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 SEPTEMBER 5, 2013
AMENDED IN SENATE AUGUST 26, 2013
AMENDED IN ASSEMBLY MAY 30, 2013
AMENDED IN ASSEMBLY APRIL 19, 2013
AMENDED IN ASSEMBLY APRIL 8, 2013
AMENDED IN ASSEMBLY MARCH 19, 2013
INTRODUCED BY Assembly Member Gatto
(Principal coauthor: Assembly Member Alejo)
(Coauthors: Assembly Members Chesbro and Lowenthal)
DECEMBER 21, 2012
An act to add Sections 21073, 21074, 21080.3.1, 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 to prepare and
develop, and the Secretary of the Natural Resources Agency to certify
and adopt, guidelines for the implementation of CEQA that include,
among other things, criteria for public agencies to following in
determining whether or not a proposed project may have a significant
effect on the environment.
This bill would specify that a project having a potential to 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 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 require
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 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.
separate the consideration of cultural resources from that for
paleontological resources and add consideration of tribal cultural
resources. By requiring the lead agency to consider these
effects relative to Native Americans and to conduct additional
consultations, this bill would impose a state-mandated local program.
The California Constitution requires the state to reimburse local
agencies and school districts for certain costs mandated by the
state. Statutory provisions establish procedures for making that
reimbursement.
This bill would provide that no reimbursement is required by this
act for a specified reason.
Vote: majority. Appropriation: no. Fiscal committee: yes.
State-mandated local program: yes.
THE PEOPLE OF THE STATE OF CALIFORNIA DO ENACT AS FOLLOWS:
SECTION 1. 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. Spiritual
integrity, community identity, political sovereignty, and governance
processes are intertwined in the lifeways and identity of the
California Native American tribes.
(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.
(c) Traditional tribal lands were diminished to reservations and
rancherias that exist today 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.
(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. 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 to the detriment of
those communities and California's environment.
(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.
(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.
SECTION 1. (a) The
Legislature finds and declares all of the following:
(1) Current state law provides a limited measure of protection for
sites, features, places, objects, and landscapes with cultural value
to California Native American tribes.
(2) Existing law provides limited protection for Native American
sacred places, including, but not limited to, places of worship,
religious or ceremonial sites, and sacred shrines.
(3) The California Environmental Quality Act (Division 13
(commencing with Section 21000) of the Public Resources Code) does
not readily or directly include California Native American tribes'
knowledge and concerns. This has resulted in significant
environmental impacts to tribal cultural resources and sacred places,
including cumulative impacts, to the detriment of California Native
American tribes and California's environment.
(4) As California Native Americans have used, and continue to use,
natural settings in the conduct of spiritual practices, religious
observances, ceremonies, cultural practices, and beliefs, these
resources reflect the tribes' continuing cultural ties to the land
and their traditional heritages.
(5) Many of these archaeological, historical, cultural, and sacred
sites are not located within the current boundaries of California
Native American reservations and rancherias, and therefore are not
covered by the protectionist policies of tribal governments.
(b) In recognition of California Native American tribal
sovereignty and the unique relationship of California local
governments and public agencies with California Native American
tribal governments, and respecting the interests and roles of project
proponents, it is the intent of the Legislature, in enacting this
act, to accomplish all of the following:
(1) Recognize that California Native American prehistoric,
historic, archaeological, cultural, and sacred places are essential
elements in tribal cultural traditions, heritages, and identities.
(2) Establish that federally recognized California Native American
tribes have a tribal government role in the California Environmental
Quality Act.
(3) Establish a new category of resources in the California
Environmental Quality Act called "tribal cultural resources" that
considers the tribal cultural values in addition to the scientific
and archaeological values.
(4) Recognize California Native American tribes have expertise
with regard to their tribal history and practices, which concern the
tribal cultural resources with which they are traditionally and
culturally affiliated. Because the California Environmental Quality
Act calls for a sufficient degree of analysis, tribal knowledge about
the land and tribal cultural resources at issue should be included
in environmental assessments for projects that may have a significant
impact on those resources.
(5) Establish a meaningful consultation process between California
Native American tribal governments and lead agencies, respecting the
interests and roles of project proponents and the level of required
confidentiality concerning tribal cultural resources, at the earliest
possible point in the California Environmental Quality Act
environmental review process, so that tribal cultural resources can
be identified, and culturally appropriate mitigation and mitigation
monitoring programs can be considered by the decisionmaking body of
the lead agency.
(6) Ensure that local and tribal governments, public agencies, and
project proponents have information available early in the
California Environmental Quality Act environmental review process,
for purposes of identifying and addressing potential adverse impacts
to tribal cultural resources and to reduce the potential for delay
and conflicts in the environmental review process.
(7) Enable California Native American tribes to manage and accept
conveyances of, and act as caretakers of, tribal cultural resources.
(8) Establish that a substantial adverse change to a tribal
cultural resource has a significant effect on the environment.
SEC. 2. Section 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 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 historical
resource may also be a historical resource pursuant to
described in Section 21084.1 or
21084.1, a unique archaeological resource
pursuant to as defined in subdivision
(g) of Section 21083.2. A tribal cultural resource
classified as 21083.2, or a "nonunique
archaeological resource" remains a tribal cultural resource
and shall be given consideration pursuant to this division.
as defined in subdivision (h) of Section 21083.2, may be a
tribal cultural resource if it conforms with the criteria of
subdivision (a).
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 initiate consultation 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 also provide for early
consultation as described in Section 21097 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.
documents.
(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 , as set forth in subdivision (a),
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 mitigation that
will be recommended to the lead agency, or either the authorized
representative of the lead agency participating in the consultation
or Native American tribe, acting in good faith and after
reasonable effort, concludes that mutual agreement cannot be reached
concerning recommended 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. 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 revise Appendix G of
Chapter 3 (commencing with Section 15000) of Division 6 of Title 4 of
the California Code of Regulations to do both of the
following:
(a) 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)
(a) Separate the consideration of paleontological
resources from cultural resources and update the relevant sample
questions.
(2)
(b) Add consideration of tribal cultural
resources, including sacred places, resources
with 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 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)
(b) This section shall apply only to a project that has
a notice of preparation or a notice of negative declaration or
mitigated negative declaration filed on or after January 1, 2014.
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 may cause a substantial
adverse change on to a tribal cultural
resource, the following mitigation measures are recommended
, in order of preference, that may avoid or minimize the
significant adverse impacts and shall be
implemented, considered, 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.
(3) Conveyance of resources into permanent conservation easements
or other interests in real property, with culturally appropriate
management criteria for the purposes of preserving or utilizing the
resources or places.
(4) 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
, if executed with culturally appropriate dignity .
(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)
(b) This section shall apply only to a project that has
a notice of preparation or a notice of negative declaration or
mitigated negative declaration filed on or after January 1, 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 shall
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 or consent to the project
proponent, Native American Heritage Commission, the State Office of
Historic Preservation, and other relevant agencies or entities
to participate in participating in portions
of the consultation process and to seek
mutually agreeable methods of avoiding or otherwise
resolving mitigating 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 recommended by the lead
agency staff to the decisionmaking body of the lead agency
participating in the consultation as mitigation measures in the
final environmental document and the mitigation monitoring
program, if determined to avoid or lessen the impact
pursuant to paragraph (2) of subdivision (c), and shall be
fully enforceable through conditions, agreements, or measures.
(c) If a project may have an a significant
impact on a tribal cultural resource, the lead agency's
environmental document shall discuss both of the following:
(1) Whether the proposed project has a significant impact on an
identified tribal cultural resource.
(2) Whether feasible alternatives or mitigation measures,
including those measures that may be agreed to pursuant to
subdivision (a), avoid or substantially lessen the impact to the
identified tribal cultural resource.
(d) (1) Any information, including, but not limited to, the
location, nature, and use of the place, feature, site, or
object tribal cultural resource 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 , in
writing, 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.
(3) This subdivision does not prevent a lead agency or other
public agency from describing the information in general terms in the
environmental document so as to inform the public of the basis of
the lead agency's or other public agency's decision without breaching
the confidentiality required by this subdivision.
(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 recommended to the decisionmaking
body of the lead agency as mitigation measures in the final
environmental document and mitigation monitoring program.
(2) The Native American tribe accepts the mitigation measures
proposed in the draft or final environmental document and mitigation
monitoring and reporting program.
(3) Consultation between the Native American tribes and the lead
agency has occurred pursuant to Section 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 the mitigation measures recommended by the
staff of the lead agency as a result of the consultation process are
not included in the environmental document or if there are no agreed
upon mitigation measures at the conclusion of the consultation,
and if substantial evidence demonstrates that a project will cause a
significant effect to a tribal cultural resource
resource, the lead agency shall require
consider 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. 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) 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. 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.
