In Koi Nation of Northern California v. City of Clearlake (2025) ___Cal.App.5th__, the First District Court of Appeal set aside a mitigated negative declaration (MND) for a proposed hotel, holding the City failed to comply with CEQA’s tribal consultation requirements under Assembly Bill (AB) 52. The court found the City did not maintain a sufficient record of tribal consultation, failed to engage in meaningful and agreement-seeking consultation, and failed to properly conclude the consultation.
Background
AB 52, signed into law in 2014, amended CEQA to provide that “[a] project with an effect that may cause a substantial change in the significance of a tribal cultural resource is a project that may have a significant effect on the environment.” (Public Resources Code, § 21084.2) As amended by AB 52, CEQA includes definitions for tribal cultural resources and includes formal tribal notification and consultation requirements to facilitate agencies’ consideration of tribal “expertise concerning their tribal cultural resources.” (Public Resources Code sec. 21080.3.1, subd. (a).)
This case arose out of a proposed four-story hotel on 2.8 acres in the City of Clearlake. During initial planning, the City informed the Koi Nation of the proposed project and learned that the site was located near property where a Koi Nation ancestor had resided. Following formal notification from the City, and a meeting between the Koi Nation and City representatives, the Koi Nation submitted a letter requesting mitigation measures to avoid potential impacts to tribal cultural resources. Despite this letter and other follow-up letters, the Koi Nation did not receive any other communication from the City until the Notice of Intent to adopt an MND was circulated.
After the City adopted the MND, the Koi Nation filed a petition for writ of mandate alleging that City failed violated CEQA, including the requirements of AB 52. The trial court denied the petition, finding the Koi Nation did not satisfy the formal response requirements to initiate consultation. The Koi Nation appealed.
The Court of Appeal’s Decision
Formal Notice and Request for Consultation Were Satisfied
The court held that formal notification and response requirements were satisfied by both the City and the Koi Nation. The City sent formal notification to the Koi Nation representative and the Koi Nation representative responded with a written request for consultation. Despite some lack of clarity, the court held there was sufficient context to establish the City was aware the request for consultation was on behalf of the Koi Nation.
The City Failed to Maintain a Sufficient Administrative Record
Following the court’s determination that consultation was properly requested, the court found that the administrative record was insufficient to conclude that the consultation met CEQA’s statutory requirements. CEQA requires that an environmental document must include a general description of the information obtained during consultation, which in this case should have been included in the MND (or in a confidential appendix). Here, the City did not include any information discussed in their meetings with the Koi Nation, the Koi Nation’s concerns, nor any information regarding the mitigation measures requested by Koi Nation. Additionally, there was no record to indicate why the City had adopted some mitigation measures but not others. Rather, the MND only indicated that a meeting with the Koi Nation occurred. Given the lack of information, the court held that the MND did not sufficiently inform decisionmakers or the public.
The City Failed to Engage in Meaningful Consultation
The court also held that the City did not meet AB 52’s consultation requirements. Consultation is defined as the “[m]eaningful 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.” (Gov. Code, § 65352.4.) The court determined there was no discussion with the Koi Nation regarding the City’s decision to reject some of the tribe’s requested mitigation measures, nor did the City inform the Koi Nation of such decisions.
The court also found that the City failed to consult with the Koi Nation regarding its determination that the project would have no significant impacts on tribal cultural resources. The City and the Koi Nation did not discuss the contents of the archeological consultant’s report upon which the City’s determination was based, and despite their requests, the City did not give the Koi Nation a copy of the report. As a result, the court found that the City failed to consider the value and significance of resources to the Koi Nation, which is the purpose of AB 52.
Additionally, AB 52 requires agencies to seek agreement where feasible during consultation. Specifically, the parties in the consultation are required to act in good faith and make reasonable effort to reach a mutual agreement. (Pub. Resources Code, § 21080.3.2, subd. (b)(2).) The court found nothing in the record to indicate that the City sought an agreement with the Koi Nation or that an agreement was infeasible. Since there was no discussion about the City’s reasoning or conclusions related to the project, there was no opportunity for the parties to come to a mutual agreement.
The City Failed to Complete Consultation
While not necessary for the court to consider since there was no meaningful consultation, the court also noted that the City never concluded the consultation process. An agency may certify an EIR or adopt an MND for a project with a significant impact on an identified tribal resource only if: (1) the consultation process occurred and concluded, or (2) the tribe requested consultation and failed to engage in the consultation process, or (3) the agency provided formal notification and the tribe failed to request consultation within 30 days. (Pub. Resources Code, § 21082.3, subd. (d).) Consultation is considered concluded when the “parties agree to measures to mitigate or avoid a significant effect, if a significant effect exists, on a tribal cultural resource,” or when “[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 City argued there was no evidence of a significant effect on tribal cultural resources, and therefore, consultation was properly concluded. The court held, however, that the “report did not obviate the need for the City to consider the significance of resources to the Koi Nation in identifying tribal cultural resources.” Without such consideration, the City’s determination that there would be no significant impacts to tribal cultural resources carried no weight. And since there was no evidence that the City made a reasonable effort to reach a mutual agreement with the Koi Nation, the consultation could not be deemed concluded.
The court concluded that the City’s failure to comply with AB 52 was a failure to proceed in a manner required by law. The court also found the City’s failure to comply with the AB 52 consultation requirements meant that information the Legislature has deemed necessary for informed decision-making and public participation was not provided to the decisionmakers or the public, resulting in a prejudicial abuse of discretion.