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City of Berkeley, Native American tribe lose appeal to stop development of sacred site

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Bay Area developers have scored a major legal victory in their push to build on the West Berkeley Shellmound site, a ground that is sacred to the Ohlone tribe.

California’s Supreme Court on Wednesday declined to hear an appeal by the city of Berkeley and the Confederated Villages of Lisjan to prevent development on the 2.2-acre property, which lies in the heart of some of the most expensive real estate in the country. Property owners Ruegg & Ellsworth and the Frank Spenger Co. have sought to build a 260-unit mixed-use development on the site.

“The Confederated Villages of Lisjan are disappointed with the recent court ruling, but we continue to have faith. We have been here in our traditional territories since the beginning of time,” Corrina Gould, the tribal chair for the Confederated Villages of Lisjan, said in a statement. “We are not defeated.”

The site is the oldest of 425 shellmounds, or burial and gravesites, in the Bay Area, Gould said.

“This particular place has been here for thousands of years and has a huge significance in our tribal history. And we continue to have prayer there and ceremony,” she said.

In 2020, the site was listed as one of the 11 most endangered historic places in the country by the National Trust for Historic Preservation. Human remains and artifacts have been found at the site, Gould said. Developers had questioned the significance of the site.

Raymond Cardozo, a lawyer representing the property owners, said in an email that the court “correctly recognized that the shellmound was never on the land in question, but was on nearby land that was demolished during 19th century development in the area.”

The tribe found an ally in the city of Berkeley, which had halted the development in 2018. Berkeley Mayor Jesse Arreguín said that the city is reviewing its options but that he personally is “very disappointed” with the court ruling.

“I think it’s unfortunate, and I just think how much more are we going to desecrate cultural sites and cultural heritage of our first people?” Arreguín said.

Developers argued that they could bypass seeking the city’s approval, citing a law, SB-35, designed to fast-track developments that include at least 50 percent of affordable housing, the Berkeleyside news site reported. Berkeley had argued that the site, which it declared a landmark in 2000, was not subject to SB-35 partly because of its historical significance.

In September, California Gov. Gavin Newsom signed into law an amendment to SB-35 that closed the loophole that allowed developers to not have to consult Native American tribes when seeking approval for affordable housing projects. But the amendment came too late for the West Berkeley Shellmound site.

Gould said if lawmakers had considered how SB-35 might affect Native American sites in the state, protections for tribes would have not been “left out.”

With the latest ruling, it’s not clear what the path forward may be for the city and the tribe.

“Ultimately, if we are required by a court order to have to issue the permit, we will have to issue the permit,” Arreguín said.