Agencies Must, Upon Request, Consult With Tribes About “Tribal Cultural Resources”

Assembly Bill 52, signed yesterday by Gov. Jerry Brown, seeks to protect a new class of resources under CEQA: “tribal cultural resources.” It requires that lead agencies undertaking CEQA review must, upon request of a California Native American tribe, begin consultation prior to the release of a negative declaration, mitigated negative declaration or environmental impact report for a project. AB 52 does not go into effect immediately, but will apply to those projects for which a lead agency has issued a notice of preparation of an environmental impact report or notice of intent to adopt a negative declaration on or after July 1, 2015.

Under AB 52, lead agencies must now evaluate, just as they do for other historical and archeological resources under CEQA, a project’s potential impact to a “tribal cultural resource.” A tribal cultural resource is defined as a site, feature, place, cultural landscape, sacred place or object with cultural value to a California Native American tribe, which may include non-unique archeological resources previously subject to limited review under CEQA. “California Native American tribes” are all tribes (federally recognized or not) on the “contact list” maintained by the Native American Heritage Commission. If substantial evidence demonstrates that a project may cause a substantial adverse change to a tribal cultural resource, AB 52 provides that the project may have a significant effect on the environment. AB 52 also contains a list of potential mitigation measures, including a preference for preservation in place, which must be considered by a lead agency, unless it determines that the measure is infeasible.

AB 52 requires that, by July 1, 2016 (note that this a year after the statute takes effect), NAHC must provide the tribes on its contact list with a list of all public agencies that may serve as a lead agency for projects within the geographic area within which the tribe is traditionally and culturally affiliated. NAHC must also inform these tribes how to request that public agencies notify the tribes about projects for the purposes of requesting consultation.

Where a tribe requests, in writing, that a public agency inform it of proposed projects, the lead agency must notify the tribe within 14 days of determining that a project application is complete or deciding to undertake a project (i.e., prior to the release of the environmental document). If the tribe responds by requesting consultation, in writing, within 30 days of the notification, the lead agency must begin the consultation process within 30 days of receiving the request.

Consultation may concern the level of environmental review necessary; the significance of a tribal cultural resource and of a project’s impact on that resource; and project alternatives and/or mitigation, including those recommended by the tribe. During consultation, lead agencies must also follow certain confidentiality requirements concerning the tribal cultural resources at issue. Consultation ends when 1) the lead agency agrees to incorporate the mitigation requested by the tribe into the CEQA document (if a significant effect exists), or 2) the tribe or the lead agency conclude that agreement cannot be reached. If no agreement is reached, the lead agency must still consider feasible mitigation based on the standards in the statute.