Concerns with Legality of Lease

Bill Fox cc’d the Ferry Forum an mail that he sent to the County Council this week,  expressing his understanding and thoughts about the lease agreements and road right-of-way issues.

In this time of heightened anxiety for us all, the Ferry Forum remains committed to fostering open, transparent and respectful communications of all information and opinions related to ferry issues.  All viewpoints and comments are welcome, providing they are expressed in a manner consistent with the Forum Rules.

Email sent from Bill Fox:

To the County Executive and Council-

I am concerned that the proposed Lummi Island ferry lease is illegal and that its adoption will create a situation that may be extremely detrimental to the Council and to Whatcom County in general.  Please consider that the act of approving an illegal lease is, in itself, illegal and – since any citizen of Whatcom County can bring action under the Citizen Criminal Complaint Procedure – could subject Whatcom County’s elected officials to the risk of criminal prosecution and civil suit. Consider, too, the cost of your actions; this lease will cost a minimum of $23 million over its lifetime, conservatively estimated.

If the Council approves the proposed ferry lease, or, for that matter, any lease for land on which the County already enjoys a right of way, it will violate Article 1, Section 3 and Article 8, Section 7 of the WA Constitution, in addition to RCW 42.20.100 and  RCW 9A.80.010.

As Council Members, you are bound by section 9.50 of the Whatcom County Charter: An oath or affirmation to support the Constitutions of the United States and the State of Washington and the Charter and ordinances of Whatcom County and to perform faithfully, impartially, and honestly the duties of office, shall be made by each elected officer before entering upon the duties of office.

Additionally, Whatcom County Charter, Section 2.21, commends that you are empowered to “… make investigations into the affairs of the County and the conduct of any County department, office or agency and for this purpose may subpoena witnesses, administer oaths, take testimony and require the production of evidence, and may invoke the aid of any court of competent jurisdiction to carry out such powers, provided that any witness shall have the right to be represented by counsel.”  (Ord. 2005-075 Exh. A)

To avoid violating the State Constitution, I believe it is the Council’s sworn duty to independently investigate the findings of the prosecutor’s office and postpone any lease considerations until the matter of the right of way is fully resolved.  I urge you to convene a panel along the lines of a grand jury to fully inform yourselves and the public regarding the validity of the Bellingham to Lummi Island Right of Way. You must avail yourselves of the rights you now enjoy rather than accepting a lease that would surrender those rights needlessly and irrevocably. The citizens of Whatcom County deserve no less.

The State Auditor’s office is reportedly conducting inquiries into the situation at Gooseberry Point, with the potential to report their findings to the Attorney General’s office for clarification; perhaps you could avail yourselves of their assistance during your investigation.

The existing Lummi Island ferry right of way is not an abstract idea; it has existed for 90 years and has not been revoked or relinquished. The ROW is a fait accompli of settled law and regulation that will withstand legal and governmental scrutiny, to the benefit of the county. A great deal of time and money was wasted trying to pin down an old legal description showing a specific land survey boundary over the tidelands; such a description, if it exists anywhere, was never necessary and still isn’t. By any regulation, of any era, dating back to the treaty of 1855, Whatcom County has the elements necessary to obtain confirmation and validation of the existing ROW, namely the pre-existing permission of both the Secretary of the Interior and the Lummi tribe.

At the time of the “Order of Establishment for the Road from Bellingham to Lummi Island” in 1919, well-defined and orderly procedures for procuring a ROW on Indian land had already existed for 20 years.  The Tulalip Agency’s permission for that ROW was given in 1919, with the tribes’ consent and in full accord with the rules, and the tribe’s permission was resolutely reaffirmed by petition in 1928, even though the tribe’s permission was not necessary then and would possibly not be necessary even today, given careful scrutiny of the legal and regulatory structure.

The ferry has been running from Gooseberry Point to Lummi Island for 90 years. Unfortunately, sometime after 1948, the BIA presumably informed Whatcom County that it would have to lease land on which they already had a right of way.  This was an erroneous interpretation.  It was wrong then and it is still wrong, despite the fact that leases have existed in the interim. The leases were never legally necessary, and still aren’t.  Whatcom County has the right to run the ferry to Lummi Island from Gooseberry Point because the BIA and the tribe granted the right of way, free and unencumbered. Nothing in the entire history of Indian easement regulations prohibits a renewed, present-day ROW on the Lummi reservation, and its approval is solely dependent upon the Secretary of the Interior, since the Secretary and the tribe have already given their permission. The validity of the Gooseberry Point ferry ROW was and is fully supported by all current and historical agreements and regulations, going back to the treaty of 1855.  No change in any subsequent regulations changes the existence of the right of way.  Had it contested the BIA’s erroneous declaration of the need for a lease following the Act of Feb 5 1948, Whatcom County in 1962 would not have had to lease land on which they already enjoyed a legal right of way.

This ferry imbroglio is a classic case of federal government ineptitude bringing about unintended consequences, to the detriment of local parties. In their eagerness to fulfill their agency’s goal of enhancing tribal self-sufficiency, the BIA overstepped their mandate from Congress and promulgated regulations that were not supported by law. Unfortunately, there was no countervailing argument available from state and local parties at the time. The result is that the tribe was made to believe that it has rights which it doesn’t, and the county was made to believe that it doesn’t have rights which it does. Fortunately, the situation can still be remedied, by discussion if possible or by the courts if not.

Asserting the ROW will not impact the County’s ability to positively respond to the tribe’s request for assistance with the traffic impacts of the ferry.  Leases for parking and uplands ingress enhancement may also be warranted, but they must be negotiated separately from and with recognition of the right of way.

Respecfully,

Bill Fox
Lummi Island


Note- The opinions expressed are solely my own and don’t reflect the positions of any other organization. I will be glad to share anything I have learned with council, individually or collectively.  I  also welcome rebuttal and refutation of my conclusions, and am receptive to a logical demonstration that the ROW does not exist, and that therefore a lease is in order. My conclusions about the ROW are drawn primarily from research into the following pieces of legislation, regulation, or enactment, all in the public record and all available to you upon request:

The Point Stevens Treaty of 1855
The Act of March 3 1901
The Indian Reorganization Act of June 18, 1934
The Act of Feb 5th, 1948
The Indian Land Consolidation Act of 1983
The Indian Land Consolidation Act Amendments of 2000
The Order of Establishment of the Road from Bellingham to Lummi Island, 1919
The Tribal Petition and Tulalip Agency request of March 17th 1928

·       WASHINGTON STATE CONSTITUTION, Article 1, Section 3.  Personal Rights.  No person shall be deprived of life, liberty, or property, without due process of law.
·        WASHINGTON STATE CONSTITUTION, Article 1, Section 7.   CREDIT NOT TO BE LOANED.  No county, city, town or other municipal corporation shall hereafter give any money, or property, or loan its money, or credit to or in aid of any individual, association, company or corporation, except for the necessary support of the poor and infirm, or become directly or indirectly the owner of any stock in or bonds of any association, company or corporation.
·       RCW 42.20.100  Whenever any duty is enjoined by law upon any public officer or other person holding any public trust or employment, their wilful neglect to perform such duty, except where otherwise specially provided for, shall be a misdemeanor.
·       RCW9A.80.010 (1) A public servant is guilty of official misconduct if, with intent to obtain a benefit or to deprive another person of a lawful right or privilege:
(a) He intentionally commits an unauthorized act under color of law; or
(b) He intentionally refrains from performing a duty imposed upon him by law.

13 thoughts on “Concerns with Legality of Lease

  1. Thank you Bill for all the work you have done on researching the historical and current issues pertaining to the Lummi Island ferry lease and right of ways. You have brought up some interesting points in your letter. Nonetheless, I believe it is crucial at this time that we all stand together in support of signing this current lease. At a later date, one can take up this and other arguments? It is better if, we can make these decisions and look at these issues when we have the legal right to use Gooseberry Pt. to get home. We are now way to tired and vulnerable to risk losing a bird in the hand. Secure our lifeline first and then bring up the argument for changing the status quo. Maybe additional language within the adoption of this lease could keep options open to address legalities in the future.
    The fact is there is no safe option to go to Fairhaven and there is no plan “B”.
    Please, It is detrimental to us all that we support the signing of this lease to assure our secure passage to the mainland.
    Thank you, Wanda Cucinotta

    • Wanda, you and a fair number of others apparently believe that the Lummis have the power to close off our lifeline to the mainland and that they’re seriously threatening to do so. If that were the case, it would constitute extortion, plain and simple. It’s government’s job to protect citizens from extortion, not to acquiesce on their behalf.

      The Lummis can’t unilaterally shut down the ferry. If they tried the Federal Government would have to intervene. Worse things could happen. Our federal representatives have been cowardly bystanders throughout this whole process.

      There IS a plan B: the County claims a right-of-way, pays the Lummis nothing, and waits for the LIBC to sue them. It wouldn’t cost 23 million dollars. And it’s likely the Islanders would take up a collection for legal assistance to the County. There’s even a chance, admittedly very small, that the Lummis wouldn’t sue. They might just say, “Dang, the County called our bluff. We didn’t thing they had it in ’em.”

      Frankly, I don’t see how a conscientious Council Member could approve paying three times market value for a bit of tideland that might be covered by a right-of-way, pledging a third of the County’s road fund for a strip of land that isn’t even needed to access the ferry, and giving Whatcom County the shameful distinction of being the only place in the United States of America where one group of citizens has to pay another group of citizens for the right to go home. The whole county, not just we Islanders, out to be outraged.

      Michael Schneider

      • I stand corrected. My claim that more than a third of the County Road Fund was pledged to the LIBC was based on an article in the Herald in which Frank Abart was quoted complaining that the ferry leases were going to be a drain on the road fund. As the article was written, one had no way of knowing that that particular fund, as Ken Mann has just informed me, is renewed every year to the tune of $25 million.
        So, the payments to the LIBC for the uplands lease would be 8% of the fund the first year, 8% in the sixth year and 12+% in the fifteenth year, but less than 1% over the thirty-five year term of the lease agreement.

        Michael Schneider

  2. Bill, you may be right, and I am impressed with the research you have done, but the lawyers I have talked to say the same thing: when there is ambiguity, the federal courts decide in favor of Native Americans.
    But whether we win or lose, the basic questions for me are these:

    1. Who is going to pay the millions it will cost to litigate? Whatcom County? We know that will not happen.
    When I asked a Councilmember recently about the County’s willingness to sue if the lease were voted down, she suggested that maybe there were lawyers here on the island who could do it.
    What, in their spare time? For the next 10 years or so? Without compensation? And, without the specialization that this kind of case would require? Ah…….

    2. And then there is the question of what we going to do in the meantime?
    The disconcerting truth is there really is NO Plan B.

    3. And finally, what if we lose?

    We can get out of the lease at any time by simply missing a payment. I would hope that we can develop alternatives over time that will serve us better, as we see fit, but in the meantime— we have something that will keep us going. To me, that’s the bottom line.

  3. Bill, I think you are on the right track. Whatcom county doesn’t even know their legal position in these negotiations and are willing to pay millions of dollars to NOT find out by adopting this agreement? I first would like to know more of the facts. If that means going down a litigation path for awhile, why not? The more the county knows the better the county can negotiate a sound bargaining position. According to the LIBC the county has been using the Gooseberry Point dock for 27 years without a lease. What’s a few more years of trying to figure out what is a FAIR price to lease some tribal tidelands. To say the County will lose in the courts may be fear based (legal opinion) not fact based. Adopting this agreement already is a major financial and political loss to the people of Whatcom County and that is why I oppose it.

  4. The Lease agreement is illegal, no wishing it was so, no ifs, no buts or other circumstances. By that fact alone it cannot be adopted or put into effect, end of discussion. If the County Officials wish to write one that is legal, that is another matter, this one’s not and cannot be adopted. If that is attempted, the Courts will become involved, and then who pays the bill? Quit living in fear and thinking there is no other option, there are many which will unfold as the time comes. Just imagine the political fallout from this situation when the “Lease” is rejected, no one is going to stop the Ferry running to Gooseberry. The fact is the costs of this lease, if it was to be adopted, will likely bankrupt the Rural County. Those who don’t live here certainly will not want to pay for it, who does, us???, can you afford that???

    The unintended consequences are breathtaking, this thing is a miserable piece of work.

    Bill is spot on

    Jim

  5. Bill Fox

    Thank you for sharing your research and common sense aproach. Have you ever thought about running for office ? The Islanders and Whatcom County would be well served with you representing people with a different point of view.

    Recent academic articles suggest that soverign tribes who are becoming embattled with local goverments over jurisdictional issues are beginning to lose popular and political support.

    In this case, most people easily recognize the tribes egrecious and aggresive demands against the Islanders and Whatcom County tax payers. However, once the immediate issue of uninterrupted ferry service is resolved, perhaps the line of least resistance is for a suit to be filed against Whatcom County for past and present negligence ?

    When you contrast Washington State’s annoucement of a 2.5% increase for ferry users, against the recent increased costs associated the older but efficient Whatcom Chief and Crew, it is very troublesome. I find it interesting that some Washington State residents enjoy a much higher level of ferry service at a lower relative cost and yet other Washigton State Residents where the Ferry systems are governed locally are treated so disparingly different.

  6. I know many of you in the community are hoping for a resolution to the upset of the previous two years regarding the accessibility to our Island by Ferry. To many the proposed Lease between Whatcom County and the Lummi Tribe seems to be a solution to this problem, albeit an expensive one. The fact is this is not so, it will only be the beginning of further problems.

    First, let us look at the specific areas of the “Lease” that concern us.

    1. The actual used area on Tribal Tidelands for the dock footprint, starting at the Government Meander Line to Low, Low water is about 160 feet long by 30 feet wide, or about 4800 square feet. The starting “lease” figure of $200,000 a year is an astronomical amount for such a small amount of space. The planned inflation adjustments will further escalate this cost to unknown amounts. If “Normal” inflation (consistent with the last 30 years) is applied this cost will be about $680, 000 a year at the end of 35 years, just for the tideland’s lease, not including the Upland lease..
    2. Once the County signs the lease, the only way to get out of the lease is to leave the Gooseberry Point Landing. Regardless of any other later developments that may come along, the County will still have to pay the lease fee as long as the Ferry continues to dock at Gooseberry Point.
    3. The proposed area of the Upland lease is almost all owned by the County even though it is about to be leased from the Lummi Tribe. . The only part that is not owned by the County is an area of 75 feet X 15 feet. Everything on the road side of the Jersey Barriers, where the cars travel, is owned by the County. The 15 foot strip is on the other side and the only thing this strip does is to provide a place for the Emergency Power House for the dock. Perhaps the Power House could be relocated, doing away with the need for any Upland lease. Therefore the citizens of the Rural County, which includes us, are paying about 7.5 million dollars, adjusted for inflation, for the use or about 1100 square feet of property, again an astronomical amount for a small piece of land. Identification of the 1100 Sq. Ft. has been done via exhaustive research of land transfers, surveys and assessment records.
    4. The effects of 2 and 3 above will mean that the County will have spent all their money for this lease and will have none left to buy a replacement Ferry. Further as the Upland Lease payments are “Front Loaded” and have to be paid in lump sums, this would again preclude the County from either leaving during the “Lease” tenure or buying a replacement boat, they will not have the funds. While the County is saying that “this is about what they would normally be paying to maintain Reservation Roads’ this is essentially all “new money” for new projects as the usual maintenance of the roads will have to continue resulting in likely twice the amount spent on the Reservation Roads as usual. The overall effect is that once the “Lease” is signed, we are almost assuredly stuck at Gooseberry Point, with a deteriorating Ferry, for 35 years. Sooner or later, likely sooner, the Whatcom Chief will be condemned by the Coast Guard, not withstanding its inability to keep up with future traffic. This also completely kills any possibility or reasonable Ferry Rates as the system will carry a huge fiscal load, before the propeller makes a single rotation. No amount of cost containment can offset this.
    5. As for the free Ferry Passage to Lummi Tribal Vehicles and Passengers on “Tribal Business, there is no definition of what this is. Does it mean passage for Fisherman trying to get closer to the Fishing Grounds with their trailers with boats, of if the Lummi’s establish a Conference Center at Legoe Bay, does this mean all attendees ride free? How about if the Tribe decides to make a protest over something and directs its Employees to overwhelm the Ferry with Cars, is this also Tribal Business?
    6. Paragraph XIII of the Lease relinquishes the Traditional Right Of Way, as established in 1919 onward through the 1920s, and for ever prohibits the County from pursuing it. Again this locks us into an unsustainable situation and extinguishes the Citizen’s rights without their consent.

    Legal Issues:

    In 1919 through about 1928 the Road to Lummi and Orcas Islands was approved by Tulalip Indian Agency, the predecessors to the BIA as petitioned for and built by the County. Although the site of the Dock was not specified, it was already in place and operating, the name of the Road, and approval at that time constitutes permission for a Ferry across tidelands.

    Further, in 1928, when the County wanted to move the old Dock to about a mile to the southeast, (named as Portage, at that time) a petition, enabled by the Tulalip Indian Agency, and signed by a majority of Tribal Elders, requested the Dock be keep in it’s approximate location . The outcome was an approval of the plans for a new dock and Federal money for the County Road Department, which was used to construct the new dock. The new Dock, which is still at this location, within 100 feet from the old one, satisfied all parties. This 1928 approval, standing alone, without the previous Right Of Way is approval for the ROW across the tidelands. As the Ferry has continuously operated since then, the ROW is as valid today as it was in 1928, we do not need a lease to cross the tidelands.

    When asked about the possibility of sustaining the previous ROW, the Civil Prosecutor the County assigned to the negotiations has repeatedly said “we are not going there”. This is not good enough, this is a matter affecting the well being of approximately 1000 people. If they think there is a cogent reason the ROW is not valid we ought to be apprised of the fact and have input to the process if there is reason to think otherwise. In fact the previous actions of this office have shown an amazing lack of competence. Why the Ferry ROWS were included in a settlement of a completely unrelated lawsuit, thereby putting the Island population, and only the Island population at risk, is astonishing. Another deficiency is the lack of Due Diligence the office demonstrated in not getting the last although unneeded lease signed by the BIA. The only answer to this question is expediency, or “get it out of here asap and let the future handle the consequences”. The future is now and the effects have multiplied to the negative. Also baffling was when the County Executive, his Assistant and the Civil Prosecutor immediately surrendered to the Tribes abrogation of the last lease without any research or even putting up a defense.

    Illegalities:

    Pursuant to State Law, specifically Article 1, Section 7, the Upland Lease as explained in #3 above is illegal, Simply it is illegal to lease your own property and pay another party for doing so. This is the identical language as the previous lease and this was brought to the County’s attention as being illegal by the Sate Auditor who shortly will be reviewing the current document.

    According to the same State Law, it is also illegal to pay more than “Market Rates” for a lease. Both the lease costs of the above subsections of the document are multiples of Market Rates.

    The lease as presented is illegal.

    Please do not support the approval of this document. Not only is it very poorly written, rife with negative effects of unintended consequences, too expensive, and not needed, it is also illegal.

    If the lease is not signed, the Ferry will continue to operate to Gooseberry Point, the Tribe will have to go to Court to stop and reasonable doubt to the validity of their claims will allow for continuance until the matter is legally resolved, which will take years. This will finally get the full attention of the Governmental Agencies, and Elected Officials, Federal , State and local, who have been trying to dodge the problem. Then and only them will we be able to get an appropriate conclusion to this matter.

    Please remember, the above ROW is not the County’s ROW, it is the Public’s ROW, a legal concept which has, in recent past, been woefully abused.

    Jim Dickinson

  7. I have long maintained that a legal solution is difficult and uncertain at best, and prohibitively expensive. A political solution is more likely. I earlier attempted to demonstrate one such approach with the draft petition to Congress from friends and families of Lummi Island. An example of another approach is still available at http://www.skookum.us. These only work if undertaken with true determination and the conviction that not giving up is the only way to win.

    Another post on this forum describes today’s circumstance as “the end game”. I disagree. The lease as written portends to be the source of interminable future problems and should be viewed as the starting point for the people’s campaign to protect and preserve the safety and security of their families and homes on Lummi Island.

  8. Despite what some may feel, this is not the end of the road whether the lease is adopted or rejected. There is always room to move.

    If adopted, a campaign based on the inequities and inaccuracies can be reasonably waged. The make-up of our current Congress and the ubiquitous environment of budgetary constraints create a climate conducive to hearing and responding to such complaints. Even if our congressional delegation seems currently insensitive to the plight of Lummi Islanders, there are plenty of districts throughout the nation where representatives will be horrified at the precedents being set here, and hence motivated to act before they find themselves facing similar challenges.

    If the lease is rejected, we will inevitably find Whatcom County Sheriffs discussing the issue with Federal Marshals on the dock. This would signal the commencement of the federally mediated comprehensive settlement negotiations that US policy recommmends. Our congressional delegation and other agencies have to date held off and encouraged us to attempt to work out a local solution. Failing to achieve one leaves no choice but to implement the policies of precedent. Implementing the policies would entail dragging all prior approvals, many of which have been ignored, into the fray. The fray would undoubtedly be far more public than current negotiations have been. This advantages all parties in the long run, because many other policies of equitable public service provision will come into play and the Lummi’s shortsighted exploitation of the situation will not be allowed to fester and harm them through deteriorated social, political and economic relations long into the future.

    So stick to the points that matter to you. Don’t give up because you just want a solution – any solution. After there is a decision, whatever the outcome, there will still be time to find better solutions. Lots of time. The Lummi have been at it here for 12,000 years. Hearten up and stick with it!

  9. 12 September 2011
    Norman Douglas Lilyroth
    1182 Beach Ave
    Lummi Island, WA 98262
    360-758-7117
    dlilyroth@juno.com

    Subject: Lummi Island Ferry Tidelands Lease

    Whatcom County Council and Executive

    Ladies and Gentlemen:

    I oppose approval of the negotiated lease for the Lummi Island Ferry dock. My position is best expressed in the email sent to you from Bill Fox early this month, subject: “Concerns with Legality of Lease.” I also agree with the concerns of “Chandler” in his 8 September response to the email from Pete Kremen to Nancy Ging of 2 September, subject: “Where Do We Park.”

    I am a full time resident of Lummi Island. I and my wife are dependent on the service provided by the Lummi Island Ferry. Reductions in service and increased fares directly impact us financially. We require the commute for employment and domestic logistics. Lack of ferry service has the potential to destroy us financially.

    We are members of the PLIC. We follow the arguments presented by the PLIC legal council and the various blogs such as the “Ferry Forum” and the Bellingham Herald. We are aware of the PLIC position in favor of lease approval.

    Frankly, I believe that Whatcom County enjoys a legal right of way from Bellingham to Lummi Island through Gooseberry Point. I believe a tidelands lease is legally neither required or appropriate. I believe it is your duty to assert these rights on the behalf of your constituency.

    Thank you,

    Norman Douglas Lilyroth

  10. Yes, nicely put, Tip. Reminds me of the old saying: “Everything will be okay in the end, if it’s not okay, it’s not the end”. The Gooseberry Pt. ferry dock lease agreement for or against is a far, far way from the end. Stay tuned Whatcom County.

  11. Bill,

    At least one branch of government (the least dangerous) explained it best on September 1, 2011

    The Washington State Supreme Court, in State v. Ericksen

    “We urge the Lummi Nation and Whatcom County to work together to solve the problems made evident by this case; but if they can or will notdo so, we will not manipulate the law to achieve a desirable policy result.”

    Written to you local Bar Association, 311 Grand Illusion Avenue, and 2616 Chief Kiwina Road, with the Chief Justice’s Stamp of Approval.

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