This document was prepared and reviewed by the Sandy Point Alliance Board, for the purpose of informing the reader about ongoing property rights issues. We believe Sandy Point residents have undergone repetitive harassment by the Lummi Indian Business Council (LIBC) since the 1960s. The LIBC aggression, detailed in the attachments, took many forms, but has primarily been aimed at lowering property values and thus preventing further development.

The data following this Summary (LIBC Aggressive Actions and Chronology of Fee Land Issues) was compiled from many documents covering the events. From the consistent and pervasive nature of these events, the reader should be able to conclude, as we have, that the Lummi claims are invalid, even ludicrous. The following overarching points are clear:

1. Sandy Point is part of the United States of America, and is not "Indian Country".

2. Sandy Point will not pay for illegal leases.

Sandy Point development began in the 1950’s and 1960’s, when land within the boundary of the Lummi Indian Reservation was lawfully sold by tribal members as fee simple land to a construction company as a source of materials for international projects, and later to developers of several subdivisions. While these fee lands are under Whatcom County control and jurisdiction, many issues, at various times, became contentious between landowners and the Lummi tribe as the tribe sought additional sources of money. Some of the issues include: inadequate water to allow full development of properties; conflict over use of tidelands and harbor entrance; beach erosion; placement of protective bulkheads; remediation of flooding and storm damage to homes; failure to complete sewers hookups to reach all homesites, and others.

In the 1960’s, when only a few homes existed on Sandy Point, the LIBC pressed the developers for leases to cover harbor channel and tidelands access. The legal obligation to enter into leases was disputed. Two of the several developers, not representing all of the land-owners, executed two separate leases. The initial fees were small, representing an expeditious way to avoid large legal costs. Fees for one of the leases escalated modestly until 1984, when a demand was made for more than three times the prevailing amount. Lease payments were suspended in 1985. Lease negotiations and court appeals resulted in a judgement for more than twenty-three times the 1984 amount. The leases expired in 1988 and were not renewed. Negotiations in 1988 were terminated when the LIBC demanded nearly thirty-three times the 1984 amount. Recent attempts to determine settlement amounts resulted in demands for more than two hundred times the 1984 lease amounts. It was originally believed, as it is believed now, that the LIBC claim to tideland exclusive use is invalid. When the cost of any settlement greatly exceeds the legal cost for lease avoidance, the course for Sandy Point fee landowners is clear. It remains now for the Sandy Point community, represented by several property groups, to become unified enough to deal with the many contentious issues by helping to fund the legal costs.

The LIBC will accept money for settlement of disputes, if the amount is high enough. There is ample evidence, however, that money is only a temporary expedient to reaching a long-term goal. That goal is for the Lummi to reacquire all land sold out of trust (for verification see Chronology in 1987). A way to reach that goal is to use any method of harassment, including outrageous demands for payments, in order to depress property values and discourage non-Indians from purchasing or retaining property. A short summary of such harassments, titled LIBC Aggressive Actions, is following.

LIBC Aggressive Actions

Opposes any increase in usage of ground water. Drilled illegal well into the aquifer supplying SPIC customers, pumping excessively to lower the level and threaten the SPIC supply. Refused to consider extension of the Bellingham water supply through the Reservation to Sandy Point. Attempted to illegally tap into the SPIC water main on Slater Road, in order to serve a tribal member.

Refused to allow expansion of a sewer system to reach numerous homes near the South Cape and in Sandy Point Heights (1980’s and 1990’s).

Pressured utility companies to levy a 5% tax to non-Indians (power, telephone, trash disposal)(1992).

Opposed projects to improve safety of boats in harbor entrance channel (1984 and 1998).

Posted channel and all beaches "no trespassing" (1988).

Encouraged Lummi Police to intimidate Sandy Point residents driving on local roads (1990’s).

Applied to Corps of Engineers to permanently close off the harbor entrance (1998).

Announced a plan to sell daily permits for beach users (1998).

Threatened removal of bulkheads protecting homes from storm damage. Persuaded Corps and US Attorney to file a suit for damages, including leases of tidelands (1999).

 

Chronology of Fee Land Issues

1953 to 1957: Most of the Sandy Point upland properties were sold as fee land to several non-tribal developers, for the purpose of developing home sites.

1955: Gravel removal and cement plant operations began, near the south end of the Point.

1959: Lot 1 Sec. 17 (this includes the present harbor entrance) was then owned by Sandy Point Gravel Co., Vancouver, BC. They secured a Lummi permit to dredge a channel and transport gravel by barge. The Bureau of Indian Affairs (BIA) granted Permit No. 3851, whereby the Lummi agreed to payments of a fixed fee plus a variable fee per yard of gravel removed. The channel was dredged to minus 12 feet, and gravel was moved by barge to Tsawassen, BC. The channel, at that time, legally became a federal navigable waterway.

1959 to 1962: Gravel removal operations continued. Interior canals were dredged. Bellingham Marine became the owner of Lot 1, and developed a small marina near the entrance channel.

July 6, 1962: The Lummi, through the BIA, gave notice that further use of the entrance channel must be permitted by the Lummi (LIBC). The LIBC aggressively pursued an agreement for channel use.

January 21, 1963: The LIBC was advised by letter from the office of the regional Solicitor, about navigational servitude, ownership, and contractual language which would protect the rights of the Lummi to refill the channel.

April 1963: Bellingham Marine, knowing that the channel is a federal navigable waterway and that a fee had been paid to the Lummi for creating the channel, entered into a lease as a matter of expediency. The BIA lease No. 4154 granted channel access, to expire in April 1988, at a fee of $500 per year. The lease contained no reference to future closure of the channel.

1963 to 1969: Properties on the peninsula were developed into residential sites. Sandy Point Improvement Co. (SPIC) was involved in a conflict with the LIBC, over the use of tidelands other than the channel.

May 1965: SPIC, although there are several other entities developing properties, entered into BIA lease no. 4577 granting tidelands access, to expire in March 1988. The fee was $2,000 per year, subject to escalation.

1965 to 1984: Lot development and house construction was continueed, by SPIC and several other entities. The cost for no. 4577 had escalated over the twenty years to $7,500 per year.

1982 – 1985: Sandy Point and Whatcom County requested the Corps of Engineers to construct jetty protection and dredge the navigation channel. A favorable report was completed in 1982, detailed studies were conducted, and a draft report was released for public review in November 1984. The Lummi opposed the project which was placed on hold in 1985, and terminated in 1989.

1984 to 1988: The BIA notified SPIC of the intent to increase lease no. 4577 to $26,000 per year, for the remaining three years. The LIBC appealed that amount as too low; SPIC appealed it as too high. The SPIC independent appraisal was about $25,000 per year. The LIBC obtained an appraisal at $151,000 per year and demanded that amount. SPIC made a federal court appeal, and the matter was remanded to the Department of Interior (DOI) for review.

1987: The LIBC established a goal, published in their Squol Quol newsletter. That goal is "to acquire all land sold out of trust in order to secure the land base of the Lummi Indian Tribe, place land back into trust, utilize land for future tribal economic growth, lease to homeowners for private housing or tribal housing projects." It would "set aside percentage of tribal profits from any new ventures for land contingency fund". It also would "lobby congressional legislation establishing Indian reservations for Indians only".

March and April 1988: The channel and tidelands leases expired, and were not renewed.

May to July 1988: The Sandy Point Negotiating Group (SPNG) met three times with LIBC. SPNG offers ranged upwards from $25,425 per year to $28,000 per year, to cover a lease of all tidelands around Sandy Point, including the entrance channel. The LIBC counters ranged downwards from $951,000 per year to $261,121 per year. The talks were terminated.

July 8, 1988: The Lummi illegally fastened two "Channel Closed – No Trespassing" signs on the channel Coast Guard day markers. The Coast Guard met with the tribe.

July 18, 1988: A tribal representative removed the signs. The entrance channel remains a navigable waterway of the United States, open to all boaters. The tribe then erected "Restricted Area – No Trespassing" signs on area beaches and threatened to fine non-tribal members for trespassing.

November 15, 1990: The BIA notified SPIC that they had completed another appraisal of tidelands at $186,000 per year.

1992: The Federal District Court ordered SPIC to pay the final three years’ lease plus interest. SPIC made that payment of $534,160.

August 1997: A Sandy Point property owner applied to the Corps of Engineers (Corps) for a permit to dredge a small area of the entrance channel, wholly within the boundary of Lot 1. The Lummi offered opposition. The purpose is for safe transit of the channel at lower tides.

June 1998: The LIBC applied for a permit to close the entrance channel completely. The stated purpose was to "restore tribally owned tidelands", to reverse the biological impacts to the shellfish habitat.

Summer 1998: The Lummi met separately with six US Government entities to formulate action plans. Sandy Point representatives were not notified or represented.

September 8, 1998: The LIBC publicly unveiled a plan to sell individual permits for the use of beaches, at $3 per day per individual. The plan was never implemented, presumably because the Tribe would not risk a court trial.

Fall 1998: LIBC initiated a Corps study of bulkhead permitting and construction along Sandy Point shoreline.

November 1998: The Sandy Point Alliance (SPA) was formed as a not-for-profit corporation, to be a representative of the entire community in matters involving tidelands, entrance channel, land use and zoning, with all disputes to be resolved in a US court rather than a Lummi court. Funds are to be gathered by voluntary assessment, with donors becoming SPA members. It is to be noted that no community group has the ability to assess the entire community on an equitable basis. Those groups include Sandy Point Improvement Co. (SPIC), Sandy Point Community Council (SPCC), North Cape, South Cape, Neptune Beach, and the Jepson undeveloped land.

January 17, 1999: The SPA made public an offer to work with LIBC and any other agencies on projects including beach protection and enhancement, for which there are federal funds available.

January 31, 1999: The LIBC publicly responded to the SPA offer, stating that the "obvious solution is for the Alliance to negotiate a compensation package". That presumably means that enough money would replace the need for beach restoration.

March 26, 1999: The LIBC, in a letter to the Corps, stated that they are "willing to grant permission to use tribal tidelands as an entrance channel ---. However, we must be adequately compensated for this use".

April 20, 1999: The Corps, responding to public pressure, held a public hearing to cover both the Sandy Point permit to dredge and the Lummi permit to block the channel. Testimony was given on many aspects of the issues, including : spoils from dredging can be used to restore beaches and shellfish habitat ; a settlement for money will solve the problem for the Lummi.

August 1999: The Corps requested more information (expensive biological study and assessment) in order to further evaluate the dredging permit. The application for dredging was allowed to lapse, avoiding that cost and awaiting further developments.

Fall 1999: The SPA considered ways in which a settlement with the LIBC might be accomplished. The conclusion was that the SPA must be given a settlement figure, before attempting to seek funds for any settlement.

November 5, 1999: The SPA attorney contacted LIBC by letter:

	Difference of opinion on who can use tidelands, and whether any compensation is due.
	Want to avoid 10-20 years of litigation.
	SPA alone cannot deal with the LIBC over compensation, but can help gain a solution from public and private sources.
	Can move forward only after LIBC states an amount of compensation.
	Resolution must be permanent.

November 30, 1999: The LIBC response by letter:

	Lummi will not sell any tidelands.
	Leases are requested, not settlement or compensation.
	Leases could escalate with upland property values.
	Compensation is due for tideland use since expiration of former leases.
	SPA must first make an offer.

December 6, 1999: The Corps advised LIBC on Sandy Point bulkheads.

	Some bulkheads were supplemented with rock within previous 5 years, without Corps permits.
	The Corps, on the presumption that the rock was placed on Lummi property, gave the Lummi choices of applying for an after-the-fact permit or removing the rock.

December 13, 1999: The Corps notified eight property owners of bulkhead violations. One of those property owners is a Lummi tribal member, serving as the Chief Executive Officer of the LIBC.

January 5, 2000: LIBC responded to Corps that they intend to remove bulkheads starting in June, 2000.

January 11, 2000: SPA attorney wrote LIBC:

	A settlement proposal which escalates with property values has some merit.
	SPA cannot enter any agreement requiring assessment of funds, therefore it cannot propose any amount.
	LIBC is again requested to propose a settlement, to be obtained from public and private sources.

January 26, 2000: LIBC wrote SPA attorney:

	Time is short to resolve the bulkhead issue. Rock must be removed if no resolution by June.
	Not appropriate for public funding of leases.
	Again wants SPA to make offer.

March 28, 2000: SPA letter to LIBC:

	If the LIBC will not propose a settlement amount, will they accept a neutral appraisal, for example from the Department of Natural Resources?
	Reiterates that some funding would be available from County, State and Federal sources. SPA will work jointly with LIBC to accomplish this.
	SPA would be willing, once an amount is determined, to work with County to set up a Local Improvement District (LID) if necessary to administer property tax collection.
	Bulkheads were constructed on fee land. That fee land has been encroached upon by avulsion of the beaches, due to construction of piers north of Neptune Beach.
	Beaches were diminished and upland property was lost due to acts of man, hence the term avulsion rather than erosion. The beaches can be restored, perhaps with voluntary cooperation and funding from local industries, and state and federal agencies. SPA is willing to actively participate with LIBC in these efforts.
	Without a proposed settlement amount from LIBC, SPA must conclude that there is no interest in the ultimate settlement of these issues.
	Copies of this letter were sent to local, state and federal officials.

March 28, 2000: LIBC responded to one property owner with a bulkhead violation:

	Leases can be based on a percentage of assessed value of land and improvements.
	No amount is stated.
	If leases are not in place by June, Lummi are preparing a permit to remove bulkheads on 19 properties "in the immediate vicinity of your house".

April 17, 2000: LIBC responded to SPA:

	Expresses disappointment on this matter being sent to public officials.
	Sends this letter to same public officials.
	Remarks are general, no specifics on SPA proposals. No recognition of SPA inability to assess funds, or to make a settlement offer.
	Disputes shoreline changes due to avulsion.

May 19, 2000: LIBC letter to SPA:

	Lummi are willing to seek after the fact Corps permits for bulkheads, providing an agreement is made for compensation.
	A proposal is made for establishing amounts, based on assessed property values.
	A negotiating team is ready to meet with SPA representatives.

May – June, 2000: SPA gathered assessed valuation data for all Sandy Point properties. The LIBC proposed settlement formula was calculated to be more than $2,200,000 per year, plus unspecified damages for the previous 12 years.

July 6, 2000: SPA and LIBC met:

	LIBC calculates $2.25 million per year is required, plus 12 years’ compensation, plus use of harbor by tribal boats.
	SPA is willing to seek funds from homeowners and others in the amount of $200,000 per year. Fund collection could be accomplished with a Local Improvement District (LID). Contingent upon LIBC approval for ongoing maintenance dredging, with spoils used for beach restoration.

July 14, 2000: SPA letter to LIBC:

	The SPA conditions of July 6 are confirmed here.
	SPA is certain they cannot get community support for 12 years’ compensation, for beach access over private property, or Lummi boat moorage at private docks without compensation.
	An alternate permanent solution would be for LIBC to sell permanent easements for beaches, bulkheads and channel.
	The SPA case for property ownership is outlined, based on the doctrine of avulsion.

July 19, 2000: LIBC and SPA met. LIBC presented a letter:

	SPA proposed annual $200,000 is too low. The LIBC proposal of May 19 is unchanged.
	Lummi will not forego past compensation.
	LIBC would accept title to properties allowing beach access and for a tribal marina.
	Cash payment to cover legal costs for past 12 years.
	Any assessment or taxing district such as a LID, to be under tribal, not county, authority.

July 28, 2000: SPA wrote LIBC, with recap of July 19 meeting and LIBC letter:

	SPA and LIBC agreed that details of discussions would not be disclosed to the press or government officials.
	A resolution of all issues at this time is in order, not just bulkheads.
	The SPA proposal is the maximum amount they might be able to get the community to pay.
	The property owners at Sandy Point pay a tax burden of $1.5 million annually to governments for services (schools, roads, fire, police, emergency medical and other services). The proposal to pay the Tribe $2.24 million a year for tidelands use is so disproportional to that paid for governmental benefits, the SPA are certain people will not agree to such a sum.
	A joint project for beach nourishment and shellfish bed enhancement can be viewed by the Tribe as consideration for disputed issues of the past.

August 3, 2000: LIBC letter to SPA:

	If the Alliance has no room to negotiate, then we are at an impasse and we should end negotiations.
	A beach nourishment program will be a Corps requirement for a dredging permit, and is therefore1/8/021/8/02 not compensation to the Tribe.
	LIBC primary concern is the security of any contract.

August 10, 2000: SPA wrote LIBC:

	The bulkhead issue can possibly be resolved with a payment by the landowners, based on the area of tidelands the bulkhead occupies.
	SPA proposes a one-time payment of $4 million for permanent channel easement and tideland use. Funding for this through formation of a County LID.
	LIBC can realize significantly more annually from this, compared to the original proposal, if the money is prudently invested.

August 18, 2000: LIBC to SPA:

	LIBC presents their May 19 proposal, modified downward. SPA calculates the approximate amount to be $1.6 million annually plus land for a marina, property on South Cape, property on West Beach, and beach mitigation.
	After the fact permits and channel dredging permits will be contingent on beach mitigation activities, at a cost separate from annual payments.
	Lummi currently willing to lease, but this position could change.

August, 2000: The property owner on Saltspring with a bulkhead requested Lummi to obtain permits to remove riprap fronting their house. Lummi did so, and landowner secured a contractor.

August 25, 2000: SPA requested LIBC to delay any bulkhead work for 6 months, during which time SPA would poll the community for support. Further talks at this time would not be productive.

September 13, 2000: The US Attorney’s office announced intention to file suit in federal court to settle tideland ownership.

September to November, 2000: The Sandy Point residents were polled for their support of SPA activities. There is some support for a settlement of tidelands issues, but only if it is moderate in cost compared to legal costs.

November 19, 2000: The Lummi publicly revealed their intent to "negotiate leases with beachfront residents all over the reservation", in addition to those at Sandy Point.

January 18, 2001: The US Attorney’s office, at the request of the LIBC, announced their intent to sue an undisclosed number of homeowners with bulkheads. The homeowners "are also notified that you may propose specific terms of settlement prior the filing of suit." Also, "key terms of a good faith settlement proposal will include a commitment to enter into a lease for use of the tidelands --- and payment of damages."

March 10, 2001: SPA once again publicly proposed a beach restoration project. "If Lummi leaders are sincere about protecting environment and fishery resources, the solution requires a cooperative effort." The method, proven effective elsewhere, was described.

March 21, 2001: The LIBC publicly responded to the SPA, rebutting statements and referencing lease values. There was no mention or acknowledgement of the SPA proposal to restore the tidelands.

April 18, 2001: The US Attorney invited seven upland landowners with bulkheads to meet regarding settlements and lease terms.

June 5, 2001: US Attorney files suit against six landowners with bulkheads. The seventh, a Lummi tribal member, is not included in the suit and no explanation was offered.

October 19, 2001: Federal District Court judge recognizes that property owners within the reservation may want to intervene and participate to protect their property rights. The issues decided in the suit against six Sandy Point landowners will have serious consequences for all waterfront landowners on the Lummi and other reservations. The Lummi are claiming jurisdiction to a high water level about 4.6 feet above the usual legal standard for property boundaries. That level is at the doorsteps of many homes.

 

 

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