May 11, Charles Felder District 1, Director California Department of Transportation P.O. Box 3700 Eureka, CA Dear Mr.

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1 May 11, 2015 Charles Felder District 1, Director California Department of Transportation P.O. Box 3700 Eureka, CA Dear Mr. Felder, The Coyote Valley Band of Pomo Indians hereby objects to the terms of the April 10, 2015 Draft Programmatic Agreement and Post Review Discovery and Monitoring Plan (the PRDMP ). The Draft PRDMP fails to require Caltrans to make reasonable efforts to avoid, minimize, or mitigate adverse effects to archaeological sites within the project area and mitigation lands of the Caltrans Willits Bypass Project (the Project ) as required by both federal and state cultural resource protection laws and regulations. Data Extraction: On February 18, 2015, while in government to government consultation with Caltrans, representatives of the Coyote Valley Band of Pomo Indians were told that Caltrans: (1) will conduct no more surveys in the mitigation parcels; and (2) will only do data extraction, rather than identification, avoidance, or protection, of sites that Caltrans encounters in the course of future construction and other ground disturbing activities in the mitigation lands. The Coyote Valley Band of Pomo Indians strongly objects to this proposed process of data recovery only. Such a process will not provide for adequate surveying and protection of our ancestral sites. Monitors: Further, the Tribal Council cannot agree that Caltrans will have the sole discretion to determine the participation of tribal monitors on the site of the Project and the wetlands creation areas. At present, there is a grossly inadequate number of tribal monitors to oversee activities of Caltrans that may cause adverse impact to ancestral cultural sites. Given the unacceptable number of tribal monitors, it is completely objectionable for Caltrans to diminish the hours of these tribal monitors to 5 hours a week. Such a serious reduction in tribal monitors would require the Tribe to rely solely on determinations by Caltrans alone of what should be deemed a culturally significant site eligible for listing on the National Register of Historic Places. Placing the Tribe in such a position is completely unacceptable. Based on historical dealings, the Tribe has

2 reason to believe Caltrans will not exercise good faith in the identification, protection, and avoidance of culturally significant ancestral sites. For example, Caltrans has already arbitrarily skewed the professional standards used by archaeologists in California concerning the concentration of lithics that qualifies for the designation of a site as eligible for listing. Caltrans has drastically deviated from the professionally established norm and arbitrarily made up its own rules after the discovery of so many of our ancestral sites identified after construction began. This provision is a clear effort to avoid site designation as culturally significant and worthy of protection. The Confidentiality Agreement: There is no federal requirement for the Tribe to sign the proposed Confidentiality Agreement as pursuant to 36 CFR 800.2(ii)(e). The decision of whether to waive sovereign immunity and sign is discretionary for the Tribe. Because the Tribe previously refused to sign the Confidentiality Agreement, exercising its rights under federal law, the Tribe was severely penalized when it was denied access to important information on project redesign for the Northern Interchange. Such harsh retribution by Caltrans was but one of many obstacles to meaningful government to government consultation the Tribe has encountered in seeking to protect our ancestral cultural sites. Failure to Properly Consult: In the course of their administration of this project, both Caltrans and the Army Corps of Engineers (who has jurisdiction over the wetlands) have failed to comply with the standards of 36 CFR Part 800.2(B): Consultation with Indian Tribes should be conducted in a sensitive manner respectful of Tribal sovereignty. Moreover, these agencies also violated 36 CFR 800.2(C): Consultation with an Indian Tribe must recognize the government to government relationship between the Federal government and Indian Tribes. The Agency shall consult with the representatives designated or identified by the Tribal government. (Emphasis added). Our Tribe previously sent two requests for government to government consultation to the Army Corps, supported by two Tribal Council resolutions. Without the courtesy of an explanation, the Army Corp simply failed to respond. As a result, in order to focus attention of the this crucial issue, members of the public and our Tribe were required to participate in a non-violent protest (facing the risk of arrest) in front of the Army Corps San Francisco Office. The protest finally compelled the Army Corps to live up to its obligations under General Condition 3 of the 404 Permit for the Project. General Condition 3 required the Army Corps to not only participate in government to government consultations with our Tribe, but to facilitate consultations between our Tribe, on the one hand, and Caltrans and the Federal Highway Administration, on the other hand. When our tribal representatives finally got to the table

3 with the Army Corps, Caltrans, and the Federal Highway Administration on February 18, 2014, the Army Corps assisted us in making Caltrans provide information to both of our Tribal Council designated representatives. Lack of Good Faith: In short, the Coyote Valley Band of Pomo Indians has not been met with good faith in our efforts to consult with Caltrans, the Federal Highway Administration, or the Army Corps of Engineers. Unless this course drastically and immediately changes, the Tribe feels we have no alternative but to pursue litigation to protect our ancestral sites. Specific Objections: For purposes of the record, the Coyote Valley Band of Pomo Indians provides the following objections to the Draft of the Programmatic Agreement and the Post Review Discovery and Monitoring Plan. PROGRAMMATIC AGREEMENT 1. In the third Whereas Clause on page 1, there is no mention of impacts of the Project on ancestral cultural sites. All that is referenced is impacts to wetlands and biological resources. 2. In Section II, Treatment of Historic Properties, Subsection (C)(2), Caltrans has deleted the following language from the previous draft: In the event that other historic properties are found that may be affected during implementing mitigation requirements, Caltrans shall make every effort to alter the biological mitigation activities so as to avoid these properties, including establishing ESA s Under Stipulation II. B. The Tribe is extremely concerned, especially given the statements of the Caltrans archaeologist in our government to government consultation that (a) during ground disturbance activities, there will be no further efforts undertaken to protect or avoid culturally significant sites within the mitigation parcels, and (b) Caltrans will only do data extraction from these sites as they are encountered and not survey the sites to establish any boundaries. The Tribe strenuously objects to the deletion of the above provision in this Draft of the Programmatic Agreement. In Section II(C)(2), Caltrans states that data recovery efforts only will be conducted on certain parcels of land in the wetlands creation areas: Data recovery investigations are necessary due to wetlands creation requirements. Should wetlands creation requirements change, Caltrans will make every effort to avoid

4 further affecting these properties and will determine whether establishing additional ESA s is warranted to protect the properties. In our February 18, 2015 government to government consultation with the Army Corps of Engineers, Caltrans, and the Federal Highway Administration, our Tribe was quite clear: We should not have to have our ancestral sites in the mitigation parcels destroyed via data recovery in order for Caltrans to obtain mitigation credits for the wetlands Caltrans has destroyed. Our Tribe expressed great hope that, in future consultations with the Army Corps, we can obtain wetland creation requirements changes to protect our ancestral sites in the mitigation parcels. However, should such changes be obtained, the protection of these sites should be a matter of government to government consultation with the Tribes and Caltrans, and not left to Caltrans sole discretion to determine whether such a site is worthy of ESA protection. The current draft grants Caltrans complete discretion on this crucial issue. 3. Sub-section A of section IV, Construction Monitoring and Annual Construction Meeting, states: Caltrans shall ensure monitoring, which may include Tribal monitors within the project area. [Emphasis supplied]. Given Caltrans unilateral prior midstream changes of the rules on lithic concentration ratios to determine whether a site is culturally significant, and given that our tribal monitors in the field have been required to insist, even under Caltrans switched up criteria, that a site be protected, and given that our tribal monitors have previously been prevented from stopping construction activities upon the unearthing of large amounts of lithics, it is simply asking too much for our Tribe to trust that Caltrans archaeologists alone will adequately identify and protect our ancestral sites. We recognize that, in our government to government consultation, Caltrans expressed frustration with time constraints and the ubiquitous presence of archaeological artifacts in the mitigation lands. Caltrans frustration with cost overruns and delays due to encountering so many post-eis approval culturally significant sites should not be allowed to serve as an excuse to continue to fail to completely identify and protect our ancestral sites in the project area and mitigation creation areas under the protection of federal and state laws. The Tribe objects to Caltrans proposal to: (a) only pursue data recovery when sites are encountered in the mitigation parcels; and (b) leave the issue of tribal monitors in Caltrans sole discretion when ground disturbing activities occur in the mitigation parcels. The Tribe seriously objects that Caltrans has the discretion to have Tribal monitors present at all in the construction areas and in the mitigation

5 parcels. Mitigation area creation activities which also involve the scooping out of land for water retention areas and the scraping of land by bulldozers are certainly ground disturbing activities. Our ancestral heritage should not be left unprotected in the name of expediency to complete the Project. It is not the Tribe s fault that this Project and its mitigation parcels have been declared by the State Office of Historic Preservation to likely constitute an entire archaeological district of sites containing many more of our culturally significant ancestral cultural sites than the one site identified by Caltrans prior to EIS approval. POST REVIEW DISCOVERY AND MONITORING PLAN 1. In the Introduction, page 1, paragraph 3, it states this document addresses the identification and/or management of cultural resources during construction or other ground disturbing activities. (Emphasis supplied). The Tribe requires that the words protection and avoidance be included in this sentence, as follows: has been prepared to address the identification, protection, avoidance, and management of cultural resource 2. At FOCUS OF ARCHAEOLOGICAL MONITORING, page 4, paragraph 1: the focus of archaeological monitoring efforts during ground disturbing activities in the Project APE shall be on the identification of discrete archaeological features/ and or deposits (e.g., hearths, middens, or artifact laden sediments that can provide important information. It would appear that site protection and avoidance is no longer a goal, though such goal is mandated under federal and state resource protection laws. The Tribe once again objects that only identification is the stated goal, with no mention of site protection and avoidance. 3. Paragraph 2 of this section states: If post-review discoveries are made during construction, Caltrans will attempt to avoid or minimize the impacts to the property. Should avoidance or minimization of impacts not be feasible, Caltrans shall mitigate adverse effects through data recovery. This section fails to mention avoiding or minimizing impacts to ancestral cultural sites in the mitigation parcels as only construction activities are referenced, not wetlands creation activities. This includes grading many acres of land with bulldozers and scooping out large areas of land to create water retaining areas. Caltrans references the ubiquitous presence of lithic materials encountered to date in the wetland creation areas; this reference should not be used as an excuse to fail to avoid and protect our ancestral sites, rather it should place them on

6 heightened alert to protect our sites in the wetlands creation parcels and justifies as the Tribe has continually requested a Supplemental EIS to address the protection and avoidance of these sites. MONITORING PLAN The current draft at page 4 states: Tribal monitors may also be on site to observe ground disturbing activities. The Tribe finds the potential elimination of Tribal monitors allowed by this section as totally unacceptable given Caltrans archaeologist s well documented history of failing to adequately survey or protect our ancestral sites as this project has developed. The Project Contact List upon the discovery of archaeological features or deposits (page 5) fails to include Priscilla Hunter as contact person. Our Tribal Council by unanimous vote and by Tribal Resolution has designated both Eddie Knight and Priscilla Hunter as our tribal government representatives to the Caltrans Willits Bypass Project. Pursuant to 36 CFR 800.2(C) Consultation with an Indian Tribe must recognize the government to government relationship between the Federal government and Indian Tribes. The Agency shall consult with the representatives designated or identified by the Tribal government. [Emphasis supplied]. Therefore, the Tribe insists upon the inclusion of our Tribal representative, Priscilla Hunter, on this contact list. Data Recovery Procedures at page 6, first sentence, states: Should Caltrans determine that a property cannot be avoided and will be adversely affected, the archaeological monitors in consultation with tribal monitors will establish appropriate data recovery procedures. The determination of the ability to avoid and protect a site should not be left solely to the discretion of Caltrans; this should rather be undertaken in consultation with the Tribes. DISCOVERY OF ISOLATED OR SPARSE SCATTERS OF ARTIFACTS The paragraph referencing tribal monitors at p 9 it states, Artifacts should only be collected [by a Tribal monitor] prior to notifying an archaeological monitor if the items are at risk of being lost as a result of active construction activities. However, at p. 5 sentence 1 it states that archaeological and tribal monitors will have the authority to halt construction at specific locations should an archaeological feature/and or deposit be encountered in non-fill sediment. This sentence at p 9 vitiates the authority of tribal monitors to halt construction upon the discovery of archaeological features/ and or deposits at p 5. Thus the Tribe objects to the current wording of this section. Moreover,

7 the Tribe seeks clarification of what are the specific locations referenced here where the monitors will have the authority to halt construction? CURATION OF ARTIFACTS Although the matter of artifact curation is left by this draft PDRMP for further negotiation in government to government consultations, the Tribe would like the record to reflect that Caltrans has previously stated its intent to curate artifacts in the County Museum as opposed to returning artifacts to the Tribes for curation. This has been their position articulated in previous consultation. We want the record to further reflect that there is nothing in the Secretary of Interior s Standards and Guidelines for Archaeology and Historic Preservation which would prohibit the Tribes from assuming curation of the artifacts discovered in the Willits Bypass Project. [See the criteria established for satisfactory curation contained in these Secretarial Standards.] The Coyote Valley Band of Pomo Indians believes these concerns are significant and need to be addressed immediately. The Tribe thanks you for your attention to our concerns. Sincerely, Michael Hunter, Tribal Chairman