Sacred sites bills

By CMTA Staff

Capitol Update, June 16, 2006 Share this on FacebookTweet thisEmail this to a friend

This session two bills would protect Native American archeological sites: SB 1395 (Denise Moreno Ducheny, D-San Diego) and AB 2641 (Joe Coto, D-San Jose).

CMTA’s main concern with SB 1395 is the potential to be drawn back into the California Environmental Quality Act’s (CEQA) mandated consultation process for projects that have been determined to be exempt from CEQA.  As we argued when working on SB 18 (John Burton, D-San Francisco) two years ago, issues need to be addressed early in the general planning process rather than in specific land use applications.  Our concerns with the bill are:
  • SB 1395 is internally contradictory:  It begins by describing its applicability to projects that have been determined to be exempt from CEQA and then goes on to say those CEQA-exempt projects are, nevertheless, required to go through a CEQA consulting process.  This begs the question – is the project subject to CEQA or not?
SB 1395 appears to cancel out the decision by the lead agency that the project is exempt from CEQA. Projects are exempt from CEQA because (1) they fall under Public Resources Code (PRC) section 21080 (b) (statutory & categorical exemption) or they fall under PRC section 21172 (emergency called by Governor).  All these projects have been deemed to not have a significant effect on the environment.  The bill assumes the project has been exempted (which means it’s out of CEQA); however, it then appears to cancel that exemption out by bringing it back into CEQA by the fact that the project "may directly or indirectly affect a California Native American &ldots; place." Is the "affect" environmental?  Is it other?  If it’s environmental, then the exemption was, arguably, wrongly determined.
  • The CEQA consultation process is open-ended with no time limitation.  After the determination has been made by the lead agency that the project is exempt but before the agency can act to approve or carry out the project, it must consult with the tribes.  The consultation process has no beginning or ending timeframes.  It could go on indefinitely.  In the meantime, the project is on hold.
  • SB 1395 indefinitely tolls the statute of limitations. One of the benefits of filing the notice of determination (exemption) is that the 35 day statute of limitations is triggered.  This bill opens the window to bring challenges indefinitely.
In AB 2641 the definition of a Native American burial ground is so loose (bones would not need to be found) and the consultation process is so open-ended that land development and infrastructure projects of all types would be put at great risk and subject to serious uncertainty and potential litigation.  As drafted, the bill could increase taxpayer costs for future infrastructure projects.  Projects could be halted after considerable construction and capital has been invested.

SB 1395 will be heard in the Assembly Natural Resources Committee on June 26.  AB 2641 has been "double-referred".  It is scheduled to be heard by the Senate Natural Resources and Water Committee on June 20 and then be sent to the Senate Judiciary Committee.  CMTA is a member of coalitions in opposition to both bills.  Alternative language has been offered, but no agreement has yet been reached.  Both bills must pass these committees by June 30 to stay alive. 
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