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Sacred sites bill passes California Legislature Sits on governor's desk
by: James May / Indian Country Today
http://www.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:
>http://www.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
http://www.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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