Protesters hold signs while workers continue work on the Willits Bypass, which will cut through Northern Pomo ancestral territory.

Rogue Agencies Can Ignore Historic Preservation Law

Marc Dadigan

A lawsuit filed October 2015 by the Coyote Valley Band of Pomo Indians and the Round Valley Indian Tribes claims California Department of Transportation officials flouted historic preservation laws while building the $210 million, 5.9-mile Willits Bypass straight through Northern Pomo ancestral territory in Northern California.

The alleged litany of misdeeds includes but is not limited to:

1. Circumventing the tribal consultation process.

2. Establishing unprecedented high standards for cultural sites to be eligible of National Register of Historic Places and worthy of protection.

3. Damaging ancestral village sites they should have known were there and failing to protect sites they had already discovered.

RELATED: Tribes Sue Caltrans for Alleged Destruction of Cultural Resources

In a blistering blog post, Caltrans officials denied all the charges and asserted they followed all the appropriate cultural resource procedures, known as Section 106 of the National Historic Preservation Act (NHPA).

Yet even if all the tribes’ allegations are proven true, cultural resource law experts say, Caltrans officials would not face jail time or criminal fines. And if the tribes didn’t have the resources to litigate, Caltrans officials would, if they desired, be able to maintain the same destructive practices with few consequences.

“The theory is that laws like the [National Historic Preservation Act] will be self-enforcing, and that the agency will be responsible and do things right, but it’s rarely true,” said Thomas King, a cultural resource expert and former staff member of the Advisory Council on Historic Preservation, in a 2014 interview. “Tribes are typically operating from a point of great weakness, and agencies, who are usually project proponents, have most of the balls in their corner.”

In his book Our Unprotected Heritage: Whitewashing the Destruction of Our Cultural and Natural Environment, King describes a system that is toothless, doesn’t prohibit specific negligent behaviors and provides agencies a wide berth in interpreting the rules and policing themselves. For the tribes, the Willits Bypass Project has served as a window system they say is short on accountability and that many describe as one where “the foxes guard the henhouse.”

Thomas King, a cultural resource expert and former staff member of the Advisory Council on Historic Preservation, wrote this book.

“Section 106 (of the NHPA) works well as long as everyone is behaving and following the intent of the law, but when you have an agency that wants to go rogue, there is nothing to stop them,” said Lee Clauss, Archaeological and Historic Preservation Law Consultant for the Sherwood Valley Band of Pomo. “Sherwood Valley feels like they have been forced to provide the oversight that the agencies should have provided.”

Loosey-Goosey Consultations

Sherwood Valley is not currently a party to the lawsuit, but many of their tribal members are descended from the Northern Pomo who inhabited the lush wetlands of Little Lake Valley, through which Caltrans built the Willits Bypass. They have been in consultations with Caltrans since 2013 when their then-tribal chair accidentally discovered construction was starting while driving in the area.

RELATED: Tribes Say CalTrans Illegally Destroying Historical Sites for Bypass

However, Caltrans officials say they have been consulting with the tribes since 2005, and this gulf in understanding what constitutes consultation is a regular source of conflict, experts say.

Even though federal executive orders have required agencies to develop government-to-government consulting procedures for tribes, experts and tribal leaders say the consultation process is often neglected or greatly abused by project proponents. A classic example of what agencies might consider “consultation” (that many have cited) is the brief letter sent to the tribal office, often among a deluge of other notices, that only vaguely describes what the project is and requesting input.

“We kept requesting face to face consultation, but they only wanted to do phone conferences. (Caltrans) never came to the table,” said Priscilla Hunter, representative for Coyote Valley. “That’s not consultation to us.”

Conflict of Interest Threats for Archaeologists

Tribal leaders also claim Caltrans archaeologists were negligent in their surveys of the area before construction began. Despite a great deal of evidence the area was fertile with village sites, they identified only one site of historical significance in their initial environmental impact statement. Since construction began, another 30 sites were discovered. One site, the village of Yami, was destroyed by the installation of 60-foot wick drains, according to the tribes. Caltrans refutes it was damaged.

Many cultural resource experts believe an inherent conflict of interest leads to inadequate surveys like what is alleged to have happened in Little Lake Valley: Archaeologists are often employed or contracted by the agencies and developers who want to build the project.

“Even if your boss says go work with the tribal elders and identify the plant gathering places that might be affected by such and such mining project. The boss becomes a lot less supportive once he realizes it’s going to cost an extra $1 million and the mining company is upset,” said Jon Welch, Professor and Director of the Professional Master’s Program in Heritage Resource Management at Simon Fraser University. “Even for archaeologists with high ethical standards, there are subtle pressures against you doing things the right way.”

These subtle pressures, Clauss said, might have been amplified in California because Caltrans took over Section 106 duties from the Federal Highway Association under a 2012 agreement. That is just one less bureaucratic buffer between the project managers and the cultural resource staff, she said.

Welch said it’s also common practice for agency leaders or developers to replace ethical archaeologists who are doing right by tribes with other staff who will get the Section 106 requirements done in a more efficient and timely manner.

This is what tribal officials say happened in the Willits Bypass case. Because so many village sites have been uncovered during construction, the tribes had been negotiating with Caltrans on the final terms of a programmatic agreement, or PA, that would establish standards for handling newly discovered historic sites and preserving those that had already been uncovered.

For most of 2014, tribal officials say they were having slow but relatively positive negotiations with Caltrans cultural resource staff from District 1 out of Yreka. But by early 2015, the job had been turned over to staff from District 3 from Marysville, which Clauss and others say has a reputation for not working as cooperatively with tribes.

Construction trucks are seen here driving through the notoriously fragile orange plastic fencing that is supposed to mark protected areas. (

Who Decides What Is Historic?

When Caltrans staff shared updated drafts of the PA this past summer, tribal officials were dismayed to find that most of what had been agreed upon was gutted. The new PA, according to the lawsuit, made it extremely difficult for a site to be considered historically valuable. If a site was identified as having historic value, the PA requires only a cursory “grab and bag” protocol for documenting what historical information was present, Clauss said.

“They were supposed to have this PA in place before construction, but they unilaterally decided to go ahead with construction activities while the tribes spent two years at the table,” said Pauline Girvine, an Indian Law attorney and legal advisor for Coyote Valley. “And at the end of it, all we had was a PA that didn’t include any of our concerns.”

Although all three tribes have strongly rejected the PA, there is nothing they can do to stop it from being instituted under NHPA. Because the project is not located on tribal trust land, Caltrans is not required to get their signatures on the PA.

RELATED: Tribes and Caltrans Reach Impasse, Tribes Refuse to Sign Agreement

While he could not comment on pending litigation, Caltrans Public Information Officer Phil Frisbee said they had been working closely with state and federal historic preservation officials, and they’d been told they’d done a good job on the PA.

“Almost 95 percent of the ground-disturbing activity on the project is done, time is passing, so at this point we need to finalize the PA,” he said, adding they implemented enhanced standards in the field as they were added to the draft PA.

The two main oversight bodies, the Advisory Council on Historic Preservation at the federal level and the California State Historic Preservation Office, must review the PA, but they don’t have the power to veto it, only to provide comments and critiques that Caltrans isn’t necessarily required to follow, said Julianne Polanco, State Historic Preservation Officer.

“We’re not a stamp of approval body,” she said. “If we don’t like it and they like it, they don’t have to do what we say. If the process is met, it doesn’t mandate an outcome.”

Without reform, many experts and tribal officials say historic and cultural preservation laws will remain relatively toothless, and tribes are in a precarious position, especially in California, which was densely populated by indigenous people prior to colonization and hundreds of languages and cultures remain. Today in California, tribes are generally small and have limited resources as they try to protect ancestral lands that are often located in highly populated areas.

“Without this lawsuit, we would be setting a bad precedent of Caltrans being the final arbiter of what’s culturally significant,” Hunter said. “In their worldview, it’s all about getting the archaeological data so they can write and publish papers about our ancestors, but for us it’s about that sacred and spiritual connection to the ancestors.”

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