Lummi Island - The Price of Admission

Thu, Aug 26, 2010, 3:01 pm  //  Tip Johnson

No matter what happens, the price of admission to Lummi Island is going up. That's bad news for island businesses who rely on tourist traffic during summer to offset the long, dreary months of winter rains. It's bad news for many residents who, despite perceptions of island affluence, are struggling in these hard economic times.

Lummi Island has a grocery, a number of farms, a reefnet fishery, a couple restaurants, an inn, a marine trade facility and several artist studios that periodically organize studio tours for visitors. Already, some studios have noticed that business is off significantly. The grocery depends on visitors and has already had to struggle through the early, emergency, peak-season ferry dry dock.

Last Tuesday night, the Whatcom County Council met with Lummi Islanders to discuss negotiations with the Lummi Nation. The Nation asserts they will close the ferry in October if the County doesn't meet their final demands by September. The demands are extreme, totaling just under $24 million over the proposed 35 year term - about $57,000 per month. In February of this year, the Tribe unilaterally abrogated a lease that had been in effect for 25 years. Lease payments under the renewal clause would have been about $5,500 per month. The adjacent dock pays only $150 per month.

A quorum of County Council members accompanied by the Public Works Director and County Executive came prepared with a presentation of ferry costs and options. Options are few: Increased fares and reduced levels of service for the existing vessel and route. Other options for alternative landings and vessels, as in Fairhaven, have been set aside for now, the associated costs even more astronomical.

Public Works Director, Frank Abart, shared a table of costs showing the growth of expenses and declining revenues from fund interest and state deficit reimbursements. Only increased fare revenue has helped offset expenses. The options of increased fares or reduced levels of service create a conundrum. Raising fares may exceed the elasticity of demand. Fewer visitors may choose to go over. More regulars may opt to walk on, increasing mainland parking impacts and reducing fare revenues. Lower levels of service may trim costs, but fewer passengers can't offset those costs without radical fare increases. Abart stressed that everything is under review, including a special taxing district to raise revenue from island properties for the ferry.

Costs have risen due to emergency repairs to the dock and ferry, higher fuel and labor prices, and the increased administrative burden of negotiating with the Lummi Nation. Under the Lummi Nation's demands, costs will rise precipitously. Since, by ordinance, fares are expected to recover 55% of the operating costs, islanders are faced with only one choice: Pay more.

This comes at a bad time. Many people have lost jobs in this recession. Retired residents have seen no cost of living increases in their Social Security and none are expected. Retirement investments have withered in the market collapse. Homes have already lost value, wiping out many homeowners' equity. It threatens to get worse.

The pinch of the Lummi Nation's demands creates a stunning irony. While their demands effectively restrain trade and commerce to the island, the Department of Commerce - under the direction of former Washington State Governor Gary Locke - has given the Tribe a $1.3 million economic development grant for a Lummi Gateway commercial development at Slater Road and Interstate 5. While the ferry wallows in a growing sea of red ink and flounders on the shore of the Tribe's tideland claim, Senator Maria Cantwell requests a $16 million appropriation to improve Slater Road between the Gateway project and the Nation's Silver Reef Casino. Meanwhile, not one elected federal representative will step up to publicly address the immanent threat to their constituents in the Lummi Island community. They won't even reply to correspondence on the issue.

Island residents packed the Beach School gymnasium to hear a rundown of the process to date and to share their priorities with County officials. County Executive Pete Kremen and Council President Sam Crawford outlined the negotiations, expressing optimism that they may still continue despite the Lummi Indian Business Council's impending deadline and their rejection of the County's counter offer. Kremen affirmed his commitment to continued negotiation even as he asks the Bureau of Indian Affairs to assist with mediation. The Council and administration agreed that Gooseberry Point is still the best option and that their now rejected counter offer was likely an insurmountable practical ceiling. Given the strident posture of LIBC Chairman Henry Cagey, this leaves the ferry likely to end in October, absent federal intervention of some kind.

Islanders had plenty to say. Of course, many still want the same level of service, even improved facilities, as affordably as possible. Many are concerned that the Tribe's ultimatum does not include a renewal provision, leaving the problem of future costs uncertain. Others noted that the mainland parking lease is set to expire, possibly adding further additional costs. Some pondered how their children might get to school and how they will get between home and work. There were comments about possible ferry districts, a ferry commission or advisory board and the general need for better information exchange, including possibly making all the historical ferry documents available online. One speaker noted that it seemed like there were a lot of other issues involved and wondered if it wouldn't be better to deal with the ferry independently.

The Fire Chief related a story about a recent fire that might have run out of control were it not for the timely arrival by ferry of two additional engines from a neighboring fire district. A mom with pregnancy complications cried before the Council, expressing her anxiety about potential reductions in service that could limit her access to medical care.

A common thread was discomfort with the County's counter offer of three times the value of the disputed property. One citizen turned the tables, sharing his opinion that he would end up in court and in trouble if he ever tried renting property to a Lummi at three times what he asked from others. In fact, The Lummi Nation's final demand is 380 times what they charge the dock next door. Many thought the County should be taking a more aggressive approach.

After listening patiently for two hours, the Council had a chance to weigh in. Ken Mann seemed stuck on wanting to know how much more people were willing to pay - $2, $5? "That's the kind of information I want to hear." Carl Weimer outlined his commitment to staying at Gooseberry Point, his support of a federal mediator and a ferry advisory board, and his interest in creative solutions to making sure the boat is full so fares will help offset costs.  Bill Knutsen was encouraged to hear folks say, "Don't roll over," and expressed frustration as a new council member with what he perceived as a "lack of integrity" in negotiations.  He offered that anyone willing to pay him three times the value for his property or business could sign the papers after the meeting.  Barbara Brenner said she didn't believe Fairhaven was a viable option, wasn't sure the abrogated lease was actually invalid, that she felt the ferry was a public road and wouldn't be abandoned by the feds. She wants to keep negotiating with the Tribe, "...but it needs to be reasonable." Sam Crawford said he felt encouraged by the Lummi Nation's willingness to continue negotiating even after their recent impasse. He also hopes federal mediation may help, supports a taxing district, especially for funding a new vessel, but cautioned resident that he could not support increased subsidy for the ferry from county taxpayers.

Pete Kremen expressed his belief that it is ultimately a federal issue, but underscored his commitment to continued negotiation with the Tribe until federal mediation is forthcoming or talks break down completely. Several Council members wondered how much risk a more aggressive approach would entail, citing their aversion to litigation as a principal factor in their continued interest in negotiation.

The next day, Kremen and County Attorney Dan Gibson were interviewed on radio. When asked why a lease was being sought when previous leases had proven problematic, and why they weren't instead pursuing perfection of the already approved right-of-way, Gibson replied that the US Code prevents the Secretary of the Interior from granting rights-of-way over tribal lands without the consent of tribal authorities. He failed to mention that the same code reserves for Congress the power to grant rights-of-way over any reservation lands, and that they do so routinely to accommodate public necessities like electrical transmission lines, pipelines and public roads.

For some time I have tried to convince County officials and island residents alike that this battle needs to be political, not legal, and that it should be a federal matter, not one for local jurisdictions to suffer. In a legal battle Lummi island and Whatcom County risk getting crushed by the court with the Lummi Nation under the defense of the U.S. Government as their trustee. In a political battle, the parties lay out their best arguments and decision makers, not the courts, find the best solution according to the available information and facts. Legally, the Tribe can stand on prior court decisions and argue interminably at great expense to all but them. Politically, they don't have a leg to stand on. Politically the Tribe is at great risk, because their assertions essentially countermand many previous government approvals and compromise several federal policies and laws without any specific authority. This sets dangerous precedents that will not be brooked by policy makers.

The Tribe claims they can interrupt a right-of-way approved by the federal government in 1920, that the U.S. Army Corps of Engineers' authority over the administration of navigational facilities and navigable waters is subservient to their claims, that they can interfere with U.S. vessels enrolled and licensed under the authority of Congress, that they can usurp the commerce clause of the Constitution to restrain trade, ignore federal laws to obstruct navigable capacity, and can charge inequitable, discriminatory and injurious tolls unrelated to any improvements. That's really not going to stand up to an impartial review.

The unavoidable conclusion is that a lease is simply not going to cut it. A lease leaves the dispute unresolved and guarantees a future period of endless wrangling. Leases haven't worked, rather they have become the requisite antecedent for more trouble and hostility. Instead, every effort should be focused on fixing any deficiency in the already approved right-of-way. Only then can we end the longstanding dispute and get busy fixing the ferry's many associated problems.

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