Lummi Island Ferry: Incompetence, confusion, terror, and disenfranchisement

After more than a year of secret meetings to hammer out an agreement keeping the Lummi Island ferry running, the Whatcom County Council will finally hold a hearing on the matter tomorrow night.  They are expected to vote on the lease following the hearing.

The twist? The ferry is currently in dry dock, complicating the logistics of how Lummi Islanders - those most affected - will attend.  Once a year the ferry must haul out for inspections and repairs.  Usually, this happens earlier in the year, during summer.  For various reasons, this year it has occurred concurrent with the start of school and the legislative consideration of a pact that Islanders might have to live with until 2045.

Only one councilmember, Barbara Brenner, complained that this imposed a hardship on islanders, asking that the hearing be delayed until dry dock is finished.  Dan Gibson, in charge of the negotiations for the County Prosecutor's office, replied, but not to Brenner.  In an email to councilmember Ken Mann, he states that numerous complaints from the Lummi Nation have spurred him to hold the hearing, adding, "Our attempt to introduce in early July… was thwarted by people (primarily residents of Lummi Island) complaining about the content of the lease and insisting that introduction be postponed," and, "If  attendance at the hearing is really a matter of importance to someone, the  logistics of arranging transportation to achieve that seems relatively  simple."  Ken Mann adroitly replied, "Nothing is simple out there!" 

Of course, last July was only minutes after the conclusion of the secret negotiations from which islanders had been excluded.  They obviously wanted to read it.  Now, they would like to know how it got where it is.

The basics: Lummi charges for the dock will increase from a little over $1,000 a month to over $16,000 a month.  Millions will be spent improving roads within the Lummi Nation.  Fares have already increased radically and reductions in service have been discussed. This extraordinary increase to a facility serving a public purpose is underscored by the mere hundreds charged adjacent piers in private use.  Lummi islanders now have an ardent gatekeeper controlling a critical few feet of their road home.

Several facts should be of interest:
1) The relevant treaty allows that public roads may be built across the reservation.  Indeed, many have been.
2) The Department of the Interior granted a right-of-way for a road to Lummi Island early in the last century, affirming that Whatcom County had met all the necessary requirements.
3) The Army Corps of Engineers permitted the ferry landing at Gooseberry Point and participated in funding the improvement.
4) Congress licensed and enrolled the flag vessel, Whatcom Chief, to carry traffic over this route.
5) The State of Washington twice approved the right-of-way over tidelands for the landing.
6) All tidelands are subservient to the needs of navigation on federal waters, courts having repeatedly ruled they may be taken without compensation.

Interestingly, none of these points are addressed in the documents being considered tomorrow night.  Throughout the secret talks and since, no one has ever bothered to explain of why these prior approvals and superior authorities seemingly have no bearing in this case.

Similarly, U.S. policy recommends federally mediated comprehensive settlements for historic disputes with tribes.  Nevertheless, our congressional delegation and various agencies have elected to sit on their hands, encouraging the parties to work out a local solution.  This has become problematic and is creating tensions in exactly the ways the federal policy is defined and designed to avoid:
1) Protracted and expensive litigation
2) Uncertainty for planning and economic development
3) Deterioration of social relations

Also unspoken to date is the fact that the County is under considerable duress to enter the agreement, driven by repeated threats of a ferry blockade. 

According to 6 CFR 25.2 ( Title 6 - Homeland Security), the term "Act of Terrorism" means any act determined to have met the following requirements or such other requirements as defined and specified by the Secretary:
(1) Is unlawful;
(2) Causes harm, including financial harm, to a person, property, or entity, in the United States,…or a United States-flag vessel…; and
(3) Uses or attempts to use instrumentalities, …or other methods designed or intended to cause…injury or other loss to citizens or institutions of the United States.

In this age of heightened security, it is ironic that a farmer might be jailed for shining a flashlight, while threatening to blockade an entire community makes everyone lie down and roll over.

Despite these compelling points, not one effort has been made to:
1) Affirm the right-of-way earlier approved
2) Provide in the lease that such affirmation would obviate the need for continued payments to the tribe
3) Address the legality of the Lummi demands and threats of blockade, or
4) Seek clarification and mediation from higher authorities 

Now the island community is divided into bits.  Some, though unhappy with the result, believe the deal is as good as it will get and are so tired of the anxiety and strain they are willing to buck up and pay the additional freight.  Others want to stick to principles and believe that failure to achieve a local agreement could force the federal mediation U.S. policy recommends, and that a better deal may issue from that process.  Yet others fear long legal battles and a cessation of ferry service, plunging Lummi Island into unaccustomed remoteness.  Some, though, think the island community could flourish without roadway access.  None know how to stand up and demand the right-of-way their community has relied upon for nearly a hundred years. But it is clear to all that the County is unequal to the challenge and powerless to do anything but capitulate to demands.

I have the feeling that whether the measure passes or fails, we have not seen the end of this struggle.  Indeed, the last lease proved to be the source of trouble, not the solution.  This lease is even worse and hard economic times may make it increasingly annoying.  It promises to continue to be an object lesson in how government should not be performed.