Clearlake sets aside half a million dollars to defend against tribal lawsuits over city projects
- Elizabeth Larson
- Posted On
LAKE COUNTY, Calif. — The Clearlake City Council has approved increasing the funding the city will devote to defending itself against legal challenges involving major park and road projects filed by the Koi Nation tribe, with one of those cases set to go to trial on Friday.
At its Oct. 5 meeting, the council was unanimous in approving the request from City Manager Alan Flora to double the city’s expenditures with the Downey Brand law firm from $250,000 to $500,000.
In his written report for that council meeting, Flora said the legal contract was primarily for the purpose of defending the city against “the recent onslaught by the Koi Nation to challenge all economic development projects in the City of Clearlake.”
The tribe, whose traditional territory includes the city of Clearlake and Lower Lake, sued in March to halt the city’s projects for the 18th Avenue extension, which is related to a new hotel development.
It filed another suit in July regarding the Burns Valley sports complex and recreation center project, alleging the city has not conducted state-required consultation with its tribal government.
Koi Vice Chair Dino Beltrans did not respond to a message requesting comment for this story.
In December, Congressman Mike Thompson secured $2 million for the Burns Valley project, which will include construction of a large sports and recreation center complete with baseball fields, soccer fields, a 20,000 square foot rec center, a small amount of retail space and a public works corporation yard.
The 18th Avenue project suit is set to go to trial in Lake County Superior Court on Friday, Oct. 20. No date has been set for the Burns Valley lawsuit.
Council members on Oct. 5 were united in calling the tribal lawsuits “frivolous” and damaging to the city’s efforts to complete beneficial projects, including those focused on the community’s children.
The council had initially approved the $250,000 figure for legal defense in March after the tribe sued to stop the city’s extension of 18th Avenue as part of a new hotel development at the former Peace Field airport site.
The tribe has alleged that the city violated the California Environmental Quality Act, or CEQA, and abused its discretion in adopting a mitigated negative declaration rather than completing an environmental impact report for the project.
Specifically, the tribe has pointed to AB 52, the Tribal Cultural Resources Bill of 2014, which requires that, as part of CEQA, public agencies must consult with a local Native American tribe when a project will have significant impact on tribal sites.
“The City ignored substantial evidence of direct and cumulative impacts to tribal cultural
resources within the aboriginal territories of Petitioner Koi Nation, and the City failed to engage in meaningful and legally adequate government-to-government consultation with Petitioner Koi
Nation as required by CEQA through AB 52,” according to case documents.
In its defense, the city has said it conducted that consultation and followed CEQA’s requirements fully, and that the tribe is reading things into the law that aren’t there.
The city had been set to start road and utility work on the 18th Avenue Project in July, the week after a temporary restraining order hearing that took place on July 13 before Judge Michael Lunas.
At that time, it had been anticipated that Lunas would issue a ruling within a month, but that decision finally came down within recent weeks.
Lunas denied the tribe’s request for a preliminary injunction but issued a stay on ground disturbing work until the outcome of the Oct. 20 trial.
With Lunas expected to issue a ruling within 30 days of the trial’s conclusion, and no date yet set on the sports complex, Flora said there is “little likelihood” the city will be able to do any work on the projects this year. However, he said he remains “ever hopeful” some work could be done on the 18th Avenue project, depending on weather.
The Koi tribal leadership has appeared to heighten its willingness to fight the city at the same time as they are working to establish a new casino in Windsor in neighboring Sonoma County.
The tribe had been known as the Lower Lake Rancheria Koi Nation until 2011, when it changed its name to the Koi Nation of Northern California.
In the fall of 2021, the tribe went public with its plans for the Windsor casino. By that year’s end, the tribe’s koination.com website was gone and now redirects to Koinationsonoma.com.
On that website’s “Misson” page, it does not mention Lake County. Rather, it says the tribe is “committed to protecting and exercising our inherent sovereign rights as a federally recognized tribe to their fullest extent, including obtaining land to re-establish a permanent land base for our people who have lived in this region for thousands of years, and creating self-sustaining economic activity to support the tribal government and its people, and the entire community of Sonoma County.”
So far, the Koi — who will partner with the Chickasaw Nation of Oklahoma to operate the casino — have not gotten a welcome reception either from tribes or government agencies in Sonoma County, which have joined to push back on the plan.
The Sonoma County Board of Supervisors passed a resolution against the casino, the Graton Rancheria accused the Koi of “reservation shopping” and in a federal hearing last month, the tribe’s plans even received opposition from elected leaders at the federal and state levels.
The tribe has, however, gotten support from a group of union workers with whom it has signed an agreement to ensure union labor is employed in building the casino, as well as retired Lake County Sheriff Brian Martin, featured in a support video released in July, and actor Peter Coyote, who has narrated a documentary involving the tribe.
Heightened disagreements
The Koi’s working relationship with the city has most noticeably deteriorated over the last three years, as the tribal leadership and its attorneys have aimed increasingly sharpened criticism at city leadership over the handling of projects.
Much of the tribe’s tension with the city has appeared to involve tribal monitoring. Specifically, the tribe wants trained tribal members to be paid by the city to monitor all operations when there is ground disturbance in order to look for artifacts and human remains, which trigger work stoppage.
The tribe has maintained this is important because of past instances in which lack of monitoring resulted in removal of human remains and historical soils, and destruction of artifacts.
Flora said during a Clearlake Planning Commission meeting in June that the city doesn’t believe that every project it does that involves ground disturbance requires tribal monitoring.
The Koi haven’t just taken aim at city projects.
In the fall of 2020, the Lake County Tribal Health Consortium began work on its new Southshore Clinic at 14440 Olympic Drive. The consortium consists of six Lake County tribes, but the Koi does not participate.
Flora said the Koi tribe was aware of the project, but when construction started, “They came out and kinda caused a ruckus and asked for Dr. Parker to come out.”
Flora said Dr. John Parker, the Koi’s preferred archaeologist, went to the project and concluded there were no issues. In all, Flora estimated that construction on the project was stopped for as much as a day and a half while those matters were resolved.
When it held its official grand opening in May, Tribal Health presented the city with a $150,000 check in support of the Burns Valley sports complex project, pointing to the health benefits to the community.
Flora said that in 2022, the Koi had threatened to sue to stop completion of the city’s new splash pad at Austin Park. Because the council had wanted to move forward with the contract and completing the project, he said they agreed to the monitoring the Koi wanted.
However, while the splash pad was completed, Flora said there was other work planned at Austin Park that won’t be completed because underground work would have been required and it was expected to result in further issues with the tribe.
That included shade structures in front of the bandstand that were to be paid for with grant funds. Flora said the city is now reallocating those funds elsewhere.
“We know with their pattern of working with us that it’s just not worth the fight at this point,” he said.
In January, during an initial discussion with the Board of Supervisors about designing a regional skate park at Austin Park — and upgrading the existing park with an above-ground concrete structure — Koi representatives again raised issues.
Robert Geary, the tribal historic preservation officer for Habematolel Pomo of Upper Lake who has been working with the Koi in response to city projects, said the site of the existing park is a village site and that they wanted protocols in place before any action was taken.
“This is only for the design,” said Supervisor Bruno Sabatier, whose district includes Clearlake.
“We have discussed the sensitivity of the area as well,” said Sabatier, which is why they are looking to build up, not to dig into the earth in order to do the least disturbance possible.
Holly Roberson, the tribal cultural resources counsel for the Koi Nation, told the board the tribe isn’t against development in Lake County.
She followed up by saying, “It’s great that you’re interested in development above ground. That doesn’t necessarily mean there won’t be tribal cultural resources impacts.”
Roberson said they would have “significant legal risk” if the tribal resources aren’t fully addressed.
Sabatier said he planned to work to make sure the project happened correctly, but didn’t support adding any requirements to the memorandum of understanding for the project’s design cost.
During a June discussion the Clearlake City Council had on that project, Roberson and Geary appeared and reiterated comments they had made at the supervisorial meeting about the skate park project’s potential impact on tribal resources. The council went forward with approving the MOU at that time.
There are other projects the city also is holding off on because they’re concerned about more threats of litigation by the tribe, including installing electrical vehicle charging stations at City Hall. He said the city isn’t planning any such installations there because they believe the tribe would try to stop it.
In addition, a water line replacement down Dam Road needed to serve the Cache fire area, including one of the mobile home parks where there are 50 mobile homes needing water supply and another park where rebuilding needs to take place, has been held up for the Konocti County Water District, according to Flora.
Flora said the tribe is insisting that any sensitive materials that have been dug up due to the water line work be reburied in the same location. In some instances, that’s not possible. The city is offering another reburial location and the tribe is refusing. The result is the district is going to have to come up with more money to pay the tribe for monitoring and reburial.
Situation comes to a head
For the Burns Valley project, the situation comes down to monitoring.
The city purchased the 31-acre parcel at the end of 2020. In May of 2022, the city completed the sale of a five-acre parcel at 14795 Burns Valley Road to Arcata-based Danco Communities, which is building an 84-unit apartment complex with mixed-income family units there. That project had no opposition from the tribe.
“They did not raise issues with Danco because Danco agreed to full tribal monitoring, even though there was no requirement to do so,” said Flora. “Danco was more concerned about the timing of the project being held up and how that would impact their financing stack.”
The tribe wants the entirety of the 26 acres where the sports complex and city corporation yard will be located to be monitored, rather than just the location of two habitation sites, which they have argued is actually one large village.
“They say it’s always about the monitoring but they feel like they should make all decisions when it comes to tribal resources,” said Flora.
There are no state or federal laws requiring tribal monitors, although projects have increasingly included them out of respect for tribes.
Flora said if an item is found, the tribe believes it gets to tell the city what to do about it. “They get to decide and we get to pay for it,” he said, adding that’s not the state law.
The Clearlake Planning Commission’s approval of the Burns Valley project’s environmental analysis over the Koi’s objections on April 25 brought the disagreements between the city and the tribe to a head over the summer.
The Koi appealed the commission’s action. Over the course of several meetings — regularly scheduled meetings on June 1 and 15, and a special meeting in June 6 — the Clearlake City Council discussed the Koi’s appeal.
At the June 6 meeting, Tribal Chair Darin Beltran — brother of Vice Chair Dino Beltran — spoke to the council about the project.
Beltran’s comments led city officials to understand that he was offering to have the tribe — not the city — pay for the monitoring it wants of the site.
The city created a separate video clip of that discussion from the meeting and posted it on its Youtube page in order to explain the matter.
However, the following week, when Mayor Russ Perdock and Councilman David Claffey met with the Koi tribal council, Perdock said that offer was rescinded.
At the June 15 council meeting, Darin Beltran did not speak to the matter. Instead, Roberson told the council that it was a “misunderstanding,” and that the tribe was not extending Darin Beltran’s offer, which would have required a vote of the tribal council.
She said it was “confusing,” although council members were firm in saying Beltran’s offer had been clear.
While his brother didn’t speak, Dino Beltran did. “We have not told you no. We want this to happen,” he said of the project.
He said it was a social justice, cultural and religious issue, not one of CEQA.
Beltran said they were going to start reaching out to the community. “We are not getting through here,” he said about interactions with the council. He said they would not pay for tribal monitoring.
“This isn’t a legal issue so much as it is a moral issue,” he said.
During the discussion, another tribal member requested that the sports complex be named for the tribe, which Flora later said wasn’t something that had ever been discussed before then.
Roberson, who returned to the microphone, said there are numerous cultural sites around the city, and not all cultural resources have been identified or mitigated.
She said sites have historically been desecrated. “Are you going to keep going? Are you going to double down on what happened in the past?”
Tom Nixon, a retired park ranger for Anderson Marsh, said during public comment that he respected both the city and the Koi, which he said wanted to be part of the process.
Part of that is legitimizing compensation, Nixon said. “I think you should pony up.”
Flora later noted that, from listening to comments from the public, there was not a clear understanding of the mitigations, which includes tribal monitoring of specific sites and cap and fill.
He said the city purchased the property two and a half years before and immediately started consultation with the tribe. Dino Beltran raised issues of burials, and that information was passed on to archaeologist Dr. Greg White, who found no evidence of burials on the property.
Councilman Dirk Slooten said it was interesting that, only that day, the tribe raised environmental and social justice issues about the project.
Councilman Russ Cremer said he had been specific in asking the tribe about paying for monitoring during the special meeting in which Darin Beltran had made the offer.
Cremer said that cultivation has happened on the property — which had been part of a working farm and orchard — for over the past 100 years.
Recently, the city had the property disked to knock down vegetation for fire safety, and the tribe criticized the city for taking that measure, which Cremer said was ridiculous.
He said they’ve tried to get to a happy medium and that the tribe hasn’t heard them.
“Quite honestly, I’m somewhat, I shouldn’t say I’m shocked,” he said. “There was no misunderstanding on what I asked and what Mr. Beltran agreed to.”
Cremer said something happened over the weekend or the ensuing three or four days after the meeting in which Darin Beltran had offered to pay for monitoring.
He said he didn’t see a requirement for city to pay for monitoring outside of areas we agreed to pay for. “We’re stretching to make this thing work.”
Cremer added, “You say you want this to happen, but your actions are not showing me that.”
Councilwoman Joyce Overton was less diplomatic. “I’m not quite sure why we’re even here on the issue.”
She faulted Parker for having gone onto city property without permission to conduct surveys — which Flora also had stated during council meetings on the matter — adding she has personally seen Parker make copies of artifacts.
Overton said there is always going to be monitoring, and that she felt the city had gone above and beyond in its responsibilities. “I don’t think there’s any give anymore.”
Flora said during the discussion that the city if human remains are found, work within 100 feet needs to stop.
“This is a unique opportunity for the city of Clearlake,” said Slooten, with a amazing sports complex with amazing health benefits to the community.
He pointed out that Lake County has some of the worst health outcomes in the state because it doesn’t have these types of facilitiesxs.
Perdock added that the city has changed the site designs and made other adaptations. At the tribal meeting, he said he had told them they hoped to extend an olive branch.
However, he said the city’s budget is stretched pretty thin to get the project done and across the finish line.
The council voted unanimously to continue forward and deny the Koi’s appeal.
Arguing in the court of public opinion
On July 14, the tribe sued, and the tribe and city began exchanging news releases.
The Koi, who said their ancestors have lived in the region for more than 17,000 years, accused the city of “blatant disregard of state laws that mandate the protection of tribal cultural resources,” and said it is insisting the Burns Valley project meet state laws on oversight.
The tribe maintained that city officials “have approved a wholly inadequate and rushed approval of the project that excludes the required protection of tribal cultural resources and meaningful tribal consultation.”
The Koi’s news release did not quote Tribal Chair Darin Beltran, but instead much of it was attributed to his brother, Dino Beltran.
“The City of Clearlake and the City’s leaders must respect the law, our cultural heritage and our tribal sovereignty before and during the development of the Burns Valley Sports Complex,” said Beltran. “Protecting burial sites and artifacts of our people is a legal and moral obligation, and we hope that this action will persuade Clearlake officials to recognize their obligations and meaningfully consult with us.”
The statement by Beltran continued, “The Koi Nation provided lots of evidence of impacts to tribal cultural resources on the project site and many ideas to reduce harm or avoid impacts, but the City just wouldn't listen. We asked them to keep consulting, and to work it out with us so the project could move forward, but they walked away from the table."
Beltran accused the city of claiming the tribe opposes the development, which he said is “categorically untrue.”
“The Koi Nation does not object to development in the region, so long as it is done respectfully and legally. The Koi Nation supports the creation of this facility for our friends and neighbors who live in the City, which has a shortage of outdoor recreation options, and is taking this action to ensure that the Burns Valley project moves forward in a way that conforms to the law and does not cause more harm to tribal sites,” Beltran said in the statement.
The statement continued, “The City wants to pit us against our neighbors by these false statements, when we have said publicly that we support the development. It is disappointing and upsetting that the City’s leaders would make such statements in an attempt to create animosity toward us. We are not seeking to stop the project, but rather to ensure that Clearlake officials follow the law.”
Beltran added, “We can and must find a way to co-exist. This place is the land of the original inhabitants of the Clearlake basin, the Koi people. When the City builds projects, it needs to be respectful and take into account all of the tribal cultural resources it could impact and find a way to avoid harming them. The City must do everything it can to build projects in a responsible way, which could save the City money and actually help projects get done faster with less opposition."
In its response, the city said its on a path to revitalization and that it has “pressing community needs, such as infrastructure, education, medical care and public services. The sports complex is intended to serve as a gathering place for families, friends, and neighbors, strengthening community bonds and fostering a sense of belonging and camaraderie among residents.”
The city added, “Not only is the sports complex needed for the youth in the community, but it will also help convey the necessity of a healthy lifestyle for the whole family. Lake County has some of highest negative health statistics in the State so the City is doing everything it can to help improve the quality of life for their residents.”
The city’s statement also noted that while it continues to hear Koi Nation is “not opposed,” “yet the approach they take and the litigation they filed seems to suggest otherwise. The Sports Complex litigation follows on the heels of the recent Koi lawsuit which has temporarily halted the hotel development and new road project on 18th Avenue in Clearlake.”
“Litigation seems to be routine with the Koi on our projects which is incredibly frustrating and disappointing. During the CEQA process, we worked with the Koi for over two years, and we thought we had made good progress,” Flora said in the statement.
The city said it redesigned the sports complex project to avoid any impacts to tribal cultural resources — primarily by utilizing a cap and fill method of building above any sensitive areas without excavation — and that it made many concessions beyond what was legally required in order to respond to the Koi’s concerns.
Among its offerings to the tribe were a discussion about naming the sports complex, tribal interpretive panels and displays, native plantings and agreeing to allow the tribe free use of the complex up to four times a year for their own events.
In the statement, Perdock said that after their meetings with the Koi, the city believed a feasible agreement was possible, referring to Darin Beltran’s offer to cover tribal monitoring costs. “We were thrilled to feel like we could move forward in unison. However, a week later at the June 15 City Council meeting, the tribe rescinded their offer. I can’t tell you how disheartened our community is at the thought of the Koi holding up yet another project.”
City officials said the tribe’s “continued frivolous lawsuits” are wasting scarce city resources in terms of time and money, and it could destroy the city’s future plans.
Perdock encouraged anyone interested to review the documents about the project themselves. “We hope the Koi Nation won’t take this community asset away from us.”
Council discusses legal expenses
Flora’s written report for the Oct. 5 council meeting explained. “While the City continues to believe these lawsuits and the tribe’s actions to be an overreach and frivolous, significant taxpayer funds will nonetheless be required to defend these projects.”
“I know, It’s frustrating,” Flora told the council during the meeting, “These are project funds that were identified to be used for sidewalks, playground equipment, batting cages, etc.”
He said a number of those items will have to be pulled out of the projects when the city is authorized to move forward or else additional funding is identified.
“I think it’s essential that we defend ourselves against these frivolous efforts and the future of clearlake depends on it,” Flora said.
He said the city has spent about $3.5 million on the sports complex so far, with another $9 million in the budget for work on the project this fiscal year.
Some of that money comes from grant funds and is not being used for legal expenses, Flora said.
Claffey said that some of the biggest problems the city has faced have involved roads and parks, and set out to address those very issues. ““We as a small city cobbled together enough money to start making some significant improvements.”
He added, “This is a lot of money going to a purpose that really isn’t needed.”
That’s just on the city’s side. Claffey said money is being spent on the other end — a reference to the tribe — that could be invested in this community that is not right now. All of it is being done on the backs of taxpayers, he added.
“We have to defend it now or it’s going to continue to haunt us into the years to come as we try to continue to do projects within the city to improve it for our citizens and our community. So we have no choice but to continue,” said Cremer.
Slooten concurred with Claffey and Cremer. “We need to do this.”
He added, “Otherwise they'll continue with these frivolous lawsuits.”
Overton agreed. She said she didn’t see any choice. “I’m just saddened that we’re going to be taking away from our children.”
“I echo the comments of my peers,” said Perdock.
He said he was very disappointed in the city’s public hearings on the projects, hearings that had been dominated by the disagreements between the tribe and the city.
Agreeing that the legal action by the tribe is frivolous, Perdock maintained Clearlake has complied with all of the CEQA laws and requirements and had tribal monitors in place as required by law.
It was when the tribe wanted extras — an apparent reference to the larger scope of tribal monitoring the Koi wanted — that the city said no and that work needed to get started. Perdock said the city didn’t want to pay for unnecessary services “as I see them.”
“The tribal chairman agreed for a solution and then they backtracked. Remember that,” said Slooten.
Because the city is in litigation on the matter, Perdock said they were limited in what more they could say.
Claffey moved to increase the legal contract amount from $250,000 to $500,000, with Slooten seconding and the council voting 5-0.
Email Elizabeth Larson at This email address is being protected from spambots. You need JavaScript enabled to view it.. Follow her on Twitter, @ERLarson, or Lake County News, @LakeCoNews.