In June 2017, the CA Governor’s Office of Planning and Research issued a technical advisory which provides guidelines for consultation with California’s Native American tribes under the California Environmental Quality Act (CEQA) following the enactment of Assembly Bill 52.
Assembly Bill 52, which became effective on July 1, 2015, revised several portions of California’s Public Resources Code to broaden the requirements for tribal consultation and to provide a more formal structure for California’s tribes to provide meaningful input to protect their cultural heritage during the CEQA process.
California Public Resources Code section 21084.2 now establishes that “a project with an effect 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.” Lead agencies are required to avoid damaging effects to any tribal cultural resource when feasible. This requires lead agencies to begin consultation with California Native American tribes that are traditionally and culturally affiliated with the geographic area of the proposed project prior to the release of a negative declaration (ND), mitigated negative declaration (MND), or environmental impact report (EIR) for a project.
AB (Assembly Bill) 52 also broadly defined the “California Native American Tribe.” Federal statutes aimed at protecting cultural resources often limit the definition of “Indian Tribes” to include only those federally recognized.
What is a Tribal Consultation?
Tribal consultations are a meaningful and timely process of seeking, discussing, and carefully considering the views of others, in a manner that is cognizant of all parties’ cultural values and, where feasible, seeking agreement. Consultation between government agencies and California Native American Tribes should be conducted in a way that is mutually respectful of each party’s sovereignty. Consultation should also recognize a tribe’s potential need for confidentiality with respect to places that have traditional tribal cultural significance.
Six Important Things to Know About AB 52
- Unless a tribe requests overall notification from a Lead Agency of projects in the tribe’s area of traditional and cultural affiliation, there is no AB 52 consultation obligation.
- Lead Agencies have an affirmative duty to use reasonable care to protect confidential information received from tribes through consultation (See Pub. Resources Code, § 21082.3(c)(2)).
- An environmental document cannot be released until consultation with tribes that have provided overall notification and consultation requests have begun.
- An EIR, MND, or ND for a project with a significant impact on an identified tribal cultural resource cannot be certified or adopted until AB 52 tribal consultation, if requested, has concluded.
- If mitigation measures are agreed upon with a tribe in accordance with Public Resources Code section 21082.3, the measures must be recommended for inclusion in the environmental document.
- Tribes do not lose their right to participate in the CEQA review process even if they do or do not participate in AB 52 consultation.
The regulatory process is continually evolving, and it can be challenging to stay informed so that you can meet legal requirements while achieving project objectives. It is vital for both tribes and Lead Agencies to understand their rights and responsibilities to protect tribal cultural resources for future generations and working with a trusted partner can help achieve that goal.
FirstCarbon Solutions (FCS), an ADEC Innovation, comprises over 100 individuals offering due diligence, technical analysis, planning, environmental compliance, permitting, and mitigation/monitoring services for public and private projects. FCS has more than 30 years of experience navigating the complexities of CEQA and securing project approvals. Our technical and legal teams are ready to provide assistance and guidance in moving your project forward. Contact us for a free consultation to learn more about how we can help with your specific project requirements.