From Stark:
U.S. Rep. Rick Larsen provided a brief statement Wednesday, Feb. 16 on the negotiation stalemate between Whatcom County and Lummi Nation over a new lease to insure continued operation of the Lummi Island Ferry.
I emailed Larsen for a comment after county officials said they had appealed to him and Sens. Patty Murray and Maria Cantwell for their assistance in helping to resolve the matter.
“Whoever told the Lummi Nation that cutting off the lifeline of the 900 residents of Lummi Island is a good idea, is giving them terrible advice,” Larsen replied. ” I hope that the County and the Tribe will return to the table to negotiate a productive solution to this issue that addresses the needs of the local community.”
In a followup email, I have asked Larsen whether he is in a position to discuss this situation with federal agencies such as the Bureau of Indian Affairs and Department of Interior, which oversees the bureau. I’ll relay his response as it becomes available.
Larsen spokeswoman Emily Halnon has relayed this response:
“Rick has reached out to the Bureau of Indian Affairs a number of times to clarify how the federal government can be involved in this process. There is not a regulatory or oversight role at the federal level other than the BIA approving the final lease on the tidelands-which does not include the lease for the actual land.”
I have also asked the tribe for a response to Larsen’s comment.
Tip Johnson, a former Bellingham City Council member and prominent civic activist, has examined documents from county archives going back more than 100 years that appear to document the existence of a county right-of-way for ferry access to the island, granted by the Department of the Interior.
Up to this point, county attorneys have said they didn’t think that the right-of-way argument was a trump card they could play in ferry negotiations.
But if the ferry issue moves from the negotiating table to the courtroom in a couple of months, it would not be surprising to see attorneys for the county and/or the islanders introducing these documents into evidence.
Mr. Larsen. You’re beyond clueless if you think for one moment that the Lummi tribe gives a rip about what happens to the island residents. They could care less about anything but their own agenda. Personally speaking I say move the ferry dock to Fairhaven, where at least the landscape is cleaner and more welcoming. You would think that the Lummi Tribe would honor the land that they claim to love by making an effort to clean up their trash. It’s shameful that people have to drive through the hideous dump the Lummi nation calls home before being able to access the ferry dock. Suck it up and move the dock out of there and they can go scratch for the money.
Is there any possibility of help from the state and the federal government for a more substantial ferry to run to Fairhaven?
It seems to me that if the Lummis insist on evicting the ferry, that some of those federal funds from the stimulus bill should be diverted to pay for a new ferry.
I welcome Mr. Larsen to explain why he has yet to reply to my letter of last July 6th on this topic. Same goes for Cantwell and Murray. While he is at it, perhaps he could disclose the total amount of tribal money contributed to his last campaign. Same goes for Cantwell and Murray.
Finally, I would truly like to know why he and our other elected representatives refuse to follow federal policy that discourages local jurisdictions from attempting to negotiate historic disputes with tribes, instead recommending a federally mediated comprehensive settlement.
Mr. Larsen, et al, you are stirring up a hornets’ nest of racism by ignoring important federal policy:
It is the policy of the United States to promote tribal self-determination and economic self-sufficiency and to support the resolution of disputes over historical claims through settlements mutually agreed to by Indian and non-Indian parties…
There is a recognition that any final resolution of pending disputes through a process of litigation would take many years and entail great expense to all parties; continue economically and socially damaging controversies; prolong uncertainty as to the access, ownership, and jurisdictional status of issues in question; and seriously impair long-term economic planning and development for all parties.
To advance the goals of Federal policy of Indian self-determination and to carry out the trust responsibility of the United States, and to advance the Federal policy of international trade and economic development, and in recognition of the Federal policy of settling these conflicts through comprehensive settlement agreements, it is appropriate that the United States participate in the funding and implementation of the Settlement Agreement.
Go ahead, look it up yourself. I desperately hope our representatives will quit sitting on their hands and do something before someone gets hurt.
Emily Halnon’s reply on behalf of Mr. Larsen belies their ignorance in this matter. If they had been doing their homework, they would know better.
The BIA has no more authority than the County to fix this problem.
USC TITLE 25 > CHAPTER 8 > § 324
Consent of certain tribes; consent of individual Indians
No grant of a right-of-way over and across any lands belonging to a tribe organized under the Act of June 18, 1934 (48 Stat. 984), as amended [25 U.S.C. 461 et seq.]; the Act of May 1, 1936 (49 Stat. 1250) [25 U.S.C. 473a, 496]; or the Act of June 26, 1936 (49 Stat. 1967) [25 U.S.C. 501 et seq.], shall be made without the consent of the proper tribal officials.
The reason you cannot shirk your responsibility to your constituents is that the only capable authority is Congress – that’s you!
USC TITLE 25 > CHAPTER 9 > § 341
Power to grant rights-of-way not affected
Nothing in this act shall be so construed as to affect the right and power of Congress to grant the right of way through any lands granted to an Indian, or a tribe of Indians, for railroads or other highways, or telegraph lines, for the public use, or to condemn such lands to public uses, upon making just compensation.
Why does everyone insist on the wrong parties negotiating? That can only make things worse. Get real, Representatives. Leases have proven to be the problem, not the solution. A right-of-way was granted. Where is it? Make it so!
More reading and access to documents:
http://www.nwcitizen.com – scroll down for Lummi Island Ferry topic box
http://lummiislandferryforum.wordpress.com
http://plicferry.org/
Tip, should ask about the money from the tribal branch of the SEIU that was donated to campaigns as well.
Tip, regarding your observation on the ROW; it’s even simpler than you believe. If you read that USC section you cite, you’ll notice that it’s written in such a way that it only applies to tribes organized under the Indian Reorganization Act, IRA; the second two acts cited are simply IRA’s two time extensions. The Lummis are NOT an IRA tribe, something that has been confirmed by both the BIA, in a report from their head counsel in 1946, and most recently by Jewell James, a former Lummi council member, in the Squol Quol newspaper. Therefore, the Act of 1948, which is what you are quoting, does not apply; instead, the prior Act of March 3 1901 remains in force. That act grants the power to decide ROW decisions to the Secretary of the Interior, who has already weighed in on the matter numerous times and granted the ROW for the road to Lummi Island to Whatcom County. Despite the county’s numerous attempts to shoot themselves in the foot, the original intent of all the documentation from the 1920s is patently obvious. Other interested parties have reportedly been successful at mining the archives for even more buttressing info, all of which supports the county.
The progression of law on the ROW is an interesting example of the perversion of intent by the regulatory bodies set up to carry out the will of Congress. The original treaty in 1855 clearly gives the government the right to establish a ROW. The Act of 1901 puts that decision in the hands of the DOI, and states a policy preference for consulting with and compensating the tribes. By the Act of 1948, the treaty right is completely gone, by administrative fiat (or it would be if the law had been written better). What right actually exists if the tribe can usurp the decision?
The county has the ability right now to apply to the BIA for a ROW anywhere on the reservation, under the procedures of the Act of 1901, and the decision rests with the secretary of Interior. There are even some standard forms involved, which haven’t changed in 110 years. This is the quickest way to get this issue back in federal court where it belongs, and the DOI will be hard-pressed to explain their way out of this situation. It will go from rejection to administrative appeal to judicial appeal in due course. The BIA isn’t faring well in court lately, and there are some interesting precedents from the 8th circuit which would play out in the county’s favor. The county legal staff is aware of these options, but prefers to follow form and surrender in advance. Perhaps the most interesting legal question at the moment is how to compel the county to avail themselves of the solutions open to them. Does failure to pursue this potential resolution constitute malfeasance? Paying $200K/yr for something they’re entitled to gratis certainly seems to violate the public trust.
Thanks for clarification on the applicability of that citation. Funny that it was a County source that put me on to it.
It really should be simple. A ROW was definitely approved. That cannot be in dispute as it is a matter of record. The approval explicitly states that Whatcom County met all requirements. If the route we are using – upon which the Army Corp of Engineers has approved a landing for the ferry, a ferry licensed and enrolled under the direct authority of Congress to carry the traffic – if that is not the route that was approved, then show me where it is. (I suspect we might find it where the old dock was, on property traded to the Finkbonners for the new location.)
Whether The Lummi Nation’s sovereignty extends to the low water mark doesn’t really matter. Any tideland interests are subservient to the public’s interest especially as regards navigation, over which federal authority extends to the high water mark.
Why the County would bother trying to negotiate a lease with ridiculous payments when they have an approved ROW is beyond me. Why wouldn’t the County assume they are using the ROW and operate accordingly until a competent authority orders otherwise? They should be willing to move it wherever is deemed proper, but a right is a right. That would require the Lummi Nation to take legal action asserting their authority over the tidelands supersedes the DOI/BIA, the USACE, Congress, the Commerce Clause of the Constitution and the public’s interest. That’s quite a case!
Even if the county has a legal ROW, that does not address any legitimate traffic safety concerns associated with the operation of the ferry at Gooseberry Point.
Agreed. Nor the ferry queue congestion and parking (especially along the road during drydock), and the limitations these impose on the quiet enjoyment and rational land use of Gooseberry Point by the Nation and its residents. There other issues as well – further justifying a federally mediated comprehensive settlement consistent with federal policy.
Thanks for this post & discussion. I’ll link to it from the Ferry Forum (http://lummiislandferryforum.wordpress.com)
Re: Traffic safety. The joint Lummi Nation-Whatcom County study, updated in 2009, clearly states there is no evidence that ferry traffic contributes significantly or uniquely to road safety on Haxton or near Gooseberry Pt. I’ll post a link to the entire study on the ferry forum, or you can find it on the Whatcom County Ferry website.
I continue to be impressed with the depth of the homework many of you have done on this issue– thank you!– as well as baffled by our collective inability to get any traction with these findings.
Right now while Larsen’s comments are still warm, let’s all bombard his office (along with Murray and Cantwell) with citizen phone calls (not emails) to get them into the game. The Tribe and the Council are like kids facing off in schoolyard, too invested to back down and too cautious to fight, a stalemate of imagination. Maybe it’s time a parent or teacher came out and put a stop to it…but we’ll probably have to yell pretty loud and long to get their attention. We’re calling today.
You assume that the larger the windmill,
the less effect from the tilting.
But in my experience,
toppling big boys is what makes the LIBC hum.
There are no legitimate traffic safety concerns that are the result of the ferry operation. That’s a chimera invented by the tribe as a pretext for leverage at the bargaining table. Richard Jefferson contracted a traffic impact study in 1991 when they opened the old casino at GP. Despite the obvious conclusion that a massive increase in traffic would be detrimental, he ignored it and opened the casino anyway; it failed by 1997. The county’s traffic counts before and after 1991 show a huge increase in traffic directly attributable to the casino. As the tribe built more housing around GP, traffic levels stayed higher than before 1991, though they dropped a bit after the casino closed. THE MAXIMUM TRAFFIC IMPACT OF THE FERRY IS 60 CARS/HOUR, the peak capacity of the boat; usually it’s much less, and diminishing fast with the new fees. That’s hardly a cataclysmic impact. IIRC the county put wheel counters right at the ferry dock late last year; maybe those results are available. It is the tribe’s own actions that have resulted in the greatest traffic impacts, not the islanders.
The impetus behind the road safety issue is largely the personal tragedies of a few tribal families who met with a bad end on the roads. One influential guy in particular has had ongoing difficulty coping with the grief and has sought to push the river. As sympathetic as one must be to this, in no way does it make it a ferry problem.
Tip, give it up on your anti-car fetish. The wrinklies of Lummi Island aren’t going to volunteer to push grocery carts in the freezing rain; cars are the name of the game for the foreseeable future. You want to bicycle to your sailboat, go for it. Also, if you want to research something interesting, figure out if the tribe can use eminent domain to seize the beach property east of the ferry dock; that’s reportedly their next gambit. They already claim it as tribal trust property on their web site, despite a fee-simple deed as the private property of someone else. Stay tuned.
Anti-car fetish? Hmmm, maybe. No matter how you look at it, cars are a big part of the problem. But they are not yet being considered in the solution.
Intimidating platoons of cars race hourly to meet the ferry. The ferry queue at seasonal peaks intermittently congests the Point’s busiest commercial activities. Roadside parking with frequently opening doors is a notorious hazard to bicycles and limits visibility for pedestrians. The usually swamped ferry parking area is a slurry of oily waste. Parking during the last drydock created an embarrassing blight along more than a mile of beachfront. More oil leaks out of cars every year in Washington State alone as was spilled in Prince Williams Sound, and it is far more toxic than crude. Look at ANY parking place and you will see a rich oily patch under the engine area. Anyone who cares about the health of the nearshore habitat should be concerned with where that oil inevitably goes. Islanders can expect to experience more of these problems, too. Parking demand will likely overwhelm on-island supply as fares drive more islanders to keep second cars. Where will the next parking lot be built? Who will pay for it? Any student of land use planning will tell you this is a vicious cycle that can dramatically impact neighborhood character and the environment – as it has on Gooseberry Point, it inevitably will on Lummi Island.
Yes, even if safety on Haxton is a ruse, I think cars contribute more to this problem than is generally accepted, far more than the location of the ferry wrt any harbor proposal. But mainly, I think that if this issue were to be entertained in an open public process, we would be considering far more creative solutions and not just stuck in stalemate over impossible demands.
And yes, yes, yes, I do like biking to my sailboat, which incidentally has no motor! Guilty as charged, your honor.
Singlecheek,
I now remember who referred me to the inapplicable citation. It was Dan Gibson, the County Attorney, answering my question about the right-of-way on a KGMI radio talk show last September. Most interesting.
http://lummiislandferryforum.wordpress.com/2010/09/10/tip-johnson-to-the-county-council/
As far as parking during dry dock , as a newbie to the island we tried very hard to find weekend transportation to the dock so we could park elsewhere. Impossible.
and a logical amount of lag time between when the walk on ferry comes in and departs would give people time to get to their car and leave and someone take that spot.
What, Tip, a county deputy prosecuting attorney gave less than the best possible advice? How shocking!
Especially since Dave McEachran, his boss — and Prosecuting Attorney for over 30? 35? years was in charge when the last lease was signed — except by the BIA. Guess our chief PA didn’t think due diligence was in order then. Or now, since he (via Dan Gibson) OK’d the county’s going along with the Lummi Nation claim that the old lease wasn’t valid. No suggestion that well, fine, then give the county back the land that was part of the payment for that invalid lease.
reign of error.
Yes, Wynne, shocking indeed!
One other point: Judge Rothstein retained jurisdiction in the matter of the consent decree that stipulated the terms of the last lease. I am unsure why the County wouldn’t avail themselves of the opportunity to revisit the renewal option with the Judge.