Legislature Expands CEQA to Require Tribal Consultation

By Sean M. Sherlock and Brian Daluiso

On September 25, 2014, Governor Edmund G. Brown, Jr., signed Assembly Bill No. 52 (“AB 52”) into law. The new law expands the California Environmental Quality Act (“CEQA”) to provide that any public or private “project with an effect that may cause a substantial adverse change in the significance of a tribal cultural resource is a project that may have a significant effect on the environment.” The law will apply to any project that has a notice of preparation, a notice of negative declaration, or mitigated negative declaration filed on or after July 1, 2015. More specifically, the law creates a new category of resources in CEQA called “tribal cultural resources” and seeks to engage the expertise of Native American tribes in the protection and preservation of those resources. To fulfill that purpose, the new law requires the lead agency to consult with a local Native American tribe as part of the environmental review process. The law also requires that the details of the tribal cultural resource be kept confidential and provides examples of mitigation measures that focus on preserving tribal cultural resources.

While some have expressed concerns that AB 52 greatly expands California law to give Native American tribes more power to influence, delay, and even halt project development, the new addition to CEQA appears to effect a more modest expansion of California law. Under existing law, enacted in 2005, whenever a city or county adopts or amends a general plan, “the city or county must conduct consultations with California Native American Tribes” listed by the Native American Heritage Commission. Apart from consultation with tribes, existing law seeks to preserve Native American cultural and historic resources by requiring cities and counties to maintain confidentiality regarding the specific details of tribal resources that are subject of the consultation.

Significant projects in California commonly require a general plan amendment. Consequently, many project developments in California since 2005 have been subject to consultation and confidentiality requirements when Native American cultural or historical resources are potentially involved. Furthermore, even for projects that do not require amending a general plan, under Appendix G of the existing CEQA Guidelines, tribal cultural resources have typically been addressed under the umbrella of “cultural resources.” AB 52 amends CEQA by formally adding the category of tribal cultural resources to CEQA, which will require an update to Appendix G, and extends the consultation and confidentiality requirements to all projects, whether they require amending the general plan or not.

Key Features of AB 52

Tribal Cultural Resource: AB 52 creates a new CEQA category called “tribal cultural resources.” Such resources include “[s]ites, features, places, cultural landscapes, sacred places, and objects with cultural value to a California Native American tribe that are eligible for inclusion in the California Register of Historical resources or included in a local register of historical resources.” The law also gives the lead agency discretion in determining whether a resource qualifies as a tribal cultural resource, but that determination must be supported by substantial evidence. California Native American tribes are defined under AB 52 the same way as they are under existing law by their presence on the list maintained by the Native American Heritage Commission.

Consultation with Tribes and Certification of Environmental Documents: AB 52 requires consultation with California Native American tribes before the release of any environmental document (e.g., mitigated negative declaration or environmental impact report). The lead agency must consult with a tribe within the geographical area of the project if the tribe (1) requested the lead agency to inform it of proposed projects within its area, and (2) the tribe responds within 30 days of receiving notification and requests consultation. During consultation, the parties may discuss possible mitigation measures to avoid or lessen the impact on tribal cultural resources. To protect the resource, any information submitted by a tribe during the environmental review process shall not be included in the environmental document or otherwise disclosed to the public.

The consultation process will conclude when the parties agree to mitigation measures or when one of the parties, acting in good faith, concludes that mutual agreement cannot be reached. When the consultation process has been concluded, the lead agency may then certify any environmental documents. In the absence of consultation, the lead agency may certify environmental documents if (1) the tribe was informed of the project but never requested consultation; or (2) the tribe requested but never engaged in consultation.

Mitigation Measures: The new law proposes four mitigation measures that “may be considered to avoid or minimize the significant adverse impacts”: (1) the project should avoid the resource or preserve the resource in place, which may be accomplished through the use of open space or green space; (2) the resource should be treated with “culturally appropriate dignity,” which includes such measures as preserving the traditional use of the resource and protecting the confidentiality of the resource; (3) the resource may be protected through permanent conservation easements; and (4) the resource should be broadly protected.

Notably, tribal monitoring of the project is not among the recommended mitigation measures. Thus, the new law limits tribal involvement to the preparation of the environmental documents and does not provide for the tribe’s ongoing involvement in a project’s development after the certification of any environmental document.

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