LAKE COUNTY, Calif. – A judge has issued a proposed ruling in a lawsuit filed by a group that sued the county over a building project on Rattlesnake Island, finding there was not sufficient evidence to support allegations that the county didn’t require sufficient environmental studies before allowing the project to move forward.
Judge Michael Lunas issued the proposed statement of decision on Tuesday in the Friends of Rattlesnake Island’s suit against the county of Lake and the Lake County Board of Supervisors.
Emeryville resident John Nady, who has owned the 57-acre island off of Clearlake Oaks since 2003, was named as a real party of interest in the suit, which was filed in late 2011, as Lake County News has reported.
Friends of Rattlesnake Island, which formed shortly before filing the suit, sought a writ of mandate in its suit against the county as well as a requirement that an environmental impact report be completed before Nady could go forward with building a 2,930-square-foot residence, 1,258-square-foot caretaker's cabin, standalone bathroom and utility trenching on the island.
Lunas found the claims in the lawsuit alleging that the county failed to carry out enough environmental study to lack sufficient evidence, and said that zoning ordinances allowed Nady to use the island for residential purposes, with the island having been used for similar purposes for years.
Friends of Rattlesnake Island’s attorney, Rachel Mansfield-Howlett, did not respond to messages seeking comment, and Lake County News was unable to make contact with Nady’s attorney, Frederic Schrag.
County Counsel Anita Grant said Wednesday that, because the decision is still not final, she can’t offer much in the way of comment at this point.
Lunas said the parties have 15 days to serve and file objections to his statement of decision. He will consider those filings in a final statement of decision.
Sarah Ryan, one of the members of the Friends of Rattlesnake Island, said the group needs to confer and determine a way forward, since Judge Lunas’ proposed ruling is allowing them to submit additional briefs. “We will definitely take advantage of that.”
Ryan said the proposed decision does not take into account certain facts, and she expects Mansfield-Howlett will submit that information on behalf of the group.
The suit was filed in response to the Board of Supervisors’ 3-2 decision in September 2011 to grant Nady’s appeal of a May 2010 Lake County Planning Commission vote requiring him to complete a focused environmental impact report on the island’s cultural archaeological resources.
One of the group’s key concerns is the island’s status as a cultural, religious and political center for the Elem Pomo, who call it “Elem-Modun.”
The island is the location of many prehistoric and historic sites, and was placed on the California Register of Historical Resources in 2008.
Elem tribal members say the island was illegally taken from them in 1877.
Lunas, the newest judge on the Lake County Superior Court bench, heard arguments in the case on Feb. 21.
“The County conducted environmental review of the impacts to aesthetics and adopted mitigations designed to reduce those impacts to a less than significant level,” Lunas wrote in his 39-page proposed decision. “There is no substantial evidence to demonstrate that potential impacts were not identified or that the mitigation does not reduce the potential impacts to a less than significant level.”
Judge Lunas found that there was no substantial evidence to show that there were potential project impacts that the county didn’t consider or that the project would cause “a substantial adverse change in the significance of the Island, or any part thereof, as a historical resource.”
He also stated that the evidence presented didn’t prove that the project would prevent the island from being included in the National Register of Historic Places and the State Register of Historic Resources.
A brief history of the island’s planning issues
Rattlesnake Island has been the source of numerous public planning hearings, county actions as well as legal wrangling for nearly a decade.
According to county and court documents, Nady first proposed to build a caretake dwelling and standalone field bathroom on the island in 2004, applying for and obtaining septic permits for the buildings.
In January 2005, the Board of Supervisors sought – and received – a court order to stop Nady’s building project until mitigation and artifact studies were completed after it was determined that the county incorrectly issued him the septic system permits.
Later that month, the Lake County Planning Commission ordered Nady to carry out further study before beginning his project.
In April 2005 Nady applied for the permits to complete his proposed project, revising his plans in October 2007 to include the main residence.
In 2008, the county contracted with archaeologist Thomas Gates to evaluate the sites archaeological resources, with Gates performing an investigation the following spring.
“In sum, Gates found that the discovered archeological materials did not present much further information potential and, in his opinion, with a high degree of certainty, there were not present any unique archeological resources at the site of the Project,” according to Lunas’ proposed decision.
Based on an evaluation of Gates’ work, the Community Development Department prepared an initial study that identified potential impacts to historical and archaeological resources and aesthetics, proposed mitigation and mitigation monitoring measures to reduce impacts. County staff recommended approval of the project based on a mitigated negative declaration.
In May 2010, the Lake County Planning Commission voted to require that Nady complete a focused environmental impact report to look specifically at Rattlesnake Island’s cultural and archaeological resources.
The Board of Supervisors agreed to hear Nady’s appeal of that decision, with Nady arguing that a mitigated negative declaration be sufficient instead.
The appeal was heard over two meetings in August and September 2011, before the board voted 3-2 – with Supervisors Anthony Farrington and Denise Rushing dissenting – to allow Nady to move forward without completing the focused environmental impact report.
Friends of Rattlesnake Island would later apply unsuccessfully three different times to get a restraining order to stop further work on the project.
The group filed its lawsuit against the county in November 2011.
Judge’s take on the evidence
Lunas’ proposed statement of decision went through a list of items he said lacked substantial evidence.
Among them, he questioned the claims in the suit that the project has altered or substantially changed the archaeological resources, that unique archaeological resources existed at the project site or that such resources may be substantially adversely changed.
An Elem Pomo was not used as the project’s American Indian monitor, but Lunas didn’t find evidence that the absence of an Elem monitor impacted the environmental review’s validity or integrity.
“The values and feelings that the Elem Pomo have for the Island as a historical and spiritual place are definite and certain,” Lunas wrote. “However, this Project is not the barrier to the physical contact, access and use of the Island – Nady’s ownership controls those claims.”
The inquiry that the Friends of Rattlesnake Island group is seeking under the California Environmental Quality Act relates to whether the project “will affect the environment of persons in general and not whether a project will otherwise affect particular persons in a specific manner,” Lunas said.
Lunas said that, based on zoning ordinance, Nady has the right to construct two residences and use the island for residential purposes.
“For years, the Island has been substantially exposed to the type of use and activities occasioned by residential occupancy, involving farming, ranching and recreational activities,” Lunas wrote. “These activities are not subject to CEQA review and have been lawful use of the island by the owner. There is no substantial evidence to suggest that the residential use of the Island intended by the Project will cause any real change in that environment or the utilization of the lands by Nady.”
Lunas ordered Nady’s counsel to prepare and present a form of judgment in preparation for a final decision.
Email Elizabeth Larson at
052213 Friends of Rattlesnake Island Proposed Statement of Decision
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