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Wiener declined to say whether he believes the West Berkeley Shellmound and Village Complex qualifies as a "structure." "It would not surprise me if there were litigation, and then the court would interpret that part of the bill," he said.
The project is also playing out in the court of public opinion. More than 1,800 people submitted comments opposing the project as part of the Berkeley environmental impact review process. Only five submitted letters in support. Several hundred of the letters raised concerns about noise, traffic, and congestion, though the heart of the opposition to the project and nearly all of its energy has come from supporters of protecting the shellmound.
In 2014, the parking lot's owners — the Spenger family and real estate investor Dana Ellsworth — hired an archeologist to conduct a trenching study on the parking lot that found no evidence of a shellmound. Partly owing to this study, Blake|Griggs Properties contend that the exact 2.2-acre area of the development was not part of the shellmound, asserting that Strawberry Creek and a willow grove marshland instead covered most of the lot. Their research found two shellmounds located to the west/northwest and to the northeast of the parking lot — but not at the parking lot itself.
"It should be noted that although the project was designated a city landmark due to the belief that the West Berkeley Shellmound is located on the site, extensive testing and undisputed expert analysis have shown that the shellmound does not actually exist on the project site and never did," the company stated as part of its application to build the housing and retail complex.
But opponents of the development dispute the findings of the archeologist hired by the developer, saying the mid-19th-century Coast Survey Map and a previous archeological study serve as significant evidence that one of the shellmounds overlapped the Spenger's parking lot. But they also say the focus on the exact location of the shellmounds is a diversionary tactic. In a blog post, project opponent Toby McLeod, of the Sacred Land Film Project in Berkeley, noted that the struggle is "not about the exact location of the shellmound — or shellmounds — since Ohlone villages were often composed of a mound complex, with one large mound and satellite mounds."
In a comment letter on the draft environmental impact report, archaeologist Christopher Dore, who has extensively studied the site, wrote that the shellmound is one archaeological feature within the boundaries of the site, which has been designated as a significant archeological site by the state of California, known as CA-ALA-307. "There are significant, undisturbed, cultural and natural deposits within CA-ALA-307 that are not directly related to the shellmound.... One of the names for CA-ALA-307 that has been used historically is West Berkeley Shellmound. This is just a 'shortcut' name for this entire historical resource; both the parts that relate to the actual shellmound (the archaeological feature) and other archaeological components of the site within the site boundary."
Blake Griggs offered to deed about half an acre along Hearst Avenue to a nonprofit that would have included an Ohlone educational and cultural community center and park, and a new Ohlone Cultural Trust would own the land and the building after 99 years. But Gould said representatives of two other Ohlone family groups rejected the offer because it would still allow excavation of the rest of the site and would diminish Ohlone people's ability to perform ceremonies at one of their most revered places.
The Ohlone maintain a ceremonial connection with the shellmound and village site to the present day. The parking lot, for example, is one of the places they visited during the Bay Area shellmound walks from 2005 to 2009. "Our ancestors put that ceremonial place there," Gould said. "It's the first place along the bay where our ancestors had their bodies laid to rest and the first place where they heard a newborn baby's cry. It's really important that we keep that alive."
On April 4, more than 50 people attended a Berkeley Landmarks Commission meeting both to reaffirm their opposition to the project and again put forth their vision for a park honoring Ohlone history to be constructed.
At the meeting, landmarks Commission Chairman Steven Finacom raised further questions about the legality of the project. Once a site is landmarked, he noted, there is no way to take away the designation without coming before the Landmarks Commission, which Blake|Griggs Properties has yet to do. (Finacom also supports landmarking the view from UC Berkeley's Campanile, which opponents say is a way to block high-rise housing development in downtown Berkeley.)
"A lot of people who visit this part of the world do not even know we live here," Ruth Orta, an 83-year-old member of the Him're-n Ohlone tribe, said at the meeting. "We're supposed to be extinct. But we're not, and we're not going anywhere."
The name of Berkeley itself is a provocative reference to the historical drive to exterminate indigenous identity. In 1866, as legend has it, University of California trustee and railroad magnate Frederick Billings stood on the corner of Hearst Avenue and Gayley Road in the Berkeley hills and looked out across the western gate of the bay now spanned by the Golden Gate Bridge. The view inspired him to suggest naming the town after a line in an 18th-century poem by British philosopher and cleric George Berkeley: "Westward the course of empire takes its way."