SAN DIEGO – California Attorney General Jerry Brown filed a lawsuit June 24 against a water district which continued construction on a site that has been determined to be sacred to the Viejas Band of Kumeyaay Indians and should be permanently protected.

The lawsuit was filed in the Superior Court of California in San Diego central division on behalf of the Native American Heritage Commission. The lawsuit says construction of Padre Dam Municipal Water District’s $20 million reservoir and pumping station project would violate state law by causing severe or irreparable damage to the Viejas Band’s sacred site.

In a rare victory for indigenous religious rights, NAHC voted unanimously June 17 to declare the 2.5 acre site in San Diego County a ceremonial site and sanctified cemetery. Excavation there has uncovered human remains and hundreds of burned pottery shards and other items, indicating a ceremonial place and cemetery where cremated Native Americans were buried in sacred pottery urns.

The Viejas Band of Kumeyaay Indians, whose ancestors have lived in the area for 10,000 years, was designated as the most likely descendents of the people buried there.

Commission members acted after hearing oral arguments and taking written testimony at the special hearing. They ordered Padre Dam to halt construction and work with the Viejas Band to find an alternate site for the project. They also called on the state attorney general’s office to take legal action to halt further desecration, should the Padre Dam Municipal Water District ignore the mitigation measures recommended by the NAHC and resume construction at the site.

The next day, the water district resumed construction on the site, Viejas spokesman Robert Scheid said.

“We were stunned. And we let the commission know what was happening and it immediately sent a letter out to the water district telling them they needed to abide by the NAHC ruling or we would seek legal action from the attorney general, and even that didn’t stop the project,” Scheid said.

“They just kept going, and I think the attorney general sent a letter that night or the next day saying they intended to file legal action and that stopped them. They definitely were thumbing their nose at everyone. It took the attorney general to get their attention.”

Scheid hesitated in calling the events a victory, however.

“But it definitely is rare to come this far in the process and really have a good chance to protect these cultural resources. We feel we’ve got some momentum in that direction and the involvement of the attorney general has helped a lot.”

In early June, San Diego Superior Court Judge Judith Hayes issued a temporary restraining order to the water district to halt construction on around two-thirds of the two-and-a-half acre site pending the outcome of the June 17 NAHC hearing. The restraining order was extended until June 25 when the same judge was scheduled to consider Viejas’ request to make the restraining order permanent, but Viejas and the water district agreed to postpone the hearing, which is now scheduled for July 24.

The significance of the site was documented by the water district’s own Data Recovery Report of August 2009, in which one of its experts called the discovery “unparalleled” in the San Diego region and said the site contained “one of the highest densities of Native American ceramic shards ever found in San Diego County,” which has 19,000 recorded archaeological sites.

Fourteen human bones belonging to at least three to eight individuals have been positively identified by the Medical Examiner’s Office, dating to A. D. 780 – 1910.

The excavation also recovered 204 other bone fragments, which are characteristic of traditional cremation practices of local indigenous bands.

The items are being curated with the Barona Cultural Center & Museum, Scheid said.

“The items are not appropriate for display. They are just being held at this point.”

The water district was building the reservoir as part of a second pipeline system to the district’s eastern service area. The existing pipeline is 50 years old and would leave 30,000 customers without water if it broke, according to water district officials.

The water district bought the property for $409,000 in April 2006. It wasn’t listed as a sacred site by the Native American Heritage Commission at the time.

Padre Dam General Manager Doug Wilson told the San Diego Union Tribune there are no other suitable places for the reservoir that would connect with another water district plant via a two-mile pipeline. He said the delay is costing the district $150,000 per month, and finding another site would add $10 million to the cost, which would likely force the district to drop the project.

Although the new pipeline would benefit the Viejas Band, protecting the tribe’s cultural patrimony is more important, Viejas Tribal Chairman Bobby L. Barrett said.

“To move forward and desecrate this sacred burial ground would dishonor those who have been laid to rest there.”

Scheid said Viejas has made its position clear to Padre Dam.

“We’re calling on them to do what the NAHC said to do – find a different location and work with Viejas on protecting this sacred site in perpetuity.”