BILL ANALYSIS Ó ----------------------------------------------------------------- |SENATE RULES COMMITTEE | AB 52| |Office of Senate Floor Analyses | | |1020 N Street, Suite 524 | | |(916) 651-1520 Fax: (916) | | |327-4478 | | ----------------------------------------------------------------- THIRD READING Bill No: AB 52 Author: Gatto (D), et al. Amended: 8/22/14 in Senate Vote: 21 SENATE ENVIRONMENTAL QUALITY COMMITTEE : 6-0, 6/25/14 AYES: Hill, Gaines, Hancock, Jackson, Leno, Pavley NO VOTE RECORDED: Fuller SENATE APPROPRIATIONS COMMITTEE : 5-0, 8/14/14 AYES: De León, Hill, Lara, Padilla, Steinberg NO VOTE RECORDED: Walters, Gaines ASSEMBLY FLOOR : 58-0, 6/27/13 - See last page for vote SUBJECT : Native Americans: California Environmental Quality Act SOURCE : Author DIGEST : This bill establishes procedures and requirements under the California Environmental Quality Act (CEQA) for the purpose of avoiding or minimizing impacts to tribal cultural resources. Senate Floor Amendments of 8/22/14 address many issues related to the CEQA tribal consultation process proposed in this bill. ANALYSIS : CONTINUED AB 52 Page 2 Existing law: 1.Under CEQA: A. Requires lead agencies with the principal responsibility for carrying out or approving a proposed discretionary project to prepare a negative declaration, mitigated negative declaration, or environmental impact report (EIR) for this action, unless the project is exempt from CEQA (CEQA includes various statutory exemptions, as well as categorical exemptions in the CEQA Guidelines). 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. 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. C. Establishes the Native American Heritage Commission (NAHC) and vests the commission with specified powers and duties. Requires the lead agency to work with the most likely descendant as designated by the NAHC when an initial study identifies the existence of, or probable likelihood of, Native American human remains within the project site. D. Defines "significant effect on the environment" as a substantial, or potentially substantial, adverse change in the environment. 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. 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 CONTINUED AB 52 Page 3 for public review. 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 non-unique archaeological resources. H. Provides that an archaeological resource is "unique" if it: (1) Is associated with an event or person of recognized significance in California or American history or recognized scientific importance in prehistory; (2) Can provide information of demonstrable public interest and is useful in addressing scientifically consequential and reasonable research questions; (3) Has a special or particular quality such as oldest, best example, largest, or last surviving example of its kind. A. 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. 1.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. 2.Establishes NAHC, made up of nine members appointed by the 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 CONTINUED AB 52 Page 4 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. 3.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. 4.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. 5.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. 6.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 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. 7.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 CONTINUED AB 52 Page 5 of open space. 8.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. 9.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. This bill: 1.Makes several findings and declarations. 2.Defines "California Native American tribe" as a Native American tribe location in California that is on the contact list maintained by the NAHC. 3.Defines "Tribal Cultural Resources (TCRs)" to mean either of the following: A. Sites, features, places, cultural landscapes, sacred places, and objects with cultural value to a California Native American tribe that are either of the following: (1) Included or determined to be eligible for inclusion in the California Register of Historical Resources. (2) Included in a local register of historical resources, as defined. A. A resource determined by the lead agency, in its discretion and supported by substantial evidence, to be significant, as specified. The lead agency shall consider the significance of the resource to a California Native American tribe. 1.Provides that a historical resource as described, a unique archaeological resource, as defined, or a "non-unique archaeological resource," as defined may also be a TCR if it CONTINUED AB 52 Page 6 conforms with the criteria. 2.Provides that California Native American tribes, which are traditionally and culturally affiliated with a geographic area, may have expertise concerning TCRs. 3.Authorizes California 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. 4.Requires the NAHC to provide each California Native American tribe, as defined, on or before July 1, 2016, with a list of all public agencies that may be a lead agency within the geographic area in which the tribe is traditionally and culturally affiliated, the contact information of those agencies, and information on how the tribe may request those public agencies to notify the tribe of projects within the jurisdiction of those public agencies for the purposes of requesting consultation. 5.Creates the first of two consultation processes, which requires the lead agency to begin consultation with a California Native American tribe if: (a) the tribe requests the lead agency to be informed through formal notification of proposed projects in the geographic area that is traditionally and culturally affiliated with the tribe and (b) 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 the California Native American tribes that are traditionally and culturally affiliated with the project area. Within 14 days of determining that an application for a project is complete or a decision by a public agency to undertake a project. B. Requires the lead agency to provide formal notification to the designated contact of, or a tribal representative of, traditionally and culturally affiliated California Native American tribes that have requested notice, which shall be accomplished by means of at least one written notification that includes a brief description of the proposed project and its location, the lead agency contact CONTINUED AB 52 Page 7 information, and a notification that the tribe has 30 days to request consultation. C. Requires the lead agency to begin the consultation process within 30 days of receiving a California Native American tribe's request for consultation. 1.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. A. If the California 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 type of environmental review necessary, the significance of project 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 either of the following occurs: (1) The parties agree to measures to mitigate or avoid a significant effect, if significant effect exists, on a tribal cultural resource. (2) A party, acting in good faith and after reasonable effort, concludes that mutual agreement cannot be reached. A. Provides that this consultation: (1) Does not limit the ability of a California Native American tribe or the 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. (2) Does not limit the ability of the lead agency or CONTINUED AB 52 Page 8 project proponent to incorporate changes and additions to the project as a result of consultation, even if not legally required. 1.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 and reporting program, if determined to avoid or lessen the impact and shall be fully enforceable. 2.If a project may have a significant impact on a TCR, requires the lead agency's environmental document to discuss both of the following: 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. 1.Prohibits information submitted by a tribe during the consultation or environmental review process 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. 2.Authorizes, in addition to other provisions, the lead agency to certify an EIR or adopt a mitigated negative declaration, by July 1, 2015, for a project with a significant impact on an identified TCR only if one of the following occurs: A. The consultation process between the California Native American tribe and the lead agency has occurred, as provided, and concluded. B. The California Native American tribe has requested consultation and has failed to provide comments to the lead agency, or otherwise failed to engage, in the consultation process. CONTINUED AB 52 Page 9 C. The lead agency has successfully identified the California Native American tribes that are traditionally and culturally affiliated with the project area, and the California Native American tribe has failed to request consultation within 30 days. 1.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. 2.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. 3.Requires public agencies, when feasible, avoid damaging effects to a TCR. 4.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, as specified. Provides that this is not intended to replace the existing mitigation preference for historical and archaeological resources for tribal cultural resources that are also historical and archaeological resources. 5.Provides that this act does not prohibit any California Native American tribe or individual from participating in CEQA on any issue of concern as an interested California Native American tribe person, citizen, or member of the public. 6.Provides that this act does not apply only to a project that has a notice of preparation or a notice of negative declaration or mitigated negative declaration filed on or after July 1, 2015. 7.On or before July 1, 2016, requires the Office of Planning and Research to prepare and develop revisions to the Guidelines CONTINUED AB 52 Page 10 Appendix G to: A. Separate the consideration of paleontological resources from tribal cultural resources and update the relevant sample questions. B. Add consideration of TCRs with relevant sample questions. Background 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," 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. Early Consultation and Scoping . Prior to or during preparation of an EIR, the lead agency may consult with any person, organization, or government agency it believes will be concerned CONTINUED AB 52 Page 11 with the environmental effects of a project. 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." Traditionally and Culturally Affiliated . 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 U.S. 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. Culture 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 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 CONTINUED AB 52 Page 12 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). FISCAL EFFECT : Appropriation: No Fiscal Com.: Yes Local: Yes According to the Senate Appropriations Committee: One-time costs to the General Fund for the Office of Planning and Research to revise its CEQA Guidelines. One-time costs of $3 to $5 million to the General Fund to the NAHC to develop a database identifying traditional and cultural areas and the lead agencies that overlap these areas. Ongoing costs of $600,000 to the General Fund to the NAHC to assist lead agencies and maintain the required database. Unknown costs to the General Fund and various special funds for increased CEQA costs for projects which the state is the lead agency or the project proponent. SUPPORT : (Verified 8/27/14) CONTINUED AB 52 Page 13 Agua Caliente Band of Cahuilla Indians Augustine Band of Mission Indians Barbareno Chumash Tribe Barona Band of Mission Indians Bear River Band Rohnerville Rancheria Big Pine Paiute Tribe of the Owens Valley Big Sandy Rancheria Bishop Paiute Tribe Blue Lake Rancheria Bridgeport Paiute Indian Colony Buena Vista Rancheria of Me-Wuk Indians Cachil Dehe Band of Wintun Indians of the Colusa Indian Community Cahuilla Band of Mission Indians California Catholic Conference California Indian Environmental Alliance California National Indian Gaming Association California Tribal Business Association Chemehuevi Indian Tribe Clean Water Action Cloverdale Rancheria of Pomo Indians of California Coastal Band of the Chumash Nation Colorado River Indian Reservation Concow Maidu Tribe Coyote Valley Band of Pomo Indians Dry Creek Rancheria Band of Pomo Indians Elk Valley Rancheria Enterprise Rancheria Environmental Justice Coalition for Water Fernandeño Tataviam Band of Mission Indians Greenville Rancheria Habematolel Pomo of Upper Lake Hoopa Valley Tribe Ione Band of Miwok Indians Juaneno Band of Mission Indians Karuk Tribe Koi Nation of Northern California La Jolla Indian Reservation Manchester Point Arena Band of Pomo Indians Mechoopda Indian Tribe of Chico Rancheria Middletown Rancheria of Pomo Indians of California Modoc Nation Mooretown Rancheria Morongo Band of Mission Indians CONTINUED AB 52 Page 14 Nor Rel Muk Wintu Nation North Fork Rancheria Northern California Tribal Chairman's Association Ohlone/Costanoan-Esselen Nation Pala Band of Mission Indians Paskenta Band of Nomlaki Indians Pechanga Band of Luiseno Mission Indians Planning and Conservation League Redding Rancheria Resighini Rancheria Rincon Band of Luiseno Indians Robinson Rancheria Sacred Places Institute for Indigenous Peoples Sacred Sites Protection and Rights of Indigenous Tribes Salinan Nation Cultural Preservation Association San Luis Rey Band of Mission Indians San Manuel Band of Mission Indians San Pasqual Band of Mission Indians Santa Rosa Band of Mission Indians Santa Ynez Band of Chumash Indians Sherwood Valley Rancheria Sierra Club Smith River Rancheria Soboba Band of Luiseno Indians Southern California Watershed Alliance Sycuan Band of Kumeyaay Nation Table Mountain Rancheria Ti'at Society/Traditional Council of Pimu Torres Martinez Desert Cahuilla Indians Tribal Alliance of Sovereign Indian Nations Trinidad Rancheria Tule River Indian Reservation Tuolumne Band of Me-Wuk United Auburn Indian Community of the Auburn Rancheria United Coalition to Protect Panhe Viejas Band of Kumeyaay Indians Wishtoyo Foundation Wiyot Tribe Yocha Dehe Wintun Nation Yurok Tribe OPPOSITION : (Verified 8/27/14) Association of Environmental Professionals CONTINUED AB 52 Page 15 California Construction Industry Materials Association California Council for the Environment and Economic Balance California Special Districts Association Nevada County Board of Supervisors Northern Chumash Tribe Orange County Business Council Pit River Tribe Winnemem Wintu Tribe Wuksachi Band of Western Mono Indians ARGUMENTS IN SUPPORT : 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. Moreover, 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." ARGUMENTS IN OPPOSITION : California Chamber of Commerce writes in opposition: [?] The only guidance or constraints AB 52 and existing law place on the NAHC's listing of Tribal Cultural Resources is that they must be supported by "sufficient evidence demonstrating that the sacred places are of special religious or social significance to the Native American tribe." "Sufficient evidence" is not a standard of review that exists in CEQA for any other resource area and there is no case law to define what constitutes "sufficient evidence." Therefore, the practical result of AB 52 will be to create a plethora of post hoc litigation under CEQA about whether there was "sufficient evidence" to list a Tribal Cultural Resource in the first place. This flies in the face of what the author and the proponents have articulated as two of the goals of this legislation: to clarify what constitutes a Tribal Cultural Resource and to alleviate existing litigation and conflict over Tribal Cultural Resources. CONTINUED AB 52 Page 16 Ultimately, the determination as to what constitutes a Tribal Cultural Resource for CEQA purposes will be made by an eight member Commission of Native Americans with no statutory or regulatory guidance or requirement to make findings justifying their decisions. As a fiscal matter, by requiring the NAHC to evaluate whether a Tribe has provided "sufficient evidence" to support a listing request, AB 52 places an expansive new burden on the NAHC and its staff that may require a substantial augmentation of their budget and resources. AB 52 also requires the NAHC to provide "each Native American tribe with a list of all public agencies that may be a CEQA lead agency within the geographic area with which the tribe is traditionally and culturally affiliated, the contact information of those public agencies, and the information on how the tribe may request the public agency to notify the tribe of projects within the jurisdiction of those public agencies for the purposes of requesting consultation." This project will also impact an evaluation of the agency's available resources. [?] Because AB 52 leaves the definition of what constitutes a Tribal Cultural Resource so open ended, it will dramatically expand the frequency that Tribal Cultural Resources become an issue for public projects throughout the state. The costs of the CEQA evaluation and unavoidable litigation spawned by AB 52's ambiguity will be borne by entities such as CalTrans, the University of California, California State University, and the Department of General Services, among others. In conclusion, AB 52, as currently drafted, will create a disincentive to invest in land, whether it is to build affordable housing, build public schools and universities, or construct needed public infrastructure projects such as renewable energy projects, or roads and highways. ASSEMBLY FLOOR : 58-0, 6/27/13 AYES: Alejo, Allen, Ammiano, Atkins, Bloom, Blumenfield, Bocanegra, Bonilla, Bonta, Bradford, Brown, Buchanan, Ian Calderon, Campos, Chau, Chesbro, Cooley, Daly, Dickinson, Eggman, Fong, Fox, Frazier, Beth Gaines, Garcia, Gatto, Gomez, CONTINUED AB 52 Page 17 Gonzalez, Gordon, Gorell, Gray, Hall, Roger Hernández, Holden, Jones-Sawyer, Levine, Lowenthal, Medina, Mitchell, Mullin, Muratsuchi, Nazarian, Nestande, Pan, V. Manuel Pérez, Quirk, Quirk-Silva, Rendon, Salas, Skinner, Stone, Ting, Waldron, Weber, Wieckowski, Williams, Yamada, John A. Pérez NO VOTE RECORDED: Achadjian, Bigelow, Chávez, Conway, Dahle, Donnelly, Grove, Hagman, Harkey, Jones, Linder, Logue, Maienschein, Mansoor, Melendez, Morrell, Olsen, Patterson, Perea, Wagner, Wilk, Vacancy RM:e 8/27/14 Senate Floor Analyses SUPPORT/OPPOSITION: SEE ABOVE **** END **** CONTINUED