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Tribal sacred sites bill reaches governor's desk

Friday, August 30, 2002

By THOR KAMBAN BIBERMAN, San Diego Daily Transcript

"A controversial bill by State Sen. John Burton, D-San Francisco, designed to protect sacred Indian sites, has passed the Senate and the Assembly and is headed to the governor's desk.

Originally conceived as a measure to protect sacred lands that might be mined for their minerals, the legislation has been expanded to include virtually any development the tribes determine could harm their sacred sites. That provision makes developers very nervous.

The fear, which Viejas Band representative Nikki Symington said is overblown, is that tribes will be given carte blanche rights to veto every development in their area.

The bill says the tribes must be consulted if "a proposed project has the potential to degrade the quality of the environment" in their area.

This does not give the Indian tribes outright veto power over developments, but they must be brought into the discussion process if a possible sacred site is involved.

The tribes must also be involved if a development is planned within 20 miles of the exterior boundary of a Native American reservation. This is a more stringent standard than the one Burton originally proposed. The original standard called for any development within 20 miles of sacred sites.

Another provision in the bill giving developers fits is that because the tribes don't want their sacred sites disturbed, they have the right to keep the locations secret.

"Any information that is submitted by an affected tribe regarding a sacred site, including, but not limited to, the location, nature and use of the site, may not be included in the environmental impact report or otherwise disclosed by the lead agency or any other public agency to the public without the consent of the tribe that provided the information. The submitted information shall be published in a confidential appendix to the environmental impact report or negative declaration."

The bill does emphasize that the intent is not to prohibit the exchange of the submitted information between public agencies who have lawful jurisdiction over the preparation of the environmental impact report.

While the tribes don't have complete veto power, they cannot be overruled simply for economic reasons. In short, local jurisdictions can overrule the tribes, but they must provide a statement of overriding considerations saying that to not build the project would cause more harm to the environment than the project. An example of this would be a highway needed for congestion relief. Even then the tribe must still be notified, and be given 30 days to respond.

The provisions of the bill are retroactive to projects that were approved from 1995 to the present but have not yet been built. The bill would not affect the planned Gregory Canyon Landfill that was approved by county voters in 1994. The Pala Band of Mission Indians fought against the dump, located next to Gregory Mountain, a site the tribe considers sacred. That project is expected to begin construction in the middle of next year, with completion slated for the summer of 2004.

James Burling of the Pacific Legal Foundation is among a large group of developers and legal analysts who hate Burton's bill, and hope the governor vetoes the proposed law.

"It means it's going to be increasingly difficult to develop properties in the state," said Burling. "It's going to make housing more costly and drive it from the state. This just adds another level of bureaucracy."

Burling suggested that almost any property could be deemed to be sacred by a tribe.

Andrew Murphy, division president of homebuilder The Fieldstone Communities, said, "With all sensitivity to the tribal agencies, the number of regulatory agencies are already staggering." He claimed the measure will make it difficult to build schools, roads, and yes, houses in the state.

Murphy, who said he worked closely with a tribe on an Oceanside project, said it would be better to have cooperation, rather than something mandated by the state.

Fred Maas, managing director of Pacific Golf Communities, which owns Black Mountain Ranch, said it would make him nervous for the tribes to have so much power.

But Symington said Viejas and other tribes are not involved in a power or a land grab, but want to have a say about what goes on their sacred land -- that is, the land that hasn't already been developed.

"Most of the Kumeyaay sites have already been built upon ... very few of them are left," Symington said.

Symington related that one of those sites was near the Town & Country Hotel in Mission Valley and another in the Mission Trails Regional Park. Most of the sacred sites, which she likened to old churches for Christians, tend to be mountains. Symington said all the tribes want is a dialogue.

"We're certainly not grabbing land and this doesn't call for any dispensation, but it allows tribes to participate," Symington said. Calls to representatives of several bands, including Rincon, Barona, Pala, San Pasqual and Santa Isabel bands, were not returned."

Copyright 2002, The San Diego Daily Transcript

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