FERRY FUND-RAISING INFORMATION (Jan 1, 2010)
written by Rich Stuart, Lisa Wochos
Note: All charitable organizations must register BEFORE they may lawfully solicit funds on behalf of the charitable organization. It is a violation of state law (RCW 19.09.065) to engage in such solicitation prior to the organization’s registration being accepted by the Secretary of State which will not occur until later in the first week of 2010 at the earliest. In order to not delay fund-raising efforts given the time sensitive nature of the need for legal services, you should INSTEAD SOLICIT FUNDS ON BEHALF OF THE LAW FIRM OF Gordon Thomas Honeywell as explained more fully below (see raising legal funds). However, the contract with the law firm will specify that the nonprofit organization’s management committee is the client and that the organization is responsible for payment of legal fees.
County’s Inaction: Despite numerous requests, the county has refused to seek an outside legal opinion to examine validity of the 1988 lease and its remedies to preserve the 25 year lease renewal option. The lease expires on February 14, 2010.
Protecting Legal Rights of Lummi Island: A 5-member group (Stuart Rich, Lisa Wochos, Fred Kinney, Bill Fox and Nancy Gale) extensively interviewed six Seattle area attorneys experienced in Indian Law.
Substantial Legal Questions: All of the lawyers agreed that there were several legal questions regarding the rights of Lummi Island and the liabilities of the County and Tribe regarding moving the existing Gooseberry dock which include:
- What are the rights of Lummi Island residents and property owners?
- What are the obligations of the County and what are their liabilities for failure to meet these obligations?
- Why is there no BIA signature on the lease? Does it matter if the signature is lacking if the parties have honored the lease for 25 years? Did the Tribe and the County each follow required procedures to obtain BIA approval?
- If the Ferry Lease is void in its entirety, what is the status of the land parcels quit- claimed by the County to the US Government to hold in trust status for the Tribe in accord with the lease consideration set forth in the Consent Degree? Have those land parcels been provisionally accepted by the US Government for trust status?
- The federal court maintained jurisdiction over the 1982 Consent Decree (a court-approved settlement) that created the terms of the ferry lease and, accordingly, the Tribe has waived its sovereign immunity regarding the Decree and its lease provisions. This is a significant fact because a tribe can not generally be sued for a contractual breach unless it has waived its sovereign immunity, and with such a waiver the County has the ability to ask the Federal District Court to enforce the terms of the lease with respect to another 25 years at a reasonable price achieved through good faith negotiation or arbitration or court action.
- Is the 25 year lease extension part of the consideration granted and enforceable under the Consent Decree?
- If necessary, could the County be convinced to return to federal court and reopen the Consent Decree in order to enforce the 25 year lease extension?
- Is the current “Intergovernmental Agreement” which prohibits the Tribe from building a marina that would interfere with the operation of the Lummi Island ferry an enforceable document?
- Given that tribes are generally subject to State / Federal environmental laws, which ones apply to the proposed marina? For example, how would federal EPA regulations impact the Tribe’s ability to develop a marina, using the proposed “island” breakwaters?
- Does the Point Elliott Treaty guarantee the County/State the right to run roads for the “public good” through the reservation, albeit with compensation for damages?
- How would closing the Gooseberry Point dock be impacted by the State’s statutory requirement that a public hearing and a finding of “uselessness” occur prior to vacating a road?
Focus Group Chooses Attorneys: On December 30th the Focus Group agreed to retain the legal / mediation team: Robert Caldwell and Jim Waldo from the law firm of Gordon Thomas Honeywell legal firm in Tacoma. The attorneys are retained to render an advisory opinion as to the County’s and the Tribe’s responsibilities and liabilities concerning the Lummi Island ferry. The Focus Group also agreed to interview a public relations expert who was highly recommended by Mr. Waldo to help “tell our story.” The Focus Group voted to direct the attorneys to not undertake any action or communications with the County or the Tribe prior to the Group’s review of the advisory opinion. Mr. Waldo has 30 years of experience in tribal law and complex intergovernmental negotiations including the recent agreement between the Lummi Tribe and the Port of Bellingham.
Waldo / Caldwell’s recommendations:
1. Litigation against the tribe is usually unwise and very difficult. Islanders may lack standing to directly litigate against the Tribe.
2. Lummi Island needs a sound legal opinion which will leverage both the County and the Tribe to re-evaluate their positions, and convince the County to take the necessary action to protect the legal rights of Lummi Islanders. The initial research focus will be the Consent Decree, the 1988 Lease, the Intergovernmental Agreement and the federal remedies. Lummi Island needs to apply pressure in order to be strongly represented by the County at the negotiating table.
3. Development of a Non-Profit 501 (c) (3), to organize Lummi Island, and creation of a small management committee as “client” to reduce legal fees and protect attorney-client confidential communications. Such a group could also enhance coordination of efforts to contact various officials at the Tribe, County, State and Federal levels and also educate the public about the many issues of safety, medical needs, employment loss, effect on students, i.e., the survival and viability of the Lummi Island community.
Island Nonprofit Organization Formed: On December 30th the Focus Group agreed to form a nonprofit organization, structured to represent all segments of the Lummi Island population, to coordinate the Island’s long–term ferry needs and serve as a conduit between the legal team and Lummi Island. The key principles of the non-profit are respect, transparency, and inclusion. On December 31, 2009, Articles of Incorporation were filed online on an expedited basis by Lisa Wochos under the name of Protect Lummi Island Community and is pending. The corporation’s interim Directors are Stuart Rich, Lisa Wochos, Nancy Gale and Bill Fox. The adoption of Bylaws and the number, election and composition of the organization’s Directors and Officers and possible modification of the organization’s name will be determined at subsequent meetings.
Raising Legal Funds: Time is of the essence.
The initial fees are $20,000 which includes legal services estimated at $16,000 and possible public relations services costing roughly $3,000-4,000. Optional legal services after the advisory opinion could require additional funds up to $100,000, but only if authorized by the nonprofit. Collection of $20,000 is necessary before legal representation would begin. Please consider making a contribution of $50 to $1000 as an investment in your community. Checks should be made out to the law firm of Gordon Thomas Honeywell until the charitable deduction status of our nonprofit organization is approved. Donations will NOT BE TAX DEDUCTIBLE at this time.
(Submitted by Wynne Lee, from the public flyer that has been widely distributed on the island.