In Koi Nation of Northern California v. City of Clearlake, the Lake County Superior Court (in a judgment dated December 22, 2023) upheld the City of Clearlake’s (“City”) determination, under the substantial evidence standard, that resources not listed on a historic register failed to qualify as tribal cultural resources (“TCR”). The Court also held that the Koi Nation of Northern California’s (“Koi” or “Petitioner”) failure to timely request consultation under AB 52 barred Petitioner’s assertion that consultation was inadequate. Downey Brand attorneys Andrew Skanchy and Dustin Peterson represented the City in the case.

In January 2022, the City initiated informal communications with the Koi regarding a project to extend a public roadway and construct a 75-room hotel on a highly disturbed former airstrip (“Project”). The early communications were intended to request information from the Koi regarding potential concerns the tribe may have regarding the Project. The communications helped inform a subsequent Cultural Report, authored by an expert consultant, that concluded the Project would have no cultural resource effects.

In February 2022, consistent with the California Environmental Quality Act (“CEQA”), the City sent a formal AB 52 Notice of the Project to the Koi and another tribe, Habematolel Pomo of Upper Lake (“Pomo”). The AB 52 Notice informed the tribes of the opportunity to request (within 30 days) formal consultation with the City regarding the Project. The sole consultation request came from the Pomo. And the City held a formal consultation with the Pomo.

Based on the Project’s lack of significant environmental impacts, the City prepared a mitigated negative declaration (“MND”). The City’s Planning Commission adopted the MND and approved the Project, but the Koi appealed the Project to the City Council. Before and at the City Council hearing, the Koi submitted materials and provided testimony asserting that the Project site contained TCR and that significant impacts would occur unless the City hired monitors from the Koi to observe ground-disturbing construction work. The Koi also asserted that the City had failed to adequately consult with them under AB 52.

Regarding AB 52 consultation, the City Council found no fault due to the Koi’s failure to timely request consultation. Regarding TCR, the City Council considered the evidence and testimony provided by the Koi. The City also considered the expert-authored Cultural Report that had found the Project site had no TCR listed on the California Register of Historical Resources (“California Register”) or determined to be eligible for inclusion in the California Register or included in a local register of historical resources. Thus, using its statutorily-granted discretion under Public Resources Code section 21074(a)(2), the City determined that there were no TCR on the Project site. As a result, the City deemed the hiring of Koi construction monitors to be unwarranted. Nevertheless, out of an abundance of caution and sensitivity, the City conditioned the Project to include numerous measures to ensure protection of TCR in the unlikely event of discovery, including a measure requiring all construction workers on the Project to undergo cultural sensitivity training from Koi representatives before ground-breaking activities on the Project site commenced.

The City Council denied the Koi’s appeal, adopted the MND, and approved the Project. The Koi then filed a CEQA lawsuit making the same allegations as made to the City Council. During the course of the litigation, the California Attorney General also submitted an amicus brief in support of the Koi.

AB 52 Consultation

AB 52, an amendment to CEQA, sets strict procedural steps and timelines for CEQA lead agencies and California Native American tribes to begin the formal tribal consultation process. Critical to this particular case, after a lead agency sends a formal written notification of a project to a tribe, the tribe “has 30 days to request consultation.” (Pub. Resources Code, § 21080.3.1(d).) Notably, to trigger consultation, a tribe must “respond[]” to the lead agency’s formal notification, and the response must be “in writing.” (Pub. Resources Code, § 21080.3.1(b).)

The Koi argued that they had entered into an “inter-governmental” agreement with the Pomo to assist in addressing the need to protect their ancestors in the region and share a consultant, and that this agreement was sufficient to ensure that the Pomo’s request for consultation also triggered consultation with the Koi. But the Court rejected this argument, noting that the sole consultation request letter was on Pomo letterhead, requested consultation with the Pomo, and stated that the City should contact Pomo’s Tribal Historic Preservation Officer. There was no mention of the Koi in the consultation request. Thus, the City was under no obligation to consult with the Koi. Even so, the Court noted that the City adequately fulfilled its consultation requirements with the Pomo’s representative, whether he was a joint representative or not.

TCR

Although an MND is reviewed under the fair argument standard, a threshold question when dealing with certain resources, such as historical resources (see Friends of Willow Glen Trestle v. City of San Jose (2016) 2 Cal.App.5th 457, 42), is whether such resources even exist on a project site. Although no appellate court has addressed this two-step approach in the context of TCR, the legislative history of AB 52, and the statutory language itself, makes clear that this threshold question also applies to TCR.

Thus, despite the Koi’s arguments that they had established a fair argument that the Project would have a potentially significant impact on TCR, the Court held that the initial threshold question must first be answered: i.e., whether TCR existed on the Project site.

Under the statute, the determination whether there are TCR that may be affected by a project—i.e., sites, features, places, cultural landscapes, sacred places, and objects with cultural value to a California Native American Tribe—fall into two categories: (1) mandatory TCR or (2) discretionary TCR.

First, mandatory TCR are those listed or determined to be eligible for inclusion in the California Register or included in a local register of historical resources. (Pub. Resources Code, § 21074(a)(1).)

Second, absent mandatory TCR, the determination of whether a site’s resources are TCR is a discretionary decision made by the CEQA lead agency (here, the City). As defined in the statute: TCR is a “resource determined by the lead agency, in its discretion and supported by substantial evidence, to be significant pursuant to the criteria set forth in subdivision (c) of [Public Resources Code] Section 5024.1.” (Public Resources Code § 21074(a)(2), italics added.)

Here, because there were no mandatory TCR on the Project site, the Court concluded that the City, after considering the Koi’s input, had discretion to make a determination, so long as it was supported by substantial evidence. And, based on the evidence in the record, including the expert Cultural Report, the City’s determination was supported by substantial evidence. Thus, the City’s determination that the Project would not have significant impacts on TCR, and the use of an MND, was upheld.

Key Points

• A lead agency is not required to consult with a tribe under AB 52 if that tribe fails to timely request consultation.

• If a TCR is not listed or eligible to be listed on the California Register or a local register, lead agencies, after considering the significance of the resource to a tribe, have discretion to determine whether a resource is TCR, so long as the determination is supported by substantial evidence.

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