ATTENTION !!! (updated 5-27-08)

Scan down page for Morro Bay site damage.

$70,000,000 in Archaeological Site Destruction in Lake County California

Environmental Protection Agency Ignores the National Historic Preservation Act and Bulldozes at least 8,000 Years of Cultural History

Scan down to see a response from the Society for California Archaeology Executive Board

Between June and October 2006, the EPA decided to proceed with a toxic waste cleanup project on the Elem Indian Colony reservation in Lake County without the benefit of following the requirements of the National Historic Preservation Act (NHPA). Because they did not complete the required Section 106 archaeological evaluation of the project area, they designed their excavation and construction project oblivious to the fact that immediately beneath the toxic mine tailings were undisturbed historic and prehistoric sites of National Register quality. These sites dated back 8,000 to 12,000 years.

The EPA was not operating totally in the dark with respect to cultural resource knowledge on this project. Throughout the 6 year pre-project planning process, Tribal members and three separate Tribal Chairmen expressed concern about the preservation of the Tribe's cultural heritage and archaeological sites. The earliest letter in the EPA files was written in 2000. In it, Tribal Chairman Jim Brown III states “the entire area (the Elem Reservation and Sulphur Bank Mine) should be deemed an archaeological sensitivity zone and until a comprehensive and adequate cultural resources assessment has been completed, no earthmoving activities should occur within this zone.”

EPA's enabling regulations require that they follow "those cleanup standards, standards of control, and other substantive requirements, criteria, or limitations promulgated under federal environmental or state environmental or facility siting laws (40 CFR 300.5)." This means that the EPA was required to "substantively" follow the requirements of the National Historic Preservation Act.

In addition, EPA regulations specify that the EPA, "shall consult with the affected trustees on the appropriate removal action to be taken. The trustees will provide timely advice concerning recommended actions with regard to trustee resources potentially affected (40 CFR 300..310)."

This means that the EPA should have also consulted with BIA archaeologists, the State Office of Historic Preservation, and the Advisory Council before initiating the Elem Cleanup Project. In a recent letter from the Advisory Council to the EPA (Click to see letter 12-11-07), it is made clear that the EPA failed to even substantively comply with the National Historic Preservation Act.

In addition to non-compliance with the NHPA and their own regulations, the EPA also failed to conduct a “Resource Damage Assessment” and restoration plan for cultural resources damaged by their action as required by Title 43 Code of Federal Regulations Part 300.165.

SCA Official Statement Concerning the EPA Disaster

After reviewing all the facts, the Society for California Archaeology Executive Board weighed in on the EPA's failings. Their statement (published in the December 2007 Newsletter) states,

1. In the first two months of the project, no attempt was made to comply with Section 106 regulations. There was no pre-construction archaeological survey, no sensitivity study, no attempt to identify resources that were eligible or potentially eligible for the National Register of Historic Places, and no effort to have in place some sort of formal treatment plan to address potentially significant resources that could be uncovered during construction.

2. Judging by the photographic evidence submitted by both parties, and archaeological reports by both Dr. Parker and John Holson (Pacific Legacy), a substantial portion of what appears to be an intact deposit was mechanically excavated and removed prior to the hiring of a qualified archaeologist.

3. The EPA did not begin consultation with the State Office of Historic Preservation (OHP) until the OHP received a complaint from Tribal Administrator Jim Brown III in July of 2006, a month after earth moving activities had started.

The SCA Board lists three main concerns:

1. The lack of an EPA Cultural Resources Manager anywhere within Region 9, which covers Arizona, California, Nevada, Hawaii, and the Pacific Islands, clearly has resulted in a lack of oversight on this and presumably other EPA projects;

2. The lack of an internal process for complying with Section 106, CERCLA, and other federal laws... has resulted directly in the destruction of at least a portion of what appears to be an important archaeological resource;

3. The growing trend in the cultural resources management field that tribal consultation is the only component of Section 106 that needs to be followed, that tribal monitoring is the equivalent of or can be conducted in lieu of archaeological study, and that values attributed to cultural resources by tribal groups are the only values those resources have, is clearly resulting in the loss of cultural resources.

In sum, the SCA Board indicates that

"Had the EPA followed Section 106 regulations, damage to this site could have been avoided, resources important both to the tribe and for archaeological research could have been protected, and both the EPA and Elem could have avoided a lawsuit."

"The lack of oversight and a formal process for complying with the law that this project illustrates is glaring, completely avoidable, and needs to be addressed immediately by the EPA."

Click here to see Advisory Council letter asking EPA to explain their activities.

Click here to see the EPAs response to the Advisory Council.
Click here to see the Advisory Council's response to the EPA.
Click here to see Dr. Parker's response to the EPA letter (best to print this and the EPA response together and compare them side-by-side).

Before archaeologist John Parker was called in by the Tribe to evaluate the situation, at least 7,000 cubic meters of cultural soils were destroyed... along with much of the Elem Community's cultural past.

Two things need to happen in this case.

1) Congress needs to take a serious look at how the EPA does business. If the EPA has somehow found a hole in the National Historic Preservation Act, then that hole needs to be fixed, bringing the EPA back in line with all the other Federal agencies. The atrocity that occured at the Elem reservation cannot be allowed to ever happen again.

2) The Elem Community needs to be reimbursed for the loss of their cultural history. The EPA has taken from all of us important information about California's cultural past.

What You Can Do!

To help out with Item #1, write to members of the Senate Environment and Public Works Committee (click here) and to the House Appropriations Subcommittee on the Interior and Environment (click here). Let them know that the EPA should not receive any future appropriations for CERCLA related projects until they demonstrate their ability to comply with the National Historic Preservation Act.

To help out with Item #2, write a letter of support to members of the Elem Tribal Council and their attorney. You can email them by clicking on their names listed here.

Batsulwin (Eagle) Brown (Acting Tribal Chairman)
Sarah Garcia (Secretary/Treasurer)
Sharon Brown (Member)
Karen John (Member)
Thomas Brown (Executive Assistant)
Mike Schaver (Tribal Environmental Coordinator)
Amy Bricker (Attorney)

$9,000,000 in Archaeological Site Destruction in Morro Bay California

City of Morro Bay Violates California Environmental Quality Act Causing Untold Damage to Largest Prehistoric Village in Morro Bay

The City of Morro Bay approved the construction of 4 duplexes and two single-family homes to take place in the center of archaeological site CA-SLO-165. This significant site contains a wealth of information about the Chumash culture spanning the past 9,000 years. Just recently, archaeological work at the site has been used to determine when the silting of Morro Bay began and how long ago the Chumash culture began their shell bead money economy. The site is also the location of hundreds of Chumash burials. Beginning in August, backhoes and graders have trenched, terraced, and cut into cultural soils at the site. No archeology was conducted before the destruction (now completed) and it is estimated that more than $9 million in damage has been done to this non-renewable resource. In 2000, Archaeologist Nancy Farrell did a test excavation within the project area and discovered intact cultural soils extending to a depth of 1.4 meters (4 1/2 feet).

How could this have happened?

In reviewing the planning documents, it was discovered that in 2002 one property owner had plans for a single-family home. The archaeological evaluation of that project indicated the presence of the prehistoric site. The archaeologist and project architect worked out a mitigation plan to protect as much of the site as possible. The plan called for building the house on caissons rather than perimeter foundations. Caissons call for several small holes to be drilled into the soil for concrete "stilts" that hold beams. The house is then built on the beams. Caissons require much less trenching and grading than standard foundations, preserving the natural soil and the archaeological site. Because this plan protected most of the archaeological site soil, no archaeological excavation and data recovery was required. The plan only called for archaeological monitoring during construction.

Four years later, the property had changed hands and the new owner was able to split the lot and proposed two homes on "normal" trenched foundations. The city approved this NEW project using the same mitigation plan that was written for the single home on caissons. As the original archaeological evaluation only required monitoring of construction, no archaeological excavation was required to mitigate the damage caused by this newly proposed trenching. The California Environmental Quality Act (CEQA) is very specific in its requirements for proposed damage to archaeological sites:

Archaeological sites that cannot be preserved in place shall be mitigated through the excavation and analysis of the “scientifically consequential information from or about the resource” (CEQA Guidelines 15126.4 C).

By using the archaeological mitigation plan for the single home on caissons to approve construction of the two houses on normal foundations, the City of Morro Bay violated CEQA.

But the violation didn't stop there. A few months later adjacent parcel owners proposed 4 duplexes to be built on normal trenched footings. This also required huge trenches through site soil for a downslope retaining walls, footings, and utilities. All of these projects were approved using the same archaeological mitigation plan that was written for a single house on caissons. No archaeological excavation or analysis was conducted to mitigate the damage caused by the trenching and grading for these projects. Approximately 1,148 cubic meters of intact cultural soils were destroyed overall. We will never know what information these soils and their artifacts contained.

CEQA does allow Cities and Counties to use a single environmental document or mitigation plan for several projects.... as long as those projects will have the SAME impact on the environment as the original project for which the mitigation report was written.

None of the City approved projects (4 duplexes and two houses) had the same impact on the environment as the original project that called for construction of a single house on caissons. In approving each one of these projects, the City violated CEQA law.

Several San Luis Obispo County citizens filed formal complaints with the Grand Jury. In addition, a formal complaint and request for action has been filed with the State Attorney General's Office.