Consultation

Consultation means 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, achieving agreement. 

Consultation on behalf of the University shall be entered by Presidential Designee(s) and be conducted in a manner that is respectful of tribal sovereignty, therefore Presidential designee(s) will consult with tribal representative who have documented delegated authority to speak on behalf of the tribe for the purposes of consultation and shall maintain records of all consultation activities. Consultation also shall recognize the tribes’ potential need for confidentiality with respect to tribal traditional knowledge and all tribal information shared during the consultation.  

CSULB may notify, as President designee(s) are able, campus officials of tribal consultation activities engaged by the Presidential designee(s).  

Pursuant to Section 8013(a) of the Health and Safety Code, the Native American Heritage Commission maintains a list of all California Indian tribes and their respective state aboriginal territories for the purpose of the repatriation of Native American human remains and cultural items. CSULB requests an updated NAHC Contact List for the purpose of formal consultation requests every 3 months.

If CSULB initiates consultation it will, at the earliest possible time identify California Native American tribes with which to consult and allow for a reasonable amount of time to respond to a request for consultation. A minimum of thirty days will be given for notices of consultation, when feasible. CSULB will be responsible for coordinating a time for consultation to take place at a location that will facilitate the broadest tribal participation possible. CSULB will consult with tribal elected officials and if other tribal representatives attend, if such tribal representative has been delegated the authority to speak on behalf of the tribe for the purposes of consultation. CSULB will ensure its representatives are duly authorized to speak on behalf of the Campus.

If the tribe initiates consultation, CSULB will coordinate with the Tribe for a mutual agreeable date, time and location. The tribe will be responsible for developing the agenda, and providing the materials. An agenda, pertinent materials, documentation, and other relevant information will need to be submitted to CSULB prior to setting a date for the consultation meeting. 

For ongoing processes the Tribe may seek regular meetings at an agreed upon interval. These meetings will be defined as “Coordination Meetings.” Coordination Meetings will serve to clarify how the Tribe and University will continue to consult in order to reach an agreement or end result activity that may have an effect on tribal resources, properties cultural practices, and/or those persons under Tribal jurisdiction. Coordination meetings will serve as a forum for sharing information. Coordination meetings will be used as an opportunity for the Tribe to provide input on processes and plans. Coordination meetings will usually involve Tribal staff but may involve Tribal Council or other Tribal decision makers by invitation of designated tribal representatives. 

During CSULB to Tribe consultation requests, the campus will give the tribe at least 30 days in which to provide comments or prepare for a consultation activity, unless there are circumstances that preclude such a time period, in which case, Campus will provide a written explanation for the shorter time period.

The notification will include, to the extent feasible, the following information:  

1. A description of the proposal to be discussed 

2. A description of the potential tribal impacts  

3. An expected timeline for departmental action  

4. Contact information for appropriate CSULB staff  

5. Instructions for providing feedback or asking questions about the consultation process, in accordance with this practice 

6. The tribes’ ability to request additional information on consultation topics  

7. The date and location of the consultation opportunities, if predetermined  

The means of written notification may include letters, mailings, listservs, Federal Register notices, notices in electronic or written publications or on CSULB's website, or other available means to communicate effectively with the tribe.  

The Tribe may ask questions and provide Campus with their concerns, interests, and recommendations during a formal consultation opportunity. The Tribe may propose and comment on topics other than those raised by Campus, such as recommendations for CSULB's consideration on program initiatives and budgets.  

Possible consultation mechanisms may include one or more of the following, or another appropriate means of communication:  

• Face-to-face meetings at the local, regional, and national levels  

• Roundtables  

• Teleconferences, videoconferences, and webinars  

• Mailings (either electronically or by postal mail)  

• Publication of a Tribal Consultation Opportunity in the Federal Register  

• Other regular or special consultation sessions that conform to the processes and procedures of this policy  

CSULB will provide accommodations to tribal representatives with disabilities as necessary for them to participate in the consultation.  

CSULB will keep a record of information provided and comments made during the consultation process for the length of time required by CSULB's record retention policy. Participants will be informed of how the consultation will be documented. Documentation will include, at a minimum, a list of participants, a summary of the issues discussed, and a thorough description of the input received from the participating tribes.  

The facilitator will make an announcement at the beginning of the meeting that the meeting will be recorded by a specific medium (such as notes, voice, or video). Documentation of the consultation process will be public record unless otherwise protected by confidentiality.  

Examples of documentation may include:   

• Notes of the discussion taken by a Campus employee,  

• a video or voice recording,  

• a professional transcript,  

• written comments submitted in response to a solicitation for tribal input.  

If CSULB takes notes at the consultation, it may be appropriate to make the notes available to all tribes that participated in the consultation for review and comment to ensure that the views of the tribes are accurately reflected. If CSULB creates voice or video recordings of the meetings, the facilitator will notify all participants that the meeting will be recorded.  

CUSLB will announce any deadlines for written tribal views to be submitted to CSULB for timely consideration.  

After consultation, CSULB will consider the input that was received. Consultation may continue after the end of formal input from tribes. CSULB will work to integrate tribal priorities and input into Campus’s decisions, with the goal of reaching solutions that are consistent with the Guiding Principles (Section II) of this document.  

When a decision about the policy at issue is reached, CSULB will make reasonable efforts to make available a written explanation of the outcome of the consultation process. For regulatory actions, the outcomes of the consultation process will be addressed in the preamble to the regulatory document. The written explanation will include the reasons for accepting or rejecting tribal suggestions. The timing of this response may vary and will be determined based on the form of the proposed policy. For ongoing issues identified during regular and case-by-case consultation, Campus will provide the appropriate parties with periodic status reports.  

CSULB consultation on qualified CEQA Tribal Cultural Resources is managed through CEQA Compliance. More information can be found online.

AB 52 applies to any project for which a Notice of Preparation, Notice of Mitigated Negative Declaration or Notice of Negative Declaration is filed on or after July 1, 2015. (Stats. 2114, ch. 532, § 11 (c)).  

A tribe that is traditionally and culturally affiliated to the geographic area where a project is located must have requested that the lead agency in question provide, in writing, notification to the tribe of projects in the tribe’s area of traditional and cultural affiliation. (Pub. Resources Code § 21080.3.1 (b)).  

Notification by Lead Agency  

Within 14 days of determining that an application for a project is complete or of a decision by a public agency to undertake a project, a lead agency must provide formal notification to the designated contact or tribal representative of traditionally and culturally affiliated California Native American tribes that have requested notice (Step One). (Pub. Resources Code § 21080.3.1, subd. (d)).  

This notice shall be accomplished by at least one written notification that includes:

• A brief description of the proposed project;  
• The project’s location;  
• The lead agency contact information; and  
• Notification that the tribe HAS 30 DAYS TO REQUEST CONSULTATION. (Pub. Resources Code § 21080.3.1, subd. (d)).  

Tribe Requests Consultation  

The tribe must respond, in writing, within 30 days of receipt of the formal notification and request consultation.  

When responding to the lead agency, the tribe shall designate a lead contact person.  

If the tribe does not designate a lead contact person or designates multiple lead contact persons, the lead agency shall defer to the person listed on the contact list maintained by the NAHC for SB 18 consultation. (Pub. Resources Code § 21080.3.1, subd. (b)).  

Lead Agency Begins Consultation  

The lead agency shall begin the consultation process within 30 days of receiving a California Native American tribe’s request for consultation and prior to the release of a negative declaration, mitigated negative declaration, or environmental impact report. (Pub. Resources Code § 21080.3.1, subds. (b) & (e)).  

For purposes of AB 52, “consultation” shall have the same meaning as provided in SB 18 (Govt. Code Section 65352.4). (Pub. Resources Code § 21080.3.1, subd. (b)).  

Conclusion of Consultation

Consultation is concluded when either of the following occurs:

• The parties agree to measures to mitigate or avoid a significant effect, if a significant effect exists to a tribal cultural resource; or  
• 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)).  

AB 52 requires that any information – not just documents – submitted by a California Native American tribe during the environmental review process shall not be included in the environmental document or otherwise disclosed by the lead agency or any other public agency to the public consistent with Gov. Code Sections 6254, subd.(r) and 6254.10. (Pub. Resources Code § 21082.3, subd. (c)(1)).  

Unless the tribe agrees, in writing, to public disclosure, the project applicant or the project applicant’s legal advisors, using a reasonable degree of care, shall maintain the confidentiality of the information exchanged for the purposes of preventing looting, vandalism or damage to a tribal cultural resource and shall not disclose the information to a third party. (Pub. Resources Code § 21082.3, subd. (c)(2)(A)).  

The confidential exchange of information regarding tribal cultural resources submitted by the tribe between the lead agency, the tribe, the project applicant, or the project applicant’s agent is not prohibited. (Id.)  

CEQA Guidelines Section 15120, subd. (d), states that no document prepared for public examination shall include information about the location of sacred sites – doesn’t protect the information from other forms of public disclosure. (Cal. Code Regs., tit. 14, §15120, subd. (d)).  

AB 52’s confidentiality provisions DO NOT APPLY TO DATA OR INFORMATION THAT IS:  

• A brief description of the proposed project;  
• The project’s location;  
• The lead agency contact information; and  
• Notification that the tribe HAS 30 DAYS TO REQUEST CONSULTATION. (Pub. Resources Code § 21080.3.1, subd. (d)).  
• The parties agree to measures to mitigate or avoid a significant effect, if a significant effect exists to a tribal cultural resource; or  
• 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)).  
• Already publicly available.  
• Already in the lawful possession of the project applicant before it  
• was provided by the tribe.  
• Independently developed by the project applicant or the project applicant’s agents.  
• Lawfully obtained by a third party. (Pub. Resources Code § 21082.3, subd. (c)(2)(B))