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Building Trust

Author: Jean Saylor Doppenberg
December, 2015 Issue

Land buying on behalf of the Lytton Band of Pomo Indians raises concerns among neighbors that the development of a winery and hotel will put unbearable strains on the town’s aquifer.

One of the most contentious issues ever to rock the town of Windsor is playing out with new developments and controversy unfolding almost weekly. For several years and with little fanfare, the Lytton Band of Pomo Indians, a federally recognized tribe that operates a profitable gaming facility in San Pablo, has been purchasing parcels of land on the western outskirts of Windsor.
Much of the land just outside the town’s urban growth boundary is earmarked for building a new homeland for the tribe’s 270-some members. The plans include a housing development that could include up to 360 houses and, ultimately, a high-production winery and large resort hotel. A sewage treatment facility for the complex, to be located just over the back fences of homes in the town’s Deer Creek neighborhood, could also become a reality.

Lack of transparency

Earlier this year, the tribe’s ambitious building plan received a much higher profile when Second District Representative Jared Huffman (San Rafael) introduced a new bill in Congress. He authored HR2538, the Lytton Rancheria Homelands Act of 2015, at the request of Sonoma County and the tribe, to ensure that approximately 500 acres of the tribe’s land near Windsor would be put into federal trust subject to a Memorandum of Agreement negotiated between the county and the tribe, including one big condition: the prohibition of a casino or any gaming enterprise on the property—in perpetuity. In the absence of this type of legislation, the tribe’s pending application for trust status with the Bureau of Indian Affairs (BIA) could be granted without any conditions or restrictions regarding what happens on the trust land.
Citing a lack of transparency on the part of local politicians and too many closed-door meetings, a group of residents known as the Citizens For Windsor banded together to fight back against the Lytton project. In the second half of 2015, opposition to the tribe’s plan and Huffman’s legislation gained momentum and resulted in a slew of press coverage. This summer, a large public forum on the issue was attended by hundreds of Windsor residents, representatives for the tribe and Huffman himself.
“At the outset, nobody was talking to Windsor residents about this big development planned west of town by the Lytton tribe,” explains Brad Whitworth, a spokesperson for Citizens for Windsor. “The town already held meetings with the tribe, and a memorandum of agreement was reached between the tribe and the Sonoma County Board of Supervisors. Then Huffman’s bill was developed behind closed doors. So we said, ‘Wait a minute––you can’t do that.’”

Housing is the tribe’s first priority

Phase I of the tribe’s plan for its land is a 147-home development along Windsor River Road, bordered on the west by Eastside Road. That development would also include offices and a retreat and meeting area, according to the tribe’s attorney Larry Stidham. Phase II hasn’t been determined yet, he says, but it could be a large winery or resort hotel. The first priority for the tribe, however, is the housing. “Once that’s off the ground, we’ll explore what should be done next.” But, Stidham admits, “There are still a lot of moving parts to all this.”
He’s optimistic that Huffman’s bill will sail through both houses of Congress and be signed into law by President Obama by the end of this year. “After passage of the bill and the land taken into trust,” he says, “construction of the homes could start almost immediately.”
Huffman doesn’t agree with Stidham’s prediction for the bill’s swift passage. “When talking about Congress, it’s always a bit speculative,” he says. “There’s a chance we could pass the bill out of the House this year, but it may not move that quickly. And even if it does, we don’t know the path it will take through the Senate. But if it’s signed by the president, the land goes into trust under the conditions and restrictions set forth in the bill and that would clear the way for construction.”
In early October, Huffman was certain his bill would pass both houses of Congress by year’s end. “I’m fairly confident of that,” he added. “There’s still a lot of uncertainty, but there’s no opposition to the bill in Congress that I’m aware of. The bill has bipartisan support.”
Stidham concurs. “The bill had an informational hearing in Congress and was supported by both sides of the aisle,” he says.
According to a fact sheet produced by the Lytton tribe, Governor Jerry Brown wrote a letter to Congress in support of Huffman’s legislation within days of its introduction. Brown stated in his letter that the Act provides “the framework for mutually beneficial cooperative efforts that protect the tribe’s sovereignty as well as the vital interests of Sonoma County residents” if the land is taken into trust.

Taking control

Earlier this year, Huffman says, some of the neighbors in the immediate vicinity of the tribe’s planned development were shocked by its size and scope. “They weren’t aware that an agreement with the tribe was imminent, and it’s a lot more acreage than Windsor residents previously thought. So the size of the project and the commercial aspects of it––the winery and the hotel––caught them by surprise.”
In some regards, says Huffman, the Windsor town council and his own office should have conducted outreach in the community about the Lytton development much earlier in the planning process. “Keeping the residents informed about it could have been handled much better,” he admits. “So we’re now meeting with the immediate neighbors of the project and letting them all know what’s under consideration.”
Huffman has a strong interest in preventing any new casinos coming online in Sonoma County. “So through my legislation which federally protects the memorandum of agreement with the county, we have the opportunity to control the Lytton tribe’s proposed project. By negotiating this type of compromise, we have some control—it’s the only way to prevent a casino and the only way to put some sideboards on the type of development the tribe is seeking. If my bill doesn’t pass, the alternative for the tribe is to go to the Bureau of Indian Affairs, and that alternative is much worse. And so I wonder, of those Windsor residents who are trying to defeat my bill, do they really want that if it leads to a BIA trust decision without conditions? How many steps ahead have they thought?”
This fall, town officials, Huffman and Sonoma County Supervisor James Gore gathered with small groups of Windsor residents, scrambling to seek compromises about the project between the tribe and the townsfolk. “The county’s MOA with the tribe is better than what would happen if the deal blew up and the details were left to the BIA. And we still may be able to improve the MOA and my bill to address some of the opponents’ concerns. There are very promising conversations going on right now with the key stakeholders in the community,” explains Huffman. “We’re doing a lot of work trying to address concerns of those who are opposed to the tribe’s plans.” This includes a possible supplemental agreement between the county and tribe that would reduce the number of rooms in the proposed hotel scale back the winery’s production capacity and shrink the total acreage of the proposed project, among other things.
“I’m cautiously hopeful we’ll have some new compromises in the next few weeks that will move many of those opponents into the support column,” he adds. “It’s a big effort underway to make this work for everyone.”

Negotiating for water

Operating guidelines around the issues of water and wastewater for the Lytton project is a major part of that conversation, says Huffman. “People want assurances that this development won’t be some uncontrollable new water demand on an aquifer that could potentially become stressed. The tribe and the town of Windsor may be able to resolve those issues in a win-win manner that also gives the town a new aquatic center. That’s not part of my bill, but it’s something I’ve encouraged both sides to explore.”
Windsor Mayor Bruce Okrepkie says that, from his viewpoint, the town should provide water and sewer hookups to the Lytton development. “I can’t take the risk of not working with the tribe on the water and sewer issue. What we’ve told the tribe is that they’ll pay the same price for the water as everyone else does. We also said there has to be a four-mile radius around Windsor where there will be no gaming in perpetuity. And if they do commence gaming, we reserve the right to turn off their water.”
The town hired consultants in 2012 to check water capacity for the proposed Lytton development. “We have the capacity,” says Okrepkie. “So if the tribe is going to build, it makes more sense for the town to hook them up. They’ll pay the same rates as everyone else and the county can monitor how much water they’re using.”
The tribe must now set a date for the vote on this issue, he says, which is likely to happen in the first half of 2016. “The tribe will need to bring an initiative to the residents for this vote, because to hook up to water outside our urban growth boundary must be voted on by our citizens. We’re now waiting to hear from the tribe about this—the ball is in their court.”
Whitworth questions whether the town of Windsor should agree to extend water and sewer service to the development. “Where will all the water come from in the future for these homes and a big winery? The estimate our group [Citizens for Windsor] has been able to pull together is that 100 million gallons of water per year would be needed for this development, which is about what the citizens of Windsor saved this past year. All those water savings would be cancelled out.”
If residents vote down the initiative and the tribe can’t tap into the town’s water, they can then do whatever they need to gather the precious resource, according to Whitworth. “And that includes drilling a well that could put a deeper straw into the aquifer than the neighbors are allowed to, and then we’ll have people running out of water.”
Without municipal sewer service to the Lytton development, the tribe could build its own waste treatment plant bordering on the privacy fences of homes on the western perimeter of the Deer Creek subdivision.
“When you read some of the literature the tribe has distributed, it claims it wants to be a good neighbor,” says Whitworth. “But is it being a good neighbor to build a sewage treatment facility right up against an existing housing development?”

An emotional issue

To help mitigate tapping into Windsor’s water supply, says Okrepkie, the tribe offered to build a “community benefit”—a municipal swimming pool complex near the town’s high school. “They told us: ‘Here’s what we’ll do and here’s what it looks like.’ But we have to weigh the annual financial loss that a swimming pool could mean for the town. The tribe is giving us $2 million to do whatever we want in addition to the pool project, so that money is sort of a warranty to maintain that pool for a number of years, because there’s no profit to be made from a municipal swimming pool.”
Okrepkie is hopeful about the eventual outcome of the tribe’s building plans. “It may be another 147 homes and more traffic, and we understand that may not be the best thing for us. But the alternative is far worse. This is an emotional issue for many people, and the town is trying to be as transparent as possible so we can do the best we can for the citizens of Windsor.”

Appeal and Plans in Limbo

In March 2015, a U.S. District Court judge denied federal recognition to the Mishewal Wappo Tribe of Alexander Valley, which launched a lawsuit in 2009 seeking recognition that could set the stage for the U.S. Department of the Interior to place land into a federal trust. Such land is exempt from local and state regulations, making them attractive for tribes to build casinos. 
According to U.S. District Court Judge Edward Davila, the tribe waited too long to bring its lawsuit against the U.S. Secretary of the Interior. The tribe’s Alexander Valley rancheria was selected for termination under the California Rancheria Act of 1958; the statute of limitations for challenging the termination was six years. Davila said in his ruling that the tribe should have filed to restore the rancheria between 1961 and 1967. “Since this action wasn’t commenced until 40 years later, the court finds that all of the claims asserted by the plaintiff in this action are untimely,” wrote the judge.
The Mishewal Wappo Tribe has denied in the past that its approximately 350 members in Sonoma County are seeking federal recognition so they may build a casino. Instead, the tribe’s chairman, Scott Gabaldon, has stated to the media that other reasons are the focus for gaining federal status, such as better access to health benefits, housing grants and schooling grants.
After the judge’s decision was handed down this spring, Gabaldon vowed to continue to fight in the courts for federal recognition for the tribe. In May, the tribe filed an appeal with the U.S. Court of Appeals for the Ninth Circuit, in order to sue the Department of the Interior.
Gabaldon declined our request for an interview.
Media reports earlier this year revealed that another tribe, the federally recognized Scotts Valley Band of Pomo Indians, may be seeking a partnership with a resort development company, with an eye to purchasing land somewhere in the North Bay for a possible hotel or gaming facility.
When contacted recently, tribal administrator Rob Ottone said the tribal council wasn’t prepared to release information or make a statement about its plans.

Text of Huffman’s HR2538

Introduced into the House of Representatives in late May by Congressman Jared Huffman, the language of the Lytton Rancheria Homelands Act of 2015 specifically forbids a casino or gaming facility on the land owned by the Lytton tribe outside the Windsor town limits.
The legislation reads in part:
 The Lytton Rancheria of California is a federally recognized Indian tribe that lost its homeland after it was unjustly and unlawfully terminated in 1961. The tribe was restored to federal recognition in 1991, but the conditions of its restoration have prevented it from regaining a homeland on its original land.
 Congress needs to take action to reverse historic injustices that befell the tribe and have prevented it from regaining a viable homeland for its people.
  In 2000, approximately 9.5 acres of land in San Pablo, California, was placed in trust status for the Lytton Rancheria for economic development purposes.
  The tribe has since acquired, from willing sellers at fair market value, property in Sonoma County near the tribe’s historic Rancheria. This property–which the tribe holds in fee status–is suitable for a new homeland for the tribe.
  On a portion of the land to be taken into trust, which portion totals approximately 124.12 acres, the tribe plans to build housing for its members as well as governmental and community facilities.
  A portion of the land to be taken into trust is being used for viniculture, and the tribe intends to develop more of the lands to be taken into trust for viniculture. The tribe’s investment in the ongoing viniculture operation has reinvigorated the vineyards, which are producing high-quality wines. The tribe is operating its vineyards on a sustainable basis and is working toward certification of sustainability.
  No gaming will be conducted on the land to be taken into trust.
  By directing that this land be taken into trust, the United States will ensure that the Lytton Rancheria will finally have a permanently protected homeland on which it can once again live communally and plan for future generations. This action is necessary to fully restore the tribe to the status it had before it was wrongfully terminated in 1961.
  The tribe and county of Sonoma have entered into a Memorandum of Agreement in which the county agrees to the land in the county being taken into trust for the benefit of the Tribe in consideration for commitments made by the Tribe.




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