Coalition asks Coastal Commission to Revoke Brightwater Development

02. Jun, 2008 0 Comments

From a press release:

Concerned Native Americans, the California Cultural Resources Preservation Alliance and the Bolsa Chica Land Trust have all signed on to the attached letter to the Coastal Commission requesting a revocation hearing on the archeological issues surrounding the Brighwater development project at Bolsa Chica Mesa.

June 2, 2008

California Coastal Commission
Teresa Henry, District Manager
200 Oceangate, 10^th floor
Long Beach, CA 90802-4416

RE: Brightwater / Bolsa Chica Permit 5-05-020

Dear Ms. Henry:

We, the undersigned ( petitioners) along with over 500 interested citizens who have submitted signatures, request an immediate investigation by the California Coastal Commission with respect to Permit 5-05-020 Brightwater , approved April 14, 2005

( Condition of Approval 23 attached as Exhibit A).

If any of the following allegations are discovered to be true we request that the Commission immediately revoke or suspend this permit.

The petitioners want to preface the above request by noting that over decades the petitioners have come to believe that the Bolsa Chica sacred site is being systematically destroyed or, at a minimum, placed in grave peril. The petitioners do not fault the Coastal Commission or any other public agency for this state of affairs. However, we believe the following presents such a clear case of improper action relative to the Bolsa Chica sacred site that specific action must be taken immediately.

Revocation of Permits

Section 13105 of Title 14 of the California Code of Regulations provides as follows:

Grounds for revocation of a permit shall be:

Intentional inclusion of inaccurate, erroneous or incomplete information in connection with a coastal development permit application, where the commission finds that accurate and complete information would have caused the commission to require additional or different conditions on a permit or deny an application;

In accordance with Title 14 CCR Section 13053.5 c, an application is to include a dated signature by or on behalf of each of the applicants, attesting to the truth, completeness and accuracy of the contents of the application. We are concerned that the Commission may have been provided with less than complete information regarding the cultural resources on the Brightwater site, resources of which the applicant may have been aware.

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The following are staff report sections and correspondence from applicant:

July 27, 1992 letter from attorney for Hearthside, Susan Hori to Cindi Alvitre (Exhibit B)

“As you know, other sites on Bolsa Chica Mesa have already been fully excavated and mitigated ( ORA 289, ORA 78 and ORA 85). No human remains were found during the course of any of the excavations. All of the material which was recovered, i.e. shells, beads, etc are in the possession of the landowner or the archeological consultant.”

(Emphasis supplied)

April 14, 2005

Coastal Commission staff report: Revised Findings 10/13/2005 (ExhibitC )

Page 97 of revised findings

“The applicant contends that the Brightwater development project will not adversely impact either of the two on-site identified archeological sites due to the fact that a series of measures to mitigate the impacts of future development have been implemented completely in the case of ORA 85, and at the time of the October 2004 hearing, 97% complete in the case of ORA 83 as approved by the County of Orange, and the Coastal Commission.” (Emphasis supplied)

Page 101 of revised findings ORA 85 “No evidence of ceremonial or other structures were found. Other than four quartz crystals, which may be evidence of ceremonial utensil manufacture, no obvious objects associated with religious ceremonies were recovered. Finally, no evidence of human remains in the form of burials or cremations was found.” (Emphasis supplied)

Page 101 of revised findings “According to the applicant’s archeological consultant, the site was 97% recovered at the time of the application submittal for the October 2004 hearing. Based on staff observations in November of 2004 the site (ORA 83) appears to be virtually 100% recovered.” (Emphasis supplied)

Page 98 from revised findings for 5-05-020 ( Brightwater)

“Although the Commission approved the full recovery of ORA 83 as proposed by the applicant in the previous permits listed below, the Commission finds no evidence in the record of those permits at the time of their approvals that the “semi subterranean house pits” were know or expected to exist, beneath the shell midden.”

“In November 2004, Commission staff accompanied the applicant and their consulting team on the project site to revisit a number of issues that had been raised at the October 2004 Commission meeting. At that time staff verified that the house pits had all been excavated and backfilled.”

From the NAHC memo dated April 4, 2008

The NAHC staff noted that the archeologist stated that “Cogged stones as associated grave goods Dr Wiley confirmed that the 22 cogged stones found at the house pit of an apparent Shaman or tribal leader are clearly associate grave goods”

The question here is when was this house pit destroyed?

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The following are what we believe to be the facts which support this revocation request:

1. Photos taken September 14, 2006 at the area of ORA 85. This is not archeological grading but rather construction grading. Since it is unclear when human remains were found, and that if they are found during grading that the Special Condition #23 must be followed we have included these photos. ( exhibit D)

2. In a November 2007 memo (exhibit E ) from the developer’s archeologist to Ed Mountford et al in which it was disclosed that the following had been recovered at the Brightwater site. The following is stated:

There are 87 human remains that need to be reburied
There are 83 prehistoric features that were uncovered with the burials
There are 4,217 artifacts that were found during grading monitoring on ORA 83
There are 1,622 artifacts that were found during the grading monitoring ORA 85
There are approximately 2,000 boxes of materials
There are over 100,000 artifacts that have been collected.

2. April 2008, the Bolsa Chica Land Trust filed a public records request from the Coroner of Orange County to determine how many reports to the Coroner of human remains had been made as a result of the archeological work at Brightwater. The request was for any findings from 1990 until present. The Land Trust was provided with records for only 6 cases since 1990 to present relative to ORA 83 and 85: (Exhibit F )

9/30/93 Case # 93-5868-LL reported 11/3/93
8/3/99 case # 99-05178me additional human remains found 11/29/99
11/4/99 Case # 99-07108-LL reported 11/5/99
3/30/00 Case # 00-02277-RO reported 4/4/00
4/27/00 Case # 00-02791-LY reported 4/27/00
6/12/02 Case # 02-03972-GA reported 6/14/02

3. May 22, 2008 letter to Rebecca Robles, Acjachemen Nation, from NAHC staff refers to the following Coroner reports (Exhibit G):

April 19, 2008 “concerning sets” of Native American human remains that were originally reported to NAHC December 17, 2007 as 87 sets of burials of Native American human remains. When were these remains found??
August 19, 2006
June 22, 2003 date Most likely descendant contacted June 22, 2006
September 6, 2001
January 16, 2001
May 2000
May 2000

These Coroner reports were not included in response to the request of the Land Trust.

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4. In an April 4, 2008 letter to Anthony Morales from staff at NAHC (Exhibit H), the following concerns are raised;

- The issue of reburial of the remains and all associated grave good is to occur after documentation is complete.
- ORA 83 is a sacred cemetery- “In the project archaeologist’s memorandum to the company, dated January 17, 2007, it refers to a February 3, 2007 ceremony and assumed reburial ( see Exhibit E) this action would be after AB2641 extending the definition of a cemetery and a place with “multiple burials” to private land.” “Therefore, considering the 87 burials from ORA -83, whose chronology is unknown or certainly unclear, and given the number of burials at this project site, how can one say that it is not a cemetery?”
- The developer has stated since 1992 that there were no human remains found on ORA 85. Yet in a memo from Nancy Wiley to Ed Mountford, Ms. Wiley states “Ted and I will wrap each burial with its grave goods…. Each individual will be wrapped again in colored burlap coded to male (blue), female (red) and unknown (beige). Children will additionally have a color separation or other designator.”

- In an email message of 12/6/07 the developer’s archeologist (Nancy Wiley), when asked by the NAHC staff when the human remains were found, told the staffer that “Ed Mountford has said that I cannot prepare a chronology for you until he talks to his lawyer- Susan Hori.”( Exhibit H )

- ” While the NAHC and her archeologist peers may disagree with the manner in which Dr. Wiley and SRS have managed this project, the NAHC and others would not have the hard facts of the 174 burials discovered; 87 still to be re-buried; the number of cogged stones (over 400), the 100,000 artifacts and thousands of archeological features of

significance, had not Dr. Wiley provided the information to the NAHC.” (Emphasis supplied)
5. In an April 8, 2008 letter to the Commission, Larry Myers from the NAHC (Exhibit I) states the following:

“The NAHC has not received a report clearly showing the dates, locations and details of burial discoveries. At this point based on information available and the large number of burials recovered and associated items, it appears that the whole area may be a burial ground. Southern California Indians created and used discrete areas as cemeteries. The NAHC understands that the Coastal Commission will be reviewing its permit for the Brightwater Project. The NAHC suggests that the Coastal Commission consider requiring some sort of guarantee or performance bond in order to assure that all required

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reports are provided on a timely basis and that documentation is completed and reburials of remains and artifacts occur as agreed.” (Emphasis supplied)
In addition, even if the Commission had received all information known to exist by the developer and developer’s consultants, Commission review of Permit 5-05-020 would still be in order in accordance with Special Condition #23, adopted by the Commission on October 13, 2005 as outlined below:

In accordance with 23.A.3, artifacts were to be tested. The time frames are unclear. The Executive Director is to determine if the resources are significant. This implies that the Executive Director would be informed immediately. We do not believe that the Executive Director was informed as the project progressed.

In accordance with 23.A.4, construction is to cease if artifacts or human remains are found during construction, until allowed to proceed by the Executive Director per Condition 23.C. We do not believe that the Executive Director was informed of the excavation of human remains during grading.

Per condition 23C, work may recommence after reporting the find to the Executive Director, and approval of a significance testing plan by the Executive Director. We are not aware of such a plan being approved.

Per Condition 23C, if the Executive Director determines that the measures recommended in the testing plan require more than minimal changes from previously approved plans, the Commission must approve the changes.

Per Condition 23.A.6, Hearthside is to comply with all applicable state and federal laws. Based on a review of the coroner reports and the NAHC letter of May 22, it appears that there was a three year time lag (2003-2006) in reporting in at least one case (p.13 of pdf file). Other sheets do not provide complete data as to date of find and date of report.

In accordance with 23.B, construction is to cease if artifacts or human remains are found during “the course of the project”, and a fifty foot wide buffer is to be provided. Construction may only recommence if approved by the Executive Director. (Condition 23.D).

Per condition 23D, work may recommence after reporting the find to the Executive Director, and approval of a Supplementary Archaeological Plan by the Executive Director. We are not aware of any such Supplementary Plan.

The issue comes down to “what did they know and when did they know it”? Based on dates of 2003, 2001, etc as to the date of find on materials cited above, it appears that at least some of the finds were known to the applicant. Unfortunately, not all of the forms are completely filled out with dates.

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We request the Commission to investigate whether or not complete information was provided with the Brightwater application. We request that the Commission review and determine if any testing plan or supplementary plans were prepared in accordance with Condition 23C and 23D as discussed above. Further, according to Special Condition #23 subsection D and E, the NAHC is to be given the opportunity to review and comment on all plans required to be submitted pursuant to this special condition. We are not aware that such plans exist or were reviewed.

The information referred to above became known to the undersigned in February of 2008. We have been researching the facts about the above project since that date and believe that we have exercised due diligence.

Thank you for your consideration in this matter.

Sincerely,

Alfred G. Cruz, Jr. Juaneno Band Mission Indians

Rommel Cruz, Juaneno Band Mission Indians

Richard Silva, Juaneno

Miles Harry, Paiute/ Lakota

Rhonda Robles, Juaneno Band of Mission Indians, Acjachemen Nation

Louis Robles, Jr. Juaneno Band of Mission Indians Acjachemen Nation

Alfred G. Cruz, Sr. Juaneno Band of Mission Indians

Lloyd Valenzuela Acjachemen

Susan Diaz, Chumash/O’odham

Christopher Diaz, Chumash/ O’odham