Planning commissioners vote for EIR for Rattlesnake Island project
Written by Elizabeth Larson Lake County News Friday, 14 May 2010
LAKEPORT – The owner of Rattlesnake Island may have to wait at least another year before moving forward with building plans on the island.
On Thursday, following a four-and-a-half-hour hearing, the Lake County Planing Commission voted to require John Nady of Emeryville to conduct a focused environmental impact report (EIR) to look specifically at cultural and archaeological resources.
Nady, who has owned the island since 2003, said he already has done significant study in order to build a 2,930-square-foot residence, 1,258-square-foot caretaker's cabin, standalone bathroom and utility trenching on the 57-acre island off Clearlake Oaks.
With much of the public comment coming from concerned local tribal members – especially the Elem Colony – Nady maintained that no amount of study would ever satisfy the project's opponents, and he suggested that the EIR was just a matter of “kicking the can down the road.”
But Commissioner Cliff Swetnam said that an EIR was one way to answer concerns about the project and protect Nady if he or his family ever wanted to sell the property or were taken to court.
The discussion about the island illustrated the persistent, centuries-old conflicts between the western and American Indian philosophies of land ownership, private property rights and sacred space.
As Jim Brown of the Elem Indian Colony would explain, Rattlesnake Island is “the aboriginal pre-historic tribal township” of the Elem tribe, a place that he said possessed the tribe's “traditions, beliefs, religious practices, life ways, arts, crafts, social and community historical events.”
Brown and other community members – both tribal and nontribal – would appeal to the commission to keep the site's cultural significance in mind as they approached the project. While the commissioners said they were sympathetic to those concerns, they emphasized that they were limited in what they could consider.
Swetnam recalled his visit to the island several years ago, when the caretaker gave him a tour. He said he saw round impressions in the ground in places that had been identified as village areas, that there were grinding stones, and a lot of obsidian flakes and arrowheads on the ground.
Chair Clelia Baur visited the site 10 days before the hearing with the caretaker. She saw a new dock, a lawn, some small structures and outbuildings, large oak trees and the biggest buckeye tree she's seen in Lake County.
The grass was high so she couldn't see the native sites, although the caretaker pointed out a depression where one of the sites was. She also could see obsidian flakes, and there was a small solar panel array and small water treatment plant.
The island is home to a flock of sheep and some peacocks, and Baur said she also saw turtles and water birds. The caretaker told her that Nady has instructed him to keep the land as natural as possible, but they've had periodic trespassing and vandalism.
Commissioner Bob Malley said he visited the island Wednesday. “It's a well preserved piece of land right now, the way it sits.”
Community Development Director Rick Coel told the commission that Nady's current application was a new one. The last issue that the commission heard regarding the island, which took place at a January 2005 hearing, was an appeal of the Planning Division's denial of a zoning clearance permit for construction.
Staff was directed at that point to prepare a California Environmental Quality Act (CEQA) review of the proposed construction, which Coel said they did. As part of that, they hired archaeologist Dr. Thomas Gates, who prepared a project specific archaeological survey.
Gates said they dug 61 test holes and screened the soil to look for artifacts. They didn't have the authority to remove the items in order to take them for lab analysis, meaning they were limited to what they could analyze on the spot.
They found limited obsidian flake material and charcoal on the surface, the latter which he determined to be from brush burning.
Gates also found obsidian flakes – not tools or broken tools, which he said surprised him – as well as a silver dollar-sized area of finely crushed abalone and some clam shells. That was the extent of what the shovel test units discovered.
“In my opinion what we found in those 61 test units did not have much further information potential,” said Gates, with “information potential” being an archaeological term for the information that can add to a site's understanding.
Gates said the land is on the Native American Heritage Commission's sacred lands inventory. “In my opinion, one unanswered question here is what is the nature of that sacredness.”
He added, “I would recommend it's wise to find that answer.”
Gates suggested that if the project went forward, both archaeological and Indian monitors should be on site during excavation.
His report offered a list of items and what would result from finding them. He said leaf-shaped points or beads indicative of burials could result in a temporary work stoppage, burials could result in a full stoppage.
Gates told the commission that the island, which is eligible for the National Historic Register, is an archaeological district.
Community members testify to island's cultural importance
During several hours of public testimony, the commission would hear from numerous people asking for the EIR, and some asking for no project at all.
Nancy Kaymen, vice chair of the Lake County Heritage Commission, said the proposed mitigated negative declaration on the project didn't meet CEQA requirements.
Geraldine Johnson, chair for Elem Indian Colony, submitted a folder of letters from local tribal leaders asking that an EIR be completed.
Local archaeologist Dr. John Parker, who had submitted an eight-page letter outlining his concerns on the proposed mitigated negative declaration, summarized the main problems with the archaeological survey, including not determining the integrity of the cultural items within the project area. Nor was Gates able to wash the materials or sort, identify and classify them into meaningful categories, Parker said.
A mitigation plan for the site can't be developed if it hasn't been determined if the site is intact or not, Parker said.
He also emphasized, “Monitoring is not mitigation.”
Parker added, “If approved, you're telling the landowner and the Lake County community that we don't value even our most significant historical resources.”
He pointed out that Gates' report has three pages that outline what he would have done if he had been allowed to collect cultural materials. Parker said there was no part of the island that isn't culturally sensitive.
Victoria Brandon, representing the Sierra Club Lake Group, also pointed to the archaeological study's inadequacy, noting a biological study also was needed. The island is the center point of the first of the county's new water trails, she added.
Suggesting there should be a voluntary conservation easement over the rest of the island that's not included in the building project, Brandon said there were ways of redesigning the project to minimize the impacts on the area and its ancient cultural heritage.
“It's a really precious place,” she said, noting that it should be developed in the most sensitive way possible.
Reno Franklin, a member of the Kashia Band of Pomo from Sonoma County and chairman of the National Association of Tribal Historic Preservation Officers, shared with the commission the island's wider cultural significance. “It's not limited to just the Lake County tribes in the importance of it,” he said.
In the 1800s, runners were sent to other tribes to announce ceremonies on Rattlesnake Island. Franklin said the Kashia Band made the long trip from Stewart's Point on the coast – through territory filled with people hostile to natives – to the island, where they would spend nearly a year.
The archaeological resources survey is the science side of the equation; Franklin asked the commission to consider also the cultural side. He said there is no other place in California like Rattlesnake Island, where tribal peoples voluntarily traveled for worship.
“To explain this to you, it would be like the Muslims and Catholic and Jehovah's Witnesses all going to one place to worship together,” he said.
Franklin said he has not been on the island, since his tribe isn't now allowed there, and to go he would first need clearance from Elem members.
Baur asked him how he felt about the building project. Franklin said it was a tough question for a traditional Indian man. He deferred to what the Elem tribe believes is best. “I would hate to see it happen if it wasn't done properly.”
Clayton Duncan of Robinson Rancheria said he wanted to see both Rattlesnake Island and the Bloody Island area – the latter near Nice – given back to local tribes.
“You have the power to stop development on sacred land,” he told the commission, adding that local Indians were asking for their help in getting their lands back.
Deputy County Counsel Bob Bridges noted that the commission was tackling issues that touch on very sincere and long-held beliefs. However, he said the commission administers the county's zoning and grading ordinance and, as such, “Your ability is pretty limited in the whole spectrum of things.”
Big Valley Rancheria's environmental director, Sarah Ryan, said the project required a full archaeological study, and she went on to allege that Nady previously had acted in bad faith with regard to environmental laws, and had attempted to interfere with the consultant selection process.
“You have an opportunity to be strict with this person,” Ryan urged the commission.
“I hope he does sell it,” she said. “I hope that the tribe is able to purchase it back, because it is their land.”
Rose Brown, an Elem tribal member, said the project has a physical, mental and spiritual impact on her people, who can access very few of their sacred areas locally.
“We want to go back to our sacred site,” she said. “This place has been sacred to our heart.”
She said the planning commission could change the bad affects on the tribe by denying the plan.
Batsulwin Brown, vice chair of the Elem Colony, said the people of Elem haven't been considered in the process. The tribe, who can look out across to the island, which isn't far from the rancheria, used to have a tradition of swimming to the island during the summer, a practice that is no longer safe because of boat traffic.
“None of this is a joke to us,” he said.
He added, “Every single town in this county is built on our bones, our ashes, our blood.”
Baur asked him what he wanted to see happen with the island. Brown said he didn't want to see any development. “The Elem people did not abandon that land,” he said, pointing out that it was in continual use until the people were forced from the island to the mainland by government policies.
Nady: More study won't end opposition
Nady, who spoke toward the end of the hearing, said he has been a part-time county resident for 21 years, and he and his family consider themselves a part of the community.
He said prior to his 2003 purchase of the island, the previous owner made him aware of past controversies with the Elem people. He said he spoke to county officials about his plans before the purchase and only bought the land following a thorough title search that went back about 150 years.
Nady said he's been through numerous delays, including the stoppage of work on a septic system several years ago. He said he's cooperated continuously with the county, and that the commission could count on his continued cooperation.
But he doubted further study would satisfy the project's opponents. “You could do 10 EIRs, it would still have the same opposition.”
He said he's well aware of the island's historical and cultural significance, and the project won't harm the cultural resources.
When he bought the land it was overgrown and strewn with trash. Since then, he's cleaned it up, including clearing underbrush. “We've always strived to preserve the natural beauty of this property.”
Nady's wife, Toby, said she and her family have loved the island since first stepping foot on it.
“When you love something or someone, you do what's best for them,” and don't try to turn them into something they're not, she said.
Noting that the island – with its grassy hills, open fields and craggy coves – is “easy to love,” Toby Nady said a person didn't need to be of Indian heritage to care deeply about “this extraordinary and beautiful land.”
She and her family had no idea how long and difficult the project process would be, but they want to be part of the preservation going forward, she said.
Swetnam, noting the island's significant artifacts and history, said, “This controversy will never go away if an environmental impact report is not done on this property.”
He said it was the best course of action for the sake of the tribe, potential artifacts and the island's history, as well as helping protect Nady's interests. Doing the study doesn't mean Nady won't be able to build a house, but the study, Swetnam suggested, would help put an end to the controversy.
Malley, who said he knows Elem tribal members like Jim Brown, said he understood how deeply concerns about the island run in their community. “I agree that it's an unfortunate situation that title to this piece of property ever was taken away from the tribe,” he said.
He questioned why the tribe hasn't pursued a remedy through the courts, and said he understands how concern for the land “shines in their hearts.”
Like Swetnam, he believed the EIR was necessary, but added, “I don't think that it will ever be settled as long as Elem does not have control of that property.”
Kelseyville resident Anna Ravenwoode asked that the commission require Nady do a full EIR on the entire island, but Coel said he didn't believe they could do that, as the project area took up less than one-tenth of the entire island area.
Nady's attorney, Frederic Schrag, challenged the idea that there was such a thing as a focused EIR, and said the commission needed to consider the cost of an EIR versus the two single-family residences proposed for construction. He said one previous quote for the study had been $250,000.
Swetnam said they were asking for a focused study, not traffic studies and other considerations that would make it more expensive.
“You're wrong, counsel, there is such a thing as a focused EIR, we've done it several times,” said Swetnam. “You need to get your facts straight before you come up here and tell the commission what we can and cannot do.”
Bridges said what the commission proposed for the focused EIR was envisioned by CEQA, and added that a photo simulation requested of the project was not an onerous requirement.
Returning to the microphone, Nady told the commission, “This project is on an endless delay. It should be obvious to anyone.”
He said the goal was to continually delay the project so he gives up, which he said he wouldn't do. Nady suggested that requiring the additional study was a taking of his property rights, and asked why the tribe had passed on a chance to buy the land for $10,000 in 1978.
Swetnam told Nady he's done a good job of taking care of the island, but he needed to understand that the commission's decision goes with the land, not the owner. As such, who owns the land doesn't matter in relation to the decision.
Before the commission took the vote, Coel said they were realistically looking at a year to complete the EIR process, which would include a request for proposals and consultant selection