On behalf of the Coyote Valley Band of Pomo Indians Tribal Council, I wanted to both explain why we are not signing the current proposed Programmatic Agreement, Post Review and Discovery Action Plan. We would also like to express our extreme disappointment in Caltrans for allowing this process to extend well into the construction phase. We are as well continuing to insist on face to face government to government consultation regarding our concerns, a request that has gone unheeded by Caltrans for several months.
Introduction: Over two years ago, Caltrans commenced construction activity on the Willits Bypass and Mitigation Project. Given the extensive construction activity to date, it is inauthentic and insincere for Caltrans to ask our Tribe to now sign off on a Programmatic Agreement and Post Review and Discovery Action Plan, when these crucial documents should have been in place through government to government consultation with the Tribes prior to the beginning of ground disturbing activities.
A Failure of Responsibility: Caltrans has completely failed to be pro-active in its responsibility to the Tribes. It took tribal and public outrage over the grossly negligent destruction of CA MEN 3571 in the Northern Interchange area of the Project to trigger Caltrans’ PA and PRDMP consultations with the Tribes. On September 18, 2013, the Advisory Council on Historic Preservation instructed Caltrans to enter into a MOU with the Tribes’ concerns for the protection of cultural sites within the Willits Bypass Project. Nearly two years have elapsed since this mandate from the National Advisory Council, two years of intense earth disturbing activities by Caltrans on the Willits Bypass Project, yet the Tribes and Federal and State Agencies have not agreed to terms in order to avoid further destruction of our heritage and to ensure protection of our ancestral cultural and archaeological sites.
During this two year period, our ancestral archaeological and cultural sites in the Willits Bypass Project footprint and mitigation lands were not properly identified or protected by Caltrans. Given this lengthy and otherwise inexplicable delay, it is obvious that Caltrans did not enter into these negotiations in good faith. Caltrans has used these negotiations as a ruse to delay implementing these important protective measures, appearing to listen to the concerns of the Tribes, and then responding by filling the proposed agreements with self-serving terms and procedures and proposed mitigation measures knowingly unacceptable to the Tribes.
Site Discovery: So many of our ancestral sites were discovered after the EIS for the Willits Bypass Project was approved. Yet both Caltrans and the Federal Highway Administration have failed to prepare a Supplemental EIS to address the handling of these ancestral sites. Since the commencement of government to government consultations with Caltrans, the Federal Highway Administration, the Army Corps, and the North Coast Water Quality Control Board, our Tribe has insisted that a Supplemental EIS be prepared addressing the avoidance and protection of our ancestral cultural sites both prior to and during construction and wetlands mitigation earth moving activities. These requests continue to go unheeded.
Six (6) ancestral sites were discovered subsequent to EIS approval and prior to construction. Yet no requirements under Section 106 of the National Historic Preservation Act were pursued by Caltrans. Such as notifying and consulting with the Tribes or creating ESA’s to protect the sites.
Site Destruction: In September 2013, an ancient village site was destroyed by Caltrans initially by the insertion of 1,100 wick drains to a sixty foot depth, followed by burying the site under several tons of dirt. To add insult to injury, in its early drafts of the PA, Caltrans lied by stating this site was “not adversely impacted.” Now, Caltrans’ current drafts of the PA state that the site “may have been adversely impacted.” Caltrans knows this site was adversely impacted as set forth in the criteria of 88.5(a)(2)(i). Our Tribe continues to assert that this site was destroyed through the gross recklessness of Caltrans.
Government to Government Consultation: Our Tribe has requested that its participation in this process be via the government to government consultation process mandated by both federal and state law, including but not limited to, the governing regulations under Section 106, as well as by NEPA and CEQA. We reference WHEREAS clause 3 on p. 3 of the Programmatic Agreement which states: “Caltrans will continue consultation with the Tribes, SHPO and ACHP on this undertaking as required by Section 106 and will continue to invite comments from the Tribes SHPO and ACHP.” Finally, Caltrans has conspicuously refused our constant requests for face-to-face government to government consultations on these documents and the issues they present. Caltrans’ failure to sit in a room with representatives of our Tribe is insulting.
Providing Information: There is no question but that the Project is a federally funded project that
adversely impacts our ancestral cultural resources. Yet, because our Tribe will not sign the proposed Programmatic Agreement and Post Review and Discovery Action Plan, we will be limited in receiving information on matters impacting our ancestral cultural resources. We object to provisions in the draft document that information will be provided only to the signatories to the proposed Programmatic Agreement and Post Review and Discovery Action Plan. For example, please reference Sections V and X (C) of the draft. Even if our Tribe does not sign the proposed Programmatic Agreement and Post Review and Discovery Action Plan, we should be privy to all actions taken and provided with all reports prepared regarding impacts to our ancestral cultural and archaeological resources under the provisions of Section 106 and pursuant to the federally mandated obligation under Executive Order to pursue government to government consultations with our Tribe. These are federally mandated obligations that cannot be avoided by Caltrans simply because our Tribe refuses to sign the unfair proposed Programmatic Agreement and Post Review and Discovery Action Plan.
Objections: Here are our objections to provisions in the proposed Programmatic Agreement and Post Review and Discovery Action Plan:
1. Under Section V Reporting Requirements and Related Reviews. Caltrans should provide the information referenced in this section to all Tribes, not just the signatories of the PA. This position is pursuant to government to government consultation legal mandates.
2. Too much site identification and status designation authority is left in the hands of the tribal monitors in the PA. Site designation, protection, and avoidance consultations should be with the tribally appointed representatives for government to government consultations. This PA does not even provide for notification to the tribally appointed delegates, let alone consultation.
3. We concur with the Sherwood Valley Band of Pomo Indians’ objections to the Classification and
Treatment of Sparse Lithic Scatters within the Willits Bypass and Mitigation Project Area currently proposed by the Caltrans archaeologists.
4. There is discretionary language throughout the PA and PRDMP which should be changed to mandatory language. Whenever Caltrans says it “may” do something, the word should be “shall,” especially given Caltrans’ track record on this project and our Tribe’s complete lack of confidence in
Caltrans taking actions in the best interests of the Tribes.
5. Caltrans continues to justify resorting to only data recovery efforts rather that site identification, avoidance, and protection in the wetlands mitigation parcels. [See p. 5 Section 2]. Throughout our government to government consultations with Caltrans, the FHWA, the Army Corps, and the North Coast Region Water Quality and Control Board our Tribe has insisted that cultural resources be given the same significance as biologic resources and the that mitigation wetlands creation requirements under the Mitigation and Monitoring Plan should not be used as a rationale for not properly protecting our Tribe’s ancestral sites. We have also asserted in government to government consultations that Caltrans should not be able to acquire mitigation credits for sites Caltrans has destroyed or failed to adequately protect.
6. Since the inception of our tribal government to government consultations, our Tribe has requested that the Tribes be given at least co-management authority over the management of the Mitigation parcels. The natural resource group proposed to manage the MMP lands has no expertise in Native American cultural resource protection and preservation. Our Tribe is very alarmed that the group being considered to manage the mitigation land has no one on staff who knows anything about Native American cultural resource management and protection. Mitigation must be expanded to not just include biologic mitigation measures for wetlands destruction but also for destruction and damage to our ancestral cultural and archaeological resources.
7. One of the most offensive Sections of the PA deals with Caltrans’ proposed mitigation measures for the damage done to our ancestral sites. [See Section III of the PA at pp.5-6.] After the insincere, resistant, and aggressive manner in which Caltrans has engaged in government to government consultations with our Tribe, we cannot agree to Caltrans controlling the very anthropologists who prepare our ethno-history or interview our elders. The anthropologists for this work should be chosen by the Tribes and should be independent of Caltrans.
8. The manner in which Caltrans has mishandled its obligation to identify, avoid, and protect the tribes’ ancestral sites is a case study in intentional neglect. The history of Caltrans’ treatment should be evaluated by independent anthropologists chosen by the Tribes. We would like the results of this case study to be presented to the Society for California Archaeology for its consideration so that no other Tribe in California has to experience the suffering we have endured at the hands of Caltrans.
9. We believe that a Heritage Program Management Guide, similar to that used by the Forest Service, should be developed for Caltrans and that a leading expert in Section 106 who is independent of Caltrans and the Tribes should assist in its preparation. We believe that Caltrans is in serious need of training and guidance in cultural resource protection, not the Tribes or Tribal monitors.
10.We object to the proposed mitigation measure of Caltrans archaeologists conducting cultural resource training sessions for Tribal monitors or our Tribal youth. Caltrans archaeologists have so disastrously failed to implement the mandates of cultural resource protection laws in their management of the Willits Bypass Project. If there is to be Tribal monitor and youth training, it must be done by experts in the Section 106 process who are not either employed by Caltrans or chosen by Caltrans. These trainers should be experts chosen by the Tribes.
11. We object to the proposed mitigation measure of placing signage on Highway 101 adjacent to the Little Lake Valley memorializing the Little Lake Pomo heritage in the valley. If such signage is put in place by Caltrans, it should reflect: “here is the ancestral home of the Little Lake Pomo that our construction activities desecrated and destroyed.”
Damages: Since the initial consultations with Caltrans, our Tribe has insisted on receiving an award of compensatory damages as a result of the destruction of and failure to properly identify, avoid, and protect our ancestral cultural and archaeological sites.
Caltrans has refused to compensate the Tribes for damages done to cultural sites within the Bypass project by an in lieu exchange of lands, stating that state law allegedly prohibits it from so doing: California Government Code 65967 permits the state to transfer lands when it is required to protect the property; however the permission is limited explicitly to mitigate any adverse impacts upon natural resources.
The California legislature must give us that explicit permission before we are able to treat cultural resources in the same manner. Section 65965 explains that the entity taking the land must meet specific requirements. If a non-profit corporation takes the land, it must have as its principle purpose and activity the direct protection or stewardship of land, water or natural resources. Therefore, while Sherwood Valley is a registered non-profit, the purpose of that registration would be key as to whether the Tribe was able to take any legal responsibility for the future management of any natural resource mitigation parcels.
The Tribes containing the lineal descendants of the Little Lake Pomo are prepared to organize into a nonprofit organization having as its principal purpose the direct protection and stewardship of land, water, or natural resources in order to assume stewardship over in-lieu exchange lands. Our Tribe has even proposed that lands be conveyed by Caltrans to the Tribes for the building of a living Pomo village in which Tribal children can experience the manner in which their ancestors lived. These lands could include a Native nursery of indigenous plants to be planted on damaged wetlands.
In negotiations regarding mitigation Caltrans once proposed granting an easement onto the mitigation lands for Tribal gatherers of foods, medicines, and basket weaving materials and for traditional religious ceremonial usage. Without explanation, Caltrans withdrew this proposal. Our Tribe requests that this provision be reinserted.
Conclusion: There is no way to compensate our Tribe for the extensive damage done to our ancestral cultural and archaeological resources by Caltrans. Our hearts are filled with the cries of our ancestors. We will continue to do all that we can to stand by them and advocate on their behalf. We firmly believe that it would be an insult to both our heritage and our integrity to sign off on the proposed Programmatic Agreement and Post Review and Discovery Action Plan. These documents do not provide a genuine means for protecting our ancestral sites in the future, let alone compensate us for destruction and desecration we have experienced.
For the past two years our Tribe has attempted to engage in genuine government to government
consultation. In response, Caltrans has presented us with draft after draft of proposed agreements that fail to recognize any positions taken by our Tribe, instead tendering a document filled by Caltrans with blatantly self-serving provisions.
Our Tribe objects to and will not sign the proposed Programmatic Agreement and Post Review and
Discovery Action Plan. We continue to request face-to-face government to government consultation on these documents and the issues they present.
Coyote Valley Band of Pomo Indians
Congressman Jared Huffman, c/o email@example.com
Lt. Col. John C. Morrow, District Engineer United States Army Corps of Engineers
Vincent Mammamo, CA Division Administrator, FHWA