Attorney General’s Opinion

Islander, Eileen Martin,  forwarded this e-mail response from Attorney General McKenna’s office to PLIC.  Eileen said the response came to her within several days of her contacting the AG’s office in regard to that office’s rendering an opinion relating to the ferry.  With Eileen’s permission, PLIC forwarded this to the Forum to share with community members.   Thanks to Eileen!

Subject: Lummi Island Ferry
Date: Fri, 29 Jan 2010 16:28:43 -0800

Dear Ms. Martin,

Thank you for your recent e-mail to Attorney General McKenna regarding the Lummi Island Ferry.  I am one of Attorney General McKenna’s deputies and have been asked to respond to your message.

Let me begin by saying that I am acutely aware of the importance of this issue to all concerned.  Island residents and businesses rely on the ferry as their vital connection to the mainland.  The County is committed to trying to meet the transportation and service needs of its citizens.  The Tribe, in turn, appears to have concerns about the impacts of the ferry and an interest in alternative uses for the land. 

To this point, these potentially competing interests have been reconciled via a lease agreement that was negotiated between the County and the Tribe.  The State was not involved in those negotiations, nor is it party to the lease agreement.  This was and is a bi-lateral agreement between two separate governments in which the State does not have a direct role.

Some want the State to weigh into the legal aspects of this matter on the side of the County.  I don’t believe there is a basis for the State to do so at this time, nor do I believe it would be helpful.  Were the State to try to intercede in this matter on behalf of the County, I have no doubt that the United States would feel compelled to intercede on behalf of the Tribe.  Having two more governments and two more teams of lawyers involved may serve to complicate rather than expedite a resolution.

Both the County and the Tribe are represented by caring and responsible leaders who are trying to find a solution this matter.  These County and Tribal leaders are supported by able and knowledgeable lawyers who are capable of identifying the legal issues involved and of zealously advocating for the respective interests of the Tribe and the County.   I believe that the best chance for a successful outcome continues to reside with the tribal and county leaders, without the intervention of State or federal lawyers at this time.

Thank you
(note sender was only identified by the email address)

8 thoughts on “Attorney General’s Opinion

  1. I’m curious what this sentence means & will send a query to Frank Abart after finishing this comment. Sorta sounds like the AG thnks agreement has been reached, but who knows if that is right. Even the ‘experts’ sometimes get things wrong, as we all know.

    “To this point, these potentially competing interests have been reconciled via a lease agreement that was negotiated between the County and the Tribe. “

  2. Hi Wynne: I am thinking that the AG’s representative here is referring to the “old” lease agreement; you know, the one that has the provision for renewal that is not being honored – yet every other part of that lease went to maturity. The land traded for the 25 years of rides is now Indian Trust Land. Oh by the way: The United States did not sign off on the “old” lease, back then! I almost forgot! BIA, Office of the Interior, United States.

    So the Attorney General of the State never asks anything of the Secretary of the Interior?

    Here’s the irony: Ken Salazar, our current Secretary of the Interior used to be the head of the Western States association of attorneys general. He was one of them in Colorado. He was even a senator. And, they all know one another!

    It sounds like those island residents who were rumored to hope for this kind of intervention, can start from square one, now. Thanks! United States!
    Can you imagine this in the Supreme Court?

      • I must respectfully disagree that we should not consider a lawsuit. It does of course make the most sense to pursue every possibility short of litigation. But absent of an outcome that is acceptable to the majority of islanders, the courts must be considered as viable option, Not necessarily because it will ever come to that, but rather that the threat of a lawsuit is certainly the most powerful leverage that we have against Whatcom County. Taking on the Lummi Nation would probably be more difficult, (and hopefully not necessary) but perhaps not if a preliminary court finds that the nation waved its sovereign immunity when it signed the initial lease. This relates to a previous consent decree of a few years earlier. Some believe that the Lummis may have abrogated their renewal obligation without legal cause and only by going forward with a suit (or at least getting a frank legal opinion from top notch legal firm such as GTH) will we know what our hand looks like.

        This appears to be a really complex legal situation in which the outcome seems to be quite fluid and will be in the hands of specialists in tribal and perhaps maritime law. Much like if one had a life-threatening disease, you would want the best possible practitioners to handle your case and open be to every reasonable strategy and not preclude any possible tactic.

        • Thanks, Tony. I appreciate your comments. Let much elaborate on my opinion on suing anyone.
          (Note – Previously my comment included a word that I realized violated the Forum Rules. so I revised it to be more appropriate. My apologies for the lapse.) ,

          From what I’ve heard, suing either the County or Lummi Nation would

          (a) be hugely expensive, probably in the millions. Personally, I need to save my money for increased fares1

          (b) Very unlikely to be successful. In suing the Lummi Nation, the federal government would apt to get involved in their defense;

          (c) Sue the County? We’d be suing ourselves — paying our lawyers and also paying via taxes for County legal costs. We’d also further annoy and irritate other county residents and the County Council, with other ‘payback’ being a likely outcome

          (d) I think it’ll prove to be unnecessary.

          (e) Specifically suing over ‘lost property values’ I simply think is wrong. All of us who bought property here for homes or investments chose to do so. Property values rise and fall – No one, least of all taxpayers/the government (county, state, feds) should in “guarantee” any losses incurred by individuals, banks, real estate idevelopers, etc for investments they made that don’t pan out.

          *Considering* legal action is ok. Heaven knows ‘threatening to sue” is a popular and sometimes effective way to get leverage and negotiating wiggle-room in some situations. But just as often it can backfiire and turn into just one more very expensive and escalating blow-up.

          Since I don’t think that we’d have much of a chance anyway, I prefer finding less costly and hostile alternatives to resolving our problems.

  3. The reply from the attorney generals office does not suprize me a bit. The state Attorney Generals office has no jurisdiction on Indians or Resevations.
    The only way to deal with public right of ways, is through The Fedral Land Management Burau, and Burau of Indian Affairs.
    State Roads, Railroads, Utility Companies, even the Federal Highway Departments, go through this procedure to get right of ways through Resevations.
    But Whatcom County, 25 years ago did not go through this procedure, at one of the meetings here on the Island, our county executive stated he did not want to get involved with these agencies, is it any wonder we are in such a mess. The original lease has a space for the BIA to sign it was never signed, I wonder who was responsible to get this this signature.

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