Environmental Protection Agency (EPA) Ignores the National
Historic Preservation Act (NHPA) and Bulldozes at least 8,000 Years
of Cultural History.

To review the documents concerning this disaster, click on the "Related
Docs." button (right).

For specific information on the damage done (both before and after an
archaeologist was called in), click on the "Damage" buttons (right).

Then look at the "Final Insult".

Between June and October 2006, the EPA decided to proceed with a toxic
waste cleanup project on the Elem Indian Colony reservation in Lake
County without following the requirements of the National Historic
Preservation Act (NHPA), a law that applies to all federal agencies.  

Because the EPA did not complete the required Section 106 archaeological
evaluation of the project area, the excavation and construction project was designed
oblivious to the fact that National Register quality historic and prehistoric sites
existed immediately beneath the toxic mine tailings.  These sites contained a record
of the Elem culture from 14,000 years ago to the recent historic period.  

During the project, at least 7,000 cubic meters of cultural site soils were destroyed
before the EPA agreed to the Tribe's pleas to call in an archaeologist to evaluate the
area.  After the archaeologist arrived, the EPA ignored his recommendations,
destroying another 900 cubic meters historic resources.  

The EPA was not operating totally in the dark with respect to cultural resource
knowledge on this project. Throughout the 6 year, pre-project planning process, Tribal
members and three separate Tribal Chairmen expressed concern about the
preservation of the Tribe's cultural heritage and archaeological sites. The earliest
letter in the EPA files was written in 2000. In it, Tribal Chairman Jim Brown III states,

    “the entire area (the Elem Reservation and Sulphur Bank Mine) should be
    deemed an archaeological sensitivity zone and until a comprehensive and
    adequate cultural resources assessment has been completed, no earthmoving
    activities should occur within this zone.”

EPA's enabling regulations require that they follow,

    "those cleanup standards, standards of control, and other substantive
    requirements, criteria, or limitations promulgated under federal
    environmental or state environmental or facility siting laws (40 CFR 300.5)."

This means that the EPA was required to "substantively" follow the requirements of
the National Historic Preservation Act.

In addition, EPA regulations specify that the EPA,

    "shall consult with the affected trustees on the appropriate removal action to
    be taken. The trustees will provide timely advice concerning recommended
    actions with regard to trustee resources potentially affected (40 CFR 300..310)."

This means that the EPA should have also consulted with Bureau of Indian Affairs
(BIA) archaeologists, the State Office of Historic Preservation, and the Advisory
Council on Historic Preservation before initiating the Elem Cleanup Project. In a
recent letter from the Advisory Council to the EPA
(Click to see letter 12-11-07), it is
made clear that the EPA failed to substantively comply with the National Historic
Preservation Act.

In addition to non-compliance with the NHPA and their own regulations, the EPA also
failed to conduct a “Resource Damage Assessment” and restoration plan for cultural
resources damaged by their action as required by Title 43 Code of Federal Regulations
Part 300.165.
Society for California Archaeology (SCA)
Official Statement Concerning the EPA Disaster

After reviewing all the facts, the Society for California Archaeology
Executive Board weighed in on the EPA's failings. Their statement
(published in the December 2007 Newsletter) states,

  • In the first two months of the project, no attempt was made to comply with
    Section 106 regulations. There was no pre-construction archaeological survey,
    no sensitivity study, no attempt to identify resources that were eligible or
    potentially eligible for the National Register of Historic Places, and no effort to
    have in place some sort of formal treatment plan to address potentially
    significant resources that could be uncovered during construction.

  • Judging by the photographic evidence submitted by both parties, and
    archaeological reports by both Dr. Parker and John Holson (Pacific Legacy), a
    substantial portion of what appears to be an intact deposit was mechanically
    excavated and removed prior to the hiring of a qualified archaeologist.

  • The EPA did not begin consultation with the State Office of Historic
    Preservation (OHP) until the OHP received a complaint from Tribal
    Administrator Jim Brown III in July of 2006, a month after earth moving
    activities had started.

The SCA Board lists three main concerns:

  • The lack of an EPA Cultural Resources Manager anywhere within Region 9,
    which covers Arizona, California, Nevada, Hawaii, and the Pacific Islands,
    clearly has resulted in a lack of oversight on this and presumably other EPA

  • The lack of an internal process for complying with Section 106, CERCLA, and
    other federal laws... has resulted directly in the destruction of at least a
    portion of what appears to be an important archaeological resource;

  • The growing trend in the cultural resources management field that tribal
    consultation is the only component of Section 106 that needs to be followed,
    that tribal monitoring is the equivalent of or can be conducted in lieu of
    archaeological study, and that values attributed to cultural resources by tribal
    groups are the only values those resources have, is clearly resulting in the loss
    of cultural resources.

In sum, the SCA Board indicates that,
Site maintained as a public service by Archaeological Research, PO Box 1353, Lucerne, CA 95458.
Contact: dr.john@wolfcreekarcheology.com  Copyright 2013, Archaeological Research
and Beyond
1878 Painting
$40,000,000 in Archaeological Site Destruction
in Lake County, California
"Had the EPA followed Section 106 regulations, damage to this
site could have been avoided, resources important both to the
tribe and for archaeological research could have been protected,
and both the EPA and Elem could have avoided a lawsuit."

"The lack of oversight and a formal process for complying with
the law that this project illustrates is glaring, completely
avoidable, and needs to be addressed immediately by the EPA."

  • Congress needs to take a serious look at how the EPA
    does business. If the EPA has somehow found a hole in
    the National Historic Preservation Act, then that hole
    needs to be fixed, bringing the EPA back in line with all
    the Elem reservation cannot be allowed to ever happen

  • The Elem Community needs to be reimbursed for the
    loss of their cultural history. The EPA has taken from all
    of us important information about California's cultural
Elem monitor Sandy Thomas inspects human remains
Abalone owl pendant found by Elem Tribe Member Ruben Brown, immediately beneath contaminated soil
The Society for American Archaeology

"The consensus of the Board is that while the EPA cleanup was
important and timely, EPA failed in its responsibilities to comply
with Section 106 regulations regarding cultural resources."