TRINIDAD HARBOR LAND OWNERSHIP

The approximately nine acre area consisting of the Seascape Restaurant, its parking area, the commercial boat launcher and the parking area extending west to Trinidad State Beach are under consideration for transfer into a special trust status where title would be held by the Bureau of Indian Affairs (BIA) for the benefit of the Cher-Ae Heights Indian Community of the Trinidad Rancheria.  The Rancheria currently owns the property under its own name, after purchasing it from Robert Hallmark in 2000.  Robert Hallmark’s father bought it in 1947 from the Hammond Lumber Company, and built the old wooden pier, which was replaced with the current steel pier around 2012 or so.

The property supports the current commercial crab fishing fleet in the winter, and the sport fishing fleet in the summer, as well as the restaurant and seasonal tackle shop.  Recreational boaters and kayakers also cross the property to get access to the beach in the protected area of Trinidad Bay where they can launch and retrieve their boats without charge.  The right of such coastal access is protected by the California Constitution.

HARP has opposed the trust transfer because if it goes through, the property will be exempt from any land use control by either the City of Trinidad, the County of Humboldt, or the State of California—including the Coastal Commission.  That means unlimited commercial development could take place, such as high-end condos or even another casino or hotel.

As it stands now, the Coastal Commission still has regulatory jurisdiction, and the Rancheria must obtain coastal development permits for any changes it wishes to make to the property.  If the property goes into federal trust status, in addition to lack of development restriction, the Rancheria would also be legally allowed to exclude members of the public from the property.

In March of 2019, the California Coastal Commission held a “consistency hearing’ on the project, because of its required BIA’s involvement, which makes it a “federal project.”  Unfortunately, the trust transfer aspect of the project was barely examined, with the focus instead being on the Rancheria’s desire to make some minor physical changes to the property, such as adding a visitor center and some stormwater runoff improvements.  Neither of those require a transfer of the property into trust status, making HARP suspicious that the real goal is to eliminate regulatory jurisdiction so the Rancheria will be free to build whatever it wants on the property.

The Coastal Commission voted to find the project consistent with the California Coastal Act, despite the real potential for diminished or completely eliminated public access across the property for parking for State Beach or small boat and kayak launching into Trinidad Bay.  Ensured public access is one of the bedrock foundations of the Coastal Act. (To view a video archive of the CCC’s deliberations on this issue, click on the video link to Item 10 b when directed to the CCC archive web pages.)

The Commission staff report recommended approval, on the theory that the Rancheria would agree to pass ordinances of its own that would ensure public access.  There are two big problems with that.  First, any ordinance that is passed by the current Tribal Council, can be rescinded by a future Tribal Council, or even the present one.  No one can interfere with that process, because it is a matter of tribal self-determination, the current policy of the BIA.  Also, Tribal Ordinances cannot be enforced except by requesting action from the Tribal Council itself, which non-members are not allowed to do.  The public is not even allowed to attend Tribal Council meetings.

The Commission staff believes that it will have continuing jurisdiction over the property, so, if for example, in the future the Rancheria blocks off public access, it can use its legal authority obtain a court order directing that pubic access be restored.  The problem, however, is that once the property goes into federal trust status, state courts no longer have jurisdiction over it, and the Rancheria itself is immune from lawsuits as a matter of federal law.   HARP believes that if push comes to shove, there will be no legal way for any member of the public, or even the Coastal Commission, to make sure public access to the beach is available.

When the Elk Valley Rancheria in Del Norte County had to go through a similar process with the Coastal Commission, it was required to waive its sovereign immunity so that the Coastal Commission could sue it to enforce the promises it was making.  But, the waiver only applied to an action filed in the Elk River Rancheria Tribal Court.  The Trinidad Rancheria does not have a tribal court.  But even if it did, tribal courts do not have subject matter jurisdictions over suits that involve the State of California.

For that reason, HARP has filed a legal challenge to the Coastal Commission’s decision.  The case is called Humboldt Alliance for Responsible Planning vs. California Coastal Commission, No. CV190327, in Humboldt County Superior Court.  The petition seeks a writ of mandate overturning the Coastal Commission’s approval of the project, focusing on the trust transfer aspect of it.  The Coastal Commission is currently preparing the “administrative record” for the case, meaning the full compilation of all the paperwork related to the project.

It appears that the filing of the suit has derailed, at least for the time being, the BIA’s final decision of whether to accept the land into trust status.  HARP co-founder and attorney Bryce Kenny submitted to the BIA public comments and exhibits opposing the trust transfer in April of 2017.  It is anticipated that if the BIA approves the federal trust transfer of the property before the case against the Coastal Commission is finally decided, an administrative appeal and then a federal court challenge will be made against the trust transfer. (See additional HARP comments to the BIA sent in May 2019.)

While attorney Bryce Kenny is not charging HARP for his time, various fees must be paid along the way, and for that reason, HARP is seeking donations to cover those.  Please go to the DONATE page if you want to help out!