By: Kevin M. Davis | Attorney | kevin.davis@procopio.com
Theodore J. Griswold | Partner | ted.griswold@procopio.com
On September 25, 2014, Governor Brown signed Assembly Bill No. 52 (AB 52), which seeks to provide greater protection for many Native American sacred sites in California. The bill is a step in the right direction, but it is only one step with quite a trail ahead. At the end of the trail, we would expect to see adequately protected Native American sacred sites in this State through meaningful consultations between lead agencies, project proponents and any of the affected Native American Tribes or Tribal Governments (“Tribes”). The important first steps that AB 52 has taken are discussed below along with the next steps that the State will need to take in order to continue down this trail.
AB 52 amends the California Environmental Quality Act (CEQA) to: (1) define an adverse change to a “Tribal Cultural Resource” as a “significant impact;” and, (2) require consultation with affected “California Native American Tribes” prior to the release of a negative declaration, mitigated negative declaration, or environmental impact report for a project. This is an important first step toward protection of Tribal Cultural Resources because CEQA now requires that Native American Tribes have a voice in protecting Tribal Cultural Resources. However, this first step occurs late in the process because these documents are released well after a project is planned and sited. The better process (and next step?) to protect Tribal Cultural Resources would be to involve the Tribes earlier in the process – when the Tribes would have an opportunity to consult on meaningful project decisions in the planning and siting phases.
The “Tribal Cultural Resources” identified by CEQA include “sites, features, places, cultural landscapes, sacred places, and objects with a cultural value to a California Native American Tribe” that are included or eligible for inclusion in the California Register of Historical Resources, or in a local register of historical resources. “Tribal Cultural Resources” also include cultural landscapes, historical resources and non-unique archaeological resources that meet these criteria. A lead agency has discretion to designate a resource as a “Tribal Cultural Resource.” By limiting the definition of a “Tribal Cultural Resource,” the statute limits protections to only registered resources or resources designated under the lead agency’s discretion. Further down the trail the State should take the next step towards protecting these important resources by broadening the statute’s definition or providing the affected Tribes some discretion over what constitutes such a resource.
When a Tribal Cultural Resource exists in a project area, a lead agency must consult with Native American Tribes that are: (1) located in California; (2) traditionally and culturally affiliated with the proposed project’s geographic area; and, (3) registered on the National American Heritage Commission’s contact list. A lead agency therefore may not be required to consult with all Tribes that could be affected by a proposed project (if a Tribe does not meet these criteria). Furthermore, in order to trigger the consultation under AB 52, the onus is on the Tribe to: (1) request in writing that the lead agency inform the Tribe of proposed projects in the geographic area; and, (2) request a consultation in writing within 30 days of such notification of a project. While the Native American Heritage Commission is tasked with assisting the lead agencies to identify Tribes affiliated with the project area, the burden is ultimately placed on the Tribes to pursue the consultation. Logically, the next step would be to remove these significant procedural burdens placed on the Tribes so they do not lose the opportunity to consult with the lead agency.
The consultation includes an opportunity for a qualified Tribe to propose mitigation measures that avoid or lessen potentially significant impacts to the “Tribal Cultural Resource.” For many Tribes, however this consultation may be a dead end or short trail. Any mitigation measures arising from the consultation are only recommended for inclusion in the environmental document and the adopted mitigation monitoring and reporting program. If included by the lead agency as a requirement of project approval, only then would the measures become fully enforceable under CEQA.
The mitigation measures suggested to avoid or minimize significant adverse impacts to “Tribal Cultural Resources” include: (1) avoidance and preservation of the resource; (2) treating the resource with culturally appropriate dignity; (3) permanent conservation easements; and (4) protecting the resource. However, no examples were provided, so the commitment to protect these resources is vague at best. This trail needs better markers. Further, the consultation would occur late in the CEQA review process so it is difficult to determine how the measures may be implemented when the location and scope of the project has already been established. As a next step, this statute needs to provide projects earlier direction and clarification in order to be effective. The lead agency should consult with Tribal representatives at the planning and siting stages to develop appropriate mitigation measures. Only then will we be able to walk down this trail with a clear direction.
Finally, AB 52 provides that a Tribe may request that the information provided through the consultation process be maintained in a confidential appendix to the environmental document. This would hopefully protect confidential Tribal information from public review, but this protection is subject to the lead agency’s diligence in preserving the confidentiality of such information. This open-ended protection from a lead agency may not be sufficient for Tribes to risk disclosing confidential information about their most sacred sites, which undermines the effectiveness of these CEQA amendments.
By enacting AB 52, California has taken a first step towards protecting many Native American sacred sites in the State. However, the trail ahead must be more clearly marked and there are many steps left to be taken. A copy of AB 52 is available here. For more information, please contact Kevin Davis at (619) 515-3293 or kevin.davis@procopio.com. Kevin Davis is a member of Procopio’s Native American practice group, who advises public agencies, Native American Tribes, and private entities on environmental and land use matters.
Ted is head of the Native American Law practice group and primary editor for the Blogging Circle. Connect with Ted at ted.griswold@procopio.com and 619.515.3277.
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