The state has ordered a halt to a Malibu development project after construction workers using a backhoe dug up the remains of six American Indians from an apparent Chumash Indian burial ground near Encinal Canyon.
The Coastal Commission issued the stop-work order Tuesday at the request of the state Native American Heritage Commission, which received a report Friday that Indian remains had been found on the site.
Although the Coastal Commission has the authority to issue stop-work orders, it cannot enforce them except by asking a judge to issue a restraining order. Critics say that often by the time a restraining order is issued in such cases, it is too late to serve its purpose.
A forensic examination Tuesday by the Los Angeles County Coroner's office determined that the skeletonized remains of five individuals and partial remains of a sixth were those of Indians.
Gail McNulty, staff analyst at the Native American Heritage Commission's headquarters in Sacramento, said removal of the remains apparently violated state law governing construction at known archeological sites.
Although an archeologist and an Indian monitor were at the scene when the remains were unearthed, McNulty said in an interview the commission was concerned "because the law was not adhered to."
McNulty said the state Resources Code requires construction crews to stop work and notify the county coroner when remains are discovered. She said the law also requires the reburial of the remains "with appropriate dignity" either at the site or another location after efforts have been made to locate descendants.
For the time being, the remains are being kept in a trailer at the site on Sea Level Drive, she said.
But Century City attorney Alan Robert Block, who represents developer Moses Lerner, said his client acted in good faith by having an archeologist and Indian monitor on the scene. Lerner plans to build three homes on the scenic two-acre site in a neighborhood of expensive homes overlooking the ocean near the mouth of Encinal Canyon.
"Nobody has gone in and tried to desecrate any burial site," Block said. He said coroner's representatives indicated they thought "everything done on the site had been done with a great deal of care."
Coastal Commission officials acted to stop work on the site after the Native American Heritage Commission faxed a letter detailing the alleged violations.
The Coastal Commission's South Coast district director, Chuck Damm, said a commission planner learned of the discovery of the remains Friday when he stopped by the site after checking another Malibu project.
Damm added: "It was known there was an archeological and burial site present" last year when the commission approved Lerner's development plans.
The property, which Lerner bought in 1989, has generated controversy before. At the Coastal Commission hearing on his plans last year, opponents argued that the project threatened to destroy one of the few Monarch butterfly habitats left on the Pacific Coast. The area next to the property serves as a winter home for up to 20,000 Monarchs.
The commission approved the development after imposing several restrictions aimed at helping to protect the butterflies. The commission had earlier allowed Lerner to chop down several trees on the property that he said were diseased but that butterfly enthusiasts said were vital to the Monarchs.
Neighbors said workers began demolishing an older house occupying the site about two weeks ago and that new construction ap peared to have begun last week.
"I guess they were in a hurry to get the work started before cityhood," said Sarah Dixon, who lives nearby. "There is a lot of that going on all over Malibu."
Malibu's slow-growth-oriented City Council, which takes office tonight, is expected to approve a law that will temporarily ban new commercial and multifamily residential development and severely restrict construction of single-family homes. The restrictions would become effective immediately.
Attorney Block, noting Malibu's imminent cityhood, said he "can't help but think a lot of controversy stems from neighbors trying to get the project stopped" before Lerner has a vested right to proceed on the strength of having achieved substantial construction. (What constitutes substantial construction may become an issue if the new city imposes its expected building moratorium.) Block said it would be "very inequitable" for Malibu to stop the project now.
Pam Emerson, an enforcement officer with the Coastal Commission, said the commission's stop-work order was intended to halt "all development activity on the property."
Block, however, contended that the order applied only to grading and tree removal.
In any event, activity continued at the construction site Wednesday, and workers entered and left the property periodically, neighbors said.
The Chumash Indians once inhabited a vast area stretching along the coast from Malibu to San Luis Obispo and inland as far as the western edge of the San Joaquin Valley.
At its peak, the tribe's population may have reached 20,000. But after the arrival of Spanish missionaries in the 18th Century, the Chumash were decimated by diseases such as smallpox, tuberculosis, and measles for which they had no natural immunity.
An estimated 4,000 people of Chumash descent still live in the region, mostly in Santa Barbara and Ventura counties, where the schools include Chumash programs in the curriculum. There is also a 100-acre Chumash reservation in Santa Barbara County.
Chumash villages, burial grounds and artifacts have been found at various locations throughout the region.