Bill Text: CA AB52 | 2013-2014 | Regular Session | Chaptered
Bill Title: Native Americans: California Environmental Quality Act.
Spectrum: Partisan Bill (Democrat 4-0)
Status: (Passed) 2014-09-25 - Chaptered by Secretary of State - Chapter 532, Statutes of 2014. [AB52 Detail]
Download: California-2013-AB52-Chaptered.html
BILL NUMBER: AB 52 CHAPTERED
BILL TEXT
CHAPTER 532
FILED WITH SECRETARY OF STATE SEPTEMBER 25, 2014
APPROVED BY GOVERNOR SEPTEMBER 25, 2014
PASSED THE SENATE AUGUST 27, 2014
PASSED THE ASSEMBLY AUGUST 28, 2014
AMENDED IN SENATE AUGUST 22, 2014
AMENDED IN SENATE AUGUST 19, 2014
AMENDED IN SENATE JULY 2, 2014
AMENDED IN SENATE JUNE 16, 2014
AMENDED IN SENATE JUNE 2, 2014
AMENDED IN SENATE SEPTEMBER 5, 2013
AMENDED IN SENATE AUGUST 26, 2013
AMENDED IN ASSEMBLY MAY 30, 2013
AMENDED IN ASSEMBLY APRIL 19, 2013
AMENDED IN ASSEMBLY APRIL 8, 2013
AMENDED IN ASSEMBLY MARCH 19, 2013
INTRODUCED BY Assembly Member Gatto
(Principal coauthor: Assembly Member Alejo)
(Coauthors: Assembly Members Chesbro and Lowenthal)
DECEMBER 21, 2012
An act to amend Section 5097.94 of, and to add Sections 21073,
21074, 21080.3.1, 21080.3.2, 21082.3, 21083.09, 21084.2, and 21084.3
to, the Public Resources Code, relating to Native Americans.
LEGISLATIVE COUNSEL'S DIGEST
AB 52, Gatto. Native Americans: California Environmental Quality
Act.
Existing law, the Native American Historic Resource Protection
Act, establishes a misdemeanor for unlawfully and maliciously
excavating upon, removing, destroying, injuring, or defacing a Native
American historic, cultural, or sacred site, that is listed or may
be eligible for listing in the California Register of Historic
Resources.
The California Environmental Quality Act, referred to as CEQA,
requires a lead agency, as defined, to prepare, or cause to be
prepared, and certify the completion of, an environmental impact
report on a project that it proposes to carry out or approve that may
have a significant effect on the environment or to adopt a negative
declaration if it finds that the project will not have that effect.
CEQA also requires a lead agency to prepare a mitigated negative
declaration for a project that may have a significant effect on the
environment if revisions in the project would avoid or mitigate that
effect and there is no substantial evidence that the project, as
revised, would have a significant effect on the environment. CEQA
requires the lead agency to provide a responsible agency with
specified notice and opportunities to comment on a proposed project.
CEQA requires the Office of Planning and Research to prepare and
develop, and the Secretary of the Natural Resources Agency to certify
and adopt, guidelines for the implementation of CEQA that include,
among other things, criteria for public agencies to following in
determining whether or not a proposed project may have a significant
effect on the environment.
This bill would specify that a project with an effect that may
cause a substantial adverse change in the significance of a tribal
cultural resource, as defined, is a project that may have a
significant effect on the environment. The bill would require a lead
agency to begin consultation with a California Native American tribe
that is traditionally and culturally affiliated with the geographic
area of the proposed project, if the tribe requested to the lead
agency, in writing, to be informed by the lead agency of proposed
projects in that geographic area and the tribe requests consultation,
prior to determining whether a negative declaration, mitigated
negative declaration, or environmental impact report is required for
a project. The bill would specify examples of mitigation measures
that may be considered to avoid or minimize impacts on tribal
cultural resources. The bill would make the above provisions
applicable to projects that have a notice of preparation or a notice
of negative declaration filed or mitigated negative declaration on or
after July 1, 2015. The bill would require the Office of Planning
and Research to revise on or before July 1, 2016, the guidelines to
separate the consideration of tribal cultural resources from that for
paleontological resources and add consideration of tribal cultural
resources. By requiring the lead agency to consider these effects
relative to tribal cultural resources and to conduct consultation
with California Native American tribes, this bill would impose a
state-mandated local program.
Existing law establishes the Native American Heritage Commission
and vests the commission with specified powers and duties.
This bill would additionally require the commission to provide
each 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.
The California Constitution requires the state to reimburse local
agencies and school districts for certain costs mandated by the
state. Statutory provisions establish procedures for making that
reimbursement.
This bill would provide that no reimbursement is required by this
act for a specified reason.
THE PEOPLE OF THE STATE OF CALIFORNIA DO ENACT AS FOLLOWS:
SECTION 1. (a) The Legislature finds and declares all of the
following:
(1) Current state law provides a limited measure of protection for
sites, features, places, objects, and landscapes with cultural value
to California Native American tribes.
(2) Existing law provides limited protection for Native American
sacred places, including, but not limited to, places of worship,
religious or ceremonial sites, and sacred shrines.
(3) The California Environmental Quality Act (Division 13
(commencing with Section 21000) of the Public Resources Code) does
not readily or directly include California Native American tribes'
knowledge and concerns. This has resulted in significant
environmental impacts to tribal cultural resources and sacred places,
including cumulative impacts, to the detriment of California Native
American tribes and California's environment.
(4) As California Native Americans have used, and continue to use,
natural settings in the conduct of religious observances,
ceremonies, and cultural practices and beliefs, these resources
reflect the tribes' continuing cultural ties to the land and their
traditional heritages.
(5) Many of these archaeological, historical, cultural, and sacred
sites are not located within the current boundaries of California
Native American reservations and rancherias, and therefore are not
covered by the protectionist policies of tribal governments.
(b) In recognition of California Native American tribal
sovereignty and the unique relationship of California local
governments and public agencies with California Native American
tribal governments, and respecting the interests and roles of project
proponents, it is the intent of the Legislature, in enacting this
act, to accomplish all of the following:
(1) Recognize that California Native American prehistoric,
historic, archaeological, cultural, and sacred places are essential
elements in tribal cultural traditions, heritages, and identities.
(2) Establish a new category of resources in the California
Environmental Quality Act called "tribal cultural resources" that
considers the tribal cultural values in addition to the scientific
and archaeological values when determining impacts and mitigation.
(3) Establish examples of mitigation measures for tribal cultural
resources that uphold the existing mitigation preference for
historical and archaeological resources of preservation in place, if
feasible.
(4) Recognize that California Native American tribes may have
expertise with regard to their tribal history and practices, which
concern the tribal cultural resources with which they are
traditionally and culturally affiliated. Because the California
Environmental Quality Act calls for a sufficient degree of analysis,
tribal knowledge about the land and tribal cultural resources at
issue should be included in environmental assessments for projects
that may have a significant impact on those resources.
(5) In recognition of their governmental status, establish a
meaningful consultation process between California Native American
tribal governments and lead agencies, respecting the interests and
roles of all California Native American tribes and project
proponents, and the level of required confidentiality concerning
tribal cultural resources, at the earliest possible point in the
California Environmental Quality Act environmental review process, so
that tribal cultural resources can be identified, and culturally
appropriate mitigation and mitigation monitoring programs can be
considered by the decisionmaking body of the lead agency.
(6) Recognize the unique history of California Native American
tribes and uphold existing rights of all California Native American
tribes to participate in, and contribute their knowledge to, the
environmental review process pursuant to the California Environmental
Quality Act (Division 13 (commencing with Section 21000) of the
Public Resources Code).
(7) Ensure that local and tribal governments, public agencies, and
project proponents have information available, early in the
California Environmental Quality Act environmental review process,
for purposes of identifying and addressing potential adverse impacts
to tribal cultural resources and to reduce the potential for delay
and conflicts in the environmental review process.
(8) Enable California Native American tribes to manage and accept
conveyances of, and act as caretakers of, tribal cultural resources.
(9) Establish that a substantial adverse change to a tribal
cultural resource has a significant effect on the environment.
SEC. 2. Section 5097.94 of the Public Resources Code is amended to
read:
5097.94. The commission shall have the following powers and
duties:
(a) To identify and catalog places of special religious or social
significance to Native Americans, and known graves and cemeteries of
Native Americans on private lands. The identification and cataloguing
of known graves and cemeteries shall be completed on or before
January 1, 1984. The commission shall notify landowners on whose
property such graves and cemeteries are determined to exist, and
shall identify the Native American group most likely descended from
those Native Americans who may be interred on the property.
(b) To make recommendations relative to Native American sacred
places that are located on private lands, are inaccessible to Native
Americans, and have cultural significance to Native Americans for
acquisition by the state or other public agencies for the purpose of
facilitating or assuring access thereto by Native Americans.
(c) To make recommendations to the Legislature relative to
procedures which will voluntarily encourage private property owners
to preserve and protect sacred places in a natural state and to allow
appropriate access to Native American religionists for ceremonial or
spiritual activities.
(d) To appoint necessary clerical staff.
(e) To accept grants or donations, real or in kind, to carry out
the purposes of this chapter.
(f) To make recommendations to the Director of Parks and
Recreation and the California Arts Council relative to the California
State Indian Museum and other Indian matters touched upon by
department programs.
(g) To bring an action to prevent severe and irreparable damage
to, or assure appropriate access for Native Americans to, a Native
American sanctified cemetery, place of worship, religious or
ceremonial site, or sacred shrine located on public property,
pursuant to Section 5097.97. If the court finds that severe and
irreparable damage will occur or that appropriate access will be
denied, and appropriate mitigation measures are not available, it
shall issue an injunction, unless it finds, on clear and convincing
evidence, that the public interest and necessity require otherwise.
The Attorney General shall represent the commission and the state in
litigation concerning affairs of the commission, unless the Attorney
General has determined to represent the agency against whom the
commission's action is directed, in which case the commission shall
be authorized to employ other counsel. In any action to enforce the
provisions of this subdivision the commission shall introduce
evidence showing that such cemetery, place, site, or shrine has been
historically regarded as a sacred or sanctified place by Native
American people and represents a place of unique historical and
cultural significance to an Indian tribe or community.
(h) To request and utilize the advice and service of all federal,
state, local, and regional agencies.
(i) To assist Native Americans in obtaining appropriate access to
sacred places that are located on public lands for ceremonial or
spiritual activities.
(j) To assist state agencies in any negotiations with agencies of
the federal government for the protection of Native American sacred
places that are located on federal lands.
(k) To mediate, upon application of either of the parties,
disputes arising between landowners and known descendents relating to
the treatment and disposition of Native American human burials,
skeletal remains, and items associated with Native American burials.
The agreements shall provide protection to Native American human
burials and skeletal remains from vandalism and inadvertent
destruction and provide for sensitive treatment and disposition of
Native American burials, skeletal remains, and associated grave goods
consistent with the planned use of, or the approved project on, the
land.
( l ) To assist interested landowners in developing
agreements with appropriate Native American groups for treating or
disposing, with appropriate dignity, of the human remains and any
items associated with Native American burials.
(m) To provide each California Native American tribe, as defined
in Section 21073, on or before July 1, 2016, with a list of all
public agencies that may be a lead agency pursuant to Division 13
(commencing with Section 21000) within the geographic area with which
the tribe is traditionally and culturally affiliated, the contact
information of those public agencies, and information on how the
tribe may request the public agency to notify the tribe of projects
within the jurisdiction of those public agencies for the purposes of
requesting consultation pursuant to Section 21080.3.1.
SEC. 3. Section 21073 is added to the Public Resources Code, to
read:
21073. "California Native American tribe" means a Native American
tribe located in California that is on the contact list maintained
by the Native American Heritage Commission for the purposes of
Chapter 905 of the Statutes of 2004.
SEC. 4. Section 21074 is added to the Public Resources Code, to
read:
21074. (a) "Tribal cultural resources" are either of the
following:
(1) Sites, features, places, cultural landscapes, sacred places,
and objects with cultural value to a California Native American tribe
that are either of the following:
(A) Included or determined to be eligible for inclusion in the
California Register of Historical Resources.
(B) Included in a local register of historical resources as
defined in subdivision (k) of Section 5020.1.
(2) A resource determined by the lead agency, in its discretion
and supported by substantial evidence, to be significant pursuant to
criteria set forth in subdivision (c) of Section 5024.1. In applying
the criteria set forth in subdivision (c) of Section 5024.1 for the
purposes of this paragraph, the lead agency shall consider the
significance of the resource to a California Native American tribe.
(b) A cultural landscape that meets the criteria of subdivision
(a) is a tribal cultural resource to the extent that the landscape is
geographically defined in terms of the size and scope of the
landscape.
(c) A historical resource described in Section 21084.1, a unique
archaeological resource as defined in subdivision (g) of Section
21083.2, or a "nonunique archaeological resource" as defined in
subdivision (h) of Section 21083.2 may also be a tribal cultural
resource if it conforms with the criteria of subdivision (a).
SEC. 5. Section 21080.3.1 is added to the Public Resources Code,
to read:
21080.3.1. (a) The Legislature finds and declares that California
Native American tribes traditionally and culturally affiliated with
a geographic area may have expertise concerning their tribal cultural
resources.
(b) Prior to the release of a negative declaration, mitigated
negative declaration, or environmental impact report for a project,
the lead agency shall begin consultation with a California Native
American tribe that is traditionally and culturally affiliated with
the geographic area of the proposed project if: (1) the California
Native American tribe requested to the lead agency, in writing, to be
informed by the lead agency through formal notification of proposed
projects in the geographic area that is traditionally and culturally
affiliated with the tribe, and (2) the California Native American
tribe responds, in writing, within 30 days of receipt of the formal
notification, and requests the consultation. When responding to the
lead agency, the California Native American tribe shall designate a
lead contact person. If the California Native American tribe does not
designate a lead contact person, or designates multiple lead contact
people, the lead agency shall defer to the individual listed on the
contact list maintained by the Native American Heritage Commission
for the purposes of Chapter 905 of the Statutes of 2004. For purposes
of this section and Section 21080.3.2, "consultation" shall have the
same meaning as provided in Section 65352.4 of the Government Code.
(c) To expedite the requirements of this section, the Native
American Heritage Commission shall assist the lead agency in
identifying the California Native American tribes that are
traditionally and culturally affiliated with the project area.
(d) Within 14 days of determining that an application for a
project is complete or a decision by a public agency to undertake a
project, the lead agency shall provide formal notification to the
designated contact of, or a tribal representative of, traditionally
and culturally affiliated 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 California Native American
tribe has 30 days to request consultation pursuant to this section.
(e) The lead agency shall begin the consultation process within 30
days of receiving a California Native American tribe's request for
consultation.
SEC. 6. Section 21080.3.2 is added to the Public Resources Code,
to read:
21080.3.2. (a) As a part of the consultation pursuant to Section
21080.3.1, the parties may propose mitigation measures, including,
but not limited to, those recommended in Section 21084.3, capable of
avoiding or substantially lessening potential significant impacts to
a tribal cultural resource or alternatives that would avoid
significant impacts to a tribal cultural resource. If the California
Native American tribe requests consultation regarding alternatives to
the project, recommended mitigation measures, or significant
effects, the consultation shall include those topics. The
consultation may include discussion concerning the type of
environmental review necessary, the significance of tribal cultural
resources, the significance of the project's impacts on the tribal
cultural resources, and, if necessary, project alternatives or the
appropriate measures for preservation or mitigation that the
California Native American tribe may recommended to the lead agency.
(b) The consultation shall be considered concluded when either of
the following occurs:
(1) The parties agree to measures to mitigate or avoid a
significant effect, if a 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.
(c) (1) This section 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 tribal cultural resources,
the significance of the project's impact on tribal cultural
resources, or any appropriate measures to mitigate the impact.
(2) This section does not limit the ability of the lead agency or
project proponent to incorporate changes and additions to the project
as a result of the consultation, even if not legally required.
(d) If the project proponent or its consultants participate in the
consultation, those parties shall respect the principles set forth
in this section.
SEC. 7. Section 21082.3 is added to the Public Resources Code, to
read:
21082.3. (a) Any mitigation measures agreed upon in the
consultation conducted pursuant to Section 21080.3.2 shall be
recommended for inclusion in the environmental document and in an
adopted mitigation monitoring and reporting program, if determined to
avoid or lessen the impact pursuant to paragraph (2) of subdivision
(b), and shall be fully enforceable.
(b) If a project may have a significant impact on a tribal
cultural resource, the lead agency's environmental document shall
discuss both of the following:
(1) Whether the proposed project has a significant impact on an
identified tribal cultural resource.
(2) Whether feasible alternatives or mitigation measures,
including those measures that may be agreed to pursuant to
subdivision (a), avoid or substantially lessen the impact on the
identified tribal cultural resource.
(c) (1) Any information, including, but not limited to, the
location, description, and use of the tribal cultural resources, that
is submitted by a California Native American tribe during the
environmental review process shall not be included in the
environmental document or otherwise disclosed by the lead agency or
any other public agency to the public, consistent with subdivision
(r) of Section 6254 of, and Section 6254.10 of, the Government Code,
and subdivision (d) of Section 15120 of Title 14 of the California
Code of Regulations, without the prior consent of the tribe that
provided the information. If the lead agency publishes any
information submitted by a California Native American tribe during
the consultation or environmental review process, that information
shall be published in a confidential appendix to the environmental
document unless the tribe that provided the information consents, in
writing, to the disclosure of some or all of the information to the
public. This subdivision does not prohibit the confidential exchange
of the submitted information between public agencies that have lawful
jurisdiction over the preparation of the environmental document.
(2) (A) This subdivision does not prohibit the confidential
exchange of information regarding tribal cultural resources submitted
by a California Native American tribe during the consultation or
environmental review process among the lead agency, the California
Native American tribe, the project applicant, or the project
applicant's agent. Except as provided in subparagraph (B) or unless
the California Native American tribe providing the information
consents, in writing, to public disclosure, the project applicant or
the project applicant's legal advisers, using a reasonable degree of
care, shall maintain the confidentiality of the information exchanged
for the purposes of preventing looting, vandalism, or damage to a
tribal cultural resources and shall not disclose to a third party
confidential information regarding tribal cultural resources.
(B) This paragraph does not apply to data or information that are
or become publicly available, are already in the lawful possession of
the project applicant before the provision of the information by the
California Native American tribe, are independently developed by the
project applicant or the project applicant's agents, or are lawfully
obtained by the project applicant from a third party that is not the
lead agency, a California Native American tribe, or another public
agency.
(3) This subdivision does not affect or alter the application of
subdivision (r) of Section 6254 of the Government Code, Section
6254.10 of the Government Code, or subdivision (d) of Section 15120
of Title 14 of the California Code of Regulations.
(4) This subdivision does not prevent a lead agency or other
public agency from describing the information in general terms in the
environmental document so as to inform the public of the basis of
the lead agency's or other public agency's decision without breaching
the confidentiality required by this subdivision.
(d) In addition to other provisions of this division, the lead
agency may certify an environmental impact report or adopt a
mitigated negative declaration for a project with a significant
impact on an identified tribal cultural resource only if one of the
following occurs:
(1) The consultation process between the California Native
American tribe and the lead agency has occurred as provided in
Sections 21080.3.1 and 21080.3.2 and concluded pursuant to
subdivision (b) of Section 21080.3.2.
(2) The California Native American tribe has requested
consultation pursuant to Section 21080.3.1 and has failed to provide
comments to the lead agency, or otherwise failed to engage, in the
consultation process.
(3) The lead agency has complied with subdivision (d) of Section
21080.3.1 and the California Native American tribe has failed to
request consultation within 30 days.
(e) If the mitigation measures recommended by the staff of the
lead agency as a result of the consultation process are not included
in the environmental document or if there are no agreed upon
mitigation measures at the conclusion of the consultation or if
consultation does not occur, and if substantial evidence demonstrates
that a project will cause a significant effect to a tribal cultural
resource, the lead agency shall consider feasible mitigation pursuant
to subdivision (b) of Section 21084.3.
(f) Consistent with subdivision (c), the lead agency shall publish
confidential information obtained from a California Native American
tribe during the consultation process in a confidential appendix to
the environmental document and shall include a general description of
the information, as provided in paragraph (4) of subdivision (c) in
the environmental document for public review during the public
comment period provided pursuant to this division.
(g) This section is not intended, and may not be construed, to
limit consultation between the state and tribal governments, existing
confidentiality provisions, or the protection of religious exercise
to the fullest extent permitted under state and federal law.
SEC. 8. Section 21083.09 is added to the Public Resources Code, to
read:
21083.09. On or before July 1, 2016, the Office of Planning and
Research shall prepare and develop, and the Secretary of the Natural
Resources Agency shall certify and adopt, revisions to the guidelines
that update Appendix G of Chapter 3 (commencing with Section 15000)
of Division 6 of Title 4 of the California Code of Regulations to do
both of the following:
(a) Separate the consideration of paleontological resources from
tribal cultural resources and update the relevant sample questions.
(b) Add consideration of tribal cultural resources with relevant
sample questions.
SEC. 9. Section 21084.2 is added to the Public Resources Code, to
read:
21084.2. A project with an effect that may cause a substantial
adverse change in the significance of a tribal cultural resource is a
project that may have a significant effect on the environment.
SEC. 10. Section 21084.3 is added to the Public Resources Code, to
read:
21084.3. (a) Public agencies shall, when feasible, avoid damaging
effects to any tribal cultural resource.
(b) If the lead agency determines that a project may cause a
substantial adverse change to a tribal cultural resource, and
measures are not otherwise identified in the consultation process
provided in Section 21080.3.2, the following are examples of
mitigation measures that, if feasible, may be considered to avoid or
minimize the significant adverse impacts:
(1) Avoidance and preservation of the resources in place,
including, but not limited to, planning and construction to avoid the
resources and protect the cultural and natural context, or planning
greenspace, parks, or other open space, to incorporate the resources
with culturally appropriate protection and management criteria.
(2) Treating the resource with culturally appropriate dignity
taking into account the tribal cultural values and meaning of the
resource, including, but not limited to, the following:
(A) Protecting the cultural character and integrity of the
resource.
(B) Protecting the traditional use of the resource.
(C) Protecting the confidentiality of the resource.
(3) Permanent conservation easements or other interests in real
property, with culturally appropriate management criteria for the
purposes of preserving or utilizing the resources or places.
(4) Protecting the resource.
SEC. 11. (a) This act does not alter or expand the applicability
of the California Environmental Quality Act (Division 13 (commencing
with Section 21000) of the Public Resources Code) concerning projects
occurring on Native American tribal reservations or rancherias.
(b) This act does not prohibit any California Native American
tribe or individual from participating in the California
Environmental Quality Act on any issue of concern as an interested
California Native American tribe, person, citizen, or member of the
public.
(c) This act shall apply only to a project that has a notice of
preparation or a notice of negative declaration or mitigated negative
declaration filed on or after July 1, 2015.
SEC. 12. No reimbursement is required by this act pursuant to
Section 6 of Article XIII B of the California Constitution because a
local agency or school district has the authority to levy service
charges, fees, or assessments sufficient to pay for the program or
level of service mandated by this act, within the meaning of Section
17556 of the Government Code.
