Update April 10: The developer of the Fourth Street site issued a statement to Berkeleyside through its publicist, in response to the original April 8 story:

“Jamestown is complying with local stakeholders, including the recommendations of the appointed Most Likely Descendent, in order to ensure the respectful and dignified treatment of the remains. In light of this discovery, Jamestown is performing further archaeological studies of the property and has enlisted a member of the Ohlone Tribe to monitor future excavation work. Construction will continue but all excavation work will stop until a monitor is in place. We are committed to the local community and protecting the traditions of the native peoples.”

Original story: Construction workers on March 29 uncovered what appear to be “pre-contact” Indian remains while digging a trench on Fourth Street near Hearst Avenue as part of the redevelopment of Spenger’s Fish Grotto and adjoining parcels.

Workers excavating adjacent to 1919 Fourth St. immediately stopped all work on the site and notified authorities, as required by the use permit, according to Matthai Chakko, a city of Berkeley spokesman. Jamestown, the corporate owner of the property, brought in an osteologist, or bone expert, who determined that the remains, which lay among shell midden — remnants of the ancient shellmound that sat for centuries in that area — were human. The Alameda County Coroner’s office later confirmed the finding.

“Because of the context with shell midden around it, and because we know that part of town contained shell mounds, we know it was a burial and it was human,” said Andy Galvan, a Chochenyo Ohlone Indian who is the curator of the Mission Dolores Museum in San Francisco and who often helps developers determine whether there are Indian artifacts on their properties.

The discovery of human bones triggered a series of steps required by state law, said Galvan. Jamestown notified the Alameda County Coroner’s office which notified the state Native American Heritage Commission, which then looked for the remains’ “most likely descendant.” The state appointed Galvan to that post on April 6. He now has the authority to determine the treatment and disposition of the bones found near 1919 Fourth St.

The owner of the property, Jamestown, a real-estate investment company with a huge portfolio across the United States — including Ghirardelli Square in San Francisco, Chelsea Market in New York City, and the square block in Berkeley that includes Spenger’s, Anthropologie and Paper Source — declined to answer questions about what would happen now that bones have been discovered. Denny Abrams, whose Abrams-Millikan architecture and design firm developed Fourth Street, also declined to respond to numerous phone calls and emails.

“Jamestown is consulting closely with local stakeholders to determine how to proceed,” the company’s publicist said in a prepared statement. “We are committed to doing the utmost to show respect to the deceased and will keep the community informed as the situation develops.”

The discovery of the bones once again calls into question the boundaries of the city-designated West Berkeley Shellmound. The Chochenyo-speaking Ohlone Indians inhabited West Berkeley for thousands of years prior to European contact. Their diet included clams, oysters and abalone, and they discarded the shells and other materials into mounds. Occasionally, the Natives buried their dead in the mounds. Historians believe there were more than 400 shellmounds around the Bay Area. The Ohlone abandoned West Berkeley more than 600 to 800 years ago.

Subscribe to the Daily Briefing Don’t miss a story. Get Berkeleyside headlines delivered to your inbox. Don’t miss a story. Get Berkeleyside headlines delivered to your inbox.

For decades, the city of Berkeley has believed the center of the West Berkeley Shellmound was near Second and Hearst streets. About 25 years ago, the city discovered some human remains there while digging a trench, said Galvan.

Berkeley now requires that developers take special precautions while excavating within the West Berkeley Shellmound boundaries, which are University Avenue on the south, Hearst Street on the North, Interstate 80 on the east, and Fourth Street on. There must be an archeologist and a Native representative on site.

But the project at 1901 and 1919 Fourth Street, to update the historic Spenger’s and transform two parking lots into a pedestrian passageway with retail shops and a beer garden, sits outside the boundaries of the West Berkeley Shellmound. When Berkeley approved the project in 2014, it did not require the developers to do an environmental review or CEQA report, or to do any archeological borings. A 2014 city staff report said: “no significant archeological resources are known to occur on the site.”

The use permit did set out what the developer should do if human remains were discovered during construction. Jamestown Properties and the contractor, Oliver & Co., appear to have followed those protocols.

On Jan. 16, the Berkeley City Council adopted three resolutions strengthening recognition of the Ohlone people as the original inhabitants of Berkeley and recognizing the shellmound as an indigenous sacred site. One of the resolutions promised that the “informed consent of the Ohlone and other indigenous peoples of the region be integral to any alteration planning for the Berkeley Shellmound sacred site.”

Some concerned citizens want to know why Jamestown did not have an Ohlone representative on site while digging the trench, which was about 1,000-feet long and four-to-five feet deep. People who observed the construction before the remains were discovered exchanged a flurry of emails questioning the procedure. Now they are even more determined to make sure the Ohlone are involved in the discussion.

“How can we be destroying this ancient human burial site without a conversation?” said Wendy Kenin, who pushed to get the Ohlone resolutions passed before she stepped down in January from eight years on the Peace and Justice Commission. “Considering there have been human remains discovered, we have to engage the Ohlone community. The right thing to do is to stop everything and hold some town hall meetings.”

The discovery of the human remains has prompted representatives of another development proposed for the parking lot across the street from Spenger’s to call for a reexamination of the boundaries of the West Berkeley Shellmound.

Mark Rhoades, whose Rhoades Planning Group is helping shepherd a large mixed-use project for 1900 Fourth St. through the planning process, issued a statement that called “for greater protections/raising archeological standards and testing for potential building developments near ancient Ohlone Indian sites in the West Berkeley area.” The statement continued: “Might the ancient burial area West Berkeley Shellmound cover a bigger area than previously thought? Should we expand the current landmark boundary of the West Berkeley Shellmound?”

In contrast to Jamestown and Abrams-Millikan, the developers of 1900 Fourth St. volunteered to do extensive pre-development testing since the property sits inside the boundaries of the West Berkeley Shellmound, said Rhoades. The land was designated a city landmark in 2000. Ruegg and Ellsworth, the real-estate group that co-owns 1900 Fourth St. with the Spenger family, did extensive boring of the land, as well as using ground-penetrating radar, he said. They also consulted with archeological consultants throughout the process. In 2014, Ruegg and Ellsworth issued a report that said no remnants of the shellmound were discovered. After that, development plans proceeded.

Galvan, who works as a consultant for the 1900 Fourth St. project, and Allen Pastron an archeologist for the Oakland-based firm Archeo-tech that did the analysis, spoke to the issue at a meeting of the Zoning Adjustments Board on March 10. The hearing was part of a session to determine the scope of the EIR needed for the project. Despite the study concluding there was no evidence of a shellmound, a number of people spoke to the sacredness of that property. Some asked that the city buy it and convert it into open space honor the history and culture of the Ohlone.

Those behind 1900 Fourth St. said their work examining their land has enhanced their understanding of the importance of honoring Native culture. They point out that laws concerning Indian burial sites have evolved significantly in recent years. “No subsurface analysis or testing was performed for the project at 1919 Fourth Street prior to the issuance of its Building Permit, because the property sits outside the landmark boundary,” Rhoades wrote in an emailed statement. “And, we don’t really know what lies beneath most of the buildings in the Fourth Street commercial district and surrounding area. Most were built between 50-140 years ago, long before there were any requirements to test property for archeological remains of indigenous life.”

Rhoades’ statement might be a case of “the chickens coming home to roost.” During the ZAB hearing on March 10, Abrams spoke out forcefully against the proposed project at 1900 Fourth St. He said its five stories were too tall for Fourth Street and its addition of 15,000 square feet of restaurant space would make the area feel like Las Vegas. “It’s going to bring The Cheesecake Factory here, that is what it will do,” Abrams told the zoning board.

It is unclear what will happen next now that human remains have been found on Abrams’ site at 1919 Fourth St. Galvan, who is working on a report in his capacity as “most likely descendant,” said more investigation of the area where the bones were found will begin next week. State law does not prohibit building over Native burial sites, he said.

Digging is continuing on other parts of the 1919 Fourth St. parcel, according to Stephanie Manning, who was one of those who got the shellmound landmarked.

The city of Berkeley does not appear to be able to play a significant role in the process.

“We are very aware of the concern and sensitivity for the site, and we are working to ensure that the process meets all local, state and federal regulations,” Chakko, the city spokesman, wrote in an email. “Given privacy regulations, we are limited on what more we can say at this time.”

Related:

Critics question impact of 1900 Fourth St. project on Ohlone heritage (03.14.16)

Housing, restaurants, garage planned at Spenger’s parking lot (05.11.15)

New beer garden, retail planned on Spenger’s block (09.25.14)

Development may come to Spenger’s lot in Berkeley (07.28.14)

A dig in a Berkeley parking lot seeks shellmound answers (02.03.14)

Berkeleyside is spreading the news! We recently reached our 25,000th Twitter follower. We have published over 11,000 news stories. We have more than 11,000 Facebook friends. Please help us deliver more quality local journalism by becoming a member.