Amended in Senate June 2, 2014

Amended in Senate September 5, 2013

Amended in Senate August 26, 2013

Amended in Assembly May 30, 2013

Amended in Assembly April 19, 2013

Amended in Assembly April 8, 2013

Amended in Assembly March 19, 2013

California Legislature—2013–14 Regular Session

Assembly Bill No. 52

Introduced by Assembly Member Gatto

(Principal coauthor: Assembly Member Alejo)

(Coauthors: Assembly Members Chesbro and Lowenthal)

December 21, 2012

An act to add Sections 21073, 21074, 21080.3.1, begin insert 21080.3.2, 21082.3, end insert 21083.09, 21084.2, begin delete 21084.3, and 21097 end delete begin insert and 21084.3 end insert to the Public Resources Code, relating to Native Americans.

LEGISLATIVE COUNSEL’S DIGEST

AB 52, as amended, Gatto. Native Americans: California Environmental Quality Act.

Existing law, the Native American Historic Resource Protection Act, establishes a misdemeanor for unlawfully and maliciously excavating upon, removing, destroying, injuring, or defacing a Native American historic, cultural, or sacred site, that is listed or may be eligible for listing in the California Register of Historic Resources.

The California Environmental Quality Act, referred to as CEQA, requires a lead agency, as defined, to prepare, or cause to be prepared, and certify the completion of, an environmental impact report on a project that it proposes to carry out or approve that may have a significant effect on the environment or to adopt a negative declaration if it finds that the project will not have that effect. CEQA also requires a lead agency to prepare a mitigated negative declaration for a project that may have a significant effect on the environment if revisions in the project would avoid or mitigate that effect and there is no substantial evidence that the project, as revised, would have a significant effect on the environment. CEQA requires the lead agency to provide a responsible agency with specified notice and opportunities to comment on a proposed project. CEQA requires the Office of Planning and Research to prepare and develop, and the Secretary of the Natural Resources Agency to certify and adopt, guidelines for the implementation of CEQA that include, among other things, criteria for public agencies to following in determining whether or not a proposed project may have a significant effect on the environment.

This bill would specify that a project having a potential to cause a substantial adverse change begin delete in the significance of end delete begin insert to end insert a tribal begin insert cultural end insert resource, as defined, to be a project that may have a significant effect on the environment. begin delete The bill would require the implementation, if feasible, of specified mitigation measures if the lead agency determines that a project will have a substantial adverse change on a tribal cultural resource. For a tribal cultural resource that is a sacred place, the bill would prohibit severe or irreparable damage to that resource, or interference with the free expression or exercise of a Native American religion unless a clear and convincing showing that the public interest and necessity so require. end delete The bill would require a lead agency to consult with Native American tribes that are traditionally and culturally affiliated with the geographic area of the proposed project begin delete that end delete begin insert and end insert have requested begin insert to the lead agency or the California Native American Heritage Commission end insert , in writing, to be informed by the lead agency of proposed projects in that geographic area prior to determining whether a negative declaration, mitigated negative declaration, or environmental impact report is required for a begin delete project. The bill would require the Native American tribe wishing to consult the lead agency regarding a project to notify the lead agency, as specified. end delete begin insert project. The bill would also require the lead agency to consult with Native American tribes on the adequacy of the proposed negative declaration, mitigated negative declaration, or environmental impact required for the project. The bill would specify examples of mitigation measures that may be considered to avoid or minimize impacts on tribal cultural resources. end insert The bill would make the above provisions applicable to projects that have filed a notice of preparation or a notice of negative declaration or mitigated negative declaration on or after January 1, begin delete 2014. end delete begin insert 2015. end insert The bill would require the Office of Planning and Research to revise the guidelines to separate the consideration of cultural resources from that for paleontological resources and add consideration of tribal cultural resources. By requiring the lead agency to consider these effects relative to Native Americans and to conduct additional consultations, this bill would impose a state-mandated local program.

The California Constitution requires the state to reimburse local agencies and school districts for certain costs mandated by the state. Statutory provisions establish procedures for making that reimbursement.

This bill would provide that no reimbursement is required by this act for a specified reason.

Vote: majority. Appropriation: no. Fiscal committee: yes. State-mandated local program: yes.

The people of the State of California do enact as follows:

SECTION 1.  

(a) The Legislature finds and declares all of the
following:

(1) Current state law provides a limited measure of protection
for sites, features, places, objects, and landscapes with cultural
value to California Native American tribes.

(2) Existing law provides limited protection for Native American
sacred places, including, but not limited to, places of worship,
religious or ceremonial sites, and sacred shrines.

(3) The California Environmental Quality Act (Division 13
(commencing with Section 21000) of the Public Resources Code)
does not readily or directly include California Native American
tribes’ knowledge and concerns. This has resulted in significant
environmental impacts to tribal cultural resources and sacred
places, including cumulative impacts, to the detriment of California
Native American tribes and California’s environment.

(4) As California Native Americans have used, and continue to
use, natural settings in the conduct of spiritual practices, religious
observances, ceremonies, begin insert and end insert cultural begin delete practices, end delete begin insert practices end insert and
beliefs, these resources reflect the tribes’ continuing cultural ties
to the land and their traditional heritages.

(5) Many of these archaeological, historical, cultural, and sacred
sites are not located within the current boundaries of California
Native American reservations and rancherias, and therefore are
not covered by the protectionist policies of tribal governments.

(b) In recognition of California Native American tribal
sovereignty and the unique relationship of California local
governments and public agencies with California Native American
tribal governments, and respecting the interests and roles of project
proponents, it is the intent of the Legislature, in enacting this act,
to accomplish all of the following:

(1) Recognize that California Native American prehistoric,
historic, archaeological, cultural, and sacred places are essential
elements in tribal cultural traditions, heritages, and identities.

(2) Establish that federally recognized begin delete California end delete Native
American tribes begin insert in California end insert have a tribal government role in the
California Environmental Quality Act.

(3) Establish a new category of resources in the California
Environmental Quality Act called “tribal cultural resources” that
considers the tribal cultural values in addition to the scientific and
archaeological begin delete values. end delete begin insert values when determining impacts and
mitigation. end insert

(4) Recognize begin insert that end insert California Native American tribes have
expertise with regard to their tribal history and practices, which
concern the tribal cultural resources begin insert and associated environment end insert
with which they are traditionally and culturally affiliated. Because
the California Environmental Quality Act calls for a sufficient
degree of analysis, tribal knowledge about the begin delete land and end delete begin insert land, end insert tribal
cultural begin delete resources end delete begin insert resources, and associated environment end insert at issue
should be included in environmental assessments for projects that
may have a significant impact on those resources.

(5) Establish a meaningful consultation process between
California Native American tribal governments and lead agencies,
respecting the interests and roles of project proponents and the
level of required confidentiality concerning tribal cultural
resources, at the earliest possible point in the California
Environmental Quality Act environmental review process, so that
tribal cultural resources can be identified, and culturally appropriate
mitigation and mitigation monitoring programs can be considered
by the decisionmaking body of the lead agency.

(6) Ensure that local and tribal governments, public agencies,
and project proponents have information available begin insert , end insert early in the
California Environmental Quality Act environmental review
process, for purposes of identifying and addressing potential
adverse impacts to tribal cultural resources and to reduce the
potential for delay and conflicts in the environmental review
process.

(7) Enable California Native American tribes to manage and
accept conveyances of, and act as caretakers of, tribal cultural
resources.

(8) Establish that a substantial adverse change to a tribal cultural
resource has a significant effect on the environment.

SEC. 2.  

Section 21073 is added to the Public Resources Code,
to read:

21073.  

“Native American tribe” means a federally recognized
Indian tribe located in California.

SEC. 3.  

Section 21074 is added to the Public Resources Code,
to read:

21074.  

(a)  begin delete “Tribal end delete begin insert (1) end insert begin insert   end insert begin insert Unless a preponderance of the evidence
demonstrates that the resources are not culturally significant,
“tribal end insert cultural resources” begin delete means end delete begin insert are end insert either of the following:

begin delete

(1)

end delete

begin insert (A) end insert  Sites, features, places, objects with cultural value to
descendant communities, or cultural landscapes that are consistent
with the guidance of the United States National Park Service and
the federal Advisory Council on Historic Preservation, that are
begin delete listed in or determined to be eligible for listing end delete begin insert included end insert in any of
the following:

begin delete

(A)

end delete

begin insert (i) end insert  The California Register of Historical Resources.

begin delete

(B)

end delete

begin insert (ii) end insert  A local register of historical resources as defined in
subdivision (k) of Section 5020.1.

begin delete

(C)

end delete

begin insert (iii) end insert  A resource deemed to be significant pursuant to begin insert criteria
set forth in end insert subdivision begin delete (g) end delete begin insert (c) end insert of Section 5024.1.

begin delete

(2)

end delete

begin insert (B) end insert  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:

begin delete

(A)

end delete

begin insert (i) end insert  Listed on the California Native American Heritage
Commission’s Sacred Lands File pursuant to Section 5097.94 or
5097.96.

begin delete

(B)

end delete

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

begin insert

(2) The fact that a resource is not included in the California
Register of Historic Places, not listed in California Native
American Heritage Commission’s Sacred Lands File, not included
in a local register of historical resources, not deemed significant
pursuant to criteria set forth in subdivision (c) of Section 5024.1,
or not deemed eligible pursuant to criteria set forth in subdivision
(g) of Section 5024.1 for listing in the California Register of
Historic Places shall not preclude a lead agency from determining
whether the resource is a tribal cultural resource for the purposes
of this division.

end insert

(b) A historical resource described in Section 21084.1, a unique
archaeological resource as defined in subdivision (g) of Section
21083.2, or a “nonunique archaeological resource” as defined in
subdivision (h) of Section 21083.2, may begin insert also end insert be a tribal cultural
resource if it conforms with the criteria of begin insert paragraph (1) of, or the
lead agency determines the resource to be a tribal cultural resource
pursuant to paragraph (2) of, end insert subdivision (a).

SEC. 4.  

Section 21080.3.1 is added to the Public Resources
Code, to read:

21080.3.1.  

(a)  begin delete Prior end delete begin insert Native American tribes that are
traditionally and culturally affiliated with a geographic area may
have expertise concerning their tribal cultural resources in
identifying, interpreting, and determining significance of tribal
cultural resources and whether an impact of a proposed project
to a tribal cultural resource is significant. end insert

begin insert (b) end insert begin insert   end insert begin insert Prior end insert to determining whether a negative declaration,
mitigated negative declaration, or environmental impact report is
required for a project, the lead agency shall begin delete initiate consultation end delete
begin insert consult, regarding the appropriate level of environmental review
for a project, end insert with Native American tribes that are traditionally
and culturally affiliated with the geographic area of the proposed
project begin delete that end delete begin insert and end insert have requested begin insert to the lead agency or the Native
American Heritage Commission end insert , in writing, to be informed by the
lead agency begin insert through formal notification end insert of proposed projects in
that geographic area. begin delete For an activity directly undertaken by a public
agency, the lead agency may also provide for early consultation
as described in Section 21097 to identify alternatives, mitigation
measures, and significant effects regarding issues of concern to
the Native American tribe to be analyzed in depth in the
environmental documents. end delete begin insert If the Native American tribe responds
to the formal notification, the consultation shall proceed and shall
be deemed concluded as described in subdivision (d) of Section
21080.3.2. For purposes of this section, “Consultation” shall have
the same meaning as provided in Section 20180.3.2. end insert

begin delete

(b) Because Native American tribes that are traditionally and
culturally affiliated with a geographic area may have expertise
concerning their tribal lands and resources in identifying,
interpreting, and determining significance of tribal cultural
resources and whether an impact of a proposed project to a tribal
cultural resource is significant, the lead agency shall consult with
Native American tribes, as set forth in subdivision (a), in making
a determination pursuant to subdivision (a) and as set forth in
Sections 21084.2 and 21097.

end delete

(c) To expedite the requirements of this section, the Native
American Heritage Commission shall assist the lead agency in
identifying the traditionally and culturally affiliated Native
American tribes. begin insert The lead agency formal notification to the
traditionally and culturally affiliated Native American tribes that
have requested notice shall be accomplished by means of at least
one written notification that includes information about the project
and the project location and description, consistent with the
information about the project required to be provided under
paragraph (1) of subdivision (b) of Section 21092, and shall be
deemed sufficient to qualify as formal notification pursuant to
subdivision (b). end insert

begin delete

(d) (1) 

end delete

begin insert

begin insert SEC. 5. end insert   

end insert

begin insert Section 21080.3.2 is added to the end insert begin insert Public Resources
Code end insert begin insert , to read: end insert

begin insert

begin insert 21080.3.2. end insert   

end insert

begin insert (a) end insert begin insert   end insert For the purposes of this section and Section
begin delete 21097, end delete begin insert 21080.3.1, end insert “consultation” means the begin delete meaningful and timely end delete
process of begin insert acting in good faith in end insert seeking, discussing, and
considering carefully the view of others, begin delete in a manner that is
cognizant of all parties’ cultural values end delete 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 begin delete sovereignty. Consultation shall recognize
the tribes’ potential needs for confidentiality with respect to places
that have traditional tribal cultural significance. end delete begin insert sovereignty, tribal
cultural values, and confidentiality as provided in Section 21082.3. end insert

begin insert

(b) (1) If the lead agency has distributed a proposed negative
declaration or mitigated negative declaration, the lead agency
shall engage in consultation with a Native American tribe that
responded to the formal notification described in Section 21080.3.1
no later than the comment period described in Section 21091.

end insert begin insert

(2) If the lead agency has distributed a notice of preparation of
an environmental impact report, the lead agency shall engage in
consultation with a Native American tribe that responded to the
formal notification described in Section 21080.3.1 prior to the end
of the comment period described in Section 21091.

end insert begin insert

(c) As a part of the consultation process, the parties may propose
mitigation measures, including, but not limited to, those
recommended in Section 21084.3, capable of avoiding or
substantially lessening potential significant impacts to a tribal
cultural resource or alternatives that would avoid significant
impacts to a tribal cultural resource. If the Native American tribe
requests consultation regarding alternatives to the project,
recommended mitigation measures, significant effects, or ranges
of action to be analyzed, the consultation shall include those topics.
The consultation may include discussion concerning the
significance of tribal cultural resources, the significance of the
project’s impacts on the tribal cultural resources, and, if necessary,
project alternatives or the appropriate measures for preservation
or mitigation that the Native American tribe may recommended
to the lead agency.

end insert begin delete

(2)

end delete

begin insert (d) end insert  The consultation shall be considered concluded at the point
at which begin delete the parties to the consultation come to a mutual agreement
concerning the appropriate measures for preservation or mitigation
that will be recommended to the lead agency, or either end delete the
authorized representative of the lead agency participating in the
consultation or begin insert the end insert Native American tribe, acting in good begin delete faith and
after reasonable effort, end delete begin insert faith, end insert concludes that mutual agreement
cannot be begin delete reached concerning recommended appropriate measures
of preservation or mitigation. end delete begin insert reached. end insert

begin delete

(3) If the project proponent or its consultants participate in the
consultation, those parties shall respect the principles set forth in
this subdivision.

end delete begin insert

(e) (1) This section does not limit the ability of a Native
American tribe or the public to submit information to the lead
agency regarding the significance of the tribal cultural resources,
the significance of the project’s impact on tribal cultural resources,
or any appropriate measures to mitigate the impact.

end insert begin insert

(2) This section does not limit the ability of the lead agency or
project proponent to incorporate changes and additions to the
project as a result of the consultation, even if not legally required.

end insert begin insert

(3) This section is not intended to replace the existing mitigation
preference for historical and archaeological resources requiring
the lead agency, when feasible, to first consider preservation in
place.

end insert begin insert

(f) If the project proponent or its consultants participate in the
consultation, those parties shall respect the principles set forth in
this section.

end insert begin insert

(g) It is the intent of the Legislature that the lead agency shall
engage in early and meaningful consultation with Native American
tribes that begins at the scoping period prior to the determination
of project alternatives and before the public review period for the
environmental documents. Each party shall act in good faith in
compliance with these provisions and their compliance shall be
governed by a rule of reason.

end insert begin delete

(e)

end delete

begin insert (h) end insert  This section shall 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 January 1, begin delete 2014. end delete begin insert 2015. end insert

begin insert

begin insert SEC. 6. end insert   

end insert

begin insert Section 21082.3 is added to the end insert begin insert Public Resources Code end insert begin insert ,
to read: end insert

begin insert

begin insert 21082.3. end insert   

(a) Any mitigation measures agreed upon in the
consultation conducted pursuant to Section 21080.3.2 shall be
recommended for inclusion in the environmental document and in
an adopted mitigation monitoring program, if determined to avoid
or lessen the impact pursuant to paragraph (2) of subdivision (b),
and shall be fully enforceable through conditions, agreements, or
measures.

(b) If a project may have a significant impact on a tribal cultural
resource, the lead agency’s environmental document shall discuss
both of the following:

(1) Whether the proposed project has a significant impact on
an identified tribal cultural resource.

(2) Whether feasible alternatives or mitigation measures,
including those measures that may be agreed to pursuant to
subdivision (a), avoid or substantially lessen the impact to the
identified tribal cultural resource.

(c) (1) Any information, including, but not limited to, the
location, nature, and use of the tribal cultural resource that is
submitted by a Native American tribe during the consultation
process may not be included in the environmental document or
otherwise disclosed by the lead agency or any other public agency
to the public without the prior consent of the tribe that provided
the information. If the lead agency publishes any information
submitted by a Native American tribe during the consultation
process, that information shall be published in a confidential
appendix to the environmental document unless the tribe that
provided the information consents, in writing, to the disclosure of
some or all of the information to the public. This subdivision does
not prohibit the confidential exchange of the submitted information
between public agencies that have lawful jurisdiction over the
preparation of the environmental document.

(2) This subdivision does not affect or alter the application of
subdivision (r) of Section 6254 of the Government Code.

(3) This subdivision does not prevent a lead agency or other
public agency from describing the information in general terms
in the environmental document so as to inform the public of the
basis of the lead agency’s or other public agency’s decision without
breaching the confidentiality required by this subdivision.

(d) The lead agency may issue a permit or grant an approval
for a project with a significant impact on an identified tribal
cultural resource only if one of the following occurs:

(1) Mitigation measures agreed to during the consultation
process pursuant to subdivision (a) 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.

(2) The Native American tribe accepts the mitigation measures
proposed in the draft or final environmental document and
mitigation monitoring and reporting program.

(3) Consultation between the Native American tribes and the
lead agency has occurred pursuant to Section 21080.3.2.

(4) The Native American tribe has received notice of, and has
failed to comment on or reject, the proposed mitigation measures
during the public comment period established in Section 21091
and any public hearing on the project required by or held pursuant
to this division.

(e) If the mitigation measures recommended by the staff of the
lead agency as a result of the consultation process 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 tribal cultural resource, the lead agency
shall consider feasible mitigation pursuant to subdivision (a) of
Section 21084.3.

(f) This section is not intended, and may not be construed, to
limit consultation between the state and tribal governments,
existing confidentiality provisions, or the protection of religious
exercise to the fullest extent permitted under state and federal law.

(g) This section shall 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 January 1, 2015.

end insert

begin delete SEC. 5. end delete
begin insert SEC. 7. end insert   

Section 21083.09 is added to the Public Resources
Code, to read:

21083.09.  

On or before January 1, begin delete 2015, end delete begin insert 2016, end insert the Office of
Planning and Research shall prepare and develop, and the Secretary
of the Natural Resources Agency shall certify and adopt, revisions
to the guidelines that begin delete revise end delete begin insert update end insert Appendix G of Chapter 3
(commencing with Section 15000) of Division 6 of Title 4 of the
California Code of Regulations to do both of the following:

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

(b) Add consideration of tribal cultural resources with relevant
sample questions.

begin delete SEC. 6. end delete
begin insert SEC. 8. end insert   

Section 21084.2 is added to the Public Resources Code,
to read:

21084.2.  

(a) A project may have a significant effect on the
environment if the project has the potential of causing a substantial
adverse change begin delete in the significance of end delete begin insert to end insert a tribal cultural resource.

(b) This section shall 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 January 1, begin delete 2014. end delete begin insert 2015. end insert

begin delete SEC. 7. end delete
begin insert SEC. 9. end insert   

Section 21084.3 is added to the Public Resources Code,
to read:

21084.3.  

(a) If the lead agency determines that a project may
cause a substantial adverse change to a tribal cultural resource,
begin insert and measures are not otherwise identified in the consultation
process provided in Section 21080.3.2, end insert the following begin insert are examples
of end insert mitigation measures begin delete are recommended, in order of preference,
that end delete begin insert that, if feasible, end insert may begin insert be considered to end insert avoid or minimize the
significant adverse begin delete impacts and shall be considered, if feasible: end delete
begin insert impacts: end insert

(1)  begin delete Planning end delete begin insert Avoidance and preservation of the resources in
place, including, but not limited to, planning and end insert construction to
avoid the resources and protect the cultural and natural context,
or planning greenspace, parks, or other open space, to incorporate
the resources with culturally appropriate protection and
management criteria.

begin delete

(2) Consideration of project alternatives that protect the
resources.

end delete begin insert

(2) Treating the resource with culturally appropriate dignity
taking into account the tribal cultural values and meaning of the
resource, including, but not limited to, the following:

end insert begin insert

(A) Protecting the cultural character and integrity of the
resource.

end insert begin insert

(B) Protecting the traditional use of the resource.

end insert begin insert

(C) Protecting the confidentiality of the resource.

end insert

(3)  begin delete Conveyance of resources into permanent end delete begin insert Permanent end insert
conservation easements or other interests in real property, with
culturally appropriate management criteria for the purposes of
preserving or utilizing the resources or places.

begin delete

(4) Adopting mitigation measures that treat the resources with
culturally appropriate dignity taking into account the tribal value
and meaning of the resource including, but not limited to, the
following:

end delete begin delete

(A) Mitigation that protects the cultural character and integrity
of the resource.

end delete begin delete

(B) Mitigation that protects the traditional use of the resource.

end delete begin delete

(C) Mitigation that protects the confidentiality of the resource.

end delete begin insert

(4) Protecting the resource.

end insert

(5)  begin insert (a) end insert begin insert   end insert Any of the examples of treatments set forth in Section
21083.2, if begin delete executed with culturally appropriate dignity. end delete begin insert they do
not conflict with paragraphs (1) to (4), inclusive. end insert

begin insert

(b) Public agencies shall, when feasible, seek to avoid damaging
effects to any tribal cultural resource.

end insert begin delete

(b)

end delete

begin insert (c) end insert  This section shall 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 January 1, begin delete 2014. end delete begin insert 2015. end insert

begin delete

SEC. 8.  

Section 21097 is added to the Public Resources Code,
to read:

21097.  

(a) A Native American tribe that is traditionally and
culturally affiliated with the geographic area of the proposed project
wishing to consult with the lead agency to discuss potentially
feasible means by which potentially significant impacts on a tribal
cultural resources can be feasibly avoided or minimized to less
than significant, shall notify the lead agency prior to the public
review period established by Section 21091, but no later than 30
days after receipt of the lead agency’s notice of preparation of an
environmental impact report or 20 days after receipt of the lead
agency’s notice of a negative declaration or mitigated negative
declaration. The lead agency shall provide to the Native American
tribe copies of any environmental document or technical report
relied on by the lead agency. The Native American tribe may
request or consent to the project proponent, Native American
Heritage Commission, the State Office of Historic Preservation,
and other relevant agencies or entities participating in portions of
the consultation process to seek mutually agreeable methods of
avoiding or otherwise mitigating the potential adverse effects. As
part of the consultation process, the parties may propose mitigation
measures capable of avoiding or substantially lessening potential
significant impacts to a tribal cultural resource.

(b) Any mitigation measures agreed upon in the consultation
shall be recommended by the lead agency staff to the
decisionmaking body of the lead agency participating in the
consultation as mitigation measures in the final environmental
document and the mitigation monitoring program, if determined
to avoid or lessen the impact pursuant to paragraph (2) of
subdivision (c), and shall be fully enforceable through conditions,
agreements, or measures.

(c) If a project may have a significant impact on a tribal cultural
resource, the lead agency’s environmental document shall discuss
both of the following:

(1) Whether the proposed project has a significant impact on
an identified tribal cultural resource.

(2) Whether feasible alternatives or mitigation measures,
including those measures that may be agreed to pursuant to
subdivision (a), avoid or substantially lessen the impact to the
identified tribal cultural resource.

(d) (1) Any information, including, but not limited to, the tribal
cultural resource that is submitted by a Native American tribe
during the consultation process may not be included in the
environmental document or otherwise disclosed by the lead agency
or any other public agency to the public without the prior consent
of the tribe that provided the information. Any information
submitted by a Native American tribe during the consultation
process shall be published in a confidential appendix to the
environmental document unless the tribe consents, in writing, to
disclosure of all or some of the information to the public. This
subdivision is not intended, and may not be construed, to prohibit
the confidential exchange of the submitted information between
public agencies that have lawful jurisdiction over the preparation
of the environmental document.

(2) This subdivision does not affect or alter the application of
subdivision (r) of Section 6254 of the Government Code.

(3) This subdivision does not prevent a lead agency or other
public agency from describing the information in general terms in
the environmental document so as to inform the public of the basis
of the lead agency’s or other public agency’s decision without
breaching the confidentiality required by this subdivision.

(e) The lead agency for the proposed project may issue a permit
or grant an approval for a project with a significant impact on an
identified tribal cultural resource only if one of the following
occurs:

(1) Mitigation measures agreed to during the consultation
process pursuant to subdivision (b) 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.

(2) The Native American tribe accepts the mitigation measures
proposed in the draft or final environmental document and
mitigation monitoring and reporting program.

(3) Consultation between the Native American tribes and the
lead agency has occurred pursuant to Section 65352.4 of the
Government Code and Section 21080.3.1.

(4) The Native American tribe has received notice of, and has
failed to comment on or reject, the proposed mitigation measures
during the public comment period established in Section 21091
and any public hearing on the project required by or held pursuant
to this division.

(f) If the mitigation measures recommended by the staff of the
lead agency as a result of the consultation process 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 tribal cultural resource, the lead agency shall
consider feasible mitigation pursuant to subdivision (a) of Section
21084.3.

(g) It is the intent of the Legislature that the lead agency engage
in early consultation with the Native American tribe before the
public review period for the environmental documents commences.

(h) This section is not intended, and may not be construed, to
limit consultation between the state and tribal governments,
existing confidentiality provisions, or the protection of religious
exercise to the fullest extent permitted under state and federal law.

(i) This section shall 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 January 1, 2014.

end delete

begin delete SEC. 9. end delete
begin insert SEC. 10. end insert   

(a) This act does not alter or expand the applicability
of the California Environmental Quality Act (Division 13
(commencing with Section 21000) of the Public Resources Code)
concerning projects occurring on Native American tribal
reservations or rancherias.

(b) This act does not prohibit any Native American tribe or
nonfederally recognized tribe from participating in the California
Environmental Quality Act on any issue of concern as an interested
person, citizen, or member of the public.

begin insert

(c) This act does not prohibit any lead agency from consulting
with nonfederally recognized Native American tribes.

end insert

begin delete SEC. 10. end delete
begin insert SEC. 11. end insert   

No reimbursement is required by this act pursuant to
Section 6 of Article XIII B of the California Constitution because
a local agency or school district has the authority to levy service
charges, fees, or assessments sufficient to pay for the program or
level of service mandated by this act, within the meaning of Section
17556 of the Government Code.