Calif. Indian Tribes Sue Transportation Agencies Over Destruction of Cultural Sites

Northern California Native American Tribes filed a lawsuit today against the U.S. Dept. of Transportation (DOT), the Federal Highway Administration (FHWA), individuals associated with those agencies, and the Director of the Calif. Dept. of Transportation (Caltrans) for allowing the destruction of archaeological sites, failure to address protocol for archeological sites and materials in a lawful manner, and failure to adequately consider alternatives in their highway construction project in Mendocino County--alternatives that would have both saved wetlands and protected Native American ancestral cultural and archaeological sites.

Plaintiffs in the case—the Coyote Valley Band of Pomo Indians and the Round Valley Indian Tribes of California (http://rvit.org)—maintain that the defendants’ have failed, prior to construction and during construction, to properly identify and protect ancestral and archeological sites in the highway project known as the Willits Bypass Project. Plaintiffs also contend that Caltrans destroyed Native American ancestral sites during construction and mitigation activities in a grossly negligent, if not intentional, manner. The Bypass Project is a 5.9 mile long bypass around the town of Willits, CA on Highway 101 through Little Lake Valley.

See photos in the lawsuit complaint: http://www.cpmlegal.com/news-California-Indian-Tribes-Take-Caltrans-to-Court-Today-For-Knowingly-Destroying-Historic-Preservation-Sites.html

Contentious since its inception, the Bypass has given rise to vocal public input at agency meetings, as well as scores of protests by local residents, the environmental community and the Tribes. There has been active development of alternative proposals by citizens, endorsed by public officials, including downsizing the project from a 4 lane to a 2 lane bypass. Such an alternative is considered reasonable given that Caltrans has already run into substantial cost overruns in completing the two lanes and it is far from certain that Caltrans will have sufficient funds to complete its mitigation requirements.

Plaintiffs “challenge decisions of the FHWA and Caltrans in the course of constructing the Bypass Project, along with the Willits Mitigation Project to mitigate impacts to wetlands and biological resources as a result of the Bypass construction”.

The legal complaint points out that Caltrans and FHWA have not properly engaged in required government-to-government consultation with the three Federally-recognized Indian Tribes with ancestral lands in Mendocino County about the Bypass construction process regarding the post-review discoveries, unanticipated inadvertent effects and potential adverse effects on the historic properties.

Geoarchaeological studies have shown that sediments in much of the Bypass Project’s Area of Potential Effects (“APE”) consist of Holocene deposits that have a moderate to high potential for buried archaeological remains. Despite this finding included by Caltrans in the EIS prepared for the project and the FHWA, the EIS was approved without a trowel being put to soil to identify sites that would be impacted by the project. To date Caltrans has failed to develop a Programmatic Agreement and Post Review Discovery and Monitoring Plan with the local tribes who for the past two years have been responding to Caltrans’ drafts while construction activities went on in full swing. These documents were supposed to be in place before construction and wetlands creation activities began, not two years after such activities.

Michael Hunter, Coyote Valley Tribal Chairman, in a July 20, 2015 letter to the North Coast Regional Water Quality Control Board, officials at the Army Corps of Engineers, Calif. Dept. of Transportation and Congressman Jared Huffman, said,

“Caltrans has paid lip service to the local Tribes whose cultural resources are impacted by this Project by engaging in hollow government to government consultations. During these face-to-face consultations, the Tribes have repeatedly requested that a Supplemental EIS be prepared given the substantial number of sites discovered since the EIR/EIS was approved in 2006.”

Subsequent to the single ancestral site identified by Caltrans in the EIS approved for the project, up to 32 archeological sites eligible for registry on the National Register of Historic Places have been discovered (some “discovered by bulldozer”).The California State Office of Historic Preservation has indicated that the entire project area of the Willits Bypass Project might have to be designated as an “archeological district” of ancestral sites.

Violation of the National Environmental Policy Act (NEPA) is alleged in the lawsuit, due to failure of the defendants to:

(a) Properly define the purpose of the Willits Bypass Project;
(b) Meaningfully consider alternatives that may fulfill that purpose;
(c) Adequately address the direct, indirect, and cumulative cultural, environmental, and historic impacts of the Willits Bypass Project;
(d) Identify, describe, or commit to necessary mitigation measures; and
(e) Appropriately permit and consider public input.

Drawing from the regulations set forth by existing law, the complaint recognizes that “alternatives are the ‘heart of the’ EIS, and must be presented along with the proposed action ‘in comparative form, thus sharply defining the issues and providing a clear basis for choice among options by the decision maker and the public.’”

Based on historic dealings (see http://www.savelittlelakevalley.org/2014/07/15/coyote-valley-band-of-pomo-request-for-consultation-with-army-corps-of-engineers/), Plaintiffs have reason to believe Caltrans will not exercise good faith in the identification, protection, and avoidance of culturally significant ancestral sites. The complaint charges that Caltrans has already arbitrarily skewed the professional standards used by archaeologists in California concerning the concentration of lithics that qualifies for the designation of a site as eligible for listing.

Prior to this action, the Tribes requested Caltrans issue a Supplemental Environmental Impact Statement to address the numerous historic sites that have been discovered in the Project area and the Mitigation parcels. Caltrans refused. The Tribes also contend Caltrans failed to exercise due diligence in its archaeological survey efforts for the Project, conducting only surface surveys in a wetlands area covered by grass. The Complaint asserts that, due to ongoing construction activities, sacred site identification occurs only after ground disturbing activities are completed. By way of relief, the Tribes request the Court immediately protect these areas, including by temporarily suspending construction activities on the Willits Bypass Project in order to address ongoing damage to sacred and cultural sites.

Complaint: http://www.cpmlegal.com/media/news/229_Willits Complaint with Exhibits.pdf

Attorneys for the Plaintiffs are Philip Gregory, with Crotchett, Pitre & McCarthy and
Sharon Duggan, Attorney at Law

For further information, please visit: http://www.cpmlegal.com