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 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 Sections 21080.3, 21083, 21083.2, and
21104 of, and to add Sections 21073, 21074, 21080.3.1,
21083.09, 21084.2, 21084.3, and 21097 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 defines "unique archaeological resource" for the
purposes of CEQA. 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.
The
This 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
the implementation, if feasible, of specified mitigation measures if
the lead agency determines that a project will have a substantial
adverse change on a tribal cultural resource. For a tribal cultural
resource that is a sacred place, the bill would prohibit severe or
irreparable damage to that resource, or interference with the free
expression or exercise of a Native American religion unless a clear
and convincing showing that the public interest and necessity so
require. The bill would require a lead agency to 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. The bill would additionally define "unique
archaeological resource" to include archaeological artifacts,
objects, or sites, including those that are tribal cultural
resources. consult with Native American tribes that
are traditionally and culturally affiliated with the geographic area
of the proposed project that have requested, in writing, to be
informed by the lead agency of proposed projects in that geographic
area prior to determining whether a negative declaration, mitigated
negative declaration, or environmental impact report is required for
a project. The bill would authorize the Native American tribe wishing
to consult the lead agency regarding a project to notify the lead
agency, as specified. The bill would make the above provisions
applicable to projects that have filed a notice of preparation or a
notice of negative declaration or mitigated negative declaration on
or after January 1, 2014. The bill would require the
office Office of Planning and Research to revise
the guidelines to include among the criteria for determining whether
a proposed project has a significant effect on the environment the
effects on tribal cultural resources, including sacred
places. 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 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. 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. Spiritual integrity,
community identity, political sovereignty, and governance processes
are intertwined in the lifeways and identity of the California Native
American tribes.
(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)
(b) 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)
(c) 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 with tribes losing a majority
of their tribal cultural resources and sacred places .
(d) Honoring the rights of California Native American tribes'
efforts to protect the natural setting and integrity of sacred places
is essential.
(i)
(e) The California Environmental Quality Act ,
which is the primary environmental protection law in California,
does not readily or directly solicit, include, or accommodate
California Native American tribes' concerns and issues,
which issues. This 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)
(f) California Native American tribes are experts
concerning their traditionally and 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)
(g) 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
affect 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.
(2) A resource deemed to be significant pursuant to subdivision
(g) of Section 5024.1.
(3) A resource deemed by the lead agency after a public hearing to
be a tribal cultural resource based upon substantial evidence
presented to the lead agency.
(b) Tribal cultural resources include, but are not limited to,
sites, features, places, or objects with cultural value to descendant
communities, traditional cultural 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.
SEC. 4. Section 21080.3 of the Public Resources
Code is amended to read:
21080.3. (a) Prior to determining whether a negative declaration
or environmental impact report is required for a project, the lead
agency shall consult with all responsible agencies, trustee agencies,
and affected Native American tribes. Prior to that required
consultation, the lead agency may informally contact any of those
agencies or tribes.
(b) In order to expedite the requirements of subdivision (a), the
Office of Planning and Research, upon request of a lead agency, shall
assist the lead agency in determining the various responsible
agencies and trustee agencies, for a proposed project. In the case of
a project described in subdivision (c) of Section 21065, the request
may also be made by the project applicant.
SEC. 5. 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 tribal
cultural 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. 3. Section 21074 is added to the
Public Resources Code , to read:
21074. (a) "Tribal cultural resources" means either of the
following:
(1) Sites, features, places, objects with cultural value to
descendant communities, or cultural landscapes that are consistent
with the guidance of the United States National Park Service and the
federal Advisory Council on Historic Preservation, that are listed in
or determined to be eligible for listing in any of the following:
(A) The California Register of Historical Resources.
(B) A local register of historical resources as defined in
subdivision (k) of Section 5020.1.
(C) A resource deemed to be significant pursuant to subdivision
(g) of Section 5024.1.
(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:
(A) Listed on the California Native American Heritage Commission's
Sacred Lands File pursuant to Section 5097.94 or 5097.96.
(B) Listed or determined to be eligible for listing in the
California Register of Historical Resources.
(b) A tribal cultural resource may also be a historical resource
pursuant to Section 21084.1 or a unique archaeological resource
pursuant to subdivision (g) of Section 21083.2. A tribal cultural
resource classified as a "nonunique archaeological resource" remains
a tribal cultural resource and shall be given consideration pursuant
to this division.
SEC. 4. Section 21080.3.1 is added to the
Public Resources Code , to read:
21080.3.1. (a) Prior to determining whether a negative
declaration, mitigated negative declaration, or environmental impact
report is required for a project, the lead agency shall consult with
Native American tribes that are traditionally and culturally
affiliated with the geographic area of the proposed project that have
requested, in writing, to be informed by the lead agency of proposed
projects in that geographic area. For an activity directly
undertaken by a public agency, the lead agency may provide for early
consultation to identify alternatives, mitigation measures, and
significant effects regarding issues of concern to the Native
American tribe to be analyzed in depth in the environmental impact
report.
(b) Because Native American tribes that are traditionally and
culturally affiliated with a geographic area may have expertise
concerning their tribal lands and resources in identifying,
interpreting, and determining significance of tribal cultural
resources and whether an impact of a proposed project to a tribal
cultural resource is significant, the lead agency shall consult with
Native American tribes in making a determination pursuant to
subdivision (a) and as set forth in Sections 21084.2 and 21097.
(c) To expedite the requirements of this section, the Native
American Heritage Commission shall assist the lead agency in
identifying the traditionally and culturally affiliated Native
American tribes.
(d) (1) For the purposes of this section and Section 21097,
"consultation" means the meaningful and timely process of seeking,
discussing, and considering carefully the view of others, in a manner
that is cognizant of all parties' cultural values and, where
feasible, seeking agreement. Consultation between public agencies and
Native American tribes shall be conducted in a way that is mutually
respectful of each party's sovereignty. Consultation shall recognize
the tribes' potential needs for confidentiality with respect to
places that have traditional tribal cultural significance.
Consultation shall also recognize the need for the exchange and
provision of project information essential to the topic of the
consultation.
(2) The consultation shall be considered concluded at the point at
which the parties to the consultation come to a mutual agreement
concerning the appropriate measures for preservation or mitigation,
or either the lead agency or Native American tribe, acting in good
faith and after reasonable effort, concludes that mutual agreement
cannot be reached concerning appropriate measures of preservation or
mitigation.
(3) If the project proponent or its consultants participate in the
consultation, those parties shall respect the principles set forth
in this subdivision.
(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, 2014.
SEC. 6. 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
measures to mitigate significant 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 do both of the following:
(1) Separate the consideration of paleontological resources from
cultural resources and update the relevant sample questions.
(2) Add consideration of tribal cultural resources, including
sacred places, with relevant sample questions.
SEC. 7. Section 21083.2 of the Public Resources
Code is amended to read:
21083.2. (a) As part of the determination made pursuant to
Section 21080.1, the lead agency shall determine whether the project
may have a significant effect on archaeological resources. If the
lead agency determines that the project may have a significant effect
on unique archaeological resources, the environmental impact report
shall address the issue of those resources. An environmental impact
report, if otherwise necessary, shall not address the issue of
nonunique archaeological resources. A negative declaration shall be
issued with respect to a project if, but for the issue of nonunique
archaeological resources, the negative declaration would be otherwise
issued.
(b) If it can be demonstrated that a project will cause damage to
a unique archaeological resource, the lead agency may require
reasonable efforts to be made to permit any or all of these resources
to be preserved in place or left in an undisturbed state. Examples
of that treatment, in no order of preference, may include, but are
not limited to, any of the following:
(1) Planning construction to avoid archaeological sites.
(2) Deeding archaeological sites into permanent conservation
easements.
(3) Capping or covering archaeological sites with a layer of soil
before building on the sites.
(4) Planning parks, greenspace, or other open space to incorporate
archaeological sites.
(c) To the extent that unique archaeological resources are not
preserved in place or not left in an undisturbed state, mitigation
measures shall be required as provided in this subdivision. The
project applicant shall provide a guarantee to the lead agency to pay
one-half the estimated cost of mitigating the significant effects of
the project on unique archaeological resources. In determining
payment, the lead agency shall give due consideration to the in-kind
value of project design or expenditures that are intended to permit
any or all archaeological resources or California Native American
culturally significant sites to be preserved in place or left in an
undisturbed state. When a final decision is made to carry out or
approve the project, the lead agency shall, if necessary, reduce the
specified mitigation measures to those which can be funded with the
money guaranteed by the project applicant plus the money voluntarily
guaranteed by any other person or persons for those mitigation
purposes. In order to allow time for interested persons to provide
the funding guarantee referred to in this subdivision, a final
decision to carry out or approve a project shall not occur sooner
than 60 days after completion of the recommended special
environmental impact report required by this section.
(d) Excavation as mitigation shall be restricted to those parts of
the unique archaeological resource that would be damaged or
destroyed by the project. Excavation as mitigation shall not be
required for a unique archaeological resource if the lead agency
determines that testing or studies already completed have adequately
recovered the scientifically consequential information from and about
the resource, if this determination is documented in the
environmental impact report.
(e) In no event shall the amount paid by a project applicant for
mitigation measures required pursuant to subdivision (c) exceed the
following amounts:
(1) An amount equal to one-half of 1 percent of the projected cost
of the project for mitigation measures undertaken within the site
boundaries of a commercial or industrial project.
(2) An amount equal to three-fourths of 1 percent of the projected
cost of the project for mitigation measures undertaken within the
site boundaries of a housing project consisting of a single unit.
(3) If a housing project consists of more than a single unit, an
amount equal to three-fourths of 1 percent of the projected cost of
the project for mitigation measures undertaken within the site
boundaries of the project for the first unit plus the sum of the
following:
(A) Two hundred dollars ($200) per unit for any of the next 99
units.
(B) One hundred fifty dollars ($150) per unit for any of the next
400 units.
(C) One hundred dollars ($100) per unit in excess of 500 units.
(f) Unless special or unusual circumstances warrant an exception,
the field excavation phase of an approved mitigation plan shall be
completed within 90 days after final approval necessary to implement
the physical development of the project or, if a phased project, in
connection with the phased portion to which the specific mitigation
measures are applicable. However, the project applicant may extend
that period if he or she so elects. Nothing in this section shall
nullify protections for Indian cemeteries under any other provision
of law.
(g) As used in this section, "unique archaeological resource"
means an archaeological artifact, object, or site about which it can
be clearly demonstrated that, without merely adding to the current
body of knowledge, there is a high probability that it meets any of
the following criteria:
(1) Contains information needed to answer important scientific
research questions and that there is a demonstrable public interest
in that information.
(2) Has a special and particular quality such as being the oldest
of its type or the best available example of its type.
(3) Is directly associated with a scientifically recognized
important prehistoric or historic event or person.
(4) Is a tribal cultural resource.
(h) As used in this section, "nonunique archaeological resource"
means an archaeological artifact, object, or site which does not meet
the criteria in subdivision (g). A nonunique archaeological resource
need be given no further consideration, other than the simple
recording of its existence by the lead agency if it so elects.
(i) As part of the objectives, criteria, and procedures required
by Section 21082 or as part of conditions imposed for mitigation, a
lead agency may make provisions for archaeological sites accidentally
discovered during construction. These provisions may include an
immediate evaluation of the find. If the find is determined to be a
unique archaeological resource, contingency funding and a time
allotment sufficient to allow recovering an archaeological sample or
to employ one of the avoidance measures may be required under the
provisions set forth in this section. Construction work may continue
on other parts of the building site while archaeological mitigation
takes place.
(j) This section does not apply to any project described in
subdivision (a) or (b) of Section 21065 if the lead agency elects to
comply with all other applicable provisions of this division. This
section does not apply to any project described in subdivision (c) of
Section 21065 if the applicant and the lead agency jointly elect to
comply with all other applicable provisions of
this division.
(k) Any additional costs to any local agency as a result of
complying with this section with respect to a project of other than a
public agency shall be borne by the project applicant.
( l ) Nothing in this section is intended to
affect or modify the requirements of Section 21084 or 21084.1.
SEC. 8. 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 the
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).
(c) This section shall apply only to a project that has a notice
of preparation or a notice of negative declaration or mitigated
negative declaration filed on or after January 1, 2014.
SEC. 9. 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. 10. 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. 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.
(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) (1) 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.
(2) This subdivision does not affect or alter the application of
subdivision (r) of Section 6254 of the Government Code.
(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,
only if one of the following occurs:
(1) Meaningful consultation between the affected Native American
tribes and the lead agency has occurred pursuant to Section 65352.4
of the Government Code and Sections 21080.3 and 21104. The lead
agency has given major consideration to preventing impacts to tribal
cultural resources and has demonstrated best efforts to protect and
preserve sacred places in a culturally appropriate manner with
dignity so as not to further debilitate tribal religious practices,
traditions, and identities.
(2) 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.
(3) The lead agency determines that there is no legal or feasible
way to accomplish the project's purpose without causing a significant
effect upon the sacred place, that all feasible mitigation or
avoidance measures have been incorporated, and that specific
overriding economic, legal, social, technological, or other benefits
of the project outweigh the significant effects on the environment.
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, the
lead agency may require all reasonable efforts to be made to treat
the tribal cultural resource, including a sacred place, 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, 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. 11. Section 21104 of the Public Resources
Code is amended to read:
21104. (a) Prior to completing an environmental impact report,
the state lead agency shall consult with, and obtain comments from,
each responsible agency, trustee agency, affected Native American
tribes, any public agency that has jurisdiction by law with respect
to the project, and any city or county that borders on a city or
county within which the project is located unless otherwise
designated annually by agreement between the state lead agency and
the city or county, and may consult with any person who has special
expertise with respect to any environmental impact involved. In the
case of a project described in subdivision (c) of Section 21065, the
state lead agency shall, upon the request of the applicant, provide
for early consultation to identify the range of actions,
alternatives, mitigation measures, and significant effects to be
analyzed in depth in the environmental impact report. The state lead
agency may consult with persons identified by the applicant who the
applicant believes will be concerned with the environmental effects
of the project and may consult with members of the public who have
made a written request to be consulted on the project. A request by
the applicant for early consultation shall be made not later than 30
days after the determination required by Section 21080.1 with respect
to the project.
(b) The state lead agency shall consult with, and obtain comments
from, the State Air Resources Board in preparing an environmental
impact report on a highway or freeway project, as to the air
pollution impact of the potential vehicular use of the highway or
freeway.
(c) A responsible agency or other public agency shall only make
substantive comments regarding those activities involved in a project
that are within an area of expertise of the agency or that are
required to be carried out or approved by the agency. Those comments
shall be supported by specific documentation.
SEC. 7. Section 21084.3 is added to the
Public Resources Code , to read:
21084.3. (a) If the lead agency determines that a project will
have a substantial adverse change on a tribal cultural resource, the
following mitigation measures, in order of preference, that may avoid
or minimize the significant adverse impacts shall be implemented, if
feasible:
(1) Planning construction to avoid the resources and protect the
cultural and natural context, or planning greenspace, parks, or other
open space, to incorporate the resources with culturally appropriate
protection and management criteria.
(2) Consideration of project alternatives that protect the
resources.
(3) Protecting resources or places through conveyance to an
appropriate Native American tribe of permanent easements, or other
interests in real property, with culturally appropriate management
criteria for the purpose of preserving or utilizing the resources or
places.
(4) Adopting mitigation measures that treat the resources with
culturally appropriate dignity taking into account the tribal value
and meaning of the resource including, but not limited to, the
following:
(A) Mitigation that protects the cultural character and integrity
of the resource.
(B) Mitigation that protects the traditional use of the resource.
(C) Mitigation that protects the confidentiality of the resource.
(5) Any of the examples of treatments set forth in Section
21083.2.
(b) If the lead agency determines that a project will have a
significant adverse impact on a tribal cultural resource that is a
sacred place as described in paragraph (2) of subdivision (a) of
Section 21074, no severe or irreparable damage shall occur and no
interference with the free expression or exercise of a Native
American religion as provided in the United States Constitution and
the California Constitution shall occur with regard to this place
except on a clear and convincing showing that the public interest and
necessity so require.
(c) This section shall apply only to a project that has a notice
of preparation or a notice of negative declaration or mitigated
negative declaration filed on or after January 1, 2014.
SEC. 8. Section 21097 is added to the
Public Resources Code , to read:
21097. (a) A Native American tribe that is traditionally and
culturally affiliated with the geographic area of the proposed
project wishing to consult with the lead agency to discuss
potentially feasible means by which potentially significant impacts
on a tribal cultural resources can be feasibly avoided or minimized
to less than significant, may notify the lead agency prior to the
public review period established by Section 21091, but no later than
30 days after receipt of the lead agency's notice of preparation of
an environmental impact report or 20 days after receipt of the lead
agency's notice of a negative declaration or mitigated negative
declaration. The lead agency shall provide to the Native American
tribe copies of any environmental document or technical report relied
on by the lead agency. The Native American tribe may request the
project proponent, 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 significant impacts to a tribal
cultural resource.
(b) Any mitigation measures agreed upon by the lead agency and
Native American tribe in the consultation shall be incorporated as
mitigation measures in the final environmental document and fully
enforceable through conditions, agreements, or measures.
(c) If a project may have an 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 cultural resource.
(2) Whether feasible alternatives or mitigation measures,
including those measures that may be agreed to pursuant to
subdivision (a), avoid or substantially lessen the impact to the
identified tribal cultural resource.
(d) (1) Any information, including, but not limited to, the
location, nature, and use of the place, feature, site, or object that
is submitted by a Native American tribe regarding a tribal cultural
resource during the consultation process may not be included in the
environmental document or otherwise disclosed by the lead agency or
any other public agency to the public without the prior consent of
the tribe that provided the information. Any information submitted by
a Native American tribe during the consultation process shall be
published in a confidential appendix to the environmental document
unless the tribe consents to disclosure of all or some of the
information to the public. This subdivision is not intended, and may
not be construed, to prohibit the confidential exchange of the
submitted information between public agencies that have lawful
jurisdiction over the preparation of the environmental document.
(2) This subdivision does not affect or alter the application of
subdivision (r) of Section 6254 of the Government Code.
(e) The lead agency for the proposed project may issue a permit or
grant an approval for a project with a significant impact on an
identified tribal cultural resource only if one of the following
occurs:
(1) Mitigation measures agreed to during the consultation process
pursuant to subdivision (b) or another agreement have been
incorporated into the final environmental document and mitigation
monitoring program.
(2) The Native American tribe accepts the mitigation measures
proposed in the draft or final environmental document and mitigation
monitoring and reporting program.
(3) Consultation between the Native American tribes and the lead
agency has occurred pursuant to Section 65352.4 of the Government
Code and Section 21080.3.1.
(4) The Native American tribe has received notice of, and has
failed to comment on or reject, the proposed mitigation measures
during the public comment period established in Section 21091 and any
public hearing on the project required by or held pursuant to this
division.
(f) If an agreement is not reached pursuant to this section and if
substantial evidence demonstrates that a project will cause a
significant effect to a tribal cultural resource the lead agency
shall require feasible mitigation pursuant to subdivision (a) of
Section 21084.3 and, if applicable, mitigation pursuant to
subdivision (b) of Section 21084.3.
(g) It is the intent of the Legislature that the lead agency
engage in early consultation with the Native American tribe before
the public review period for the environmental documents commences.
(h) This section is not intended, and may not be construed, to
limit consultation between the state and tribal governments, existing
confidentiality provisions, or the protection of religious exercise
to the fullest extent permitted under state and federal law.
(i) This section shall apply only to a project that has a notice
of preparation or a notice of negative declaration or mitigated
negative declaration filed on or after January 1, 2014.
SEC. 12. SEC. 9. (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) for
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.
SEC. 13. SEC. 10. 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.
