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Thursday, December 31, 2015

California’s Awful Bill 52

OK, it’s Assembly Bill 52, or just AB52 (See http://leginfo.legislature.ca.gov/faces/billNavClient.xhtml?bill_id=201320140AB52), and since July 1st 2015 it’s been law in California, but it really is awful. You won’t hear that from cultural resource management (CRM) practitioners in California – or rather, you will hear it, but you won’t see it in writing, because to reveal that this emperor has really ugly clothes would have implications for one’s job security. But if you actually read the thing, and think about what it says, it should be clear that the bill will have disastrous effects on Native California’s cultural resources. And what’s crazy is that tribes and their allies promoted it.

Apparently AB52 resulted from someone’s belief that places of cultural importance to tribes were getting short shrift in project reviews under the California Environmental Quality Act (CEQA) – that CEQA’s approach to defining the cultural environment was too dominated by the thinking of archaeologists and perhaps architectural historians. There’s a lot of truth in that perception; CRM under CEQA is seriously archaeo-biased (and where there are buildings involved, often architecto-biased). There’s good reason for tribes, and indeed anyone who thinks that cultural value in the environment may derive from something other than the interests of archaeologists, to seek reform.

However, there’s nothing fundamental to CEQA that created archaeo-bias; it’s something that’s built up through practice by CEQA consultants, influencing the choice of words and phrases used in the CEQA Guidelines issued and periodically revised by the State Resources Agency. The problem could have been addressed through minor wording changes in the Guidelines, and by educating consultants and government agencies.

The authors of AB52, however, elected to change the law, and they did so in some breathtakingly stupid ways, either never thinking through the consequences of their actions or willfully disregarding them.

Rather than clarifying the fact that CEQA really does require, and always has required, attention to the whole environment, including those aspects of it ascribed cultural value by Native Americans, the authors of AB52 implicitly accepted the notion that CEQA did not have such a holistic scope. Accordingly, in order to give tribal cultural places the consideration they deserve, the bill’s authors convinced themselves that they needed to broaden CEQA’s scope by “creating,” in the words of the statute:

“a new category of resources… called ‘tribal cultural resources,’ that considers the tribal cultural values in addition to the scientific and archaeological values when determining impacts and mitigation” (AB52, Section 1(b)(2))

Let’s not quibble about whether a “category” can “consider” or “determine” anything, and let’s not even wonder why the authors seem to take it for granted that “the scientific and archaeological values” are all CEQA required be considered before AB52 burst on the scene.  Let’s examine what comprises this “new category.”

AB52 defines “tribal cultural resources” at Section 21047(a) of the State Public Resources Code as either of the following:

(1)  Sites, features, places, cultural landscapes, sacred places, and objects with cultural value to a California Native American tribe that are either of the following:

(A)    Included or determined to be eligible for inclusion in the California Register of Historical Resources.
(B)    Included in a local register of historical resources as defined in subdivision (k) of Section 5020.1.

(2)  A resource determined by the lead agency, in its discretion and supported by substantial evidence, to be significant pursuant to criteria set forth in subdivision (c) of Section 5024.1.

So to generalize, a “cultural resource” in California apparently has to be a site, “feature,” place, cultural landscape, “sacred place,” or “object. Never mind the semantic overlaps and redundancies (grist for the mills of lawyers); the big problem is that this language effectively precludes from consideration any of the following as cultural resources.

  • Animals (e.g. condors, salmon, whales, wild horses and burros)
  • Plants (e.g. oaks, sage, willow, redwood)
  • Water
  • Air
  • Viewsheds
  • Stories, songs, dances
  • Beliefs and traditions.

Never mind that some of us – including quite a few tribes – have been railing for years about the need to consider such resources more fully. Never mind that there’s a UNESCO convention on “intangible cultural heritage” (meaning stuff like songs, stories, and the like). In California, to be a “cultural resource” something now has to be a piece of real estate, or maybe a chunk of personal property (an “object”). So impacts on cultural significant plants, animals, water, air, viewsheds, stories, and the like no longer need to be considered in CEQA analyses. Nice for the land-development community, not so nice for tribes, to say nothing of others who value the cultural environment.

Adding insult to injury, a “tribal cultural resource” must be included in, or “determined (by someone) to be eligible for” the California Register of Historic Resources, or included in a local register. Are these registers maintained by tribes? Do tribes feel that those who do maintain them are always sensitive to tribal concerns? Is it tribes who “determine” things to be eligible under CEQA? Not that I’ve noticed.

So a “cultural resource” not only has to be a piece of real estate; it has to be a piece of real estate whose cultural value has been recognized by an official body – and not a tribal official body.

Oh yes, another way for a piece of property to be recognized as a “tribal cultural resource” is for a “lead agency” – that is, a state or local government agency – to find that it meets the criteria set forth in Section 5024.1, subsection (c) of the Public Resources Code. Which takes us right around in a circle, since (a) the “lead agency” is not likely to be a tribe, or necessarily very friendly to tribes, and (b) Section 5024.1(c) is California’s gloss on the National Register Criteria (36 CFR 60.4) – and hence all about places. So once again, animals, plants, water, stories, traditions and the like are left out in the cold. And in order for the “lead agency” to determine that a “resource” meets the Section 5024.1(c) criteria, the determination must be based on “substantial evidence” – presumably as defined by the lead agency. Can we guess what sorts of evidence most state agencies and local governments will demand?

AB52 goes on to add several more twists and turns to the Public Resources Code, the gist of which is that lead agencies ought to think about “tribal cultural resources” (as defined) when considering whether chunks of real estate are cultural landscapes or historic resources or archaeological sites of various kinds. These jots and tiddles are necessary because CEQA-mongers have turned the whole law into a convoluted mess of tangled definitions and rules, each of which has to be adjusted any time a change is made.

But tribes have to be consulted, yes? Yes, in theory they do, and that’s a good thing, but –

  • The lead agency need consult a tribe only if the tribe has formally requested that it be consulted; there’s no obligation placed on the agency to check around and find out if anybody’s out there – as there is under federal law;

  • The tribe must respond within 30 days of being contacted, in order to trigger consultation; otherwise presumably it’s tough luck, Charley;

  • The lead agency, “acting in good faith and after reasonable effort” (presumably as determined by itself) can “conclude that mutual agreement cannot be reached,” and bring consultation to an end. Whereupon, apparently, the lead agency’s CEQA compliance can be certified as complete, and away we go.

  • And of course, consultation has to be about those “cultural resources” as defined – i.e. about those pieces of real estate; never mind the animals, plants, viewsheds, etc., and never mind anything not officially recognized as eligible for the California Register.

One truly wonders why it was necessary to buy the right to be consulted in this limited, stilted manner by throwing away a substantial part of what a tribe might want to be consulted about.

Now, consider a case where both CEQA and federal environmental and historic preservation law apply to a case. Say, a project to install wind turbines on a combination of federal and private land. Under the National Environmental Policy Act (NEPA), we might want to consider the impacts of, say, slicing and dicing culturally important songbirds by the turbines’ props, but under CEQA the critters can’t be considered “cultural resources.” Unless maybe they’re non-tribal cultural resources, in which case the lead agency may (if it feels like it) talk with non-tribes about them, but needn’t talk with tribes.

Meanwhile, under Section 106 of the National Historic Preservation Act (NHPA), the responsible federal agency is expected to consult broadly with tribes and other parties about impacts on any places that might be eligible for the National Register of Historic Places. The burden is on the federal agency to find out what’s eligible, how it will be affected, and what to do about it, in consultation with tribes and others. But under CEQA the lead agency (which may or may not be the same as the responsible agency under federal law) need consult only with tribes that have filed requests within the specified time limits, and need only discuss places that are already included in registers or that the lead agency has somehow determined, based on what it defines as “substantial evidence,” to meet California’s equivalents of the National Register Criteria.

What could possibly go wrong?


The bottom line, I think, is that CEQA is a mess, and rather than trying for a comprehensive rework that would make it simpler and more functional, different interest groups keep tinkering with it; AB52 is part of this ignoble tradition. It’s unusually bad because it will work against the very interests it’s designed to serve, and will do damage out of all proportion even to the good it was (I guess) intended to do. It would be nice to undo it, but it’s going to produce a lot of money for lawyers, so I imagine the citizens of California are stuck with it, and California tribes have gotten screwed again. Self-screwed, but screwed nonetheless.

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