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The definitions in this section apply throughout this chapter unless the context clearly requires otherwise.
"Agency actions" include the development of policies, agreements, and program implementation, the implementation or enforcement of a statute, the adoption or application of an agency rule or order, permitting, licensing, certification, approval, or other granting authority exercised by a state agency.
"Indian tribe" means any federally recognized Indian tribe with contemporary or traditional lands and territories in Washington.
"State agency" means an agency, department, office, or the office of a statewide elected official, of the state of Washington.
"Traditional" refers to those beliefs, customs, and practices of an Indian tribe that have been passed down through generations and the places associated with those beliefs, customs, and practices.
"Tribal traditional cultural place" is any geophysical or geographical place, area, or feature, associated with the cultural practices, traditions, beliefs, lifeways, arts, crafts, or social institutions of an Indian tribe.
"Undue burden" means any material, significant, or sustained impairment, disruption, restriction, or diminishment of a tribal traditional cultural practice, or of the integrity, continuity, condition, or accessibility of a tribal cultural place, including direct or cumulative impacts.
In establishing a government-to-government relationship with Indian tribes, state agencies must:
Make reasonable efforts to collaborate with Indian tribes in the development of policies, agreements, and program implementation that directly affect Indian tribes and develop a mutually agreed upon consultation process that is used by the agency for issues involving specific Indian tribes. Covered agencies, as defined in RCW 70A.02.010, subject to the requirements of chapter 70A.02 RCW, must offer consultation with Indian tribes on the actions specified in RCW 70A.02.100. State agencies described in RCW 70A.65.305 must offer consultation with Indian tribes on the actions specified in RCW 70A.65.305;
Before taking any agency action that may affect a tribal traditional cultural place, provide timely written notice to affected tribes describing the proposed action and reasonably foreseeable impacts and allowing adequate time for consultation before any final decision. The state agency shall engage in early, meaningful, and consent-based consultation with each affected Indian tribe for any agency action that may affect a tribal traditional cultural place or practice. Consultation must begin at the earliest stage of planning, continue through the decision-making process of the agency, and seek to reach consent from the affected tribe. Tribal nations and their people are the subject matter experts on their own traditional cultural places and practices. The consultation process must reflect the consultation standards of the affected tribe and provide the tribe with the information and time needed to fully evaluate potential impacts;
Designate a tribal liaison who reports directly to the head of the state agency;
Ensure that tribal liaisons who interact with Indian tribes and the executive directors of state agencies receive training as described in RCW 43.376.040; and
Submit an annual report to the governor on activities of the state agency involving Indian tribes and on implementation of this chapter.
A state agency may not impose an undue burden or interfere with an Indian tribe's exercise of traditional cultural practices on a tribal traditional cultural place unless it is in furtherance of a compelling governmental interest and is the least restrictive means of furthering that compelling governmental interest.
An Indian tribe whose traditional cultural practices have been burdened in violation of this section may assert that violation as a claim in a judicial proceeding and obtain appropriate relief against a state agency. Actions shall be brought in superior court in accordance with chapter 4.92 RCW.
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The aggrieved party shall have the burden of proving that the agency action having an impact upon the management, use, or preservation of a tribal traditional cultural place, is posing or will pose an undue burden on any aspect of a tribal traditional cultural practice.
If the aggrieved party meets its burden of proof under (a) of this subsection, the agency shall have the burden of proving that the governmental interest in the state action is compelling and that the agency chose the least intrusive means for satisfying that governmental interest.
In the case of any proceeding involving a tribal traditional cultural place or associated traditional cultural practice of a tribe whose traditional cultural tenets prohibit disclosure of information concerning their traditional cultural places or traditional cultural beliefs or practices, and mandate secrecy and internal sanctions to enforce those prohibitions, and where the tribal government of the affected tribe so certifies, the agency shall have the burden of proving that:
It has a compelling governmental interest in pursuing the action as originally proposed;
It is essential that the agency's compelling governmental interest be furthered as originally proposed; and
None of the less intrusive alternatives identified adequately advance that compelling governmental interest.
If an agency does not meet its burden of proof under this section, it shall not proceed with the proposed action.
Except as provided in section 3 of this act, nothing in this chapter creates a right of action against a state agency or a right of review of an action by a state agency.