bill requires consultation with  
              Native American tribes that are traditionally and  
              culturally affiliated with the geographic area of a  
              proposed project.  According to the US Department of  
              Interior, National Park Service:

                "Traditional"?refers to those beliefs, customs, and  
                practices of a living community of people that have been  
                passed down through the generations, usually orally or  
                through practice.  The traditional cultural significance  
                of a historic property, then, is significance derived  
                from the role the property plays in a community's  
                historically rooted beliefs, customs, and practices.

                [C]ulture (is) a system of behaviors, values, ideologies,  
                and social arrangements.  These features, in addition to  
                tools and expressive elements such as graphic arts, help  
                humans interpret their universe as well as deal with  
                features of their environments, natural and social.   
                Culture is learned, transmitted in a social context, and  
                modifiable?  

                Traditional cultural values are often central to the way  









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                a community or group defines itself, and maintaining such  
                values is often vital to maintaining the group's sense of  
                identity and self respect.  Properties to which  
                traditional cultural value is ascribed often take on this  
                kind of vital significance, so that any damage to or  
                infringement upon them is perceived to be deeply  
                offensive to, and even destructive of, the group that  
                values them.  As a result, it is extremely important that  
                traditional cultural properties be considered carefully  
                in planning?

                Traditional cultural properties are often hard to  
                recognize.  A traditional ceremonial location may look  
                like merely a mountaintop, a lake, or a stretch of river;  
                a culturally important neighborhood may look like any  
                other aggregation of houses, and an area where culturally  
                important economic or artistic activities have been  
                carried out may look like any other building, field of  
                grass, or piece of forest in the area.  As a result, such  
                places may not necessarily come to light through the  
                conduct of archeological, historical, or architectural  
                surveys.  The existence and significance of such  
                locations often can be ascertained only through  
                interviews with knowledgeable users of the area, or  
                through other forms of ethnographic research.  The  
                subtlety with which the significance of such locations  
                may be expressed makes it easy to ignore them; on the  
                other hand it makes it difficult to distinguish between  
                properties having real significance and those whose  
                putative significance is spurious. (National Park  
                Service, National Register Bulletin 38, Guidelines for  
                Evaluating and Documenting Traditional Cultural  
                Properties).


            Issues Within AB 52 Language 
            
            4) Definition of "Native American Tribe"  .  Proposed §21073  
              defines "Native American tribe" to mean "a federally  
              recognized Indian tribe located in California."

               a)    Federally and Non-Federally Recognized Tribes  .   
                 According to the US Department of the Interior, Bureau  









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                 of Indian Affairs, "a federally recognized tribe is an  
                 American Indian or Alaska Native tribal entity that is  
                 recognized as having a government-to-government  
                 relationship with the United States, with the  
                 responsibilities, powers, limitations, and obligations  
                 attached to that designation, and is eligible for  
                 funding and services from the Bureau of Indian Affairs.   
                 Furthermore, federally recognized tribes are recognized  
                 as possessing inherent rights of self-government (i.e.,  
                 tribal sovereignty) and are entitled to receive certain  
                 federal benefits, service, and protections because of  
                 their special relationship with the United States."

              According to the Judicial Council of California, there are  
                 109 federally recognized Indian tribes in California and  
                 78 entities petitioning for recognition.  There are  
                 approximately 45 tribal communities of formerly  
                 recognized tribes that were terminated as part of the  
                 United States' termination policy in the 1950s or tribal  
                 communities that were never recognized by the federal  
                 government.  California's tribes are as small as five  
                 members and as large as 5,000 members.

              California recognizes both federally and non-federally  
                 recognized tribes, including the following examples:

                              Civil Code §815.3 provides a list of  
                      entities and organizations that may acquire and  
                      hold conservation easements to include "(c) A  
                      federally recognized California Native American  
                      tribe or a non-federally California Native American  
                      tribe that is on the contact list maintained by  
                      [NAHC] to protect a California Native American  
                      prehistoric, archaeological, cultural, spiritual,  
                      or ceremonial place, if the conservation easement  
                      is voluntarily conveyed."  

                              Under the Planning and Zoning Law, GOV  
                      Code §65092(b) includes "a California Native  
                      American tribe that is on the contact list  
                      maintained by [NAHC]" for purposes of notice.  

                              Prior to amending a general plan, GOV Code  









                                                                 AB 52
                                                                 Page 17

                      §65352(a)(8) requires a local government to refer  
                      the action to "a California Native American tribe,  
                      that is on the contact list maintained by [NAHC]?"

               a)    Non-Federally Recognized Native American Tribes Are  
                 Not Included in AB 52's Definition of "Native American  
                 Tribe"  .  AB 52 defines "Native American tribe" as a  
                 federally recognized tribe in California, thus excluding  
                 non-federally recognized tribes.  Instead, the bill  
                 states that any non-federally recognized tribe may  
                 participate in the CEQA process "as an interested  
                 person, citizen, or member of the public."  Such a  
                 distinction appears to create two classes of Native  
                 American tribes with different privileges in CEQA.  In  
                 contrast, as noted above, current state law does not  
                 distinguish between federally and non-federally  
                 recognized tribes.

              In a letter to the author, dated March 21, 2014, Sacred  
                 Places Institute for Indigenous Peoples states, "[W]e  
                 strenuously object to this or any legislative attempts  
                 to redefine or limit the definition of the term 'Native  
                 American Tribe' in any manner that excludes  
                 non-recognized Tribal Nations in California.  Excluding  
                 non-recognized tribes in this way is not only an affront  
                 to tribal sovereignty it also virtually guarantees that  
                 the sacred places and cultural resources of  
                 non-recognized Tribal Nations in California will be  
                 destroyed at an unprecedented rate in the future.   
                 Surely the destruction of indigenous sacred places and  
                 cultural resources is not the future you envision for a  
                 California that is treating Native American sacred  
                 places with dignity and respect."  

              Sacred Places Institute for Indigenous Peoples further  
                 states, "Numerous state and federal agencies,  
                 committees, and reports articulate the importance of  
                 including non-recognized Tribes in California in the  
                 creation and implementation of legislative and agency  
                 policies and procedures, especially when those law,  
                 policies, and procedures are related to the protection  
                 of Native American cultural and environmental resources.  
                  To create new legislation that directly conflicts with  









                                                                 AB 52
                                                                 Page 18

                 the well-established rule of inclusion for  
                 non-recognized Tribes in California state cultural  
                 resource protection law is neither in the best interest  
                 of, nor respectful of, Indigenous sacred places and  
                 cultural resources in California."

              The Pechanga Tribe, a technical advisor and supporter of  
                 the bill, explains the reason why AB 52 excludes  
                 non-federally recognized tribes, stating, "It's really a  
                 question of 'Who are they?'  They [lead agencies] want  
                 to make sure they know who the tribes are they consult  
                 with, and that it's mirroring the intent of CEQA," and  
                 further states that unrecognized tribes will still  
                 benefit in some ways from the bill, and can always ask  
                 the closest recognized tribe to "go to bat for them.  A  
                 lot of agencies are not good at involving tribes period,  
                 and this would put tribes on the radar screen."  (Indian  
                 Country Today Media Network, "California Sacred Sites  
                 Bill Would Boost Protections but Exclude Some 50  
                 Tribes," March 6, 2014.)  

              However, it should be noted that this bill does not  
                 authorize a federally recognized tribe to act on the  
                 behalf of a non-federally recognized tribe.  In  
                 addition, it is questionable whether it would be prudent  
                 to authorize one tribe with consultation rights to act  
                 as agent for another, which does not, considering each  
                 tribe has its own interest that may potentially conflict  
                 with one another.  Is it equitable to exclude  
                 non-federally recognized tribes in AB 52 when current  
                 state law acknowledges both?

            1) Definition of "TCR"  .  Current law provides that a TCR may  
              be considered in an environmental review to the extent that  
              it meets the conditions of a historical or archaeological  
              resource pursuant to CEQA.

               a)    Definition Is Too Broad  .  This bill's proposed  
                 definition of "TCR" in §21074 provides a variety of  
                 references to refer to a resource being on a list,  
                 eligible for a list, or meets the criteria of a list.   
                 In addition, the definition stipulates that not being in  
                 any of those categories does not preclude a lead agency  









                                                                 AB 52
                                                                 Page 19

                 from determining a resource to be a TCR.  

              Opponents state, "This is the exception that ate the rule"  
                 and have raised concern that "the practical result is a  
                 definition of TCR that is whatever the tribe says it is.  
                  This will lead to extensive litigation as parties  
                 struggle to make sense of what is an unavoidably  
                 difficult analysis to begin with."  Furthermore,  
                 opponents note that the definition for "TCR" grants "a  
                 legal status superior to all other environmental  
                 categories considered under CEQA."  In addition,  
                 opposition states, "Consideration of "[TCRs] as defined  
                 in AB 52 greatly expands CEQA's scope into an extremely  
                 subjective resource category?and without objective  
                 limits?"

               b)    How Does One Prove A TCR is Not a TCR  ?  Supporters  
                 note that the caveat provided in proposed §21074, which  
                 states that a resource may still be determined a TCR  
                 even though it is not in any of the specified  
                 categories, mirrors what already exists in CEQA for  
                 historical resources.  However, opponents state, "While  
                 the lead agency retains the authority to make the final  
                 determination for this exception [for TCRs], it puts the  
                 lead agency in the position of trying to argue against  
                 what only tribes can truly know - what is culturally  
                 significant to that tribe."  For example, some TCRs may  
                 be based on oral history.  If a tribe presents oral  
                 history as evidence that a resource is a TCR, it seems  
                 questionable whether such evidence can ever be disputed.  
                  Opponents further state that this caveat "effectively  
                 mandates consideration of "[TCRs] (as broadly  
                 defined?and the importance/significance of which is  
                 determined by the tribe designating it) regardless of  
                 prior documentation and/or listing in State surveys and  
                 registers of such resources."  

               c)    Reference to Guidelines and Consistency with  
                 Guidance  .  Proposed §21074 refers to federal guidelines  
                 and consistency with the guidance of the US National  
                 Park Service and the federal Advisory Council on  
                 Historic Preservation.  As a general matter, it is not  
                 prudent to reference guidelines or guidance as a  









                                                                 AB 52
                                                                 Page 20

                 standard of law because they do not have the force law.   
                 [Note:  CEQA Guidelines are coined "guidelines" but are  
                 in fact law located in the California Code of  
                 Regulations.]   

           2) Expertise  .  Proposed §21080.3.1(a) of the bill provides  
              that tribes that are traditionally and culturally  
              affiliated with a geographic area may have expertise  
              concerning TCRs.  Concern has been raised that this bill  
              would only codify Native American tribes as groups with  
              sufficient expertise to identify and determine impacts to  
              TCRs.  An unintended consequence may be that this creates  
              the potential for abuse as well as potentially significant  
              conflicts if and when more than one Native American tribe  
              asserts expertise.  
            
            3) It is the Role of The Lead Agency, Not a Tribe, to  
              Determine the Level of Environmental Review and Identify  
              Potential Significant Effects  .  Proposed §21080.3.1(b)  
              requires the lead agency to consult with tribes regarding  
              the appropriate level of environmental review for a project  
              when specified requirements are met.  The bill also  
              authorizes tribes to assist the lead agency in identifying,  
              interpreting, and determining significance of TCRs and  
              whether an impact of a proposed project to a TCR is  
              significant.  It should be noted that in determining the  
              level of environmental review, the lead agency must take  
              into consideration many resources, not just TCRs.  These  
              provisions go beyond consultation and infringe on the lead  
              agency's role and responsibility of determining the level  
              of environmental review needed, the significance of a  
              cultural resource, and whether a project may have a  
              significant effect on the environment.   
            
            4) General Request From a Tribe to be Notified of A Project by  
              a Lead Agency  .  Proposed §21080.3.1(b) requires a lead  
              agency to consult with a Native American tribe that is  
              traditionally and culturally affiliated with the geographic  
              area of the proposed project and has requested to the lead  
              agency in writing to be informed by the lead agency through  
              formal notification of proposed projects in that geographic  
              area.    










                                                                 AB 52
                                                                 Page 21
                                     
               a)    Before Any and All Projects, Request For Notification  
                 by A Native American Tribe to Lead Agencies  .  Proposed  
                 §21080.3.1(b) provides that a Native American tribe  
                 needs to request the lead agency, in writing, to be  
                 informed about any proposed projects in an area by the  
                 lead agency through formal notification.  The request is  
                 a general request for any project that comes before the  
                 lead agency in a specified area; this request is not for  
                 a specific project.  This provision creates several key  
                 assumptions that are silent in the bill:

                 i)         A tribe knows that it needs to make the  
                      request to a lead agency if it wants to be notified  
                      of any projects in that area;  
                 ii)        A tribe knows all of the state, regional, and  
                      local public agencies that have jurisdiction over  
                      the geographic area at issue;
                 iii)       A tribe knows the public agencies'  
                      appropriate division/department to send the  
                      request, and the agencies' contact information;  
                      and,
                 iv)        A tribe knows the necessary information to  
                      include in the request.

                 It is questionable whether every tribe knows all of the  
                 agencies it needs to contact and the information to  
                 provide.  The geographic overlay of a public agency's  
                 jurisdiction and an area affiliated with an individual  
                 tribe needs to be created and disseminated by an agency  
                 to the tribes in order to ensure that the tribes receive  
                 the necessary information.  The agency most appropriate  
                 for doing so would be NAHC, which has a database of  
                 pertinent tribal information and should know which  
                 public agencies each tribe should contact.  Tribes  
                 should be provided the necessary information in order to  
                 request notification to each public agency that has  
                 jurisdiction in a specified area by NAHC in a timely  
                 manner to ensure that this provision works.

               b)    "That Geographic Area"  .  This term is unclear.  Does  
                 it apply to the general area within the boundaries of  
                 the tribal interest?  Or the general area within the  
                 lead agency's jurisdiction?  Or an overlap of the tribal  









                                                                 AB 52
                                                                 Page 22

                 area and the lead agency's jurisdiction?  Clarification  
                 is needed.

            5) Formal Notification From a Lead Agency to a Tribe About A  
              Project (Proposed §21080.3.1(c))  .

               a)    When Must a Lead Agency Send Formal Notification to a  
                 Tribe  ?  The bill is silent when the lead agency must  
                 send formal notification to the tribe.  It would be  
                 prudent to clearly state what triggers the requirement  
                 for notification to be sent.  
               
               b)    NAHC Shall Assist Lead Agency in Identifying  
                 "Affiliated" Tribes  .  Proposed §21080.3.1(c) states, "To  
                 expedite the requirements of this section, the [NAHC]  
                 shall assist the lead agency in identifying the  
                 traditionally and culturally affiliated Native American  
                 tribes."  Does "affiliated" pertain to the geographic  
                 area of the project?  Specification is needed.

               c)    Does the Notification Include An Invitation for  
                 Consultation  ?  The notification provides specified  
                 information describing the project.  However, the bill  
                 is silent on whether the lead agency must include in the  
                 notification an invitation or information telling the  
                 tribe that it has the option to request consultation on  
                 the project.  It may be helpful to include such  
                 information in the notification to the tribe.  
               
               d)    Requirement for Consistency of Information With PRC  
                 §21092(b)(1) in the Notification  .  Proposed  
                 §21080.3.1(c) requires the lead agency's formal  
                 notification to the tribes be consistent with PRC  
                 §21092(b)(1).  Current law, PRC §21092(b)(1), provides  
                 requirements for public notification prior to final  
                 adoption of an environmental document, including "the  
                 period during which comments will be received on the  
                 draft [EIR] or [ND], and shall include the date, time,  
                 and place of any public meetings or hearings on the  
                 proposed project, a brief description of the proposed  
                 project and its location, the significant effects on the  
                 environment, if any, anticipated as a result of the  
                 project, the address where copies of the draft [EIR] or  









                                                                 AB 52
                                                                 Page 23

                 [ND], and all documents referenced in the draft [EIR] or  
                 [ND], are available for review, and a description of how  
                 the draft [EIR] or [ND] can be provided in an electronic  
                 format."  

              The notification prescribed in proposed §21080.3.1(c) is  
                 for the beginning of the environmental review process.   
                 It is unclear why and how the information about the  
                 final adoption of an environmental document pertains to  
                 a consultation about determining the level of  
                 environmental review needed for a project at the  
                 beginning of the environmental review process. 

               e)    How Does the Notification Work for State and Regional  
                 Agencies  ?  As noted above, state and regional agencies  
                 can be lead agencies, and some projects may have a  
                 statewide or regional impact.  Is it reasonable to  
                 require a state agency that has a project covering all  
                 of California to provide notice to 109 tribes with the  
                 potential to conduct 109 individual consultations?  

              How does a lead agency notify the appropriate tribes if a  
                 project covers part of the state but the lead agency  
                 does not know the geographic boundaries of each tribe's  
                 affiliated area?  The bill requires NAHC to assist the  
                 lead agency in identifying tribes to notify, but does  
                 NAHC have the resources to provide such information to  
                 all lead agencies for the thousands of projects subject  
                 to CEQA?  
              
            6) Consultation for Each and Every Single Project  ?  

               a)    Projects Sized Extra Large  .  Pursuant to this bill,  
                 in larger, regional or statewide projects, such as ones  
                 affecting a large portion of California like the High  
                 Speed Rail project, several tribes may have their TCRs  
                 affected and may be interested in consulting with the  
                 lead agency.  Such a case would require multiple,  
                 simultaneous consultations with various tribes.  This  
                 may lead to considerable confusion and disruption in the  
                 CEQA process for a project, resulting in extensive delay  
                 as well as the potential for more litigation.  










                                                                 AB 52
                                                                 Page 24

               b)    "Project" In a More Tangible Sense  .  Under CEQA, a  
                 "project" may include an agency creating a program or a  
                 set of regulations for a type of action in general, such  
                 as CalRecycle creating a programmatic EIR for anaerobic  
                 digester facilities, which individual projects may tier  
                 off of for their environmental review documents.   
                 However, it seems the author intends this bill to be  
                 directed to the more typical sense of what people  
                 consider a "project" pursuant to CEQA, which is usually  
                 a specific development proposal such as building a  
                 shopping mall on Main Street in the City of X or  
                 building a levee along a river.

            7) Multiple Consultations for Each Project  ?  This bill  
              requires two consultation processes - one requiring the  
              lead agency to consult with a tribe regarding the  
              appropriate level of environmental review for a project and  
              the other for discussion of mitigation measures.  It does  
              not seem practical to require two, separate consultation  
              processes when the purposes of each naturally conjoin -  
              determining whether there may be a significant effect on a  
              TCR and, if so, how to avoid or mitigate the impact.  There  
              should only be one consultation process to cover both of  
              these issues.

            8) When Does the First Consultation Begin  ?  AB 52 provides  
              that the first consultation must occur "[p]rior to  
              determining whether a [ND], [MND], or [EIR] is required for  
              a project."  But exactly when is this consultation expected  
              to begin?  In order to provide for early consultation, it  
              seems that a more definitive start date should be included,  
              such as within a specified number of days after a lead  
              agency receives a tribe's request for consultation on a  
              project.  
            
            9) Definition of "Consultation"  .  Proposed §21080.3.2 provides  
              a different definition of "consultation" than how it is  
              defined in current law related to Native American tribal  
              consultations for purposes of preparation, adoption, and  
              amendment of a General Plan.  GOV §65352.4 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'  









                                                                 AB 52
                                                                 Page 25

              cultural values and, where feasible, seeking agreement;  
              requires consultation between agencies and tribes to be  
              conducted in a way that is mutually respectful of each  
              party's sovereignty; requires consultation to recognize the  
              tribes' potential need for confidentiality with respect to  
              places that have tribal cultural significance.

           This bill provides that "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?"

           Although there is overlap in the definitions, there are some  
              distinct differences.  GOV §65352.4 provides a more robust  
              and concise definition of "consultation" than this bill.    
              It would be prudent to include a definition consistent with  
              current law.  

            10)Purpose of the Consultation(s)  .  Proposed §21080.3.2(b)  
              provides that the second consultation may include  
              discussion concerning the significance of TCRs, the  
              significance of the project's impacts on the TCRs, and, if  
              necessary, project alternatives or the appropriate measures  
              for preservation or mitigation.  Why "may"?  The purpose of  
              the consultation should be definitive and the parameters  
              clearly stated, which is to find out whether a proposed  
              project may have a significant effect on an identified TCR  
              and, if so, a description of the significant effect, and,  
              any feasible alternatives or mitigation measures that may  
              avoid or substantially lessen the significant effect to the  
              identified TCR.  

            11)Who Represents the Native American Tribe in This  
              Consultation  ?  This bill requires consultation with a  
              Native American tribe, but is silent regarding who in the  
              tribe is/are authorized to represent the tribe in the  
              consultation.  Would it be prudent to specify that the lead  
              agency must consult with an authorized representative of a  
              tribe?  
            









                                                                 AB 52
                                                                 Page 26

            12)What If Multiple Tribes Require Consultation for A Project  ?  
               As noted above, it is possible that a project may require  
              the lead agency to consult with multiple tribes.  However,  
              AB 52 does not provide how to address potentially competing  
              and/or conflicting interests where more than one Native  
              American tribe considers a particular resource to be  
              culturally important or a project may impact multiple  
              tribes' resources.  Furthermore, would this bill put  
              non-federally recognized tribes at a disadvantage if they  
              have a TCR that may be impacted?  A question arises as to  
              what the most prudent way is for a lead agency to address  
              such a situation and whether some direction or guidance  
              needs to be considered.

            13)Second Consultation - When Does It Start  ?  Proposed  
              §21080.3.2 provides a second consultation process to  
              discuss the significance of a TCR, the potential  
              significant effect on that resource, and ways to avoid or  
              mitigate that impact.  The bill is silent on when this  
              consultation process must begin.   

            14)Consultation Concludes When the Lead Agency and Tribe  
              Decide that Mutual Agreement Cannot Be Reached  .  Proposed  
              §21080.3.2(c) provides that "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."   
              This language assumes that no agreement will be reached.   
              Although it may seem reasonable to assume that if there is  
              mutual agreement then that would signify the conclusion of  
              the consultation, but it may be prudent to clarify that.   
            
            15)Mitigation Measures Agreed Upon To Be Recommended For  
              Inclusion in the Environmental Document  .  Proposed  
              §21082.3(a) requires that any mitigation measures agreed  
              upon in the consultation must be recommended for inclusion  
              in the environmental document if determined to avoid or  
              lessen the impact.  A question arises as to how this  
              provision affects potential impacts on other resources.   
              Does mandating the inclusion of mitigation measures for one  
              resource give the protection of that resource an advantage  
              over the others?  What if mitigation measures agreed upon  









                                                                 AB 52
                                                                 Page 27

              significantly impact another resource?   
            
            16)Confidentiality  .  Under current law, GOV §6254(r) exempts  
              from disclosure "records of Native American graves,  
              cemeteries, and sacred places, and records of Native  
              American places, features, and objects described in [PRC  
              §§5097.9 and 5097.993] maintained by, or in the possession  
              of, [NAHC], another state agency, or a local agency."  In  
              addition, the CEQA Guidelines state that any information  
              about the specific location of archaeological sites and  
              sacred lands must not be included in the environmental  
              review document circulated for public review.  (Guidelines  
              §15120(d)).

           AB 52's §21082.3(c) includes broader confidentiality  
              provisions and provides that any information submitted by a  
              Native American tribe during the consultation process may  
              not be included in the environmental documents or otherwise  
              disclosed without prior consent of the tribe.  Although it  
              is understandable that tribes want to keep certain  
              information confidential, does this provision overreach and  
              conflict with one of the primary tenets of CEQA, which is  
              to provide public disclosure?   
             
            17)Certification/Adoption of EIR/MND Contingency Provision  .   
              Proposed §21082.3(d) provides that "the lead agency may  
              certify an [EIR] or adopt a [MND] for a project with a  
              significant impact on an identified [TCR] only if one of  
              the following occurs:  (1) Mitigation measures agreed  
              to?have been recommended?as mitigation measures in the  
              final environmental document...(2) The Native American  
              tribe accepts the mitigation measures proposed in the draft  
              or final environmental document ?(3) Consultation between  
              the Native American tribes and the lead agency has occurred  
              pursuant to Section 21080.3.2."  Concern has been raised  
              that this "subjects [TCRs] to a different and heightened  
              scrutiny, curbing the availability of Statements of  
              Overriding Considerations to only where one of certain  
              enumerated conditions has occurred?[This] begs the question  
              why AB 52 proposes to treat [TCRs] differently than other  
              environmental resources under CEQA."
           
            18)Mitigation Measures to Consider  .  AB 52's §21082.3(e)  









                                                                 AB 52
                                                                 Page 28

              requires a lead agency to consider a specified list of  
              options for mitigation measures in §21084.3(b) if specified  
              actions occur.  §21084.3 of the bill provides a list of  
              examples of mitigation measures should a lead agency  
              determine "that a project may cause a substantial adverse  
              change to a TCR, and measures are not otherwise identified  
              in the consultation process provided?that, if feasible, may  
              be considered to avoid or minimize the significant adverse  
              impacts."  

           Opposition states, "CEQA already mandates mitigation be  
              considered and implemented if feasible.  It is unclear how,  
              if at all, the examples offered here aid that analysis.   
              Further, as a practical matter, the codification of  
              exemplary mitigation measures, even if optional, tends to  
              restrain lead agency discretion by creating a de facto  
              mitigation list that must be considered."     

            19)What If Two Consultation Processes Conflict  ?  Current law  
              provides for tribal consultation in certain instances such  
              as updating a General Plan (SB 18 (Burton), Chapter 905,  
              Statutes of 2004).  An update to a General Plan also  
              requires an environmental review pursuant to CEQA.  The  
              tribal consultation requirements and processes in AB 52 and  
              current law differ from one another - for example, SB 18's  
              tribal consultation process is the same for both federally  
              and non-federally recognized tribes whereas AB 52 provides  
              different consultation requirements for each; and the  
              definition of "consultation" are different for each.  If  
              this bill is enacted, a question arises - With which  
              consultation requirements must the lead agency comply?  
            

            Broader Policy Issues Related to AB 52

           20)Recent Legislative Direction in CEQA  .  In the past few  
              years, legislative efforts concerning CEQA have been  
              primarily focused on making the CEQA process work more  
              efficiently and reducing litigation while staying true to  
              the purpose of CEQA, which is to "inform the public and its  
              responsible officials of the environmental consequences of  
              their decisions before they are made..."  (Citizens of  
              Goleta Valley v. Board of Supervisors (1990) 52 Cal.3d 553,  









                                                                 AB 52
                                                                 Page 29

              564).   

           A question arises as to whether this bill, by adding a new  
              layer of consultation requirements to the environmental  
              review process, adding separate standards and requirements  
              for TCRs outside of historical and archaeological  
              resources, and adding new CEQA causes of action to  
              litigate, is consistent with recent legislative efforts  
              related to CEQA.  
            
            21)Is CEQA the Appropriate Venue to Address Native American  
              Tribal Concerns  ?  As semi-sovereign nations, some tribes  
              want more opportunity to consult with lead agencies about  
              projects through the CEQA process.  Supporters state, "This  
              bill recognizes that tribes have a right to consult on the  
              impacts of projects that take place outside reservation  
              boundaries.  Tribal traditional cultural properties extend  
              outside these boundaries and deserve protection.  Further,  
              even when a project takes place outside reservation  
              boundaries, it can still have an effect on Indian lands."

           CEQA does not provide for consultation specifically with  
              Native American tribes, but in practice, a lead agency may  
              contact affected tribes and individuals during the  
              archaeological impact analysis to elicit their input, which  
              they may obtain through NAHC.  

               a)    Does This Bill Go Beyond Considerations of the  
                 "Environment"  ?  According to CEQA Guidelines §15083, a  
                 lead agency may consult with any person, organization,  
                 or government agency it believes will be concerned with  
                 the environmental effects of a project.  

              AB 52 creates a new consultation process in CEQA so that  
                 federally recognized Native American tribes can consult  
                 with lead agencies about projects that may affect  
                 resources that they are traditionally or culturally  
                 affiliated with.  Sacred sites have traditional and  
                 cultural significance as well as overlap with religion.   
                 Culture, tradition, and religion - at what point do  
                 cultural traditions become religion?  This may lead to  
                 the question - if the goal of CEQA is to protect the  
                 environment, does religion belong in CEQA?









                                                                 AB 52
                                                                 Page 30


              Opposition states that this bill "is a dramatic expansion  
                 of CEQA that inserts religion into the environmental  
                 statute and, as a practical matter, grants Native  
                 American Tribes broad, irrefutable authority to  
                 determine anything is a TCR entitled CEQA protection?and  
                 opens up new avenues for CEQA litigation."  In addition,  
                 the Association of Environmental Professionals (AEP)  
                 notes, "As defined by AB 52, impacts to 'TCRs'?are more  
                 akin to infringements on religious practices than  
                 physical environmental impacts.  While of understandable  
                 importance to Native Americans, AEP does not believe  
                 CEQA's statutes are the appropriate legislative vehicle  
                 to limit such impacts." 

               b)    Does This Bill Elevate One Resource Above All Others  ?  
                                                                                      Native American tribes should respectfully be given  
                 their due deference.  Tribes want to protect their  
                 resources in a manner that they are comfortable with and  
                 consult with agencies that have a say in how projects  
                 are implemented.  This bill provides a broad definition  
                 of what can be considered a TCR, includes a separate and  
                 different consultation process for tribes, gives away  
                 some of the lead agency's authority to tribes, and  
                 provides a high level of confidentiality on TCRs.  

              As noted in Comment #2(b), there are at least 17 different  
                 resources the lead agency considers in assessing the  
                 potential impacts of a project.  In the context of an  
                 environmental review pursuant to CEQA, is it appropriate  
                 to provide special treatment and elevated status to one  
                 resource over all of the others?  

               c)    What About a Tribal Consultation Process On a  
                 Project-By-Project Basis Outside of CEQA  ?  The  
                 Committee, in recognizing both (1) Native American  
                 tribes should be given due deference and be provided an  
                 opportunity to consult on projects in areas that they  
                 are traditionally and culturally affiliated with; and,  
                 (2) CEQA may not be the appropriate venue for doing so,  
                 may wish to consider whether it would be prudent to  
                 provide a meaningful and clear consultation process for  
                 tribes on a project-by-project basis on public and  









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                 private lands, in its own division in PRC outside of  
                 CEQA, for the purpose of identifying impacts on TCRs  
                 (broadly defined) and ways to avoid or mitigate those  
                 impacts.  The information gathered from the consultation  
                 could be used in the environmental review to the extent  
                 required by CEQA and the consultation would be mandated  
                 regardless of whether CEQA or a CEQA exemption applied.   
                 

              If proponents are concerned about maintaining a private  
                 right of action, a consultation process outside of CEQA  
                 would not impede on that.  Tribes would still have a  
                 private right of action to sue under the general  
                 provisions in the Code of Civil Procedure pertaining to  
                 writs of mandate if the lead agency fails to engage in  
                 the consultation process and/or perform its mandatory  
                 duty.  Also, this would not foreclose a private right  
                 action by a tribe participating in the environmental  
                 review process under CEQA - If the tribe does not arrive  
                 at an agreement in the consultation, then the tribe can  
                 raise those points in the environmental review process,  
                 which then gives them standing in CEQA.

              It seems that the proponents of AB 52 are striving for  
                 something beyond the realm of CEQA.  They are seeking a  
                 way to protect resources that are more than simply  
                 "environmental" resources.  

              TCRs, which have broad traditional, cultural, and religious  
                 significance, are difficult to objectively quantify and  
                 appropriately address under CEQA.  In order to ensure  
                 that Native American tribes' concerns are more fully  
                 addressed on a project-by-project basis, perhaps a  
                 consultation process outside of CEQA is what is most  
                 needed.


            Options For the Committee To Consider
            
            22)Options and Potential Amendments For the Committee To  
              Consider  .  If the Committee believes that a special  
              consultation process for Native American tribes on a  
              project-by-project basis is necessary, there are two  









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              approaches to consider:  a) A stand-alone tribal  
              consultation process in statute outside of CEQA that would  
              allow for a consultation on TCRs (See Comment #25(c)); or,  
              b) Amend the bill to address the issues raised above  
              (Comments #4 through #23) to provide a more limited  
              consultation process in CEQA.

              a)    If the Committee believes a special consultation  
                 process is better suited outside of CEQA and that would  
                 allow for consultation on a broad array of TCRs than  
                 what is appropriate for CEQA, then  amendments are needed  
                 as follows  :

                 i)         Delete the contents of the bill and add a new  
                      division in PRC, which will include ii-vi below.
                 ii)        Define specified terms such as:
                      a)              "Native American tribe" to include  
                           both federally and non-federally recognized  
                           tribes that are on the contact list maintained  
                           by NAHC.
                      b)               "TCR" to have the same meaning as  
                           currently in the bill except delete references  
                           to guides and guidance documents.
                      c)              "Consultation" as having the same  
                           meaning in GOV §65352.4.
                      d)              "Significant effect on a TCR" as a  
                           substantial, or potentially substantial,  
                           adverse change to a TCR.
                 iii)       Provide clear steps, such as deadlines and  
                      timing, on the notification and consultation  
                      process based on the Tribal Consultation Guidelines  
                      pursuant to SB 18 (Burton).
                 iv)        Specify that the purpose of the consultation  
                      is to discuss whether a proposed project may have a  
                      significant effect on an identified TCR and, if so,  
                      any feasible alternatives or mitigation measures  
                      that may avoid or substantially lessen the  
                      significant effect to the identified TCR.  
                 v)         Include provisions related to confidentiality  
                      of information submitted by a Native American tribe  
                      during the consultation process that are consistent  
                      with current law.
                 vi)        Authorize the lead agency to charge and  









                                                                 AB 52
                                                                 Page 33

                      collect a fee from a project applicant to recover  
                      the estimated cost incurred by the lead agency in  
                      complying with these provisions.

              b)    If the Committee believes a more limited consultation  
                 process for Native American tribes belongs in CEQA, then  
                  amendments are needed to address the issues raised in  
                 the comments above, as follows  :

                 i)         Define "Native American Tribe" to include  
                      both federally and non-federally recognized tribes  
                      that are on the contact list maintained by NAHC.   
                      (Comment #4).
                 ii)        Define "TCR" clearly and concisely to refer  
                      to specified local, state, and federal lists,  
                      eligibility for a local, state, or federal list, or  
                      meet specified criteria in local, state, or federal  
                      law.  Delete references to guidelines and  
                      consistency with guidance documents.  Delete  
                      discretionary components of the definition.   
                      (Comment #5).
                 iii)       Delete §21080.3.1(a) related to expertise.   
                      (Comment #6).
                 iv)        Delete 21080.3.1(b) related to authorizing  
                      tribes to assist the lead agency in identifying,  
                      interpreting, and determining significance of TCRs  
                      and whether an impact of a proposed project to a  
                      TCR is significant.  (Comment #7).
                 v)         Require NAHC to provide each tribe with the  
                      information outlined in Comment #8(a)(i-iv) by July  
                      1, 2016.  (Comment #8(a)).
                 vi)        Clarify the term "that geographic area".   
                      (Comment #8(b))
                 vii)       Require the lead agency to send formal  
                      notification to a tribe as specified, no later than  
                      14 days after an application for a project is  
                      determined complete or a decision by a public  
                      agency to undertake a project.  (Comment #9(a)).
                 viii)      Specify geographic area for identifying  
                      "affiliated Native American tribes" in  
                      §21080.3.1(c).  (Comment #9(b)).
                 ix)        Clarify that a lead agency must include in  
                      the formal notification it sends to a tribe about a  









                                                                 AB 52
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                      project that the tribe may request consultation  
                      with the lead agency for that project for the  
                      purpose of discussing whether there may be a  
                      significant effect on a TCR, and if so, whether any  
                      feasible alternatives or mitigation measures to  
                      avoid or substantially lessen the significant  
                      impact to the TCR exists.  (Comment #9(c)).
                 x)         Delete the requirement that the lead agency's  
                      formal notification  in proposed §21080.3.1(c) must  
                      be consistent with PRC §21092(b)(1).  (Comment  
                      #9(d)).
                 xi)        Consolidate the multiple consultations into  
                      one consultation process and include specificity  
                      for the procedural and substantive parameters of  
                      the consultation including clear start and end  
                      dates as well as state the purpose of the  
                      consultation.  (Comment #11).
                 xii)       Specify that a consultation must begin no  
                      later than 14 days after a lead agency receives a  
                      tribe's request for consultation.  (Comment #12).
                 xiii)      Delete §21080.3.1(b) related to consultation  
                      to determine appropriate level of environmental  
                      review.  (Comment #13).
                 xiv)       Delete the definition of "consultation" in  
                      §21080.3.2(a) and replace it with a reference to  
                      the definition of "consultation" in GOV §65352.4.   
                      (Comment #13).
                 xv)        Delete §21080.3.2(b) related to the purpose  
                      of the consultation.  (Comment #14).
                 xvi)       Provide that the lead agency shall notify and  
                      consult with a tribe's designated contact or tribal  
                      representative.  (Comment #15).
                 xvii)      Delete §21080.3.2(c) and replace with  
                      language providing that consultation shall be  
                      considered concluded when either the parties to the  
                      consultation come to a mutual agreement concerning  
                      appropriate measures for preservation or mitigation  
                      of a significant effect on a tribal cultural  
                      resource or either party, acting in good faith and  
                      after reasonable effort, concludes that mutual  
                      agreement cannot be reached concerning appropriate  
                      measures for preservation or mitigation of a  
                      significant effect on a tribal cultural resource.   









                                                                 AB 52
                                                                 Page 35

                      (Comment #18).
                 xviii)     Delete §21082.3(a) related to mitigation  
                      measures agreed upon must be recommended for  
                      inclusion in the environmental document.  (Comment  
                      #19).
                 xix)       Delete §21082.3(c) related to  
                      confidentiality.  (Comment #20).
                 xx)        Delete §21082.3(d) related to  
                      certification/adoption of EIR/MND contingency.   
                      (Comment #21).
                 xxi)       Delete §21082.3(e) and §21084.3 related to  
                      mitigation measures to consider.  (Comment #22).

            Past Legislation

           23)Past Legislation  .  SB 833 (Vargas) (2012) would have  
              prohibited a person from constructing or operating a solid  
              waste landfill disposal facility in San Diego County if  
              that facility met both of the following conditions:  (1)  
              any portion of the disposal facility was located on or  
              within 1,000 feet of the San Luis Rey River or an aquifer  
              that was hydrologically connected to that river, and (2)  
              the disposal facility was located on or within 1,000 feet  
              of a site that was considered sacred or of spiritual or  
              cultural importance to a tribe, as defined, and that was  
              listed in NAHC's Sacred Lands Inventory.  SB 833 was vetoed  
              by Governor Edmund G. Brown.

           AB 742 (Lowenthal) (2011), would have prohibited a lead agency  
              with jurisdiction over a proposed aggregate mining  
              operation from approving a reclamation plan of a mining  
              operation that was proposed to be constructed within  
              specified distances of a Native American sacred site or an  
              aquifer that was hydrologically connected to the Santa  
              Margarita River without the consent of the tribe whose  
              reservation is nearest the proposed operation.  This bill  
              died in Senate Rules Committee.

           SB 1395 (Ducheny) (2006), would have required a lead agency to  
              notify Native American tribes regarding certain matters,  
              including the naming of a single point of contact for  
              exchange of information and comments, if the lead agency  
              determines a project is exempt pursuant to certain  









                                                                 AB 52
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              exemptions.  This bill was vetoed by Governor Arnold  
              Schwarzenegger.
            
           SB 18 (Burton), Chapter 905, Statutes of 2004, enacted various  
              requirements for traditional tribal cultural sites,  
              including conservation easements and Planning and Zoning  
              Law.

           SB 1828 (Burton) (2002) would have amended the Surface Mining  
              and Reclamation Act of 1975 and CEQA to subject projects  
              that could affect a Native American tribe's sacred site to  
              additional conditions and approvals.  This bill was vetoed  
              by Governor Gray Davis.

           AB 978 (Steinberg), Chapter 818, Statutes of 2001, enacted the  
              California Native American Graves Protection and  
              Repatriation Act of 2001, that established an extensive  
              process to provide "a seamless and consistent state policy  
              to ensure that all California Indian human remains and  
              cultural items be treated with dignity and respect."

           AB 1196 (Thompson) (2000) prohibited the California Integrated  
              Waste Management Board (CIWMB) from approving an integrated  
              waste management plan that identifies a new solid waste  
              facility or landfill contiguous with or within one mile of  
              a federal Indian reservation, or where a sacred site is  
              within the facility or landfill site boundary.  The bill  
              also prohibited CIWMB from concurring in the issuance of a  
              solid waste facilities permit, and would not deem CIWMB as  
              having concurred in the issuance of such permit, under one  
              of those conditions.  AB 1196 failed passage June 26, 2000,  
              in the Senate Environmental Quality Committee.

           AB 2752 (Cardoza) (2000) required a lead agency under CEQA to  
              minimize, to the extent feasible, any significant impact of  
              a project on the free exercise of the Native American  
              religion as protected by the US and state constitutions.    
              AB 2752 also prohibited CIWMB from concurring in the  
              issuance of a solid waste facilities permit if an EIR is  
              required to be prepared that identified potentially  
              significant adverse effects on Native 
              American resources, and certain conditions exist.  AB 2752  
              was vetoed by Governor Gray Davis.









                                                                 AB 52
                                                                 Page 37



            SOURCE  :        Author  

           SUPPORT  :       Agua Caliente Band of Cahuilla Indians Tribal  
                          Council
                          Barona Band of Mission Indians          
                          California Tribal Business Alliance          
                          Habematolel Pomo of Upper Lake
                          Koi Nation of Northern California
                          Mechoopda Indian Tribe of Chico Rancheria
                          Middletown Rancheria of Pomo Indians of  
                          California
                          Pala Band of Mission Indians
                          Paskenta Band of Nomlaki Indians of California
                          Pechanga Tribe
                          Planning and Conservation League
                          Rincon Band of Luiseno Indians
                          Santa Ynez Band of Chumash Indians
                          Tribal Alliance of Sovereign Indian Nations
                          United Auburn Indian Community
                          Viejas Band of Kumeyaay Indians
                          Yocha Dehe Wintun Nation
            
           OPPOSITION  :    American Council of Engineering Companies
                          Associated Builders and Contractors of America
                          Associated General Contractors of America
                          Association of California Water Agencies
                          Association of Environmental Professionals
                          California Association of Realtors
                          California Building Industry Association
                          California Business Properties Association
                          California Business Roundtable
                          California Cattlemen's Association
                          California Chamber of Commerce
                          California Construction and Industrial  
                          Materials Association
                          California Farm Bureau Federation
                          California Manufacturers and Technology  
                          Association
                          California Municipal Utilities Association
                          California Rail Industry
                          California Retailers Association









                                                                 AB 52
                                                                 Page 38

                          California Special Districts Association
                          California State Association of Counties
                          California Wind Energy Association
                          County of Nevada
                          Independent Energy Producers
                          Large-Scale Solar Association
                          Pacific Gas & Electric
                          Rural County Representatives of California
                          Sacred Places Institute for Indigenous Peoples
                          San Gabriel Valley Economic Partnership
                          The California Railroad Authority