Ruling roils waters in Tulalip tidelands dispute

By Emily Heffter
Times Snohomish County bureau

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A dispute over who owns the tidelands on the Tulalip Reservation has washed up in front of Frederick Ruehr's cabin.

Ruehr sued the tribes late last year when they wouldn't give him a permit to repair his cabin.

A judge's decision in Ruehr's favor has bolstered the efforts of a community group fighting the tribes' proposed shoreline regulations, which would require landowners on the reservation to make fee and lease payments to the tribes for property in front of their privately owned waterfront homes.

Nontribal property owners believe they own the tidelands, while the Tulalip Tribes believe the land is under their control.

In April, Tulalip tribal Judge Thomas Weissmuller ordered the tribes to give Ruehr a permit to repair the piling that supports his cabin and deck. The Tulalip Tribes said they will appeal.

More importantly to the nontribal group, the judge said he couldn't determine whether the tribes have jurisdiction over the tidelands. Weissmuller left that decision to a federal court, but members of the Tulalip Community Association say the fact a tribal judge called it into question is a victory for them.

"I think that's a very important statement by a tribal judge, that even he isn't sure," said Tom Mitchell, the president of the association.

The association was formed last September after the Tulalip Planning Commission began to consider changing the way the tribes regulate the reservation's shorelines. The proposed regulations would restrict development on tidelands and allow the tribes to charge rent for homeowners' buoys, piers and decks.

The group has about 500 members and significant political clout on the reservation, where nontribal members own about 40 percent of the land, including most of the waterfront property. A founding board member of the group, Priest Point resident Kim Halvorson, recently filed to run for office against state Rep. John McCoy, a Tulalip.

In addition to the shorelines issue, the community association is poised to challenge a 1 percent excise tax the tribes charge every time property changes hands on the reservation.
 
The association's California attorney, Mitch Mitchell, said the tribes' taxing authority is very limited.

"I don't see anything in any tribal or in any federal documents that says the tribe can collect this 1 percent excise tax," he said.

Though the community association is more focused on the tidelands policy right now, Mitchell said the excise tax shows the same "expansive view" of tribal sovereignty that concerns association members.

Jeff Likes did his own research on the Internet before deciding not to pay the tax when he bought his house last month at Mission Beach. So far, he hasn't heard anything from the tribes, and he and his family are moving this week from Kentucky. The tax on his $430,000 property would have been $4,300.

"I don't feel basically that it's a legal tax," he said.

Dwight Bickel, an attorney for Likes' escrow company, Transnation Title Insurance, said the company informs buyers about the tribal tax but doesn't weigh in on whether it is legal.

"I'd be quite comfortable with an individual choosing not" to pay it, he said.

The tribes began levying the tax in 1987 to pay for street lamps, natural-resource protection, road maintenance and other services. The tribes haven't made a big deal about the tax so far, but that doesn't mean they're ready to back down, tribal Chairman Stan Jones said.

"It's not a total priority, but we will go after it," he said.

Mitchell believes Ruehr's case is the reason the tribes have not discussed the shoreline regulations in months. After a series of public hearings last winter, the regulations have not been discussed publicly by the Planning Commission.

"The only thing we can read into that is that there's a hold on it, and I can only assume that's because their own judge said they might not control the tidelands," Mitchell said.

Jones said there isn't any question about the tribes owning the tidelands.

"The reservation is set aside for the tribes," he said. "We have not sold them any tidelands."

Ruehr and the tribes have met, but they have not reached a settlement. The tribes have not issued him a permit for his cabin repairs, which are half-completed. Both parties say they will appeal to federal court.

"This case does sort of get out the heart of this issue," said Mitchell, the community-association president. "The ultimate outcome could affect everybody."

Emily Heffter: 425-783-0624 or eheffter@seattletimes.com