On September 25, Governor Brown signed Assembly Bill 52, which creates a new category of environmental resources to be considered under California`s Environmental Quality Act: “Tribal Cultural Resources.” The Act establishes new consultation requirements on projects that may affect an Indigenous cultural resource, provides a general definition of what can be considered a tribal cultural resource, and a list of recommended mitigation measures. During the consultation, the lead agencies must also respect certain confidentiality requirements with respect to the cultural resources of the tribes in question. In particular, without the written consent of a strain, any information – and not just documents – provided by a strain during this process must not be included in the environmental document or otherwise made available to the public by the lead body or other public authority. This new provision is consistent with the California Public Records Act (i.e., the Gov. Code, sections 6254(r) and 6254.10). AB 52 applies to all projects completed on or after July 1, 2015 for which a responsible authority has issued a notification of the preparation of an Environmental Impact Assessment (“NOP”) or a letter of intent to accept a negative or attenuated negative statement (“NOI”). Many prominent agencies are already receiving notices from the California Native American Heritage Commission requiring compliance with AB 52. If you are not already familiar with AB 52 and its requirements, now is the time to familiarize yourself with this new law. While there is still some confusion about the details of implementation, the provisions contained in AB 52 will help identify tribal concerns early in the CWQ process. The requirements take a little longer than those previously associated with tribal work for environmental documents, but are expected to become routine over time.
AB 52 contains several important changes to theQA. Environmental documents will now have to consider tribal cultural resources in their analyses, and additional consultation requirements will apply to many projects. Lead agencies and other project advocates should be aware of these new requirements. With the implementation of Assembly Bill 52 (AB 52) last July, California welcomed a new chapter in the ongoing relationship between public authorities and Native American tribes. This new law recognizes California tribes` expertise in cultural resources and provides organizations with a method to integrate tribal knowledge into their CEQA environmental assessment and decision-making processes. Under AB 52, California tribes now have the option to make a permanent request through an official termination letter to consult with a higher body about any proposed project submitted to the CEQA in the geographic area with which the tribe is traditionally and culturally related. To help public authorities become familiar with the AB 52 process, this article describes the basic framework of the new law and provides proposals for agencies to participate in AB 52 consultation efforts. According to AB 52, a project that may result in a significant negative change in the importance of a tribal agricultural resource is defined as a project that may have a significant impact on the environment. If a project may have a significant impact on a tribal agricultural resource, the responsible organization`s environmental document should discuss the impact and determine whether viable alternatives or mitigation measures could avoid or significantly reduce the impact.
Tribal Cultural Resources Planning and Research Office and the CWQA If the tribe responds in writing and seeks advice within 30 days of notification, the responsible agency must begin the consultation process with the tribe within 30 days of receiving this written request. It is important to note that communications from the California Native American Heritage Commission do not constitute the required written tribal request that initiates the AB 52 consultation process. After receiving an application letter from a tribe, an agency may first want to contact the Native American Heritage Commission (NAHC) to verify that the applicant group is a California Native American tribe and that the agency may have decision-making authority over a project(s) in that tribe`s traditional and cultural affiliation area. See, for example, Pub. Res. Code § 21080.3.1(c). Once this has been verified, the agency must return a response to the tribe`s primary contact person to confirm receipt of the request.