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 AB 52 Page 2 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)). AB 52 Page 3 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 AB 52 Page 4 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 AB 52 Page 5 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 AB 52 Page 6 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. AB 52 Page 7 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. AB 52 Page 8 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: AB 52 Page 9 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. AB 52 Page 10 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 AB 52 Page 11 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 AB 52 Page 12 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, AB 52 Page 13 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 AB 52 Page 14 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 AB 52 Page 15 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 AB 52 Page 16 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 AB 52 Page 31 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 AB 52 Page 32 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 Page 34 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 Page 36 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