You can’t be too careful documenting compliance with AB 52’s tribal consultation requirements.

A recent decision from the California Court of Appeal demonstrates the importance of strictly following the tribal consultation requirements of Assembly Bill 52 (AB 52). This case serves as a cautionary reminder that agencies must rigorously document compliance with tribal consultation procedures and engage in genuine discussions with affected tribes to avoid legal challenges that could jeopardize project approvals.

Koi Nation of Northern California v. City of Clearlake

This dispute arose over a hotel development project approved by the City of Clearlake. The Koi Nation, a federally recognized Native American tribe, sued the City under the California Environmental Quality Act (“CEQA”), alleging that the City failed to adequately consult with them regarding potential impacts on tribal cultural resources, as required under AB 52. The Koi Nation argued that the City did not engage in a meaningful consultation process, failed to respond to the Tribe’s concerns, and did not consider mitigation measures seriously. The trial court ruled in favor of the City, denying the Koi Nation’s petition, but the Court of Appeal reversed, finding that the City had not met its statutory obligations.

Notably, the City made substantial efforts to comply with AB 52. Pursuant to its own guidelines, the City engaged a Ph.D. consultant to assist in Native American coordination and prepare an intensive archaeological survey. The consultant personally reached out to the Koi Nation to notify it of the project and request information about the cultural significance of the project area and any concerns the Tribe may have. The consultant conducted research in response to the Tribe’s request to identify the residence of a tribal ancestor, and he reported the results of the research to the Tribal Council. The consultant held a videoconference with several tribal officers, in which he presented information about the project. The City sent a formal notification to the Koi Nation of the opportunity to consult under AB 52. The Koi Nation’s representative responded in writing (albeit on behalf of a different tribe), requesting consultation. A consultation meeting was held, where the Koi Nation provided information on tribal cultural resources and proposed mitigation measures. Following that meeting, the Koi Nation sent a letter reiterating concerns and requesting specific mitigation measures, including the engagement of the Tribe’s cultural monitors during all ground disturbing activities. The City did not respond to the letter, and did not require the engagement of tribal cultural monitors; but it did adopt various mitigation measures to be implemented in the event that archaeological resources or human remains are discovered during excavation.

Nevertheless, the City’s efforts did not satisfy the Koi Nation or the Court of Appeal. The court found that the City did not engage in a meaningful good-faith effort to reach agreement regarding mitigation measures, and faulted the City for failing to formally respond to the mitigation measures proposed by the Koi Nation and for failing to provide a rationale for rejecting them.

The court further faulted the City for failing to adequately document the consultation process in the environmental review documents, including the Mitigated Negative Declaration. There was no detailed discussion of the consultation, the concerns raised by the Tribe, or the City’s reasoning for rejecting mitigation measures. The City unilaterally concluded consultation without notifying the Koi Nation or engaging in any further discussions. The court also faulted the City for relying on an archaeological report that focused on cultural resources without explicitly addressing tribal cultural resources, as required by CEQA.

This decision makes it clear that strict compliance with AB 52’s consultation requirements is essential. Agencies conducting CEQA reviews must carefully track consultation requests, ensure that communications are properly recorded, engage in meaningful dialogue with tribes, make a good faith effort to reach an agreement with tribes, and, if applicable, explain why tribes’ proposed mitigation measures are not adopted. CEQA documents should contain thorough discussion of consultation efforts, including meeting dates, topics discussed, and how tribal concerns were considered and addressed. All correspondence, meeting notes, and responses to tribal input should be included in the administrative record to demonstrate a good-faith consultation. Holding a consultation meeting alone is not enough; agencies must actively engage in discussions aimed at reaching a resolution and document their efforts to do so.

By adhering to these best practices, agencies can help avoid costly litigation and ensure that project approvals remain legally defensible. This case is a strong reminder that CEQA’s consultation provisions are not just procedural steps, but substantive requirements that must be followed diligently.