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Sacred sites bill passes California Legislature Sits on governor's desk

by: James May / Indian Country Today

indiancountry.com/?1032788321

SACRAMENTO, Calif. -- A bill passed by the California legislature on Sept. 1 to protect American Indian sacred sites within 20 miles of federally recognized Indian lands has sparked a large controversy as it awaits Gov. Gray Davis' signature or veto.

The proposed legislation, known as Senate Bill (SB) 1828, would amend the California Environmental Quality Act (CEQUA) to give the existing California Native American Heritage Commission veto rights over any development on lands tribes consider sacred within 20 miles of tribal lands.

SB 1828 pits tribes and political office holders from both sides of the aisle against a group of assorted big business groups and their political allies, again from both sides of the aisles.

The big business groups argue that if passed, the bill could cost the state millions of dollars in lawsuits and cripple development and thus the already weakened economy throughout the state.

The tribes argue that the proposed legislation merely corrects two centuries of imbalance where tribes have stood by helplessly while developers have created missions, strip malls and fast food joints on land considered spiritually significant to California tribes.

The curious thing about the political power play is the creation of unlikely bedfellows in support of the bill. The bill's author, Sen. John Burton, D-San Francisco, represents one of the most liberal cities in the nation and has a voting record consistent with his constituents views.

However, Senators Jim Battin, R-La Quinta, and Bill Leonard, R-San Bernardino, both of whom represent some of the most conservatives areas in the country, are finding themselves in the unlikely position of lending support to Burton on this bill.

Batttin and Leonard, normally staunch property rights advocates, also have several of the richer Southern California gaming tribes in their districts; both men have received substantial campaign contributions from tribes with large scale gaming operations.

Leonard, who is termed out of office, is currently seeking a seat on the statewide Board of Equalization. According to the California Secretary of State1s office, Leonard has received approximately one quarter of his nearly $150,000 in campaign contributions from tribal interests.

However, both men have also received similar contributions from developers. Asked if this made his decision on the matter tough, Leonard insists that his decisions are not governed by campaign contributions.

Leonard frames the debate over the legislation as a religious and not economic issue; his support stems from what he perceives as an attack on religious freedom.

Refuting opponents charges that the legislation would be economically damaging, Leonard points out that only 300 such sites are currently identified by the Native American Heritage Commission; at an average of a quarter acre apiece, only some 75 total acres would be affected statewide.

Furthermore, Leonard feels the bill could actually reduce the amount of red tape for developers as tribes must be consulted when the development is in its planning stages, so developers could adjust plans after tribal input and before ground is broken.

"What people don't realize is that a development can already be stopped over lawsuits, and this reduces the chances for lawsuits since there would be tribal input from the beginning," says Leonard.

A recent Sacramento Bee editorial claims that since some tribes find entire mountain ranges to be sacred, a loophole could curtail development over a wide area.

Leonard thinks this is "unfounded" since the bill only covers specific areas of actual worship. He also refutes charges that the legislation could lead to a plethora of frivolous claims by adding that tribes would have to undergo an expensive process of hiring archeologists and historians to back their claims.

Calls to the California League of Cities and state Sen. Steve Peace, D-El Cajon, leading opponents of SB 1828, were not returned by press time.

Beyond the political power play, however, lie the tribes themselves. Two of the most high profile players in the battle are the Pechanga Band of Luiseno Mission Indians and the Quechan Tribe who reside in southeastern California.

The Pechangas have been fighting with San Diego Gas and Electric (SDG&E) over power lines that will come within a few hundred feet of the Great Oak, a majestic oak tree that is arguably the oldest in the state.

The Great Oak, considered spiritually significant to the tribe, sits on land recently purchased to connect two formerly non-contiguous parcels of tribal land. Since the land has yet to be taken into trust, the tribe has had little recourse against SDG&E.

The Pechangas have also fought several years of losing battles against the city of Temecula, which is slowly filling up the Temecula Valley and inching closer to Pechanga almost daily.

The tribe has fought several losing battles against the city and developers, including failed attempts to save a 6,000-year-old village site and a small grove of cottonwood trees along Temecula Creek.

Tribal chairman Mark Macarro, says that the point of the bill is not to stall all development, but to make the process of development more "responsible" and "deliberate" particularly when it comes to dealing with tribes.

"It (SB 1828) interjects into the environmental process a formal voice for tribes where tribes are currently only a footnote, and as such, not in a position to advocate protection of sites sacred to their people" says Macarro.

Quechan has recently been in the news for its fight against a proposed gold mining development by Reno, Nevada-based Glamis Gold, in the Indian Pass area, which lies outside of their reservation.

Tribal attorney Courtney Coyle points out that the sacred site protection is only one of two parts of SB 1828. The other requirement would be for mining companies to backfill projects that are considered complete.

Coyle said that this portion of the bill alone would kill the Glamis project as it would add $80 million to $100 million to costs for the Indian Pass project; the tribe wouldn't even have to invoke the newfound power in the first part of the bill.

"It's only the mining companies that are opposing this portion of the bill, other than that, the second portion of the bill is non-controversial."

Hillary McLean, spokeswoman for Gov. Davis, said he is unsure whether he will sign the bill or not. The governor has 30 days in which to do so.

~~~~~~~~~~~~~~~~~~~~~~~~~~~

COMMENT (was included in posting to newsgroups, not amended by IBSG):

The above article pertains to the original bill as submitted. Subsequent amendments removed the power to veto and replaced it with a mandatory consulation process.

It is the amended version of this bill placed on the governor's desk for signature.

RELATED LINK: >leginfo.ca.gov/pub/bill/sen/sb_1801-1850/sb_1828_bill_20020829_enrolled.html

BILL NUMBER: SB 1828 ENROLLED

BILL TEXT

PASSED THE SENATE AUGUST 29, 2002
PASSED THE ASSEMBLY AUGUST 28, 2002
AMENDED IN ASSEMBLY AUGUST 26, 2002
AMENDED IN ASSEMBLY AUGUST 8, 2002
AMENDED IN ASSEMBLY JULY 2, 2002
AMENDED IN ASSEMBLY JUNE 20, 2002
AMENDED IN SENATE MAY 28, 2002
AMENDED IN SENATE MAY 21, 2002
AMENDED IN SENATE MAY 1, 2002
AMENDED IN SENATE APRIL 1, 2002

INTRODUCED BY Senators Burton and Chesbro
(Principal coauthor: Assembly Member Cardoza)
(Coauthors: Assembly Members Alquist, Chu, Pavley, and Strom-Martin)

FEBRUARY 22, 2002

leginfo.ca.gov/pub/bill/sen/sb_1801-1850/sb_1828_bill_20020829_enro lled.html

An act to amend Sections 21083 and 21151.7 of, and to add Sections 2773.3, 2773.5, 21066.5, 21067.5, and 21097 to, the Public Resources Code, relating to historical resources.

LEGISLATIVE COUNSEL'S DIGEST

SB 1828, Burton. Mining: historical resources: affected Native American sacred sites: California Environmental Quality Act.

(1) The existing Surface Mining and Reclamation Act of 1975 prohibits a person from conducting surface mining operations without obtaining a permit from the lead agency for the operation, and submitting and receiving approval for a reclamation plan and financial assurances from that lead agency.

This bill would prohibit a lead agency from approving a reclamation plan and financial assurances for a surface mining operation for gold, silver, copper, or other metallic minerals that is located on, or within one mile of, any Native American sacred site, as defined, and in an area of special concern, as defined, unless the reclamation plan requires that all excavation be backfilled and graded to achieve the approximate original contours of the mined lands prior to mining, and the financial assurances are sufficient in amount to provide for that backfilling and grading.

By imposing additional duties on lead agencies, this bill would impose a state-mandated local program.

The bill would exempt from those provisions any surface mining operation that receives final approval of a reclamation plan and financial assurances from a lead agency by September 1, 2002.

(2) Existing law provides for the preservation, restoration, and protection of historical sites in the state. The existing California Environmental Quality Act (CEQA) requires the lead agency, as defined, to prepare an environmental impact report (EIR) on a project, as defined, that it intends to carry out or approve and that it finds may have a significant effect on the environment, as defined, or to prepare a negative declaration if it finds that the project will not have that effect. CEQA requires the Office of Planning and Research to prepare and develop proposed guidelines for the implementation of the act by public agencies, including objectives and criteria for the orderly evaluation of projects and the preparation of EIR's and negative declarations. Existing law also requires a public agency that receives an application for a development project, to determine, within a specified period of time, whether that application is complete.

This bill would specify that the criteria developed by the office shall require a finding that a project may have a significant effect on the environment if the proposed project may have a significant effect on a Native American sacred site, as defined. By imposing this requirement on local agencies that are lead agencies, the bill would impose a state-mandated local program.

The bill would require a lead agency to notify and provide to the tribe a copy of the lead agency's initial study or notice of preparation for any proposed project that is within 20 miles of the exterior boundary of a Native American reservation or rancheria. The bill would also require a copy of the notice to be sent to the Native American Heritage Commission. The bill would also require a lead agency, if a federally recognized tribe notifies the lead agency that a project may adversely affect a sacred site prior to the commencement of the public review period, to consult with the affected tribe, the project applicant, and if the affected tribe deems it necessary, the commission, to seek mutually agreeable methods of avoiding or resolving the potential adverse effects. The bill would authorize the parties to propose mitigation measures capable of avoiding or substantially lessening the potential adverse effects, and would require any binding agreement reached during the consultation meetings to be incorporated as mitigation measures in the final EIR or negative declaration. The bill would require the EIR or negative declaration prepared by the lead agency to include a determination of whether the proposed project has a significant impact on the identified sacred site, and whether the proposed mitigation measures would reduce that effect. The bill would prohibit the lead agency from including any information in the EIR that is submitted by an affected tribe regarding a sacred site and would prohibit the lead agency or any other public agency from otherwise disclosing that information to the public without the consent of the tribe that provided the information. The bill would require that information to be published in a confidential appendix to the EIR or negative declaration. The bill would authorize an affected tribe to submit a comment letter to the lead agency accepting or rejecting the conclusions of the draft EIR or negative declaration regarding the impact on a sacred site, and would require the lead agency to provide a written response to the affected tribe and the Native American Heritage Commission. The bill would authorize the lead agency and any responsible agency to issue a permit for a project with a significant impact on a sacred site only if the mitigation measures agreed to are incorporated into the final EIR or negative declaration, the affected tribe accepts the proposed mitigation measures or fails to comment on those measures, the lead agency makes specified findings regarding the mitigation or avoidance of impacts on that sacred site, or the lead agency determines that there is no legal or feasible way to accomplish the project purpose without causing a significant effect upon the sacred site, that all feasible mitigation or avoidance measures have been incorporated, and there is an overriding environmental, public health, or safety reason that the project should be approved.......etc

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