Amended in Senate August 19, 2014

Amended in Senate July 2, 2014

Amended in Senate June 16, 2014

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 amend Section 5097.94 of, and to add Sections 21073, 21074, 21080.3.1, 21080.3.2, 21082.3, 21083.09, 21084.2, and 21084.3 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 with an effect that may cause a substantial adverse change in the significance of a tribal cultural resource, as defined, is a project that may have a significant effect on the environment. The bill would require a lead agency to begin consultation with a begin insert federally recognized California end insert Native American tribe that is traditionally and culturally affiliated with the geographic area of the proposed project, if the tribe requested to the lead agency, in writing, to be informed by the lead agency of proposed projects in that geographic area and the tribe requests consultation, prior to determining whether a negative declaration, mitigated negative declaration, or environmental impact report is required for a project. The bill would specify examples of mitigation measures that may be considered to avoid or minimize impacts on tribal cultural resources. The bill would make the above provisions applicable to projects that have a notice of preparation or a notice of negative declaration filed or mitigated negative declaration on or after January 1, 2015. The bill would require the Office of Planning and Research to revise the guidelines to separate the consideration of begin insert tribal end insert 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 begin delete Native Americans end delete begin insert tribal cultural resources end insert and to conduct begin delete additional consultations, end delete begin insert consultation with federally recognized California Native American tribes, end insert this bill would impose a state-mandated local program.

Existing law establishes the Native American Heritage Commission and vests the commission with specified powers and duties.

This bill would additionally require the commission to provide each begin insert federally recognized California end insert 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.

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 religious observances,
ceremonies, and cultural practices 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.

begin delete

(2) Establish a consultation process for federally recognized
Native American tribes in California in the California
Environmental Quality Act.

end delete begin delete

(3)

end delete

begin insert (2) end insert  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 values when determining impacts and mitigation.

begin insert

(3) Establish examples of mitigation measures for tribal cultural
resources that uphold the existing mitigation preference for
historical and archaeological resources of preservation in place,
if feasible.

end insert

(4) Recognize that California Native American tribes may have
expertise with regard to their tribal history and practices, which
concern the tribal cultural resources 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 land and tribal cultural resources at
issue should be included in environmental assessments for projects
that may have a significant impact on those resources.

(5)  begin delete Establish end delete begin insert In recognition of their governmental status,
establish end insert a meaningful consultation process between begin insert federally
recognized end insert California Native American tribal governments and
lead agencies, respecting the interests and roles of begin delete project
proponents end delete begin insert all California Native American tribes and project
proponents, end insert 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.

begin insert

(6) Recognize the unique history of California Native American
tribes and uphold existing rights of all California Native American
tribes to participate in, and contribute their knowledge to, the
environmental review process pursuant to the California
Environmental Quality Act (Division 13 (commencing with Section
21000) of the Public Resources Code).

end insert begin delete

(6)

end delete

begin insert (7) end insert  Ensure that local and tribal governments, public agencies,
and project proponents have information available, 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.

begin delete

(7)

end delete

begin insert (8) end insert  Enable California Native American tribes to manage and
accept conveyances of, and act as caretakers of, tribal cultural
resources.

begin delete

(8)

end delete

begin insert (9) end insert  Establish that a substantial adverse change to a tribal cultural
resource has a significant effect on the environment.

SEC. 2.  

Section 5097.94 of the Public Resources Code is
amended to read:

5097.94.  

The commission shall have the following powers and
duties:

(a) 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. The identification
and cataloguing of known graves and cemeteries shall be completed
on or before January 1, 1984. The commission shall notify
landowners on whose property such graves and cemeteries are
determined to exist, and shall identify the Native American group
most likely descended from those Native Americans who may be
interred on the property.

(b) To make recommendations relative to Native American
sacred places that are located on private lands, are inaccessible to
Native Americans, and have cultural significance to Native
Americans for acquisition by the state or other public agencies for
the purpose of facilitating or assuring access thereto by Native
Americans.

(c) To make recommendations to the Legislature relative to
procedures which will voluntarily encourage private property
owners to preserve and protect sacred places in a natural state and
to allow appropriate access to Native American religionists for
ceremonial or spiritual activities.

(d) To appoint necessary clerical staff.

(e) To accept grants or donations, real or in kind, to carry out
the purposes of this chapter.

(f) To make recommendations to the Director of Parks and
Recreation and the California Arts Council relative to the California
State Indian Museum and other Indian matters touched upon by
department programs.

(g) To bring an action to prevent severe and irreparable damage
to, or assure appropriate access for Native Americans to, a Native
American sanctified cemetery, place of worship, religious or
ceremonial site, or sacred shrine located on public property,
pursuant to Section 5097.97. If the court finds that severe and
irreparable damage will occur or that appropriate access will be
denied, and appropriate mitigation measures are not available, it
shall issue an injunction, unless it finds, on clear and convincing
evidence, that the public interest and necessity require otherwise.
The Attorney General shall represent the commission and the state
in litigation concerning affairs of the commission, unless the
Attorney General has determined to represent the agency against
whom the commission’s action is directed, in which case the
commission shall be authorized to employ other counsel. In any
action to enforce the provisions of this subdivision the commission
shall introduce evidence showing that such cemetery, place, site,
or shrine has been historically regarded as a sacred or sanctified
place by Native American people and represents a place of unique
historical and cultural significance to an Indian tribe or community.

(h) To request and utilize the advice and service of all federal,
state, local, and regional agencies.

(i) To assist Native Americans in obtaining appropriate access
to sacred places that are located on public lands for ceremonial or
spiritual activities.

(j) To assist state agencies in any negotiations with agencies of
the federal government for the protection of Native American
sacred places that are located on federal lands.

(k) To mediate, upon application of either of the parties, disputes
arising between landowners and known descendents relating to
the treatment and disposition of Native American human burials,
skeletal remains, and items associated with Native American
burials.

The agreements shall provide protection to Native American
human burials and skeletal remains from vandalism and inadvertent
destruction and provide for sensitive treatment and disposition of
Native American burials, skeletal remains, and associated grave
goods consistent with the planned use of, or the approved project
on, the land.

(l) To assist interested landowners in developing agreements
with appropriate Native American groups for treating or disposing,
with appropriate dignity, of the human remains and any items
associated with Native American burials.

(m) To provide each begin insert federally recognized California end insert Native
American tribe, begin delete as defined in Section 21073, end delete on or before July 1,
2016, with a list of all public agencies that may be a lead agency
pursuant to Division 13 (commencing with Section 21000) within
the geographic area with which the tribe is traditionally and
culturally affiliated, the contact information of those public
agencies, and 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
pursuant to Section 21080.3.1.

SEC. 3.  

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

21073.  

begin delete “Native end delete begin insert “California Native end insert American tribe” means a
federally recognized begin delete Indian end delete begin insert Native American end insert tribe begin insert located in
California or a nonfederally recognized Native American tribe end insert
located in begin delete California. end delete begin insert California that is on the contact list
maintained by the Native American Heritage Commission for the
purposes of Chapter 905 of the Statutes of 2004. end insert

SEC. 4.  

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

21074.  

(a) “Tribal cultural resources” are either of the
following:

(1) Sites, features, places, and objects with cultural value to
descendant communities or cultural landscapes, that are any of the
following:

(A) Included in the California Register of Historical Resources.

(B) Included in a local register of historical resources as defined
in subdivision (k) of Section 5020.1.

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

(2) 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:

(A) Listed on the California Native American Heritage
Commission’s Sacred Lands File pursuant to Section 5097.94 or
5097.96 begin delete for which a end delete begin insert and a California end insert Native American tribe has
submitted sufficient evidence begin insert to the lead agency end insert demonstrating
that the sacred places are of special religious or begin delete social end delete begin insert cultural end insert
significance to the begin insert California end insert Native American tribe or contain
known graves and cemeteries of begin insert California end insert Native Americans.

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

(b) A cultural landscape that meets the criteria of subdivision
(a) is a tribal cultural resource to the extent that the landscape is
geographically defined in terms of the size and scope of the
landscape.

(c) 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 also be a tribal cultural
resource if it conforms with the criteria of subdivision (a).

SEC. 5.  

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

21080.3.1.  

(a)  begin insert The Legislature finds and declares that end insert Native
American tribes begin delete that are end delete traditionally and culturally affiliated with
a geographic area may have expertise concerning their tribal
cultural begin delete resources. end delete begin insert resources that may inform the lead agency in
its identification and determination of the significance of tribal
cultural resources and whether an impact of a proposed project
to a tribal cultural resource is significant. end insert

(b) Prior to determining whether a negative declaration,
mitigated negative declaration, or environmental impact report is
required for a project, the lead agency shall begin consultation
with a begin insert federally recognized California end insert Native American tribe that
is traditionally and culturally affiliated with the geographic area
of the proposed project if: (1) the begin insert federally recognized California end insert
Native American tribe requested to the lead agency, in writing, to
be informed by the lead agency through formal notification of
proposed projects in the geographic area that is traditionally and
culturally affiliated with the tribe, and (2) the begin insert federally recognized
California end insert Native American tribe responds, in writing, within 30
days of receipt of the formal notification, and requests the
consultation. For purposes of this section and Section 21080.3.2,
“consultation” shall have the same meaning as provided in Section
65352.4 of the Government Code.

(c) To expedite the requirements of this section, the Native
American Heritage Commission shall assist the lead agency in
identifying the begin delete traditionally and culturally affiliated end delete begin insert California end insert
Native American tribes begin delete within end delete begin insert that are traditionally and culturally
affiliated with end insert the project area. begin delete Within end delete

begin insert (d) end insert begin insert   end insert begin insert Within end insert 14 days of determining that an application for a
project is complete or a decision by a public agency to undertake
a project, the lead agency shall provide formal notification to the
designated contact of, or a tribal representative of, traditionally
and culturally affiliated begin insert federally recognized California end insert 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 information, and a notification that the
begin insert federally recognized California Native American end insert tribe has 30 days
to request consultation pursuant to this section.

begin delete

(d)

end delete

begin insert (e) end insert  The lead agency shall begin the consultation process within
begin delete 14 end delete begin insert 30 end insert days of receiving a begin insert federally recognized California end insert Native
American tribe’s request for consultation.

SEC. 6.  

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

21080.3.2.  

(a) As a part of the consultation pursuant to Section
21080.3.1, 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 begin insert federally
recognized California end insert Native American tribe requests consultation
regarding alternatives to the project, recommended mitigation
measures, or significant effects, 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 begin insert federally recognized California end insert Native
American tribe may recommended to the lead agency.

(b) The consultation shall be considered concluded when either
of the following occurs:

(1) The parties agree to measures to mitigate or avoid a
significant begin delete effect end delete begin insert effect, if a significant effect exists, end insert on a tribal
cultural resource.

(2) A party, acting in good faith and after reasonable effort,
concludes that mutual agreement cannot be reached concerning
appropriate measures to be taken that would mitigate or avoid a
significant begin delete effect end delete begin insert effect, if a significant effect exists, end insert on a tribal
cultural resource.

(c) (1) This section does not limit the ability of a begin insert California end insert
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.

(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.

begin delete

(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 delete

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

(e) 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.

SEC. 7.  

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

21082.3.  

(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.

(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 on the
identified tribal cultural resource.

(c) (1) Any information, including, but not limited to, the
location, begin delete nature, end delete begin insert description, end insert and use of the tribal cultural resources,
that is submitted by a begin insert California end insert Native American tribe during the
begin delete consultation end delete begin insert environmental review end insert process begin delete may end delete begin insert shall end insert not be
included in the environmental document or otherwise disclosed
by the lead agency or any other public agency to the public begin insert ,
consistent with subdivision (r) of Section 6254 of, and Section
6254.10 of, the Government Code, and subdivision (d) of Section
15120 of Title 14 of the California Code of Regulations, end insert without
the prior consent of the tribe that provided the information. If the
lead agency publishes any information submitted by a begin insert California end insert
Native American tribe during the consultation begin insert or environmental
review end insert 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.

begin insert

(2) (A) This subdivision does not prohibit the confidential
exchange of information regarding tribal cultural resources
submitted by a California Native American tribe during the
consultation or environmental review process among the lead
agency, the California Native American tribe, the project applicant,
or the project applicant’s legal adviser with attorney-client
confidentiality. Except as provided in subparagraph (B) or unless
the California Native American tribe providing the information
consents, in writing, to public disclosure, the project applicant or
the project applicant’s legal advisors, using a reasonable degree
of care, shall maintain the confidentiality of the information
exchanged for the purposes of preventing looting, vandalism, or
damage to a tribal cultural resources and shall not disclose to a
third party confidential information regarding tribal cultural
resources.

end insert begin insert

(B) This paragraph does not apply to data or information that
are or become publicly available, are already in the lawful
possession of the project applicant before the provision of the
information by the California Native American tribe, are
independently developed by the project applicant or the project
applicant’s agents, or are lawfully obtained by the project
applicant from a third party that is not the lead agency, a
California Native American tribe, or another public agency.

end insert begin delete

(2)

end delete

begin insert (3) end insert  This subdivision does not affect or alter the application of
subdivision (r) of Section 6254 of the Government Code.

begin delete

(3)

end delete

begin insert (4) end insert  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)  begin delete The end delete begin insert In addition to other requirements of this division, the end insert
lead agency may certify an environmental impact report or adopt
a mitigated negative declaration for a project with a significant
impact on an identified tribal cultural resource only if one of the
following occurs:

begin delete

(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.

end delete begin delete

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

end delete begin insert

(1) The consultation process between the federally recognized
California Native American tribe and the lead agency has occurred
as provided in Sections 21080.3.1 and 21080.3.2 and concluded
pursuant to subdivision (b) of Section 21080.3.2.

end insert begin insert

(2) The federally recognized California Native American tribe
has requested consultation pursuant to Section 21080.3.1 and has
failed to provide comments to the lead agency, or otherwise failed
to engage, in the consultation process.

end insert begin insert

(3) The lead agency has complied with subdivision (c) of Section
21080.3.1 and the federally recognized California Native American
tribe has failed to request consultation within 30 days.

end insert

(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 begin delete consultation, end delete
begin insert consultation or if consultation does not occur, end insert and if substantial
evidence demonstrates that a project will cause a significant effect
to a tribal cultural resource, the lead agency shall begin delete consider end delete begin insert evaluate
and select end insert feasible mitigation pursuant to subdivision (b) of Section
21084.3.

begin insert

(f) Consistent with subdivision (c), the lead agency shall publish
confidential information obtained from a California Native
American tribe during the consultation process in a confidential
appendix to the environmental document and may include a general
description of the information, as provided in paragraph (3) of
subdivision (c) in the environmental document for public review
during the public comment period provided pursuant to this
division.

end insert begin delete

(f)

end delete

begin insert (g) end insert  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.

begin delete

(g)

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, 2015.

SEC. 8.  

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

21083.09.  

On or before January 1, 2016, 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 update 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
begin insert tribal end insert cultural resources and update the relevant sample questions.

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

SEC. 9.  

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

21084.2.  

(a) A project with an effect that may cause a
substantial adverse change in the significance of a tribal cultural
resource is a project that may have a significant effect on the
environment.

(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, 2015.

SEC. 10.  

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

21084.3.  

(a) Public agencies shall, when feasible, begin delete seek to end delete avoid
damaging effects to any tribal cultural resource.

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

(1) Avoidance and preservation of the resources in place,
including, but not limited to, planning and 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.

(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:

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

(B) Protecting the traditional use of the resource.

(C) Protecting the confidentiality of the resource.

(3) Permanent conservation easements or other interests in real
property, with culturally appropriate management criteria for the
purposes of preserving or utilizing the resources or places.

(4) Protecting the resource.

begin insert

(c) This section is not intended to replace the existing mitigation
preference for historical and archaeological resources pursuant
to Section 21083.2 for tribal cultural resources that are also
historical and archaeological resources.

end insert begin delete

(c)

end delete

begin insert (d) 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, 2015.

SEC. 11.  

(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 begin insert California end insert Native American
begin delete tribe or nonfederally recognized tribe end delete begin insert tribe, either federally
recognized or nonfederally recognized, end insert from participating in the
California Environmental Quality Act on any issue of concern as
an interested begin insert California Native American tribe, end insert person, citizen, or
member of the public.

(c) This act does not prohibit any lead agency from consulting
with nonfederally recognized begin insert California end insert Native American begin delete tribes. end delete
begin insert tribes that are on the contact list maintained by the Native
American Heritage Commission for the purposes of Chapter 905
of the Statutes of 2004. end insert

SEC. 12.  

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.