Legal Alerts

Tribal Consultation Under the California Environmental Quality Act: Mandatory Means Mandatory

Temecula, Calif. (March 18, 2025) - In a case¹ that looks at the requirements of California Assembly Bill 52 (Gatto) (“AB52”), the California First District Court of Appeal ruled that consultation on issues concerning tribal cultural resources is fundamental to the validity of a project’s environmental review. The Court found that the City of Clearlake failed in its duty to meaningfully consult with the Koi Nation of Northern California on issues concerning the impacts of a proposed hotel project on tribal cultural resources.

Approved in 2014, AB52 introduced the concept of tribal consultation to the California Environmental Quality Act (“CEQA”) review process for all development projects. Previously, under Senate Bill 18, consultation with Native American tribes was limited to certain projects like those involving either a General Plan or Specific Plan amendment. The Senate Bill 18 consultation process is separate from, and not part of, the project’s CEQA process.

With AB 52, the California legislature determined that a project’s CEQA process must include meaningful consultation with Native American tribes on the issues of tribal cultural resources and the potential for a project to negatively impact those resources. The AB52 process recognizes that Native American tribes are the experts on their own tribal cultural resources and therefore tribes that are traditionally and culturally affiliated with the area of a proposed development project must be consulted as part of the project’s evaluation pursuant to CEQA.

In reviewing the facts and background of the project at issue, the Court determined that the single tribal consultation meeting held on the project did not “permit [the Court] to conclude that the consultation met the statutory requirement of a ‘process of seeking, discussing and considering carefully the views of others’ and ‘where feasible, seeking agreement.’” Opinion, page 26. As part of the consultation process, the Koi Nation provided the City with recommendations for treatment protocols and mitigation measures but the record for the project’s CEQA document does not include any discussion of those protocols and measures or if they were included in the final CEQA document. In addition, the City made the determination that consultation under AB52 had concluded without justifying its decision.

The Court determined that a single meeting and a string of email correspondence constituted perfunctory, not meaningful, consultation. The project’s administrative record lacks any information or justification on why the City elected to reject certain mitigation measures suggested by the Koi Nation, and the City failed to justify its conclusion (which is directly opposite to the information provided by the Koi Nation) that there is no evidence the project site contains tribal cultural resources. The Court further determined that the project record lacks information to suggest that an agreement between the City and the Koi Nation, with respect to tribal cultural resources and mitigation measures, was infeasible or that the City even made an effort to seek such an agreement. Finally, the Court found that the City’s reliance on the conclusions of an archaeological report, without consideration of the significance of potential tribal cultural resources to the Koi Nation, is misplaced. As stated, “[the archaeological] report did not obviate the need for the City to consider the significance of resources to the Koi Nation in identifying tribal cultural resources. In the absence of the City taking the necessary steps to identify tribal cultural resources, its determination that the project will have no significant effect on tribal cultural resources carries no weight.” Opinion, page 30.

So what are the takeaways from this landmark case? First and foremost, make a complete record, not only of all the correspondence and meetings concerning tribal cultural resources, but also of all the information sharing sessions. Secondly, consultation is more than a meeting. How much more remains an open question but this Court’s opinion seems to support a conclusion that consultation must involve the truly “meaningful and timely process of seeking, discussing and considering carefully the views of others, in a manner that is cognizant of all parties’ cultural values and, where feasible, seeking agreement.” California Government Code §65352.4 (Court italicized emphasis included). Thirdly, archaeology alone is insufficient: In order to be complete, the AB52 process must include an acknowledgment and discussion of relevant traditional tribal knowledge and information of the existence and importance of tribal cultural resources.

¹Koi Nation of Northern California v. City of Clearlake (A169438, 1st District Court of Appeal, March 14, 2025)

For more information about the implications of this decision, contact the author of this alert. Visit our Environment, Land & Natural Resources Law Practice and Real Estate & Land Use Practice pages to learn more about our capabilities in this area. 

Author:

Kelly Alhadeff-Black, Partner

Related Practices

• Environment, Land, & Natural Resources Law
• Real Estate & Land Use

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