Digging Up Controversy : Development and Archeology Clash on Malibu Land Where Chumash Artifacts May Be Buried

Jack Skene has big plans for his piece of Malibu.

On five wind-swept acres, he envisions a $1-million chateau with rose gardens overlooking the sweeping coastline. But Skene, 43, has yet to break ground more than a year after buying the vacant site for his dream home.

The mortgage broker has been battling the city over a law requiring property owners to conduct archeological studies before construction. Skene received one estimate of $46,000 to review his parcel, where artifacts have been found that could suggest the remnants of a Chumash Indian settlement dating back thousands of years.

Skene’s case has become a cause celebre among some property owners in Malibu. They contend that the city places the burden of historic preservation unfairly on their shoulders.

Affected property owners have lodged complaints at City Hall, questioning the necessity of expensive studies to determine the historic significance of parcels as recommended by the city’s archeologist, Chester King. A few owners--including Skene--have gone so far as to hire their own archeologists to perform independent surveys in hopes of refuting King’s conclusions.

“Property owners are being held hostage,” said Skene, whose own archeologist suggested that the site could be of limited cultural value. “How much are we expected to spend to preserve cultural resources?”

As a result of the uproar, city officials are reviewing the law. The City Council next month is expected to consider a revised version that would limit what property owners must pay for such investigations.

“We have to come up with guidelines that have some economic reality,” said Councilman Jeffrey Jennings, one of two council members helping to rewrite the law.

The Chumash Indians inhabited the Southern and Central California coasts as long as 4,000 years ago, and settled in dozens of sites across Malibu. The city adopted its cultural preservation ordinance nearly three years ago in an effort to protect remnants of the area’s Native American culture.

Malibu’s law directs the city archeologist to survey land where any commercial or residential development is proposed. When artifacts are discovered, pits or trenches are dug to search underground for additional artifacts.

In cases of important archeological finds such as burial sites, archeologists excavate the land and remove artifacts, while property owners “cap” the site with dirt before construction or relocate the proposed structures elsewhere on the property.

Property owners are required to pay all costs, including the tab for hiring private Native American monitors who--by state law--must be on hand to oversee archeologically sensitive construction sites.

Before the city enacted its law, archeological reviews were handled by the county, which required studies for large subdivisions but not for individual properties.

Malibu homeowners say that although the city’s law may come from good intentions, in practice it is too sweeping. Those who plan minor remodeling jobs--for example, adding a deck or extending a room--have gotten caught in the lengthy archeological review process.

Others question the use of studying properties with no historical Native American record, or where previous construction has already thoroughly disturbed the ground.

“We’ve covered every inch of this property with holes and trenches and never found a single sign of Indian artifacts,” said one homeowner, who requested anonymity. He has been fighting the city in recent months over an archeological review on his oceanfront property.

City officials say the new law would allow greater latitude to grant exemptions in such cases. Still, the officials point out that under the existing ordinance only a handful of property owners have been required to perform extensive archeological reviews.

Since King signed on as city archeologist about two years ago, he has inspected 108 properties. In 92 cases, he conducted only an initial field survey that turned up little evidence of historical significance, costing owners $350 or less, city documents show. King has recommended more extensive tests in 16 cases.

King defends his work as responsible archeology in an area well-known for its abundance of Chumash sites. Development on ancestral land, he said, amounts to the destruction of historic records. “It’s like burning books that have never been read,” he said. “It seems kind of barbaric.

“All I try to do is give an opinion,” King added. “Obviously, there’s going to be conflicts.”

One of the principal conflicts is with local Chumash leaders, some of whom steadfastly object to any development on ancestral lands.

The Chumash are particularly upset over Skene’s project, which they believe is located on a sacred burial site, a spot that King also believes may be the single most intact Chumash settlement in Malibu.

A group of Chumash activists showed up at the City Council’s meeting last week to protest Skene’s project. Despite the outcry, the council approved several mitigation measures to protect cultural resources on Skene’s property. The council last year approved the actual building plans--calling for an 11,000-square-foot home and an 800-square-foot guest house.

“He is entitled to build his house because it is a legal lot,” said Mayor Joan House. “There is no other option short of some interested citizen buying the property. At this point in time, Jack Skene is not a willing seller.”

Under the mitigation plan, Skene will spend a maximum of $9,753 to hire an archeologist and Indian monitors to oversee grading and excavation of the property and ensure that artifacts are preserved. The amount equals 0.75% of the total project cost, the financial limit set by state environmental law. Up to four volunteer monitors at a time will also be enlisted throughout construction.

The council’s action brought to an end more than a year of negotiations over details of Skene’s project. Skene had refused to perform $46,000 worth of tests that had been recommended by Owl Clan Consultants, a Ventura company that provides archeological reviews and Native American monitors.

Skene filed a $2.5-million lawsuit against the city earlier this year, saying it was attempting to take his land without proper compensation. He withdrew the suit several months later after the city agreed to consider a review of its archeological ordinance.

But Native American leaders warned of possible legal action, including an injunction to stop construction, which Skene hopes to begin in the next month.

“Our concern is purely for our ancestors and that their remains stay in the ground,” said Monique Sonoquie, who is Chumash and a spokeswoman for the American Indian Movement, a national organization that promotes Native American culture.

“This desecration must not take place,” she said. “This is a significant site, one of the last ones.”

Skene said that he is sympathetic to such concerns, and that he has offered to rebury any remains located elsewhere on the property. “I’m going to live and die here,” Skene said of his land, which he bought 16 months ago for $562,000. “Bury me with the Indians, if they’re here.”

Although local Native American activists share a disdain for development on the grave sites of their ancestors, they have clashed on other matters of historic preservation.

Groups within the local Chumash community are battling one another for the lucrative business of monitoring construction sites.

Much of the work in recent years has gone to Owl Clan Consultants, which is operated by Chumash members. Competitors allege that Owl Clan executive Kote Lotah has managed to capture so much work because of his personal contacts at City Hall, including his stepson, Qun-Tan Shup Garcia, formerly Malibu’s cultural resources manager, who conducted field studies alongside archeologist King.

King, too, has worked on occasion for Owl Clan as a consultant on projects outside of Malibu, Lotah said.

Garcia and King deny unfairly passing business to Owl Clan. City officials would not comment on Garcia, who was terminated last month.

Lotah said his firm draws business because it is qualified. “We are the oldest and we are the best,” said Lotah, who has been monitoring construction sites around Malibu for the last 30 years.

But city officials, who have received several complaints about insufficient competition among monitoring companies, said they plan to open up the process by issuing a list of Native Americans who can do the job. The list is expected to be issued this fall.

“It’s real important that we provide people with alternatives,” said Vincent Bertoni, a senior planner at the city who works on the cultural resource law. “This is about preserving culture and heritage.”