In a published opinion filed March 14, 2025, the First District Court of Appeal (Div. 2) reversed the trial court’s judgment upholding a Mitigated Negative Declaration (MND) for a four-story, 75-room hotel/meeting hall/parking lot project on a 2.8-acre parcel in the City of Clearlake (“City”), due to the City’s failure to lawfully conduct a tribal cultural resources consultation with plaintiff and appellant Koi Nation of Northern California as required by AB 52. Koi Nation of Northern California v. City of Clearlake (2025) ___ Cal.App.5th ___.
The Project and Project Site
The project, known as the “Airport Hotel and 18th Avenue Extension Project,” would in addition to the hotel develop a 3.47-acre strip south of the hotel parcel into an east-west road extending 18th Avenue from its current terminus at SR 53 westward to Old Highway 53; a driveway on the hotel parcel would connect it to the 18th Avenue extension. Most of the project site was highly disturbed by 1970’s bulldozing and grading, with deep cuts and fills, to construct an airstrip now used as a construction staging and stockpile storage area. Some of the land is relatively undisturbed woodland and grassland.
The City’s Initial “Coordination” With Koi Nation And That Tribe’s Expressed Concerns
The City’s archaeological and historical resources consultant, Dr. Gregory White of Sub-Terra Heritage Resource Investigations, initiated Native American “coordination” on the project. He contacted a member of the Koi Nation Tribal Council, Dino Beltran, to inform him of the project and request information from the Koi Nation of Northern California (Koi Nation) – a tribe affiliated with the project area – about the area’s cultural significance and any project concerns. Beltran responded that a Koi Nation ancestor had held property and lived in the area and asked White to research the location of the residence, which White determined was 0.2 miles south of the project area. White reported his research results to Beltran and the Koi Nation Tribal Council, and presented project information in a video conference with Koi Nation officers and Cultural Monitor Yolanda Tovar. At that conference, the Koi Nation representatives told White “the [p]roject should proceed with caution” and asked that he advise the City planning team of the property’s location and significance. After White presented his findings and Koi Nation’s concerns in a video conference with City Manager Alan Flores, Flores confirmed “the City would proceed with all due caution” and continue coordinating with the Koi Nation Tribal Council on all project work.
Shortly thereafter, Beltran requested a meeting to introduce Flora to Robert Geary, the Tribal Historic Preservation Officer for the Habematolel Pomo of Upper Lake (HPUL). The HPUL is another federally recognized tribe that, like Koi Nation, descended from the Pomo people, and which has an Intergovernmental Agreement with Koi Nation to protect their common ancestors in the Southeastern Clearlake region. At the ensuing February 15, 2022 meeting, Koi Nation identified Geary as its representative for purposes of CEQA’s AB 52 tribal cultural resources consultation process.
Relevant Legal Background: SB 52’s Tribal Cultural
Resources Provisions and Consultation Procedures
Among other things, SB 52, enacted in 2014, provides that a project “may have a significant effect on the environment” for CEQA purposes when it has “an effect that may cause a substantial adverse change in the significance of a tribal cultural resource[.]” (Pub. Resources Code, § 21084.2.) “Tribal cultural resources” are categorized as “mandatory” when they are “[s]ites, features, places, cultural landscapes, sacred places, and objects with a cultural value to a California Native American tribe that are” (A) included in or determined eligible for the California Register of Historical Resources, or (B) included in a local register of historical resources. (Pub. Resources Code, § 21074(a)(1).) A “discretionary” tribal cultural resource is one that is “determined by the lead agency, in its discretion and supported by substantial evidence, to be significant pursuant to [specified] criteria[,]” with required consideration of the resource’s significance to a California Native American tribe. (Id., § 21074(a)(2).)
AB 52’s notice and consultation process is designed to facilitate agencies’ consideration of tribal “expertise concerning their tribal cultural resources.” (Pub. Resources Code, § 21080.3.1(a).) Prior to releasing an MND, an agency must formally notify the designated contact or representative of any tribe traditionally and culturally affiliated with the project’s geographic area if the tribe has submitted a written request for notice of such projects; if the tribe responds to the notification in writing within 30 days and requests consultation, the agency must begin consultation within 30 days of receiving that request. (Id., § 21080.3.1(b), (d), (e).)
In statutory provisions that are key to the Court of Appeal’s decision in this case, “consultation” is defined as “the 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” and “shall be conducted in a way that is mutually respectful of each party’s sovereignty.” (Pub. Resources Code, § 21080.3.1(b), referring to Gov. Code, § 65352.4.) While “CEQA does not prescribe topics for consultation,” if the tribe requests consultation on project alternatives, recommended mitigation measures, or significant effects, the consultation must include those topics (Pub. Resources Code, § 21080.3.2(a)), and it may include discussion on the type of CEQA review, the significance of tribal cultural resources and the project’s impacts thereon, and, if necessary, tribe-recommended alternatives or preservation or mitigation measures; further, either party may propose mitigation measures for discussion in the consultation. (Ibid.) AB 52 also provides for protection of the confidentiality of information provided by tribes such that it is not disclosed to the public without prior tribal consent. (Id., § 21082.3(c)(1), (4), (f).)
Consultation is “considered concluded” when the parties reach agreement on mitigation or avoidance measures, or whether a significant effect on tribal cultural resources exists, or when a “[a] party, acting in good faith and after reasonable effort, concludes that mutual agreement cannot be reached.” (§ 21080.3.2(b).) An agency can certify an EIR or adopt an MND for a project with a significant impact on an identified tribal cultural resource only if (1) the required consultation occurred and concluded, (2) the tribe requested but failed to engage in consultation, or (3) the tribe failed to timely request consultation within 30 days of the agency’s formal notification. (§ 21080.3.2(d).)
The City’s Formal Consultation With Koi Nation, Related CEQA Process and Administrative Appeal Hearing, and Trial Court Litigation
On February 26, 2022, the City emailed Koi Nation formal notification under Public Resources Code section 21080.3.1 of the opportunity to consult on the project; the email was sent to Geary at the HPUL email address with two attachments, including a photo map of the project location and a “Request for Review” form which, under its “Tribal Organizations” heading, checked only the box for “Koi Nation of NCA.” The notification requested comments or a written consultation request within 30 days, and Geary responded by February 23, 2022 letter stating the project was within HPUL’s aboriginal territories and requesting formal consultation, which occurred on March 9, 2022. On that date Geary also sent a letter to the City expressing Koi Nation’s concerns that the project could impact known cultural resources and requesting, inter alia, cultural monitors during development and all ground disturbance activities, incorporation of HPUL’s Treatment Protocol into the project’s mitigation measures, and contacting Geary to set up a monitoring agreement. Geary sent a follow-up email to the City on March 23, attaching a copy of the “Intergovernmental Agreement Between Habematolel and Koi” and requesting an update on the monitor agreements previously requested. Apart from non-consultation-related tribal monitoring of “some boring” on part of the 18th Avenue extension strip, conducted in March 2022, there was no further communication between the City and Geary (or anyone else affiliated with Koi Nation or HPUL) until the City’s circulation of its October 2022 notice of intent to adopt an MND for the project.
The MND recognized Koi Nation’s ancestral ties to the project area and summarized Dr. White’s coordination with Koi Nation; acknowledged HPUL’s (but not Koi Nation’s) request for consultation, and that consultation occurred in March 2022; and concluded that with incorporation of mitigation measures there would be no significant effect on tribal cultural resources, while acknowledging that unknown tribal cultural resources could be unearthed during project ground-disturbing activities. The mitigation measures included in the MND included three recommended by Dr. White, plus cultural sensitivity training for contractors involved in ground-disturbing activities. Koi Nation did not comment on the MND during the 30-day public comment period, but appealed the Planning Commission’s decision approving the MND and project to the City Council.
At the City Council appeal hearing, Koi Nation’s representative Geary emphasized the distinction between archaeological and tribal cultural resources and monitoring, reiterated concerns that tribal cultural resources were located in very close proximity to the project site, and again raised the issues of the proposed treatment protocol and monitoring agreement requested by Koi Nation in the consultation, and as to which the City had never responded. Koi Nation’s attorneys also addressed the Council, proposing the adoption of mitigation measures that would allow the tribe “to stand down” and urging the Council to “finish consultation and move forward.” After further back-and-forth and public comment, the Council denied Koi Nation’s appeal, but modified one mitigation measure to provide that, if subsurface remains were uncovered during construction, the project owner would be required to use a qualified cultural resources consultant and coordinate with a Koi Nation tribal resources expert to identify and investigate them.
The trial court denied Koi Nation’s writ petition challenging the City’s MND and project approval, concluding (based on an apparent misunderstanding of the agency relationship between HPUL and Koi Nation) that the tribe had never made a formal consultation request at all and that the MND was adequate. Koi Nation timely appealed, and the Court of Appeal reversed.
The Court of Appeal’s Opinion
The Court of Appeal held that the record supported Koi Nation’s contention that it properly requested AB 52 consultation through Geary’s letter, but that such consultation was not lawfully conducted or concluded by the City, ultimately resulting in a prejudicial failure to satisfy CEQA’s informational requirements. Per the Court:
The administrative record is sparse, and the little that there is does not permit us 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.” (Gov. Code, § 65352.4.) Nor does the record support the City’s claim that consultation could “permissibly cease” under section 21080.3.2, subdivision (b).”
(Slip Opn., p. 26.)
The Court noted that while Geary provided the City with a treatment protocol and requested specific mitigation measures during consultation, the MND never informed the City’s decisionmakers or the public that mitigation measures were requested, what they were, or whether the City accepted them or not. Nor did the MND say anything about the City’s basis for determining consultation had concluded, or when it so determined, and the rest of the record provided little information on this subject – there were no notes or memoranda from City staff on the March 9 meeting or discussing Geary’s requests or the City’s reasons for deciding whether or not to agree to them. Geary’s undisputed City Council hearing testimony was that City staff advised him the proposed measures’ adoption depended on City Manager approval, but the City never informed Geary whether approval was forthcoming or the reasons it was not, even after his March 23, 2022 follow-up email. Geary never received a letter or statement from the City that consultation had closed, and he believed it was ongoing until he received City’s MND Notice of Intent in October 2022. The record was unclear as to City’s view of the consultation, but City Manager Flora stated in response to questioning at the Council appeal hearing “that the [mitigation] measures [Geary proposed] had been considered and, except for cultural sensitivity training, rejected” as “the City did not see any need for tribal monitors or a treatment protocol” given that there was “no evidence of tribal cultural resources” at the site. Per the Court:
In short, the record shows that a consultation meeting was held on March 9 at which Geary presented information to City staff and requested the implementation of mitigation measures based on concerns that the project could impact tribal cultural resources. The City took the requests under submission, but did not engage in any further discussion with Koi Nation about the requests, even after Geary sent follow-up communication. Eventually, at some time not disclosed in the record, the City decided to grant one of the requests and deny the others, but the City never informed Koi Nation of the reasons for its decision.”
(Slip Opn., at pp. 27-28.)
The Court of Appeal found these facts reflected a consultation that was “perfunctory at best” and failed to satisfy Government Code section 65352.4’s requirement of a “meaningful” discussion seeking agreement where feasible. In overly relying on conclusions from Dr. White’s report, the City ignored that report’s cautionary statement differentiating archaeological cultural resources from tribal cultural resources, and “failed to consider the value and significance of resources to Koi Nation.” Further, nothing in the record showed that agreement was infeasible, or that either the City or Koi Nation had become “entrenched” in their positions or “reached an impasse” – indeed, per the Court, “there is also no evidence that the City sought agreement, as it was required to do.” Rather, it simply decided at some point after receiving Dr. White’s August 2022 report, and without informing Koi Nation of its decision or its basis, that Geary’s proposed measures were unnecessary – thus avoiding the required discussion and precluding any “real opportunity” for the parties “to seek mutual agreement as the statute contemplates.”
Having concluded no evidence supported the City’s position that any meaningful consultation occurred, the Court found it need not consider whether consultation was appropriately “concluded.” It further held the City’s failure to comply with the consultation requirement was a prejudicial abuse of discretion under CEQA’s standards requiring invalidation of the MND because “information the Legislature has deemed necessary for informed decisionmaking and public participation was not presented to the decisionmakers or included in the documents available to the public.” The fact that Koi Nation could and did submit information to the agency through means outside the consultation process did not obviate a consultation in full compliance with the law.
Finally, the Court declined to reach Koi Nation’s additional arguments that an EIR was required instead of an MND due to substantial record evidence supporting a fair argument of significant impacts on tribal cultural resources. The Court found the request “premature,” noting that should the City go forward with the project, it would need to first comply with all CEQA’s requirements, including meaningful and properly documented consultation with tribes properly requesting the same.
Conclusion and Implications
To maximize defensibility of their environmental review, agencies dealing with projects in areas with which California Native American Tribes are traditionally and culturally affiliated must scrupulously adhere to AB 52’s procedural requirements for noticing, conducting in good faith, and concluding required consultations regarding tribal cultural resources, and must further make sure that such compliance is clearly documented in the administrative record. They should respectfully listen to and carefully consider the tribal representative’s concerns and recommendations, discussing them fully and in good faith until agreement is reached or it is determined after a good faith and reasonable effort that it is infeasible to reach agreement with the tribe on the subjects of the consultation. Unless agencies do so, their CEQA documents and project approvals are at risk of being set aside with judicial direction to start the process over.
