BILL ANALYSIS �
AB 52
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CONCURRENCE IN SENATE AMENDMENTS
AB 52 (Gatto)
As Amended August 22, 2014
Majority vote
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|ASSEMBLY: |58-0 |(June 27, 2013) |SENATE: |35-0 |(August 27, |
| | | | | |2014) |
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Original Committee Reference: NAT. RES.
SUMMARY : Provides a process for a California Native American
tribe (CNA Tribe) to engage in the California Environmental
Quality Act (CEQA) review process to avoid significant effects
on tribal cultural resources.
The Senate amendments :
1)Make various amendments to the findings and declarations.
2)Define CNA Tribe as a Native American tribe located in
California that is on the contact list maintained by the
Native American Heritage Commission (Commission) for the
purposes of SB 18 (Burton), Chapter 905, Statutes of 2004.
(SB 18 established a consultation process between tribes and
local governments when a general plan is adopted or amended.)
3)Define "tribal cultural resources" as either of the following:
a) Sites, features, places, cultural landscapes, sacred
places, and objects with cultural value to a CNA Tribe that
are either of the following:
i) Included or determined to be eligible for inclusion
in the California Register of Historical Resources; or,
ii) Included in a local register of historical
resources, as defined.
b) A resource determined by the lead agency, in its
discretion and supported by substantial evidence, to be
significant, as specified.
4)Require the Commission to provide each CNA Tribe with a list
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of all public agencies that may be a lead agency pursuant to
CEQA within the geographic area with which the CNA Tribe is
traditionally and culturally affiliated, the contact
information of those public agencies, and information on how
the CNA Tribe may request the public agency to notify the
tribe of projects within the jurisdiction of those public
agencies for the purposes of requesting consultation pursuant
to 5).
5)Require the lead agency, prior to the release of a negative
declaration, mitigated negative declaration, or EIR for a
project, to begin consultation (AB 52 Consultation) with a CNA
Tribe that is traditionally and culturally affiliated with the
geographic area of the proposed project if a) the CNA Tribe
requested to the lead agency, in writing, to be informed by
the lead agency through formal notification of proposed
projects in the geographic area that is traditionally and
culturally affiliated with the tribe, and b) the CNA Tribe
responds, in writing, within 30 days of receipt of the formal
notification, and requests the AB 52 Consultation. When
responding to the lead agency, requires the CNA Tribe to
designate a lead contact person. If the CNA Tribe does not
designate a lead contact person, or designates multiple lead
contact people, requires the lead agency to defer to the
individual listed on the contact list maintained by the
Commission for the purposes of SB 18.
6)Within 14 days of determining that an application for a
project is complete or a decision by a public agency to
undertake a project, requires the lead agency to provide
formal notification to the CNA Tribe that has 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 CNA Tribe has 30 days
to request an AB 52 Consultation.
7)Require the lead agency to begin the consultation process
within 30 days of receiving a CNA Tribe's request for
consultation.
8)As a part of the AB 52 Consultation, authorizes the parties to
propose mitigation measures capable of avoiding or
substantially lessening potential significant impacts to a
tribal cultural resource or alternatives that would avoid
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significant impacts to a tribal cultural resource.
9)Require the AB 52 Consultation to be considered concluded when
either of the following occurs:
a) The parties agree to measures to mitigate or avoid a
significant effect, if a significant effect exists, on a
tribal cultural resource; or,
b) A party, acting in good faith and after reasonable
effort, concludes that mutual agreement cannot be reached.
10)Require any mitigation measures agreed upon in the AB 52
Consultation to be recommended for inclusion in the
environmental document and in an adopted mitigation monitoring
and reporting program.
11)If a project may have a significant impact on a tribal
cultural resource, requires the lead agency's environmental
document to discuss both of the following:
a) Whether the proposed project has a significant impact on
an identified tribal cultural resource; and,
b) Whether feasible alternatives or mitigation measures
avoid or substantially lessen the impact on the identified
tribal cultural resource.
12)Provide public disclosure protections for any information,
including, but not limited to, the location, description, and
use of the tribal cultural resources, that is submitted by a
CNA Tribe during the environmental review process.
13)Authorize the lead agency to certify an EIR or adopt a
mitigated negative declaration for a project with a
significant impact on an identified tribal cultural resource
only if one of the following occurs:
a) The AB 52 Consultation process between the CNA Tribe and
the lead agency has occurred and concluded pursuant to 9);
b) The CNA Tribe has requested an AB 52 Consultation and
has failed to provide comments to the lead agency, or
otherwise failed to engage, in the consultation process;
or,
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c) The lead agency has complied with the AB 52 Consultation
notice requirements and the CNA Tribe has failed to request
consultation within 30 days.
14)If the mitigation measures recommended by the staff of the
lead agency as a result of the AB 52 Consultation process are
not included in the environmental document or if there are no
agreed upon mitigation measures at the conclusion of the AB 52
Consultation or if AB 52 Consultation does not occur, and if
substantial evidence demonstrates that a project will cause a
significant effect to a tribal cultural resource, requires the
lead agency to consider the following feasible mitigation
measures:
a) Avoidance and preservation of the resources in place,
including, but not limited to, planning and construction to
avoid the resources and protect the cultural and natural
context, or planning greenspace, parks, or other open
space, to incorporate the resources with culturally
appropriate protection and management criteria;
b) Treating the resource with culturally appropriate
dignity taking into account the tribal cultural values and
meaning of the resource, including, but not limited to, the
following:
i) Protecting the cultural character and integrity of
the resource.
ii) Protecting the traditional use of the resource; and,
iii) Protecting the confidentiality of the resource.
c) Permanent conservation easements or other interests in
real property, with culturally appropriate management
criteria for the purposes of preserving or utilizing the
resources or places; and,
d) Protecting the resource.
EXISTING LAW :
1)Requires, pursuant to CEQA, a lead agency with the principal
responsibility for carrying out or approving a proposed
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project to prepare a negative declaration, mitigated negative
declaration, or 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).
2)Requires, pursuant to CEQA, that any project that causes
substantial adverse change in significance of a historical
resource or a unique archaeological resources, is a
"significant effect" requiring the preparation of an EIR. The
CEQA Guidelines require a mandatory finding of significance
where a project has the potential to eliminate important
examples of the major periods of California history or
prehistory. If a project may cause a significant effect to a
historical resource or a unique archaeological resource, CEQA
requires the lead agency to consider means to mitigate that
effect. The law favors leaving the resource in place or in an
undisturbed state.
3)Requires, prior to the adoption or any amendment of a city or
county's general plan, the city or county to conduct
consultations with CNA Tribe that are on the contact list
maintained by the Commission for the purpose of preserving or
mitigating impacts to places, features, and objects listed in
the California Native American Heritage Commission Sacred
Lands File that are located within the city or county's
jurisdiction. From the date on which a CNA Tribe is contacted
by a city or county pursuant to this subdivision, the tribe
has 90 days in which to request a consultation, unless a
shorter timeframe has been agreed to by that tribe.
FISCAL EFFECT : According to the Senate Appropriations
Committee:
1)One-time costs of $3 to $5 million to the General Fund to the
Commission to develop a database identifying traditional and
cultural areas and the lead agencies that overlap these areas.
2)Ongoing costs of $600,000 to the General Fund to the
Commission to assist lead agencies and maintain the required
database.
3)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.
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COMMENTS : According to the author, existing laws lack a formal
process for tribes to be involved in the CEQA process as tribal
governments. CEQA projects that impact tribal resources have
experienced uncertainty and delays as lead agencies attempt to
work with tribes to address impacts on tribal resources. With
this bill, it is the author's intent to "Set forth a process and
scope that clarifies California tribal government involvement in
the CEQA process, including specific requirements and timing for
lead agencies to consult with tribes on avoiding or mitigating
impacts to tribal cultural resources."
This bill attempts to help address a problem that was
illustrated by two bills from the 2011-2012 legislative session:
AB 742 (Bonnie Lowenthal) and SB 833 (Vargas). These bills
proposed to stop two large-scale projects planned on or near
Native American sacred sites after the planning process failed
to adequately address tribal concerns.
AB 742 proposed to prohibit the permitting of a 155-acre rock
quarry in Riverside County planned to produce up to five million
tons of aggregate each year for 75 years. The facility would
have included the quarry, concrete and asphalt mixing, and
various other ancillary activities. The proposed pit would have
been approximately one mile long and 1,000 feet deep. The
project proposed to obtain aggregate from rock that would have
been crushed after explosives were blasted to loosen the
material.
A major problem with the quarry is that it would have been
located in an area that the Pechanga Tribe of Luise�o Peoples
considers the most important sacred place, the place considered
to be the Place of Creation.
The bill was introduced after the project proponents drafted an
8,500 page draft EIR and spent several years following the
permitting process. The tribe sponsoring the bill clearly did
not feel that its concerns were being adequately considered
during the planning process.
AB 742 was sent to the Senate Rules Committee, where it
ultimately died. A few months later, the Pechanga Tribe
purchased the property and settled its lawsuit with the mining
company. The deal cost the tribe over $20 million: the tribe
paid $3 million for the property and another $17.35 million as
part of a separate agreement to end the quarry dispute.
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SB 833 proposed to stop the development of a landfill and
recycling center located at Gregory Canyon in San Diego County.
The entire landfill project is approximately 308 acres. The
proposed landfill, which has an estimated 30 year life, will add
approximately 30 million tons of landfill capacity to the solid
waste disposal system in San Diego County.
Located in Gregory Canyon is Gregory Mountain, called "Chokla"
by the Luise�o. The mountain is one of the most spiritually
important places in the Luise�o world. It is believed to be one
of the residing places of "Taakwic," a powerful and feared
spirit that is the guardian spirit of many Shoshonean shamans.
The entire mountain, including the area within the proposed
landfill boundary, is considered an important place for fasting,
praying, and conducting ceremonies by the Luise�o.
As in the case with the quarry project in AB 742, the affected
tribe did not feel that its concerns were adequately handled
through the planning process.
SB 833 was ultimately vetoed by the Governor, who felt compelled
to let the project go forward because of local support and
adequate environmental planning. The Governor's veto message
expressed the angst he felt over his decision by stating the
following:
I am deeply concerned about the objections raised with
respect to the sacred site, but I don't believe it is
appropriate for the Legislature to now intervene and
overturn this hard fought local land-use decision.
This dispute pains me given the unspeakable injustices
the native peoples have endured and the profound
importance of their spirituality and connection to the
land. There's no question that more thought needs to
be given to how we resolve this inherently difficult
decision and to find ways for native peoples and their
fellow Californians to coexist in an inexorably
modernizing world.
Analysis Prepared by : Mario DeBernardo / NAT. RES. / (916)
319-2092
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FN: 0005529