POSTED: Sunday, Nov. 29, 2009

County concedes lease debate, looks for short-term Lummi Island ferry options

Whatcom County officials remain outwardly optimistic about their chances of negotiating a five-year extension of the Lummi Island ferry dock lease with Lummi Nation, but tribal officials say they want the county to commit to sidewalks and other traffic safety improvements in the area before they make a deal.

"I'm hopeful that we could even do something longer than five years, but five years would be the minimum," said Dewey Desler, the county's deputy administrator.

Tribal officials made it clear that the proposed five-year extension is a maximum, and they have no intention of letting the county continue to operate the Gooseberry Point ferry dock beyond that.

Richard Jefferson, Lummi Nation's planning and public works director, says the tribe sees the ferry dock as a traffic hazard and a hindrance to tribal fishing operations that provides no benefit to the tribe. Ferry operations also interfere with tribal plans to build a marina in the area eventually.

Jefferson had no estimate of how much the county might need to spend to address the tribe's safety concerns, but he said the cost would be less than the cost of building a new ferry dock.

Also part of the negotiations are possible payments to the tribe and free use of the ferry for tribe members headed toward fishing areas or places used for religious practices such as spirit quests.

Tribal officials also make it clear that a five-year extension of the current lease on the Gooseberry Point site that expires Feb. 14, 2010, is likely to be the last. Whatcom County Public Works Director Frank Abart and other county officials acknowledge that the county will be hard-pressed to come up with a new ferry terminal at a new location in five years.

That has county officials contemplating difficult interim solutions, such as providing ferry service to the island from the Port of Bellingham's cruise terminal in Fairhaven until a better site can be found and a new terminal built. But that option would mean big cuts in service, because the run would take 50 minutes instead of five or 10, and bad weather might make runs impossible many times a year. The Alaska ferry also would preempt the county's use of the terminal every Friday.

It's a predicament that wasn't supposed to happen. When the current lease agreement between the county and Lummi Nation was hammered out in 1988, it contained a 25-year lease renewal option that seemed to ensure the ferry dock's long-term future.

But while the 1988 document was duly signed by tribal and county officials, it never got the signature of the regional superintendent of the Bureau of Indian Affairs headquartered in Portland, Ore. The tribe contends that this omitted signature makes the lease and its 25-year renewal option unenforceable.

That contention astonishes David Cottingham, the former deputy prosecuting attorney who was one of the original signers of the lease in 1988 as the county's legal adviser in the matter. As he sees it, the tribe and the county have been abiding by the terms of that lease for many years, and that validates the county's option to renew the lease. Among other things, the county transferred a small nearby parcel of Gooseberry Point real estate to the tribe as part of that lease.

"Under the law, accepting benefits of an agreement makes it impossible to deny that there was an agreement," Cottingham said. "Nobody talked at all about whether the BIA had to be involved in it."

Shirley Van Zanten, who signed the lease as county executive, said she doesn't remember hearing anyone raise the issue of BIA approval at the time.

Why didn't the BIA sign the lease? Was it an oversight, or did the federal agency reject the lease deal for some reason?

Those questions may be difficult to answer. Bill Black, who was BIA superintendent at the time, died in 2004. Greg Argel, a BIA realty officer, said there is nothing in his agency's files to indicate what happened. If the BIA had rejected the lease, Argel said he would have expected to see documentation of that in the files, but he could not be sure.

Jewell James, a former council member, said the BIA may have rejected the lease because of the 25-year option, which may have violated the agency's policies for non-Indian leases of Indian trust land. While the upland real estate is not trust land, the lease also covers tidelands, which are held in trust for the tribe under BIA oversight.

According to the county's records on the matter, the county has been aware of the potential legal problem since at least Oct. 25, 2006, when Jefferson referred to it in an e-mail to the county. But his e-mail also indicated that he had raised the BIA signature problem with county officials before that. Tribal officials say they raised the issue with the county 10 years ago.

But as recently as April 1, 2008, county officials still hoped that they could exercise their 25-year option.

On that date, County Executive Pete Kremen sent Lummi Nation Chairman Henry Cagey a letter notifying him of the county's intent to renew the lease for 25 years.

"We understand that there has been some discussion between staff in which some have questioned the validity of the lease agreement into which we entered in May 1988," Kremen's letter said. "We have operated in good faith in regard to that agreement, delivering the consideration upon which the parties agreed, and Lummi Nation has also delivered to us what it promised in executing the agreement."

But now, county officials say they are conceding the tribe's interpretation of the law.

"Our own attorneys have very clearly advised us that without that signature on there, we would not be successful in trying to enforce this in another venue," Desler said. "At this point we're not trying to aggravate a delicate situation. There's some negotiations going on."

Tribal chairman Cagey said a five-year accommodation is possible, despite the tribe's many misgivings.

"It is a safety issue for our community," Cagey said. "The county's got to do the right thing."