Never Enough? Enough is Enough!

Mon, Jun 21, 2010, 4:40 pm  //  Tip Johnson

A review of documents available from Whatcom County shows that the Lummi Island ferry right-of-way has been approved many times, but never quite enough, according to the Lummi Nation. Not a single document indicates it was ever officially disapproved. Though the County's files may not be complete, the ferry issue increasingly appears to be a unilateral assertion of the Lummi Nation's. Here is a brief synopsis:

- In 1855, the Point Elliot Treaty established the original Lummi Indian Reservation and provided that roads could be built "if necessary for the public convenience."

- In 1904, Whatcom County applied to the Department of the Interior for a public road across the Lummi Indian Reservation, following the route of a historic wagon trail. In 1905, the Commissioner of Indian Affairs approved the request and authorized construction.

- In 1919, Whatcom County again applied to the Department of the Interior for a road right-of-way sufficient to access the community of Beach on Lummi Island and possibly to serve as an outlet for the people of East Sound, Orcas Island.

- Early the next year, Commissioner Ellis of the Tulalip Indian Agency forwarded his recommendation for approval to the Department of the Interior. His report states the road is "necessary to give an outlet to the people of Beach, Washington, on Lummi Island," that it would be connected "by means of ferries across Hales Pass," that it "is badly needed and will be of great benefit to the Indians," and "will enhance the value of all allotments that it touches," that it will "provide an outlet for the Indians" and "be a convenience to the Government in the administration of the reservation."

- A month later, the department transmitted the application to the Secretary of the Interior with the advice that "the County Commissioners have complied fully with the regulations" and recommend departmental action "not be delayed." Soon after, the Department of the Interior sent Notice of Approval to Whatcom County Commissioners for a right-of-way for "the proposed road across Lummi Reservation to Hales Pass."

- In June of 1921, Whatcom County Commissioners issued an Order of Establishment for a road connecting Marietta with Lummi Island and authorized further application for modifications to the route. Three months later, the Commissioner of the General Land Office to the Secretary of the Interior recommended approval of the "public highway" and by April of 1922 the Department of the Interior wrote Whatcom County that the right-of-way had been granted and approved. Over the next year, the various modifications were also duly approved and in 1924 Whatcom County bought the existing "ferry slip and landing dock" from the Lummi Island Ferry Company.

- Over the next two decades, parts of the road washed away in storms, and changes were made to avoid flooding at high tide. In 1945, the County traded their ferry landing to members of the Lummi tribe in exchange for a new approach and right-of-way across the tidelands. In 1951, the County acquired deeds to additional land for "use as a public road." The next year, the Department of the Interior, Office of Indian Affairs, affirmed the sufficiency of the County's efforts, referencing the earlier grant for a road right-of-way and approvals dated 3/29/1920, 10/19/1921, and 5/16/1923.

- In 1960, the Bureau of Indian Affairs and Whatcom County executed a General Agreement to place several miles of reservation roads under County care to "ensure better road service for the people of the Lummi Reservation." However in 1963, the Department of the Interior issued a memorandum clarifying that the reservation boundary extends to the low water mark. Without conceding that the right-of-way was not already complete, but to ensure against any interruption of service, the County entered into a tideland lease, approved by the Department of the Interior at a value of $150 per year.

- In 1978, the Washington State Department of Natural Resources approved a right-of-way across the tidelands for the ferry, and in 1986 charged the County $7,325 for an amended right-of-way for a "mainland ferry terminal," determining that Whatcom County had "obtained all necessary approvals."

As previously disclaimed, documents may be missing from the County's file, but it generally appears that for years many efforts were made to assure the adequacy of the ferry's right-of-way.  For all the County may have tried, somehow their efforts were never enough.

Earlier this year the Lummi Nation announced the Lummi Island ferry must be relocated and a lease with Whatcom County for tidelands under the ferry's landing would not be renewed. The Lummi threatened to blockade the ferry on Valentine's Day if the County did not agree to new demands.

Their position is based upon court decisions, written since the right-of-way was approved, holding that reservation boundaries extend to the low-water mark. The original right-of-way was approved only to the shore of Hales Pass for a ferry to Lummi Island. According to the Lummi Nation, the approved right-of-way does not account for about 5,000 square feet of tidelands upon which the ferry's landing is built.

In 1979, the Lummi Nation sued the U.S. government and the Washington State Department of Ecology in federal court. The issue was principally concerned with water rights and land use policies at Sandy Point, but in the 1982 resolution, the judge also ordered a consent decree stipulating terms for a 25 year tideland lease to support the Lummi Island ferry landing. The lease included an option for the County to renew for another 25 years.

The consent decree provided that payment for the lease extension would be based upon an appraised value. However, the tidelands recently appraised at a lease value of $65,000 per year. That would make monthly payments about $5,500. But consideration for the first 25 year term was in the form of property conveyances, including the Lummi Stommish Grounds, valued at the time at almost $400,000. That translates to about $14,000 per month. Accepting a substantial reduction in payment apparently did not appeal to the Lummi Nation and this year they denied the renewal, declaring the lease invalid on the grounds it was never signed by the Secretary of the Interior. Neither party to the lease ever bothered to submit it for approval, as required both under law and the terms of the agreement. A new arrangement is currently being secretly negotiated and the Lummi Nation has imposed an interim monthly fee of $16,600.

Further complicating matters, another law, also adopted since earlier approvals, provides that the Secretary of the Interior must now secure the permission of tribal officials before granting any rights-of-way over tribal lands. The Lummi, withholding this permission, have rendered the Department powerless to resolve the issue, which might otherwise be characterized as an administrative oversight in the context of evolving federal policies.

Congress still retains authority to grant rights-of-way, and routinely does so to accommodate power transmission lines, pipelines, and other matters of public necessity. However, despite numerous and repeated requests, Whatcom County's congressional delegation has elected to avoid this thorny issue and leave non-tribal constituents swinging in the wind, at the mercy of Lummi demands. Though this runs directly counter to established federal policy designed to avoid damaging disputes between tribes and local jurisdictions, inaction remains the easiest course for elected representatives unconcerned with such a remote problem affecting so few. In other words, Lummi Islanders have so far failed to make the issue contentious enough to merit their representatives' attention.

This leaves islanders in a bad spot since Whatcom County lacks any authority to solve the problem and cannot afford to litigate the underlying issues. Besides impacts to businesses, property values and commuting workers, other issues of public necessity include the adequacy of emergency services and law enforcement - even how children will get to school.

To make matters worse, islanders have been excluded from the discussion. The Lummi have demanded negotiations remain secret. They have several ancillary concerns, including traffic management and safety, as well as land use issues at Gooseberry Point. Without public process, no one can tell how many of these issues are being folded into the negotiations and how much it may cost county taxpayers. Without Congressional assistance, the County has no option but to agree to any terms demanded, and islanders can only reasonably expect that ferry service will become both much less available and much more expensive.

Ironically, U.S. policy recognizes that local jurisdictions cannot afford to litigate and calls for a federally negotiated settlement of such issues in the interests of preserving social relations while promoting stability for planning and investment. A federal settlement undeniably offers all parties a much better chance at much better outcomes, but simply cannot proceed without leadership from Congress.

Having already been threatened with a blockade, islanders are afraid that even asking Congress for relief could upset the apple cart and lead to more bad blood and worse results. Recently, two prominent island community organizations issued a joint statement suggesting that petitioning Congress for relief could be "counterproductive to the current ferry lease negotiations." Consequently, the focus remains on "fostering a mutually positive and respectful relationship with the Lummi Nation" and supporting a new long-term lease, even though the last lease eventually proved as inadequate as a century of right-of-way approvals.

But "mutually positive and respectful" relations will never emerge from one-sided demands. No citizen or group should feel intimidated from exercising their constitutional rights. No community should suffer under the threat of blockade. No jurisdiction should be subject to arbitrary demands without opportunity for review and recourse. We are way past the "public convenience" test for roads under the Point Elliot Treaty. By any standard, the public necessity of the ferry and its right-of-way demands the attention of capable authorities, and Congress is the only such authority.

By any logic, even bureaucratic or congressional logic, there is no reasonable explanation for how a right-of-way can be so approved and yet still deficient. There is no rational basis to assume so many government approvals were ever intended to be subverted by 5,000 square feet of submerged land. The public purpose for the right-of-way was clear from the initial application. It was intended to access Lummi Island, not grind to a halt in a few feet of water on the mainland side. If the low-water mark is the reservation boundary, then provision should long ago have been made to accommodate the right-of way across any affected tidelands.

There is plenty of reason to accept this premise. For over two hundred years, the federal government has enforced the principle of Navigational Servitude. It is a crime under the Rivers and Harbors Act to in any way obstruct the navigable capacity of federal waters - generally determined by the high-water mark. Even the Supreme Court has written that treaties do not necessarily constitute "a grant of rights in lands underlying navigable waters" (270 U.S. at 58, 46 S.Ct. 197). Can a postage stamp of starfish and clams overturn our basic principles of commerce, trade and freedom of movement, cutting off an entire community?

Whether a matter for administrative or legislative housekeeping, or for a negotiated settlement, Congress must take the lead not only because Whatcom County lacks authority and means, but because the citizens of Lummi Island and Whatcom County deserve to have some say in the future of their community and the costs they will incur. Congress must take the lead because only Congress has the authority. Come on, representatives, quit ignoring your own policies and constituents. Get to work and do your job to help resolve an issue that otherwise can only get worse.  Enough is enough!

I invite anyone - tribal, official or otherwise - to provide for print on these pages any explanation as to how the obstruction of the Lummi Island Ferry makes sense under any principle, policy or law of our land.