Client Alert

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The Legislature Moves to Expand the California Environmental Quality Act with New Requirements to Evaluate Tribal Cultural Resources

The Senate and Assembly have passed AB 52 (Gatto), which would expand the California Environmental Quality Act by adding a new category of resources that must be evaluated – “tribal cultural resources.” Although AB 52 was modified to assuage the concerns of business and public agency groups, it still represents the most significant legislative expansion of CEQA in years.  Assuming Governor Brown signs the bill, as he is expected to do, CEQA will impose specific new consultation and mitigation requirements on projects that impact tribal cultural resources.  The definition of tribal cultural resources is broad, and includes “cultural landscapes,” “sacred places” and “objects of cultural value to a California Native American tribe.”

A major new element introduced to CEQA by AB 52 is the emphasis on cultural values -- as opposed to scientific or archeological values--as a criterion for determining whether a place or object constitutes a “tribal cultural resource.” Until now, tribal cultural resources were subsumed within the categories of “historical” or “archeological” resources.  There has been a long-simmering debate between scientists and archeologists, who have generally focused on the archeological value of the resources, and tribes, who have argued for consideration of tribal values that go beyond science and archeological value.  AB 52 effectively puts an end to this debate by establishing “tribal cultural resources” as a new separate category of resource subject to CEQA, and by requiring lead agencies to take into consideration the cultural value of a place or thing to interested tribes, even if it would not otherwise qualify as a “historic” or “archeological” resource. 

Specifically, AB 52 includes the following provisions:

  • “Tribal cultural resources” are defined as sites, features, places, cultural landscapes, sacred places or objects, which have cultural value to a California native American tribe, and which are listed on the California Register of Historical Resources, or eligible for such listing (as determined by the State Historical Resources Commission), or included on a local register, or determined to be significant by the lead agency in its discretion, applying the same statutory criteria as are used to determine California Register eligibility. 
  • This final category – lead agency discretionary determinations – was revised by the legislature to specify that the lead agency has discretion to make the determination.  That determination must be supported by substantial evidence, and the lead agency must also consider the significance of the resource to the tribe.  Earlier versions of the bill would have effectively put tribes in control of these discretionary lead agency determinations.
  • A “cultural landscape” may be a tribal cultural resource, if it otherwise meets the criteria and if it is “geographically defined in terms of the size and scope” of the landscape.  Until now, cultural landscapes have not generally been legally recognized in CEQA practice; the concept has largely been restricted to parklands and federal agency activities.  The National Park Service published a 1994 preservation brief discussing cultural landscapes, and that bulletin may become important in applying that term as it will be used in CEQA.
  • The bill includes a number of new notice provisions, requiring lead agencies to provide notice of new projects to tribes in areas traditionally and culturally identified with those tribes.   Tribes then have 30 days to respond to this notice and indicate if they wish to be consulted.  The consultation process must begin before the lead agency releases a draft EIR, negative declaration or mitigated negative declaration.  Given that tribes have 30 days to respond to the notice, lead agencies will need to provide the initial formal notice sufficiently in advance so as to allow the consultation process to begin before the document is released.  This new notice procedure may in particular add to the time required to process negative declarations.
  • The consultation process may include discussion of the type of CEQA document to be prepared, the significance of project impacts on tribal cultural resources, and mitigation measures or project alternatives that the tribe may recommend to the lead agency.  If the parties agree in the consultation on mitigation measures, those must be set forth in the document.
  • The consultation will be considered concluded either when (a) the parties agree on measures that mitigate or avoid a significant impact on a tribal cultural resource,  or (b) any party concludes, after good faith and reasonable effort, that mutual agreement cannot be reached.  It is not clear from the language of AB 52 if the developer is considered to be a party for purposes of concluding consultations, but clearly this will be an important question to answer moving forward.
  • If the tribe discloses confidential information about cultural resources as part of the consultation, both the lead agency and the project applicant must maintain the confidentiality of that information.
  • The bill applies both to tribes that are federally recognized, and to tribes that do not have such recognition. 
  • AB applies prospectively to CEQA reviews that begin after July 1, 2015. 

The Governor is expected to sign AB 52, and he has until midnight on September 30 to act.  The bill is likely to have a substantial impact on the CEQA review of energy and infrastructure projects, given that many such projects are located areas traditionally and culturally affiliated with a California Native American tribe.

For more information, please contact any of the following attorneys at Cox, Castle & Nicholson:

Michael Zischke at (415) 262-5109 or mzischke@coxcastle.com
Anne Mudge at (415) 262-5107 or amudge@coxcastle.com
Tim Paone at (949) 260-4655 or tpaone@coxcastle.com
David Waite at (310) 284-2218 or dwaite@coxcastle.com
Alex DeGood at (310) 284-2205 or adegood@coxcastle.com

 

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