BILL ANALYSIS �
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|SENATE RULES COMMITTEE | AB 52|
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THIRD READING
Bill No: AB 52
Author: Gatto (D), et al.
Amended: 8/19/14 in Senate
Vote: 21
SENATE ENVIRONMENTAL QUALITY COMMITTEE : 6-0, 6/25/14
AYES: Hill, Gaines, Hancock, Jackson, Leno, Pavley
NO VOTE RECORDED: Fuller
SENATE APPROPRIATIONS COMMITTEE : 5-0, 8/14/14
AYES: De Le�n, Hill, Lara, Padilla, Steinberg
NO VOTE RECORDED: Walters, Gaines
ASSEMBLY FLOOR : 58-0, 6/27/13 - See last page for vote
SUBJECT : Native Americans: California Environmental Quality
Act
SOURCE : Author
DIGEST : This bill establishes procedures and requirements
under the California Environmental Quality Act (CEQA) for the
purpose of avoiding or minimizing impacts to tribal cultural
resources.
ANALYSIS :
Existing law:
1.Under CEQA:
CONTINUED
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A. Requires lead agencies with the principal responsibility
for carrying out or approving a proposed discretionary
project to prepare a negative declaration, mitigated
negative declaration, or environmental impact report (EIR)
for this action, unless the project is exempt from CEQA
(CEQA includes various statutory exemptions, as well as
categorical exemptions in the CEQA Guidelines). If there
is substantial evidence, in light of the whole record
before a lead agency, that a project may have a significant
effect on the environment, the lead agency must prepare a
draft EIR.
B. Prior to or during preparation of an EIR, authorizes the
lead agency to consult with any person, organization, or
government agency it believes will be concerned with the
environmental effects of a project.
C. Establishes the Native American Heritage Commission
(NAHC) and vests the commission with specified powers and
duties. Requires the lead agency to work with the most
likely descendant as designated by the NAHC when an initial
study identifies the existence of, or probable likelihood
of, Native American human remains within the project site.
D. Defines "significant effect on the environment" as "a
substantial, or potentially substantial, adverse change in
the environment."
E. Defines "environment" as "the physical conditions which
exist within the area which will be affected by a proposed
project including land, air, water, minerals, flora, fauna,
ambient noise, and objects of historic and aesthetic
significance. The area involved shall be the area in which
significant effects would occur either directly or
indirectly as a result of the project. The 'environment'
includes both natural and man-made conditions."
F. Provides that any information about the specific
location of archaeological sites and sacred lands must not
be included in the environmental review document circulated
for public review.
G. Directs the lead agency on a project to determine
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whether the project may have a significant effect on
archaeological resources. If the lead agency determines
that a project may have a significant effect on unique
archaeological resources, then requires the EIR to address
those issues. The lead agency need not address an issue of
non-unique archaeological resources.
H. Provides that an archaeological resource is "unique" if
it:
(1) Is associated with an event or person of recognized
significance in California or American history or
recognized scientific importance in prehistory;
(2) Can provide information of demonstrable public
interest and is useful in addressing scientifically
consequential and reasonable research questions;
(3) Has a special or particular quality such as oldest,
best example, largest, or last surviving example of its
kind.
A. Provides that a project, which may have a significant
adverse change in the significance of a historical
resource, is a project that may have a significant effect
on the environment. Provides requirements for what is
considered a historical resource for purposes of an
environmental review.
1.Prohibits public agencies from interfering with Native
American religious practices, sites, or shrines unless there
is a clear and convincing showing that public interest and
necessity require such interference and specifies that it is
not intended to limit CEQA requirements.
2.Establishes NAHC, made up of nine members appointed by the
Governor, five of whom must be elders, traditional people, or
spiritual leaders of California Native American tribes.
Requires NAHC to identify and catalog places of special
religious or social significance to Native Americans, and
known graves and cemeteries of Native Americans on private
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.
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3.Requires NAHC to investigate the effect of proposed actions by
a public agency if such action may cause severe or irreparable
damage to a Native American sacred site located on public
property or may bar appropriate access to the sacred site by
Native Americans. Authorizes NAHC to recommend mitigation
measures for consideration by the agency if NAHC finds, after
a public hearing, that the proposed action would result in
damage or interference. Allows NAHC to ask the Attorney
General to take action if the agency fails to accept the
mitigation measures.
4.Includes a California Native American tribe, which is on the
contact list maintained by NAHC, in the definition of "person"
to whom notice of public hearings must be sent by local
governments for provisions under the Planning and Zoning Law,
Title 7 of the Government Code.
5.Requires local governments to conduct meaningful consultation
with California Native American tribes on the contact list
maintained by the NAHC prior to the adoption or amendment of a
city or county general plan for the purpose of protecting
cultural places on lands affected by the proposal.
6.For purposes of preparation, adoption, and amendment of a
General Plan, defines "consultation" as the meaningful and
timely process of seeking, discussing, and considering
carefully the views of others, in a manner that is cognizant
of all parties' cultural values and, where feasible, seeking
agreement. Requires consultation between government agencies
and Native American tribes to be conducted in a way that is
mutually respectful of each party's sovereignty. Requires
consultation to recognize the tribes' potential needs for
confidentiality with respect to places that have traditional
tribal cultural significance.
7.Requires local governments to conduct meaningful consultation
with California Native American tribes on the contact list
maintained by NAHC for the purpose of protecting cultural
places located within open space. Includes protection of
Native American cultural places as an acceptable designation
of open space.
8.Exempts from disclosure - records of Native American graves,
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cemeteries, and sacred places, and records of Native American
places, features, and objects as specified that are maintained
by NAHC.
9.Enacts the Native American Historic Resource Protection Act,
which establishes as a misdemeanor, punishable by up to a
$10,000 fine and/or imprisonment, the unlawful and malicious
excavation, removal, or destruction of Native American
archeological or historic sites on public or private lands.
Exempts certain legal acts by landowners.
This bill:
1.Makes several findings and declarations.
2.Defines "California Native American tribe" as a federally
recognized Native American tribe located in California, or a
non-federally recognized Native American tribe location in
California that is on the contact list maintained by the NAHC.
3.Defines "Tribal Cultural Resources (TCRs)" to mean either of
the following:
A. Sites, features, places, and objects with cultural value
to descendant landscapes that are any of the following:
(1) Included in the California Register of Historical
Resources.
(2) Included in a local register of historical
resources, as defined.
(3) Deemed to be significant pursuant to specified
criteria.
A. 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:
(1) Listed on NAHC's Sacred Lands File; or
(2) Listed or determined pursuant to specified criteria
to be eligible for listing in the California Register of
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Historical Resources.
A. Provides that a historical resource as described, a
unique archaeological resource, as defined, or a
"non-unique archaeological resource," as defined may also
be a TCR if it conforms with the criteria.
1.Provides that California Native American tribes, which are
traditionally and culturally affiliated with a geographic
area, may have expertise concerning TCRs.
2.Authorizes California Native American tribes to assist the
lead agency in identifying, interpreting, and determining
significance of TCRs and whether an impact of a proposed
project to a TCR is significant.
3.Requires the NAHC to provide each federally recognized
California Native American tribe, as defined, on or before
July 1, 2016, with a list of all public agencies that may be a
lead agency within the geographic area in which the tribe is
traditionally and culturally affiliated, the contact
information of those agencies, and information on how the
tribe may request those public agencies to notify the tribe of
projects within the jurisdiction of those public agencies for
the purposes of requesting consultation.
4.Creates the first of two consultation processes, which
requires the lead agency to begin consultation with a
California Native American tribe if: (a) the tribe requests
the lead agency to be informed through formal notification of
proposed projects in the geographic area that is traditionally
and culturally affiliated with the tribe and (b) the tribe
responds within 30 days of receipt of the formal notification
and requests consultation.
A. Requires NAHC to assist the lead agency in identifying
the California Native American tribes that are
traditionally and culturally affiliated with the project
area. Within 14 days of determining that an application
for a project is complete or a decision by a public agency
to undertake a project.
B. Requires the lead agency to provide formal notification
to the designated contact of, or a tribal representative
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of, traditionally and culturally affiliated federally
recognized California Native American tribes that have
requested notice, which shall be accomplished by means of
at least one written notification that includes a brief
description of the proposed project and its location, the
lead agency contact information, and a notification that
the tribe has 30 days to request consultation.
C. Requires the lead agency to begin the consultation
process within 30 days of receiving a federally recognized
California Native American tribe's request for
consultation.
1.Creates a second consultation process authorizing the parties
to propose mitigation measures capable of avoiding or
substantially lessening potential significant impacts to a TCR
or alternatives that would avoid significant impacts to a TCR.
A. If the federally recognized California Native American
tribe requests consultation regarding alternatives to the
project, recommended mitigation measures, or significant
effects, requires the second consultation to include those
topics.
B. Authorizes this consultation to include discussion
concerning the 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 either
of the following occurs:
(1) The parties agree to measures to mitigate or avoid a
significant effect, if significant effect exists, on a
tribal cultural resource.
(2) A party, acting in good faith and after reasonable
effort, concludes that mutual agreement cannot be reached
concerning appropriate measures to be taken that would
mitigate or avoid a significant effect, if significant
effect exists, on a tribal cultural resource.
A. Provides that this consultation:
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(1) Does not limit the ability of a California Native
American tribe or the public to submit information to the
lead agency regarding the significance of the TCRs, the
significance of the project's impact on the TCRs, or
appropriate measures to mitigate the impact.
(2) Does not limit the ability of the lead agency or
project proponent to incorporate changes and additions to
the project as a result of consultation, even if not
legally required.
1.Requires any mitigation measures agreed upon in the second
consultation to be recommended for inclusion in the
environmental document and in an adopted mitigation monitoring
program, if determined to avoid or lessen the impact and shall
be fully enforceable.
2.If a project may have a significant impact on a TCR, requires
the lead agency's environmental document to discuss both of
the following:
A. Whether the proposed project has a significant impact on
a TCR.
B. Whether feasible alternatives or mitigation measures,
including those measures that may be agreed to, avoid or
substantially lessen the impact to the identified TCR.
1.Prohibits information submitted by a tribe during the
consultation or environmental review process from being
included in the environmental document or otherwise disclosed
by the lead agency or other public agency to the public
without prior consent of the tribe. If the lead agency does
publish such information, requires that it shall be in a
confidential appendix to the environmental document unless the
tribe consents to disclosure. The information may be
described in general terms in the environmental document.
2.Authorizes, in addition to other requirements, the lead agency
to certify an EIR or adopt a mitigated negative declaration
for a project with a significant impact on an identified TCR
only if one of the following occurs:
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A. The consultation process between the federally
recognized California Native American tribe and the lead
agency has occurred, as provided, and concluded.
B. The federally recognized California Native American
tribe has requested consultation and has failed to provide
comments to the lead agency, or otherwise failed to engage,
in the consultation process.
C. The lead agency has successfully identified the
California Native American tribes that are traditionally
and culturally affiliated with the project area, and the
federally recognized California Native American tribe has
failed to request consultation within 30 days.
1.Requires the lead agency to consider a specified list of
mitigation measures if the mitigation measures recommended by
the staff of the lead agency as a result of the consultation
are not included in the environmental document or if there are
no agreed upon mitigation measures at the conclusion of the
consultation, and if substantial evidence demonstrates that a
project will cause a significant effect to a TCR.
2.Provides that a project with an effect that may cause a
substantial adverse change in the significance of a TCR is a
project that may have a significant effect on the environment.
3.Requires public agencies, when feasible, avoid damaging
effects to a TCR.
4.If the lead agency determines that a project may cause a
substantial adverse change to a TCR, and measures are not
identified in the second consultation process, provides a list
of examples of mitigation measures that may be considered to
avoid or minimize significant adverse impacts, as specified.
Provides that this is not intended to replace the existing
mitigation preference for historical and archaeological
resources for tribal cultural resources that are also
historical and archaeological resources.
5.Provides that this act does not prohibit any California Native
American tribe either federally recognized or non-federally
recognized from participating in CEQA on any issue of concern
as an interested California Native American tribe person,
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citizen, or member of the public.
6.Provides that this act does not prohibit any lead agency from
consulting with non-federally recognized California Native
American tribes that are on the contact list maintained by
NAHC.
7.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 tribal cultural resources and update the relevant
sample questions.
B. Add consideration of TCRs with relevant sample questions
Background
CEQA : Historical and Archeological Resources. The
environmental review must identify and evaluate the potential
for a project to adversely affect paleontological, historical,
and archaeological resources. The resources of concern include,
but are not limited to, fossils, prehistoric and historic
artifacts, burials, sites of religious or cultural significance
to Native American groups, and historic structures. CEQA
provides special rules for determining whether impacts on
historical and archaeological resources are potentially
significant. The Guidelines specify that a substantial adverse
change in the significance of an historical resource is a
significant effect requiring preparation of an EIR.
In determining if there is a significant impact to a historic
resource there is a two-part test: (1) is the resource
"historically significant;" and (2) would the project cause a
substantial adverse change in the significance of the resource?
The rules relating to historic resources are defined broadly to
include archeological resources. If an archaeological site
meets the definition of historical resource, then it may be
treated like any other historical resource. If the
archaeological site does not fall within the definition of
historical resource, but does meet the definition of a "unique
archaeological resource," then the site may be treated in
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accordance with the specific provisions for such resources.
However, if an archaeological site is neither a "unique"
archaeological resource nor a historical resource, any effect to
it shall not be considered significant.
Early Consultation and Scoping . Prior to or during preparation
of an EIR, the lead agency may consult with any person,
organization, or government agency it believes will be concerned
with the environmental effects of a project. According to the
CEQA Guidelines, early consultation "solves many potential
problems that would arise in more serious forms later in the
review process." The Guidelines also provide that scoping "has
been helpful to agencies in identifying the range of actions,
alternatives, mitigation measures, and significant effects to be
analyzed in depth in an EIR and in eliminating from detailed
study issues found not to be important." The Guidelines further
note that scoping "has been found to be an effective way to
bring together and resolve the concerns of affected federal,
state, and local agencies, the proponent of the action, and
other interested persons including those who might not be in
accord with the action on environmental grounds."
Traditionally and Culturally Affiliated . This bill requires
consultation with Native American tribes that are traditionally
and culturally affiliated with the geographic area of a proposed
project. According to the U.S. Department of Interior, National
Park Service:
"Traditional" refers to those beliefs, customs, and
practices of a living community of people that have been
passed down through the generations, usually orally or
through practice. The traditional cultural significance of
a historic property, then, is significance derived from the
role the property plays in a community's historically
rooted beliefs, customs, and practices.
Culture is a system of behaviors, values, ideologies, and
social arrangements. These features, in addition to tools
and expressive elements such as graphic arts, help humans
interpret their universe as well as deal with features of
their environments, natural and social. Culture is
learned, transmitted in a social context, and modifiable.
Traditional cultural values are often central to the way a
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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).
FISCAL EFFECT : Appropriation: No Fiscal Com.: Yes
Local: Yes
According to the Senate Appropriations Committee:
One-time costs to the General Fund for the Office of Planning
and Research to revise its CEQA Guidelines.
One-time costs of $3 to $5 million to the General Fund to the
NAHC to develop a database identifying traditional and
cultural areas and the lead agencies that overlap these areas.
Ongoing costs of $600,000 to the General Fund to the NAHC to
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assist lead agencies and maintain the required database.
Unknown costs to the General Fund and various special funds
for increased CEQA costs for projects which the state is the
lead agency or the project proponent.
SUPPORT : (Verified 8/15/14) (Unable to reverify at time of
writing)
Agua Caliente Band of Cahuilla Indians
Augustine Band of Mission Indians
Barona Band of Mission Indians
Bear River Band Rohnerville Rancheria
Big Pine Paiute Tribe of the Owens Valley
Bishop Paiute Tribe
Blue Lake Rancheria
Bridgeport Paiute Indian Colony
Cachil Dehe Band of Wintun Indians of the Colusa Indian
Community
Cahuilla Band of Mission Indians
California Catholic Conference
California Tribal Business Association
Chemehuevi Indian Tribe
Coyote Valley Band of Pomo Indians
Elk Valley Rancheria
Habematolel Pomo of Upper Lake
Hoopa Valley Tribe
Karuk Tribe
Koi Nation of Northern California
Mechoopda Indian Tribe of Chico Rancheria
Middletown Rancheria of Pomo Indians of California
Morongo Band of Mission Indians
Northern California Tribal Chairman's Association
Pala Band of Mission Indians
Paskenta Band of Nomlaki Indians
Pechanga Band of Luiseno Mission Indians
Planning and Conservation League
Redding Rancheria
Resighini Rancheria
Rincon Band of Luiseno Indians
San Manuel Band of Mission Indians
Santa Rosa Band of Mission Indians
Santa Ynez Band of Chumash Indians
Sierra Club
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Smith River Rancheria
Soboba Band of Luiseno Indians
Sycuan Band of Kumeyaay Nation
Torres Martinez Desert Cahuilla Indians
Tribal Alliance of Sovereign Indian Nations
Trinidad Rancheria
United Auburn Indian Community of the Auburn Rancheria
Viejas Band of Kumeyaay Indians
Wiyot Tribe
Yocha Dehe Wintun Nation
Yurok Tribe
OPPOSITION : (Verified 8/15/14) (Unable to reverify at time
of writing)
American Council of Engineering Companies
Associated Builders and Contractors of California
Associated General Contractors
Association of California Water Agencies
Barbareno Chumash Tribe
CalChamber
California Association of Realtors
California Building Industry Association
California Business Properties Association
California Cattlemen's Association
California Construction and Industrial Materials Association
California Council for the Environment and Economic Balance
California Cultural Resources Preservation Alliance
California Farm Bureau Federation
California Indian Environmental Alliance
California Manufacturers and Technology Association
California Retailers Association
California Special Districts Association
California State Association of Counties
California Wind Energy Association
Clean Water Action
Coastal Band of the Chumash Nation
Environmental Justice Coalition for Water
Fernandeno Tataviam Band of Mission Indians
Independent Energy Producers
Juaneno Band of Mission Indians
Large-scale Solar Association
Native American Concerns Catholic Archdiocese of Los Angeles
Nevada County Board of Supervisors
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Nor Rel Muk Wintu Nation
Northern Chumash Tribe
Ohlone/Costanoan-Esselen Nation
Pacific Gas and Electric
Pit River Tribe
Rural Counties Representatives of California
Sacred Places Institute for Indigenous Peoples
Sacred Sites Protection and Rights of Indigenous Tribes
Salinan Trowtraahl
San Luis Rey Band of Mission Indians
Southwest California Legislative Council
The California Rail Industry
Winnemem Wintu Tribe
Wishtoyo Foundation
Wuksachi Band of Western Mono Indians
ARGUMENTS IN SUPPORT : Supporters state, "Lack of
consideration of tribal sacred places and cultural resources has
had a detrimental effect on many tribes in California. This
bill recognizes that tribes have a right to consult on the
impacts of projects that take place outside their given trust
lands and reservation boundaries. Moreover, due to the
termination era many California tribes are still landless. We
are well aware of the lengthy, costly, arduous and often
politically charged fee-to-trust process; the land base restored
likely will never encompass their original indigenous boundaries
or measure up to the lands they once possessed. Thus aboriginal
lands are frequently under private control and outside tribal
boundaries."
ARGUMENTS IN OPPOSITION : California Chamber of Commerce
writes in opposition:
[?]
The only guidance or constraints AB 52 and existing law place on
the NAHC's listing of Tribal Cultural Resources is that they
must be supported by "sufficient evidence demonstrating that the
sacred places are of special religious or social significance to
the Native American tribe." "Sufficient evidence" is not a
standard of review that exists in CEQA for any other resource
area and there is no case law to define what constitutes
"sufficient evidence." Therefore, the practical result of AB 52
will be to create a plethora of post hoc litigation under CEQA
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about whether there was "sufficient evidence" to list a Tribal
Cultural Resource in the first place. This flies in the face of
what the author and the proponents have articulated as two of
the goals of this legislation: to clarify what constitutes a
Tribal Cultural Resource and to alleviate existing litigation
and conflict over Tribal Cultural Resources.
Ultimately, the determination as to what constitutes a Tribal
Cultural Resource for CEQA purposes will be made by an eight
member Commission of Native Americans with no statutory or
regulatory guidance or requirement to make findings justifying
their decisions.
As a fiscal matter, by requiring the NAHC to evaluate whether a
Tribe has provided "sufficient evidence" to support a listing
request, AB 52 places an expansive new burden on the NAHC and
its staff that may require a substantial augmentation of their
budget and resources. AB 52 also requires the NAHC to provide
"each Native American tribe with a list of all public agencies
that may be a CEQA lead agency within the geographic area with
which the tribe is traditionally and culturally affiliated, the
contact information of those public agencies, and the
information on how the tribe may request the public agency to
notify the tribe of projects within the jurisdiction of those
public agencies for the purposes of requesting consultation."
This project will also impact an evaluation of the agency's
available resources.
[?]
Because AB 52 leaves the definition of what constitutes a Tribal
Cultural Resource so open ended, it will dramatically expand the
frequency that Tribal Cultural Resources become an issue for
public projects throughout the state. The costs of the CEQA
evaluation and unavoidable litigation spawned by AB 52's
ambiguity will be borne by entities such as CalTrans, the
University of California, California State University, and the
Department of General Services, among others.
In conclusion, AB 52, as currently drafted, will create a
disincentive to invest in land, whether it is to build
affordable housing, build public schools and universities, or
construct needed public infrastructure projects such as
renewable energy projects, or roads and highways.
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ASSEMBLY FLOOR : 58-0, 6/27/13
AYES: Alejo, Allen, Ammiano, Atkins, Bloom, Blumenfield,
Bocanegra, Bonilla, Bonta, Bradford, Brown, Buchanan, Ian
Calderon, Campos, Chau, Chesbro, Cooley, Daly, Dickinson,
Eggman, Fong, Fox, Frazier, Beth Gaines, Garcia, Gatto, Gomez,
Gonzalez, Gordon, Gorell, Gray, Hall, Roger Hern�ndez, Holden,
Jones-Sawyer, Levine, Lowenthal, Medina, Mitchell, Mullin,
Muratsuchi, Nazarian, Nestande, Pan, V. Manuel P�rez, Quirk,
Quirk-Silva, Rendon, Salas, Skinner, Stone, Ting, Waldron,
Weber, Wieckowski, Williams, Yamada, John A. P�rez
NO VOTE RECORDED: Achadjian, Bigelow, Ch�vez, Conway, Dahle,
Donnelly, Grove, Hagman, Harkey, Jones, Linder, Logue,
Maienschein, Mansoor, Melendez, Morrell, Olsen, Patterson,
Perea, Wagner, Wilk, Vacancy
RM:e 8/19/14 Senate Floor Analyses
SUPPORT/OPPOSITION: SEE ABOVE
**** END ****