The Lummi Blockade

Sat, Jan 23, 2010, 6:15 pm  //  Tip Johnson

An early Lummi Island Ferry ran on a cable stretched across Hales Passage.

The Lummi Nation appears prepared to implement a threatened blockade of Lummi Island commencing February 14th.  Discussions between the Nation and the County have been going on in secret for some time, but details are sparse because, well...they are secret!  This secrecy may be the single biggest problem in the whole thorny issue.

However, in a traffic study and a transportation plan, ferry traffic has been identified as creating dangerous conditions on Haxton Way and unacceptable congestion at Gooseberry Point, where vehicles queue up.

The involvement of island traffic with accidents and injuries on Haxton Way has been the exception not the rule, but Haxton Way is irrefutably unsafe by any standard.  Congestion from the ferry vehicle queue is also a mess, sometimes balling up access to everything at the Point for many blocks and hours, especially during peak summer months when visitors to the island are aplenty.  To me, it sounds like cars are the problem, not the ferry.

Additionally, the Nation has long-term plans to build a marina at Gooseberry Point and maintains the ferry may be incompatible.  In earlier statements, they cited potential damage to fisheries from the ferry's wake and possible pollution.  There could be some truth to that, but wakes from Lummi fishing boats and waste from sloppy fueling at their gas dock can easily be observed to be much more significant than anything the ferry produces.  In any case, a marina would provide better protection to the ferry and better service to the public.

Earlier this year, the Nation announced the Gooseberry Point landing would no longer be available to the ferry, that the Nation will not honor a previously agreed extension of the ferry contract because the executed copy of the contract lacks an approving signature from the Bureau of Indian Affairs.  Since then, County and Nation officials have tried to hammer out a compromise, but so far, according to Frank Abart, Whatcom County Director of Public Works, the parties remain far apart, with proposed terms "...that would be very difficult for the County to meet even in good times."  Official statements and discussions with other county officials have indicated current demands could cost the County between $10 - 15 million for an extension lasting only five years. Relocating the landing is estimated to cost between $36 - 137 million over a twenty year term.

In a press release dated 1/21/2010, Abart announced the Lummi Island ferry would undertake a trial run to Fairhaven to assess the feasibility of landing at the Port of Bellingham's Alaskan Ferry Terminal. With somewhere between six and ten thousand hours on Bellingham Bay in all kinds of weather, I can tell you it is absolutely not feasible to take the ferry to Fairhaven or Bellingham on any regular year-round basis.  That would put many more people at much greater risk than the situation on Haxton Way.  Not only are the waters extremely hazardous on occassion, the increase in emergency response time to the island would be completely unacceptable. In fact, there is no real feasible alternative to the existing landing.  Heading north leads to the open waters of the Straits of Georgia with only dangerous shoaling approaches to land. Heading south leads into notoriously rough Bellingham Bay, around the shoaling lee shore of Portage Island and a long run, abeam to the prevailing winds to arrive in Fairhaven. 

It's difficult to understand why this has become such an intractable issue.The ferry contract was duly executed by all interested parties.  Considerations were agreed, conveyed and received. The contract therefore meets all usual tests of validity.  The Lummi Nation's refusal to honor the extension is based upon their assertion it was never approved by the Bureau of Indian Affairs.  But has anyone from the County actually seen the official file copy at the BIA? It might be signed, or there could be an adequate record of review and approval and the missing signature an oversight.  Or was it never submitted?  Is that the responsibility of the County or the Nation? In almost every imaginable case, the lack of a BIA signature seems either a matter of force majeure for the county, or irrelevant.

The Nation's refusal to honor their earlier agreement, combined with their extraordinary demands, provides the County the perfect justification for exploring the exercise of eminent domain. If lease negotiations are untenable, then outright ownership  of the landing tidelands and upland approach makes sense. It permanently eliminates the need to negotiate, secures an essential public facility and assures all citizens access. A ferry has been, more or less, at this location for more than a hundred years.  I would wager area residents have routinely ferried between Gooseberry Point and Lummi Island for several thousand years.

In fact, the Lummi Island ferry meets the test for Essential Public Facilities, which under Washington State's Growth Management Act may be exempt from refusal under local plans. The Point Elliot Treaty in Article 2, specifically provides "...if necessary for the public convenience, roads may be run through the said reserves, the Indians being compensated for any damage thereby done them." The term "convenience" suggests that government built roads need not even have to meet the test of a necessary public purpose.  Ferries are considered extensions of roads.  Like bridges, they are structures that make road connections possible.

But even more importantly, decisive action could prevent the situation from getting much worse.  Already, discussions of this issue have started exhibiting increased racial tensions.  Blockading roads is typically viewed with disdain and often leads to violent behavior.  We certainly don't need to exacerbate whatever racist tendencies remain in Whatcom County. It is a situation that can only go downhill, and it could go fast and furious.  How long, with the Nation goring the County's ox, will it take for citizens to demand reciprocal treatment?  A new, more conservative County Council might agree. The Lummi Nation depends on quite a number of contracts and interlocal agreements, with school districts, for fire protection and emergency services, utilities, etc.  They need permits for their proposed developments.  They even own a dangerously derelict building on Lummi Island that could be ordered abated.  The list goes on.  Do we want to devolve into a tit-for-tat squabble over basic services?  It is a classic situation for which swift, decisive action is warranted. Asserting authority to secure this transportation link, however disappointing to some, may be far better than assuring protracted deterioration of relations with our neighbors.  Continued secrecy certainly can not help.

Folks can't be reasonable when the facts are withheld and they are excluded from the conversation. Secret government is neither a precept of Lummi culture nor American democracy.  Quite the opposite.  Both are based on equal justice.  Secrecy is only really useful for pushing private agendas and securing special side deals.  We saw this earlier with the Port of Bellingham's secretly negotiated accord with the Nation.  That agreement included a Lummi promise not to interfere with the expansion of the Fairhaven Shipyard.  Regardless, they filed a comment that threatened the timely opening of that facilty.  In a side deal, the Port gave them land at the Slater Road, I-5 interchange where the Lummi Indian Business Council wants to establish a commercial Gateway to their nation.  Trouble for the ferry began immediately upon the ratification of that accord.  It is ironic that now the County must contemplate the unsavory prospect of traversing Bellingham Bay to rent landing privileges from the Port.  Are the two connected?  How can we know when such important public matters are conducted in secret?

If secrecy were abandoned and folks had the opportunity to be informed and reasonable, we might see plenty of mutually beneficial solutions.  For instance, create a transit hub and ferry parking at the proposed Gateway.  This would allow regular Ferndale buses to pop off the freeway and connect to a circulator permanently stationed in the Nation.  Move the ferry toward more walk-on service.  Sell ferry tickets on the shuttle at the Gateway and save the hassle on the ferry.  Give the Nation a slice of the tickets, but keep passenger fares low to encourage walk-ons.  Continue to carry private vehicles on the ferry, but charge enough to discourage it.  Establish exemptions for the elderly and disabled. Provide special runs for service vehicles with lower rates to help keep services affordable. Limit such service sufficiently that it is not a feasible workaround for regular commuters. Improve a new vehicle queue across the road to align with the approach to the ferry landing. The Nation would get parking revenue and activity at the Gateway,  possibly a security contract for the parking, maybe a few bus driving jobs, better bus service throughout the Nation, much less traffic on Haxton Way and much less traffic congestion at Gooseberry Point. Provide, as a matter of personnel development, that some portion of ferry positions are available to Lummis.  There are hundreds of possible favorable outcomes, none of which will necessarily be considered without the input and oversight of affected citizens.

This is an issue that will start moving fast in the next few weeks, and one for which timely, assertive leadership is essential.  Where will we see it emerge?

The Whatcom Chief makes hourly runs from 6:00 am until midnight.

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