On March 14th, the First District Court of Appeal issued the first appellate decision on the adequacy of a lead agency's consultation with California Native American Tribes regarding a project's effects on tribal cultural resources. The ruling in Koi Nation of Northern California v. City of Clearlake(A169438) helps define the requirement for a Tribe to initiate consultation, the requirements for a lead agency to conduct consultation, and the requirement to document the consultation in the lead agency's environmental review.
Background
The City of Clearlake adopted a mitigated negative declaration (MND) for a proposed hotel and event center, and the extension of a city street to serve the property. The City notified the Koi Nation and held one meeting with the Koi Nation to consult on several projects. The City did not document the consultation. However, the Koi Nation followed up with requests for mitigation measures to avoid or reduce the project's effects on tribal cultural resources. The City did not respond to the Koi Nation's requests for mitigation measures or document any further consultation with the Koi Nation.
After the City's Planning Commission approved an MND for the project, the Koi Nation appealed to the City Council because its requested mitigation measures were not included in the MND. The Koi Nation told the City Council that consultation had not concluded and there was not agreement on mitigating the project's effects on tribal cultural resources based on the MND the Planning Commission approved. The Koi Nation proposed mitigation measures to the City Council that would address its concerns, but the City Council did not adopt them before approving the MND.
The Context of a Tribe's Request for Consultation is Important
This case presented unique circumstances because the Koi Nation has a collaborative agreement with the Habematolel Pomo of Upper Lake (HPUL) for the protection of tribal cultural resources. Under that agreement, HPUL's Tribal Historic Preservation Officer serves as the Koi Nation's contact for tribal consultation under CEQA (Koi Nation's "THPO Designee"). The City sent its formal notice of the project to the Koi Nation's THPO Designee as required by Public Resources Code (PRC) § 21080.3.1(b).
The THPO Designee responded to the City's formal notification to Koi Nation on HPUL letterhead. The City claimed that it thought HPUL requested consultation. Although the Court agreed with the City that "[t]he letter may be less than ideally clear," the Court concluded that the context surrounding the THPO Designee's response was important. That context included the Koi Nation introducing the City Manager to its THPO Designee, the City sending formal notification only to the Koi Nation and not to HPUL, and the THPO Designee's response referring to the City's notice to Koi Nation and including the Koi Nation's government on his email. The Court held that the Koi Nation THPO Designee met the legal requirement to request consultation under PRC § 21080.3.1(b). The Court also held that the City's understanding of who it was consulting with was not the issue. Rather, the issue is whether, in context, the Koi Nation satisfied CEQA's requirement for Koi Nation to submit a written request for consultation to the City.
Documenting a Lead Agency's Tribal Consultation Effort is Critical
In determining whether the City properly conducted consultation with the Koi Nation, the Court examined the MND and the confidential appendix regarding tribal cultural resources that CEQA requires under PRC § 21082.3(c). The City did not document information that the Koi Nation transmitted during the one consultation it held, and did not document any further consultation with the Koi Nation. The City also did not document in the MND or a confidential appendix the mitigation measures that the Koi Nation requested.
The City claimed that it had determined that the Koi Nation's requested mitigation measures were unnecessary. However, the Court found that the City's MND did not document its analysis of the Koi Nation's proposed mitigation measures, whether the City informed the Koi Nation of its determination, and whether the City engaged in consultation with the Koi Nation about its determination.
The City also based its undocumented determination on the cultural resources survey conducted by the City's archaeologist stating that there are no cultural resources on the project site. The Court found that the City did not send the cultural resources survey to the Koi Nation before it adopted the MND and there was no documentation that the City consulted with the Koi Nation about the findings in the survey.
The lack of documentation in the City's MND and confidential appendix led the Court to conclude that the City's consultation was "perfunctory at best." Without documentation showing that the City adequately consulted with the Koi Nation, the Court held that the City could not lawfully conclude consultation.
Lead Agencies Must Seek Agreement During Tribal Consultation
The City asserted that it had received the Koi Nation's requested mitigation measures and determined that they were unnecessary, so additional consultation was not required because an agreement was infeasible. The Court disagreed, stating that nothing in the administrative record showed that agreement was not feasible under PRC § 21080.3.2(b). There was no evidence that the City sought agreement with the Koi Nation, and the City did not provide the Koi Nation with an opportunity to respond to the City's reasons for not accepting the mitigation measures.
As noted above, the City asserted that there were no tribal cultural resources based on the cultural resources survey its archaeologist conducted. The Court held that the City must make a reasonable effort to reach an agreement with the Koi Nation on identifying tribal cultural resources. Because the City did not send the cultural resources survey to the Koi Nation and there was no evidence that the City discussed the identification of tribal cultural resources with the Koi Nation, the City could not decide that an agreement with the Koi Nation was infeasible.
Takeaways for Public Agencies and Project Proponents
The Court vacated the City's MND and any other project approvals. If the project will still be considered, the City must comply with all of CEQA's requirements, including documenting adequate tribal consultation in which the lead agency seeks agreement with consulting California Native American Tribes.
TheKoi Nation of Northern California v. City of Clearlakecase provides lead agencies and project proponents with greater detail about what effort and documentation are required when a California Native American Tribe requests consultation on a project. Consultation is government-to-government between the lead agency and the Tribe (Gov. Code § 65352.4), and the contents of that consultation are confidential (PRC § 21083.2). However, lead agencies must document the consultation, summarize the information in a manner that protects confidentiality within the environmental document and include confidential information in a confidential appendix. Discussions about identifying tribal cultural resources and mitigating project impacts on those resources must be two-way consultations where the lead agency and the Tribe seek agreement in good faith.
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