CalTrans, A Rogue Agency
by Will Parrish, October 2, 2013
My piece elsewhere in this issue of the AVA describes how Caltrans has appeared to violate Section 106 of the National Historic Preservation Act and the National Environmental Policy Act, consistently and repeatedly, in its dealing with the Sherwood Valley Rancheria of Willits, leading to the grading, wick draining, and filling in of a village complex in the wetlands of northern Little Lake Valley. Caltrans' legal failures in this case fit with consistent patterns.
One of those is the long-standing pattern of US government abrogation of its legal commitments to First Nations people in general. The US federal government enacted more than 400 treaties with American Indian nations between 1787 and 1871 but has meaningfully observed none of them. Here in California, federal agents negotiated 18 treaties with California's native nations that would have encompassed roughly 10 percent of state in 1851, only for the US Congress to claim to have “lost” the treaties, even going to the extraordinary length of placing the treaties under seal.
Not until 1905, when First Nations activist recovered these treaties, did the US government acknowledge their existence, which set the stage for the development of what is called the Rancheria System. Eleven rancherias, which typically consist of only about fifty acres of land, exist here in Mendo. Sherwood Valley Rancheria is one.
Another of those patterns is Caltrans' failure to abide by many of its own basic agreements with other government agencies in the process of constructing the Willits Bypass. For more than two decades, Big Orange worked intensively to secure approval of all regulatory agency permits that establish the protocol they are to follow in constructing the Willits Bypass. So, you might think Big Orange would now actually be in compliance with the law now that construction is well underway.
Yet, on the very first day of construction of the Willits Bypass — February 25, 2013 — Caltrans and its contractor were forced to call off the work they had planned for the day when they were found to be in violation of the Migratory Bird Treaty Act — and, by extension, their own Environmental Impact Statement. The events of that day are worth recounting in some detail, not because the legal violation at issue is particularly unique, but because they provide a dramatic example of Caltrans’ pattern of evading its legal requirements.
Caltrans’ contractors were attempting to install fencing in the southern portion of their intended Willits Bypass route to demarcate the construction area, so that they could begin cutting trees and removing brush. Caltrans spokesperson Phil Frisbie, Jr. was on hand. When activists asked him if the agency had completed all relevant bird surveys, as agreed to with the California Department of Fish and Wildlife (CDFW), he claimed they had.
These activists shortly thereafter discovered bird nests in the project construction swath. They called the Department of Fish and Wildlife, which dispatched a biologist named JoAnn Dunn. Upon arriving at the site, she called off the project for the day. Later, it turned out CalTrans hadn’t completed viable bird surveys, contrary to Frisbie’s claim, but rather had contracted with a private engineering firm to write up a document composed of little over a page of text, roughly half of which described an extremely cursory bird survey.
Construction was delayed by over three weeks as the CDFW forced Caltrans to conduct more legitimate bird surveys. Meanwhile, direct actions by project opponents ensured Caltrans contractors didn’t continue with the fencing.
Section 4.8.3 of CalTrans’ Willits Bypass EIR reads as follows: “Pre-construction clearance surveys for nesting sensitive bird species would be conducted by a qualified biologist no less than 30 days prior to the start of vegetation removal. Vegetation removal would be performed during winter where possible to comply with the Migratory Bird Treaty Act. Survey results would be provided to [California Department of Fish and Wildlife]… upon completion of each survey. If sensitive species were found nesting in the project area or within 0.5 mi (0.8 km) of it, Caltrans would consult with the resource agencies to develop a strategy to further minimize the project impacts to these species.”
This episode was a microcosm of the power dynamics that have shaped the Bypass thus far: Caltrans complies with the law when they are forced to do so. Typically, activists are the ones holding them accountable for these obligations. Absent the pressure from these activists, the regulatory agencies are very often remiss in doing their job.
As one friend who is involved in Save Our Little Lake Valley described it to me, “The function of the environmental agencies seems to be to erect barriers for smaller, less privileged entities – small farmers, say. But the barriers are low enough that it's easy to climb over them with enough wealth, power, and political access.”
Tragically, over the succeeding weeks, each of the protocols Caltrans established with the California Department of Fish & Wildlife was violated. In addition, Caltrans has attempted to alter protocols to accommodate desired construction activities. Buffered nests were subjected to noise and disturbance of heavy equipment operation, the size of buffer zones was decreased, and standards for determining if a nest was active were raised so as to make it almost impossible to protect this seasons’ nesting birds and young.
The same sort of dynamic played out when Caltrans contractors began hauling soil to dump on the Little Lake wetlands in late-August. The source of the soil was the old Apache Mill north of Willits, a former Louisiana Pacific saw mill. FlatIron/DeSilva Gates’ fill hauling trucks dumped this soil on the Little Lake wetlands’ “wick fields” for nine days.
The filling operation was clearly illegal under the terms of the 1975 Surface Mining and Reclamation Act (SMARA), being that it had not undergone any public review process. Abandoned mill sites are notorious for having high levels of chemical contamination. A lawsuit by the Willits Environmental Center and Keep the Code against the Mendocino County Planning Department halted the operation.
Not only did the hauling of fill violate SMARA, it violated CalTrans’ own permit with the Regional Water Quality Control Board: the 401 Permit. Condition 47 of this permit states: “All imported fill material shall be clean and free of pollutants. All fill material shall be imported from a source that has the appropriate environmental clearances and permits. The reuse of low-level contaminated solids as fill on-site shall be performed in accordance with all State and Federal policies and established guidelines and must be submitted to the Regional Water Board for review and concurrence.”
Neither CalTrans nor its contractors submitted their fill-hauling plan to the Regional Water Board for review. And, far from establishing that the fill material is free of pollutants, the survey of contamination at the mill site that CalTrans conducted reveals elevated levels of chromium, mercury, and other dangerous chemicals, while failing to test for the most common of mill site contaminants, dioxin.
This activity also violated Chapter 5, p. 161 of CalTrans Draft EIR/EIS of 2002: “Any borrow site used to provide fill for the project other than the designated site (Oil Well Hill) will be analyzed and submitted for review in advance by the resource agencies.”
These aren't minor violations, such as the ones most Willits Bypass protesters have been charged with: infraction-level and misdemeanor trespassing. These legal breeches by Caltrans actually have repercussions for the health, safety, and well-being of the people and wildlife of the entire valley.
Last month, the Army Corps of Engineers' chief regulator for its San Francisco division sent Big Orange a “notice of noncompliance” outlining five categories of Caltrans violations of its permit with the Army Corps. In May, on the very first regulatory inspection of Bypass construction activity, the State Water Board cited Caltrans for six violations of its permits. These are all just scratching the surface.
A far more thoroughgoing list of violations was compiled by members of Save Our Little Lake Valley in April, which is available at http://www.savelittlelakevalley.org/caltrans-willits-bypass-permit-violations/. The violations pile up all the time. The list is now outdated. ¥¥