From WILL PARRISH
My piece below describes how Caltrans has appeared to violate Section 106 of the National Historic Preservation Act and the National Environmental Policy Act, consistently and repeatedly, in its dealing with the Sherwood Valley Rancheria of Willits, leading to the grading, wick draining, and filling in of a village complex in the wetlands of northern Little Lake Valley. Caltrans’ legal failures in this case fit with consistent patterns.
One of those is the long-standing pattern of US government abrogation of its legal commitments to First Nations people in general. The US federal government enacted more than 400 treaties with American Indian nations between 1787 and 1871 but has meaningfully observed none of them. Here in California, federal agents negotiated 18 treaties with California’s native nations that would have encompassed roughly 10 percent of state in 1851, only for the US Congress to claim to have “lost” the treaties, even going to the extraordinary length of placing the treaties under seal.
Not until 1905, when First Nations activist recovered these treaties, did the US government acknowledge their existence, which set the stage for the development of what is called the Rancheria System. Eleven rancherias, which typically consist of only about fifty acres of land, exist here in Mendo. Sherwood Valley Rancheria is one.
Another of those patterns is Caltrans’ failure to abide by many of its own basic agreements with other government agencies in the process of constructing the Willits Bypass. For more than two decades, Big Orange worked intensively to secure approval of all regulatory agency permits that establish the protocol they are to follow in constructing the Willits Bypass. So, you might think Big Orange would now actually be in compliance with the law now that construction is well underway.
Yet, on the very first day of construction of the Willits Bypass — February 25, 2013 — Caltrans and its contractor were forced to call off the work they had planned for the day when they were found to be in violation of the Migratory Bird Treaty Act — and, by extension, their own Environmental Impact Statement. The events of that day are worth recounting in some detail, not because the legal violation at issue is particularly unique, but because they provide a dramatic example of Caltrans’ pattern of evading its legal requirements.
Caltrans’ contractors were attempting to install fencing in the southern portion of their intended Willits Bypass route to demarcate the construction area, so that they could begin cutting trees and removing brush. Caltrans spokesperson Phil Frisbie, Jr. was on hand. When activists asked him if the agency had completed all relevant bird surveys, as agreed to with the California Department of Fish and Wildlife (CDFW), he claimed they had.
These activists shortly thereafter discovered bird nests in the project construction swath. They called the Department of Fish and Wildlife, which dispatched a biologist named JoAnn Dunn. Upon arriving at the site, she called off the project for the day. Later, it turned out CalTrans hadn’t completed viable bird surveys, contrary to Frisbie’s claim, but rather had contracted with a private engineering firm to write up a document composed of little over a page of text, roughly half of which described an extremely cursory bird survey.
Construction was delayed by over three weeks as the CDFW forced Caltrans to conduct more legitimate bird surveys. Meanwhile, direct actions by project opponents ensured Caltrans contractors didn’t continue with the fencing.
Section 4.8.3 of CalTrans’ Willits Bypass EIR reads as follows: “Pre-construction clearance surveys for nesting sensitive bird species would be conducted by a qualified biologist no less than 30 days prior to the start of vegetation removal. Vegetation removal would be performed during winter where possible to comply with the Migratory Bird Treaty Act. Survey results would be provided to [California Department of Fish and Wildlife]… upon completion of each survey. If sensitive species were found nesting in the project area or within 0.5 mi (0.8 km) of it, Caltrans would consult with the resource agencies to develop a strategy to further minimize the project impacts to these species.”
This episode was a microcosm of the power dynamics that have shaped the Bypass thus far: Caltrans complies with the law when they are forced to do so. Typically, activists are the ones holding them accountable for these obligations. Absent the pressure from these activists, the regulatory agencies are very often remiss in doing their job.
As one friend who is involved in Save Our Little Lake Valley described it to me, “The function of the environmental agencies seems to be to erect barriers for smaller, less privileged entities – small farmers, say. But the barriers are low enough that it’s easy to climb over them with enough wealth, power, and political access.”
Tragically, over the succeeding weeks, each of the protocols Caltrans established with the California Department of Fish & Wildlife was violated. In addition, Caltrans has attempted to alter protocols to accommodate desired construction activities. Buffered nests were subjected to noise and disturbance of heavy equipment operation, the size of buffer zones was decreased, and standards for determining if a nest was active were raised so as to make it almost impossible to protect this seasons’ nesting birds and young.
The same sort of dynamic played out when Caltrans contractors began hauling soil to dump on the Little Lake wetlands in late-August. The source of the soil was the old Apache Mill north of Willits, a former Louisiana Pacific saw mill. FlatIron/DeSilva Gates’ fill hauling trucks dumped this soil on the Little Lake wetlands’ “wick fields” for nine days.
The filling operation was clearly illegal under the terms of the 1975 Surface Mining and Reclamation Act (SMARA), being that it had not undergone any public review process. Abandoned mill sites are notorious for having high levels of chemical contamination. A lawsuit by the Willits Environmental Center and Keep the Code against the Mendocino County Planning Department halted the operation.
Not only did the hauling of fill violate SMARA, it violated CalTrans’ own permit with the Regional Water Quality Control Board: the 401 Permit. Condition 47 of this permit states: “All imported fill material shall be clean and free of pollutants. All fill material shall be imported from a source that has the appropriate environmental clearances and permits. The reuse of low-level contaminated solids as fill on-site shall be performed in accordance with all State and Federal policies and established guidelines and must be submitted to the Regional Water Board for review and concurrence.”
Neither CalTrans nor its contractors submitted their fill-hauling plan to the Regional Water Board for review. And, far from establishing that the fill material is free of pollutants, the survey of contamination at the mill site that CalTrans conducted reveals elevated levels of chromium, mercury, and other dangerous chemicals, while failing to test for the most common of mill site contaminants, dioxin.
This activity also violated Chapter 5, p. 161 of CalTrans Draft EIR/EIS of 2002: “Any borrow site used to provide fill for the project other than the designated site (Oil Well Hill) will be analyzed and submitted for review in advance by the resource agencies.”
These aren’t minor violations, such as the ones most Willits Bypass protesters have been charged with: infraction-level and misdemeanor trespassing. These legal breeches by Caltrans actually have repercussions for the health, safety, and well-being of the people and wildlife of the entire valley.
Last month, the Army Corps of Engineers’ chief regulator for its San Francisco division sent Big Orange a “notice of noncompliance” outlining five categories of Caltrans violations of its permit with the Army Corps. In May, on the very first regulatory inspection of Bypass construction activity, the State Water Board cited Caltrans for six violations of its permits. These are all just scratching the surface.
A far more thoroughgoing list of violations was compiled by members of Save Our Little Lake Valley in April, which is available at http://www.savelittlelakevalley.org/caltrans-willits-bypass-permit-violations/. The violations pile up all the time. The list is now outdated.
CalTrans’ Desecration Of Yami
Native people in the greater California North Coast region tended to cluster in foothills along streams and creeks that flowed into river-cut valleys. These areas collectively supported what many scholars consider the largest concentration of Native people anywhere on the North American continent.
Not surprisingly, one area where indigenous people chose to make their home is the northern portion of Little Lake Valley (aka, the Willits Valley), a veritable inland delta where five creeks that emerge out of the surrounding moutnains converge to form Outlet Creek, which then flows into the mainstem Eel River.
The village located in this uniquely abundant area, named Yami, is etched on a map drawn by Samuel Barrett, UC Berkeley’s eminent anthropologist and ethnographer of the early 20th century. Barrett’s 1908 dissertation, the Ethnogeography of The Pomo and Neighboring Indians, remains the standard scholarly reference on Native people in this region prior to the invasion of Europeans — still utilized by scholars and policymakers alike. According to Barrett, roughly 5,000 people lived in Little Lake Valley.
In other words, about as many were there as currently live there according to the US government’s Census counters (and Barrett, it should be noted, is regarded by many scholars to have vastly underestimated Native populations)
Since April, the California Department of Transportaiton (CalTrans) has been draining and filling much of this area, in preparation for constructing the northern interchange of its six-mile Highway 101 freeway bypass around Willits. In the face of persistent questioning from representatives of Little Lake Valley’s Pomo’s representatives and descendansts in the Sherwood Valley Rancheria regarding whether known archeological deposits associated with Yami were in the Willits Bypass construction swath, Big Orange’s personnel maintained at every turn that it was not.
CalTrans’ personnel were mistaken, or else they were lying.
On September 13th, Sherwood Valley Chairman Mike Fitzgerral opened his e-mail on his desktop computer in his office at the Sherwood Valley Rancheria, which is located on a 50-acre parcel on a bench in the foothills just west of Willits, and discovered a message from CalTrans Environmental Branch Chief Kendall Schinke of Big Orange’s Marysville office. Following a paragraph consisting of bland formalities, Schinke went on to inform Fitzgerral that CalTrans had just gotten around to mapping the “existing [Pomo] cultural resource[s]” on the Willits Bypass route. After completing this mpa, Scihnke notes, “ CT realized that CA-MEN-3571 was indeed located not only within the APE, but inside of the Area of Direct Impact (ADI).”
In other words, CalTrans’ contractors have scraped several inches of top soil off of the site associated with Yami, installed roughly 1,500 wick drains there, and now piled three feet of fill on top of it. Fitzgerral was flabbergasted.
“We don’t know how much damage was done to that site,” Fitzgerral says. “And we’ll probably never know.”
Following this revelation, both the Advisory Council on Historic Preservation and the California State Historic Preservation Office sent strongly-worded letters to Caltrans, with the latter admonishing Big Orange for violating a programmatic agreement (“PA”) it had previously signed with the Office concerning its handling of cultural resources in the Willits Bypass construction process.
State Historic Presrevation Officer Carol Roland-Nawi’s letter, sent on September 19th, states that “the violations of the PA and unfortunate results are of great concern to me. Consultation efforts shall continue to address these problems if Caltrans wishes to continue working under the PA for this project.” Both agencies also recommend that CalTrans re-open consultations with the Tribe under Section 106 of the National Historic Presrevation Act (NHPA).
The Act requires that agencies that receive federal funding to develop infrastructure follow a set process for consulting with Native people. Although only a small portion of the Willits Bypass is funded by the Federal Highway Administration (FHWA), Caltrans is required to abide this process as the lead agency overseeing the project.
Fitzgerral, who has been the tribal chairman since May 2005, has engaged in frustrated consultations with Caltrans officials for much of the year. Far from coming from some sort of avant garde posture, Fitzgerral and other tribal representatives have largely attempted to compel Big Orange to abide by the NHPA and the National Environmental Policy Act. Yet, tribal representatives maintain that only when they exert a great deal of pressure do CalTrans officials agree to meet with them. And, although the two parties have been meeting regularly since late-April, CalTrans has only completed one item on a list of roughly fifteen action items the tribe has presented them.
As these difficulties started to emerge, tribal officials hired anthropologist and archeologist Lee Clauss to assist them in dealing with Big Orange. Clauss is a community college instructor in Fullerton, who has worked for more than 15 years with First Nations people throughout the country to help protect their sacred sites and cultural legacies, including the White Mountain Apache, the Eastern Band of Cherokee, and others.
“I’ve reviewed and commented on behalf of tribal communities as part of more than 3,000 projects,” Clauss tells me. “Those run the gamut from the east coast to the west coast and include nearly every federal agency you can think of. And I’ve never encountered an agency that is as arrogant, as apathetic, as recalcitrant.”
Little Lake Valley Archeology
If you were to take a cursory look at the archeological and ethnographic literature concerning Little Lake Valley, you might conclude it was an area that was sparsely inhabited prior to the arrival of Euroamericans. The area is so well known for being marshy – the Central Pomo people referred to the valley by the evocatively intimate name Mto’m-kai, which closely translates to “Valley of Water Splashing the Toes” — so a common conceit of modern local residents is that it was mostly unanhitable.
So, CalTrans was entering into this relative breech when it began its archeological studies in preparation for constructing the Willits Bypass. The agency’s 2006 Environmental Impact Statement marked its first – and, to date, only – public release of its archeological findings. It mentions only two historically relevant sites, one of which is a Pomo archeological site and one of which is the Northern Pacific Railroad.
But CalTrans conducted a series of archeological investigations, as required under both the National Historic Preservation Act and the National Environmental Policy Act, in the subsequent years. In 2011 and 2012, for example, Caltrans’ contractors discovered seven additional archeological sites, including MEN-3571, the site that this article described as being in the Yami village complex, in an areas near the railroad tracks. Caltrans determined two of these sites as being outside of the so-called Area of Potential Effects (APE). Its personnel also recommended that two of these sites were not historically significant enough to warrant protection.
The State Historic Preservation Office disagreed with this conclusion, with Carol Roland-Nawi’s September 19th letter stating, “There is the real potential the Valley may become an archaeological district as more information emerges. Until site boundaries and components are known for these two sites, it is impossible to determine their contribution to an archaeological district, if any.”
CaltTrains failed to transmit any of the documents summarizing this archeological research to Sherwood Valley at the time. Clauss notes that the tribe is “very appreciative” of the sub-surface investigations CalTrans conducted in 2011, but she says tribal officials see these invesgitations as inadequate given that they were consigned to only a few specific areas. For example, CalTrans did not study the area where wick drains have been installed based on the far-fetched idea that there would be little impact to any archeological deposits there.
“Somehow, they didn’t see wick draining as a deep ground disturbance,” Clauss says.
Sherwood Valley Chairman Mike Fitzgerral’s first public difficulty with Caltrans took place in March. At the time, initial construction of the Bypass was being stymied by protesters. The Warbler’s tree sit was going strong. With the political winds surrounding the project seemingly shifting, State Senator Noreen Evans took the opportunity to send a letter to CalTrans outlining a number of “concerns” she had about the project.
CalTrans Director Malcolm Dougherty wrote a response dated March 20th, which featured a number of misrepresentations. One of those was his claim that, in essence, the Federal Highway Administration (FHWA) was requiring that the Willits Bypass be a four-lane freeway (there is no such requirement). He also claimed Sherwood Valley Rancheria as a supporter of the Bypass.
Fitzgerral contacted CalTrans and asked for a public retraction. When this retraction failed to materialize, he got in touch with the Santa Rosa Press Democrat and informed reporter Melody Karpinski that, to the contrary, he is opposed to the bypass as currently designed.
Fitzgerral takes issue with the idea that a four-lane freeway is necessary to handle Willits’ minimal traffic problem, noting that a two-lane road through Baechtel Ave. and the railroad corridor would be more than sufficient and far simpler to build. “Do they really think 10 years from now when you actually find out only 5,000 or 6,000 cars a day run on that bypass, that you’re going to be able to justify putting in two more lanes?” he asks rhetorically.
He also decries the damage the freeway has no doubt done to the valley’s fisheries, which had been rebounding before Bypass construction commenced. “We finally get the salmon back in these creeks, and now they’re out there just pounding away. I don’t think salmon are gonna come back anymore. They’re probably done.”
Fitzgerral says he was unaware that Bypass construction was even taking place until he drove past the area where the Southern Interchange is being built and noticed the construction equipment had moved in. He dialed up CalTrans District 1 Director Charlie Fielder and insisted on having a meeting, which Fielder agreed to. The first meeting took place on April 26yh.
At the time, CalTrans had no cultural monitors in the field to document potential archeological sites. There had been no meaningful consultations between the Tribe and Caltrans, as required by the National Historic Preservation Act. The tribe had not been involved in creating any agreement regarding how archeological findings were to be handled. With all those things in mind, Fitzgerral asked that CalTrans call off further construction activities until the two parties could attend to these fundamental issues. Fielder said that was impossible.
“The tribe was actively concerned about the lack of consultation unde Section 106, they were concerned about the fact they had not been provided with a number of archeological studies,” Lee Clauss says. “After finally receiving the archeological reports, we began to be concerned about whether appropriate monitoring was being offered. We began to be concerned about complete lack of ethnographic information about each fo the construction locations. We began to be concerned, based on reading CalTrans’ own material, that areas CalTrans said were outside the APE were actually in the APEs.”
Clauss continues, “So, we were consistently saying, ‘You need to stop work you need to stop work, and we don’t mean forever, we mean until we get these things resolved.’ Caltrans outright refused to stop work fro any amount of time.”
In early-May, Fitzgerral and Clauss drove to Sacramento and met with CalTrans lawyers there. They demanded that Big Orange employ cultural monitors, including at least one monitor designated by Sherwood Valley Rancheria, to be assigned to the Bypass construction zone and look out for disturbances of cultural sites. One Sherwood Valley monitor and one CalTrans monitor started full-time later that month.
Soon thereafter, the tribe felt like two monitors were not nearly enough, especially in the summer months as the amount and magniture and location of construction activites ballooned. Caltrans agreed to employ four additional monitors. Of the six monitors, Clauss says, four are typically doing work in the field. Since June, the monitors have discovered four sites in the project’s construction path that constituted so-called Post-Review Discoveries: significant archeological deposits that caused construction to cease in those discrete areas.
Initially, CalTrans and its contractors initially neglected to mark off these sites with fencing or signs, which even led to one of the contractors parking construction equipment on one of them for a time. They erected signs and fences only last week, following the controversy over the desecration of CA-MEN-3571.
A statement from Sherwood Valley Rancheria concerning the negotiations during this time period reads as follows:
“Since May 2013, SVR has provided both verbal and written comments to Caltrans concerning what the Tribe considers to be oversights in the identification of cultural resources within the Project APE, as well as inaccuracies and inadequacies in CT’s efforts to assess potential adverse effects to these resources,” a September 18th statement from the Tribe reads. “In particular, SVR noted great concern about four known archaeological sites and what appeared to the Tribe to be a substantial lack of project documentation proving that these sites were indeed outside of the APE and, thus, protected from disturbance associated with construction activities. CA-MEN-3571 was one of those four sites.
“SVR repeatedly requested that CT plot all known cultural resource locations onto existing project plans so as to avoid damaging the resources and to ensure responsible in-field monitoring of these locations during construction. SVR also called upon CT place physical, protective buffers around seven known archaeological sites, including CA-MEN-3571, until clarifications about the location, nature, and significance of the sites could be made and reports about these sites could be properly reviewed and commented upon by the consulting parties for the Project. From May 2013 to September 2013, these appeals were summarily dismissed by Caltrans and requests for explanation went unanswered. To date, no comprehensive cultural resources map exists for the Willits Bypass Project nor have the full complement of protective measures for archaeological resources, as stipulated in and required by the Environmental Impact Report and Record of Decision for the Project, been implemented.”
Tribal representatives again tried to bring these concerns to CalTrans at a meeting that took place last Tuesday, September 24th. Even though the meeting took place against the backdrop of CA-MEN-3571′s desecration, tribal representatives report that CalTrans is only making minor adjustments in its approach to working with the Tribe.
Clauss says, “Even as recently as this past Tuesday, even in the face of two neutral parties – the State Historic Preservation Office and the Advisory Council on Historic Preserrvation – saying, ‘We think you need to re-open your consultation with the Tribe under Section 106 of the National Historic Preservation Act and that we think you are in non-compliance with three or four other documents, even coming from those very esteeemed bodies, Caltrans still said we have no intention of stopping our work and going back to square one with you.”
CalTrans’ Response –
and Sherwood Valley’s Response To It
So far, CalTrans has struck a repentant note in its public proclamations about the harm the construction activities may have wrought on MEN-3571. Agency officials say they are investigating the clerical error that gave them the impression the site was not actually in the Bypass construction zone. However, they would not offer tribal officials any information on what this investigation would consist of nor when it would be completed. They also claim they are investigating the damage that was done to the site, but they admitted this investigation would consist only of re-reading the roughly three pages of existing material they have published regarding the site.
“Caltrans is working closely with the Sherwood Valley Rancheria and other interested Tribes to honor, respect and protect their cultural resources and history,” CalTrans’ public statement on the incident reads. “All sites in our project work area are mapped and fenced for protection from construction activities. Both Caltrans field staff and contractor personnel are aware of the importance of protecting cultural resources.”
However, the sites in the project work area were neither mapped nor “fenced for protection from construction activities” until roughly two weeks ago, in spite of tribal officials’ repeated requests that this simple step be taken.
In addition, as Lee Clauss notes in regard to this statement, “I’m not sure how a community is supposed to feel honored and respected when your concerns falls on deaf ears, when your requests go unanswered, when your pleas for the creation of processes and documents that would actually do more to protect cultural processes are ignored by the agency. It’s at a point where one tribal council member actually said at one of our recent meetings, ‘I believe you intend to complete the Bypass before you get any agreement documents done’.”
An email I sent to CalTrans spokesperson Phil Frisbie on Monday, September 30th had gone unanswered as of press time.