Lummi - Port agreement needs state approval

By On

What they did not tell us: Indeed, the Port Commissioners and their very expensive private legal counsel, flatly stated the Port had the authority to enter into the agreement with the sovereign Lummi Nation. But, as is so routine with the Port, the deception is in what is not said - what is left out of the answer. RCW 39.34 spells out the requirement.

The reason is the Lummi Nation is sovereign and has treaty rights with the United States. Just as you and I cannot sell ourselves into slavery - even if we wanted to - so too, the Lummi cannot sell their birthright, and the treaty rights of their children, and their children’s children, for a small pay-off to a few individual Lummi Indians. Henry Cagey, the lead Lummi negotiator, is a smart fellow. But he and his Business Council members kept the negotiations secret.

And that brings up another legal issue. Ham Hayes pointed out the two year secret negotiations are probably illegal - to which Port Commissioner Commissioner Scott Walker and their counsel said it is routine for private parties to request confidentiality from the Port, and state law allows the Port to then agree. And once again they lied by omission because it was the Port that demanded secrecy from the Lummi. The Port cannot do that.

Then we have the manner in which the negotiations were conducted - all verbal. No notes or records. So say our inside sources. The agreement was written up in the private legal offices of the Port counsel and finalized last Wednesday. Then the Port staff and the Lummi met there to agree on the wording. All to avoid public disclosure of the information.

Ham Hayes put in a public disclosure request last Friday for that information. On Tuesday morning, Port executive Fred Seeger, told him legal counsel was still reviewing for confidentiality and an answer would be provided later this week - after the agreements are signed. We expect Ham will be told there is a client-attorney privilege because the agreement was done with counsel. But that can be challenged because a third party was present - the Lummi. We shall see how this unfolds.

Back to the need for state - and maybe Federal - approval of the agreement. No doubt the Port knows it has to submit this for approval. But they do not want any Lummi Indians to challenge this at the state level - and they do not want any non-Indian citizens of Whatcom County to write to state authorities. The Port wants to have this quietly approved without any public involvement.

Ham Hayes and Doug Karlberg both stated strong objections to the abuse of public process by the Port. Let us hope other environmentally-minded citizens or groups in our community will now step forward and look into this. Let’s hope they will contact the Governor and state officials asking that this “taking” of Lummi Indian rights not be approved. Indeed, the whole thing is a chicken feed payoff to a few Lummi fishermen and does not benefit the Nation at all. The end result is a more polluted Bellingham Bay, which will benefit the Port by reducing the amount of cleanup to the waterfront and avoiding conversion of the lagoon into a storm water treatment facility. They will keep their money-losing marina.

In today’s Cascadia Weekly, Tim Johnson writes a very insightful Gristle that is well thought out and rips the Port for this process. Pick one up.

Bottom line - this issue is not finished. The environmental leaders in our community - hopefully joined by Lummi who have now learned that part of their birthright has been given away by a few of their own - will ask the state and Feds to hold up approval until all the facts of the negotiations and any side deals have been revealed and studied.

Oh - and in other news, the Port lost the bid for the NOAA base. The Herald, in their usual process of covering for Port Commissioners up for reelection, headlined it as the “City” losing. A true headline would be the Port lost it to the detriment of Whatcom County - not just the city. Why? The Port will try in future months to keep that information from coming out. I suspect one big reason is the toxic brown field they proposed to place NOAA in the middle of down there on the waterfront. Of course, the Herald suggested corruption in the process because of relatives in high places. This is a smear, and an unfounded accusation the Herald tossed off in its attempt to cover for the commissioners. It is shameful of Sam Taylor to write that, as it is an example of what he calls ‘irresponsible writing by bloggers.’ It took six paragraphs before the Herald article mentioned the Port was the agency responsible.

As Bremerton and Everett have painfully learned, poor decisions by Port commissioners can put an entire community into severe debt. Lets hope we in Whatcom County can act intelligently and elect two new commissioners before it is too late. The Port is losing millions each year and covering it up with further bond debt. Now that NOAA is lost, their hoped-for manna from the Feds is gone. Now what?

Note: I will be adding links and a possible graphic later. Have to make a living just now. Go out and pickup a Cascadia Weekly.

About John Servais

Citizen Journalist and Editor • Fairhaven, Washington USA • Member since Feb 26, 2008

John started Northwest Citizen in 1995 to inform fellow citizens of serious local political issues that the Bellingham Herald was ignoring. With the help of donors from the beginning, he has [...]

Comments by Readers

Tom Pratum

Aug 05, 2009

Why would the Lummi Nation want the ASB to become (or continue as) a wasterwater treatment lagoon? I would think they would want it returned to aquatic habitat. I would also think that is what all environmentally minded citizens would also want, but I have found a puzzling array of opinions regarding this over the past few years…...

Also, I don’t agree at all with your statement that NOAA didn’t come due to the lack of cleanup of the GP site. Let’s face it, how could we compete with Newport/OSU and Seattle/UW? It was a nice try, but the result is not surprising.

By the way, I do agree that we very much need to get rid of the two incumbent port commissioners up for election this year.


Tip Johnson

Aug 06, 2009

IMHO, most environmentally minded folk would want to retain water treatment capacity to protect the nearshore habitat.

Whether subdivided and maintained as a basic lagoon, or ballasted and redesigned to house clarifiers in various treatment regimes, the ability to treat stormwater, capture combined sewer overflows and support industrial processes will help protect the bay. Discharging in the mid-bay mixing zone instead of the nearshore habitat is a huge environmental benefit.

Most folks conscious of costs would also support studying the potential for the ASB to protect our marine waters.  Replacing this capacity will entail staggering costs.

After months of document inspection at both the Port and City, I can assure citizens that no attempt has been made to evaluate the potential of this resource.


Tom Pratum

Aug 06, 2009

If the city needs additional treatment capacity, then maybe it would make more sense for them to issue bonds for a land-based facility. Certainly leaving the ASB as a treatment facility is not at all a no-cost alternative (probably isn’t even a low-cost alternative).


Tip Johnson

Aug 07, 2009


Everything costs money.  The ASB cost money. Lots of it. The ASB is spacious and perfectly located at the bottom of the drainage for most of our developed areas.  It is a stone’s throw from the C-Street pump station where combined sewer overflows are now dumped directly into the nearshore habitat. It comes with a long outfall, diffuser and state-approved mid-bay mixing zone. It is served by large industrial waterline that becomes useless without a receiving facility. Most of our sewage has to be pumped from this location to the Post Point wastewater plant.

Used for water treatment - whether for urban runoff, industrial discharge, additional sanitary treatment, or any combination - it has the potential to improve far more “aquatic habitat” than could ever be gained through its removal.

Where would you locate a similarly sized land-based facility?  It is inconceivable that avoiding the costs of land acquisition, extra pumping and discharge delivery infrastructure would be a more expensive option. Surem it would cost money to customize appropriate treatment regimes. But come on, Tom, water treatment is how we protect the marine environment. Wrecking treatment facilities is sheer economic waste.

Wouldn’t you agree that it should at least be studied?  After months of document review at both the City and Port, I can assure you that they haven’t.

©1995-2020 Northwest Citizen LLC | Each writer retains the copyright to their articles. Copyright & Contact