The California Court of Appeal Applies the Indian Canon of Legal Realism.

By James K. Kawahara and Michelle LaPena

The California Court of Appeal recently decided that a prehistoric tribal shellmound is not a “historical structure” for purposes of a statute intended to streamline the approval process for housing developments.[1] This article tells the story of the West Berkeley Shellmound and how it has become the latest example of the court system’s failure to appreciate the significance of tribal cultural resources.

I. The West Berkeley Shellmound

Before Berkeley was Berkeley, it was Ohlone land. In what is now West Berkeley, stands the remains of an Ohlone shellmound. Ohlone people built
these complex, cone-shaped, structures over many-thousand centuries of use, until the Spanish missionaries arrived and began to colonize the Native lands. Ohlone people built the shellmounds out of the remains of the dead, which included the remains of Ohlone people as well as the remain of all other creatures and plants that they consumed.

It is believed, based on maps from Spanish missionaries and others, that there were at least 425 shellmounds around the shores of the San Francisco Bay, and many hundreds more across the central California coast. Located at the original shoreline, and by the mouth of Strawberry Creek, the West Berkeley Shellmound is estimated to have been 30 feet high and 100 yards long, a burial ground for the ancestors of the Ohlone of the East Bay and a sacred place,

Ohlone people inhabited a village adjacent to the Shellmound continuously from around 3,700 B.C. to 800 A.D. At that point, the village was relocated nearby, but the mound maintained ongoing ceremonial purposes, including as a burial site. While white settlers removed above ground portions of the mound to build roads and for other commercial purposes between the years of 1853 and 1910, the subterranean portions of the mound remain.

The Ohlone Village and Shellmound site was land marked by the city of Berkeley in 2000.[2] The Ohlone Confederated Villages of Lisjan, led by their
spokesperson Corrina Gould, has actively sought the protection of this important cultural site.

II. The Developers Attempt to Short-Cut Project Review with SB 35.

In 2015, Ruegg & Ellsworth and the Frank Spenger Company (Developers) applied for a permit from the City of Berkeley for commercial and residential

development at the site of a 2.2 acre parking lot at 1900 4th Street. Part of the lot includes the footprint of the West Berkeley Shellmound, as recorded by the City of Berkeley. The application proceeded through the normal discretionary review process, including environmental analysis under the
California Environmental Quality Act (CEQA). A draft environmental impact report (EIR) concluded the project would cause “a substantial adverse
change on a historical resource,” and recommended mitigation measures ”[3] including “cultural awareness and sensitivity training” for the
construction workers, that would reduce those impacts to a “less-than-significant level."

While the developers navigated the existing environmental and permitting process, California Senator Scott Wiener marshaled Senate Bill No. 35
(SB 35) through the state legislature. Effective January 1, 2018, SB 35 added Section 65913.4 to the California Government Code which provides that, if a proposed “multifamily housing development” satisfies certain “objective planning standards,” it is subject to a “streamlined, ministerial approval
process” and not any discretionary “conditional use permit” or other local discretionary zoning controls. Developments satisfying the “objective planning standards” include those: “[N]ot located on a site where ... the development would require the demolition of a historic structure that was placed on a national, state, or local historic register.”[4]

In March 2018, the Developers submitted an application for ministerial approval under SB 35 which now included low-income housing in an
attempt to qualify for streamlining, and asked Berkeley to suspend processing of its previous application. In September 2018, the City of Berkeley
denied the Developers’ request for ministerial approval, in part, because it would demolish a listed historic structure—the West Berkeley Shellmound. 

The Developers sued the City of Berkeley in November of 2018, seeking a writ of mandamus to issue the permit. The Confederated Villages of
Lisjan intervened.

III. The Superior Court Concluded the ShellmoundWas Protected Under Law.

In October 2019, the Alameda County Superior Court ruled in favor of preserving the West Berkeley Shellmound. Judge Frank Roesch rejected the
Developers’ argument that the Shellmound was not a “historic structure,” agreeing with the Confederated Villages of Lisjan and the City of Berkeley that the West Berkeley Shellmound constitutes a historic structure, even though it has been demolished above ground.[5] Judge Roesch wrote:

“A historic structure does not cease to be a historic structure or capable of demolition because it is ruined or buried. That proviso is without basis in the text of the statute and would exclude many of the world’s most beloved archeological treasures, such as Hezekiah’s tunnel in Jerusalem, the Roman ruins in Pompeii, the mausoleum of Qin Shi Huang, the cave cities of Cappacdocia, and the tombs in the Valley of the Kings. Any reading of a statute protecting historic structures that would exclude such features from protection must be rejected.”[6]
The Developers appealed.

IV. The Court of Appeal Approved Demolition of Sacred Cultural Sites.

The Developers appealed various issues from below, including the trial court’s determination that the West Berkeley Shellmound triggered the exception to ministerial approval.

Although nominally applying a deferential standard of review, Code Civ. Proc. § 1085 (calling for the court to determine whether “the agency’s decision was arbitrary, capricious or entirely lacking in evidentiary support, contrary to established public policy, unlawful or procedurally unfair”), the Court examined the issue de novo. The Court turned to two online dictionaries and one legal dictionary to conclude that a “structure” had to
be either “built” or a “building.”[7] Applying that definition, the Court of Appeal agreed with the Developers that the Shellmound was best characterized as a “mound” or “heap” rather than a structure:

There is no evidence in the record that the Shellmound is now present on the project sit  in a state that could reasonably be viewed as an existing structure, nor even remnants recognizable as part of a structure.[8]

The City of Berkeley and Confederated Villages of Lisjan petitioned for review by the California Supreme Court. Review was subsequently denied.

V. The Legislature Attempts to Correct the Appeals Court’s Insensitivity.

While the proceedings in the Court of Appeal were underway, the Legislature amended SB 35 to correct an “oversight” to prohibit ministerial approval of a project on any site that contains “a tribal cultural resource that is on a national, state, tribal, or local historic register list.”[9] Because of this amendment, SB 35’s failure to protect the West Berkeley Shellmound is hopefully limited to that singular case. However, the Court of Appeals’ failure to appreciate the significance of tribal cultural resources and interpret statutes in way that favors development over preservation of these resources is likely to continue unless State law is further clarified to promote preservation of tribal cultural resources.

Michelle LaPena is experienced in a wide variety of tribal legal matters including cultural resource protection, Indian child welfare, tribal taxation, tribal gaming regulation, tribal governance, the fee to trust process and real estate transactions, and general civil litigation involving tribal governments. Michelle is a member of the Pit River Tribe and Founder at The Circle Law Group, P.C.