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 21083ofof, 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 requireOPRthe office to revise the guidelines to include criteria for determining whether a proposed project has a significant effect on the environment to include effects onNative Americantribal cultural resources, including sacredsitesplaces , 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 aNative Americantribal culturalresource orresource, 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.