On March 14, 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 impacts 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 adequate government to government consultation with a Tribe, and the requirement to appropriately document the consultation in the lead agency's environmental document for a project.
Background
The City of Clearlake ("City") 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 project is in a culturally sensitive area. The City notified the Koi Nation of Northern California ("Koi Nation") and held one meeting with the Koi Nation to consult on several projects. The City did not document the consultation. 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 a MND for the project, the Koi Nation appealed to the City Council because its concerns about impacts to tribal cultural resources and requested mitigation measures were not included in the MND. The Koi Nation told the City Council that consultation had not concluded and there was no 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.
Appropriately Documenting a Lead Agency's Tribal Consultation Effort is Key
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, did not inform the Koi Nation of its determination, and did not engage in consultation with the Koi Nation about its determination.
The City based its undocumented determination on a cultural resources survey conducted by the City's archaeologist which stated 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 the Planning Commission approved the project, and there was no documentation that the City consulted with the Koi Nation about the findings in the survey during the consultation process.
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 with the Tribe about Tribal Cultural Resources Identification, Impacts, and Mitigation Measures 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 agreement was infeasible. The City argued that it concluded consultation by releasing the MND to the public. 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 regarding the identification and culturally appropriate mitigation of tribal cultural resources during the government to government consultation process, 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 during consultation with the Koi Nation.
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 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 reasonably decide that agreement with the Koi Nation was infeasible.
Takeaways for Public Agencies, California Native American Tribes, and Project Proponents
As a matter of first impression, this case offers practical guidance for effective implementation of AB 52 (Gatto, 2014). The Court vacated the City's MND and any other project approvals, and awarded the Koi Nation its costs. If the project will still be considered, the Court ruled that 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.
The Koi Nation of Northern California v. City of Clearlake case provides lead agencies, tribal governments, and project proponents with greater detail about what effort and documentation is 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 to those resources must be a two-way consultation where the lead agency and the Tribe seek agreement in good faith.
Appreciation
Kronick attorneys Holly Roberson, William Chisum, and Curtis Vandermolen represented the Koi Nation of Northern California in this case. We wish to thank the Koi Nation Tribal Council Chairman Darin Beltran, Vice Chairman Dino Beltran, Tribal Secretary Judy Fasthorse, and Executive Assistant Rob Morgan, the California Department of Justice which provided an amicus brief in the Superior Court and in the Appellate Court in support of the Koi Nation, including Attorney General Rob Bonta, Merri Lopez-Keizer, Executive Director of the Center for Indigenous Law & Justice at UC Berkeley School of Law and formerly the Director of the Office of Native American Affairs at the California Department of Justice, Monica Heger, Deputy Attorney General, Yuting (Yvonne) Chi, Deputy Secretary for Environmental Justice and Equity at the California Environmental Protection Agency and formerly Deputy Attorney General at the California Department of Justice, the Habematolel Pomo of Upper Lake which provided an amicus brief in the Appellate Court, including Chairperson Danielle Corelli, the Tribal Council, former Chairperson Sherry Treppa, Tribal Historic Preservation Officer and Koi Nation Tribal Historic Preservation Officer Designee Robert Geary, author of the Habematolel Pomo of Upper Lake's amicus brief and author of AB 52 State Assemblyman Mike Gatto (Los Angeles, ret.), and Senior Paralegal Choquette Marrow.
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