Ever since gold was discovered in 1849 at John Sutter’s mill, located on Nisenan tribal land, mining in California has often come into conflict with Native American lands and cultural and spiritual values. In recent times, Glamis Gold’s Imperial project faltered in part because of its impact on sites sacred to the Quechan tribe. The California State Legislature (the “Legislature”) has prioritized protection of Native American cultural and spiritual values, for example by passing legislation in 2003 requiring state agencies to deny reclamation plans for surface mines located within a mile of certain Native American sacred sites. The Legislature recently supplemented these protections by passing Assembly Bill 52 (“AB 52”), which mandates early and comprehensive consultation with tribes for projects in areas traditionally or culturally significant to tribes. AB 52 mandates substantial environmental review of projects that pose potential risks to these values.

Background

The Legislature adopted the California Environmental Quality Act (“CEQA”) in 1970 as a California-specific version of the National Environmental Policy Act (“NEPA”), which the United States Congress had enacted a year earlier. Like NEPA, CEQA requires public agencies to review and take into account the environmental impacts of their actions. Put another way, CEQA creates a procedure for the public to review government projects and private projects that require public-agency approval, so that the public can feel certain that the agency has taken a look at environmental impacts of the proposed project before the agency takes any action.

Despite their similarities and shared intents, NEPA and CEQA do have some important differences. One such difference involves tribal consultation. While the statutory text of NEPA does not mention consultation with Indian tribes as a prerequisite to agency action, the federal agency tasked with ensuring that the other federal agencies meet their NEPA obligations does require federal agencies to contact Indian tribes and provide them with opportunities to participate at various stages in the NEPA process. For example, the federal Council on Environmental Quality has promulgated regulations at 40 C.F.R. §§ 1501.2 & 1501.7 that require federal agencies to invite the participation of any impacted Indian tribe early during the NEPA process in order to help determine the scope of issues that must be addressed during review of a project (i.e., “scoping”).

California has not enacted a similar tribal-consultation requirement under CEQA until recently. Several years ago, a Californian company proposed a 155-acre rock quarry that could produce up to 5 million tons of aggregate each year. The quarry would have been located on a tribe’s sacred lands. The tribe felt that, despite its attempts to speak during the multi-year environmental review process, its claims had fallen on deaf ears. In 2011, the tribe proposed an Assembly Bill for the Legislature to prohibit issuance of a permit for the proposed quarry, which failed. As a last resort, the tribe sued the mining company, and ultimately purchased the targeted property and settled the lawsuit at a combined cost of roughly $20 million.

In response to the quarry dispute and a similar dispute involving a landfill, a member of the California State Assembly (the lower house of Legislature) introduced AB 52 on December 21, 2012. The purpose of AB 52 was to enact a comprehensive, statewide requirement that project proponents must consult with tribes to determine possible impacts on Native American sacred sites early in the environmental review process. The Legislature ultimately agreed that then-existing Californian law did not provide sufficient protection for sacred places and other sites that have cultural value for Native American tribes, and that CEQA did not do enough to include the tribes’ knowledge and concerns in the environmental review process. Accordingly, the Legislature enacted AB 52 as law, and the Governor of California approved it last month.

So, what does AB 52 do?

AB 52 provides a process for Native American tribes to engage in the CEQA review process at the outset to avoid significant effects on tribal cultural resources. It broadly defines “tribal cultural resources,” and clarifies that if a project may cause a substantial adverse change in the significance of a “tribal cultural resource,” then it may have a significant effect on the environment as a matter of law. If it has a significant effect on the environment, then the responsible Californian agency must prepare an Environmental Impact Report, which is roughly the equivalent of an Environmental Impact Statement under NEPA. It also requires the responsible Californian agency to make its best effort to ensure that certain sacred lands will be avoided, preserved, protected in-place, or otherwise undisturbed.

Here is how it works:

  1. Tribes must opt-in to the review process by notifying Californian agencies that they would like to be consulted on projects that fall within the agencies’ jurisdiction.
  2. The agencies must then solicit the opt-in tribes’ input early and often on projects that potentially impact such tribes’ “tribal cultural resources,” and share environmental documents with the tribes throughout the review process.
  3. During the environmental review process, the consultation with the opt-in tribes envisions the tribes proposing mitigation measures including avoidance of the sites or lands at issue.
  4. All Environmental Impact Reports, regardless of whether they involve an opt-in tribe, must analyze impacts on “tribal cultural resources,” and consider mitigation measures.

The Legislature will add the statutory definitions to CEQA as California Public Resources Code §§ 21073 & 21074, the consultation requirements as §§ 21080.3.1 & 21080.3.2, the requirements for the Environmental Impact Report at § 21082.3, and the legal treatment of substantial adverse changes in the significance of “tribal cultural resources” and avoidance policy at §§ 21084.2 & 21084.3.

Will AB 52 significantly impact on mining projects in California?

It is difficult to assess whether AB 52 will significantly impact mining projects, but its proponents hope that it will have precisely that effect.

While AB 52 is the first law requiring tribal consultation under CEQA, it is not the first Californian law requiring tribal consultation or consideration of tribal sites. For example, prior to amending their land-use zoning and policies, Californian cities and counties must consult with impacted tribes to preserve or mitigate impacts to artifacts that are located within the cities’ or counties’ jurisdiction. The California Surface Mining and Reclamation Act was also amended years ago to prohibit the responsible Californian agency from approving any reclamation plan for surface mining of gold, silver, copper, or other metallic minerals located within one mile of any tribe’s sacred site unless the plan meets certain protective measures. Moreover, CEQA already required Californian agencies to prepare an Environmental Impact Report for any project that would have significant adverse effects on historical resources and unique archaeological resources.

However, the environmental review process, whether under CEQA or NEPA, is notoriously long and complicated. This new law solidifies a potential impediment to development of a mining project in California by expressly equating impacts to tribal cultural resources with impacts to the environment. Moreover, it increases the likelihood that tribes will become involved with the assessment of mitigation measures by requiring solicitation of the tribes’ input from the start. It even requires an affirmative recognition that the tribes and agency agree on mitigation measures, or a finding that they could not reach agreement despite “acting in good faith and after reasonable effort.” Project proponents should expect that tribes will identify more potentially impacted resources than the Californian agencies would identify on their own, and that the tribes will demand more stringent mitigation measures than the Californian agencies would otherwise require.

The new law will apply to projects that require a CEQA “notice of preparation” or “notice of negative declaration” on or after July 1, 2015.