In Koi Nation of Northern California v. City of Clearlake, California’s First District Court of Appeal ruled in favor of the Koi Nation of Northern California (Koi Nation), holding that the City failed to comply with the California Environmental Quality Act (CEQA) requirement that lead agencies engage in meaningful consultation with local tribes before certifying or adopting environmental review documents for development projects, also known as AB 52.
AB 52 requires lead agencies to notify any California Native American Tribe that is traditionally and culturally affiliated with the geographic area of a proposed project and to timely engage in consultation if requested by the tribe. Consultation must be meaningful and conducted in a way that is mutually respectful of each party’s sovereignty, so that tribal cultural resources can be identified, and culturally appropriate project mitigation can be considered by the lead agency.
In Koi Nation, the court found that the City of Clearlake’s consultation with Koi Nation was “perfunctory at best.” The City held one formal consultation meeting with Koi Nation several months before approving the hotel development project. After the consultation meeting, Koi Nation expressed its concerns that the project could impact known tribal cultural resources, and requested certain mitigation measures, including presence of cultural monitors during project development, incorporation of certain tribal protocol, and cultural sensitivity training for project personnel. The City did not engage in further discussion with Koi Nation about its concerns or requested mitigation measures, and ultimately decided to incorporate cultural sensitivity training while rejecting the other two measures. The City apparently never informed Koi Nation of its decision or its rationale (or that information was absent from the administrative record). Koi Nation was under the impression that consultation was still ongoing until the City issued its Notice of Intent to Adopt a Mitigated Negative Declaration (MND) for the project.
In its decision, the Court of Appeal noted that the administrative record for the project contained almost no information about the consultation process aside from a statement in the MND that consultation occurred and brief comments from the City Manager concerning the City’s determination not to include the remaining mitigation measures requested by Koi Nation, which did not come until Koi Nation had already appealed the City’s approval of the project. In light of this, the court found that the record failed to show that the City sought to reach an agreement with the tribe, or reasonably determined that an agreement was infeasible, as the law requires. Accordingly, it ruled that the City failed to comply with CEQA’s tribal consultation requirement, and set aside the City’s approval of the hotel project.
The Koi Nation decision underscores the importance, for lead agencies and project proponents alike, of engaging in good faith tribal consultation, including considering all proposed mitigation measures, and meticulously documenting the entire consultation process so it is adequately reflected in the administrative record. Lead agencies and applicants do not have to accept every request from a tribe, but should document precisely why certain suggested mitigation measures were imposed, and why others were not.
