Sept. 28 2011 12:08 PM

Los Coyotes Band in a legal standoff with Blackwater-tied company

The Eagle fire started when a Los Coyotes member torched an Eagle Rock guard shack.
Photo courtesy of Cal Fire San Diego

An American Indian tribe in San Diego County has been engaged in a four-month standoff with a military contractor that refuses to leave its reservation, according to documents recently filed in U.S. District Court.

The story begins in 2010, when the Eagle Rock Training Center (ERTC), a private military training facility established by a former Blackwater executive, signed a 25-year lease agreement to conduct high-level combat training on land near warner Springs owned by the Los Coyotes Band of Cahuilla and Cupeño Indians. The land approximated the terrain of Afghanistan, and ERTC hoped to train soldiers and law-enforcement officers in everything from explosives to combat-driving techniques. The camp would also function as a location for film and television productions.

But since June, Los Coyotes—a tribe of about 300 members—has been trying to boot the company off its land, claiming the lease was never valid. The conflict has since escalated to a series of showdowns, which ERTC alleges led to the arson that caused the 14,000-acre Eagle fire in July.

During the last two weeks, the dispute has come to a head, with tribal police informing ERTC that its employees, customers and equipment would be ejected from the reservation. In response, ERTC filed a federal lawsuit on Sept. 16, asking for a temporary restraining order. The request was withdrawn when the tribe temporarily agreed to allow a military training event scheduled for Sept. 21 to go ahead. The overall dispute has not been resolved.

In filing the suit, ERTC released dozens of pages of records, including contracts, plans and correspondence that shine a light on how the military contractor attempted to bypass state and county regulations by building on Indian land.

As early as 2006, former Blackwater Vice President Brian Bonfiglio wanted to build a training facility in San Diego County. The initial plans were abandoned in 2008, following significant community outcry (though Bonfiglio asserted the activism had no impact on the decision). Around the same time, he approached the Los Coyotes tribe, an impoverished community that had long struggled to find a way to capitalize on land that was otherwise unsuitable for commercial development.

In March 2010, Bonfiglio struck a six-year deal with the tribe's chairperson, Francine Kupsch, under which the facility would be built on the reservation and the tribe would receive a 10-percent slice of the profits. In November 2010, Kupsch authorized an extension of the lease until 2035, with the added requirement that ERTC build a children's playground and a 1,250-square-foot tribal office and hall. Two tribal members who owned part of the land that would become an asphalt driving track would receive $500 in monthly rent. The agreement also included a waiver of the tribe's right to sovereign immunity from the U.S. court system.

What the document does not contain was the tribe's official seal of approval, even though there's a place for it on the agreement.

Kupsch was replaced as chairperson on Jan. 1 by Shane Chapparosa, under whose watch the tribe developed concerns with the 25-year agreement. The tribe's attorney, Mark Radoff, declined to address what transpired between Kupsch and Chapparosa's stewardships to instigate the change in position. ERTC met with the tribe to discuss playground and office options and granted tours of the training facility. The tribe was not satisfied, and it concluded that the lease agreement was void because it hadn't been approved by the Bureau of Indian Affairs.

“Long story short, there is a dispute as to the validity of the lease because it was not approved by the Bureau of Indian Affairs as an encumbrance on Tribal lands and/or a lease on Tribal reservation land,” Radoff tells CityBeat via email. “The Tribe intends to raise all of its defenses and does have significant disagreements with the factual assertions made by ERTC as well as their legal validity.”

An outside expert believes the tribe's on solid ground, since part of the point of the BIA's involvement in trust land leases is to make sure tribes aren't bamboozled.

“That seems like a slam dunk,” says Thomas Weathers, a Berkeley-based tribal attorney and appellate judge in the Northwest Intertribal Court System. “The tribe can't waive BIA approval.”

On June 16, Los Coyotes took the first major move to evict ERTC when Radoff sent the company a 30-day notice to leave the reservation. ERTC responded with a point-by-point reminder of everything it had contributed to the tribe, including $25,000 in revenue, a trip to Disneyland for tribal children, iPods for teen members at Christmas and employment for 17 tribal members. The firm also took credit for introducing an aspiring tribal filmmaker to Discovery Channel producers. In total, ERTC says it's invested $327,000 in new facilities and another $101,000 in the promised children's park.

The eviction deadline was extended until July 29 as the parties continued to negotiate. The tribe asked to review upcoming training plans, which it would evaluate before allowing them to proceed. Meanwhile, ERTC began to threaten legal action if the Notice to Vacate was not rescinded. It was against this backdrop that tribal member and former ERTC employee Jeremy Ortiz and Jesse Durbin allegedly stole ERTC surveillance cameras, then poured gasoline on an ERTC guard shack and set it alight, kicking off the Eagle fire. Ortiz admitted to the crime, according to an arrest warrant in the criminal case file.

The dispute not only continued in the wake of the fire, but ERTC used it to put pressure on the tribe as it rejected the tribe's plan to issue permits for training on a case-by-case basis.

“The delay attempting to resolve this dispute on the part of the Tribe's leadership, and the encouragement of hostility that such delay causes, has directly lead [sic] to the destruction and theft of ERTC property and the burning of 22 square miles of land,” ERTC attorney Bill VanDeWeghe wrote in a Sept. 2 email to the tribe's lawyer. “Young members of the Tribe now face very serious charges because the Tribe's leadership did not take positive and timely steps to resolve the dispute they initiated over the lease.”

Undeterred, Los Coyotes sent ERTC a letter on Sept. 12, accusing the company of trespassing and violating a tribal code that forbids non-members from bearing arms on the reservation. The Los Coyotes Police Department followed up with its own letter, warning that it would enforce the eviction order by force. ERTC went to federal court to demand a temporary restraining order against the tribe. To lend weight to its request, ERTC used the fire to argue its need for protection. ERTC also argued that Los Coyotes' acceptance of $25,000 under the revenue-sharing agreement proves the contract is valid.

In its response, Los Coyotes denied responsibility for the fire and called the accusation “improper.” While ERTC argues that in signing the lease, the former chairperson waived tribal immunity, Radoff says immunity can't be waived without a vote of the tribe's general council and support of its executive council. That's why Los Coyotes believes tribal court, not federal court, is the proper venue to argue the merits of ERTC's case.

Richard Collins, a law professor specializing in Indian law at University of Colorado, says he would take the same position if he were representing the tribe, since federal courts usually don't weigh in on tribal issues.

“The tribal-law question becomes two parts,” Collins says. “Did [Kupsch] have the authority to make the deal, and did she have the authority to waive immunity for its enforcement in federal court?”

Email or follow him on Twitter @DaveMaass.


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