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 ASSEMBLY  APRIL 8, 2013
	AMENDED IN ASSEMBLY  MARCH 19, 2013

INTRODUCED BY   Assembly Member Gatto
    (   Principal coauthor:   Assembly Member
  Alejo  ) 

                        DECEMBER 21, 2012

   An act to amend Section 21083  of   of, and
to add Sections 21073, 21074, 21083.09, 21084.2, 21084.3, and 21097
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  , referred
to as OPR,  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.
   The bill would  specify   that a project having a
potential to cause a substantial adverse change in the significance
of a tribal resource, as defined, to be a project that may have a
significant effect on the environment. The bill would require a lead
agency to make best efforts to avoid, preserve, and protect specified
Native American resources. The bill would require the lead agency to
undertake specified actions if a project may adversely affect tribal
cultural resources, or a tribal reservation or rancheria.  
The bill would  require  OPR   the office
 to revise the  guidelines to include  criteria for
determining whether a proposed project has a significant effect on
the environment to include effects on  Native American
  tribal  cultural resources,  including
sacred  sites   places  , or  a 
tribal reservation or rancheria community. The bill would require
the office to prepare and develop, and the secretary to certify and
adopt, revisions to the guidelines relating to the identification and
treatment of tribal cultural resources.  By requiring the lead
agency to consider these effects relative to Native Americans, 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.    The Legislature finds and declares all
of the following:  
   (a) California had the largest aboriginal population in North
America before contact with non-Native Americans. Yet, California
Native American tribes suffered the greatest losses from termination,
removal, and assimilation policies, including the loss of a majority
of their lands and tribal cultural resources, including sacred
places. This devastation debilitated tribal religious practices and
cultural identity, and threatened the survival of California Native
Americans.  
   (b) Spiritual integrity, community identity, political
sovereignty, and governance processes are intertwined in the lifeways
and identity of the California Native American tribes.  
   (c) California Native American tribes possess original natural
rights, from time immemorial, recognized in over 200 years of federal
jurisprudence, the federal Constitution, federal and state laws and
administrative policies, and state actions, including, tribal-state
agreements.  
   (d) Included in these original natural rights is the right of
tribal governments to enact their own laws and be governed by them
and to engage in their own cultural and spiritual practices. It is a
fundamental obligation of each generation of California Native
Americans to cherish and protect these rights for their children and
for generations to come.  
   (e) California Native Americans have used, and continue to use,
natural settings in the conduct of spiritual practices, religious
observances, ceremonies, and cultural uses and beliefs that are
essential elements in tribal communities. Tribes consider these
sacred and cultural places, used by generations, as vital to their
existence, well-being, and identity.  
   (f) In addition to the lingering effects of historic termination,
removal, and assimilation policies, the continued loss of tribal
cultural resources, including sacred places and tribal lands in the
past 200 years has caused further debilitating impacts on the
religious practices, cultural traditions, tribal identity, and
self-governance rights of California Native American tribes. 

   (g) To uphold California Native American tribes' original natural
rights with regard to religious practices, cultural traditions,
tribal identity, and self-governance, it is essential that the
natural setting and essential integrity of these tribal cultural
resources be protected and the sacred places be preserved.  

   (h) Traditional tribal lands were diminished to reservations and
rancherias that exist today in California with local governments,
state lands, federal lands, and privately owned lands located
adjacent to, and in the vicinity of, tribal government reservations
and rancherias. The land use decisions concerning lands adjacent to,
and in the vicinity of, California Native American reservations and
rancherias affect those tribal communities in terms of environmental
impacts and tribal self-governance rights.  
   (i) The California Environmental Quality Act does not readily or
directly solicit, include, or accommodate California Native American
tribes' concerns and issues, which has resulted in significant
environmental impacts to tribal cultural resources, including sacred
places and tribal government reservations and rancherias, leaving
them unanalyzed and unmitigated. The result has been significant and
unmitigated cumulative impacts to those resources and California
Native American reservations and rancherias to the detriment of those
communities and California's environment.  
   (j) California Native American tribes are experts concerning their
culturally affiliated resources, tribal history, and practices
concerning those resources. Tribal knowledge about the land and the
resources should be included in environmental assessments pursuant to
state environmental laws for projects that have a potentially
significant impact or effect on those resources.  
   (k) State environmental law should not only take into account the
scientific or archaeological value of cultural resources, but also
the tribal cultural values, tribal interpretations, and culturally
appropriate treatment when decisions are made concerning whether or
how to approve a project that may significantly impact or effect
those places and resources. 
   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 cultural resource" means a resource that is
any of the following:
   (1) A resource listed in, or determined to be eligible for listing
in, the California Register of Historical Resources, a local
register of historical resources, as defined in subdivision (k) of
Section 5020.1, or a tribal register of historic resources.
   (2) A resource deemed to be significant pursuant to subdivision
(g) of Section 5024.1.
   (3) A resource deemed by the lead agency to be a tribal cultural
resource.
   (b) Tribal cultural resources include, but are not limited to,
sites, features, places, or objects with cultural value to descendant
communities, traditional culture properties, or tribal cultural
landscapes consistent with the guidance of the federal National Park
Services' Advisory Council on Historic Preservation.
   (c) A tribal cultural resource may also be a historic resource or
a unique archaeological resource.
   (d) A tribal cultural resource does not include a resource
demonstrated by clear and convincing evidence to be historically or
culturally not significant. 
   SECTION 1.   SEC. 4.   Section 21083 of
the Public Resources Code is amended to read:
   21083.  (a) The Office of Planning and Research shall prepare and
develop proposed guidelines for the implementation of this division
by public agencies. The guidelines shall include objectives and
criteria for the orderly evaluation of projects and the preparation
of environmental impact reports and negative declarations in a manner
consistent with this division.
   (b) The guidelines shall specifically include criteria for public
agencies to follow in determining whether or not a proposed project
may have a "significant effect on the environment." The criteria
shall require a finding that a project may have a "significant effect
on the environment" if one or more of the following conditions
exist:
   (1) A proposed project has the potential to degrade the quality of
the environment, curtail the range of the environment, or to achieve
short-term, to the disadvantage of long-term, environmental goals.
   (2) The possible effects of a project are individually limited but
cumulatively considerable. As used in this paragraph, "cumulatively
considerable" means that the incremental effects of an individual
project are considerable when viewed in connection with the effects
of past projects, the effects of other current projects, and the
effects of probable future projects.
   (3) The environmental effects of a project will cause substantial
adverse effects on human beings, either directly or indirectly.
   (4) A proposed project may have a significant effect on a 
Native American   tribal  cultural 
resource or   resource, including a  sacred place,
or a tribal reservation or rancheria community.
   (c) The guidelines shall include procedures for determining the
lead agency pursuant to Section 21165.
   (d) The guidelines shall include criteria for public agencies to
use in determining when a proposed project is of sufficient
statewide, regional, or areawide environmental significance that a
draft environmental impact report, a proposed negative declaration,
or a proposed mitigated negative declaration shall be submitted to
appropriate state agencies, through the State Clearinghouse, for
review and comment prior to completion of the environmental impact
report, negative declaration, or mitigated negative declaration.
   (e) The Office of Planning and Research shall develop and prepare
the proposed guidelines as soon as possible and shall transmit them
immediately to the Secretary of the Natural Resources Agency. The
Secretary of the Natural Resources Agency shall certify and adopt the
guidelines pursuant to Chapter 3.5 (commencing with Section 11340)
of Part 1 of Division 3 of Title 2 of the Government Code, which
shall become effective upon the filing of the adopted guidelines.
However, the guidelines shall not be adopted without compliance with
Sections 11346.4, 11346.5, and 11346.8 of the Government Code.
   (f) The Office of Planning and Research shall, at least once every
two years, review the guidelines adopted pursuant to this section
and shall recommend proposed changes or amendments to the Secretary
of the Natural Resources Agency. The Secretary of the Natural
Resources Agency shall certify and adopt guidelines, and any
amendments to the guidelines, at least once every two years, pursuant
to Chapter 3.5 (commencing with Section 11340) of Part 1 of Division
3 of Title 2 of the Government Code, which shall become effective
upon the filing of the adopted guidelines and any amendments to the
guidelines. However, guidelines may not be adopted or amended without
compliance with Sections 11346.4, 11346.5, and 11346.8 of the
Government Code.
   SEC. 5.    Section 21083.09 is added to the 
 Public Resources Code   , to read:  
   21083.09.  On or before January 1, 2015, 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 do all of the following:
   (a) Provide guidance on the implementation of Sections 21084.2 and
21084.3.
   (b) Provide advice developed in consultation with the Native
American Heritage Commission, Native American tribes, related to
tribal cultural resources, including sacred places, for all of the
following:
   (1) The preservation and protection of, or culturally appropriate
mitigation to impacts to, tribal cultural resources.
   (2) Procedures for the protection of the confidentiality of
information concerning the specific identity, location, character,
and use of tribal cultural resources.
   (3) Procedures to facilitate the voluntary participation of
landowners to preserve and protect the specific identity, location,
character, and use of tribal cultural resources.
   (4) Procedures to facilitate the identification of, and culturally
appropriate treatment of, tribal cultural resources.
   (c) Revising Appendix G of Chapter 3 (commencing with Section
15000) of Division 6 of Title 14 of the California Code of
Regulations to separate the consideration of paleontological
resources from cultural resources and updating the relevant sample
questions. 
   SEC. 6.    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 a tribal cultural resource.
   (b) Because Native American tribes may have expertise 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 the relevant Native American tribes in making a
determination pursuant to subdivision (a). 
   SEC. 7.    Section 21084.3 is added to the  
Public Resources Code   , to read:  
   21084.3.  If the lead agency determines that a project will have a
significant effect on places, features, and objects described in
Section 5097.9 or 5097.995 and listed in the California Native
American Heritage Commission Sacred Lands File pursuant to Section
5097.993 or 5097.994, the lead agency shall make its best effort to
ensure that these resources be avoided, preserved, and protected in
place or left in an undisturbed state. 
   SEC. 8.    Section 21097 is added to the  
Public Resources Code   , to read:  
   21097.  (a) If a Native American tribe notifies a lead agency
prior to the commencement of the public review period established by
Section 21091, or if the lead agency determines pursuant to Section
21084.3, that a project may adversely affect a tribal cultural
resource, including a sacred place, or a tribal reservation or
rancheria and that the tribe wishes to consult to resolve the
potentially adverse impacts, the lead agency shall engage in early
consultation with the affected tribe before or during the
environmental review process. The lead agency shall provide to the
affected tribe copies of any environmental document and its technical
reports. The affected tribe may request the Native American Heritage
Commission, the State Office of Historic Preservation, and other
relevant agencies or entities to participate in the consultation
process and to seek mutually agreeable methods of avoiding or
otherwise resolving the potential adverse effects. As part of the
consultation process, the parties may propose mitigation measures
capable of avoiding or substantially lessening potential impacts to a
tribal cultural resource, including a sacred place, or a tribal
reservation or rancheria. Any binding agreement reached in this
consultation shall be incorporated as mitigation measures in the
final environmental document.
   (b) If no agreement is reached pursuant to subdivision (a), or if
an affected tribe identifies significant effects on a tribal cultural
resource, including a sacred place, or the affected tribe's
reservation or rancheria during the public comment period, the
environmental document shall include both of the following analyses:
   (1) Whether the proposed project has a significant impact on an
identified tribal cultural resource, including a sacred place, or a
tribal reservation or rancheria.
   (2) Whether the alternatives or mitigation measures proposed by
the parties pursuant to subdivision (a) or during the public comment
period avoid or substantially lessen the impact to the identified
cultural resource, including a sacred place, or a tribal reservation
or rancheria.
   (c) Any information, including, but not limited to, the location,
nature, and use of the place, feature, site, or object that is
submitted by an affected tribe regarding a tribal cultural resource,
including a sacred place, may not be included in the environmental
impact report 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. The submitted information shall be
published in a confidential appendix to the environmental document.
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.
   (d) The lead agency and any responsible agency for the proposed
project may issue a permit for a project with a significant impact on
an identified tribal cultural resource, including a sacred place, or
a tribal reservation or rancheria only if one of the following
occurs:
   (1) Mitigation measures agreed to pursuant to subdivision (a) have
been incorporated into the final environmental document.
   (2) The affected tribe accepts the mitigation measures proposed in
the draft or final environmental document.
   (3) The affected tribe has received notice of, and has failed to
comment on, the proposed mitigation measures during the comment
period established in Section 21091 and any public hearing required
by or held pursuant to this division.
   (4) The lead agency determines that there is no legal or feasible
way to accomplish the projects purpose without causing a significant
effect upon the sacred place, that all feasible mitigation or
avoidance measures have been incorporated, and that there is an
overriding environmental, public health, or safety reason based on
substantial evidence presented by the lead agency that the project
should be approved. These findings may be made only after the lead
agency provides 30 days' notice of hearing to the affected tribe and
an opportunity for the affected tribe to review and comment on the
proposed finding.
   (e) If an agreement is not reached pursuant to subdivision (a) and
if it can be demonstrated that a project will cause significant
effect to a tribal cultural resource, including a sacred place, or a
tribal reservation or rancheria, the lead agency may require all
reasonable efforts to be made to treat the tribal cultural resource,
including a sacred place, or a tribal reservation or rancheria in a
culturally sensitive manner. Examples of culturally sensitive
treatment include, but are not limited to, the following:
   (1) Planning construction to avoid those resources or places.
   (2) Deeding resources or places into permanent conservation
easements.
   (3) Planning parks, greenspace, or other open space to incorporate
those resources or places.
   (4) Adopting culturally appropriate mitigation measures that take
into account the tribal value and meaning of the resource or place.
   (f) In determining the presence of tribal cultural resources,
including sacred places, or a tribal reservation or rancheria
community, the lead agency shall use the most current and up-to-date
technology, research, and resources including, but not limited to,
tribal, local, state, and national registers, the Native American
Heritage Commission Sacred Lands File, mapping and Geographic
Information System data, current cultural resources reports, foot
surveys, ethnographic assessment, noninvasive study techniques, and
information submitted by an affected tribe. The lead agency shall
make all reasonable efforts and complete the research and
identification efforts prior to the release of the draft
environmental document and, in any case, no later than the
finalization of the environmental document.
   (g) This section is not intended, and may not be construed, to do
either of the following:
   (1) Prohibit any person or entity from seeking any damages or
injunction authorized by law.
   (2) 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. 2.   SEC. 9.   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.
                                                                
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