NICE, Calif. – A local Indian tribe's work to open a gas station, mini mart and truck stop in the Middle Creek Restoration Project area along Highway 20 has local officials concerned about proper permitting, stormwater protection plans and environmental protection.
Robinson Rancheria is moving forward on the project, located on about two acres across the highway and just east of the tribe's casino at 1545 E. Highway 20 in Nice.
Grading on the project has continued into the rainy season, and the potential impacts on the lake and the environment caused the Board of Supervisors to hold an emergency discussion on the matter Dec. 14.
PNE Construction of Longview, Wash., the contractor on the project, would not offer comment, saying the tribal council preferred to field the questions.
When Lake County News contacted the tribal office to request comment on the project, a representative called back to say they would contact Lake County News when they are prepared to make a statement.
There are myriad issues raising concerns for local and state officials – from lack of permits for highway encroachment to stormwater monitoring.
County officials said the tribe has not shared its plans with them.
Northshore Fire Battalion Chief Pat Brown said the tribe hasn't contacted the fire district to discuss fire protection measures, as is common for such projects.
County Community Development Director Rick Coel said the tribe submitted no plans on the project to his department, and he heard about it after a staffer brought it to his attention.
“Apparently the site is in trust and the tribe did not feel it necessary to notify us or provide us with an opportunity to comment,” he said. “We, of course, are required to notify the tribes of proposals that could impact them.”
Phil Frisbie, a spokesman for Caltrans, said the tribe came to the agency in the project's early stages to see what sorts of impacts there would be. At that time, the tribe told state officials that they wanted to put an entrance to the station off of Highway 20.
“We explained the requirements,” Frisbie said.
Those requirements included traffic mitigations and a turn pocket, which the tribe decided not to pursue.
Instead, they chose to look at Reclamation Road, which runs off of Highway 20 and alongside the proposed project area, he said.
That decision took Caltrans out of the process, said Frisbie. “They're not doing any work on the state right-of-way.”
He added, “There's no permits or anything from us at this point.”
Caltrans District Permits Office Chief John Carson sent the tribe's attorney, Lester Marston, a letter dated Nov. 22 in which he urged they follow the encroachment permit process, which Carson said “will address the safety and liability concerns of motorists who travel on the State highway and use the gas station.”
The tribe has actually discussed the gas station project for several years.
In a February 2002 issue of “Rez Talk,” a newsletter put out by the tribe, it stated that the tribe was aggressively pursuing a “five-year” plan that included housing, economic development, a hotel – which has since been completed – the gas station and even considering its own electrical plant.
In a “Tribal Leader Roundtable” feature in the August 2010 issue of Indian Gaming, Tracey Avila, the tribe's chair, said the Robinson Rancheria Citizens Business Council in conjunction with the Robinson Rancheria Economic Development Corporation, “has approved to build a tribally owned and operated gas station located across from Robinson Rancheria Resort & Casino.”
Her statement continued, “After many years of consideration and planning the tribe believes that this is the right time for economic development and the new project will only increase the services for our gaming enterprise as well as future growth and prosperity for our tribe.”
Jurisdiction by federal officials unclear
The Bureau of Indian Affairs has guidance over many tribal affairs and projects, but John Rydzik, chief of Environmental & Cultural Resources at the agency's Sacramento office, told Lake County News that the BIA “would only have regulatory jurisdiction over such a project if BIA provided funding for the project, if the project would be leased to a third party or if the BIA was actually constructing the project.”
He added, “In the case of the Robinson Rancheria gas station project, none of the aforementioned circumstances exists. The Robinson Rancheria is funding and operating the project completely on their own, so the BIA has no jurisdiction over the project.”
Rydzik said the tribe is subject to federal laws such as the Clean Water Act, Endangered Species Act and other federal laws. “Therefore, laws to protect wetlands, as well as current permits from regulatory agencies such as the Corps of Engineers are applicable to the tribal project and the Tribe needs to comply with these federal laws and regulations.”
Robinson Rancheria is within the service jurisdiction of our Central California Agency. The agency's superintendent, Troy Burdick, not not respond to a request for comment on the matter.
Dave Killam, a spokesman for the US Army Corps of Engineers' Sacramento office, said the tribe had a permit for the project that was granted by the Army Corps in 1998.
However, it appears that the permit may expired after 10 years, Killam said, adding that the Army Corps was pulling the tribe's file from storage to look further into the matter and confirm whether or not the permit was valid. That information isn't expected to be available until the first week of January.
Tom Smythe, an engineer with Lake County Water Resources, said around 2004 the tribe proposed switching the property where the gas station will be located with other land it owns, since the Middle Creek project was going to put the land partially or completely underwater, unless a ring levee was built.
The Middle Creek project, which has been the focus of years of work and legislation on the state and federal levels, is meant to remove failing levees in the area and return about 1,400 acres of land to the lake. As reclaimed wetlands – which are called the “lungs of the lake” – the area is intended to help Clear Lake's nutrient loading improve.
However, former Water Resources official Bob Lossius told Lake County News in a 2007 interview that the land swap was considered “trust hunting” by some members of Congress, where the agreement was never approved.
As a result, Smythe said the talks with the tribe over the land issue stalled, with the Army Corps of Engineers trying to reinstate the discussion “somewhat unsuccessfully.”
That leaves the ring levee option, which Smythe said has several problems, the first of which is, “We're building new levees where we already know levees don't' work well.”
The second issue is that the county will have to take over the cost of maintaining the levees, Smythe explained.
Normally, when maintaining such levees, the protected properties are assessed to fund the maintenance. But, as Smythe pointed out, the lands in question are federal lands in trust, so they don't have to pay the assessment.
Neither the county nor the state Department of Water Resources wants to go forward with the ring levee. “The tribe has said they don't want a levee, either,” Smythe said.
“So nobody wants the levee and right now and talks are stalled,” he said.
Smythe said there is a concern about fuel tanks being located below groundwater level. If the nearby wetlands are impacted, he said the Army Corps of Engineers would be involved.
Cheryl Schmit of Stand Up California, a group that monitors Indian gaming across the state, said several tribes across California have opened gas stations.
Schmit raised concerns about loss of gas tax, which she said tribes don't pay. “It's significant,” she said, referring to the amount of money lost for state and local highways.
She questioned whether the new gas station will have some kind of gaming component like others have around the state, including slot machines in the station itself.
Another issue Schmit raised was whether or not the tribe would adhere to California emission requirements in the gas it purchased. She said that had been an issue with other gas stations.
Rydzik told Lake County News that he was not aware of existing tribal gas station that sell gasoline not meeting California emission requirements, even though state standards do not apply to trust lands.
Supervisors air concerns over project
On Dec. 14, Coel went before the board to share what he knew about the project, telling the supervisors that, because the project is on trust land, “We have no jurisdiction.”
Coel added, “I'm concerned about the stormwater issues,” explaining that if there is erosion that goes off site, it becomes the county's problem.
Supervisor Rob Brown pointed out a “double standard” in how the tribe's project is being handled compared to other similar projects.
“We may not have authority but we have an obligation to make sure that the lake is protected, and clearly it's not protected here,” he said.
He also asked if the Sierra Club had commented on the project. Supervisor Denise Rushing said she didn't know if they were aware of the situation.
Coel said he believed the tribe needed to do a federal stormwater plan, and he couldn't find one for it.
Public Works Director Brent Siemer said the project area is adjacent to a wetland.
County Counsel Anita Grant suggested writing to the Environmental Protection Agency, which she said has direct enforcement authority.
Water Resources Director Scott De Leon pointed out that the land where the project will sit is part of the Middle Creek Restoration Project area.
Supervisor Jeff Smith said the gas station's location was going to necessitate a ring levee.
He called the situation “nuts.”
By consensus, the board gave Rushing approval to write a letter to the tribe.
The subsequent letter, drafted Dec. 16, outlined county concerns, including stormwater management and Middle Creek, “a project of great importance to the health of Clear Lake,” and the fact that the project's access road, Reclamation Road, is under the county’s jurisdiction.
“Our Public Works Department has observed that you are implementing certain 'best management practices' to prevent direct damage to the county access road and has stated that a new encroachment permit does not appear to be needed at this time,” Rushing wrote. “However, our Stormwater Coordinator noticed that, given the time of year, grading on site appears to be extensive and does not meet county standards. Thus, our board is concerned that storm water runoff may not be limited to and contained within your tribal lands.”
Rushing asked Avila to “provide us assurances that you are not engaging in any action that damages county property or the waters of Clear Lake and that you are responsive to local environmental issues,” adding that the county also wanted to know the tribe's view on how this project may impact its involvement in the Middle Creek Restoration Project.
County Administrative Officer Kelly Cox said last week that the county hadn't yet received a response, adding that it may be too early to expect one.
Following the meeting, Lake County News followed up with the California division of the U.S. Environmental Protection Agency.
Press officer Mary Simms said the Army Corps of Engineers would be the best contact for the project.
She also referred Lake County News to a link for the EPA's National Pollutant Discharge Elimination System which showed the tribe took out a permit for the project in 2006. That permit is listed as active.
“According to our water division experts, assuming the adjacent wetland is a jurisdictional waterbody, a Corps permit would only be necessary if the project is discharging fill material into the wetland itself (e.g. grading the wetland for construction, as opposed to only grading near it),” Simms said in an e-mail.
If a permit is required, the tribe may be covered under an existing general permit, Simms said.
E-mail Elizabeth Larson at
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