BILL ANALYSIS Ó
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| SENATE COMMITTEE ON NATURAL RESOURCES AND WATER |
| Senator Fran Pavley, Chair |
| 2011-2012 Regular Session |
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BILL NO: AB 742 HEARING DATE: August 23, 2011
AUTHOR: Bonnie Lowenthal URGENCY: Yes
VERSION: August 16, 2011 CONSULTANT: Bill Craven
DUAL REFERRAL: No FISCAL: Yes
SUBJECT: Surface mining: Indian reservations and Native American
sacred sites.
BACKGROUND AND EXISTING LAW
Summary. The Surface Mining and Reclamation Act (SMARA)
generally requires operators of surface mining operations,
including hard rock mining (such as gold and silver) and
aggregate mining (sand and gravel) to have an approved
reclamation plan that will be implemented at the end of the
useful life of the mining operation or whenever the mining
operation ceases to operate. The purpose of the reclamation plan
is to restore the mined lands to conditions that are agreed upon
by the operator and the lead agency, often a county government.
This bill, which the Committee received on August 18, 2011,
would prohibit a lead agency with jurisdiction over a proposed
aggregate mining operation from approving a reclamation plan of
a mining operation that is proposed to be constructed within
specified distances of a Native American sacred site or an
aquifer that is hydrologically connected to the Santa Margarita
River without the consent of the tribe whose reservation is
nearest the proposed operation.
In plain English, the purpose of this bill is to prohibit a
single mining operation that is proposed in Riverside County at
a location that the Pechanga Tribe of Luiseno Peoples considers
its most important sacred place, the place considered to be the
Place of Creation.
Existing Law.
1. As a result of a previous controversy involving a conflict
between a proposed gold mine and a tribal sacred site,
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regulations of the California State Mining and Geology Board
(SMGB) were revised and a statute was passed that required that
all open-pit metallic mines (but not aggregate mines) in
California that are on or within one mile of a tribal sacred
site be backfilled and recontoured as part of a reclamation
plan. The controversy was in the Imperial Valley and involved a
proposal by Glamis Gold Ltd. to open a gold mine in an area
claimed by the Quechan Indian tribe as a sacred site. The
statute, Public Resources Code section 2773.3, was amended by SB
22 (Sher) that became effective in 2003, and would itself be
amended by AB 742.
2. A provision in the state public records act, Government Code
section 6254 (r), exempts disclosure of records of Native
American graves, cemeteries, and sacred places and records of
Native American places that are described in sections 5097.9 and
5097.993 of the Public Resources Code. This provision applies
not only to the Native American Heritage Commission but also to
other state and local agencies.
3. Government Code sections 65352.3 and 65352.4 require local
governments to conduct meaningful consultation with California
Native American tribes that are on the contact list maintained
by the Native American Heritage Commission prior to the adoption
or amendment of a city or county general plan for the purpose of
protecting cultural places on lands affected by the proposal.
(Note: The Liberty Quarry proposal would require zoning changes,
but not amendments to a general plan.)
4. Public Resources Code Section 5097.993 imposes misdemeanor
liability in specified circumstances on those who maliciously
destroy or damage Native American sacred sites. Actions taken in
accordance with the California Environmental Quality Act (CEQA)
are exempt from such liability.
Liberty Quarry. Granite Construction, a large California firm,
has proposed a 155 acre rock quarry that could produce up to 5
million tons of aggregate each year. Its proposed permit would
be for 75 years. The quarry would be located on a larger
414-acre site in an unincorporated area of Riverside County that
borders the City of Temecula and that is about 500 yards from
the Pechanga Indian Reservation. The facility would include the
quarry, concrete and asphalt mixing, and various other ancillary
activities. Liberty Quarry would be located just west of I-15
and the Pechanga Tribal Reservation. The proposed pit would be
approximately one mile long and 1,000 feet deep. Aggregate would
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be obtained from rock that is crushed after explosives are
blasted to loosen the material. About 70 percent of the mined
material would be delivered to San Diego County, with the
remainder to Riverside County or other markets.
Procedural Summary. Granite and its environmental consultants
have prepared a draft environmental impact report (DEIR)
pursuant to CEQA that is 8,500 pages in length. Almost all of
the issues in the DEIR are sharply contested by opponents of the
project including the Pechanga tribe. The Riverside County
Planning Commission has considered this Granite's proposal in a
series of 5 public meetings and it is expected to vote to
approve or reject the proposal at a meeting on August 31, 2011.
The agenda consists of a decision whether to certify the DEIR,
and also to approve a surface mining permit, a county noise
ordinance exemption, and a zoning change from rural residential
to a designation that would allow the quarry to operate.
It seems likely that any decision will be appealed to the
Riverside County Board of Supervisors. Litigation is probably
likely unless some sort of settlement is arranged that would
involve an alternative site.
The public hearings have been lengthy-one lasted 15 hours-and
the quarry proposal is often mentioned in the local media as one
of the most contentious land use projects ever proposed in the
county.
PROPOSED LAW
This proposed urgency bill would add a provision to the mine
reclamation statute that would prohibit approval of a surface
mining reclamation plan for an aggregate products operation that
is located within 2,000 yards of the external boundaries of an
Indian reservation and is on or within 5,000 yards of a site
that is a Native American sacred site and is on or within 4,000
yards of the Santa Margarita River or an aquifer that is
hydrologically connected to that river, unless the tribe whose
reservation is nearest the operation consents to the operation.
ARGUMENTS IN SUPPORT
Tribal Support. Several tribal organizations are in support of
the bill, including the Pechanga Tribe, which is sponsoring the
measure. This tribe has concluded that the proposed quarry, 500
yards from its reservation, would cause irreparable harm to the
Luiseno place of creation. (The Pechanga is one of several
federally recognized tribes of Luiseno Native Americans). The
site, Kaamalam Pomki, is analogous to the most sacred site of
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Christianity, Judaism, or Islam, according to the leadership of
the Pechanga.
There is little that is agreed upon between the Pechanga and
Granite. The tribe says it formally commented at least 7 times
throughout the environmental review process, disclosed highly
confidential cultural site information to the county, and has
been on the record raising specific cultural concerns since
August of 2005. As it learned more about the project, the
Pechanga Tribe says it increased its level of participation and
its expressions of concern. As a sovereign government, it
believes its obligation is to participate in the public process,
not necessarily to respond to inquiries from Granite. Granite
says it offered to meet with the tribe numerous times.
The Pechanga Tribe dismisses the claim of Granite that at a 2005
meeting the tribe failed to identify any cultural concerns. The
tribe characterizes that meeting more as a "meet and greet" that
occurred at time when the project was far from a certainty. It
argues that because of the historic treatment of Native American
tribes and their spiritual sites that tribal governments will
seldom divulge spiritual information when presented only with a
conceptual project.
The California Tribal Business Alliance (CTBA) and all of the
other tribes that support the bill agree with the Pechanga
position that Granite's own ethnographic study found that it was
"clear" that the proposed quarry included a site that should be
designated a "traditional cultural property" that would be
eligible for inclusion in the National Register of Historic
Places. All of the tribal groups in support of this bill reject
the finding of the Riverside County staff report that found the
potential destruction of the site is "less than significant" for
purposes of CEQA. "The preservation of tribal sacred places is
paramount to Indian Tribes and Indian People because such places
define our history and our identity as a People in the wake of
State and Federal governments that have stripped almost
everything away from us over the past 150 years in California.
The denial and destruction of a site of such importance to one
Tribe is the destruction of a site to ALL Tribes," CTBA's letter
states.
Conservation Organizations Support.
The Endangered Habitats League (EHL), Southern California's only
regional conservation group, supports the bill as a way to
protect tribal sacred sites, but also because of the proposed
mine's possible adverse effects on the Santa Margarita
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watershed, including an important ecological reserve managed by
San Diego State University. This reserve is used for many
scientific experiments and is also considered the last major
intact wildlife corridor that connects to the Pacific Ocean. It
has a common border of one mile with the proposed quarry. Along
with many other opponents of the project, EHL argues that the
aggregate that Granite seeks to mine and market is available at
many other sites in the region where the environmental and
cultural impacts would be much less severe.
The local Sierra Club group, the Santa Margarita Group, supports
the bill because of its concerns about the effects of the mine
on the river, which it states is the last free-flowing river in
Southern California. Along with other supporters, it points out
that the river could become contaminated from the mine's
operations and jeopardize the main source of drinking water for
Camp Pendleton, which is where the river enters the Pacific
Ocean.
Natural Resources Defense Council and California Coastal
Protection Network, in a joint letter, support the bill for the
following reasons: (1) They agree with the need to protect the
Santa Margarita River, the last free-flowing river in southern
California; (2) These groups have concerns about wildlife
impacts because quarry would block the last wildlife corridor in
southern California connecting the Santa Ana mountains to the
Palomar mountains, plus disrupt a key wildlife reserve in the
Western Riverside County Multiple Species Habitat Conservation
Plan; and (3) These groups share the concern that the quarry
would adversely affect the Santa Margarita Ecological Reserve.
They quote the president of San Diego State University as saying
that "the diverse impacts associated with gravel mining and
processing plants pose a serious threat to the continued success
and persistence Ýof the reserve] placing data, research,
education, and service at risk." They also support protection of
the Pechanga sacred site.
Local Government.
The leading local government supporter of the bill is the City
of Temecula. Temecula shares the concerns of the tribal and
conservation supporters of the bill, but it has several other
reasons to support the bill.
Temecula sought to annex both the San Diego State ecological
reserve and the site Granite proposes for the quarry. The Local
Agency Formation Commission (LAFCO) insisted that the annexation
exclude the proposed Granite site. Temecula reluctantly agreed
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and quite publicly expressed its opposition to this condition.
It believes that the LAFCO was influenced by communities and
elected officials from more distant parts of Riverside County
who were not as sensitive to the localized concerns of Temecula
and the Pechanga Tribe. Now that the matter is pending before
the county planning commission and (soon) the county board of
supervisors, Temecula believes that Granite is trying to have it
both ways: It objected to "local control" when Temecula's
annexation proposals were pending before LAFCO, but it supports
"local control" now. Temecula dismisses Granite's argument that
the proposed quarry site would have been turned into residential
housing. That acreage is unsuitable for more than very scattered
housing according to information provided by the city and it
hoped to retain the "rural residential" zoning designation.
Temecula commissioned its own economic analysis of the project
from the Claremont McKenna College that found that the quarry
would only produce modest economic benefits that would be more
than offset by job losses in tourism, real estate, construction,
and agriculture. This study said that the quarry would cause a
net loss of $3.6 billion to the region in its first 50 years of
operation. The city, like other opponents of the project, has
concerns about environmental and public health impacts caused by
potential traffic, adverse impacts to the ecological reserve,
the concern that the mine would "de-water" upper elevation
habitat, including those at the Pechanga site, the amount of
water the quarry would use (estimated at 369 acre-feet or
385,000 gallons/day); potential runoff into the Santa Margarita
River, and a doubling of air pollution in the region.
Many opponents of the mine have not submitted letters on AB 742,
but there are many letters in opposition to the quarry that are
in the public record. The considerations include air quality,
transportation, water, tribal, impacts on the local tourism and
wine industries, toxic emissions from the quarry, and many other
considerations. Additionally, Save Our Southwest Hills, a local
organization, stated that at least six considerations identified
in the DEIR are unable to be mitigated to below a level of
significance which could become an issue in any CEQA litigation,
including air quality and traffic.
ARGUMENTS IN OPPOSITION
Granite Construction opposes the bill for many reasons including
the following:
(1) It considers the bill an intrusion into the permitting
process that is now underway.
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(2) It contends that the Pechanga was not forthcoming about its
concerns regarding the sacred site.
(3) It is concerned that the bill sets a damaging precedent for
future infrastructure projects elsewhere in the state.
(4) It wants to alleviate a future shortage of aggregate
material in the region.
(5) It believes that the environmental review process has been
thorough and the proposed mitigation is adequate;
(6) It touts the job creation and economic benefits of the
project including $300 million in sales tax revenues and $41
million in property tax revenues and fees. In addition, Granite
contends that the project will reduce hauling distances of
aggregate to San Diego from other mines in Riverside County,
thus reducing truck-miles and associated diesel emissions. A
related argument of Granite is that it will require the use of
clean diesel engines which will further reduce diesel emissions.
(7) It argues that CalTrans supports the project and that
CalSTRS will receive hundreds of millions of dollars in
royalties from the project after a lease agreement is negotiated
with the State Lands Commission (which has not happened yet).
(8) Granite states that the South Coast Air Quality Management
District acknowledged the company's efforts to reduce air
quality and health impacts.
(9) Claims of employment that the project would create vary, but
Granite's latest brochure states that 277 new jobs would be
created when the local unemployment rate is 12%.
(10) Granite says that the quarry site is 1.7 miles from the
sacred site which is a greater distance than the Pechanga's golf
course.
(11) Granite also questions the consistency of the Pechanga
position by suggesting that the tribe supported the City of
Temecula's annexation of the ecological reserve and the quarry
site which Granite argues would have opened up the sacred site
for housing construction, a point which is at odds with how the
tribe sees the question.
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(12) Granite is also very unhappy with what it calls the failure
of the Pechanga to communicate early on in the process. It says
the company tried more than 30 times over 6 years to provide
project updates and that those requests were denied. It also
argues that the Native American Heritage Commission conducted
site surveys, with the involvement of Pechanga tribal monitors,
which failed to identify any cultural artifacts.
The California Conference of Carpenters, along with other
opponents, is concerned about the late amendment to this bill,
that the bill would disrupt the ongoing permitting process, and
that the bill could set a precedent that could unravel other
infrastructure projects such as high-speed rail. This
organization is also concerned that the aquifer protection
language in the bill may be overbroad.
The California Construction and Industrial Materials Association
argues that the bill violates the terms of existing law
(mentioned in Section 3 of Existing Law) and is apparently under
the impression that a general plan amendment may be required,
that the bill interferes with local control, and that the
proposed bill would preclude mining in the guise of prohibiting
a reclamation plan, which is a use of the reclamation statute
that it considers objectionable.
Many of the opponents raise the issue of how this bill might
affect what they call the state's "business climate."
COMMENTS
1. Is this bill a precedent ? As noted earlier in the background
provisions of this analysis, the Legislature stepped in to block
a gold mine near a sacred site in Imperial County. There are
parallels to the Granite-Pechanga situation. Glamis objected to
legislation that intruded into the permitting process and that
would impose conditions rendering its project infeasible.
Industry representatives claimed that the new provisions would
add $60 million to the reclamation costs of a small open pit
mine, according to a report in the Los Angeles Times. The
proposed Glamis mine, however, was not small. It would have been
a pit that was up to a mile wide and up to 850 feet deep with
mine tailings piles as high as 30 feet, again according to the
Los Angeles Times. The new law was passed despite the
expenditure by Glamis of a reported $14 million over eight years
to seek approval for the proposed 1,600 acre facility. It is not
clear what Granite's investment in the site or the permitting
process is.
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2. The Draft Environmental Impact Report . There is no way that
this Committee or its staff can be reasonably expected to be the
final arbiter for the adequacy or inadequacy of any particular
part of the 8,500 page draft environmental impact report for a
project that is referenced in legislation that has been before
the Committee for less than a week. While passions are high,
these questions should initially be resolved by the planning
commission and the board of supervisors, and then, if needed, by
a court.
3. The Santa Margarita aquifer. The bill would prohibit approval
of a reclamation plan that is within 4,000 yards of the Santa
Margarita river or an aquifer that is hydrologically connected
to that river. This groundwater basin is designated as basin
9-04 by the Department of Water Resources and is fully
adjudicated, meaning that a court appointed watermaster approves
the amounts of water that are withdrawn from the basin. It is a
small basin consisting of just under 8,000 acres, or 12.4 square
miles. The total storage capacity of the basin is estimated to
be 61,600 acre-feet. Groundwater quality is generally poor
because of high salt concentrations, and the surface water
supplies (mainly the river itself) are used locally and by Camp
Pendleton. There is no indication in the information in the DWR
publication that this basin is hydrologically connected to other
basins.
4. Aggregate data. According to the Department of Conservation,
the western side of San Diego County is one of the areas in the
state most in need of additional supplies of aggregate. In
addition, western Riverside County is a major exporter of
aggregate with many mines in production with supplies in excess
of the county's local demand. The hard question that should be
considered by the Legislature but that is not directly presented
by this bill is how to get local governments to evaluate and
plan for their needs for aggregate material. As seen below, one
of the staff suggestions is that the author should explore some
solutions to that question, including but not limited to
regional approaches or general plan requirements. A planning
approach that identified aggregate needs, possible locations,
and that was sensitive to resource protection and cultural sites
protection would dramatically improve the siting of these
projects, which all too frequently are blocked by NIMBY's as
LULU's (Locally Undesirable Land Uses). The state needs sand and
gravel, and the siting of quarries should be improved such that
the Legislature's role as a jury on land use decisions is
diminished.
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5. Sacred Sites Protection. California's Native American tribal
governments have complained for years-decades would be more
accurate-that the state's laws are inadequate to protect
important tribal sites, especially those that may exist on
private land. The tribes have a point. Many of the state's laws
that protect tribal sites are limited to those projects proposed
to occur on public lands. Some of California's laws that protect
tribal sites do not extend to projects that require zoning
changes, and a tribal consultation provision is limited to
situations only when a general plan amendment is contemplated by
a local government. Also, the ability of the Native American
Heritage Commission to investigate complaints and to recommend
action by the Attorney General is limited to activities that
interfere with tribal sacred sites that are on public land.
It is self-evident that a more complete and focused planning
process on a county or region's future aggregate needs would
allow for local governments and tribal governments to cooperate
and avoid the situations such as were presented to the
Legislature in the Glamis and now the Granite project proposals.
Many of the opponents to this project say that there are many
alternative sites for aggregate that would not raise the same
level of objection that the current proposal has raised. It
would seem advantageous to the mining industry and the business
community that opposes this legislation to engage in such a
planning process that could develop consensus for siting of
these projects in order to meet the state's infrastructure
needs.
6. Confidentiality. California law exempts from its public
records law disclosure of documents pertaining to Native
American sacred sites. This is a clear indication that the
Legislature understands that tribal governments are extremely
reluctant to disclose the exact location of sites that are of
deep spiritual importance to them. In the case of this proposed
project, the tribe's actions to protect the sacred site
escalated as the project's specific nature became more apparent.
Experts in negotiating over projects that affect cultural sites
understand why Native American governments act as they do. It is
often not until a place is threatened that tribal governments
feel obligated to reveal the cultural importance of a site.
While a project developer may wonder why a tribe does not speak
up, the tribe may believe that it is important not to speak up.
These two fundamentally different ways of evaluating a project
are clearly frustrating to all who are involved and is yet
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another reason for the author to consider a more comprehensive
planning approach for the problem she hopes to resolve on behalf
of the Pechanga.
Developers will argue that they need better information from
tribes in advance and that they want to avoid the risk of
"instant sacredness"-situations where they did not know about
the sacredness of a location until a project was proposed.
Experts have noted that this sometimes happens, but that the
vast majority of situations involve tribes who reveal the
presence of sacred sites only when necessary to avoid injury to
those sites. See, King, Places That Count: Traditional Cultural
Properties in Cultural Resource Management , Altamira Press,
2003, pp. 250-253.
7. Exaggerations . It is probably not shocking that some of the
claims and counter-claims of the protagonists are inaccurate. As
a couple of examples, Granite claims that CalTrans supports its
project, and the opponents have provided a letter retracting a
previous statement of support. The Pechanga suggested that AB
742 would protect all sacred sites from mining activities while
the bill is actually about a single site, albeit one of utmost
importance to the tribe. These examples do not include the
dozens of instances in which community members or other
organizations challenge the adequacy and accuracy of the draft
environmental impact statement that will likely simmer for
months to come.
8. Public Input . Many of the groups and individuals who have
expressed views on the project have not expressed views on this
bill because of the late nature of the amendment.
9. Recommendation.
The Committee may determine that a final legislative
determination on this bill should not occur until after the
planning commission and the board of supervisors in Riverside
County have acted on the project. In other words, is the issue
ripe for final legislative action? The planning commission
hearing is set for late August and the board of supervisors may
get the matter in the fall.
That said, we are in a two-year session and the author can make
a strong case, subject to the approval of the Committee, that
the bill should continue to move forward recognizing that the
situation in the county may change and that the contents of the
bill may also change.
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If the Committee chooses to move the bill forward, the
appropriate motion would be to re-refer the bill to the Senate
Rules Committee to consider possible future action.
The Committee may also determine to encourage the author to
consider a more comprehensive statewide solution to the issue
posed in this bill in addition to her goal of protecting the
sacred site of the Pechanga. Such a solution could include an
improved local or regional planning process that could include
stronger protections for Native American sacred sites and
greater certainty that needed aggregate material can be
obtained.
Similarly, the Committee could ask the author and the parties to
engage in a process that could result in a settlement that
affects only this mining proposal. Such a settlement could
include an agreement to permit another acceptable site, to ask
the Riverside LAFCO to reconsider the City of Temecula's
annexation petition that denied annexation of the lands proposed
for this quarry, and to purchase Granite's interests in the
affected real estate. In other words, the bill, if it moves
forward, may jump-start negotiations among the various entities,
including the Pechanga, the county, the company, and other
interested parties. This or a similar outcome could perhaps
best be assisted if the bill does move forward. There will be
little incentive for the parties to negotiate if the bill does
not move forward.
In either case, the Committee would reserve the right to request
that the Senate Rules Committee allow a re-hearing de novo on
this measure at an appropriate time in order to assess the
outcome of the hearings on this project in Riverside County,
whether the bill in its current form should be moved forward, or
whether amendments or other actions on the bill are necessary
for any other reason.
SUPPORT
Pechanga Indian Reservation (sponsor)
California Coastal Protection Network
California Nations Indian Gaming Association
California Tribal Business Alliance
City of Temecula
Clean Air Temecula
Endangered Habitats League
Habematolel Pomo of Upper Lake
Natural Resources Defense Council
Pala Band of Mission Indians
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Paskenta Bank of Nomiaka Indians of California
Picayune Rancheria of the Chukchansi Indians
Rainbow Community Planning Group
San Bernardino Valley Audobon Society
Santa Margarita River Foundation
Santa Ynez Bank of Chumash Indians
Sea and Sage Audubon
Sierra Club-Santa Margarita Group
Numerous Individuals
OPPOSITION
AGC California
American Council of Engineering Companies
Associated Builders and Contractors of California
Associated General Contractors of California
Associated General Contractors San Diego Chapter
CalCIMA
California Association of Realtors
California Building Industry Association
California Business Properties Association
California Business Roundtable
California Chamber of Commerce
California Conference of Carpenters
California Forestry Association
California Manufacturers and Technology Association
California State Council of Laborers
California-Nevada Conference of Operating Engineers
California Restaurant Association
Cement Masons Local No. 600
Engineering & Utility Contractors Association
Granite Construction
Orange County Business Council
Palm Desert Area Chamber of Commerce (and separate letters from
13 member businesses and individuals)
Southern California Contractors Association
Western States Petroleum Association
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