Documentation:Open Case Studies/FRST522/Illegal logging in California

Illegal logging in California: Case study of the Willits Bypass

Introduction

For over 30 years the town of Willits has suffered significant traffic through its downtown Main street. The situation has worsened over the years due to an influx of seasonal marijuana workers coming into the community. To alleviate the traffic problem the California Department of Transportation (Caltrans) and the Federal Highway Administration (FHWA) constructed improvements to U.S Highway 101 within the city of Willits, Mendocino County, California. The project consisted of a 5.9 mile long rerouting of Highway 101 that cuts through Little Lake Valley.

The Pomo are an indigenous people of California. The historic Pomo territory constitutes a large area in Northern California bordered by the Pacific Coast to the west and Clear Lake to the east. This area includes the town of Willits and the Bypass project. The Coyote Valley Band of Pomo Indians of California, the Round Valley Indian Tribes of California, and the Sherwood Valley Rancheria of Pomo Indians of California all claim that the Bypass project illegally destroyed historic properties, ancestral, sacred, cultural, and archaeological sites, and resources. In the construction of the Bypass, 80 acres of wetlands and woodlands were destroyed including several ancient oak trees.

This is a story often heard in the United States, echoed across land with a bloody history. Caltrans and the FHWA refused to follow federal and state laws when developing and implanting the Bypass project. They took advantage of their powerful position to undermine indigenous tribal land rights. This is allegedly a common practice in the United States, where policy toward overlapping land claims and their desire to construct public works has often been to “bulldoze first” and answer questions after.

Framing the Problem

a. Background: overlapping land claims

There are many ways to define illegal logging and no agreed upon international standard. A common definition and one held by the European Union Forest Law Enforcement, Governance and Trade Action Plan (EU FLEGT) states illegal logging takes place when logs are harvested, processed and sold in ways which break national and international laws. However, many indigenous communities reject this definition and claim it occurs when logging is conducted on their customary land without their consent. Both perspectives are used to examine this case study. Though the logging that took place for the construction of the Willits Bypass was not for the purpose of timber production, it occurred on Pomo ancestral land without the indigenous communities' consent. Furthermore, during the construction of the Bypass, national laws were broken. The Willits Bypass is located on California State-owned land. This means the land is public, belonging to all residents of the state. Caltrans has the right to manage all transportation systems within its boundary. However, three indigenous tribes claim customary rights of the historic Pomo territory, and this includes the town of Willits and surrounding Little Lake Valley. Tribal members live, work, recreate, and conduct cultural activities in and around land where the Bypass was constructed. Little Lake Valley is so rich with Pomo ancestral sites that Carol Roland-Nawi, a State Historic Preservation Officer, believes the entire area should be designated as an archeological district.

The Coyote Valley Tribe, Round Valley Tribe and the Sherwood Valley Tribe are federally recognized through the Secretary of the Interior as sovereign Indian Tribes with rights and powers of tribal self-government. The Willits Bypass is a joint project with Caltrans and the FHWA and as such is subject to Federal Law. Therefore, the tribes have a right to be included in government to government consultation of all planning and actions associated with the Bypass project. Before construction was legally allowed to begin, Tribes should have been engaged in face to face consultation. However, Caltrans and the FHWA denied consultation, and broke several federal laws.

Some illegal activities include Caltrans’s failure to implement proper archeological identification protocol. They also failed to provide adequate tribal monitors during construction. Additionally, Site archeologists were unfamiliar with indigenous cultures and have a conflict of interest as they were under pressure to meet deadlines and keep to budget. Caltrans also revised the rules for lithic concentrations used to identify the presence of culturally important artifacts. The ratios were raised from 3-5 within 100 square meters, which is the professional archeological standard to 20-25 within 20 square meters. The tribes were deeply concerned with these revisions as they could create an “exceedingly troublesome precedent for all Californian Indian Tribes” in terms of their legal rights for consultation and management of artifacts.

To contest these violations the Coyote Valley Band of Pomo Indians and Round Valley Indian Tribes filed a lawsuit in the federal court system seeking damages from Caltrans and the FHWA for partaking in disingenuous tribal consultation and allegedly inadequate archeological and environmental impact assessments. They are seeking restitution, following from the violations of the National Historic Preservation Act (NHPA), the National Environmental Preservation Act (NEPA), the Federal Highway Statutes and the Administrative Procedure Act (APA).

b. Series of illegal activities: Timeline

1900’s: The Village of Yami on the south shore of the valley was identified by anthropologist Samuel Barrett as sustaining significant Indian populations. Therefore, Caltrans could have obtained this information of a known cultural site through conducting a literature review.

1956: Forced relocation and extermination of the Northern Pomo people.

1988: Caltrans begins design plans for a bypass. Many requests for alternate non-freeway solutions were made during community meetings. The project was stalled for many years until the early 2000’s.

2000’s: Caltrans continues to hold community meetings but engages in no formal consultation meetings.

2005: FHWA completes review for Section 106 of the NHPA. Section 106 states the Federal government has the responsibility to consult with tribes on a government to government basis and make “good-faith efforts to avoid damage to cultural sites." However, no consultation took place therefore FHWA violated section 106. In their review the FHWA found no adverse effect to historic properties.

2006: Caltrans completes the Environmental Impact Statement/ Report (EIS/EIR) for site. Again, no government to government consultation took place, making the process illegal. Only one archeological site was found that could be classified under the National Registry for Historic Places (NRHP). Archeologists used visual survey only rather than below ground soil sample to determine possible presence of cultural sites.

2006-2013: Caltrans discovered 7 historical sites during a Burial Site Testing program. They failed to disclose or protect these sites which were subsequently destroyed, violating CEQA and NEPA.

2013: Ground breaking process begins in preparation for construction.

June 2013: Construction of the Bypass begins. Construction takes place during the middle of the night without any Tribal monitors present. Caltrans fails to inform Tribal members construction will begin that night. The Yami village site is destroyed.

2014: Army Corps of Engineers fail to respond to Coyote Valley Tribes' request for consultation, forcing tribal members to protest in front of the San Francisco office until the Army Corps of Engineers finally agree.

Jan-Dec 2014: Sherwood Valley Tribe works with Caltrans to create a Programmatic Agreement that would mitigate damage and set up protocol to manage new discoveries of cultural artifacts. However, no measure was agreed upon. This agreement should have been ratified before construction began. The Programmatic Agreement also states that if Tribes feel that their rights have been violated, the Federal government must take responsibility for Bypass project from Caltrans. This was ignored to expedite the construction process.

October 2015: Lawsuit filed against Caltrans and the FHWA.

November 3, 2016: The Willits Bypass is completed and opened for public use.

Jan 3, 2017: Judge dismisses Caltrans' motion to dismiss lawsuit.

June 2017:The Sherwood Valley Band of Pomo Indians, Coyote Valley Band of Pomo Indians, and Round Valley Indian Tribes formally oppose Mitigation project.

October 2017: Lawsuit is in Administrative Record stage: both sides file motions on issue.

October 2017: At least 30 significant Pomo cultural sites have been found that were not identified prior to the final EIS. Once further ancestral sites are discovered Caltrans and the Federal government are obligated to prepare another EIS/EIR which reflects these findings. The tribes have repeatedly requested these revised reports and have been ignored.

c. Mitigation

Under the National Environmental Preservation Act, the FHWA and Caltrans are required to create wetlands to mitigate for habitats and biological resources degraded in the construction of the Bypass. However, even the mitigation project has been met with concern and scrutiny. The proposed mitigation project would transform 2000 acres of nearby meadows and grassland to wetland habitats. Environmentalist fear this could negatively impact biodiversity and claim some of the proposed mitigation areas are already wetland habitats. The Sherwood Valley Band of Pomo Indians formally rejected the project in June 2017. They claim the proposed mitigation sites will further disrupt culturally important and highly sensitive sites. Moreover, no archeological or environmental assessments have been conducted on the proposed mitigation land.

d. What Caltrans claims

Caltrans claims they have not violated any laws. They state that through the entire process they have engaged in legal and reasonable government to government consultations. Caltrans spokesman Phil Frisbie said “the agency has worked with the tribes in good faith.”. Caltrans has admitted to destroying known culturally sensitive sites in 2013 and in 2014. However, Caltrans claims that these transactions were a consequence of human error, from “mis-mapping” the sites in their construction plans. They maintain this viewpoint even though the Sherwood Valley Band of Pomo Indians firmly state they informed Caltrans of the sites' existence weeks prior to construction. Caltrans believes the mitigation project will help restore hydraulic functions and aquatic habitats. Caltrans has received praise from the government and political leaders like U.S. Democratic representative Mike Thompson. Caltrans highlighted the Willits Bypass by honoring the project with the Caltrans Excellence in Transportation Award for 2017.

Historical context

The Northern Pomo people of California have lived in the wetland Little Lake Valley for over 10,000 years. The ancestral land is known as Bito’m-kai. Over thousands of years people fished salmon from the rivesr, gathered medicine, and managed the land. European settlers claimed authority over the region in 1856 and forcibly relocated the tribes to the Round Valley Indian Reservation located near Covelo in Northern Mendocino. The Federal government enforced this relocation. Many tribes across California were subject to similar relocations and in some instances extermination. The relocations took place across all seasons and weather conditions and as a consequence many people did not survive the forced relocations. Once the tribes were gone, most of the land was privatized. The central coastal area of Northern California is now a mosaic of state, private, federal, and reservation land. The majority is owned by privately operated Timber Companies. California has a long history of political activism to protest this land grab and privatization of its forests. Most notably was the 1997 tree-sit protest against the Pacific Lumber Companies' plan to clear cut old growth redwoods in Humboldt county.

Implications

a. Environmental

A 1 mile (1.6km) long viaduct runs through the 100-year flood plains of Haehl, Baechtel, Broaddus, Mill, and Upp Creeks in Little Lake Valley. These waterways are tributaries of Outlet Creek, a tributary of the Eel River. The surface level highway though the floodplain has impacted many acres of wetlands and damaged the drainage of the floodplain. Additionally, considerable damage has been done to these waterways due to soil excavation and the implementation of drainage wicks. Ecologists fear the draining and filling of wetlands with the insertion of wick drains could have unpredictable hydrological effects. These wetlands and floodplains are critical habitat for threatened salmon and steelhead fish species. Hundreds of oaks trees have been removed, including 700-year-old specimens, which have unknown biodiversity impacts. There is considerable concern that the mitigation effort will make things worse by transforming 2000 acres of pasture and grassland to wetland. Critics have also stated some proposed mitigation land already constitutes wetland habitat. The lawsuit against Caltrans and the Federal Highway Administration states there is considerable proof that Caltrans' initial Environmental Impact Report violated CEQA, NEPA and NHPA laws. Caltrans continues in their refusal to reassess these reports. This casts doubt on Caltrans' claim that environmental protocols were followed and leads to further speculation as to what other environmental violations these agencies have committed.

b. Political

Many activists believe that Section 106 of the National Historic Preservation Act is the best legal tool Tribes have to preserve their cultural and ancestral homeland. Standing Rock Sioux used this law to argue against the Army Corps of Engineers in 2016. However, the federal authorities face no retribution for violating this law. This shortcoming leads to a law that “lacks teeth.” This creates an environment where Tribes must provide oversight themselves from a position of weakness or considerable lack of power. There should be consequences when the State and Federal governments break the law, not just when they break environmental regulations, and for cultural preservation regulations as well. Additionally, California lawmakers must reconsider stipulations of the NEPA which require the State to mitigate their damage by creating wetlands. The environmental and cultural damage done by Caltrans to justify the degradation should be illegal.

c. Economic

The Tribal members were not the only groups opposed to the bypass. There was significant opposition for construction of the bypass from local business owners. A petition by local businesses was signed and circulated stating their opposition to the Bypass design. They relied on the highway to bring tourists to support their businesses. With the bypass in place, businesses are experiencing a reduced patronage. Tourism is the main source that fuels the economy other than the marijuana business. There is concern that the bypass will encourage more people to grow marijuana to supplement their income. This is a problem because Willits' water source is primarily derived from rain which has been significantly stressed in recent years due to climate change. Additionally, the construction of the bypass and the mitigation project have displaced cattle farmers who relied on the land for pasture. Furthermore, the mitigation effort is expected to cost as much as $100 million to California tax payers. The Bypass itself cost over $300 million dollars.

d. Social

Illegal activities such as the construction of the Willits Bypass without penalties combined with agencies refusing to admit guilt has severe implications. Unfortunately, this story of government suppression of indigenous rights is one heard often by American people. These illegal actions normalize oppression against indigenous people. It feeds into the pattern of violence, perpetuating state dominance and abusive behavior. Such activities create a society that does not value indigenous rights or take indigenous claims to land seriously. Some Californians believed that the opposition to the Bypass was misplaced. They claimed activist efforts should be focused on clearcutting of the Redwoods, rather than the construction of a necessary highway. Violations against indigenous communities are common practice, something that is unfortunate but cannot be changed. Social activism like the Willits Bypass and Standing Rock will help change this perspective. It is necessary to support the empowerment of these communities and movements in any way possible.

e. Cultural

The costs of the cultural devastation inflicted upon the Coyote Valley Tribe, the Round Valley Tribe, and Sherwood Valley Tribe are incalculable. The degradation is beyond any monetary gain that could be granted by the lawsuit. According to the tribe’s attorney, Phil Gregory, Caltrans found sites of areas that suggest not only human remains but grave sites. Gregory states “It’s as if Caltrans decided to bulldoze through your church.” The pain that this process has inflicted upon the indigenous community is considerable. Especially since the tribes informed Caltrans of known ancestral sites and Caltrans proceeded with construction anyway. The Pomo people used this site for gathering natural medicinal plants, which they now can no longer do in this area. Salmon are an integral part of the Pomo people's culture. Populations in the Eel river were already threatened, and this can only add to the problem. This destruction of the Valley brings up painful memories for Pomo tribal members. The history of the 19th century where white settlers renamed the land the Little Lake Valley is still present in their minds. As well as the forced evacuation and extermination campaign led by the US government. This illegal logging action forces them to relive the pain of their ancestors which they feel in a very real way. Many tribal members are struggling to retain their culture after enduring decades of governmental policies designed to erase their identity. Many of the destroyed sites could have contained artifacts to inform history or illuminate cultural heritage.

Initiatives to combat illegal logging in the United States

Similar case studies: Standing Rock & Uluru referendum

With the current political climate and conservative control of the United States government, initiatives to combat this type of illegal logging will be led by political activism. Recent social movements have given hope for the future. The indigenous coalition led by Standing Rock Sioux Tribe gave rise to a global movement demanding that states recognize indigenous rights against the Dakota Access pipeline. This inspired millions of people around the world to support this protest. This shift of power cannot be ignored or undervalued. Activists must demand that governments recognize the UN Declaration on the Rights of Indigenous Peoples which the United States has signed. In 2017 250 aboriginal delegates and community leaders met in the community of Mutitjulu, Australia at the sacred Uluru rock formation. They gathered to declare their sovereignty and reject the Australian constitution imposed on them. This symbolic act is an indication of the transformations occurring in global society. Indigenous autonomy and empowerment are gaining strength and have the potential to bring a more equitable future.

Recommendations

Increased visibility and access to lawyers

Lawsuits against the government can be effective. Tribes suing Caltrans for the Bypass hope that this lawsuit will prevent Caltrans employing the same archeological reviews. They hope that this case brings visibility so that Tribes in the future understand their rights. All indigenous people should have equitable access to affordable lawyers.

Implementation of outside consultation companies

Tribal members expressed grief at being unaware of federal and state laws in place to protect their rights. They would have acted differently prior to the Bypass construction had their rights been elucidated to them. There should be substantially more outside consultation groups working with indigenous communities to ensure agencies like Caltrans do not take advantage of them.

Establishing a monitoring system

The federal and state governments should not get away with breaking their own laws. As they made the laws and they are the body enforcing these law, there is a clear conflict of interest. As the Pomo tribe's lawyer Phil Gregory states "Final authority for all such decisions (regarding Willits Bypass construction) remains with Caltrans, a true case of the fox guarding the hen house!" There must be more authority, like an unbiased monitoring agency regulating these agencies or this unlawful activity and violence will continue.

More effective laws

The Untied States need to have laws that explicitly protect indigenous ancestral land and recognize their customary and statutory rights. Currently the best law Indian tribes have is the NHPA. This law stipulates that Federally recognized indigenous communities must be involved in government to government consultation processes, it does not recognize customary Indian land tenure or sovereignty. Clearly, this law does not have enough power to ensure the protection of indigenous ancestral lands. Federal and state governments should also face harsher punishment for breaking section 106 of the NHPA.