They Exist!

After writing for months about failing to receive any reply from elected officials, agency directors, relevant committees and the President, after badgering everyone possible from every conceivable angle, I finally get to eat some crow. They exist! They are working! Today I received a reply from Representative Rick Larsen:

On 3/2/11 1:21 PM, "rick.larsen@mail.house.gov" wrote:
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Dear Tip:

Thank you for contacting me about the ongoing negotiations between Whatcom County and the Lummi Nation regarding ferry access to and from Lummi Island. I have made clear that shutting off ferry access to Lummi Island is unacceptable, and I continue to stay in contact with both the Lummi Nation and Whatcom County to ensure that an appropriate solution is found to this issue.

I remain in close and consistent communication with leaders of both Whatcom County and the Lummi Nation, and continue to do all I can to encourage the parties to find a solution that ensures the ferry stays in operation. Last year I contacted the Bureau of Indian Affairs (BIA) seeking a response to concerns raised in the community. I also directed my staff to speak to the Bureau of Indian Affairs (BIA) to explore possible solutions to the problem, and I sent a letter to the BIA urging a response to concerns raised by Whatcom County. Additionally, this week I, along with Senators Murray and Cantwell, sent a letter to the BIA asking for clarification of the Federal government's role in this process. I look forward to an adequate response to this correspondence.

I share your frustration about this impasse and will continue to actively work to find a solution. Please do not hesitate to contact my office if you have any questions or comments.

Sincerely,

Rick Larsen
United States Representative
Washington State, 2nd District
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Of course, I took Mr. Larsen's invitation to heart and hesitated not one moment to contact his office with further comments. I now address them publicly to Mr. Larsen and his colleagues:
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(Slightly edited for accuracy and clarity as I dashed the original off quickly from work)

Dear Mr. Larsen,

Thank you for your reply! I appreciate your current effort, and those of your colleagues. As you may have observed, I have written somewhat extensively on the issue, (See nwcitizen.com and scroll down for the issue box). A common theme has been the inaction of our congressional delegation. Your response merits a follow-up to those earlier comments and I will make sure your activity is well known. Thanks again.

There are a couple of points that should be thoroughly considered and strenuously impressed.

The first is jurisdiction. Under the Commerce Clause, the federal government reserves the right to regulate commerce and transportation with indian tribes. The treaties with tribes are generally considered to be between nations. This puts the Lummi Tribe on a higher logical level than even the state, much less the County. Washington state code regarding ferries contemplates only ferries between counties or within counties. There is no menton of a county's authority to negotiate with sovereign nations. Counties generally lack any authority to negotiate international agreements. It is doubtful that Whatcom County has any authority to negotiate with the Tribe on this important transportation link.

Second, as a matter of record, the right-of-way (ROW) was approved expressly for a ferry to Lummi Island, as an outlet for the people of Beach, Lummi Island and East Sound, Orcas Island. At the time, the reservation boundary was considered to be roughly the high water mark, along meander lines upon which the reservation area was originally calculated. President Grant expanded the reservation by executive order, using language later interpreted by the courts to mean that the reservation boundary extended to the low water mark. Significantly, prior to those rulings, the BIA approved and participated in funding the original landing. Today they have a very different attitude, recently stating they would not even consider approving the lease for its second term.

Third, federal navigational servitude is a dominant interest in both navigable waters and the underlying, riparian property. Navigable waters are reserved for the public’s use. They essentially constitute a public highway. Hence, if the County’s ROW extends to the high water mark and the Tribe's tideland interests are subordinate to federal interests, the right of the Tribe to charge rent is questionable. Riparian rights on navigable waters are always subject to the public’s interest, and the courts have repeatedly ruled that compensation is unnecessary for takings below the high water mark. Furthermore, under the Rivers and Harbor Act, it is a federal crime to in any way obstruct the navigational capacity of federal waters.

Finally, a lease is not the answer, only assuring a continuation of the dispute. Insofar as the Tribe abrogated their obligation to lease terms stipulated by federal consent decree, the opportunity to perfect and affirm a ROW should be pursued. Judge Rothstein, incidentally, retained jurisdiction in the matter of the consent decree, so the possibility of revisiting the lease should be available. However, it is my belief the lease would be better used as an interim solution pending affirmation of the ROW. A ROW is the only permanent solution

To put things into recent historical perspective, the civil case from which the consent decree stemmed was originally leveled against a county commissioner who interfered with the Tribe’s authority to purvey water and sewer, who violated accords to approve controversial subdivisions on fee lands within the reservation, and who testified before the Indian Claims Commission that Whatcom County should abrogate the treaty with the Tribe. In view of these facts, Judge Rothstein formulated lease terms which conveyed important properties to the Tribe. The 1982 value of those properties was over $400,000. Without accounting for appreciation during the lease’s first 25 year term, lease payments therefore amounted to about $14,000 per month– substantially in excess of the fair market value. However, the second term was intentionally set to ratchet back to fair market value, which according to a recent appraisal performed for the Tribe would have amounted to $5,500 per month. This second term, specifically at the County’s option, is what the Tribe has refused. This should amply illustrate why a lease will not work to resolve the dispute and also serve as a rationale for affirming and attesting an adequate, permanent ROW.

Many consider the Lummi demands greedy. They are more properly viewed as a rational exercise in sovereignty. There are key issues and potential precedents worthy of very careful review. The Tribe asserts the right-of-way as approved is insufficient, that their sovereign authority exceeds that of the Department of Interior's approval of the right-of-way, the Bureau of Indian Affairs approval and original investment in the landing, the United States Army Corps of Engineers' approvals of modifications to the facility, the authority of Congress to license and enroll a U.S. vessel for the traffic, the Commerce Clause of the U.S. Constitution, the principle of federal Navigational Servitude, their agreement to a federal judge's consent decree, public necessity, and a host of longstanding U.S. policies and legal precedents. These are absolutely not issues upon which the U.S. Government can rely upon the County to properly consider or act.

You should be aware that this dispute significantly riles a particular social dialect in Whatcom County. I am afraid that someone will get hurt. This is why U.S. policy says local jurisdictions should not be left to settle historic disputes with tribes. Litigation takes too long, it is too expensive, social relations deteriorate dangerously, and stability for planning, investment, and economic development cannot be achieved. Instead, policy recommends a federally mediated comprehensive settlement. That is exactly what is needed. It is the best way to get the Tribe the best deal, to keep everything in proper context, and address the ancillary concerns that are now being unfairly heaped upon the rate base of the ferry. I fear the Tribe’s current course may leave them poorly positioned, politically, to receive the assistance from programs and grants they need. For instance, the Working Waterfronts Initiative could be a valuable resource in the Tribe’s effort to build a badly needed harbor. However, applications must demonstrate broad community support. It is doubtful if that community support will extend much beyond the reservation if the Tribe continues their current strategy.

I am completely available to discuss these points in excruciating detail, to possibly address any questions they might raise, or consider those you may already have.

Tip Johnson
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But, that's all like throwing cordwood on an unlit match. Our erstwhile representatives are just getting started. They are just awakening. They have yet to grock the issue. As Representative Larsen details, the delegation is still trying to talk to the BIA. That's a bit naive considering the BIA's recent comments regarding approval of the lease. There is no mention of a ROW, only hints of hoping to "find" some "appropriate solution." Anyone hoping to resolve this dispute must understand a lease will not serve. Leases have been the problem, not the solution. If the parties cannot adhere to agreed terms stipulated by a federal judge, isn't it time to look for a more durable solution? One was applied for and duly approved more than ninety years ago. What's next?

The BIA hasn't any authority to affirm a ROW over tribal lands without tribal consent. That's the law. Their parent, the Department of the Interior, now similarly lacks the very same authority under which the ROW was originally granted. Only Congress and the President reserve that authority. Since the adoption of U.S. codes limiting departmental administration of ROWs, Congress has routinely exercised their authority to grant them for pipelines, transmission lines, public highways, or any public purpose. That's the way it works. Representatives, we need you to make it work again, please!

The BIA, with an egregious history of fiduciary abuse of tribes, is today a different beast. A few decades of tribal self-governance has produced significant strides, by no means complete, toward responsible administration. Tribal representation within the department has ballooned. The hand-picked "farmers-in-charge" are a thing of the past. Today, tribes have constitutions, by-laws, and legal frameworks with which they organize their communities and define themselves as nations. The BIA is now better fulfilling it's most reasonable service, but it is definitely not the place to shop for a solution.

Where exactly do the Lummi fit in the hierarchy of states? Having treaties preceding the formation of states, they are considered to be nations in treaty with the U.S. True, their affairs are structured with the U.S. acting as trustee. Historically, we've horribly abused that duty, besides enacting legislative measures designed to tear their communities apart. To their credit, they have never let that diminish their aims. Why wouldn't they try, and why should we begrudge them, any attempt to achieve a more cohesive community and greater independence? Isn't that precisely what we're all about?

The solution is stupidly simple, if difficult to achieve. How do we address the Tribe's need to recreate a village at Gooseberry Point? How can we mitigate our government's terrible contribution toward its demise and the adverse effects of the ferry?

It is not through outrageous fare increases. It is not by hinging ancillary complaints around a tideland lease. It's about public accommodation, pure and simple, give and take. LIve and let live. It is about how we can make the best of it.

Making the best of it has, however, been hampered by the executive and potentially litigious nature of the problem. Everything is being done in secret. No one knows what has been discussed, whether or how important ideas have been vetted, what elements will be implemented and who will pay for them.

OK, I guess we know who will pay for them. Whatcom County ascribes 55% of the cost of operating the ferry to fares. They are already gaming the heck out of that statute. With no say in what is decided, it's already been decided who will pay 55% of the costs. There would be an uproar if residents upstream of any bridge were assessed 55% of the cost of maintenance, repairs and replacements. The uproar would double if there were no opportunity for public input. That's just not good government. That's not public accommodation.

Making it possible for the Lummi to organize a village on Gooseberry Point should be our first priority. But accommodating traffic to Lummi Island must be part of that plan. There really is no feasible alternative crossing. The County accommodates travel within, to, and from the reservation. The ferry poses no intrinsic obstacle to providing needed harbor for the Tribe's fishing fleet. It would likely help any harbor grant application scoring highly. Traffic is always a problem. Managing traffic, and demand, must be a matter for public consultation. There are many potential solutions.

The new publicly funded walkway along Haxton should help reduce pedestrian/vehicle conflicts, injuries, and deaths. It should be continued south to the ferry terminal. Eventually someone will use it. The Lummi Gateway, with partial public funding, could create additional tribal jobs providing secure parking and shuttle services to the ferry, reducing the impact of ferry queuing and parking. The most recent fare structure promises to make things much worse, encouraging islanders to keep cars on both sides and exacerbating land use conflicts. A demand-management-framework could discourage single-occupancy vehicles, facilitate offsite parking and walk-on traffic, and accommodate essential basic services. The possibilities are infinite, but not without public input.

The County can't do this. Only a federally mediated settlement framework can provide the balance, context, and public dialog necessary to heal old wounds, strike fair accords, and move ahead in a mutually beneficial way.  Let's quit pretending the County can solve this problem.  Let's follow that U.S. policy.