CEQA TRIBAL CULTURAL RESOURCE PROTECTION: Gaps in the Law and Implementation.

AuthorDadashi, Heather
PositionCalifornia Environmental Quality Act

TABLE OF CONTENTS INTRODUCTION I. THE HISTORIC AND CULTURAL RESOURCE PROTECTION LEGAL LANDSCAPE SURROUNDING AB 52 AND CEQA II. TRADITIONAL ECOLOGICAL KNOWLEDGE III. A CLOSER LOOK AT AB 52'S REQUIREMENTS AND PROTECTIONS IV. HOW AB 52 WORKS IN PRACTICE: GAPS AND LIMITATIONS A. Substantive Problems B. Procedural Problems V. RECOMMENDATIONS A. Recommended Amendments to the Law B. Recommendations for Improved Implementation INTRODUCTION

Before 2014, the California Environmental Quality Act (CEQA) failed to directly address tribal concerns, and California Native American governments lacked a consistent, formal role in the environmental review process. Consequently, tribal cultural resources, sacred places, and traditions were often overlooked, resulting in detrimental environmental impacts for tribes and California's environment. (1) In recognition of California Native American tribal sovereignty and the unique relationship between California Native American tribal governments and California local governments and public agencies, the California Legislature enacted Assembly Bill No. 52 (AB 52) on September 25, 2014. (2)

This bill intended to establish a new category of resources regulated under CEQA called "tribal cultural resources" that "considers ... tribal cultural values in addition to ... scientific and archaeological values when determining impacts and mitigation." (3) AB 52 also created new requirements for consultation with tribal governments regarding projects that may affect a tribal cultural resource. (4)

AB 52 specifies that a project that may "cause a substantial adverse change in the significance of a tribal cultural resource" is a "project that may have a significant effect on the environment." (5) To determine whether a project may have such an effect, AB 52 requires a lead agency, (6) the public agency that has the principal responsibility for carrying out or approving a project, to consult with any California Native American tribe (7) that requests consultation and is traditionally and culturally affiliated with the geographic area of a proposed project. (8) This consultation must begin prior to the release of a negative declaration, mitigated negative declaration, or environmental impact report (EIR) for a project. (9) If a lead agency determines that a project may cause a substantial adverse change to a tribal cultural resource, the agency must consider measures to mitigate that impact. (10)

AB 52 is a landmark piece of legislation, which establishes a powerful role for Native American tribes in the CEQA process. Tribes possess a unique legal status as indigenous sovereign governments under AB 52. As opposed to simply treating tribal members as members of the public and limiting their input to submission of comment letters, AB 52 offers tribal governments a seat at the decisionmaking table alongside lead agencies and California local governments. The law is more "tribe-centric" than other historic and cultural resource protection statutes because it formally expands what is legally protected and demands more stringent consultation requirements. (11)

Despite formal advancement in tribal resource protection and recognition of tribal expertise, implementation of AB 52 is nevertheless flawed. This flawed implementation fits into a broader legal and political context of Native Americans having merely a theoretical input in the federal, state, and local government decisions that affect them. In reality, Native American input has long been ignored and discounted.

The purpose of this paper is to identify problems with the legislative language of AB 52 and gaps in its implementation in order to provide a point of reflection on how to improve government to government consultation. This paper first examines the environmental review and legal framework of tribal resource protection within AB 52. Second, it discusses and defines the concept of traditional ecological knowledge, which lays the groundwork for understanding the importance of AB 52 consultation. Third, it examines AB 52's requirements and protections, including the consultation process, mitigation, the "tribal cultural resources" category, and what constitutes substantial evidence. Fourth, it discusses substantive and procedural problems with AB 52's implementation as well as impediments to tribal consultation more broadly. Finally, the paper concludes with recommendations for amending the law and addressing gaps in implementation.

  1. The Historic and Cultural Resource Protection Legal Landscape Surrounding AB 52 and CEQA

    To highlight the uniquely protective nature of AB 52, this Part juxtaposes AB 52 with other statutes mandating tribal consultation (12) and examines the larger environmental review process under CEQA. AB 52 entered the tribal resource protection legal scene amidst an array of less effective consultation policies. For example, AB 52 provides greater protection and has broader consultation requirements than Senate Bill No. 18 (SB 18), which requires tribal consultation in the CEQA General Plan Update process. AB 52 applies to any CEQA lead agency, including agencies, districts, or jurisdictions, whereas SB 18 only applies to cities and counties. SB 18 only protects "tribal cultural places," which is one of many resource categories protected under AB 52's "tribal cultural resources" umbrella. While SB 18 procedure requires the local jurisdiction to initiate contact with tribes, tribes have the power to initiate contact under AB 52. Moreover, cities and counties are only encouraged to mitigate impacts under SB 18, while lead agencies are mandated to apply feasible mitigation for significant impacts under AB 52. (13)

    Section 106 of the National Historic Preservation Act (NHPA), the National Environmental Policy Act's companion law, only offers protection to federally recognized tribes, and tribes are only consulted upon agency initiation. Moreover, AB 52 consultation occurs at the earliest point in the CEQA process, whereas Section 106 consultation occurs later in the environmental review process. Unlike Section 106, AB 52 sets forth action and response timeframes. (14) Similar to Section 106 of the NHPA, the Native American Grave Repatriation Act (NAGPRA) does not require museums and federal agencies to consult with non-federally recognized tribes, although it gives them the discretion to do so. (15) Additionally, while NAGPRA requires museums and federal agencies to initiate consultation within ninety days of receipt of a request from a tribe, AB 52 requires the lead agency to begin the consultation process within thirty days of receipt of a California Native American tribe's request. (16)

    Notably, AB 52 consultation standards are exceeded by Assembly Bill 168 (AB 168). AB 168 adds new requirements to the streamlined approval process for multi-family housing mandated in Senate Bill 35 (SB 35), which passed in 2017. AB 168 closes the loophole created by SB 35 that allows developers to gain fast-tracked approval of housing projects in locations with known tribal cultural resources, without being subject to CEQA environmental review or tribal consultation. (17) SB 168 goes further than AB 52 by requiring the consent and approval of tribes in regard to the treatment of cultural resources and sacred sites, before a project is eligible for a permit under SB 35. (18) Notwithstanding the more stringent consultation requirements of AB 168, AB 52 stands out among tribal resource protection laws, and its implementation is advantageous to Native American tribes.

    AB 52 also serves as a subset of a larger suite of questions built within CEQA. CEQA is California's most comprehensive environmental law, interpreted by courts to afford the fullest environmental protection within the reasonable scope of the statutory language. (19) CEQA applies to all discretionary projects proposed to be conducted or approved by a California public agency, including private projects requiring discretionary government approval. (20)

    The purpose of CEQA is to: (1) publicly disclose the significant environmental effects of a proposed discretionary project through the preparation of an Initial Study (IS), Negative Declaration (ND), or Environmental Impact Report (EIR); (2) prevent or minimize damage to the environment through the development of project alternatives, mitigation measures, and mitigation monitoring; (3) publicly disclose the agency decisionmaking process utilized to approve discretionary projects through findings and statements of overriding consideration; (4) enhance public participation in the environmental review process through scoping meetings, public notice, public review, hearings, and the judicial process; and (5) improve interagency coordination through early consultations, scoping meetings, notices of preparation, and State Clearinghouse review. (21)

    CEQA requires state agencies to evaluate the environmental impacts of proposed projects of private individuals, corporations, and other public agencies. No projects which would result in significant environmental consequences should be approved as proposed if there are feasible alternatives or mitigation measures that would lessen those effects. Full public disclosure of the environmental impacts of a proposed project must be provided through EIRs, which include identification of all significant effects, alternatives, and potential mitigation measures. (22)

    Without AB 52, CEQA does not impose upon lead agencies an affirmative duty to contact a tribe. However, CEQA guidelines encourage consultation with the general public or organizations who have concerns with the project as early as possible in the process. (23) AB 52 amended CEQA to mandate early tribal consultation prior to and during CEQA review, and it positions tribes, rather than archeologists, as the experts on the resources within their own geographical areas.

  2. TRADITIONAL ECOLOGICAL KNOWLEDGE

    Establishing an understanding of...

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