How to resolve AdBlock issue? At issue is the city’s 18th Avenue project, which will extend 18th Avenue to connect the Old Highway 53 with State Route 53, and build a four-story, 75-room Fairfield Inn & Suites hotel, one-story meeting hall and parking lot on a roughly three-acre portion of the former Pearce Airport landing strip.
In March of 2023, the Koi Nation tribe sued the city because it said the city approved the project and, in so doing, violated the California Environmental Quality Act, more commonly known as CEQA, for failing to hold consultation with the tribe.
In November 2023, Lake County Superior Court Judge Michael Lunas found for the city, ruling the city’s analysis of tribal cultural resources was sufficient, finding that the Koi’s claims that tribal consultation procedures were not followed by the city were false and that the Koi had not adequately requested consultation.
The tribe subsequently appealed the ruling and, on Friday, the California First Appellate District’s Division Two handed down a 33-page decision in which it sided with the tribe.
The tribe did not immediately respond to a request for comment on Friday afternoon.
“The appellate court's opinion puts lead agencies in an impossible situation that is frankly absurd,” said Clearlake City Manager Alan Flora. “I remain convinced the trial court decision was well reasoned and solidly based on the law. We continue to analyze our available options.”
One of those options, Flora said, is the California Supreme Court.
The appellate court document explains that the Koi argued that the city violated CEQA in three ways: It failed to comply with the requirements for tribal consultation; it used a mitigated negative declaration rather than an environmental impact report to review the project, which the tribe argued is required “because the record includes substantial evidence of a fair argument that the project may have a significant impact on tribal cultural resources”; and third, that “even if the City could proceed by means of a mitigated negative declaration rather than an environmental impact report, its mitigated negative declaration lacks information that CEQA requires.”
The appellate court concluded that the city failed to comply with CEQA’s consultation requirements, which required that the city’s approval of the project be set aside.
That was the key focus of the decision. “We need not address Koi Nation’s other arguments,” the justices wrote, referring to the tribe’s statements about the need for an environmental impact report or that the mitigated negative declaration was deficient.
“We will reverse the order and judgment denying Koi Nation’s petition for writ of mandate and remand the matter to the superior court with instructions to issue a writ of mandate setting aside the City’s mitigated negative declaration and related project approvals,” the justices ruled.
They also ordered that the tribe should recover its costs on appeal.
In July 2023 the Koi also sued the city over its Burns Valley Sports Complex, which was approved with a mitigated negative declaration. Flora said the city met with the tribe on that project “multiple times.”
The city’s legal issues over the projects led the Clearlake City Council in August to raise its $500,000 contract with the law firm to $750,000.
Then, in October, Lunas also found for the city in the Koi’s Burns Valley case. The judge concluded that the city “followed the advice of the archaeologist and considered tribal input in determining appropriate mitigation, which included avoiding any impacts to tribal resources and still included the presence of tribal monitors during construction,” the city said in a statement after the decision.
However, the Koi also have appealed that ruling.
Meanwhile, in January the U.S. Department of Interior decided to approve the Koi’s controversial casino and hotel project near Windsor. The project has had major pushback from Sonoma County tribes and residents because, while the Koi tribe claims ancestral ties to the Windsor area, their historic and ancestral lands have been in and around Clearlake.
The site and its history
In the 18th Avenue case, the key issue is tribal consultation, the requirement for which in CEQA was added by the California Legislature in 2014 through AB 52.
Agencies must work with tribes in such cases to protect tribal cultural resources, defined in Public Resources Code section 21074 as “sites, features, places, cultural landscapes, sacred places, and objects with cultural value to a California Native American tribe.”
The court documents acknowledge that, “Most of the project site was disturbed by the construction of an airport extension in the 1970’s, during which the land was bulldozed and graded, with most of the original landscape removed and redistributed as fill to form the base of an airstrip.”
The former airstrip area, which the documents note includes the southern portion of the 2.8 acre parcel where the hotel will sit and part of the land to be used for the road extension, is currently used as a construction staging area for the storage of equipment and vehicles, stockpiles and construction related materials. The city uses the site to store piles of crushed concrete and pavement, sorted and unsorted gravel, and surplus soils from other sites that were dumped by the city and its contractors.
“Some of the piles contain obsidian chunks and flakes that are associated with the soil that originated at other sites,” the documents explain.
Land in the northern portion of the project parcel is “relatively undisturbed, consisting primarily of wooded areas. A portion of the land to be used for the 18th Avenue extension is currently a paved roadway, and a portion is undisturbed land that is primarily grassland with scattered trees and shrubs.”
The case background explains that tribal leadership had raised concerns about the project because an ancestor had held property and resided in the project area. The city’s consultant, Dr. Greg White, worked with the tribe and concluded that the ancestor’s residence was just outside the project area, at which point the tribe advised the city that the project “should proceed with caution.”
The Koi Nation has an intergovernmental agreement with the Habematolel Pomo of Upper Lake, represented by Robert Geary, who the city notified of the opportunity to consult on the project. Geary replied on Habematolel letterhead to request consultation, mentioning only the Upper Lake tribe sought consultation, not the Koi. The city and Geary consulted on the project on March 9, 2022, and the mitigated negative declaration that was prepared said that consultation was requested by, and conducted with, Habematolel.
In October 2022, when the city issued its mitigated negative declaration, it said it received no comments from the Koi tribe within the 30-day comment period. The Clearlake Planning Commission approved the mitigated negative declaration the following month.
The Koi appealed the Planning Commission’s decision in December 2022. The Clearlake City Council denied the appeal in February 2023 after hearing arguments from the tribe about specific mitigations they wanted in place. The tribe sued the following month.
The appellate justices found that the Koi Nation met the statutory requirements for requesting consultation and that, after the March 9, 2022, consultation was held, in which Geary requested implementation of mitigation measures, “The City took the requests under submission, but did not engage in any further discussion with Koi Nation about the requests, even after Geary sent follow-up communication.”
The court decision also noted that “‘consultation’ requires ‘seeking agreement’ where agreement is ‘feasible,’” adding, “Nothing in the record shows that agreement between the City and Koi Nation was infeasible: there is no evidence that either party had adopted an entrenched position or that the parties had reached an impasse. But there is also no evidence that the City sought agreement, as it was required to do.”
It continues, “As far as we can tell from the record, the City simply determined at some point after Dr. White’s report was completed in August 2022 that the mitigation measures that Geary had proposed were unnecessary, but the City did not inform Koi Nation of its decision or the basis for that decision. In the absence of any discussion about the City’s reasoning or conclusions, there was no real opportunity for Koi Nation and the City to seek mutual agreement as the statute contemplates.”
The court concluded that the city failed to comply with CEQA’s consultation requirement and, as a result, abused its discretion.
However, the justices didn’t go into the other arguments the Koi made, including a request for an environmental impact report, or EIR.
“Koi Nation asks us also to order the City to prepare an EIR on the project,” the justices said. “We decline this request as premature. If the City goes forward with the project, it must comply with CEQA’s requirements, including the requirements for formal notification to those California Native American Tribes affiliated with the area that have requested notification and consultation with tribes that request consultation in response to notification.”
The case now heads back to Lake County Superior Court.
Email Elizabeth Larson at
031425 Koi v. Clearlake Lawsuit: A169438 by LakeCoNews on Scribd
