Lytton Tribe and Windsor end negotiations over wastewater treatment

June 09, 2021

Negotiations between the Lytton Band of Pomo Indians and Windsor over wastewater treatment from the tribe’s residential development have collapsed, and the tribe is now poised to construct a sewage treatment plant on its land abutting a residential neighborhood on the west side of town.

The breakdown in talks and the tribe’s new plan is a major setback in Windsor after a publicized deal was ratified 5-0 by the town council in May 2020. That agreement would have had the tribe paying the town $20 million, much of which was tabbed for building a new public recreation center with a pool.

“The Town is surprised and disappointed that after negotiating in good faith with the Tribe they suddenly reversed course and ended discussions on what would have been a win-win agreement,” Windsor Town Manager Ken MacNab said in a Wednesday statement.

Through a spokesperson, tribal attorney Larry Stidham and tribal chairwoman Margie Mejia declined to comment.

“We were not able to reach an agreement with the city of Windsor and we are now moving forward to build our own wastewater treatment plant,” tribal spokesperson Doug Elmets said.

The likely site of the sewage plant, according to MacNab, is on the northern edge of tribal trust lands, in a plot that abuts Windsor’s longstanding Deer Creek neighborhood.

“I think the tribe understands the concern about the impact on the neighbors and will do their best to (build) it in a way that’s respectful,” MacNab said. “But we haven't seen their plans.”

Town officials had sought to strike a deal with the tribe in order to prevent construction of that plant, which had concerned Deer Creek residents.

“We were trying to protect the Deer Creek neighborhood in any way that we could. That was our sole motivation,” Councilwoman Deb Fudge said.

Neighbors living near the projected wastewater plant site had mixed views about the change, some citing the inconvenience its construction and operation might bring.

“I’m not happy about it. We don’t want more people and traffic,” said Felicia McCabe. “I worry about standing water. Will they manage the mosquitoes?”

Her friend and neighbor, Tyffanee Hernandez, had similar feelings. She said generations of her family had lived in their house on Starr View Drive since at least the 1970s.

“We don’t like it — to have that water plant out there when we’re used to a field with animals. There will be more traffic and I won’t be able to let our kids play out here anymore,” she predicted. “Smell could be an issue.”

Resident Genevieve Taylor said she has seen a lot of racist comments toward the tribe on the neighborhood website, Nextdoor, “and I think it’s unfair.”

“These are people whose land was taken. They are from here. I think the council was under pressure from residents who have a NIMBY attitude,” she said, referencing the acronym for “Not in My Backyard” that’s sometimes applied to opponents of development.

As far as the plant being built near her, Taylor said “I think it’s great. With the environmental standards we have around here, it might be a benefit.”

Her husband, Christopher Peck, said he has been tracking the project closely and is upset about the possibility of losing the community pool.

“The idea of a new wastewater treatment plan being there, I’m not excited about it. Who would be? I thought this was just a negotiating tactic, but if this is the way it ends, I’ll be bummed,” he said.

Added resident Nancy Tang, “I don’t blame the tribe if they don’t want to tie into our system. We’re a mess right now,” she said, referring to the recent resignation of the town’s mayor, Dominic Fopolli, and the investigation of public claims of sexual assault leveled against him by nine women. “They’re their own entity, and they can do whatever they want. I don’t like that (the city) posted the letter about this on Facebook. It made it sound like it was all the tribe’s fault.”

Tribal leaders have not been forthcoming with town officials about their reasons for abandoning the negotiations, Fudge and MacNab said. The tribe plans to build 300 homes for tribal members on its land west of the town and has plans for a roughly 130-room resort, restaurants and winery in the future.

A big hitch in the negotiations came when the tribe expressed its desire to treat sewage for the commercial properties either with its own plant or by using the city’s.

Bringing a resort outside town into Windsor’s sewage treatment system required a ballot initiative, Fudge said, because it was outside the bounds of the town’s urban growth boundary plan. She believed the tribe, a sovereign government, had little motivation to jump through the hoops required by the town’s laws, she said.

“My assumption is that to the tribe it appears that it would be easier for them not to deal with another governmental entity and just to build the ponds themselves and manage them themselves,” she said.

Several people familiar with the tribe’s perspective on the deal said the economics of paying the town significant amounts of money compared to building its own treatment plan may not have added up. Over a year the town’s offers swung from the $20 million payment that advanced to an early agreement up to the tribe paying as much as $50 million before a final town offer to have the tribe pay $16.5 million, MacNab said.

Fudge and MacNab both expressed concern that the breakdown in negotiations would foment resentment against Windsor’s new, sovereign neighbors.

“I’m worried about the backlash to the tribe by the citizens, not by the town government,” Fudge said. “The government we will always treat the tribe with respect and work with them because they’re our neighbors,“ she said.

Fudge hopes a window still exists to further negotiate a deal over the wastewater treatment, she said. The fate of the community recreation center or pool is cloudy now, according to MacNab. Planning will continue, but no clear funding mechanism exists.

Lytton Map.pdf

The Lytton Band of Pomo Indians lost sovereign land in Sonoma County in 1961 when the federal government suddenly ended its recognition of the tribe. The government restored tribal recognition three decades later but never returned any land to the tribe.

The Lytton Band bought up thousands of acres in Sonoma County using the proceeds from its casino in the East Bay city of San Pablo, in a push for sovereign control of new land in the area.

In 2019, legislation pushed into a defense spending bill by Rep. Jared Huffman, D-San Rafael, brought the tribe federal recognition of the 511 acres west of Windsor as a reservation. The bill was signed on Dec. 20, 2019.

In January 2020, tribal representatives approached the town and expressed an interest in connecting to Windsor’s sewage system.

After the town council ratified the agreement in May 2020, consultants and engineers from both parties had begun working on the technical requirements of tying the tribe’s development into the town’s sewage system, MacNab told The Press Democrat in a Wednesday interview. Attorneys from both parties began drafting a service contract.

Then, in March, tribal representatives sought a provision in the contract that would allow it to build a waste treatment plant for its proposed resort.

“That was a huge shock,” MacNab said. “It felt like a big reversal.”

The town countered by asking for payments of around $50 million total — $10 million for environmental reviews and a ballot measure to seek voters’ approval, and an additional $20 million payment if the ballot measure succeeded, plus the $20 million previously agreed upon.

MacNab acknowledged the price was steep. “We felt strongly that what they were asking was significant and what we were willing to do was significant,“ he said. The town also expected the tribe to negotiate over the figure.

Tribal officials instead rejected it entirely. They subsequently rejected a later offer in which the tribe would have paid the town just $16.5 million — below the $20 million previously agreed upon.

The final offer came after the intervention of county Supervisor James Gore, who represents Windsor and has played a key role in the county’s own negotiations with the tribe.

“I went to both parties and said, ‘Hey, it would benefit us all for you to go back to the negotiating table and seek an agreement,’” Gore said. Ultimately, he said, he was unable to do more but ask the parties to negotiate in good faith.

“I’m disappointed that they haven’t been able to reach a disagreement but at the end of the day Windsor is its own jurisdiction and the tribe is a sovereign nation,” he said.

Neither party had asked Huffman to get involved in the dispute, he said in a phone interview.

“I still think it would be in everyone’s both interests to do this together,“ Huffman said. ”Anytime you’ve got a major development that’s happening outside of the municipal wastewater system, outside the regional drinking system, that’s less than optimal.“

Still, Huffman said, any wastewater treatment the tribe does build will have to meet “very high” federal standards.

When advancing the bill to recognize the reservation, Huffman touted the strong relationships developing between the tribal and local governments. Still, he said, “this is their land — that’s the bottom line here.”

By:  Andrew Graham, Kathleen Coates
Source: Press Democrat