Assembly Bill 52 (AB 52) requires public agencies to consult with tribes during the California Environmental Quality Act (CEQA) process. On March 14, 2025, in Koi Nation of Northern California v. City of Clearlake, the First District Court of Appeal filed the first published opinion addressing AB 52, concluding the City of Clearlake (City) failed to comply with CEQA’s tribal consultation requirements. Consequently, the Court set aside the City’s approval of a four-story hotel and road extension and the accompanying mitigated negative declaration (MND).
The opinion highlights the need for CEQA lead agencies to (1) pay careful attention to the affiliation of tribal representatives speaking on behalf of a tribe, including keeping track of intergovernmental agreements between tribes, if applicable; and (2) clearly document in the administrative record all efforts to consult and “seek agreement” on mitigation measures proposed by a tribe before deeming consultation complete.
City’s Coordination and Consultation Efforts
In January 2022, pursuant to City Guidelines, the City initiated informal “Native American coordination” by informing Koi Nation Tribal Councilmember Mr. Dino Beltran of the project and requesting information about the cultural significance of the project area to Koi Nation. Mr. Beltran identified a Koi Nation ancestor’s property and residence in the project area. At Mr. Beltran’s request, the City determined that the ancestor’s property was located 0.2 miles south of the project, and promised Koi Nation it would “proceed with caution” given this proximity.
In February 2022, Mr. Beltran informed the City Manager of the Intergovernmental Agreement between Koi Nation and another tribe, the Habematolel Pomo of Upper Lake, to assist Koi Nation to “protect the ancestors in the Southeastern Clearlake region.” Mr. Beltran identified Mr. Robert Geary, Tribal Historic Preservation Officer for the Habematolel Pomo of Upper Lake, as Koi Nation’s representative for AB 52 consultation. The City then sent Mr. Geary formal notification of Koi Nation’s opportunity to consult on the project pursuant to AB 52. Mr. Geary timely responded, requesting formal consultation and asking the City for detailed project information and the latest cultural resources study. Mr. Geary’s response, sent on Habematolel Pomo Cultural Resources letterhead, did not explicitly state it was made on behalf of Koi Nation.
A consultation meeting took place soon thereafter, at which, Mr. Geary stated, he provided the City with a treatment protocol to be used if resources were found and a monitoring agreement for cultural monitors during project development. He was told adoption of these measures was contingent on City Manager approval.
Following the meeting, Mr. Geary sent a letter stating, “the Tribe has concerns that the project could impact known cultural resources.” He requested the City (1) retain cultural monitors during development and all ground disturbance activities pursuant to a monitoring agreement; (2) incorporate Habematolel Pomo of Upper Lake’s Treatment Protocol as a mitigation measure; and (3) provide cultural sensitivity training for pre-project personnel on the first day of construction. The City did not respond to either Mr. Geary’s letter or his subsequent request for an update on the monitoring agreements, and did not communicate further with Mr. Geary or Koi Nation until the Notice of Intent to adopt the MND was circulated seven months later.
The Draft MND stated that no tribal cultural resources had been discovered at the project site. It did identify mitigation measures to reduce impacts to “unknown tribal cultural resources” that had “the potential to be uncovered during ground-disturbing activities.” These measures included only one of the three measures requested by Mr. Geary on behalf of Koi Nation. The MND recognized Koi Nation’s ancestral ties to the project area and summarized the initial informal coordination with Koi Nation. The MND stated the City sent AB 52 letters to “local tribes” and that the “Habem[a]to[l]el tribe requested consultation which occurred in March 2022.”
Koi Nation did not comment on the Draft MND during the public review period.
Following approval of the project and adoption of the MND by the City Planning Commission, Koi Nation appealed to the City Council. Members of Koi Nation and its attorneys addressed the City Council and asked the City to adopt appropriate mitigation and finish AB 52 consultation. The City Council denied the appeal.
Trial and Appellate Court Proceedings
Koi Nation filed a petition for writ of mandate, challenging the approval. The trial court denied Koi Nation’s petition, finding “nothing in the record constituted a written request from Koi Nation to invoke the right to consultation on the project” under AB 52 and that Koi Nation could not challenge a consultation that did occur. Koi Nation appealed. The Attorney General filed amicus curiae briefs in support of the Koi Nation. The League of California Cities and California State Association of Counties filed an amicus brief in support of the City.
The Court of Appeal sided with Koi Nation. The Court was unpersuaded by the City’s argument that “no reasonable person would agree” that Mr. Geary’s letter responding to the City’s formal notification of the opportunity for Koi Nation to consult on the project constituted a written request by Koi Nation. Nor did the Court agree with the City that it “should not be required to keep track of intergovernmental agreements or guess as to ‘who a representative is speaking for when receiving a consultation request.’” In the Court’s view, the record showed Mr. Geary’s response complied with CEQA’s requirement “that a tribe’s response be in writing, be timely, and request consultation.” Though perhaps “less than ideally clear, [] in context it suffices.”
Next, the Court of Appeal determined the “sparse” record lacked sufficient evidence to conclude that the consultation met statutory requirements for meaningful consultation, which must include “seeking, discussing, and considering carefully the views of others” and “where feasible, seeking agreement.” (See Govt. Code, § 65352.4.) Nor did the record include evidence to support the City’s claims that consultation could “permissibly cease” under Public Resources Code section 21080.3.2, subdivision (b). The court found the consultation “perfunctory at best” and concluded that “[i]n the absence of any discussion about the City’s reasoning or conclusions, there was no real opportunity for Koi Nation and the City to seek mutual agreement as the statute contemplates.”
Key Takeaways:
- An agency’s failure to comply with the consultation requirement under AB 52 constitutes a prejudicial abuse of discretion requiring setting aside the agency’s environmental review and project approvals.
- Consultation must be “meaningful.” To accomplish this, there must be discussion between the agency and the tribe regarding the agency’s reasoning for granting or denying any requested mitigation measures. The agency should inform the tribe of its decision directly, and not merely publish it in the CEQA document. If agreement is infeasible due to an impasse between the agency and tribe, the agency should document that impasse in the record.
- The record should reflect the agency’s consideration of the consulting tribes’ recommendations regarding tribal cultural resources, and their value and significance to the tribes. The record should demonstrate the agency made a “reasonable effort” to reach a mutual agreement with a consulting tribe before determining consultation has concluded. A tribe’s submission of information to an agency outside the consultation process does not relieve an agency of its responsibility to conduct consultation under AB 52, “or the need for the agency to show whether or how the consultation affected the agency’s decision.”
- When tribal consultation has concluded, an agency should provide notice to the consulting tribe(s) indicating it considers consultation “concluded” pursuant to PRC Section 21080.3.2(b) and outlining the agency’s reasoning.
