By Sarah E. Owsowitz, Best Best & Krieger.
Projects statewide will now be subject to further examination to ensure potentially significant impacts to California’s Native American historic, cultural and sacred sites are mitigated. Assembly Bill 52 adds new requirements under the California Environmental Quality Act—or CEQA—that could identify and address potential adverse impacts to the state’s tribal heritage before a project moves forward. The bill took effect July 1.
In its simplest form, AB 52 has two distinct parts: one, it includes a new topic for environmental review, and, two, it adds a native tribe notice and/or consultation requirement to the process.
AB 52 adds significant conditions that aim to identify potentially significant impacts to a native site, feature or cultural landscape before a draft environmental impact report or negative declaration is published.
Quite often in the past, agencies would often learn an important piece of information regarding tribal resources only after draft environmental documents were published. Now, through the AB 52 consultation process, there is an opportunity for local agencies to learn at the process’ start about tribal resources they may be unaware of.
CEQA already requires that public agencies evaluate a project’s potential impacts on historical and archeological resources, but AB 52 expands that assessment to include potential impacts to California’s tribal cultural resources.
California is home to more people of Native American and Native Alaskan heritage than any other state in the nation — approximately 723,225 people, according to the most recent U.S. Census Bureau data. The state has more than 100 Federally-recognized Indian tribes with nearly 80 native entities petitioning for recognition. AB 52 also requires consideration of the tribal cultural resources of non-Federally-recognized tribes that have been identified by the California Native American Heritage Commission, as well as notice and potential consultation with those tribes.
Prior to this bill, it was possible that not all tribal cultural resources would be considered to meet CEQA criteria to be considered “historical resources.” This is because prior to this bill a “non-unique archeological resource” was not considered a cultural resource. Moreover, the CEQA criteria for determining the presence of a historic resource on a project site did not take into account the cultural or spiritual value of the resource to California’s tribes.
AB 52 changes that. The bill, sponsored by Assemblyman Mike Gatto, protects tribal cultural resources by considering not only their historic and scientific value but also their spiritual and cultural value to Californian Native American tribes. First, the bill provides a category of cultural resources separate from a historical resource. Second, it requires consultation with, or at the very least that notice be given to, requesting tribes.
Tribal cultural resources are defined as “sites, features, places, cultural landscapes, sacred places, and objects with value to a California Native American tribe.” Such resources can be included on, or eligible for the California Register of Historical Resources. They may also be listed on a local register or determined to be tribal cultural resources as a result of the agency’s project review.
A tribal cultural resource is eligible for the California Register by meeting any criteria set forth by the National Register of Historic Places — if it is associated with an event that made a significant contribution to California’s history and cultural heritage or if it is linked to the lives vital to the state’s past. The definition also includes a cultural landscape with a geographically-defined area and a non-unique archeological resource.
The bill’s second big amendment to CEQA concerns notice and consultation — mainly the early notice of a project and consultation with tribes to provide information for the CEQA document. Tribes may submit written requests to agencies to be informed of proposed projects within the agency’s jurisdiction. If they do, the agency must notify the tribe within 14 days after a project’s application is determined to be complete or within 14 days after the agency itself decides to undertake a project. If a tribe responds within 30 days of the notice requesting consultation, the agency must start the consultation process within 30 days.
Consultations come to an end when 1) the agency agrees to include mitigation measures agreed upon during consultation, 2) consultation was requested but the requesting tribe failed to engage in the process, or 3) a party to the consultation, after good faith and reasonable efforts, concludes that mutual agreement cannot be reached. Even if no agreement is reached, the agency must still impose all feasible measures necessary to mitigate a project’s significant impacts on tribal cultural resources.
Further, regardless of whether a tribe requests consultation, CEQA documents must now disclose and analyze whether the proposed project will cause a substantial adverse impact to a tribal cultural resource.
The added layers of review will likely extend the development assessment process, but supporters believe it will result in more native resources — of historic, cultural and spiritual value — being protected and preserved.
Sarah E. Owsowitz is of counsel in the Walnut Creek office of Best Best & Krieger, where she represents public and private clients in proceedings and litigation involving the California Environmental Quality Act. As a member of the firm’s Environmental Law and Natural Resources practice group, Sarah’s practice concentrates on state and local planning laws, urban decay, climate change, water supply and cultural resource issues. She has broad experience in obtaining entitlements and defending environmental impact reports for large-scale developments. She can be reached at firstname.lastname@example.org.