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.
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.