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 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 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 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 consult begin consultation
with a 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 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.
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 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.
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 a consultation process for federally recognized
Native American tribes in California 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 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) 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 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 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. 2. SEC. 3. 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. SEC. 4. Section 21074 is
added to the Public Resources Code, to read:
21074. (a) (1) "Tribal
cultural resources" are either of the following:
(A)
(1) 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., 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, landscapes, that are
any of the following:
(i)
(A) Included in the California Register of Historical
Resources.
(ii)
(B) Included in a local register of historical
resources as defined in subdivision (k) of Section 5020.1.
(iii)
(C) A resource deemed to be significant pursuant to
criteria set forth in subdivision (c) of Section 5024.1.
(B)
(2) 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)
(A) Listed on the California Native American Heritage
Commission's Sacred Lands File pursuant to Section 5097.94 or
5097.96. 5097.96 for which a Native American
tribe has submitted sufficient evidence demonstrating that the sacred
places are of special religious or social significance to the Native
American tribe or contain known graves and cemeteries of Native
Americans.
(ii)
(B) 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 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.
(b)
(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 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. SEC. 5. 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.
resources.
(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,
begin consultation with a Native American tribe that is
traditionally and culturally affiliated with the geographic area of
the proposed project if: (1) the Native American tribe requested to
the lead agency, in writing, to be informed by the lead agency
through formal notification of proposed projects in that
the geographic area,
area that is traditionally and culturally affiliated with the tribe,
and (2) the Native American tribe responds, in writing, within
30 days of receipt of the formal notification, and requests the
consultation. For purposes of this section, "Consultation"
section and Section 21080.3.2, "consultation"
shall have the same meaning as provided in Section
20180.3.2. 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 traditionally and culturally affiliated Native
American tribes. The tribes within the
project area. Within 14 days of determining that an application for a
project is complete or a decision by a public agency to undertake a
project, the lead agency shall provide formal
notification to the designated contact of, or a tribal
representative of, traditionally and culturally affiliated
Native American tribes that have requested notice
notice, which 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). a brief description of the proposed
project and its location, the lead agency contact information, and a
notification that the tribe has 30 days to request consultation
pursuant to this section.
(d) The lead agency shall begin the consultation process within 14
days of receiving a Native American tribe's request for
consultation.
SEC. 5. SEC. 6. 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)
21080.3.2. (a) As a part of the
consultation process, 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
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 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.
(c)
(b) 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. when either of the following occurs:
(1) The parties agree to measures to mitigate or avoid a
significant effect on a tribal cultural resource.
(2) A party, acting in good faith and after reasonable effort,
concludes that mutual agreement cannot be reached concerning
appropriate measures to be taken that would mitigate or avoid a
significant effect on a tribal cultural resource.
(d)
(c) (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.
(e)
(d) If the project proponent or its consultants
participate in the consultation, those parties shall respect the
principles set forth in this section.
(f)
(e) 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. 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 program, if determined to avoid or
lessen the impact pursuant to paragraph (2) of subdivision (b), and
shall be fully enforceable. 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 to
on the identified tribal cultural resource.
(c) (1) Any information, including, but not limited to, the
location, nature, and use of the tribal cultural resource
resources, 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 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.
(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 (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. SEC. 8. 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. SEC. 9. Section 21084.2 is
added to the Public Resources Code, to read:
21084.2. (a) 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.
(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. SEC. 10. Section 21084.3 is
added to the Public Resources Code, to read:
21084.3. (a) 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.
(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. 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 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. 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.
