AB 52 Establishes Tribal Consultation Rights for the First Time under CEQA & Recognizes "Tribal Cultural Resources" as a New Category of Resources

On September 25, 2014, Governor Brown signed AB 52 into law. For the first time under CEQA, AB 52 establishes a new consultation process with California Native American tribes for proposed projects in geographic areas that are traditionally and culturally affiliated with that tribe. Subject to certain prerequisites, AB 52 requires, among other things, that a lead agency consult with the tribe before the release of an environmental review document for a proposed project regarding project alternatives, recommended mitigation measures, or potential significant effects, if the tribe so requests. If the tribe and the lead agency agree upon mitigation measures during their consultation, these mitigation measures must be recommended for inclusion in the chosen environmental document.

In addition, AB 52 establishes “tribal cultural resources” as a new category of resources under CEQA. Tribal cultural resources are defined as “sites, features, places, cultural landscapes, sacred places, and objects with cultural value to a California Native American Tribe” that are: (1) included in the California Register of Historical Resources; included in a local register of historical resources; or (2) determined by the lead agency to be significant pursuant to the criteria for inclusion in the California Register, if supported by substantial evidence. AB 52 further suggests optional mitigation measures if the lead agency determines that the project will have a significant impact on tribal cultural resources.

AB 52 applies only to projects that have a notice of preparation or a notice of negative declaration or mitigated negative declaration filed on or after July 1, 2015.

On October 8, 2014 in Sacramento and October 22, 2014 in San Diego, Harrison, Temblador, Hungerford & Guernsey LLP will be presenting “Historic Preservation & Native American Cultural Resources: Permitting Essentials for Mining and Development Projects.” This seminar will provide an in-depth look at various aspects of federal, state, and local permitting with regards to Native American cultural resources, and will focus heavily on AB 52. More information about these seminars can be found at https://www.hthglaw.com/events.

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