Updated CEQA Procedures to Consider Native American Cultural Resources

I. Summary

Designed to protect Native American tribal cultural resources, Assembly Bill 52 (“AB 52”) amends California Environmental Quality Act (‘CEQA”) procedures to require lead agencies to consult with a Native American tribe before releasing a negative declaration, mitigated negative declaration, or environmental impact report if the tribe requests both notification of proposed projects and consultation with the lead agency. AB 52 also provides that any project that may cause a “substantial change” in the significance of a tribal cultural resource may have a significant effect on the environment for purposes of CEQA. Effective July 1, 2015, and only applicable to projects where CEQA would otherwise apply, AB 52 also provides examples of mitigation measures that may be considered to avoid/minimize impacts on tribal cultural resources.

II. Discussion

AB 52 amends the Public Resources Code to provide that a project that may cause a substantial adverse change to a tribal cultural resource is a “project” that may have a significant effect on the environment for purposes of application of CEQA.^[1] Cities often act as lead agencies for purposes of compliance with CEQA when projects within their jurisdiction may have an impact on the environment, and lead agencies after July 1, 2015 must consider the effect their projects may have on Native American tribal cultural resources. “Tribal cultural resources” include qualifying sites, features, places, landscapes, sacred places, and objects with cultural value to a California Native American tribe.^[2]

AB 52 adds Section 21080.3.1 to the Public Resources Code which provides that, prior to the release of a negative declaration, mitigated negative declaration, or environmental impact report for a project, a lead agency “shall” consult with a California Native American tribe that is traditionally and culturally affiliated^[3] with the project area, but only if the tribe requests in writing to be informed of proposed projects and the tribe responds within 30 days of lead agency’s notification to request consultation. Within 14 days of determining that a project application is complete or a decision to undertake a project, the lead agency must provide formal notification to the requesting tribe that includes a brief description of the proposed project, the project’s location, the lead agency’s contact information, and a statement that the tribe has 30 days to request consultation.^[4] Because AB 52 only applies to projects where a negative declaration, mitigated negative declaration or environmental impact report are required, projects not subject to CEQA review are not within the scope of AB 52.

The consultation required by AB 52may include discussion of potential mitigation measures including avoidance, preservation, and incorporation of the resource into the project.^[5]AB 52 does not impose strict requirements regarding how/when/where the consultation takes place, so lead agencies are free to meet with tribal representatives in person, by phone, or otherwise. If a Native American tribe avails itself of its right to consult with the lead agency, such consultation is only concluded when the parties agree to measures to mitigate/avoid a significant effect on a tribal cultural resource or when a party in good faith determines that mutual agreement cannot be reached.^[6] There is no minimum time limit that lead agencies must consult with tribes in order to comply with AB 52, but a good faith effort to come to an agreement regarding the project and preserving/mitigating/incorporating the tribal cultural resource should be made.

If a project that is not otherwise exempt from CEQA may have a significant impact on a tribal cultural resource, the lead agency’s environmental document must identify the resource and discuss whether feasible alternatives or mitigation measures avoid or substantially lessen the project’s impact on the resource.^[7] Also under AB 52, a lead agency may certify an environmental impact report or adopt a mitigated negative declaration for a project with a significant impact on a tribal cultural resource only if:

• The consultation process has occurred;
• The Native American tribe that requested consultation has failed to engage in the consultation process; or
• The Native American tribe failed to request consultation within 30 days.^[8]

It is also worth noting that a lead agency may not disclose information relating to the tribal cultural resources without the consent of the Native American tribe in order to prevent looting, vandalism, and other damage to the resources.^[9]

III. Conclusion

Because AB 52 only requires that lead agencies consult with Native American tribes prior to releasing a negative declaration, mitigated negative declaration, or environmental impact report, AB 52 does not apply to categorically exempt projects except under special circumstances.  When CEQA review is required, AB 52 imposes a duty on a city, when acting as a lead agency, to consult with a requesting Native American tribe to discuss ways to avoid or mitigate damage to a tribal cultural resource caused by a project. Lead agencies only need consult with Native American tribes that are traditionally and culturally affiliated with the proposed project area and then only if that tribe makes a timely written request to consult with the lead agency.

The above information is for general use and is not legal advice. This J&M Legal Alert is not intended to create, and receipt of it does not constitute an attorney – client relationship.Should you have any questions or require further clarification of the above, please contact Keith F. Collins at (714) 446-1400 or kfc@jones-mayer.com.