The California Governor’s Office of Planning and Research (OPR) is requesting comment on proposed guidelines to incorporate Tribal Cultural Resources in its sample initial study form pursuant to the California Environmental Quality Act (CEQA), as amended by Assembly Bill 52 (AB 52) in 2014. The Discussion Draft of Proposed Changes can be viewed here.
AB 52 amended CEQA to require consultation with California Native American Tribes and consideration of Tribal Cultural Resources by, among other things, establishing that a “project with an effect that may cause a substantial adverse change in the significance of a tribal resource is a project that may have a significant effect on the environment.” Pub. Resources Code, §21084.2. The intent of AB 52 was to reduce potential delay and conflicts in project planning and the environmental review process by providing local and tribal governments, public agencies, and project proponents with information early in the project planning process to identify and address potential adverse impacts to Tribal Cultural Resources with this initial review. “Early” in the instance of AB 52, requires consultation with interested Tribes prior to the release of a Notice of Preparation of an environmental document. AB 52 directed the OPR to develop proposed updates to the sample initial study checklist in Appendix G of the CEQA Guidelines to: (1) separate the consideration of paleontological resources from Tribal Cultural Resources and update the relevant sample questions and (2) to add consideration of Tribal Cultural Resources with relevant sample questions. It also requires the Natural Resources Agency to complete its regulatory process for adoption of updates by July 1, 2016.
Generally, the sample initial study form assists lead agencies in determining whether a project may cause a significant impact on the environment by asking a series of questions regarding a variety of environmental resources and the degree of potential impact, ranging from “potentially significant impact” to “no impact.” Pursuant to AB 52, the form must now provide for consideration of Tribal Cultural Resources. To fulfill its obligation, OPR presented three alternatives for public comment, each with varying degrees of detail.
The first alternative simply provides a separate question to address Tribal Cultural Resources with a citation to the Public Resources Code. This alternative, although technically in compliance with the statute, is minimal and may not fulfill the intent of AB 52. Since consideration of Tribal Cultural Resources may be new for many agency personnel, providing minimal information in the sample initial study form may lead to potential impacts to Tribal Cultural Resources being overlooked.
The second alternative provides a definition of Tribal Cultural Resources to make it “clear that a variety of objects and places may be Tribal Cultural Resources.” However, it leaves Tribal Cultural Resources in the Cultural Resources section of analysis, which includes consideration of historical, archeological, and paleontological resources. Placing Tribal Cultural Resources within this category, places Tribal Cultural Resources in the past, as if they are not an active part of tribal cultures in the present. This is an important misrepresentation because in order to properly evaluate the impact to Tribal Cultural Resources, the lead agency should understand that many Tribal Cultural Resources are not relics of the past, but an active part of a vibrant tribal culture today.
The third alternative creates a separate category of analysis for Tribal Cultural Resources, rather than including it as a subcategory of Cultural Resources. It also, includes introductory language that refers to the consultation requirement in AB 52, stating: “Consultation with a California Native American Tribe that has requested such consultation may assist a lead agency in determining whether the project may adversely affect Tribal Cultural Resources, and if so, how such effects may be avoided or mitigated.” This language is important to remind the lead agency of its requirement to consult with tribes; that is, after all, the purpose of AB 52, to involve tribes early in the process to avoid disagreements and confrontation later. However, the third alternative also reminds the lead agency that whether consultation has been requested or not, it must still evaluate the impact to Tribal Cultural Resources. Unlike the first two alternatives, the third alternative breaks out each piece of the definition of Tribal Cultural Resources. Breaking out each piece of Tribal Cultural Resources may seem overcomplicated, but it allows each category to be evaluated independently.
Each alternative serves one basic purpose—to ensure that the impacts to Tribal Cultural Resources are considered early in the CEQA process. However, different strategies for addressing Cultural Resource impacts will determine the effectiveness of AB 52. Tribal governments should consider commenting on the proposed guidelines to ensure the impact to its Tribal Cultural Resources are properly evaluated, as required by AB 52.
Gabriela is a citizen of the Cahuilla Band of Indians and currently clerking for Procopio. She graduated from the James E. Rogers College of Law at the University of Arizona in 2015 and has recently been admitted to the State Bar of California.