[The last month of legislative session is rife with behind-the-scenes action as many pieces of legislation are passed by the Senate and Assembly that should not become law. The FlashReport will be looking at a few bills this month that are poor public policy, and should be rejected…like this one that is a direct assault on private property rights!]
You decide you want to put a pool in your backyard. It wasn’t an easy decision. You and your family have been saving for years, but money doesn’t grow on trees. Still, you finally have enough money 
and you draw up plans and finally the big day has arrived. The work crews arrive en masse as the plan is to complete the whole project in just a couple of days — the most expensive part of this new addition to the home is the labor for these workers, who get paid for every day they show up. You watch as the hole in your backyard gets deeper, as the workers dig out what will soon be your new pool! The noise and dust of all of the work is all worth it as you anticipate your first pool party with the kids.
Then, suddenly, all is quiet. The lead contractor comes up to you and says, "We have a big problem…"
You ask him, "What is it? Is somebody hurt?"
"No," he says, "We were digging out your pool and we came across an indian bead necklace. There is a new state law that passed, AB 2641, and now all of the rules have changed. You’ll need to bring in a consultant from a local Indian Tribe at this point, so we’re going to send all of the workers home — but, you’ll have to pay them all, because it isn’t their fault."
You feel a lump in your throat, and say, "But wait, let’s get someone over here right now! Don’t send the workers home…"
"Sorry," says the foreman, "The Native American consultant has an entire month to work with you to resolve this issue."
"Issue??? What issue?"
I won’t keep going except to tell you what happens here. An consultant from a local tribe comes out and insists that this necklace could be part of a burial site that might extend under the house. They take 30 days to come back with a proposal to not only stop the pool construction, but calling for a ‘structured dig’ under the family home. Of course the family now has to retail a lawyer, which eats up the rest of the money they had for a pool, just to represent their interests before the California Native American Heritage Commission, which gets to decide what happens in this matter. Of course, this commission was formed to advocate on behalf of tribal interests — hardly an unbiased place to have the matter heard.
Of course, this is a fictional story, but it could soon be real. And I use the example of a home. But this could happen to a home-builder, or a government extending a road or highway.
Right now, state law says that if you find legitimate signs of an ancient Indian burial ground (you know the signs of a burial ground – human remains) that construction stops, and a consultant comes out representing the interests of the most likely tribe (within 24 hours) and arrangements are proposed with the property owner being the final decision maker.
Under this new proposed law, the decision-making is taken away from the property owner, and ultimately placed in the hands of the Native American Heritage Commission. Even worse is that the initial consultation goes from needing to be complete in a day to dragging out as long as a month. And the deadline for the state commission to make a determination? NONE. That’s right, a property-owners right to develop their property can be brought to a halt. In otherwords, you end up with property owners having a ‘taking’ of their property, through the delays and regulations and the costs of them.
Oh yes, let me not forget to add that under this new proposed law, there is a massive expansion of what kind of Indian relics can be cause for triggering a consultation, etc. The new guidelines are vague and over-broad. Under one interpretation, a property owned would be required to stop all work on a project if darkened soil was found. (Seriously!)
No one is saying that there should not be consideration given to the fact that Indian Tribes were in California before there was a California, and that there are sacred sites. But a solution should be found that is not violative of the property rights of the current owners.
Right now, property rights of Americans are under attack from every direction. This legislation, if passed, would create a scenario where property owners all around California could and would be subject to ‘takings’ as their property and property values suffer as sane public policy is jettisoned for this new bureaucracy that subordinates the interests of a property owner to others.
Click through right here to read a special column in today’s FlashReport from Allan Zaramberg of the California Chamber of Commerce, who makes the argument that if this legislation is not substantively amended, it should be voted down.
There simply is not way to say you advocate for private property rights AND support this legislation as it is drafted. The FlashReport urges legislators to vote NO on Assembly Bill 2641 (Coto).
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