Bill Text: CA AB52 | 2013-2014 | Regular Session | Amended
NOTE: There are more recent revisions of this legislation. Read Latest Draft
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-Amended.html
BILL NUMBER: AB 52 AMENDED
BILL TEXT
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 add Sections 21073, 21074, 21080.3.1, 21080.3.2,
21082.3, 21083.09, 21084.2, 21084.3, and 21097
and 21084.3 to the Public Resources Code,
relating to Native Americans.
LEGISLATIVE COUNSEL'S DIGEST
AB 52, as amended, Gatto. Native Americans: California
Environmental Quality Act.
Existing law, the Native American Historic Resource Protection
Act, establishes a misdemeanor for unlawfully and maliciously
excavating upon, removing, destroying, injuring, or defacing a Native
American historic, cultural, or sacred site, that is listed or may
be eligible for listing in the California Register of Historic
Resources.
The California Environmental Quality Act, referred to as CEQA,
requires a lead agency, as defined, to prepare, or cause to be
prepared, and certify the completion of, an environmental impact
report on a project that it proposes to carry out or approve that may
have a significant effect on the environment or to adopt a negative
declaration if it finds that the project will not have that effect.
CEQA also requires a lead agency to prepare a mitigated negative
declaration for a project that may have a significant effect on the
environment if revisions in the project would avoid or mitigate that
effect and there is no substantial evidence that the project, as
revised, would have a significant effect on the environment. CEQA
requires the lead agency to provide a responsible agency with
specified notice and opportunities to comment on a proposed project.
CEQA requires the Office of Planning and Research to prepare and
develop, and the Secretary of the Natural Resources Agency to certify
and adopt, guidelines for the implementation of CEQA that include,
among other things, criteria for public agencies to following in
determining whether or not a proposed project may have a significant
effect on the environment.
This bill would specify that a project having a potential to cause
a substantial adverse change in the significance of
to a tribal cultural resource, as
defined, to be a project that may have a significant effect on the
environment. The bill would require the implementation, if
feasible, of specified mitigation measures if the lead agency
determines that a project will have a substantial adverse change on a
tribal cultural resource. For a tribal cultural resource that is a
sacred place, the bill would prohibit severe or irreparable damage to
that resource, or interference with the free expression or exercise
of a Native American religion unless a clear and convincing showing
that the public interest and necessity so require. The bill
would require a lead agency to consult with Native American tribes
that are traditionally and culturally affiliated with the geographic
area of the proposed project that and
have requested to the lead agency or the California Native
American Heritage Commission , in writing, to be informed by
the lead agency of proposed projects in that geographic area prior to
determining whether a negative declaration, mitigated negative
declaration, or environmental impact report is required for a
project. The bill would require the Native American tribe
wishing to consult the lead agency regarding a project to notify the
lead agency, as specified. project. The bill would
also require the lead agency to consult with Native American tribes
on the adequacy of the proposed negative declaration, mitigated
negative declaration, or environmental impact required for the
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 filed a notice of preparation or a notice of
negative declaration or mitigated negative declaration on or after
January 1, 2014. 2015. The bill would
require the Office of Planning and Research to revise the guidelines
to separate the consideration of 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 Native Americans and to conduct additional consultations,
this bill would impose a state-mandated local program.
The California Constitution requires the state to reimburse local
agencies and school districts for certain costs mandated by the
state. Statutory provisions establish procedures for making that
reimbursement.
This bill would provide that no reimbursement is required by this
act for a specified reason.
Vote: majority. Appropriation: no. Fiscal committee: yes.
State-mandated local program: yes.
THE PEOPLE OF THE STATE OF CALIFORNIA DO ENACT AS FOLLOWS:
SECTION 1. (a) The Legislature finds and declares all of the
following:
(1) Current state law provides a limited measure of protection for
sites, features, places, objects, and landscapes with cultural value
to California Native American tribes.
(2) Existing law provides limited protection for Native American
sacred places, including, but not limited to, places of worship,
religious or ceremonial sites, and sacred shrines.
(3) The California Environmental Quality Act (Division 13
(commencing with Section 21000) of the Public Resources Code) does
not readily or directly include California Native American tribes'
knowledge and concerns. This has resulted in significant
environmental impacts to tribal cultural resources and sacred places,
including cumulative impacts, to the detriment of California Native
American tribes and California's environment.
(4) As California Native Americans have used, and continue to use,
natural settings in the conduct of spiritual practices, religious
observances, ceremonies, and cultural practices,
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 that federally recognized California
Native American tribes in California have a
tribal government role in the California Environmental Quality Act.
(3) 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. values when
determining impacts and mitigation.
(4) Recognize that California Native American tribes
have expertise with regard to their tribal history and practices,
which concern the tribal cultural resources and associated
environment 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 land, tribal cultural
resources resources, and associated environment
at issue should be included in environmental assessments for projects
that may have a significant impact on those resources.
(5) Establish a meaningful consultation process between California
Native American tribal governments and lead agencies, respecting the
interests and roles of 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) 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.
(7) Enable California Native American tribes to manage and accept
conveyances of, and act as caretakers of, tribal cultural resources.
(8) Establish that a substantial adverse change to a tribal
cultural resource has a significant effect on the environment.
SEC. 2. Section 21073 is added to the Public Resources Code, to
read:
21073. "Native American tribe" means a federally recognized
Indian tribe located in California.
SEC. 3. Section 21074 is added to the Public Resources Code, to
read:
21074. (a) "Tribal (1)
Unless a preponderance of the evidence demonstrates that the
resources are not culturally significant, "tribal cultural
resources" means are either of the
following:
(1)
(A) Sites, features, places, objects with cultural
value to descendant communities, or cultural landscapes that are
consistent with the guidance of the United States National Park
Service and the federal Advisory Council on Historic Preservation,
that are listed in or determined to be eligible for listing
included in any of the following:
(A)
(i) The California Register of Historical Resources.
(B)
(ii) A local register of historical resources as
defined in subdivision (k) of Section 5020.1.
(C)
(iii) A resource deemed to be significant pursuant to
criteria set forth in subdivision (g)
(c) of Section 5024.1.
(2)
(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:
(A)
(i) Listed on the California Native American Heritage
Commission's Sacred Lands File pursuant to Section 5097.94 or
5097.96.
(B)
(ii) Listed or determined pursuant to criteria set
forth in subdivision (g) of Section 5024.1 to be eligible for
listing in the California Register of Historical Resources.
(2) The fact that a resource is not included in the California
Register of Historic Places, not listed in California Native American
Heritage Commission's Sacred Lands File, not included in a local
register of historical resources, not deemed significant pursuant to
criteria set forth in subdivision (c) of Section 5024.1, or not
deemed eligible pursuant to criteria set forth in subdivision (g) of
Section 5024.1 for listing in the California Register of Historic
Places shall not preclude a lead agency from determining whether the
resource is a tribal cultural resource for the purposes of this
division.
(b) 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 paragraph
(1) of, or the lead agency determines the resource to be a tribal
cultural resource pursuant to paragraph (2) of, subdivision
(a).
SEC. 4. Section 21080.3.1 is added to the Public Resources Code,
to read:
21080.3.1. (a) Prior Native American
tribes that are traditionally and culturally affiliated with a
geographic area may have expertise concerning their tribal cultural
resources in identifying, interpreting, and determining significance
of tribal cultural resources and whether an impact of a proposed
project to a tribal cultural resource is significant.
(b) Prior to determining whether
a negative declaration, mitigated negative declaration, or
environmental impact report is required for a project, the lead
agency shall initiate consultation consult,
regarding the appropriate level of environmental review for a
project, with Native American tribes that are traditionally and
culturally affiliated with the geographic area of the proposed
project that and have requested to
the lead agency or the Native American Heritage Commission ,
in writing, to be informed by the lead agency through formal
notification of proposed projects in that geographic area.
For an activity directly undertaken by a public agency, the
lead agency may also provide for early consultation as described in
Section 21097 to identify alternatives, mitigation measures, and
significant effects regarding issues of concern to the Native
American tribe to be analyzed in depth in the environmental
documents. If the Native American tribe responds to
the formal notification, the consultation shall proceed and shall be
deemed concluded as described in subdivision (d) of Section
21080.3.2. For purposes of this section, "Consultation" shall have
the same meaning as provided in Section 20180.3.2.
(b) Because Native American tribes that are traditionally and
culturally affiliated with a geographic area may have expertise
concerning their tribal lands and resources in identifying,
interpreting, and determining significance of tribal cultural
resources and whether an impact of a proposed project to a tribal
cultural resource is significant, the lead agency shall consult with
Native American tribes, as set forth in subdivision (a), in making a
determination pursuant to subdivision (a) and as set forth in
Sections 21084.2 and 21097.
(c) To expedite the requirements of this section, the Native
American Heritage Commission shall assist the lead agency in
identifying the traditionally and culturally affiliated Native
American tribes. The lead agency formal notification to the
traditionally and culturally affiliated Native American tribes that
have requested notice shall be accomplished by means of at least one
written notification that includes information about the project and
the project location and description, consistent with the information
about the project required to be provided under paragraph (1) of
subdivision (b) of Section 21092, and shall be deemed
sufficient to qualify as formal notification pursuant to subdivision
(b).
(d) (1)
SEC. 5. Section 21080.3.2 is added to the
Public Resources Code , to read:
21080.3.2. (a) For the purposes
of this section and Section 21097, 21080.3.1,
"consultation" means the meaningful and timely
process of acting in good faith in seeking,
discussing, and considering carefully the view of others, in
a manner that is cognizant of all parties' cultural values
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.
Consultation shall recognize the tribes' potential needs for
confidentiality with respect to places that have traditional tribal
cultural significance. sovereignty, tribal cultural
values, and confidentiality as provided in Section 21082.3.
(b) (1) If the lead agency has distributed a proposed negative
declaration or mitigated negative declaration, the lead agency shall
engage in consultation with a Native American tribe that responded to
the formal notification described in Section 21080.3.1 no later than
the comment period described in Section 21091.
(2) If the lead agency has distributed a notice of preparation of
an environmental impact report, the lead agency shall engage in
consultation with a Native American tribe that responded to the
formal notification described in Section 21080.3.1 prior to the end
of the comment period described in Section 21091.
(c) As a part of the consultation process, 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 Native American tribe requests consultation
regarding alternatives to the project, recommended mitigation
measures, significant effects, or ranges of action to be analyzed,
the consultation shall include those topics. The consultation may
include discussion concerning the significance of tribal cultural
resources, the significance of the project's impacts on the tribal
cultural resources, and, if necessary, project alternatives or the
appropriate measures for preservation or mitigation that the Native
American tribe may recommended to the lead agency.
(2)
(d) The consultation shall be considered concluded at
the point at which the parties to the consultation come to a
mutual agreement concerning the appropriate measures for
preservation or mitigation that will be recommended to the lead
agency, or either the authorized representative of the lead
agency participating in the consultation or the Native
American tribe, acting in good faith and after reasonable
effort, faith, concludes that mutual agreement
cannot be reached concerning recommended appropriate
measures of preservation or mitigation. reached.
(3) If the project proponent or its consultants participate in the
consultation, those parties shall respect the principles set forth
in this subdivision.
(e) (1) This section does not limit the ability of a 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.
(3) This section is not intended to replace the existing
mitigation preference for historical and archaeological resources
requiring the lead agency, when feasible, to first consider
preservation in place.
(f) If the project proponent or its consultants participate in the
consultation, those parties shall respect the principles set forth
in this section.
(g) It is the intent of the Legislature that the lead agency shall
engage in early and meaningful consultation with Native American
tribes that begins at the scoping period prior to the determination
of project alternatives and before the public review period for the
environmental documents. Each party shall act in good faith in
compliance with these provisions and their compliance shall be
governed by a rule of reason.
(e)
(h) This section shall apply only to a project that has
a notice of preparation or a notice of negative declaration or
mitigated negative declaration filed on or after January 1,
2014. 2015.
SEC. 6. Section 21082.3 is added to the
Public Resources Code , to read:
21082.3. (a) Any mitigation measures agreed upon in the
consultation conducted pursuant to Section 21080.3.2 shall be
recommended for inclusion in the environmental document and in an
adopted mitigation monitoring program, if determined to avoid or
lessen the impact pursuant to paragraph (2) of subdivision (b), and
shall be fully enforceable through conditions, agreements, or
measures.
(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 to the
identified tribal cultural resource.
(c) (1) Any information, including, but not limited to, the
location, nature, and use of the tribal cultural resource that is
submitted by a Native American tribe during the consultation process
may not be included in the environmental document or otherwise
disclosed by the lead agency or any other public agency to the public
without the prior consent of the tribe that provided the
information. If the lead agency publishes any information submitted
by a Native American tribe during the consultation 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) This subdivision does not affect or alter the application of
subdivision (r) of Section 6254 of the Government Code.
(3) 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) The lead agency may issue a permit or grant an approval for a
project with a significant impact on an identified tribal cultural
resource only if one of the following occurs:
(1) Mitigation measures agreed to during the consultation process
pursuant to subdivision (a) or another agreement have been
recommended to the decisionmaking body of the lead agency as
mitigation measures in the final environmental document and
mitigation monitoring program.
(2) The Native American tribe accepts the mitigation measures
proposed in the draft or final environmental document and mitigation
monitoring and reporting program.
(3) Consultation between the Native American tribes and the lead
agency has occurred pursuant to Section 21080.3.2.
(4) The Native American tribe has received notice of, and has
failed to comment on or reject, the proposed mitigation measures
during the public comment period established in Section 21091 and any
public hearing on the project required by or held pursuant to this
division.
(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, 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 (a) of
Section 21084.3.
(f) 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.
(g) This section shall apply only to a project that has a notice
of preparation or a notice of negative declaration or mitigated
negative declaration filed on or after January 1, 2015.
SEC. 5. SEC. 7. Section 21083.09 is
added to the Public Resources Code, to read:
21083.09. On or before January 1, 2015,
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 revise
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
cultural resources and update the relevant sample questions.
(b) Add consideration of tribal cultural resources with relevant
sample questions.
SEC. 6. SEC. 8. Section 21084.2 is
added to the Public Resources Code, to read:
21084.2. (a) A project may have a significant effect on the
environment if the project has the potential of causing a substantial
adverse change in the significance of to
a tribal cultural resource.
(b) This section shall apply only to a project that has a notice
of preparation or a notice of negative declaration or mitigated
negative declaration filed on or after January 1, 2014.
2015.
SEC. 7. SEC. 9. Section 21084.3 is
added to the Public Resources Code, to read:
21084.3. (a) 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 are recommended, in
order of preference, that that, if feasible, may
be considered to avoid or minimize the significant
adverse impacts and shall be considered, if feasible:
impacts:
(1) Planning 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) Consideration of project alternatives that protect the
resources.
(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) Conveyance of resources into permanent
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) Adopting mitigation measures that treat the resources with
culturally appropriate dignity taking into account the tribal value
and meaning of the resource including, but not limited to, the
following:
(A) Mitigation that protects the cultural character and integrity
of the resource.
(B) Mitigation that protects the traditional use of the resource.
(C) Mitigation that protects the confidentiality of the resource.
(4) Protecting the resource.
(5) (a) Any of the examples of treatments
set forth in Section 21083.2, if executed with culturally
appropriate dignity. they do not conflict with
paragraphs (1) to (4), inclusive.
(b) Public agencies shall, when feasible, seek to avoid damaging
effects to any tribal cultural resource.
(b)
(c) This section shall apply only to a project that has
a notice of preparation or a notice of negative declaration or
mitigated negative declaration filed on or after January 1,
2014. 2015.
SEC. 8. Section 21097 is added to the Public
Resources Code, to read:
21097. (a) A Native American tribe that is traditionally and
culturally affiliated with the geographic area of the proposed
project wishing to consult with the lead agency to discuss
potentially feasible means by which potentially significant impacts
on a tribal cultural resources can be feasibly avoided or minimized
to less than significant, shall notify the lead agency prior to the
public review period established by Section 21091, but no later than
30 days after receipt of the lead agency's notice of preparation of
an environmental impact report or 20 days after receipt of the lead
agency's notice of a negative declaration or mitigated negative
declaration. The lead agency shall provide to the Native American
tribe copies of any environmental document or technical report relied
on by the lead agency. The Native American tribe may request or
consent to the project proponent, Native American Heritage
Commission, the State Office of Historic Preservation, and other
relevant agencies or entities participating in portions of the
consultation process to seek mutually agreeable methods of avoiding
or otherwise mitigating the potential adverse effects. As part of the
consultation process, the parties may propose mitigation measures
capable of avoiding or substantially lessening potential significant
impacts to a tribal cultural resource.
(b) Any mitigation measures agreed upon in the consultation shall
be recommended by the lead agency staff to the decisionmaking body of
the lead agency participating in the consultation as mitigation
measures in the final environmental document and the mitigation
monitoring program, if determined to avoid or lessen the impact
pursuant to paragraph (2) of subdivision (c), and shall be fully
enforceable through conditions, agreements, or measures.
(c) 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 to the
identified tribal cultural resource.
(d) (1) Any information, including, but not limited to, the tribal
cultural resource that is submitted by a Native American tribe
during the consultation process may not be included in the
environmental document or otherwise disclosed by the lead agency or
any other public agency to the public without the prior consent of
the tribe that provided the information. Any information submitted by
a Native American tribe during the consultation process shall be
published in a confidential appendix to the environmental document
unless the tribe consents, in writing, to disclosure of all or some
of the information to the public. This subdivision is not intended,
and may not be construed, to prohibit the confidential exchange of
the submitted information between public agencies that have lawful
jurisdiction over the preparation of the environmental document.
(2) This subdivision does not affect or alter the application of
subdivision (r) of Section 6254 of the Government Code.
(3) 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.
(e) The lead agency for the proposed project may issue a permit or
grant an approval for a project with a significant impact on an
identified tribal cultural resource only if one of the following
occurs:
(1) Mitigation measures agreed to during the consultation process
pursuant to subdivision (b) or another agreement have been
recommended to the decisionmaking body of the lead agency as
mitigation measures in the final environmental document and
mitigation monitoring program.
(2) The Native American tribe accepts the mitigation measures
proposed in the draft or final environmental document and mitigation
monitoring and reporting program.
(3) Consultation between the Native American tribes and the lead
agency has occurred pursuant to Section 65352.4 of the Government
Code and Section 21080.3.1.
(4) The Native American tribe has received notice of, and has
failed to comment on or reject, the proposed mitigation measures
during the public comment period established in Section 21091 and any
public hearing on the project required by or held pursuant to this
division.
(f) 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, 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 (a) of
Section 21084.3.
(g) It is the intent of the Legislature that the lead agency
engage in early consultation with the Native American tribe before
the public review period for the environmental documents commences.
(h) 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.
(i) This section shall apply only to a project that has a notice
of preparation or a notice of negative declaration or mitigated
negative declaration filed on or after January 1, 2014.
SEC. 9. SEC. 10. (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 Native American tribe or
nonfederally recognized tribe from participating in the California
Environmental Quality Act on any issue of concern as an interested
person, citizen, or member of the public.
(c) This act does not prohibit any lead agency from consulting
with nonfederally recognized Native American tribes.
SEC. 10. SEC. 11. 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.
