BILL ANALYSIS �
AB 52
SENATE COMMITTEE ON ENVIRONMENTAL QUALITY
Senator Jerry Hill, Chair
2013-2014 Regular Session
BILL NO: AB 52
AUTHOR: Gatto
AMENDED: June 16, 2014
FISCAL: Yes HEARING DATE: June 25, 2014
URGENCY: No CONSULTANT: Joanne Roy
SUBJECT : CALIFORNIA ENVIRONMENTAL QUALITY ACT (CEQA):
NATIVE AMERICAN TRIBES
TOPIC PAGE
Summary
1
o Existing Law
1
o This Bill
5
Comments
9
o Background
10
o Issues Within AB 52 Language
13
o Broader Policy Issues Related to AB 52 25
o Options For the Committee To Consider 27
o Past Legislation
30
List of Support & Opposition
32
SUMMARY :
Existing law :
1) Under the California Environmental Quality Act (CEQA):
a) Requires lead agencies with the principal
responsibility for carrying out or approving a proposed
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discretionary project to prepare a negative declaration
(ND), mitigated negative declaration (MND), or
environmental impact report (EIR) for this action,
unless the project is exempt from CEQA (CEQA includes
various statutory exemptions, as well as categorical
exemptions in the CEQA Guidelines). (Public Resources
Code (PRC) �21000 et seq.). If there is substantial
evidence, in light of the whole record before a lead
agency, that a project may have a significant effect on
the environment, the lead agency must prepare a draft
EIR. (CEQA Guidelines �15064(a)(1), (f)(1)).
b) Prior to or during preparation of an EIR, authorizes
the lead agency to consult with any person,
organization, or government agency it believes will be
concerned with the environmental effects of a project.
(Guidelines �15083).
c) Requires the lead agency to work with the most likely
descendant as designated by the Native American Heritage
Commission (NAHC) when an initial study identifies the
existence of, or probable likelihood of, Native American
human remains within the project site. (Guidelines
�15064.5(d)).
d) Defines "significant effect on the environment" as "a
substantial, or potentially substantial, adverse change
in the environment." (PRC �21068).
e) Defines "environment" as "the physical conditions
which exist within the area which will be affected by a
proposed project including land, air, water, minerals,
flora, fauna, ambient noise, and objects of historic and
aesthetic significance. The area involved shall be the
area in which significant effects would occur either
directly or indirectly as a result of the project. The
'environment' includes both natural and man-made
conditions." (Guidelines �15360).
f) Provides that any information about the specific
location of archaeological sites and sacred lands must
not be included in the environmental review document
circulated for public review. (Guidelines �15120(d)).
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g) Directs the lead agency on a project to determine
whether the project may have a significant effect on
archaeological resources. If the lead agency determines
that a project may have a significant effect on unique
archaeological resources, then requires the EIR to
address those issues. The lead agency need not address
an issue of nonunique archaeological resources. (PRC
�21083.2).
h) Provides that an archaeological resource is "unique"
if it:
i) Is associated with an event or person of
recognized significance in California or American
history or recognized scientific importance in
prehistory;
ii) Can provide information of demonstrable
public interest and is useful in addressing
scientifically consequential and reasonable
research questions;
iii) Has a special or particular quality such as
oldest, best example, largest, or last surviving
example of its kind. (PRC �21083.2).
i) Provides that a project, which may have a significant
adverse change in the significance of a historical
resource, is a project that may have a significant
effect on the environment. Provides requirements for
what is considered a historical resource for purposes of
an environmental review. (PRC �21084.1, Guidelines
�15064.5).
2) Prohibits public agencies from interfering with Native
American religious practices, sites, or shrines unless
there is a clear and convincing showing that public
interest and necessity require such interference and
specifies that it is not intended to limit CEQA
requirements. (PRC �5097.9).
3) Establishes NAHC, made up of nine members appointed by the
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Governor, five of whom must be elders, traditional people,
or spiritual leaders of California Native American tribes.
Requires NAHC to identify and catalog places of special
religious or social significance to Native Americans, and
known graves and cemeteries of Native Americans on private
lands, and to perform other duties regarding the
preservation and accessibility of sacred sites and burials
and the disposition of Native American human remains and
burial items. (PRC �5097.91 et seq.).
4) Requires NAHC to investigate the effect of proposed actions
by a public agency if such action may cause severe or
irreparable damage to a Native American sacred site located
on public property or may bar appropriate access to the
sacred site by Native Americans. Authorizes NAHC to
recommend mitigation measures for consideration by the
agency if NAHC finds, after a public hearing, that the
proposed action would result in damage or interference.
Allows NAHC to ask the Attorney General to take action if
the agency fails to accept the mitigation measures. (PRC
�5097.97).
5) Includes a California Native American tribe, which is on
the contact list maintained by NAHC, in the definition of
"person" to whom notice of public hearings must be sent by
local governments for provisions under the Planning and
Zoning Law, Title 7 of the Government Code. (Government
Code (GOV) �65092).
6) Requires local governments to conduct meaningful
consultation with California Native American tribes on the
contact list maintained by the NAHC prior to the adoption
or amendment of a city or county general plan for the
purpose of protecting cultural places on lands affected by
the proposal. (GOV ��65352.3, 65352.4).
7) For purposes of preparation, adoption, and amendment of a
General Plan, defines "consultation" as the meaningful and
timely process of seeking, discussing, and considering
carefully the views of others, in a manner that is
cognizant of all parties' cultural values and, where
feasible, seeking agreement. Requires consultation between
government agencies and Native American tribes to be
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conducted in a way that is mutually respectful of each
party's sovereignty. Requires consultation to recognize
the tribes' potential needs for confidentiality with
respect to places that have traditional tribal cultural
significance. (GOV �65352.4).
8) Requires local governments to conduct meaningful
consultation with California Native American tribes on the
contact list maintained by NAHC for the purpose of
protecting cultural places located within open space.
Includes protection of Native American cultural places as
an acceptable designation of open space. (GOV ��65560,
65562.5).
9) Exempts from disclosure - records of Native American
graves, cemeteries, and sacred places, and records of
Native American places, features, and objects as specified
that are maintained by NAHC. (GOV �6254(r)).
10)Enacts the Native American Historic Resource Protection
Act, which establishes as a misdemeanor, punishable by up
to a $10,000 fine and/or imprisonment, the unlawful and
malicious excavation, removal, or destruction of Native
American archeological or historic sites on public or
private lands. Exempts certain legal acts by landowners.
(PRC �5097.993-�5097.994).
This bill :
1) Makes several findings and declarations.
2) Defines "Native American tribe" as a federally recognized
Indian tribe located in California.
3) Defines "Tribal Cultural Resources (TCRs)" to mean either
of the following:
a) Sites, features, places, and objects with cultural
value to descendant communities, as those communities
are described in the 1990 Guidelines for Evaluating and
Documenting Traditional Cultural Properties, National
Register Bulletin 38, National Register of Historic
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Places, National Park Service, Washington, D.C., or
cultural landscapes that are consistent with the
guidance of the U.S. National Park Service and the
federal Advisory Council on Historic Preservation, that
are any of the following:
i) Included in the California Register of
Historical Resources.
ii) Included in a local register of historical
resources as defined in �5020.1(k).
iii) A resource deemed to be significant pursuant
to criteria set forth in �5024.1(c).
b) Sacred places including, but not limited to, Native
American sanctified cemeteries, places of worship,
religious or ceremonial sites, or sacred shrines that
meet either of the following criteria:
i) Listed on NAHC's Sacred Lands File pursuant
to �5097.94 or �5097.96; or,
ii) Listed or determined pursuant to criteria set
forth in �5024.1(g) to be eligible for listing in
the California Register of Historical Resources.
c) Provides that the fact that a resource is not
included in the California Register of Historic Places,
not listed in NAHC's Sacred Lands File, not included in
a local register of historical resources, not deemed
significant pursuant to criteria set forth in
�5024.1(c), or not deemed eligible pursuant to criteria
set forth in �5024.1(g) for listing in the California
Register of Historic Places shall not preclude a lead
agency from determining whether the resource is a TCR
for the purposes of CEQA.
d) Provides that a historical resource described in
�21084.1, a unique archaeological resource as defined in
�21083.2(g), or a "nonunique archaeological resource" as
defined in �21083.2(h) may also be a TCR if it conforms
with the criteria of (a) or (b) above, or the lead
agency determines the resource to be a TCR pursuant to
(c) above.
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4) Provides that Native American tribes, which are
traditionally and culturally affiliated with a geographic
area, may have expertise concerning TCRs.
5) Authorizes Native American tribes to assist the lead agency
in identifying, interpreting, and determining significance
of TCRs and whether an impact of a proposed project to a
TCR is significant.
6) Creates the first of two consultation processes, which
requires the lead agency to consult with a Native American
tribe regarding the appropriate level of environmental
review for a project if: (1) the tribe requests the lead
agency to be informed through formal notification of
proposed projects in that geographic area; and, (2) the
tribe responds within 30 days of receipt of the formal
notification and requests consultation.
a) Requires NAHC to assist the lead agency in
identifying traditionally and culturally affiliated
Native American tribes.
b) Requires the lead agency's formal notification to
tribes that have requested notice must be accomplished
by means of at least one written notification that
includes information about the project and the project
location and description.
7) Defines "consultation" as the process of acting in good
faith in seeking, discussing, and considering carefully the
view of others, and, where feasible, seeking agreement.
Consultation between public agencies and tribes must be
conducted in a way that is mutually respectful of each
party's sovereignty, tribal cultural values, and
confidentiality.
8) Creates a second consultation process authorizing the
parties to propose mitigation measures capable of avoiding
or substantially lessening potential significant impacts to
a TCR or alternatives that would avoid significant impacts
to a TCR.
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a) If the Native American tribe requests consultation
regarding alternatives to the project, recommended
mitigation measures, or significant effects, requires
the second consultation to include those topics.
b) Authorizes this consultation to include discussion
concerning the projects impacts on TCRs, and, if
necessary, project alternatives or the appropriate
measures for preservation or mitigation that the tribe
may recommend to the lead agency.
c) Provides that the consultation has concluded when the
lead agency or tribe, acting in good faith, concludes
that mutual agreement cannot be reached.
d) Provides that this consultation:
i) Does not limit the tribe or public to submit
information to the lead agency regarding the
significance of the TCRs, the significance of the
project's impact on the TCRs, or appropriate
measures to mitigate the impact.
ii) Does not limit the ability of the lead agency
or project proponent to incorporate changes and
additions to the project as a result of
consultation, even if not legally required.
iii) Is not intended to replace existing
mitigation preference for historical and
archaeological resources requiring the lead agency,
when feasible, to first consider preservation in
place.
9) Requires any mitigation measures agreed upon in the second
consultation to be recommended for inclusion in the
environmental document and in an adopted mitigation
monitoring program, if determined to avoid or lessen the
impact and shall be fully enforceable.
10)If a project may have a significant impact on a TCR,
requires the lead agency's environmental document to
discuss both of the following:
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a) Whether the proposed project has a significant impact
on a TCR.
b) Whether feasible alternatives or mitigation measures,
including those measures that may be agreed to, avoid or
substantially lessen the impact to the identified TCR.
11)Prohibits information submitted by a tribe during the
consultation processes from being included in the
environmental document or otherwise disclosed by the lead
agency or other public agency to the public without prior
consent of the tribe. If the lead agency does publish such
information, requires that it shall be in a confidential
appendix to the environmental document unless the tribe
consents to disclosure. The information may be described
in general terms in the environmental document.
12)Authorizes the lead agency to certify an EIR or adopt an
MND for a project with a significant impact on an
identified TCR only if one of the following occurs:
a) Mitigation measures agreed to during consultation or
another agreement have been recommended to the
decisionmaking body of the lead agency as mitigation
measures in the final environmental document and
mitigation monitoring program;
b) The tribe accepts the mitigation measures proposed in
the draft or final environmental document and mitigation
monitoring and reporting program; or,
c) The second consultation between the tribes and the
lead agency occurred.
13)Requires the lead agency to consider a specified list of
mitigation measures if the mitigation measures recommended
by the staff of the lead agency as a result of the
consultation are not included in the environmental document
or if there are no agreed upon mitigation measures at the
conclusion of the consultation, and if substantial evidence
demonstrates that a project will cause a significant effect
to a TCR.
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14)Provides that a project with an effect that may cause a
substantial adverse change in the significance of a TCR is
a project that may have a significant effect on the
environment.
15)Requires public agencies, when feasible, to seek to avoid
damaging effects to a TCR.
16)If the lead agency determines that a project may cause a
substantial adverse change to a TCR, and measures are not
identified in the second consultation process, provides a
list of examples of mitigation measures that may be
considered to avoid or minimize significant adverse
impacts.
17)Provides that this act does not prohibit any Native
American tribe or non-federally recognized tribe from
participating in CEQA on any issue of concern as an
interested person, citizen, or member of the public.
18)Provides that this act does not prohibit any lead agency
from consulting with non-federally recognized Native
American tribes.
19)On or before January 1, 2016, requires the Office of
Planning and Research to prepare and develop revisions to
the Guidelines Appendix G to:
a) Separate the consideration of paleontological
resources from cultural resources and update the
relevant sample questions.
b) Add consideration of TCRs with relevant sample
questions.
COMMENTS :
1) Purpose of Bill . According to the author, "The premise
that one culture's sacred sites and historical landmarks
aren't given the same value as another culture basically
amounts to cultural imperialism. California has the most
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tribes in the nation, and we need to treat these areas with
the dignity and respect they deserve." (Indian Country
Today Media Network, "California Sacred Sites Bill Would
Boost Protections but Exclude Some 50 Tribes," March 6,
2014.)
The author further states, "?CEQA projects which impact tribal
resources have experienced delays and inconsistencies as
lead agencies attempt to work with tribes to address
impacts on tribal resources. Today CEQA projects are still
being processed with no clarification as to a tribe's
involvement concerning environmental impacts that affect
tribes. This leaves applicant [sic] agencies without
certainty as to the timing and viability of projects. The
inclusion of tribes in the CEQA process lacks uniformity,
statewide, often leaving tribes, local agencies and
developers frustrated with the process." The author states
that this bill seeks to achieve the following goals: set
forth a process and scope that clarifies tribal government
involvement in the CEQA process, including specific
requirements and timing for tribal participation and
preparation of documents and information; amend CEQA to
include definition and standards for assessment and
treatment of sacred places and TCRs; preserve existing
confidentiality of cultural resources information; and
preserve the lead agency's ability to approve using a
statement of overriding consideration.
Support Statement . Supporters state, "Lack of consideration
of tribal sacred places and cultural resources has had a
detrimental effect on many tribes in California. This bill
recognizes that tribes have a right to consult on the
impacts of projects that take place outside their given
trust lands and reservation boundaries. Morever, due to
the termination era many California tribes are still
landless. We are well aware of the lengthy, costly,
arduous and often politically charged fee-to-trust process;
the land base restored likely will never encompass their
original indigenous boundaries or measure up to the lands
they once possessed. Thus aboriginal lands are frequently
under private control and outside tribal boundaries."
Background
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2) Background on CEQA .
a) Overview of the CEQA Process . CEQA provides a
process for evaluating the environmental effects of a
project, and includes statutory exemptions, as well as
categorical exemptions in the CEQA Guidelines. If a
project is not exempt from CEQA, an initial study is
prepared to determine whether a project may have a
significant effect on the environment. If the initial
study shows that there would not be a significant effect
on the environment, the lead agency must prepare a
negative declaration. If the initial study shows that
the project may have a significant effect on the
environment, the lead agency must prepare an EIR.
Generally, an EIR must accurately describe the proposed
project, identify and analyze each significant
environmental impact expected to result from the
proposed project, identify mitigation measures to reduce
those impacts to the extent feasible, and evaluate a
range of reasonable alternatives to the proposed
project. Prior to approving any project that has
received environmental review, an agency must make
certain findings. If mitigation measures are required
or incorporated into a project, the agency must adopt a
reporting or monitoring program to ensure compliance
with those measures.
If a mitigation measure would cause one or more significant
effects in addition to those that would be caused by the
proposed project, the effects of the mitigation measure
must be discussed but in less detail than the
significant effects of the proposed project.
b) What Is Analyzed In an Environmental Review ?
Pursuant to CEQA, an environmental review analyzing the
significant direct and indirect environmental impacts of
a proposed project, may include water quality, surface
and subsurface hydrology, land use and agricultural
resources, transportation and circulation, air quality
and greenhouse gas emissions, terrestrial and aquatic
biological resources, aesthetics, geology and soils,
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recreation, public services and utilities such as water
supply and wastewater disposal, and cultural resources
such as historical and archaeological resources. As
noted above, CEQA defines "environment" as the physical
conditions which exist within the area which will be
affected by a proposed project.
c) CEQA: Historical and Archeological Resources . The
environmental review must identify and evaluate the
potential for a project to adversely affect
paleontological, historical, and archaeological
resources. The resources of concern include, but are not
limited to, fossils, prehistoric and historic artifacts,
burials, sites of religious or cultural significance to
Native American groups, and historic structures. CEQA
provides special rules for determining whether impacts
on historical and archaeological resources are
potentially significant. The Guidelines specify that a
substantial adverse change in the significance of an
historical resource is a significant effect requiring
preparation of an EIR.
In determining if there is a significant impact to a
historic resource, there is a two-part test: (1) Is the
resource "historically significant"; and, (2) Would the
project cause a substantial adverse change in the
significance of the resource?
The rules relating to historic resources are defined
broadly to include archeological resources. If an
archaeological site meets the definition of historical
resource, then it may be treated like any other
historical resource. If the archaeological site does
not fall within the definition of historical resource,
but does meet the definition of a "unique archaeological
resource" (PRC �21083.2), then the site may be treated
in accordance with the specific provisions for such
resources. However, if an archaeological site is
neither a "unique" archaeological resource nor a
historical resource, any effect to it shall not be
considered significant.
d) Early Consultation and Scoping . Prior to or during
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preparation of an EIR, the lead agency may consult with
any person, organization, or government agency it
believes will be concerned with the environmental
effects of a project (Guidelines �15083). According to
the CEQA Guidelines, early consultation "solves many
potential problems that would arise in more serious
forms later in the review process." The Guidelines also
provide that scoping "has been helpful to agencies in
identifying the range of actions, alternatives,
mitigation measures, and significant effects to be
analyzed in depth in an EIR and in eliminating from
detailed study issues found not to be important." The
Guidelines further note that scoping "has been found to
be an effective way to bring together and resolve the
concerns of affected federal, state, and local agencies,
the proponent of the action, and other interested
persons including those who might not be in accord with
the action on environmental grounds."
3) Background: What Does "Traditionally and Culturally
Affiliated" Mean ? This bill requires consultation with
Native American tribes that are traditionally and
culturally affiliated with the geographic area of a
proposed project. According to the US Department of
Interior, National Park Service:
"Traditional"?refers to those beliefs, customs, and
practices of a living community of people that have been
passed down through the generations, usually orally or
through practice. The traditional cultural significance
of a historic property, then, is significance derived
from the role the property plays in a community's
historically rooted beliefs, customs, and practices.
[C]ulture (is) a system of behaviors, values, ideologies,
and social arrangements. These features, in addition to
tools and expressive elements such as graphic arts, help
humans interpret their universe as well as deal with
features of their environments, natural and social.
Culture is learned, transmitted in a social context, and
modifiable?
Traditional cultural values are often central to the way
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a community or group defines itself, and maintaining such
values is often vital to maintaining the group's sense of
identity and self respect. Properties to which
traditional cultural value is ascribed often take on this
kind of vital significance, so that any damage to or
infringement upon them is perceived to be deeply
offensive to, and even destructive of, the group that
values them. As a result, it is extremely important that
traditional cultural properties be considered carefully
in planning?
Traditional cultural properties are often hard to
recognize. A traditional ceremonial location may look
like merely a mountaintop, a lake, or a stretch of river;
a culturally important neighborhood may look like any
other aggregation of houses, and an area where culturally
important economic or artistic activities have been
carried out may look like any other building, field of
grass, or piece of forest in the area. As a result, such
places may not necessarily come to light through the
conduct of archeological, historical, or architectural
surveys. The existence and significance of such
locations often can be ascertained only through
interviews with knowledgeable users of the area, or
through other forms of ethnographic research. The
subtlety with which the significance of such locations
may be expressed makes it easy to ignore them; on the
other hand it makes it difficult to distinguish between
properties having real significance and those whose
putative significance is spurious. (National Park
Service, National Register Bulletin 38, Guidelines for
Evaluating and Documenting Traditional Cultural
Properties).
Issues Within AB 52 Language
4) Definition of "Native American Tribe" . Proposed �21073
defines "Native American tribe" to mean "a federally
recognized Indian tribe located in California."
a) Federally and Non-Federally Recognized Tribes .
According to the US Department of the Interior, Bureau
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of Indian Affairs, "a federally recognized tribe is an
American Indian or Alaska Native tribal entity that is
recognized as having a government-to-government
relationship with the United States, with the
responsibilities, powers, limitations, and obligations
attached to that designation, and is eligible for
funding and services from the Bureau of Indian Affairs.
Furthermore, federally recognized tribes are recognized
as possessing inherent rights of self-government (i.e.,
tribal sovereignty) and are entitled to receive certain
federal benefits, service, and protections because of
their special relationship with the United States."
According to the Judicial Council of California, there are
109 federally recognized Indian tribes in California and
78 entities petitioning for recognition. There are
approximately 45 tribal communities of formerly
recognized tribes that were terminated as part of the
United States' termination policy in the 1950s or tribal
communities that were never recognized by the federal
government. California's tribes are as small as five
members and as large as 5,000 members.
California recognizes both federally and non-federally
recognized tribes, including the following examples:
Civil Code �815.3 provides a list of
entities and organizations that may acquire and
hold conservation easements to include "(c) A
federally recognized California Native American
tribe or a non-federally California Native American
tribe that is on the contact list maintained by
[NAHC] to protect a California Native American
prehistoric, archaeological, cultural, spiritual,
or ceremonial place, if the conservation easement
is voluntarily conveyed."
Under the Planning and Zoning Law, GOV
Code �65092(b) includes "a California Native
American tribe that is on the contact list
maintained by [NAHC]" for purposes of notice.
Prior to amending a general plan, GOV Code
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�65352(a)(8) requires a local government to refer
the action to "a California Native American tribe,
that is on the contact list maintained by [NAHC]?"
a) Non-Federally Recognized Native American Tribes Are
Not Included in AB 52's Definition of "Native American
Tribe" . AB 52 defines "Native American tribe" as a
federally recognized tribe in California, thus excluding
non-federally recognized tribes. Instead, the bill
states that any non-federally recognized tribe may
participate in the CEQA process "as an interested
person, citizen, or member of the public." Such a
distinction appears to create two classes of Native
American tribes with different privileges in CEQA. In
contrast, as noted above, current state law does not
distinguish between federally and non-federally
recognized tribes.
In a letter to the author, dated March 21, 2014, Sacred
Places Institute for Indigenous Peoples states, "[W]e
strenuously object to this or any legislative attempts
to redefine or limit the definition of the term 'Native
American Tribe' in any manner that excludes
non-recognized Tribal Nations in California. Excluding
non-recognized tribes in this way is not only an affront
to tribal sovereignty it also virtually guarantees that
the sacred places and cultural resources of
non-recognized Tribal Nations in California will be
destroyed at an unprecedented rate in the future.
Surely the destruction of indigenous sacred places and
cultural resources is not the future you envision for a
California that is treating Native American sacred
places with dignity and respect."
Sacred Places Institute for Indigenous Peoples further
states, "Numerous state and federal agencies,
committees, and reports articulate the importance of
including non-recognized Tribes in California in the
creation and implementation of legislative and agency
policies and procedures, especially when those law,
policies, and procedures are related to the protection
of Native American cultural and environmental resources.
To create new legislation that directly conflicts with
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the well-established rule of inclusion for
non-recognized Tribes in California state cultural
resource protection law is neither in the best interest
of, nor respectful of, Indigenous sacred places and
cultural resources in California."
The Pechanga Tribe, a technical advisor and supporter of
the bill, explains the reason why AB 52 excludes
non-federally recognized tribes, stating, "It's really a
question of 'Who are they?' They [lead agencies] want
to make sure they know who the tribes are they consult
with, and that it's mirroring the intent of CEQA," and
further states that unrecognized tribes will still
benefit in some ways from the bill, and can always ask
the closest recognized tribe to "go to bat for them. A
lot of agencies are not good at involving tribes period,
and this would put tribes on the radar screen." (Indian
Country Today Media Network, "California Sacred Sites
Bill Would Boost Protections but Exclude Some 50
Tribes," March 6, 2014.)
However, it should be noted that this bill does not
authorize a federally recognized tribe to act on the
behalf of a non-federally recognized tribe. In
addition, it is questionable whether it would be prudent
to authorize one tribe with consultation rights to act
as agent for another, which does not, considering each
tribe has its own interest that may potentially conflict
with one another. Is it equitable to exclude
non-federally recognized tribes in AB 52 when current
state law acknowledges both?
1) Definition of "TCR" . Current law provides that a TCR may
be considered in an environmental review to the extent that
it meets the conditions of a historical or archaeological
resource pursuant to CEQA.
a) Definition Is Too Broad . This bill's proposed
definition of "TCR" in �21074 provides a variety of
references to refer to a resource being on a list,
eligible for a list, or meets the criteria of a list.
In addition, the definition stipulates that not being in
any of those categories does not preclude a lead agency
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from determining a resource to be a TCR.
Opponents state, "This is the exception that ate the rule"
and have raised concern that "the practical result is a
definition of TCR that is whatever the tribe says it is.
This will lead to extensive litigation as parties
struggle to make sense of what is an unavoidably
difficult analysis to begin with." Furthermore,
opponents note that the definition for "TCR" grants "a
legal status superior to all other environmental
categories considered under CEQA." In addition,
opposition states, "Consideration of "[TCRs] as defined
in AB 52 greatly expands CEQA's scope into an extremely
subjective resource category?and without objective
limits?"
b) How Does One Prove A TCR is Not a TCR ? Supporters
note that the caveat provided in proposed �21074, which
states that a resource may still be determined a TCR
even though it is not in any of the specified
categories, mirrors what already exists in CEQA for
historical resources. However, opponents state, "While
the lead agency retains the authority to make the final
determination for this exception [for TCRs], it puts the
lead agency in the position of trying to argue against
what only tribes can truly know - what is culturally
significant to that tribe." For example, some TCRs may
be based on oral history. If a tribe presents oral
history as evidence that a resource is a TCR, it seems
questionable whether such evidence can ever be disputed.
Opponents further state that this caveat "effectively
mandates consideration of "[TCRs] (as broadly
defined?and the importance/significance of which is
determined by the tribe designating it) regardless of
prior documentation and/or listing in State surveys and
registers of such resources."
c) Reference to Guidelines and Consistency with
Guidance . Proposed �21074 refers to federal guidelines
and consistency with the guidance of the US National
Park Service and the federal Advisory Council on
Historic Preservation. As a general matter, it is not
prudent to reference guidelines or guidance as a
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standard of law because they do not have the force law.
[Note: CEQA Guidelines are coined "guidelines" but are
in fact law located in the California Code of
Regulations.]
2) Expertise . Proposed �21080.3.1(a) of the bill provides
that tribes that are traditionally and culturally
affiliated with a geographic area may have expertise
concerning TCRs. Concern has been raised that this bill
would only codify Native American tribes as groups with
sufficient expertise to identify and determine impacts to
TCRs. An unintended consequence may be that this creates
the potential for abuse as well as potentially significant
conflicts if and when more than one Native American tribe
asserts expertise.
3) It is the Role of The Lead Agency, Not a Tribe, to
Determine the Level of Environmental Review and Identify
Potential Significant Effects . Proposed �21080.3.1(b)
requires the lead agency to consult with tribes regarding
the appropriate level of environmental review for a project
when specified requirements are met. The bill also
authorizes tribes to assist the lead agency in identifying,
interpreting, and determining significance of TCRs and
whether an impact of a proposed project to a TCR is
significant. It should be noted that in determining the
level of environmental review, the lead agency must take
into consideration many resources, not just TCRs. These
provisions go beyond consultation and infringe on the lead
agency's role and responsibility of determining the level
of environmental review needed, the significance of a
cultural resource, and whether a project may have a
significant effect on the environment.
4) General Request From a Tribe to be Notified of A Project by
a Lead Agency . Proposed �21080.3.1(b) requires a lead
agency to consult with a Native American tribe that is
traditionally and culturally affiliated with the geographic
area of the proposed project and has requested to the lead
agency in writing to be informed by the lead agency through
formal notification of proposed projects in that geographic
area.
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a) Before Any and All Projects, Request For Notification
by A Native American Tribe to Lead Agencies . Proposed
�21080.3.1(b) provides that a Native American tribe
needs to request the lead agency, in writing, to be
informed about any proposed projects in an area by the
lead agency through formal notification. The request is
a general request for any project that comes before the
lead agency in a specified area; this request is not for
a specific project. This provision creates several key
assumptions that are silent in the bill:
i) A tribe knows that it needs to make the
request to a lead agency if it wants to be notified
of any projects in that area;
ii) A tribe knows all of the state, regional, and
local public agencies that have jurisdiction over
the geographic area at issue;
iii) A tribe knows the public agencies'
appropriate division/department to send the
request, and the agencies' contact information;
and,
iv) A tribe knows the necessary information to
include in the request.
It is questionable whether every tribe knows all of the
agencies it needs to contact and the information to
provide. The geographic overlay of a public agency's
jurisdiction and an area affiliated with an individual
tribe needs to be created and disseminated by an agency
to the tribes in order to ensure that the tribes receive
the necessary information. The agency most appropriate
for doing so would be NAHC, which has a database of
pertinent tribal information and should know which
public agencies each tribe should contact. Tribes
should be provided the necessary information in order to
request notification to each public agency that has
jurisdiction in a specified area by NAHC in a timely
manner to ensure that this provision works.
b) "That Geographic Area" . This term is unclear. Does
it apply to the general area within the boundaries of
the tribal interest? Or the general area within the
lead agency's jurisdiction? Or an overlap of the tribal
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area and the lead agency's jurisdiction? Clarification
is needed.
5) Formal Notification From a Lead Agency to a Tribe About A
Project (Proposed �21080.3.1(c)) .
a) When Must a Lead Agency Send Formal Notification to a
Tribe ? The bill is silent when the lead agency must
send formal notification to the tribe. It would be
prudent to clearly state what triggers the requirement
for notification to be sent.
b) NAHC Shall Assist Lead Agency in Identifying
"Affiliated" Tribes . Proposed �21080.3.1(c) states, "To
expedite the requirements of this section, the [NAHC]
shall assist the lead agency in identifying the
traditionally and culturally affiliated Native American
tribes." Does "affiliated" pertain to the geographic
area of the project? Specification is needed.
c) Does the Notification Include An Invitation for
Consultation ? The notification provides specified
information describing the project. However, the bill
is silent on whether the lead agency must include in the
notification an invitation or information telling the
tribe that it has the option to request consultation on
the project. It may be helpful to include such
information in the notification to the tribe.
d) Requirement for Consistency of Information With PRC
�21092(b)(1) in the Notification . Proposed
�21080.3.1(c) requires the lead agency's formal
notification to the tribes be consistent with PRC
�21092(b)(1). Current law, PRC �21092(b)(1), provides
requirements for public notification prior to final
adoption of an environmental document, including "the
period during which comments will be received on the
draft [EIR] or [ND], and shall include the date, time,
and place of any public meetings or hearings on the
proposed project, a brief description of the proposed
project and its location, the significant effects on the
environment, if any, anticipated as a result of the
project, the address where copies of the draft [EIR] or
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[ND], and all documents referenced in the draft [EIR] or
[ND], are available for review, and a description of how
the draft [EIR] or [ND] can be provided in an electronic
format."
The notification prescribed in proposed �21080.3.1(c) is
for the beginning of the environmental review process.
It is unclear why and how the information about the
final adoption of an environmental document pertains to
a consultation about determining the level of
environmental review needed for a project at the
beginning of the environmental review process.
e) How Does the Notification Work for State and Regional
Agencies ? As noted above, state and regional agencies
can be lead agencies, and some projects may have a
statewide or regional impact. Is it reasonable to
require a state agency that has a project covering all
of California to provide notice to 109 tribes with the
potential to conduct 109 individual consultations?
How does a lead agency notify the appropriate tribes if a
project covers part of the state but the lead agency
does not know the geographic boundaries of each tribe's
affiliated area? The bill requires NAHC to assist the
lead agency in identifying tribes to notify, but does
NAHC have the resources to provide such information to
all lead agencies for the thousands of projects subject
to CEQA?
6) Consultation for Each and Every Single Project ?
a) Projects Sized Extra Large . Pursuant to this bill,
in larger, regional or statewide projects, such as ones
affecting a large portion of California like the High
Speed Rail project, several tribes may have their TCRs
affected and may be interested in consulting with the
lead agency. Such a case would require multiple,
simultaneous consultations with various tribes. This
may lead to considerable confusion and disruption in the
CEQA process for a project, resulting in extensive delay
as well as the potential for more litigation.
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b) "Project" In a More Tangible Sense . Under CEQA, a
"project" may include an agency creating a program or a
set of regulations for a type of action in general, such
as CalRecycle creating a programmatic EIR for anaerobic
digester facilities, which individual projects may tier
off of for their environmental review documents.
However, it seems the author intends this bill to be
directed to the more typical sense of what people
consider a "project" pursuant to CEQA, which is usually
a specific development proposal such as building a
shopping mall on Main Street in the City of X or
building a levee along a river.
7) Multiple Consultations for Each Project ? This bill
requires two consultation processes - one requiring the
lead agency to consult with a tribe regarding the
appropriate level of environmental review for a project and
the other for discussion of mitigation measures. It does
not seem practical to require two, separate consultation
processes when the purposes of each naturally conjoin -
determining whether there may be a significant effect on a
TCR and, if so, how to avoid or mitigate the impact. There
should only be one consultation process to cover both of
these issues.
8) When Does the First Consultation Begin ? AB 52 provides
that the first consultation must occur "[p]rior to
determining whether a [ND], [MND], or [EIR] is required for
a project." But exactly when is this consultation expected
to begin? In order to provide for early consultation, it
seems that a more definitive start date should be included,
such as within a specified number of days after a lead
agency receives a tribe's request for consultation on a
project.
9) Definition of "Consultation" . Proposed �21080.3.2 provides
a different definition of "consultation" than how it is
defined in current law related to Native American tribal
consultations for purposes of preparation, adoption, and
amendment of a General Plan. GOV �65352.4 defines
"consultation" as the meaningful and timely process of
seeking, discussing, and considering carefully the views of
others, in a manner that is cognizant of all parties'
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cultural values and, where feasible, seeking agreement;
requires consultation between agencies and tribes to be
conducted in a way that is mutually respectful of each
party's sovereignty; requires consultation to recognize the
tribes' potential need for confidentiality with respect to
places that have tribal cultural significance.
This bill provides that "consultation" means "the process of
acting in good faith in seeking, discussing, and
considering carefully the view of others, and, where
feasible, seeking agreement. Consultation between public
agencies and Native American tribes shall be conducted in a
way that is mutually respectful of each party's
sovereignty, tribal cultural values, and confidentiality?"
Although there is overlap in the definitions, there are some
distinct differences. GOV �65352.4 provides a more robust
and concise definition of "consultation" than this bill.
It would be prudent to include a definition consistent with
current law.
10)Purpose of the Consultation(s) . Proposed �21080.3.2(b)
provides that the second consultation may include
discussion concerning the significance of TCRs, the
significance of the project's impacts on the TCRs, and, if
necessary, project alternatives or the appropriate measures
for preservation or mitigation. Why "may"? The purpose of
the consultation should be definitive and the parameters
clearly stated, which is to find out whether a proposed
project may have a significant effect on an identified TCR
and, if so, a description of the significant effect, and,
any feasible alternatives or mitigation measures that may
avoid or substantially lessen the significant effect to the
identified TCR.
11)Who Represents the Native American Tribe in This
Consultation ? This bill requires consultation with a
Native American tribe, but is silent regarding who in the
tribe is/are authorized to represent the tribe in the
consultation. Would it be prudent to specify that the lead
agency must consult with an authorized representative of a
tribe?
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12)What If Multiple Tribes Require Consultation for A Project ?
As noted above, it is possible that a project may require
the lead agency to consult with multiple tribes. However,
AB 52 does not provide how to address potentially competing
and/or conflicting interests where more than one Native
American tribe considers a particular resource to be
culturally important or a project may impact multiple
tribes' resources. Furthermore, would this bill put
non-federally recognized tribes at a disadvantage if they
have a TCR that may be impacted? A question arises as to
what the most prudent way is for a lead agency to address
such a situation and whether some direction or guidance
needs to be considered.
13)Second Consultation - When Does It Start ? Proposed
�21080.3.2 provides a second consultation process to
discuss the significance of a TCR, the potential
significant effect on that resource, and ways to avoid or
mitigate that impact. The bill is silent on when this
consultation process must begin.
14)Consultation Concludes When the Lead Agency and Tribe
Decide that Mutual Agreement Cannot Be Reached . Proposed
�21080.3.2(c) provides that "consultation shall be
considered concluded at the point at which the authorized
representative of the lead agency participating in the
consultation or the Native American tribe, acting in good
faith, concludes that mutual agreement cannot be reached."
This language assumes that no agreement will be reached.
Although it may seem reasonable to assume that if there is
mutual agreement then that would signify the conclusion of
the consultation, but it may be prudent to clarify that.
15)Mitigation Measures Agreed Upon To Be Recommended For
Inclusion in the Environmental Document . Proposed
�21082.3(a) requires that any mitigation measures agreed
upon in the consultation must be recommended for inclusion
in the environmental document if determined to avoid or
lessen the impact. A question arises as to how this
provision affects potential impacts on other resources.
Does mandating the inclusion of mitigation measures for one
resource give the protection of that resource an advantage
over the others? What if mitigation measures agreed upon
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significantly impact another resource?
16)Confidentiality . Under current law, GOV �6254(r) exempts
from disclosure "records of Native American graves,
cemeteries, and sacred places, and records of Native
American places, features, and objects described in [PRC
��5097.9 and 5097.993] maintained by, or in the possession
of, [NAHC], another state agency, or a local agency." In
addition, the CEQA Guidelines state that any information
about the specific location of archaeological sites and
sacred lands must not be included in the environmental
review document circulated for public review. (Guidelines
�15120(d)).
AB 52's �21082.3(c) includes broader confidentiality
provisions and provides that any information submitted by a
Native American tribe during the consultation process may
not be included in the environmental documents or otherwise
disclosed without prior consent of the tribe. Although it
is understandable that tribes want to keep certain
information confidential, does this provision overreach and
conflict with one of the primary tenets of CEQA, which is
to provide public disclosure?
17)Certification/Adoption of EIR/MND Contingency Provision .
Proposed �21082.3(d) provides that "the lead agency may
certify an [EIR] or adopt a [MND] for a project with a
significant impact on an identified [TCR] only if one of
the following occurs: (1) Mitigation measures agreed
to?have been recommended?as mitigation measures in the
final environmental document...(2) The Native American
tribe accepts the mitigation measures proposed in the draft
or final environmental document ?(3) Consultation between
the Native American tribes and the lead agency has occurred
pursuant to Section 21080.3.2." Concern has been raised
that this "subjects [TCRs] to a different and heightened
scrutiny, curbing the availability of Statements of
Overriding Considerations to only where one of certain
enumerated conditions has occurred?[This] begs the question
why AB 52 proposes to treat [TCRs] differently than other
environmental resources under CEQA."
18)Mitigation Measures to Consider . AB 52's �21082.3(e)
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requires a lead agency to consider a specified list of
options for mitigation measures in �21084.3(b) if specified
actions occur. �21084.3 of the bill provides a list of
examples of mitigation measures should a lead agency
determine "that a project may cause a substantial adverse
change to a TCR, and measures are not otherwise identified
in the consultation process provided?that, if feasible, may
be considered to avoid or minimize the significant adverse
impacts."
Opposition states, "CEQA already mandates mitigation be
considered and implemented if feasible. It is unclear how,
if at all, the examples offered here aid that analysis.
Further, as a practical matter, the codification of
exemplary mitigation measures, even if optional, tends to
restrain lead agency discretion by creating a de facto
mitigation list that must be considered."
19)What If Two Consultation Processes Conflict ? Current law
provides for tribal consultation in certain instances such
as updating a General Plan (SB 18 (Burton), Chapter 905,
Statutes of 2004). An update to a General Plan also
requires an environmental review pursuant to CEQA. The
tribal consultation requirements and processes in AB 52 and
current law differ from one another - for example, SB 18's
tribal consultation process is the same for both federally
and non-federally recognized tribes whereas AB 52 provides
different consultation requirements for each; and the
definition of "consultation" are different for each. If
this bill is enacted, a question arises - With which
consultation requirements must the lead agency comply?
Broader Policy Issues Related to AB 52
20)Recent Legislative Direction in CEQA . In the past few
years, legislative efforts concerning CEQA have been
primarily focused on making the CEQA process work more
efficiently and reducing litigation while staying true to
the purpose of CEQA, which is to "inform the public and its
responsible officials of the environmental consequences of
their decisions before they are made..." (Citizens of
Goleta Valley v. Board of Supervisors (1990) 52 Cal.3d 553,
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564).
A question arises as to whether this bill, by adding a new
layer of consultation requirements to the environmental
review process, adding separate standards and requirements
for TCRs outside of historical and archaeological
resources, and adding new CEQA causes of action to
litigate, is consistent with recent legislative efforts
related to CEQA.
21)Is CEQA the Appropriate Venue to Address Native American
Tribal Concerns ? As semi-sovereign nations, some tribes
want more opportunity to consult with lead agencies about
projects through the CEQA process. Supporters state, "This
bill recognizes that tribes have a right to consult on the
impacts of projects that take place outside reservation
boundaries. Tribal traditional cultural properties extend
outside these boundaries and deserve protection. Further,
even when a project takes place outside reservation
boundaries, it can still have an effect on Indian lands."
CEQA does not provide for consultation specifically with
Native American tribes, but in practice, a lead agency may
contact affected tribes and individuals during the
archaeological impact analysis to elicit their input, which
they may obtain through NAHC.
a) Does This Bill Go Beyond Considerations of the
"Environment" ? According to CEQA Guidelines �15083, a
lead agency may consult with any person, organization,
or government agency it believes will be concerned with
the environmental effects of a project.
AB 52 creates a new consultation process in CEQA so that
federally recognized Native American tribes can consult
with lead agencies about projects that may affect
resources that they are traditionally or culturally
affiliated with. Sacred sites have traditional and
cultural significance as well as overlap with religion.
Culture, tradition, and religion - at what point do
cultural traditions become religion? This may lead to
the question - if the goal of CEQA is to protect the
environment, does religion belong in CEQA?
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Opposition states that this bill "is a dramatic expansion
of CEQA that inserts religion into the environmental
statute and, as a practical matter, grants Native
American Tribes broad, irrefutable authority to
determine anything is a TCR entitled CEQA protection?and
opens up new avenues for CEQA litigation." In addition,
the Association of Environmental Professionals (AEP)
notes, "As defined by AB 52, impacts to 'TCRs'?are more
akin to infringements on religious practices than
physical environmental impacts. While of understandable
importance to Native Americans, AEP does not believe
CEQA's statutes are the appropriate legislative vehicle
to limit such impacts."
b) Does This Bill Elevate One Resource Above All Others ?
Native American tribes should respectfully be given
their due deference. Tribes want to protect their
resources in a manner that they are comfortable with and
consult with agencies that have a say in how projects
are implemented. This bill provides a broad definition
of what can be considered a TCR, includes a separate and
different consultation process for tribes, gives away
some of the lead agency's authority to tribes, and
provides a high level of confidentiality on TCRs.
As noted in Comment #2(b), there are at least 17 different
resources the lead agency considers in assessing the
potential impacts of a project. In the context of an
environmental review pursuant to CEQA, is it appropriate
to provide special treatment and elevated status to one
resource over all of the others?
c) What About a Tribal Consultation Process On a
Project-By-Project Basis Outside of CEQA ? The
Committee, in recognizing both (1) Native American
tribes should be given due deference and be provided an
opportunity to consult on projects in areas that they
are traditionally and culturally affiliated with; and,
(2) CEQA may not be the appropriate venue for doing so,
may wish to consider whether it would be prudent to
provide a meaningful and clear consultation process for
tribes on a project-by-project basis on public and
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private lands, in its own division in PRC outside of
CEQA, for the purpose of identifying impacts on TCRs
(broadly defined) and ways to avoid or mitigate those
impacts. The information gathered from the consultation
could be used in the environmental review to the extent
required by CEQA and the consultation would be mandated
regardless of whether CEQA or a CEQA exemption applied.
If proponents are concerned about maintaining a private
right of action, a consultation process outside of CEQA
would not impede on that. Tribes would still have a
private right of action to sue under the general
provisions in the Code of Civil Procedure pertaining to
writs of mandate if the lead agency fails to engage in
the consultation process and/or perform its mandatory
duty. Also, this would not foreclose a private right
action by a tribe participating in the environmental
review process under CEQA - If the tribe does not arrive
at an agreement in the consultation, then the tribe can
raise those points in the environmental review process,
which then gives them standing in CEQA.
It seems that the proponents of AB 52 are striving for
something beyond the realm of CEQA. They are seeking a
way to protect resources that are more than simply
"environmental" resources.
TCRs, which have broad traditional, cultural, and religious
significance, are difficult to objectively quantify and
appropriately address under CEQA. In order to ensure
that Native American tribes' concerns are more fully
addressed on a project-by-project basis, perhaps a
consultation process outside of CEQA is what is most
needed.
Options For the Committee To Consider
22)Options and Potential Amendments For the Committee To
Consider . If the Committee believes that a special
consultation process for Native American tribes on a
project-by-project basis is necessary, there are two
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approaches to consider: a) A stand-alone tribal
consultation process in statute outside of CEQA that would
allow for a consultation on TCRs (See Comment #25(c)); or,
b) Amend the bill to address the issues raised above
(Comments #4 through #23) to provide a more limited
consultation process in CEQA.
a) If the Committee believes a special consultation
process is better suited outside of CEQA and that would
allow for consultation on a broad array of TCRs than
what is appropriate for CEQA, then amendments are needed
as follows :
i) Delete the contents of the bill and add a new
division in PRC, which will include ii-vi below.
ii) Define specified terms such as:
a) "Native American tribe" to include
both federally and non-federally recognized
tribes that are on the contact list maintained
by NAHC.
b) "TCR" to have the same meaning as
currently in the bill except delete references
to guides and guidance documents.
c) "Consultation" as having the same
meaning in GOV �65352.4.
d) "Significant effect on a TCR" as a
substantial, or potentially substantial,
adverse change to a TCR.
iii) Provide clear steps, such as deadlines and
timing, on the notification and consultation
process based on the Tribal Consultation Guidelines
pursuant to SB 18 (Burton).
iv) Specify that the purpose of the consultation
is to discuss whether a proposed project may have a
significant effect on an identified TCR and, if so,
any feasible alternatives or mitigation measures
that may avoid or substantially lessen the
significant effect to the identified TCR.
v) Include provisions related to confidentiality
of information submitted by a Native American tribe
during the consultation process that are consistent
with current law.
vi) Authorize the lead agency to charge and
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collect a fee from a project applicant to recover
the estimated cost incurred by the lead agency in
complying with these provisions.
b) If the Committee believes a more limited consultation
process for Native American tribes belongs in CEQA, then
amendments are needed to address the issues raised in
the comments above, as follows :
i) Define "Native American Tribe" to include
both federally and non-federally recognized tribes
that are on the contact list maintained by NAHC.
(Comment #4).
ii) Define "TCR" clearly and concisely to refer
to specified local, state, and federal lists,
eligibility for a local, state, or federal list, or
meet specified criteria in local, state, or federal
law. Delete references to guidelines and
consistency with guidance documents. Delete
discretionary components of the definition.
(Comment #5).
iii) Delete �21080.3.1(a) related to expertise.
(Comment #6).
iv) Delete 21080.3.1(b) related to authorizing
tribes to assist the lead agency in identifying,
interpreting, and determining significance of TCRs
and whether an impact of a proposed project to a
TCR is significant. (Comment #7).
v) Require NAHC to provide each tribe with the
information outlined in Comment #8(a)(i-iv) by July
1, 2016. (Comment #8(a)).
vi) Clarify the term "that geographic area".
(Comment #8(b))
vii) Require the lead agency to send formal
notification to a tribe as specified, no later than
14 days after an application for a project is
determined complete or a decision by a public
agency to undertake a project. (Comment #9(a)).
viii) Specify geographic area for identifying
"affiliated Native American tribes" in
�21080.3.1(c). (Comment #9(b)).
ix) Clarify that a lead agency must include in
the formal notification it sends to a tribe about a
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project that the tribe may request consultation
with the lead agency for that project for the
purpose of discussing whether there may be a
significant effect on a TCR, and if so, whether any
feasible alternatives or mitigation measures to
avoid or substantially lessen the significant
impact to the TCR exists. (Comment #9(c)).
x) Delete the requirement that the lead agency's
formal notification in proposed �21080.3.1(c) must
be consistent with PRC �21092(b)(1). (Comment
#9(d)).
xi) Consolidate the multiple consultations into
one consultation process and include specificity
for the procedural and substantive parameters of
the consultation including clear start and end
dates as well as state the purpose of the
consultation. (Comment #11).
xii) Specify that a consultation must begin no
later than 14 days after a lead agency receives a
tribe's request for consultation. (Comment #12).
xiii) Delete �21080.3.1(b) related to consultation
to determine appropriate level of environmental
review. (Comment #13).
xiv) Delete the definition of "consultation" in
�21080.3.2(a) and replace it with a reference to
the definition of "consultation" in GOV �65352.4.
(Comment #13).
xv) Delete �21080.3.2(b) related to the purpose
of the consultation. (Comment #14).
xvi) Provide that the lead agency shall notify and
consult with a tribe's designated contact or tribal
representative. (Comment #15).
xvii) Delete �21080.3.2(c) and replace with
language providing that consultation shall be
considered concluded when either the parties to the
consultation come to a mutual agreement concerning
appropriate measures for preservation or mitigation
of a significant effect on a tribal cultural
resource or either party, acting in good faith and
after reasonable effort, concludes that mutual
agreement cannot be reached concerning appropriate
measures for preservation or mitigation of a
significant effect on a tribal cultural resource.
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(Comment #18).
xviii) Delete �21082.3(a) related to mitigation
measures agreed upon must be recommended for
inclusion in the environmental document. (Comment
#19).
xix) Delete �21082.3(c) related to
confidentiality. (Comment #20).
xx) Delete �21082.3(d) related to
certification/adoption of EIR/MND contingency.
(Comment #21).
xxi) Delete �21082.3(e) and �21084.3 related to
mitigation measures to consider. (Comment #22).
Past Legislation
23)Past Legislation . SB 833 (Vargas) (2012) would have
prohibited a person from constructing or operating a solid
waste landfill disposal facility in San Diego County if
that facility met both of the following conditions: (1)
any portion of the disposal facility was located on or
within 1,000 feet of the San Luis Rey River or an aquifer
that was hydrologically connected to that river, and (2)
the disposal facility was located on or within 1,000 feet
of a site that was considered sacred or of spiritual or
cultural importance to a tribe, as defined, and that was
listed in NAHC's Sacred Lands Inventory. SB 833 was vetoed
by Governor Edmund G. Brown.
AB 742 (Lowenthal) (2011), would have prohibited a lead agency
with jurisdiction over a proposed aggregate mining
operation from approving a reclamation plan of a mining
operation that was proposed to be constructed within
specified distances of a Native American sacred site or an
aquifer that was hydrologically connected to the Santa
Margarita River without the consent of the tribe whose
reservation is nearest the proposed operation. This bill
died in Senate Rules Committee.
SB 1395 (Ducheny) (2006), would have required a lead agency to
notify Native American tribes regarding certain matters,
including the naming of a single point of contact for
exchange of information and comments, if the lead agency
determines a project is exempt pursuant to certain
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exemptions. This bill was vetoed by Governor Arnold
Schwarzenegger.
SB 18 (Burton), Chapter 905, Statutes of 2004, enacted various
requirements for traditional tribal cultural sites,
including conservation easements and Planning and Zoning
Law.
SB 1828 (Burton) (2002) would have amended the Surface Mining
and Reclamation Act of 1975 and CEQA to subject projects
that could affect a Native American tribe's sacred site to
additional conditions and approvals. This bill was vetoed
by Governor Gray Davis.
AB 978 (Steinberg), Chapter 818, Statutes of 2001, enacted the
California Native American Graves Protection and
Repatriation Act of 2001, that established an extensive
process to provide "a seamless and consistent state policy
to ensure that all California Indian human remains and
cultural items be treated with dignity and respect."
AB 1196 (Thompson) (2000) prohibited the California Integrated
Waste Management Board (CIWMB) from approving an integrated
waste management plan that identifies a new solid waste
facility or landfill contiguous with or within one mile of
a federal Indian reservation, or where a sacred site is
within the facility or landfill site boundary. The bill
also prohibited CIWMB from concurring in the issuance of a
solid waste facilities permit, and would not deem CIWMB as
having concurred in the issuance of such permit, under one
of those conditions. AB 1196 failed passage June 26, 2000,
in the Senate Environmental Quality Committee.
AB 2752 (Cardoza) (2000) required a lead agency under CEQA to
minimize, to the extent feasible, any significant impact of
a project on the free exercise of the Native American
religion as protected by the US and state constitutions.
AB 2752 also prohibited CIWMB from concurring in the
issuance of a solid waste facilities permit if an EIR is
required to be prepared that identified potentially
significant adverse effects on Native
American resources, and certain conditions exist. AB 2752
was vetoed by Governor Gray Davis.
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SOURCE : Author
SUPPORT : Agua Caliente Band of Cahuilla Indians Tribal
Council
Barona Band of Mission Indians
California Tribal Business Alliance
Habematolel Pomo of Upper Lake
Koi Nation of Northern California
Mechoopda Indian Tribe of Chico Rancheria
Middletown Rancheria of Pomo Indians of
California
Pala Band of Mission Indians
Paskenta Band of Nomlaki Indians of California
Pechanga Tribe
Planning and Conservation League
Rincon Band of Luiseno Indians
Santa Ynez Band of Chumash Indians
Tribal Alliance of Sovereign Indian Nations
United Auburn Indian Community
Viejas Band of Kumeyaay Indians
Yocha Dehe Wintun Nation
OPPOSITION : American Council of Engineering Companies
Associated Builders and Contractors of America
Associated General Contractors of America
Association of California Water Agencies
Association of Environmental Professionals
California Association of Realtors
California Building Industry Association
California Business Properties Association
California Business Roundtable
California Cattlemen's Association
California Chamber of Commerce
California Construction and Industrial
Materials Association
California Farm Bureau Federation
California Manufacturers and Technology
Association
California Municipal Utilities Association
California Rail Industry
California Retailers Association
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California Special Districts Association
California State Association of Counties
California Wind Energy Association
County of Nevada
Independent Energy Producers
Large-Scale Solar Association
Pacific Gas & Electric
Rural County Representatives of California
Sacred Places Institute for Indigenous Peoples
San Gabriel Valley Economic Partnership
The California Railroad Authority