Lead agencies face increasing pressure to consult with Native American tribes before issuing discretionary approvals for development projects under the California Environmental Quality Act (CEQA) and related legislation. The California Legislature, the California Attorney General and a California Court of Appeal have all taken recent action to provide Native American tribes more power to shape mitigation for impacts to tribal cultural resources.
The California Legislature is currently considering SB 1326, a bill that would require a public agency to implement mitigation measures proposed by a Native American tribe to address impacts to tribal cultural resources, unless the public agency determines, based on substantial evidence, that the mitigation is infeasible.
Just last month, the California Attorney General filed People of the State of California ex rel. Bonta v. City of Poway to enjoin construction of a residential development project approved by the City of Poway over 20 years ago based on the recent discovery of ancestral human remains and tribal cultural resources.
And just last year, the First Appellate District published its opinion in Koi Nation of Northern California v. City of Clearlake, a decision in which the appellate court set aside the City of Clearlake’s approval of a hotel development based on the City’s failure to properly consult with a Native American tribe before approving the project.
These actions illustrate the growing importance of tribal consultation as part of the development process in California, as further discussed below.
SB 1326: Providing Tribes More Power in the Development Process
The obligation to consult with Native American tribes is nothing new. In 2015, AB 52 amended CEQA to, among other things, provide a process by which a lead agency must consult with California Native American tribes that are traditionally and culturally affiliated with the geographic area of the proposed project, if certain conditions are met. As part of the consultation process, “the parties may propose mitigation measures … capable of avoiding or substantially lessening potential significant impacts to a tribal cultural resource.” (Pub. Resources Code, § 21080.3.2, subd. (a).)
AB 52 provided for consultation, but it did not mandate the public agency to accept the Native American tribes’ proposed mitigation measures. It explicitly provided that consultation would conclude when either (1) the parties agree to measures to mitigate or avoid a project’s significant effect, if a significant effect exists, on a tribal cultural resource; or (2) a “party, acting in good faith and after reasonable effort, concludes that mutual agreement cannot be reached.” (Pub. Resources Code, § 21080.3.2, subd. (b).)
The California Legislature is now considering SB 1326, which, if adopted as presently drafted, appears to mandate that a public agency must adopt any mitigation measure proposed by a Native American tribe during the consultation process, unless the public agency determines, based on substantial evidence, that the proposed mitigation measure is not feasible. Specifically, SB 1326 would revise CEQA to provide:
The consulting California Native American tribe may identify culturally appropriate mitigation measures, which the lead agency shall consider and incorporate, to the extent feasible, in developing mitigation and treatment measures.
(SB 1326, adding Pub. Resources Code, § 21084.3, subd. (d).)
SB 1326 further appears to provide that if the lead agency declines to adopt the proposed mitigation measure based on infeasibility, the agency must provide substantial evidence for its infeasibility determination in the CEQA document prepared for the project. (SB 1326, adding Pub. Resources Code, § 21084.3, subd. (f).)
In addition, SB 1326 proposes revising CEQA to (1) broaden the explicit scope of “tribal cultural resources” to include, among other things, a cemetery or burial area of a California Native American tribe; (2) clarify that tribal cultural resources are distinct from cultural resources and archaeological resources and (3) mandate that certain mitigation measures be adopted to avoid or minimize a project’s potential adverse change to a tribal cultural resource, in the event no mitigation measures are proposed during the AB 52 tribal consultation process.
SB 1326 is not yet law. But if adopted as presently drafted, SB 1326 will further shift the power to shape mitigation measures for potential impacts to tribal cultural resources from lead agencies to Native American tribes.
California Attorney General Sues City of Poway Over Project’s Impacts to Tribal Cultural Resources
California’s executive branch has taken recent action to protect tribal cultural resources. In April 2026, the California Attorney General filed a lawsuit—People of the State of California ex rel. Bonta v. City of Poway—against the City of Poway and a developer to stop construction of, and to set aside certain entitlements for, a 40-home residential development. The lawsuit is based on allegations that the City of Poway violated CEQA by, among other things, not conducting additional environmental review after ancestral human remains and tribal cultural resources were unearthed at the project site.
The City of Poway certified an environmental impact report (EIR) for the project over 20 years ago, in 2003. The EIR did not adopt any mitigation measures for the possibility of discovering ancestral human remains or associated grave goods, and the City did not engage in tribal consultation before certifying the EIR (the EIR predated AB 52). Yet over the next 23 years, the lawsuit alleges, archaeologists unearthed ancestral remains and more than 8,000 tribal cultural resources at the project site. While the project was approved in 2003, large-scale grading activity did not proceed until January 2026, after the City of Poway authorized continued construction activity at the site with the approval of a tree removal permit.
The Attorney General alleges that the City’s approval of this tree removal permit was a discretionary action for which additional environmental review was required under Public Resources Code section 21166 and State CEQA Guidelines section 15162. These sections provide for additional environmental review when, among other things, “substantial changes occur with respect to the circumstances under which the project is being undertaken which will require major revisions in the environmental impact report” or when “[n]ew information, which was not known and could not have been known at the time the environmental impact report was certified as complete, becomes available.” (Pub. Resources Code, § 21166, subds. (b)-(c); State CEQA Guidelines, § 15162, subd. (a)(2)-(3).)
The Attorney General alleges that the above provisions required the City of Poway to conduct supplemental environmental review because the discovery of ancestral remains and tribal cultural resources constituted changed circumstances and new information. Per the Attorney General, the project’s impacts to these tribal cultural resources constitute significant impacts not analyzed in the previously certified EIR, and the City was thus required to analyze these impacts in a subsequent EIR. Additionally, the Attorney General alleges that the City was required to consult with the Kumeyaay Nation in developing mitigation measures relating to tribal cultural resources in the subsequent EIR.
On this basis, the lawsuit provides that the People of the State of California “seek a writ of mandate as well as declaratory and injunctive relief from this Court that would require the City to revisit its CEQA analysis, to adequately analyze the newfound resources, including by pursuing meaningful tribal consultation about the significance of the site, and to consider and adopt adequate and enforceable mitigation measures.”
The litigation is in its infancy, and the trial court has not yet considered the merits of the lawsuit. Nonetheless, the Attorney General’s filing of the litigation highlights how the State of California has made protection of tribal cultural resources a priority.
The First Appellate District Set Aside Project Approvals Based On a Public Agency’s Failure to Properly Engage in Tribal Consultation
California’s judiciary recently issued a published decision that further highlights the importance of tribal consultation to the development process. In Koi Nation of Northern California v. City of Clearlake, the First Appellate District set aside the City of Clearlake’s approval of a four-story hotel based on the City’s failure to properly engage in tribal consultation with the Koi Nation of Northern California (Koi Nation) in violation of CEQA and AB 52.
Under CEQA and AB 52, before releasing an EIR or mitigated negative declaration (MND), a public agency must give formal notification “to the designated contact of, or a tribal representative of” any “California Native American Tribe that is traditionally and culturally affiliated with the geographic area of the proposed project” if the tribe has submitted a written request for notice of such projects. (Pub. Resources Code, § 21080.3.1, subds. (b) & (d).) If a tribe responds, in writing, within 30 days of receipt of the formal notification, and requests the consultation, the agency is required to begin consultation with the tribe within 30 days of receiving the tribe’s request. (Pub. Resources Code, § 21080.3.1, subd. (e).)
AB 52 defines consultation by reference to Government Code section 65352.4, which defines “consultation” 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.” (Pub. Resources Code, § 21080.3.1, subd. (b), referring to Gov. Code, § 65352.4.) The consultation required under AB 52 may conclude when either (1) the parties agree to measures to mitigate or avoid a significant effect on a tribal cultural resource, or (2) a party, acting in good faith and after reasonable effort, concludes that mutual agreement cannot be reached. (Pub. Resources Code, § 21080.3.2, subd. (b).)
The appellate court ruled that the City of Clearlake violated AB 52 for several reasons. Notably, the appellate court held that the City failed to conduct or conclude the required consultation where the City met with Koi Nation’s representative “to discuss the project only once, never responded to the information [the Koi Nation’s representative] provided or the mitigation measures he proposed or otherwise engaged with Koi Nation about identifying tribal cultural resources or appropriate mitigation measures, and made no effort to reach mutual agreement on those issues.” While there was some discussion between the City and the Koi Nation regarding tribal cultural resources, the court found the “consultation here was perfunctory at best.” The court emphasized that there was no discussion between the City and Koi Nation of the reasons for the City’s decision to reject two of the mitigation measures that Koi Nation had requested, and the City did not inform Koi Nation of its decision to reject the mitigation measures. The court concluded that “[i]n the absence of any discussion about the City’s reasoning or conclusions, there was no real opportunity for Koi Nation and the City to seek mutual agreement.”
The Koi Nation decision underscores the importance of robust consultation with Native American tribes as part of the development process in California, where applicable. Notably, the Attorney General filed an amicus brief in support of the Koi Nation on appeal in this case, further highlighting how multiple branches of California’s government have emphasized the importance of tribal consultation and protection of tribal cultural resources.
Conclusion
CEQA and AB 52 require tribal consultation for development projects where certain conditions are met. Failure to properly engage in required tribal consultation can threaten project approvals and delay project completion. If you have any questions regarding tribal consultation requirements for your project, please do not hesitate to contact Brooke Miller at bmiller@sheppard.com or Ali Tehrani at atehrani@sheppard.com.