U.S. Rep. Rick Larsen Responds to Tip Johnson

Tip Johnson has forwarded the following letter to us from U.S. Representative Rick Larsen, as well as Tip’s reply….

On 3/2/11 1:21 PM, “rick.larsen@mail.house.gov” <rick.larsen@mail.house.gov> wrote:

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

 

On 3/2/11 3:04 PM, “Tip Johnson” <tip@skookum.us> wrote:

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 are generally considered to be nation to nation treaties, which puts the 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. It is silent on counties authority to negotiate with sovereign nations. County’s generally lack authority to negotiate international agreements. I doubt Whatcom County has the authority to negotiate with the tribe on this important transportation link.

Second, as a matter of record, the 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 calculated. President Grant extended the reservation by executive order, using language later interpreted by the courts to mean that the reservation boundary was the low water mark. Significantly, prior to those rulings, the BIA participated in funding the original landing. Today they have a very different attitude, recently stating that they would not 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 tideland interests are subordinate to federal interests, the right of the tribe to charge rent is questionable at best. Riparian rights on navigable waters are always subject to the public’s interest and the couts have repeatedly ruled that compensation is not necessary 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. It only assures 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 retained jurisdiction in the matter of the consent decree, so the possibility of revisiting the lease should be available. However, it is my belief that this would be better used as an interim solution pending affirmation of the ROW. That is the only permanent solution

To put things into an 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. Not including 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 $6,650 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 serve as a rationale for affirming and attesting an adequate ROW.

Many have consider the Lummi position greedy. It is more properly viewed as an exercise in sovereignty. There are key issues and potential precedents worthy of very careful review. The tribe asserts that 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.

In closing, 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 it is US policy that 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. This is exactly what is needed. It is the best way to get the tribe the best deal, to keep everything in context and address the ancillary concerns that are now being unfairly heaped upon the rate base of the ferry. I am afraid that the tribe’s current course may leave them poorly positioned, politically, to receive assistance from programs and grants from which they might benefit. 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 support will much extend beyond the reservation if the tribe continues to follow their current strategy.

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

Tip Johnson
2719 Donovan Avenue
Bellingham, WA 98225

Tel 360-255-1200
Fax 206-350-3664
tip@skookum.us

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