Since this issue surfaced, the Lummi Island ferry issue has been a discouraging example of governmental failure.

The Lummi Nation and Whatcom County governments failed to cross their “T”s and dot their “I”s, rendering a functional contract supposedly invalid. Both allowed past disagreements to fester between them and stand in the way of long-term solutions in the public’s interest. Both confused ancillary issues, like traffic and parking, with the problem at hand. Simultaneously, the issue was artificially abstracted from its proper context in funding the entirety of essential public services. While the Lummi Nation lined up for $60 million in grants, loans and appropriations, the Lummi Island ferry was threatened with $24 million in additional costs, meant to be substantially borne by just over a thousand islanders.

The people most dramatically affected – Lummi Islanders - were structurally deprived of any participation whatsoever. Talks between the Tribe and County were held in secret, and other secret deals with the Port of Bellingham seemed to contribute to some very sketchy price fixing.

Worst, with the sole exception of Kelli Linville, every last elected or appointed official either representing the affected constituents or presiding over some relevant agency or authority went completely missing - silent. Correspondence to elected representatives, state and federal legislators on relevant committees, administrators of relevant agencies – even the President of the United States – went unanswered. Senator Cantwell went so far as to sponsor a $12 million casino traffic support bill without even throwing islanders a bone. Not a single, stock, “bugger off” form letter was received in response to numerous emails, faxes and phone calls. So much for Obama’s promise of a more responsive government.

(Author's note:  The previous paragraph refers to elected representatives other than County officials, who have obviously been engaged up to their eyebrows.)

For their part, the islanders never mustered the outrage necessary to underscore the problem as a public issue. Even when their cars thoroughly blockaded more than a mile of Gooseberry Point shoreline during the ferry drydock, they failed to see that cars were the main problem, lobbying for sustaining the same or better levels of service and for better mainland parking.

But by far the worst has been the total abdication of long-accepted principles of Publici Juris – the public good – and a degeneration of what should be public policy into downright un-neighborly behavior. This common and dangerous syndrome is the stated justification for federal policy asserting that federal intervention in comprehensive settlements is preferred to local jurisdictions attempting to negotiate solutions to historic disputes with tribes. This policy, too, has been steadfastly ignored.

That may be about to change.

Since the Magna Carta, ferries have been required to operate under a franchise from government – termed “the sovereign” in common law. This principal evolved not just to ensure government got a cut of any profits, but to protect passengers from usurious “evil tolls” and to protect ferry services from damaging competition, allowing them to collect the revenue needed to invest in meeting regulations for availability, schedule, safety, etc.

Except for uniform safety requirements, our federal government has for more than 200 years steadfastly refrained from regulating local ferries, recognizing them as uniquely local services and delegating the authority of franchise to the sovereignty of the states. States, in turn, often delegate that authority to counties. Under federal law, each state regulates ferries within their boundaries, but must also recognize the authority of other states where their ferries land.

In Washington state, a franchise is only required for ferries with a terminus within ten statute miles of a state ferry terminal. Lummi Island’s terminal is a bit over twelve miles away from the Orcas landing. Washington state law contemplates only ferries within counties and ferries between counties. It is silent on ferries travelling to a separate sovereign because the federal government reserves that authority.

From the beginning, the Lummi Island ferry has seemed stuck in its own unique statutory purgatory. Somehow, the operation could be threatened even though the Department of Interior approved a road to Hales Pass expressly for a ferry to Lummi Island, the Army Corps of Engineers permitted a ferry landing upon the disputed tidelands, and Congress enrolled and licensed the ferry to provide the service. It all appears a bureaucratic blunder that proper authorities should correct. But no one will even try.

The Tribe rejected a contract stipulated by federal consent decree and in force for 25 years. The principle of Equitable Estoppel, which should guarantee the contract’s validity after so many years of performance, could not be enforced because Whatcom County can’t afford to take the Tribe to court.  Not surprisingly, with the Tribe demanding more than ten times the contracted terms, negotiations came to an impasse. The Tribe again threatened an end to ferry service. Eventually the two sides agreed to mediate the issue and scheduled meetings for next month. It is not likely to help. Here’s why.

Force majeure. Times have changed. Since the recently rejected contract was signed, changes in federal code and policy have systematically conferred rights of self-governance to tribes, increasingly recognizing sovereignty as a precept of the original treaties.

Any ferry requires a franchise from the sovereign. A county has no authority to operate a ferry landing upon a separate sovereign without franchise, and has no authority to negotiate or accept a franchise with a sovereign nation. That right is strictly a federal matter.

The County’s hands are tied. The only possible source of resolution must come from the higher authorities responsible for the “major force” behind tribal sovereignty – the Tribe and our federal government.

Coincidentally, the closest thing the county has to a franchise is the approval of the Department of the Interior to construct a road to Hales Pass for the ferry to Lummi Island. This may imply a franchise, but it is not explicit. Franchises must be explicit. There is precedent in law for proscriptive franchise, based upon long usage, but the test is rather difficult and must similarly be determined by a higher authority, especially to the extent that the Lummi Nation is sovereign.

So there are two solutions. The first is to demand that the federal government clarify any franchise for the Gooseberry Point landing. They are the plenary authority for international treaties and trustee for the Tribe. The second is to abandon the Gooseberry Point terminal, offer it to the Tribe, and hope for the best.

This may not be as scary as it sounds.

According to the BIA transportation division: “As public roads, BIA roads and bridges serve as major access for tribal communities through which services are provided or delivered to tribal members and the general public,” and, ”The broad definition of BIA roads includes all transportation related facilities used in surface transportation (including ferries).”

Their roads are managed under 25 CFR Part 170 - Indian Reservation Roads Program, including:

“Subpart A - Policies, Applicability, and Definitions -
§ 170.2 (a) It is the policy of the Secretary of the Interior and the Secretary of Transportation (Secretaries) to do the following in relation to the IRR and BIA Road Maintenance Programs:

“(6) Implement policies, procedures, and practices in consultation with Indian tribes to ensure the letter, spirit, and goals of Federal transportation programs are fully implemented.

“IRR transportation facilities means public roads, bridges, drainage structures, culverts, ferry routes, marine terminals, transit facilities, boardwalks, pedestrian paths, trails, and their appurtenances, and other transportation facilities as designated by the tribe and the Secretary.

Ҥ 170.130(a) A tribe can use Federal-aid highway funds, including IRR Program funds, to study, design, construct, and operate toll highways, bridges, and tunnels, as well as ferry boats and ferry terminal facilities.

"To initiate construction of a (2) Ferry boat or ferry terminal, a tribe must meet and follow the requirements set forth in 23 U.S.C. 129(c).

“(b) A tribe can use IRR Program funds to fund 100 percent of the conversion or construction of a toll facility.”

This means the Tribe is eligible for funding to convert the landing to tribal ownership, and possibly substantially develop the facility as part of their public infrastructure. This could include substantial funding for planning and ancillary problems, like transportation management, parking or integration with a harbor. As provided in 25 CFR 170, the requirements of 23 USC 129(c) must be followed.

23 USC 129(c) (3) requires that “Such ferry boat or ferry terminal facility shall be publicly owned or operated or majority publicly owned if the Secretary determines with respect to a majority publicly owned ferry or ferry terminal facility that such ferry boat or ferry terminal facility provides substantial public benefits.” and (4) stipulates that “The operating authority and the amount of fares charged for passage on such ferry shall be under the control of the State or other public entity, and all revenues derived therefrom shall be applied to actual and necessary costs of operation, maintenance, and repair, debt service, negotiated management fees, and, in the case of a privately operated toll ferry, for a reasonable rate of return.”

Thus, lacking clarification of franchise from our sovereign, surrendering the landing to the Lummi Nation would enable the Tribe to secure funding for facility improvements and solving transportation problems. But it also means the ferry, if continued, would operate consistent with the general transportation policy framework of the Federal Highway Administration. This would guarantee management for public benefit, possibly including a “reasonable rate of return” for the tribe’s involvement. Arbitrary and injurious demands would end.

In any case, the County is hamstrung. It cannot legitimately negotiate this issue with the tribe. Under this interpretation, the County doesn’t even have the authority to set fares, as it just did in an embarrassing display of economic naivite. The best the County can do is offer to continue operation under the last agreed terms until a resolution between the Tribe and federal government is forthcoming.  It is up to our federal government and the Tribe to determine under whose sovereignty a franchise may be issued.

Acknowledging that the county’s hands are tied puts the onus upon the federal government and the Tribe to determine the fate of this ferry. Either a federal franchise will be clarified, or the Lummi will manage the ferry landing on their shore, or both. The Tribe, on its own, probably has no authority to summarily terminate the operation. Even if they have the authority, an action so inconsistent with federal transportation policy could put federal funding for too many of their other projects at risk.

By stepping out of this fray and admitting defeat, the County takes a risk on continued operation but dodges responsibility for usurious rents it cannot afford, and more advantageously positions the ferry to eventually be managed once again under longstanding principles of Publici Juris – for the public good.