New Law Provides California Native American Tribes More Input in Development

By Special Contributor posted 12-11-2014 16:59

  
By Sarah Kozal

 Last year, thieves stole carvings from Volcanic Tableland, an unprotected site sacred to the Paiute people. In his opinion piece, Mike Gatto, who authored the bill, expresses concern over this and other examples of neglecting to protect California history. | Credit:  The Greater Southwestern Exploration Company via Flickr via Creative Commons
Last year, thieves stole carvings from Volcanic Tableland, an unprotected site sacred to the Paiute people. In his opinion piece, Assemblyman Mike Gatto, who authored the bill, expresses concern over this and other examples of neglecting to protect California history. | Credit:
The Greater Southwestern Exploration Company via Flickr via Creative Commons
This past September, Governor Brown of California signed Assembly Bill 52, an amendment to the California Environmental Quality Act (CEQA) that gives Native American tribes a stronger role in the protection of their cultural resources. The bill (AB-52), authored by Assemblyman Mike Gatto, D-Los Angeles, creates a new category of protected cultural resources. It also establishes tribal consultation rights for the first time under CEQA. Gatto says that the bill was prompted by his desire to preserve California’s history and the need to increase protection of tribal cultural resources from development projects. Proposed mining projects, landfills, and energy and infrastructure projects frequently put sacred sites at risk.

New Category for Tribal Cultural Resources

CEQA already provides some protection for cultural resources, requiring mitigation efforts to historic properties designated or eligible under the National Register, California Register, or any local listing. CEQA creates a system of disclosure and oversight that requires an environmental impact report (EIR) for any proposed project involving a state agency action. Under CEQA, a project affecting historic properties must to go through this EIR process, as a “project that may cause a substantial adverse change in the significance of a historical resource is a project that may have a significant effect on the environment.”1 Though CEQA allows unavoidable impacts to be dismissed, agencies must mitigate significant impacts to the extent feasible, providing an important protection of cultural resources.2

These cultural resources, however, were limited to historic, archeological, and paleontological resources and often privileged a non-tribal view of cultural resources. These limitations left out the complementary and important Native American understanding of what a cultural resource is, including cultural practices and sacred sites. The new legislation is significant for California tribes in that it establishes a new category of resources, “tribal cultural resources,” which must be considered in an EIR addressing substantial adverse changes to the environment. These resources are defined as “sites, features, places, cultural landscapes, sacred places, and objects with cultural value to a California Native American Tribe.”3 Specifically, the resources must be either (1) (a) included in or determined eligible for inclusion in the California Register of Historic Resources or (b) included in a local register, or (2) determined by the lead agency to be a cultural resource, pursuant to criteria for inclusion in the California Register and with substantial evidence, but considering the significance to a California Native American tribe. Though this definition does not provide for an entirely new paradigm or process for understanding cultural resources, it is a significant step in the right direction. It still preserves agency deference, where agencies are given final discretion in determining if a cultural resource exists, an important aspect of CEQA to many other parties involved.

Tribal Consultation Rights

  On November 15 each year, the Pechanga Band of Luiseño Indians celebrate “Pechanga Pu’éska Mountain Day” to celebrate and remind the community of culture of the Pechanga. The tribe had been in a dispute since 2005 over a proposed granite quarry on lands, including Pu’éska Mountain, where the tribal leaders say life began. Recently the tribe paid the developer $3 million to purchase the land and $17.35 million to settle the legal dispute. | Credit:  City of Temecula on Flickr via Creative Commons
On November 15 each year, the Pechanga Band of Luiseño Indians celebrate “Pechanga Pu’éska Mountain Day” to celebrate and remind the community of culture of the Pechanga. The tribe had been in a dispute since 2005 over a proposed granite quarry on lands, including Pu’éska Mountain, where the tribal leaders say life began. Recently the tribe paid the developer $3 million to purchase the land and $17.35 million to settle the legal dispute. | Credit: City of Temecula on Flickr via Creative Commons
The new amendment also recognizes that tribes often have expertise regarding their cultural resources and thus requires consultation with tribes who are culturally and traditionally affiliated with the geographic area of a proposed project. Important to many tribes is the definition of a “California Native American tribe,” which is defined as those listed on the contact list maintained by the Native American Heritage Commission and thus includes both federally and nonfederally recognized tribes. Tribes have 30 days after receipt of notice of a proposed project to request a consultation, an action that compels agencies to take action. This consultation can include evaluating the significance of tribal cultural resources, developing project alternatives or mitigation, or determining the type of environmental review necessary. Parties must consult in good faith and the consultation concludes when parties have agreed to mitigation measures or when it is determined that no agreement about mitigation measures can be reached. AB 52 does provide specific examples of mitigation measures, such as protecting the traditional use of the resource, and protecting the confidentiality of the resource to aid parties in these consultations. Importantly, parties are required to maintain the confidentiality of information exchanged during consultation, a concern for many Native Americans due to both the sacredness of many of their sites and the history of looting and vandalism of many of these places.

The new law has been criticized for further complicating CEQA and potentially slowing growth in the state. Supporters, however, emphasized the need to bring Indian tribes into the planning process earlier and in a more meaningful way, as tribes often go through lengthy litigation or sponsor individual bills in an attempt to block projects that would impact a tribal cultural site. The hope is this process will benefit both the tribes and developers. As AB 52 applies to projects with notice of preparation of an EIR or notice of negative or mitigated negative declaration (an alternative to the EIR process allowed in certain circumstances) filed on or after July 1, 2015, no cases have been brought specifically challenging the law or an agency’s interpretation of it. It will be interesting to monitor how this plays out in the future.

Notes:

1. Cal. Code Regs. tit. 14 § 15064.5(b)

2. Cal. Code Regs. tit. 14 § 15021(a)(2)

3. Cal. Pub Res Code § 21073


Sarah Kozal is a J.D. Candidate at the UCLA School of Law. She received a Graduate Certificate in Heritage Conservation from USC in 2013


#Diversity #Sustainability #NativeAmerican #Legal

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