The Battle to Save Tom-Kav–Local Tribes Fight to Preserve Cultural Heritage

Tribes challenge the validity of environmental impact report as misleading, incomplete, say developers acted in bad faith.

Part 2 in a 2 part series.  Read part 1 here.

Tribal members sit vigil at Horse Ranch Creek Rd. construction site. Photo: savetomkav.wordpress.com

What if a developer bought up the cemetery where your grandparents were buried and started forging ahead to build a brand new housing development and shopping center right on top of it?  Or if the state government of Pennsylvania somehow cleared the way to sell the Gettysburg battlefield site to private developers in order to build a whole new city, right on top of where tens of thousands of Union and Confederate soldiers gave their lives, and where many found their final resting place?

In January 2012, Pardee Homes got the go ahead from the County to begin construction on its Meadowood project on the north side of Pala Rd.  The first order of business was Horse Ranch Creek Rd., the main road that would connect all four planned developments, including Palomar College’s North Education Center.  On January 7^th, crews began their work in earnest, and almost immediately after the start of construction, crews and Native American monitors discovered what they suspected to be human remains.  Construction was halted, as is mandated by state law, and archaeologists and Indian monitors were called in to examine what had been found.

The Army Corps of Engineers and archaeologists from the same firm, ASM Affiliates, who conducted the survey for the environmental impact report were brought in to examine the new finds.  Excavation pits were dug and diligent exploration of the area where the road was to be built began for the very first time.  Developers had previously insisted that it was unnecessary to dig in the area between loci A and B because of the presence of irrigation pits.  That assertion was about to be blown to smithereens.

New artifacts discovered

Less than 50 feet away from where human remains were discovered in January, 2011 more human bone fragments were found.  Recall that prior to the arrival of the Spanish Missionaries in the late 1700’s, the Luiseños first cremated and then buried their dead.  It wasn’t until after the Missionaries arrived that the dead began to be interred according to Catholic tradition.

The archaeological dig began in full force in early February, and the more they dug, the more remains and artifacts they found.  Between February 6^th and February 16^th, and even as recently as February 22^nd, 71 bone fragments were found representing at least six different people.  Human skull fragments were identified along with three fire hearths.  According to court documents, the archaeologists from ASM Affiliates testified that the hearths and skull fragments show that the site was a natural cremation site and a sacred burial ground of the San Luiseños.

In addition to the bone fragments, the Army Corps of Engineers reported finding “various stones with milling features,” and more midden deposits—soil stained by the presence of cooking fires and greasy from the drippings of animal fats.  All told at least 14 different burial sites were discovered.

The discovery of the three fire hearths was particularly significant.  “Archaeologists could work on 50 or 100 jobs and not find three hearths,” said the tribal attorney, Merri Lopez-Keifer.

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Lawsuits filed, request for temporary restraining order denied

In the meantime, the tribes looked to the courts to put a halt to the construction at least until the site could be more thoroughly examined.  Two suits were filed:  One against San Diego County and Pardee Homes, and another against the Palomar Community College District.

The original environmental impact report submitted by Pardee Homes for the Meadowood project was dated April, 2009, to which the tribes submitted their comments and recommendations that October.  The two sides seemed to be on the same page.  On April 1, 2011, after the first discovery of human remains and after further archaeological examination, the tribes submitted a new set of revised and amended comments to the EIR, asserting that merely capping the site would no longer be an acceptable means of mitigation to protect the Tom-Kav site, and that the new studies found that the Tom-Kav boundaries extended much, much further than had been initially assumed.  The tribes wanted the Tom-Kav avoided altogether.

It was all to no avail.  In January, 2012, the County Board of Supervisors approved the Meadowood environmental impact report and gave the green light for construction to begin on Horse Ranch Creek Road, when yet more human remains were found.

According to the complaint filed against the County and Pardee, the environmental impact report “fails to identify archaeological and cultural resources that would need to be reasonably mitigated,” and “fails to include a reasonable range of alternatives that could eliminate or lessen the significant environmental impact of the project proposals, including those that were suggested by Cal Trans that would allow for a substantially lessened impact on cultural resources.”  The developers, they said, rejected proposals that would have allowed for a more protective boundary and avoid the sensitive cultural areas that were producing more significant discoveries by the day.

“ASM did not notify us that they had never dug in the road’s pathway,” said Merri Lopez-Keifer, the attorney representing the tribes.  The decision to go ahead with the project as submitted, she said, was based on faulty information contained in the EIR; faulty because it was incomplete; information that the tribes themselves relied on when making their initial recommendations.  The archaeologists never did any digging where the road was to be built, despite the fact that it was right smack in the middle of an area known to contain Tom-Kav artifacts.

For their part, Pardee, the County, and Palomar College insist that they have in all instances “proceeded in a manner required by law.”

“The tribes were completely shut out of the process,” said Lopez-Keifer.  “We asked to be included (in the initial process) but were denied by all parties,” she said.  “It was one of those ‘don’t ask for permission, ask for forgiveness’ situations.”

American Indian Studies department left out in the cold

Perhaps even more baffling, was the failure on the part of Palomar College officials to consult with their own experts.  The college has a significant American Indian Studies department that includes several professors who are themselves members of Luiseño descended tribes.  If they were looking for experts on the history and lore of the Tom-Kav site, they needed look no further than their own campus.  Native American culture often only exists through stories passed down from generation to generation.  Oftentimes there is no written record of tribal traditions or stories, which can become closely guarded secrets passed down by tribal elders.  It would have been a simple matter to ask the professors about the site, about what researchers could expect to find, and of the importance of the site.  Instead the college’s administration “chose to ignore a 40 year history of working closely with the department” on similar issues.

On March 13^th, the department issued a statement on the developments at Horse Ranch Creek Rd:

We understand Palomar College did not have a legal obligation to consult with its own faculty experts about the Horse Ranch Creek Rd. project, but your choice to not solicit input on the sites of Tom-Kav (a.k.a. Horse Ranch Creek Rd.) resulted in a lost opportunity to mitigate or avoid the situation facing the college today.  Consulting with the American Indian Studies and American Studies Department would have provided you with critical insight into the “sensitive nature of the Horse Ranch Creek Road project” and its historic and religious importance to the Indian community….

———

Examples of Palomar College’s missteps include the statement on the Palomar College website: “A portion of the southern road alignment was identified as having the potential to contain archaeological and cultural resources in the approved Environmental Impact Report…”(emphasis added).  Misleading statements such as this have a negative impact on the college’s credibility and easily could have been avoided by consultation with AIS….

The department also lamented that instead of learning about issues related to the project from college administrators, they have been forced to rely strictly on public records and local newspaper reports.  “While not asked for input, we are now suggesting the college is misguided in continuing the stance of ‘we followed the law’ and can redeem itself by putting into action its stated commitment to honor the Native American community,” the letter concluded.

Focus shifts to the Courtroom

As soon as the first set of bone fragments were confirmed to be human in early February, the tribes acted quickly and filed for a temporary restraining order in an attempt to halt all construction on the site until a more thorough archaeological examination could be conducted, and the hypothesis of the Native American monitors could be put to the test—that the area between locus A and locus B was part of a larger burial ground and should be protected.

The lawsuits challenged the environmental impact reports for the project, specifically claiming that the reports were faulty and incomplete and therefore inadequate.

On February 28^th, Superior Court Judge Harry Elias denied the TRO, saying that “legally the district is within its rights to continue the work and has followed the letter of the law up until now.”  However, the judge also chastised the district for “not taking seriously” provisions of state law that require developers to meet and confer with tribal authorities after bone fragments are found, as they were at the start of construction in January.

It was a strange twist in the proceedings:  The judge ruled that the district had followed “the letter of the law,” but yet hadn’t followed the law.

“What’s the point in having the law if you’re not ever going to enforce it?” said Lopez-Keifer, also noting that the San Diego County Sheriff’s Department deemed the matter “private” and refused to intervene.

Construction restarts amid protests

There is some dispute about construction laws and how they apply to this particular site.  Some insist that according to state law, construction crews are prohibited from beginning any major activities before 7am.  Some say that since the site is in a relatively sparsely populated area, that rule does not apply.  Yet others say it’s strictly a matter of local ordinance.

What is not in dispute is that according to the environmental impact report—which is considered the law of the land on California construction sites—Indian monitors and qualified archaeologists are required to be on site before work can begin.  Accepted practice dictates that so long as the monitors and archaeologists are on site prior to the scheduled start time, they have the final say as to whether or not work can continue.

According to the tribal monitors, work at the Horse Ranch Creek Road site routinely began at 7am sharp.  On the morning of February 23^rd, however, crews began their grading operations at 6:30am, before the monitor supervisors and archaeologists arrived.  When the monitors arrived at 6:45am, work had already begun.

“I watched tractor drivers from American Pride Grading laughing, celebrating, and pumping their fists in the air as they drove the tractors around the project site and refilled the excavation pits,” said one observer according to court documents.

“Elders stood and watched in horror while other tribal members ran out in front of the bulldozers to save what they could of the grounds,” wrote another member who was there that morning.

By the letter of the law the grading crews may not have done anything illegal, but in deliberately beginning work without having notified the monitors and archaeologists of a change in their start time they were clearly in breach of accepted standards and in violation of the procedures as they were spelled out in the environmental impact report.  It was a calculated attempt to circumvent the rules and avoid the suspicious glare of the site monitors.

Look beyond the science

The work continues on the site.  Palomar College officials say that the grading of Horse Ranch Creek Road is complete, and that there will be no further disturbance of the burial ground.  But the damage has been done.  “Because the remains came from disturbed soil, it will affect their eligibility for the National Register of Historical Places,” said Lopez-Keifer.

And the fight isn’t over yet.  The lawsuit continues over whether or not the college district should have been allowed to build over the site without taking proper mitigation procedures.  And then there’s the issue of how many entrances to the development project there will be:  Cal Trans recommends only one entrance.  Pardee Homes wants two entrances, further endangering Tom-Kav resources.  And the developers of Campus Park insist on their own entrance.  There is still much to be resolved.

savetomkav.wordpress.com

Tribal representatives are still baffled at why this had to become such a brutal fight.  They say that had Pardee and the district simply agreed to move the road just a short distance then this fight could have been avoided entirely.  Had the developers consulted with the tribes, had the college consulted with their own experts on their own campus, the sides could have found an acceptable compromise and the Tom-Kav site could have preserved in its entirety.  It wouldn’t have taken much, but the developers stubbornly refused to relocate just a short stretch of Horse Ranch Creek Rd.  They still insist on a 106 foot wide road with a large, decorative median and as many as three entrances off of Pala Rd.

But the sides are talking, at least, at the behest of Judge Elias.  What the Indians really want is for the college administrators, the archaeologists, and the developers to look beyond just the science and see the true value the site holds for the tribal members; the spiritual, religious value it holds.  They insist that their beliefs and their culture should be held in the same regard as Christian beliefs and culture.

If there is a bright side to the story, Lopez-Keifer said, it’s that a lot of discussion has been generated within the Native American community.  That discussion has brought the attention of the International Indian Treaty Council, who will be sending an “immediate and urgent action letter” to the United Nations along with a request to present “Saving Tom-Kav” in person to the U.N.

Correction:  An earlier version of this story identified the remains found in January, 2011 as “full skeletal remains.”  EIR documents noted the new discovery after the initial report was filed with the County, but did not specify the type of remains found, identifying them only as “human remains.”