Letter from the Advisory Council on Historic Preservation

Today, the Willits News and Ukiah Daily Journal both ran an article with a headline that seems to suggest that the Advisory Council on Historic Preservation (ACHP), a federal agency, is in agreement with two tribes which have filed a lawsuit against Caltrans. The article includes select quotes from a letter ACHP sent to Caltrans last week, and Caltrans is providing the complete text of the letter below as well as a scanned PDF so that anyone can read the entire letter for themselves.

 

achp_logoMilford Wayne Donaldson, FAIA
Chairman

Teresa Leger de Fernandez
Vice Chairman

John M. Fowler
Executive Director

 

March 24, 2016

Mr. Kelly J. Hobbs
Chief, Section 106 Coordination Branch
Caltrans Division of Environmental Analysis
1120 N Street, MS# 27
Sacramento, CA 95814

Ref: Willits Bypass Project
Willits, Mendocino County, California

Dear Mr. Hobbs:

The Advisory Council on Historic Preservation (ACHP) has been actively involved with the California Department of Transportation (Caltrans), the California State Historic Preservation Officer (SHPO), and affected Indian tribes in drafting the Programmatic Agreement for the management of unanticipated discoveries related to the Willits Bypass Project, Willits, California (unanticipated discoveries PA). While efforts to finalize that PA have not resulted in agreement, it is proper for Caltrans to proceed with the project without such a PA by continuing to follow the unanticipated discovery provisions of Stipulation 15 of the Caltrans Statewide Programmatic Agreement (Caltrans Statewide PA).

To put our position in context, we want to summarize the events that have led to our decision not to conclude this agreement. In July 2015, Caltrans advised consulting parties of its intent to finalize the draft unanticipated discoveries PA, after Indian tribes expressed concerns regarding the proposed Post Review and Discovery Monitoring Plan (PRDMP) that was appended to the draft PA. The Sherwood Valley Band of the Pomo Indians (SVBP), in particular, took exception to the proposed PRDMP protocol, which it said was generally inconsistent with the methodology included in the Caltrans Statewide PA. As such, the SVBP proposed revisions to Caltrans to make the PRDMP more in line with Stipulation Number 15 of the Caltrans Statewide PA.

In October 2015, Caltrans disseminated a final version of the unanticipated discoveries PA to the affected Indian tribes involved in the Willits Bypass Project, and requested that they sign the agreement. In response, the Coyote Valley Band of the Pomo Indians (CVBP) sent a letter dated December 17, 2015, to the ACHP advising us that “each of the three Indian tribes (SVBP, CVBP, and Round Valley Indian Tribes) had refused to sign the PA and proposed PRDMP,” and were requesting that the California SHPO and ACHP also refuse to sign the PA. The December 17, 2015, letter also included letters from CVBP and SVBP, which explained their reasons for refusing to sign the PA and PRDMP. The letter concluded by asking the CA SHPO and the ACHP to enter into good faith government-to-government consultations with the Indian tribes, and to refuse to sign the PA.

Following receipt of this letter, the ACHP received several letters from the public supporting the position taken by the three Indian tribes, and asking the ACHP and SHPO to refuse to sign the PA. It should be noted that the issues raised by the public had not previously been shared with the consulting parties involved in the Willits Bypass Project. A review of our project files demonstrated that the parties who contacted us had not previously submitted requests to be consulting parties. Nonetheless, we considered their views as public comments in support of the Indian tribes’ position.

In February, the ACHP participated in a teleconference with the three Indian tribes. They were very clear in detailing what they concluded was a failure by Caltrans to conduct the required government-to-government consultation. They also alleged that sites and villages significant to them had been destroyed without Caltrans taking into account their significance. Further, the tribes indicated that Tribal monitors were inappropriately treated by Caltrans as sole representatives of their tribal governments, precluding further consultation between Caltrans and tribal leaders. Finally, they questioned whether or not it was appropriate for Caltrans to implement the terms of the draft unanticipated discoveries PA and PRDMP while it awaited a decision from the California SHPO, ACHP, and Indian tribes about executing the documents.

When Caltrans initially contacted the ACHP in 2013 regarding the unanticipated discoveries associated with the Willits Bypass Project, we were eager to consult with all consulting parties to negotiate an outcome that recognized the discovery of sites of religious and cultural significance to the Indian tribes. The project was in the early stages of implementation, and we were optimistic that the Section 106 consultation would inform or change the outcome, as appropriate. To our disappointment, several years passed by and approximately twenty additional unanticipated discoveries occurred as Caltrans continued to construct the project while simultaneously consulting to draft a PA. These developments presented challenges to all consulting parties, particularly the Indian tribes, as we attempted to develop an appropriate treatment plan to minimize harm to historic properties, all the while seeing additional harm come to more and more properties as construction continued. At the recommendation of the ACHP early in this consultation, it was agreed that a PA specific to these unanticipated discoveries could deal with their immediate and cumulative effects. Many of the unanticipated discoveries were presumed to be associated with tribal history in the project area, and thought to have adversely affected sites of religious and cultural significance to Indian tribes. Unfortunately, with the passage of time and the continuing unanticipated discoveries, disputes among the consulting parties occurred and mitigation measures that might have been easy to negotiate early on became more complex.

The ACHP did not participate in person in the on-site visits convened by Caltrans. However, we did participate via teleconference in many of the consulting party meetings. During these meetings, we concluded that Caltrans and the Federal Highway Administration (FHWA) were negotiating in good faith and tried to understand and respond to the tribal issues. As we negotiated the draft unanticipated discoveries PA, Caltrans indicated that it was adhering to the terms of the Caltrans Statewide PA regarding discoveries and consultations with consulting parties. Although the issues were not always easy to resolve, Caltrans and FHWA’s participation in these negotiations was constructive. The introduction of the PRDMP in spring of 2015, however, changed the tone and tenor of the consultations. Allegations were made by the Indian tribes that the changes were substantive and were the result of new personnel coming on board. SVBP, in particular, asserted that the changes proposed in the PRDMP would undermine tribal sovereignty, and had the potential to desecrate important sites to the Indian tribes. While the ACHP attempted to assist in resolving these disputes, Caltrans was unable to make all of the tribal recommended changes in the draft unanticipated discoveries PA and the proposed PRDMP.

By October 2015, almost 90 percent of the Willits Bypass Project was completed, and the proposed unanticipated discoveries PA and PRDMP were being used as well as the Caltrans Statewide PA.

It is unlikely that major changes to the project will be made. Therefore, the ACHP recommends that Caltrans continue to review the Willits Bypass Project unanticipated discoveries under the terms of Stipulation Number 15 of the Caltrans Statewide PA, which was used for the majority of the project implementation. Further, the Caltrans Statewide PA has guided most of the consultations when the unanticipated discoveries were occurring frequently, and it has proven to provide an acceptable framework for such consultation.

In closing, the ACHP believes it is in the broader public interest for Caltrans to complete the Willits Bypass Project given the resources and money that has already been invested. While we are disappointed that the consulting parties were unable to agree on the draft unanticipated discoveries PA, the outcome is unlikely to be changed at this late date. We feel confident that Caltrans and FHWA will continue to consult with the affected tribes as this project is completed. However, the progression of the project, and the status of project implementation do not presently afford Caltrans the opportunity to transform the Willits Bypass Project into a different project.

If you have any questions regarding our decision, please contact Charlene Dwin Vaughn, Assistant Director, Office of Federal Agency Programs by telephone at 202-517-0207, or via e-mail at cvaughn@achp.gov.

Sincerely,

John M. Fowler
Executive Director

ACHP_Response to Caltrans Willits Bypass Project 24mar16