Interim Tribal Consultation Policy

Definitions

Interim Policy

BCDC recognizes that Tribes offer both unique expertise regarding Tribal resources and continuing deep interests in the protection of Tribal culture, which are integral to preserving California’s Tribal heritage. The primary objective of this Interim Policy is to ensure that Tribes can participate meaningfully in decisions that may affect their communities, resources, or interests. Therefore, BCDC encourages Tribes to consult with BCDC regarding Proposed Activities that may affect Tribal Interests. BCDC commits to respecting the dignity of Tribes and Tribal communities and making a good faith, reasonable effort to understand and consider Tribal Interests within the Commission’s jurisdiction and involving resources under the Commission’s jurisdiction. Such communications, whether they occur as a result of legal obligations required of BCDC or not, are meant to foster long-term partnerships with Tribes and serve as opportunities to educate BCDC about Tribal cultural resources and help identify alternatives or measures to prevent or mitigate further loss of those resources and values. For the purposes of this Interim Policy, preliminary Consultations and Consultations may include but are not limited to all communications, meetings, site visits, informal and formal consultations up to a final decision or action.

Additionally, BCDC will strive to engage in early, often, and meaningful Consultation with those Tribes whose Tribal Interests BCDC is aware are impacted by Proposed Activities. BCDC will endeavor to send a request for Consultation to such Tribes in accordance with the “Timeliness” guidelines as contained herein. It is important to note that capacity constraints may prevent a Tribe from responding to a request for Consultation, even if they are interested in the issue. Tribes may not respond to a request for Consultation or may decline to consult. If a Tribe does not respond to a request for Consultation, BCDC will continue to notify Tribes of updates as the action progresses and engage in Consultation if requested. If a Tribe clearly states they do not want to consult on a particular action, BCDC may no longer contact the Tribe on the particular action; however, if, at a later time, a Tribe wishes to reengage in Consultation regarding the action, BCDC shall include them in future consultations and notifications.

While the specific issues and desired outcomes for Consultation will vary with each situation, the following objectives apply to all Consultations. For each Consultation, BCDC will strive to:

• Share pertinent materials with a Tribe in a timely fashion such that Tribal leaders, representatives, and/or staff may make an informed decision and provide meaningful comments.
• Provide Consultation timelines that allow Tribal leaders, representatives, and/or staff to process information, schedule internal and external meetings, make informed decisions, and provide thoughtful comments and feedback.
• Provide opportunities for Tribal leadership to express their views and concerns and in so doing, for BCDC to develop a clear understanding of the Tribal perspectives, needs, and concerns.
• Use collaborative problem-solving as well as integrating and advancing of Tribal priorities and perspectives into BCDC decision-making where feasible.

Specific laws, such as AB 52, may provide specific requirements including timing of Consultation, the Consultation process, and examples of measures to avoid or mitigate impacts to Tribal Interests. Specifically, the requirements under AB 52 apply in circumstances where BCDC is the “lead agency” responsible for preparing certain environmental assessment materials (as defined under Cal. Code Regs. Tit. 14 § 15050).

BCDC also recognizes there are circumstances when coordination and dialogue would be mutually beneficial to address a particular issue or concern, program, or project beyond legal requirements. This coordination may be at BCDC staff or Tribal member level rather than at the Commission chair or Tribal council member level and may be appropriate for simple inquiries, coordination on ongoing processes or programs, projects of mutual interest, or other topics. For staff/member-level meetings, BCDC staff with appropriate expertise and of a comparable level of authority to the Tribal representative will be assigned. In all cases of Consultation, BCDC will observe the following Interim Policy Guidelines. These Guidelines incorporate the following themes of education, respect, communication, and timeliness.

Interim Policy Guidelines

Tribes and BCDC have great potential to serve as resources for one another. Tribes have an abundance of knowledge regarding the values of natural resources, locations of Tribal cultural resources, and impacts to these resources caused by development. As such, Tribes offer special expertise that can enhance the Agency’s ability to protect resources under its care. BCDC was formed in 1965 and has gleaned substantial knowledge regarding its areas of jurisdiction in the furtherance of its responsibilities under its laws, regulations, and policies. Additionally, BCDC is committed to the sharing of information and perspectives to foster mutual understanding of each other’s role in managing and providing stewardship, management, and traditional ecological knowledge of the Commission’s areas of jurisdiction. 

In order for Consultations to be effective, the parties must respect one another. The Commission recognizes Tribes and Tribal communities as sovereign governments with legitimate interests in the Commission’s jurisdiction, respects each Tribe’s unique environmental, cultural, and spiritual interests in the resources within the Commission’s jurisdiction, and seeks to collaborate with Tribes to find mutual long-term solutions to address the varying needs of each party.

Preserving California’s Tribal heritage involves the protection of culturally significant places and objects from disturbance, theft, and vandalism. In order to avoid these threats, BCDC will sometimes need to maintain the confidentiality of information regarding Tribal cultural resources.  BCDC recognizes this need and will ensure that the locations, descriptions, and uses of Tribal cultural resources remain confidential as provided by Public Resources Code section 21082.3 subdivision (c). During Consultation, Tribes are encouraged to inform BCDC as early as possible regarding the need to maintain confidentiality with respect to certain Tribal cultural resources.

Open communication between BCDC and Tribes is an essential part of Consultation. Accordingly, BCDC will strive to accommodate the needs of each Tribe that wishes to consult, including assisting Tribes overcome impediments to effective participation in the Consultation processes. This could include scheduling meetings at times and locations that are most convenient for Tribes, to the extent feasible. For any Proposed Activity, BCDC should offer Consultation at a frequency that is conducive to allowing Tribes multiple opportunities to provide input throughout the development process of BCDC’s decision-making. While initial and periodic meetings with leadership are important, particularly to set out the mutual goals and approach to solving challenges, Consultation will usually involve many levels of staff both for BCDC and for the Tribe, and all BCDC participants are expected to adhere to both the Interim Policy and agreements made by leadership at the beginning of a specific Consultation. Additionally, while BCDC strives to achieve resolution of all concerns through Consultation, recognizing the Tribes as partners arriving at hopefully mutual agreement, BCDC acknowledges this may not always be possible. Consultation would therefore conclude either when mutual agreement is reached or when a party concludes that agreement will not occur.

At times, Tribes and BCDC may conduct joint Consultations to use limited resources most efficiently and ensure effective dialogue and communication when there are sufficient issues in common to warrant joint Consultation. Joint Consultation could involve other federal, state, and/or local government agencies, or more than one Tribe, or both. Joint Consultation would occur only by mutual agreement of all parties, and Tribes may request BCDC provide individual formal Consultation at any time.

BCDC will work to ensure that Tribes receive timely notice of Proposed Activities under consideration and responses to Consultation requests before BCDC actions and decisions have been made and before an action or decision cannot be changed. BCDC is encouraged to implement early Consultation periods for Proposed Activities, during which Tribes have the opportunity to learn about and provide feedback on an activity before BCDC’s formal processing of the Proposed Activity begins and before any major or irreversible decisions have been made. For the purposes of this Interim Policy, a Consultation period for a Proposed Activity typically begins when a notice is sent and concludes when BCDC  makes a formal determination about the Proposed Activity.

For Proposed Activities not subject to the CEQA Consultation provisions, BCDC is encouraged to engage in Consultation within 60 days of a Tribe’s request for a Consultation on a specified Agency action, unless otherwise specified by statute. At times, Tribes may become aware of an activity taking place or proposed within the Commission’s jurisdiction before BCDC is aware of that activity; in these cases, communication from Tribes becomes all the more important. Analysis of project impacts may require extensive review. Accordingly, BCDC will strive to accommodate Tribes’ needs for information and provide adequate time to review these materials. BCDC will strive to discuss these issues with Tribes to ensure effective Consultation and meet any particular needs of Consulting Tribes.

Parties’ Rights

This Interim Policy is not intended to create, and does not create, any rights, obligations, or benefits, whether substantive or procedural, or enforceable at law or in equity, against the Commission or its officers, employees, or any other person. Nothing in this Interim Policy shall be deemed to limit or expand the duties, sovereignty, or jurisdiction of any Tribe or the Commission. While the Consultation process described by this Interim Policy aims to increase coordination, communication, and the ability to find favorable mutual solutions, the process cannot be expected to result in the resolution of all issues.

Contact

¹ While this definition of “consultation” is drawn from the definition of that term as used in Government Code section 65352.4 and Public Resources Code section 21080.3.1 (which relies on the definition established in Government Code section 65352.4), the former is not directly applicable to BCDC as a state agency.