A new state law, paired with a draft county law, is poised to create stronger protections for Native American heritage sites – and a new legal hurdle for developers.
On Dec. 10, the Monterey County Planning Commission reviewed a draft ordinance updating the county’s archaeological resource protection standards. It’s driven by two things: the 2010 Monterey County General Plan and the new state law, AB 52, which Gov. Jerry Brown signed Sept. 25.
AB 52 amends the California Environmental Quality Act (CEQA), creating a new category to be considered in environmental planning documents: “tribal cultural resources.”
A 2004 law, SB 18, already required officials to consider potential impacts to archaeological resources. AB 52 broadens the scope to include places of cultural import to Native Americans, like sacred mountains, even without physical artifacts.
“It’s a game changer,” says Terry Robinson, general counsel to the California Native American Heritage Commission (NAHC).
The new law, co-authored by Assemblyman Luis Alejo, D-Watsonville, requires planners to work more closely with local Native American descendents. Before AB 52, local governments were only required to consult with tribes on general plan updates. Under the new law, which takes effect next July, they have to work with any local tribes that ask to be consulted.
That goes for both federally recognized tribes (there are none in Monterey County) and non-recognized tribes on a NAHC list (including seven locally).
“That consultation process could affect our permit process,” County Associate Planner Craig Spencer says.
The draft ordinance calls on the county to establish new policies encouraging developers to avoid impacts to Native American heritage sites. It would tap archaeologists to survey sites for buried remains and artifacts, update the maps of sensitive places (like Native American cemeteries, sacred sites and midden deposits), and require developers to leave artifacts and bones in place if possible.
It would also direct lead agencies to consult with Native American descendents, and create a new Native American Advisory Panel.
Louise Ramirez, chairwoman of the Ohlone-Costanoan Esselen Nation, alleges the county is trying to get the panel seated before AB 52 takes effect. “I’m objecting to the panel,” she says. “I think they’re trying to set a precedent.”
The problem, she says, is that the law lets the advisory panel and planning director decide what happens to Native American artifacts, in contrast with the current system empowering the “most likely descendant” to do so.
After a County Planning Commission hearing, the draft law will head to the Board of Supervisors.