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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
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
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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