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 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 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, 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 with an effect that may cause a substantial
adverse change to in the significance of
a tribal cultural resource, as defined, to be
is a project that may have a significant effect
on the environment. The bill would require a lead agency to consult
with a Native American tribes tribe
that are is traditionally and
culturally affiliated with the geographic area of the proposed
project and have , if the tribe
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
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 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 filed or
mitigated negative declaration on or after January 1, 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 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 a consultation process
for federally recognized 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 when determining impacts and mitigation.
(4) Recognize that California Native American tribes may
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, land and
tribal cultural 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) (1) Unless a preponderance of the evidence
demonstrates that the resources are not culturally significant,
"tribal "Tribal cultural resources" are either
of the following:
(A) Sites, features, places, and objects with cultural
value to descendant communities , as those communities are
described in the 1990 Guidelines for Evaluating and
Documenting Traditional Cultural Properties, National Register
Bulletin 38, National Register of Historic Places, National Park
Service, Washington D.C. , 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 included in any of the following:
(i) The Included in the California
Register of Historical Resources.
(ii) A Included in a
local register of historical resources as defined in subdivision (k)
of Section 5020.1.
(iii) A resource deemed to be significant pursuant to criteria set
forth in subdivision (c) of Section 5024.1.
(B) Sacred places including, but not limited to, Native American
sanctified cemeteries, places of worship, religious or ceremonial
sites, or sacred shrines that meet either of the following criteria:
(i) Listed on the California Native American Heritage Commission's
Sacred Lands File pursuant to Section 5097.94 or 5097.96.
(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, 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) Native American tribes that are traditionally and
culturally affiliated with a geographic area may have expertise
concerning their tribal cultural resources and may assist the
lead agency 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 consult, regarding the appropriate
level of environmental review for a project, with a Native
American tribes tribe that
are is traditionally and culturally affiliated
with the geographic area of the proposed project and have
if: (1) the Native American tribe requested to
the lead agency or the Native American Heritage Commission,
agency, in writing, to be informed by the lead
agency through formal notification of proposed projects in that
geographic area. If area, and (2) the
Native American tribe responds to , in
writing, within 30 days of receipt of the formal notification,
and requests the consultation shall proceed and
shall be deemed concluded as described in subdivision (d) of Section
21080.3.2. consultation. For purposes of this
section, "Consultation" shall have the same meaning as provided in
Section 20180.3.2.
(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).
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
21080.3.1, "consultation" means the process of acting in good faith
in seeking, discussing, and considering carefully the view of others,
and, where feasible, seeking agreement. Consultation between public
agencies and Native American tribes shall be conducted in a way that
is mutually respectful of each party's sovereignty, tribal cultural
values, and confidentiality 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)
(b) 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, or 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.
(d)
(c) The consultation shall be considered concluded at
the point at which the authorized representative of the lead agency
participating in the consultation or the Native American tribe,
acting in good faith, concludes that mutual agreement cannot be
reached.
(e)
(d) (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)
(e) 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.
(h)
(f) 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. 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 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) 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) (b) 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. 7. Section 21083.09 is added to the Public Resources Code, to
read:
21083.09. On or before January 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
cultural resources and update the relevant sample questions.
(b) Add consideration of tribal cultural resources with relevant
sample questions.
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 to a tribal cultural resource
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 .
(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, 2015.
SEC. 9. Section 21084.3 is added to the Public Resources Code, to
read:
21084.3. (a) If Public agencies shall,
when feasible, seek to 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.
(5) (a) Any of the examples of treatments set forth in Section
21083.2, if 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.
(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, 2015.
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. 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.
