John Nady of Emeryville had appealed a May 2010 Lake County Planning Commission decision requiring him to complete a focused environmental impact report on cultural archaeological resources before he could build a residence, a caretaker’s cabin and standalone bathroom, and conduct utility trenching on the 57-acre island, located offshore from Clearlake Oaks.
Nady subsequently appealed the decision to conduct the focused EIR. He and his legal team argued the EIR wasn't necessary in light of a mitigated negative declaration and monitoring plan that had been created for the project, which they said affects only two-tenths of an acre.
“This island is not being turned into Disneyland,” said Sacramento land use attorney Diane Kindermann, who Nady hired to work on the appeal.
But local tribal members argued that the project's implications are far-reaching for their culture.
Elem Pomo tribal member Jim Brown, who had made a presentation to the board at its Aug. 16 meeting about his tribe's rightful ownership to the island – which Schrag said was ended in a 1949 court case – told the board, “This is where our civilization started.”
On Tuesday, at the end of the supervisors' second lengthy hearing on the matter, the board's majority agreed with Nady, voting 3-2 to uphold Nady's appeal, find that his grading permit met state guidelines and that a mitigated negative declaration would be issued.
Supervisors Anthony Farrington and Denise Rushing were the dissenting votes at the end of the four-hour session.
Nady, who has owned the land since 2003, said at the start of the hearing that he was open to the idea of allowing visits to the island and ceremonies there if he and the Pomo can achieve common ground. He also said the Elem Pomo were welcome to any artifacts found on the island or could leave them in place.
Nady offered to put up a small engraved plaque at the island's entrance explaining its history and cultural significance. “I realize that is a small first step,” he said.
He said he looked forward to having a relationship with the Pomo in the future that would facilitate ceremonies and visits. “I can't make any commitment beyond that,” until he sees a response, Nady said.
Nady's attorney, Frederic Schrag, told the board that the California Environmental Quality Act is meant to prevent adverse impacts on environmental and archaeological resources, but doesn't guarantee that all information on those resources will be extracted. Rather, it's to preserve them for the future.
He argued that an EIR “would provide no greater protection” than the offered mitigation and monitoring plan.
Local archaeologist Dr. John Parker argued that an EIR was necessary. “There may be a possibility that there is something buried that we don't know about,” he said.
Parker said that archaeological information was not removed from the site and analyzed in order for a mitigation plan to be developed. “You don't even know what's there,” he said.
Jim Brown told the board, “Stop stereotyping native Americans. We are all people, and this is our religion.”
Brown also argued that his tribe was not afforded the opportunity to have input on the county's archaeological study conducted by Dr. Thomas Gates, as was stated at the Aug. 16 meeting.
Schrag said it was his understanding from Gates – who was not present at the meeting – that the tribe had said it was best not to remove artifacts from the island during the study.
During the Tuesday discussion, Schrag said that the Nadys didn't need permits for some of the uses currently taking place on the island, from riding dirt bikes to using tractors for agriculture.
Batsulwin Brown, Elem's vice chair, said when the tribe met with Gates they asked that burial items not be removed, but artifacts could be taken for analysis.
He added that they only met for 10 minutes, and he didn't even consider it a meeting. “As the vice chairman that does not meet consultation.”
Later in the discussion, Batsulwin Brown would state that Gates requested a tribal monitor be present during the archaeological study but was denied by the county because Nady didn't want it.
CEQA process doesn't allow consideration of sacredness
Schrag argued that there is no evidence that unique artifacts exist where the ground will be disturbed for the project. He said Nady should be allowed to proceed with his “small project,” which included “two little residences.” According to planning documents, the main residence would be 2,930 square feet in size, with the cabin to be 1,258 square feet in size.
An EIR would offer no more protections, said Schrag, and would delay the project and increase costs.
Parker, who rose to respond to Schrag, said, “Mr. Schrag's version of history is very interesting but not factual in any way whatsoever.”
He stated that in a phone conversation with Gates on April 28, 2010, Gates told him that his original draft report called for a focused EIR, but that Nady forced Gates and the county to recommend only monitoring. Parker also claimed that Community Development Director Rick Coel let Nady edit the report.
“That's just absurd. That's not what happened,” said Coel, who sat across the table from Schrag and Nady.
Coel said it was unfortunate that Gates was not there. “I don't have too much faith in the comments being made today.”
He said that in his department's opinion, there was not enough archaeological material found on the island to warrant a full EIR.
Coel said the project has evolved over the last several years, with Nady going to kit-built, prefabricated structures to minimize soil disturbance. Taking all things into account, Coel said staff felt the project has a sufficient mitigation and monitoring plan in place to protect existing resources.
Nady has a “use by right” to build the buildings on the property, said Coel, explaining that CEQA was triggered by the grading permit due to the possibility of resources.
Rushing was concerned about what wasn't included in the CEQA considerations.
She said the island remains a political and religious center for the tribe. “We're told on one side it's about emotion,” but it's not, she said.
The island has been historically important to the tribe, which is recounted in oral tradition. “It seems that that oral tradition has some weight, and the cultural tradition has some weight” in the process, said Rushing.
Coel said county staff considered what CEQA guidelines allowed them to consider.
“We could not consider the sacredness, we could not get into the emotions of the issue,” said Coel, adding that he sympathized with the tribes.
He said the property has been in private hands for some time, and he said he personally would have loved to have seen Parker work with the Elem to identify funding sources in order to approach Nady about purchasing the land.
“Why that didn't happen I don't know,” said Coel, adding that there was a “six year window of opportunity.”
Ultimately, Coel said of Nady, “It's his land. He has that right in our local land use code.”
Coel added that the situation is “sad for all sides.”
Rushing said she felt bad for the Nadys, to have purchased the property and be put through a long and difficult process.
At the same time, “It's been such a tragedy for the Elem people and all the Pomo people,” she said.
Rushing said the basis of her decision was what was found on the island, and her concerns that the material wasn't allowed to be removed for review and analysis.
Supervisor Rob Brown said that the discussion on the issue had gotten too broad, and had turned into a referendum on righting a wrong from 150 years ago.
“This comes down to private property ownership,” said Brown, adding, “Private property ownership is not based on seniority.”
He said he tried to think of another county project that has been subject to so much scrutiny. “This is a house that somebody's getting ready to build. It's not a Walmart store.”
Brown said the issue has been taken seriously by the county and its staff, with the mitigation and monitoring plan far exceeding anything the county had asked for in EIRs it had done.
“In this case, EIR is code for 'Let's stop this project,'” Brown said.
Supervisors Jeff Smith and Jim Comstock agreed with Brown, while Farrington agreed with Rushing.
Brown made all three motions, all of which were seconded by Smith and passed with 3-2 votes.
Lake County News was unable to reach Dr. Gates at the end of the day to ask for comment on statements made about him and his work during the meeting.
E-mail Elizabeth Larson at
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