The 57-acre Rattlesnake Island is located offshore of Clearlake Oaks, Calif. Lake County GIS image.
LAKEPORT, Calif. – Following an afternoon of testimony on Tuesday, the Board of Supervisors continued an appeal hearing in which Rattlesnake Island's owner asked to be allowed to move forward on a building project without completing an environmental impact report.
John Nady of Emeryville, who has owned the island since 2003, is asking that a mitigated negative declaration – not the focused environmental impact report (EIR) that the Lake County Planning Commission voted in May 2010 to require him to complete – be sufficient in order to allow him to get a grading permit for his project.
Nady wants to build a home, a caretaker's cabin, standalone bathroom and do utility trenching on the 57-acre island, located offshore from Clearlake Oaks.
The island is considered a sacred space to the Elem Pomo, whose members have spoken against Nady's building project for years, and who were in attendance on Tuesday afternoon to continue their protest not just of the project but of his ownership.
While the hearing was to be focused on whether or not Nady's study of the island's archaeological resources was sufficient – the land is listed on the California Register of Historical Resources – the public testimony frequently touched more on the core disagreement between accepted legal property rights, ownership and what it means for native peoples to protect their sacred spaces.
“Sacredness is real,” Clayton Duncan, a member of Robinson Rancheria in Nice, told the board during public comment.
John Nady's wife, Toby, would argue that the island was just as important to her family, who were pledging to protect and preserve it, but who wanted to be able to get on with their project after eight years of delays.
Community Development Director Rick Coel, Senior Planner Emily Minton and archaeologist Dr. Thomas Gates – the latter hired by the county to work on studying the archaeology – sat across the table from Nady and his team, which included attorney Frederic Schrag, archaeologist Kenneth Lord and Sacramento land use attorney Diane Kindermann.
Gates said that based on 61 shovel tests he found sparse to moderate “lithic scatter” – defined as artifacts and debris on the ground's surface – and that he didn't think further archaeological studies on the project area was needed, as he didn't believe significant finds were likely to result.
But Gates added that he didn't know the nature of the island's sacredness, which he said is usually more place-based than artifact-based. Gates said he didn't find religious-based artifacts in the project area.
Coel said Nady has a “use by right” under current county zoning rules to build two homes on the island, but the county grading ordinance requires a grading permit due to the potential for archaeological sites. A mitigated negative declaration is possible in the case, for which Coel said the county now has a very specific site analysis.
Schrag argued that the planning commission didn't follow the California Environmental Quality Act (CEQA) and was wrong to order the focused EIR.
“The only reason that we are here is because of the archaeological resources that were thought to be somewhere on Rattlesnake Island,” said Schrag, who didn't dispute the island's history or that there were “historically significant archaeological resources” on some parts of it.
The question, said Schrag, was whether or not those resources were in the area where Nady wanted to grade and build, which he maintained they weren't.
Anticipating the arguments against Nady's legal ownership, Schrag said the title Nady holds dates back to the 1870s. He said the local Pomo don't own the land and don't have a right to it, a matter which he said was settled in a 1949 lawsuit.
While local Indians may argue that Nady only has “paper title,” Schrag said that “in the laws of America, paper title counts for something.”
The Elem Pomo can think of Rattlesnake Island as an important place, but Schrag argued that they shouldn't have control over it or what happens to it.
Gates told the board, “I'll tell you, quite frankly, I was surprised,” regarding the archaeological resources he didn't find. He said he had expected to find at least some projectile points.
Lord agreed with Gates' report, saying that his review found that Gates used the appropriate statistical procedures. He added that Nady planned to build in a way that would have the least impact.
The board would allow Jim Brown of the Elem Colony to present his case against building on the island, with his presentation focused on challenging nontribal ownership and the thousands of years that the island has been sacred to his culture.
He said that his tribe was not a party to the 1949 lawsuit because they didn't know about it, and argued that only the US Congress could extinguish Indian title to the land, an action he said was not taken.
Rattlesnake Island as seen from the hillside above Clearlake Oaks, Calif. Photo courtesy of Chuck Lamb.
Protections for the island advocated
During public comment, Sierra Club Lake Group spokesperson Victoria Brandon said that in the planning commission process three registered archaeologists submitted comments on the survey of the project site.
“They all found difficulties in the way the studies had been conducted,” and argued that additional work was needed, she said.
Brandon said CEQA regulations “are really very clear” when experts disagree – in such cases, the law requires an EIR be completed.
She said she admired the way the county protects its history, pointing out other county historical preservation projects such as the Ely Stage Stop as well as the county's 150th anniversary.
“This is not 150 years of history, this is 6,000 years of history,” said Brandon, adding that it was owed to the county's past and to its future to protect Rattlesnake Island.
Archaeologist Dr. John Parker, who has studied the Clear Lake basin's archaeology for 40 years, said he believed Gates did the best job possible under the restrictions he had, which Parker said included not being able to remove the archaeological materials from the site for in-depth analysis. He said it was erroneous that stone flakes can't give more information about a site.
Because the materials couldn't be removed, they couldn't be tested to help conclude whether or not the area is undisturbed in order to arrive at a mitigation, Parker said. If the materials had been tested, it would have been possible to do a mitigated negative declaration instead of an EIR. Instead, Gates dug 61 spots, doing damage without data analysis.
Parker urged that the EIR be done. “Let's get that information. Let's find out what is really there.”
Gates said the county's request for proposals didn't require or fund the removal or testing of artifacts, which he said Nady owns and would have had to agree to let be removed. Gates said he felt the determination about the site's archaeological resources could be made without that testing.
Morning Star Gali of the Pit River Tribe of Burney – one of many American Indians from outside of the area who came to show their support for protecting the land – said native peoples would never attempt to make a determination about the sacredness of a church or a burial ground, but that the value of Indian sites constantly has to be proved.
“I just think that is really offensive,” she said.
Howard Chavez, a Robinson Rancheria member, said the place has great spiritual significance, and brought his guitar so he could perform a song during his public comment.
Norman “Wounded Knee” DeOcampo, a Miwok from Vallejo, told the board he has seen many sacred sites desecrated across the country.
He said he hopes that if Nady builds on the site nothing happens to him, as things tend to happen to those who build homes on sacred burial grounds. “I hope the spirits will reach you,” he said.
Despite being “mired in details and paperwork” for eight years, Toby Nady said the Elem cause wasn't lost on her family, but she asked them to also understand her family's point of view. She added that not everything native tribes do is earthwise or consistent with the laws of the land.
“It's not white law, it's not red law, it's American law,” she said, adding that people needed to see beyond the politics. “The law of the land has to prevail.”
She said she and her family are the bona fide property owners, not the enemy. “Like the Elem, we love this land.”
Board Chair Jim Comstock closed the public hearing at 5:14 p.m., and with another meeting set to take place in the chambers that night, he said the board would continue the hearing at 1:30 p.m. Tuesday, Sept. 6.
The board itself still has to deliberate the issue and take the public comment into account.
“We're not even close to being finished,” Comstock said.
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