Save Panhe and San Onofre Public Testimony Robert Garcia Commerce Department Hearing September 22, 2008

The City Project is proud to work with the United Coalition to Protect Panhe, the Native American Acjachemen people, and a diverse and growing national alliance of civil rights, social justice, and environmental justice leaders to stop the toll road and save the sacred Native American site of Panhe and San Onofre State Beach. As an attorney it is my responsibility to make the lives and history of the Acjachemen people relevant to the laws that apply here. These laws include the Coastal Zone Management Act (CZMA), federal and state civil rights laws, and laws protecting Native American rights, including the First Amendment right to freedom of religion.

We urge the Commerce Department to deny the appeal by the toll road agencies and uphold the 8-2 decision of the California Coastal Commission. The Department must defer to the state and federal agencies that oppose the toll road. The Department must defer to the elected Native American leaders and tribal members under the national policies favoring Native American self-determination and respectful government to government consultation. The Department must defer to the expertise of these agencies and Native Americans.

State agencies opposing the toll road to save Panhe and San Onofre include the California Coastal Commission. Commissioner Mary Shallenberger stated at the February 6 hearing that the impacts against the Native Americans are reason enough to stop the toll road. The Native Americans are entitled to decide how to protect their own sacred sites. Why is that? Because Native Americans bear a special relationship with their ancestral lands.

“From the Indian perspective, the relationship with their ancestral lands operates in the form of a sacred covenant between the community and the land, in which Indian people regularly minister to the land as stewards and the land reciprocates by supporting, nurturing and teaching the community to live in proper balance with its surroundings.”

The Acjachemen people will lose a 9,000 year old village and current burial ground, sacred site, and ceremonial site. No one else will. Panhe is also the site of the first baptism in California. The Acjachemen people built San Juan Capistrano mission.

The Native American Heritage Commission agrees with the Coastal Commission because the impacts against Panhe are completely unmitigated.

The California State Historic Preservation Hearing Officer (SHPO) testified at the February 6 hearing that the impacts on Panhe are unmitigatable, they simply cannot be mitigated.

The Advisory Council on Historic Preservation has questioned whether the Federal Highway Administration has the ability to evaluate the impacts on Panhe without consulting with the Native American tribes and the SHPO. Those consultations with the Native Americans have not occurred.

Native American elected tribal leaders including Joe O’Campo and Sonia Johnston oppose the toll road in letters to the Department. Three tribal resolutions have been passed against the toll road.

Under the CZMA, (1) there is no national interest in putting a local private toll road through a public state park and a sacred site over the objections of the state of California and the Native Americans. (2) Any national interest in such a local private toll road is outweighed by the discriminatory impacts against the Acjachemen people and the impacts on the environment. (3) There are reasonable alternatives to the toll road, including fixing the 5 freeway, car pooling, and transit including bus and rail service.

There is no national security interest that justifies discriminating against the Native American people by building a toll road that would devastate their sacred site. The United States Supreme Court in Korematsu v. United States approved racial discrimination when it upheld an executive order relocating Japanese and Japanese-Americans to concentration camps. That decision has been reversed in the court of history.

Finally, the toll road discriminates against working class people who are entitled to affordable recreation at San Onofre State Beach and affordable transportation. Coastal Commissioner Larry Clark emphasized these concerns on Febraury 6. The Southern California Association of Governments has called for a multiagency effort including transit to alleviate disparities in access to state and national parks in its 2008 regional transportation plan environmental justice report. The toll road destroying San Onofre and Panhe is the opposite of what environmental justice requires.

Robert Garcia Executive Director and Counsel

Visit www.savepanhe.org and www.savesanonofre.org.