Shelved Legislation Would Have Granted Indians Oversight on California Projects
    
    
 
Jeffrey L. Anderson and Jeffrey K. Dorso

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Despite Governor Gray Davis' promise that he would sign the bill into law, the latest legislative session ended with S.B. 18 stalled in the Assembly. S.B. 18., a bill drafted by Sen. John Burton, attempted to expand Native American tribal influence in the present mechanisms designed to identify and protect Native American cultural sites in California. To accomplish this goal, the proposed law would have substantially amended California's Environmental Quality Act ("CEQA") and several other pertinent laws already on the books. Specifically, S.B. 18 would have granted the Native American Heritage Commission ("NAHC"), a nine-member body established in 1976, and appointed by the governor, broad new powers to halt or modify development projects on both public and private lands.

Identification of Traditional Tribal Cultural Sites

At present, California law allows the NAHC to offer input on development projects that potentially impact sites of religious or cultural significance to Native Americans. With regard to such sites, S.B. 18 would supplement existing law that provides that the NAHC may identify sacred sites for protection. S.B. 18, had it been enacted, would have formalized the identification and cataloging process for Native American sacred sites on public and private lands by creating a specific classification for these sites, denominated in the proposed bill as "Traditional Tribal Cultural Sites" ("TTCS"). S.B. 18 also instituted a registration process for these sites known as the TTCS Register. To date the commission has compiled a list of approximately 1,500 potential TTCS with the potential for many more throughout the state. Pursuant to the proposed law, the NAHC would gain responsibility for managing the administration of the TTCS Register and would decide whether a particular site qualifies as a TTCS. S.B. 18's criteria for a TTCS is simply whether a particular site has been traditionally associated with, or has served as the site of religious or cultural practices of a Native American tribe. The new law would merely require that a TTCS be a reasonably delineated geographical location identifiable by physical characteristics. Beyond this vague description, the new law is not clear on what type of proposed site would properly be included in the TTCS Register. Indeed, the current executive secretary of the NAHC recently opined that sites appropriately listed in the TTCS Register may very well include rock formations and lakes. (See Johnson, Tribal Land Law Causes Uproar, San Jose Mercury News, Sep. 4, 2003.) These nebulous statutory guidelines and the stated intentions of those charged with implementing them, would have inevitably led to conflict between the NAHC and local government and business concerns had the legislation been enacted.

Protection of Native American Sites

Under the proposed law, state and local agencies engaged in environmental reviews of projects in their jurisdictions would have been required to consult with the NAHC if "traditional tribal cultural sites" may be jeopardized by the project. If the NAHC were to conclude that a site could be harmed as the result of a project, the project would be halted or modified to eliminate the threat, unless the state or local agency demonstrated an overriding public interest in completing the project. Debate on the proposed law was heated on both sides. Passage was vehemently opposed by developers, builders and local government officials due to their fears that enactment of the proposed law would result in significant delays in project approval and implementation on everything from new highways to housing developments and will drive the cost of building new private and public development projects by millions of dollars each year. Much opposition to the bill focused on the provision making it a crime for anyone to publicly discuss specifics of the sacred sites. Such disclosure of the nature or location of sacred sites would subject violators to a $10,000 fine and a one-year jail term. Opponents of the law decried these penalties as a serious incursion into open government and free speech and a direct assault on California's Open Meetings law. Additionally, opponents stressed that the proposed law is potentially counterproductive in that it would make it extremely difficult for community groups, land use planners and even Native Americans themselves to learn about and effectively formulate strategies for protecting deserving sites.

The Proposed Law's Impact on CEQA

The most significant impact contained in the proposed S.B. 18 involves significant amendments to CEQA. Under the proposed law, a lead agency engaged in a project environmental review of a project would be required to provide the NAHC notice of a proposed project pursuant to Public Resources Code section 21097. The NAHC in turn would determine whether the proposed project would cause a substantial adverse change to a "traditional tribal cultural site" or to other sites deemed to be eligible for inclusion on the TTCS list. If the NAHC determines that a proposed project would result in substantial adverse change to the TTCS or TTCS-eligible site, under S.B. 18's provisions, the NAHC would need to identify project changes or mitigation measures, if any, that would avoid or reduce the substantial adverse change. (Public Resources Code section 21097(g).) Moreover, under the proposed legislation, if the NAHC determines that a proposed project will result in a substantial adverse change to a TTCS, then the lead agency must do one of the following:

-- If the project proponent, NAHC, and all appropriate tribes who participated in the consultation process agree to incorporate project changes or mitigation measures that will avoid or reduce potential adverse changes to the TTCS to below a level of significance, the lead agency shall conclude that changes to the TTCS are less than significant. (Public Resources Code section 21097(i)(1).)

-- If the project proponent, NAHC, and all appropriate tribes do not agree to project changes or mitigation measures, then NAHC shall provide a written recommendation to the lead agency identifying project changes or mitigation measures that would reduce or avoid potential adverse changes to the TTCS. The lead agency, when making its findings "shall consider the recommendation of [NAHC] and shall adopt all project changes or mitigation measures necessary to avoid or reduce substantial adverse changes to any TTCS identified pursuant to this section that the lead agency determines, based on substantial evidence in light of the whole record, are feasible." (Public Resources Code section 21097(i)(2).)

The above-described amendments to California's Public Resources Code as provided in S.B. 18 would have greatly altered state and local agencies' CEQA compliance procedures - procedures that are already universally viewed as laborious and often seemingly unending. The consultation process with the NAHC proposed under the new law would have in effect created a de facto co-lead agency for all CEQA implicated projects by requiring lead agencies to notify the NAHC of all CEQA projects and to consult with the NAHC in the event that the NAHC determines that a given project may substantially impact a TTCS or TTCS-eligible site.

Conclusion

Last year, Governor Davis correctly vetoed a bill by Senate President Pro Tem John Burton that would have given Indian tribes the authority to stop outright or to force expensive mitigation measures for any proposed development within 20 miles of Native American "sacred sites." This year, for transparent political reasons, Governor Davis was poised to sign S.B. 18 had it made it out of the Legislature and onto his desk. Fortunately, as a result of strong opposition from local governments, developers and other business leaders, S.B. 18 did not survive this Legislature and California's already sluggish economy has been spared another blow - for now at least. Presently, there are laws that provide adequate mechanisms for protecting Native American cultural sites. Moreover, some local jurisdictions such as San Diego County already have local resource protection ordinances that require those jurisdictions to work in cooperation with tribes to protect cultural treasures. It is likely that the S.B. 18 will be reintroduced during next year's session and S.B. 18's opponents will rise to sound the alarm against legislation that will no doubt constitute, once again, an ill-conceived political payoff that will wreck havoc on local and statewide planning and lead to endless court challenges over its interpretation and enforcement.

If you have any questions, please contact Mark D. Harrison, Jeffrey L. Anderson or Jeffrey K. Dorso of Diepenbrock Harrison's Natural Resources and Environmental Law Department.