Unpacking Inslee's tribal veto

Once and maybe-future AG's square off over banking tax; Supremes quash YouTuber's quest for media legitimacy

Gov. Jay Inslee got a stinging verbal lashing from Native American tribal leaders recently over his veto of part of the landmark cap-and-trade bill aimed at reducing carbon emissions in Washington State.

In a release sent out as a Friday afternoon special,1 Fawn Sharp, vice-president of the Quinault Indian Nation and president of the National Congress of American Indians, dropped some truly industrial-grade shade accusing Inslee of betraying his word when he stripped the bill of new powers for the state’s tribes, including this top-shelf zinger:

“The only thing I will ever agree with Donald Trump about is that Jay Inslee is a snake.”

Ouch.

Now we enjoy weapons-grade rhetoric about really wonky topics way more than most folks, but we were interested in what really happened here. Why would the governor antagonize powerful and sympathetic allies? Why would the tribes launch such a fierce scorched-earth campaign in response?

So let’s dig in. First, some background:

Under the 19th-century treaties by which Washington’s tribes were systematically robbed of nearly all their land, they were guaranteed the right to fish, hunt, and gather on land outside their reservations. Here’s the Treaty of Point Elliott, signed in 1855 to create the Suquamish, Tulalip, Swinomish, and Lummi reservations.2

The right of taking fish at usual and accustomed grounds and stations is further secured to said Indians in common with all citizens of the Territory, and of erecting temporary houses for the purpose of curing, together with the privilege of hunting and gathering roots and berries on open and unclaimed lands.

Fishing rights get most of the ink, but a key phrase here is “…of hunting and gathering roots and berries on open and unclaimed lands.” Back in 1855, there was a great deal of unclaimed land, so the territory the treaty refers to is basically everywhere, even though most of the game has long since been shot or deprived of habitat, and the roots and berries plowed under for farming or paved over by subdivisions, office buildings, and giant airplane factories.

Back to the bill, Senate Bill 5126, grandly styled the Climate Commitment Act, which extracts a giant pile of money from the state’s major polluters and lays out ways that the cash can be spent. As the measure passed the Senate, it contained Section 6, the part Inslee vetoed, which requires “meaningful consultation” with tribes for projects that might impact “the tribe's resources or other rights and interests in their tribal lands and lands within which a tribe or tribes possess rights reserved by treaty.”

So, for example, if you’re to build a solar farm on land where a tribe has been gathering food for millennia, you have to go consult with the tribe. Seems straightforward, right? Not so fast. The important phrase here is actually “meaningful consultation,” which is not the same thing as “approval.”

There are already a lot of laws and rules requiring consultation with tribes, but most of them don’t have many teeth if the builder of the project persuades the relevant government officials to proceed over tribal objection. For illustration, please see the enormous liquified natural gas terminal at the Port of Tacoma, built in the Puyallup Tribe’s usual and accustomed grounds over strenuous objection.

The tribal consultation provision of Senate Bill 5126 was kind of like that, providing for stoppage of projects if the consultation hadn’t happened at all, but not giving tribes much power to actually block projects. At this point in the process, Inslee was on board.

But when the bill got to the house, tribal lobbyists got lawmakers to install some teeth. A new subsection required that projects “must be paused or ceased” if a tribe finds it would “adversely impact cultural resources, archaeological sites, or sacred sites.” It was part of a series of changes in the bill designed to win over environmental justice advocates.

That power to nix projects spooked Inslee and his advisors enough to eventually veto the entire section.3

“In particular, there are legal concerns with the undefined and broad requirement for tribal consent in the use of climate investment funds and for the lack of due process when consent is withheld,” Inslee wrote in a letter to tribal chairs sent the same day as the veto.

His move infuriated tribal leaders for at least two reasons: First, they argue that Inslee had agreed to the language as a condition of the tribes’ support for the bill and then jettisoned their priority while keeping the rest of the bill. That caught our interest because it reminded us of the “When is a deal really a deal?” problem we wrote about last week regarding his veto of the gas tax provision in the low-carbon fuel standard.

That veto also blew up a carefully negotiated deal, but Inslee argued that he wasn’t a party to that agreement. When we reached out to his office on this veto, we got a similar answer.

“There was never, under any circumstances, any deal on keeping that language in the bill,” Mike Faulk, the governor’s press secretary, told the Observer in an email. “The governor did not agree to it, and in fact there was no government-to-government outreach by tribes to the governor to discuss the language, which was known to be highly controversial and potentially raise a variety of legal issues.”

However, both tribal lobbyists and the relevant members of Inslee’s staff would have been part of the complex web of Zoom calls, email strings, and group texts that were used to negotiate the bill in the COVID-restricted session. On April 23, two days before the end of the session, Inslee himself, along with legislative director Drew Shirk and climate policy advisor Becky Kelley, met with House Environment and Energy Chair Joe Fitzgibbon, who was navigating the bill to House passage, according to Inslee’s calendar for that day.

Several sources involved in the negotiations tell the Observer that no objections were raised on the tribal approval language until shortly before the veto, leaving tribal leaders feeling back-stabbed.

That makes this veto substantively different in an alienating-your-allies sense than axing the gas tax in the low-carbon fuel standard bill, which Inslee was known to oppose. In that case, he was whacking a centrist faction of Democratic Senators led by Mark Mullet. Inslee actually opposed Mullet’s reelection last year.

The tribes, meanwhile, were big supporters of Inslee’s reelection and among the larger donors to the Washington State Democratic Party and Democratic lawmakers, spending more than $1.3 million in the 2020 election cycle.

Tribal interests were also irked because they argue Inslee’s concerns are vastly overblown.

Here’s Matthew Randazzo, a lobbyist for the Snoqualmie Tribe and one of the crafters of the language:

"That language simply says that you cannot use the specific carbon fund created in the bill that tribes passed to fund a project over a tribe's objection that it desecrates a cultural resource like a sacred site or burial ground. Tribal leaders, including at least one attorney, have personally explained this to the governor, and they persist in spreading this misinformation to create an excuse for their actions.” 

The sticking point may be the phrase “cultural resource,” which generally refers to things like graveyards and archeological sites rather than the broader area where a tribe has rights to hunt, fish, and gather. While it could arguably be applied to a food resource, Randazzo said, he doubts any court would give a tribe such latitude.

In his letter to tribal chairs explaining the veto, Inslee proposed a summit this summer to begin developing an improved consultation process. He also took pains to point out the very tangible benefits for tribes elsewhere in the bill.

The measure requires that about or 10 percent of the money generated by the cap-and-trade system, roughly $840 million by 2040, go to programs and projects supported by tribes. It also promises $25 million per year to help tribes deal with impacts of climate, money that would go to things like moving communities threatened by sea-level rise and flooding.

We’ll see how well time and money heal this particular wound.


Once and perhaps future attorneys general square off

If you watched this week’s oral arguments on the state’s legally imperiled surtax on big banks, you got to watch Solicitor General Noah Purcell — perhaps the attorney general-in-waiting — argue against former AG Rob McKenna.

The telegenic Purcell, you may recall, spent considerable time in the spotlight early in the Trump Administration for successfully challenging the Muslim travel ban. He was also very briefly a candidate to succeed current AG Bob Ferguson before Gov. Jay Inslee decided to seek a third term, creating a sullen logjam of disgruntled ambitious politicians below him.

McKenna, the Republican who lost to Inslee in the 2012 governor’s race after two well-regarded terms as attorney general, appears to be enjoying his second act as a hired gun for big business in high-profile cases.

The case in question is a constitutional challenge to a surtax on banks with more than $1 billion in worldwide profit enacted by the Legislature in 2019.

McKenna told the court that 150 of the 153 banks that paid the tax during the first quarter of 2020 were from out of state, and paid more than 99.7% of the $34 million collected.

A King County Superior Court judge tossed out the tax last year, finding it discriminated against interstate commerce, which is unconstitutional.

Purcell argued that the Legislature’s goal was to make the state’s tax system more progressive. He also noted that smaller out-of-state banks are free to operate in Washington without the surtax.

This argument would have worked better had then-House Finance Committee Chair Gael Tarleton, the bill’s sponsor, not argued on the House floor that it would advantage small Washington banks over larger competitors. Tarleton, D-Seattle, left the Legislature last year to become the latest Democrat to fail to unseat Secretary of State Kim Wyman.

This is likely just Round 1 of Purcell vs. McKenna on tax increases. McKenna is working on a challenge to the capital gains tax passed by the Legislature last month, which will surely wind up before the Supremes sometime soon.


Supremes get creative in denying YouTuber journalist status

While we’re over at the Temple of Justice, let’s take a look at the gymnastics the Supremes went through to deny one Brian Green, who appears on YouTube as Libertys Champion,4 membership in the news media.

The case in question involved Green’s attempt to use the Public Records Act to get photographs and birth dates of Pierce County Sheriff’s deputies after an unpleasant encounter at the County-City Building in Tacoma after a security guard tried to search Green’s bag. Such information is generally exempt from disclosure unless the request comes from a member of the news media.

What Green does on YouTube is less journalism than a kind of weirdly low-fi Libertarian performance art. But a Pierce County Superior Court judge gave him the benefit of the doubt and ordered the county to cough up the records.

The county appealed, in part arguing that Green was using the “news media” provision for some score-settling. That brought in friend-of-the-court briefs from a bunch of news organizations concerned that the court might stray into the problematic area of an agency asking exactly why someone is requesting public records, which is generally a no-no.

But in the end, the court wiggled out of that problem. Here’s how: There’s a two-part test for who qualifies. The first part is whether there’s a journalistic entity like a newspaper involved. The second part is whether the requester is working for such an entity doing bona fide journalism.

In her ruling 6-3 majority ruling, Justice Raquel Montoya-Lewis flunked Green on the first part, finding that Libertys Champion is not an entity separate from Green himself.5 That took the justices off the hook for tackling the delicate question of whether he’s a journalist, or whether a journalist who may have an ax to grind can have identifying information on cops. Bottom line, no photos or birthdates for Green. But a win for the county and the deputies’ union.


And we’re outta here…

Your correspondents, human and canine, are hitting the road to visit some people and dogs we haven’t seen in far too long. The Observer will be back in early June.

1

It’s traditional to drop bad news on a Friday in hopes that it will die quietly. That’s a tradition that dates back to the days of hard-copy newspapers, when the thin Saturday edition just didn’t have much space. It’s also a good time to try to get your spin across the plate because everyone involved is about to check out for the weekend.

2

There is similar language in treaties with other tribes.

3

The state constitution generally limits him to vetoing entire sections of bills, except when he argues it doesn't.

4

We’re just going to grab Justice Raquel Montoya-Lewis’ footnote verbatim here: “The YouTube channel is entitled “Libertys Champion,” without an apostrophe.”

5

Should have gone the LLC route, pally. That’s how we did it here at the Observer.