HomeMy WebLinkAbout2024 08 06 PNPT Council-JTST-PGST and County TNT Agreement - FINAL1
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TRUST LAND TRANSFER AGREEMENT BETWEEN THE JAMESTOWN S’KLALLM TRIBE, THE PORT GAMBLE S’KALLALM TRIBE, THE POINT NO POINT TREATY COUNCIL AND JEFFERSON COUNTY
This Agreement is between the Parties to preserve and protect the Treaty Rights of the Tribes and their Members under the Treaty of Point No Point, while promoting the efforts of Jefferson County to obtain selection for funding for its Trust Land Transfer Applications pending with the
Washington State Department of Natural Resources.
RECITALS
WHEREAS, the Tribes (defined below), including the Port Gamble S’Klallam Tribe and the Jamestown S’Klallam Tribe, have Treaty Rights under the Treaty of Point No Point; and
WHEREAS, the Point No Point Treaty Council (defined below) is a tribal consortium for
the Port Gamble S’Klallam and Jamestown S’Klallam Tribes by providing natural resources
management services;1 and
WHEREAS, Jefferson County is a municipal corporation within the State of Washington;
and
WHEREAS, Jefferson County wishes to honor and preserve the treaty rights of all Indian
tribes that hunting and gathering rights within Jefferson County; and
WHEREAS, that Jefferson County wishes to be protective of treaty rights and ensure the
continued use and availability of the land for treaty hunting and gathering; and
WHEREAS, the Washington State Department of Natural Resources is charged with
management of State Trust Lands in order to earn income from: harvesting timber, biomass by
products, and other forest products; leasing lands for agricultural purposes, such as orchards and
1 See https://pnptc.org/about-us/history/, Accessed August 3, 2024.
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vineyards, irrigated agriculture, dryland crops, and grazing; leasing communications sites, mining
and mineral leases, wind farms and energy production, commercial properties, and rights of way;
to protect habitat for native plant and animal species; to provide clean and abundant water, and, to
offer diverse public recreation opportunities;2 and
WHEREAS, Washington State Department of Natural Resources is authorized by RCW
79.17.300 to create and manage a trust land transfer program, in which the department uses use
legislative appropriations for approved trust land transfers to acquire replacement real property
that will provide long-term, sustainable revenue to the trust beneficiaries or is otherwise desirable
to be added to the affected trust;3 and
WHEREAS, RCW 79.17.300(5) requires the creation of an external advisory committee
by the Washington Department of Natural Resources to examine each potential transfer and place
proposed transfers into a prioritized order using standardized criteria, that the board of natural
resources used to approve submission of the list to the legislature, and that determines the order of
priority for transfer; and
WHEREAS, RCW 79.17.020 authorizes the Jefferson County Board of Commissioners to
exchange land Jefferson Count owns for State Trust Lands managed by the Washington
Department of Natural Resources; and
WHEREAS, RCW 79.17.010(5) requires that prior to executing a trust land transfer that
the Washington Department of Natural Resources provide public notice and consult with
legislative members, other state and federal agencies, local governments, tribes, local stakeholders,
conservation groups, and any other interested parties; and
WHEREAS, Jefferson County has submitted to the Washington Department of Natural
Resources the Trust Land Transfer Applications; and
WHEREAS, consistent with state law, the Washington Department of Natural Resources
has called for public comments on the Trust Land Transfer Applications; and
WHEREAS, applications for trust land transfers are ranked based on public comments
receive and “Tribal Support” has a significant impact on scoring these applications;4 and
WHEREAS, the Washington Department of Natural Resources Web Site states:
Some deed restrictions will be placed upon the parcel when it is transferred.
Restrictions may include mineral reservations (RCW 79.11.210), ability to
2 See the department’s web site, https://www.dnr.wa.gov/managed-lands/forest-and-trust-lands, Accessed August 3, 2024.
3 See RCW 79.17.300(2).
4 See the Prioritization Criteria, on the department’s web site, https://training-dnr-dnr.pantheonsite.io/sites/default/files/publications/amp_tlt_prior_ct.pdf, at 1 and 7, Accessed August 3, 2024.
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purchase road access (RCW 79.36.370), specific easement reservations to protect remaining state trust lands, and/or restrictions on future, permitted uses of the property for the grantee (receiving agency) and their successors
(in the event the parcel is conveyed to a new owner, or the receiving agency changes their name). Use restrictions will be based on the specific legislation that authorizes and funds the transfer. DNR also may consider a DNR proprietary use and management restriction on the parcel associated with DNR’s State Trust Lands Habitat Conservation Plan (HCP). DNR will
consult the intended TLT recipient on any proposed, proprietary HCP encumbrance language prior to the transfer.
(Emphasis added.); and
WHEREAS, the Port Gamble S’Klallam Tribe, the Jamestown S’Klallam Tribe, and the
Point No Point Treaty Council would support the Trust Land Applications but for concerns
expressed to Jefferson County about the potential for the Washington Department of Natural
Resources to place easements, restrictions, or covenants in the final transfer documents for
properties in the Trust Land Transfer Applications and as a result the transfer has the potential for
not preserving, protecting and respecting the Treaty Rights of the Tribes; and
WHEREAS, the Port Gamble S’Klallam Tribe, the Jamestown S’Klallam Tribe, and the
Point No Point Treaty Council have made a comment of no support to the public comments to the
Washington Department of Natural Resources about their concerns about restrictions, easements
or covenants in the final transfer documents for specifically identified properties in the Trust Land
Transfer Applications that are proposed to be transferred to Jefferson County; and
WHEREAS, any comments from the Port Gamble S’Klallam Tribe, the Jamestown
S’Klallam Tribe, and the Point No Point Treaty Council must be made before the Washington
Department of Natural Resources’ external advisory committee examines, ranks proposed
transfers into a prioritized order using standardized criteria, for submission of the list to the
legislature, and that determines the order of priority for transfer; and
WHEREAS, potentially unsupportive comments from the Port Gamble S’Klallam Tribe,
the Jamestown S’Klallam Tribe, and the Point No Point Treaty Council could drive down the
ranking for the Trust Land Transfer applications below the score that is required to make the list
submitted for funding.
WHEREAS, the Parties have been advised that the Washington Department of Natural
Resources asserts it cannot legally agree to final covenant or easement language that will be
required by the State of Washington to fund the Trust Land Transfer Applications and that protects
the Treaty Rights because funding has not been secured—a classic “catch-22” situation; and
WHEREAS, the Tribes and Jefferson County each desire to enter into this Agreement to effectuate it’s purposes within their respective jurisdictions and intend to memorialize this
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mutual desire reflected in the process used to approve this Agreement by their respective governing bodies to approve this Agreement; and
NOW, THEREFORE, the Parties agree as follows:
1.Definitions. As used in this Agreement, the following conventions and definitions shallapply:
a.Word use. Words used in this Agreement are to be taken and understood in theirnatural and ordinary sense. Words not defined in this request are meant to have
their usual and ordinary meaning in the context used and as defined in the
Dictionary by Merriam-Webster (https://www.merriam-webster.com/), unlessthis Agreement indicates that a different meaning was intended. Whenever thefollowing terms are used in this Agreement (including, without limitation, thisSection 1), the meanings in this Section 1 apply.
b.Singular or plural use of words. The use of the singular form of a word includes
the plural form and vice versa.
c.And & Or. “And” means “or” and “or” means “and,” so as to make the terminclusive rather than exclusive.
d.“Agreement” means this Trust Land Transfer Agreement between the Jamestown
S’Klallam Tribe, the Port Gamble S’Klallam Tribe, the Treaty of Point No Point
Council and Jefferson County.
a. “Easement” means the easement required by Section 2.d. of this
Agreement.b.“Federally Recognized Indian Tribe” has the same meaning as in 48 CFR §
1480.201, which states “Federally Recognized Indian Tribe” means an Indian
Tribe, band, nation, or other Federally recognized group or community on the Listof Federally Recognized Tribes. This definition includes any Alaska Nativeregional or village corporation under the Alaska Native Claims Settlement Act(ANSCA).”
c.“Jefferson County” means Jefferson County, Washington, a political subdivision
of the State of Washington, whose headquarters address is 1820 Jefferson Street,Port Townsend, WA 98368 and whose mailing address is P.O. Box 1220, PortTownsend, WA 98368.
d.“List of Federally Recognized Tribes” means the List of Federally Recognized
Tribes,” means the list described in 25 U.S.C. § 5131. The current List of Federally
Recognized Tribes means the List of Federally Recognized Tribes can be locatedin the 89 FR 5 [FR DOC #2024-00109] (January 8, 2024).
e.“Jamestown S’Klallam Tribe” means the Federally Recognized Indian Tribe,whose headquarters is currently located at 1033 Old Blyn Highway, Sequim, WA
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98382, and who is a successor to the S’Klallam tribe’s treaty rights under of the Treaty of Point No Point.
f. “Member” means a member of any Federally Recognized Indian Tribe that
has Treaty Rights under the Treaty of Point No Point.
g. “Parties” means the Jamestown S’Klallam Tribe, the Port Gamble S’Klallam Tribe, the Point No Point Treaty Council and the Jefferson County collectively.
h. “Party” means one of the Parties.
i. “Point No Point Treaty Council” means the Point No Point Treaty Council which is a tribal consortium that provides the Port Gamble S’Klallam and Jamestown S’Klallam Tribes with natural resources management services;5
j. “Port Gamble S’Klallam Tribe” means the Federally Recognized Indian Tribe,
whose headquarters is currently located at 31912 Little Boston Road NE, Kingston, Washington 98346, and who is a successor to the S’Klallam tribe’s treaty rights under of the Treaty of Point No Point.
k. “Section” means a section in this Agreement, unless otherwise clearly stated.
l. “Trust Land Transfer Applications” means the applications being considered by the Washington Department of Natural Resources that were submitted by Jefferson County as follows:
i. Jefferson County - Anderson Lake TLT Application;6
ii. Jefferson County - Beaver Lake TLT Application;7
iii. Jefferson County - Cape George TLT Application;8 and,
iv. Jefferson County - Jacob Miller TLT Application.9
Detailed identifying information for each TLT Application is attached in Appendix
4.
5 See https://pnptc.org/about-us/history/, Accessed August 3, 2024. 6 See https://deptofnaturalresources.app.box.com/s/8ust93wupbs3csgisrsx9xlsddm21y6z/file/1483876486927, Accessed August 3, 2024. 7See https://deptofnaturalresources.app.box.com/s/8ust93wupbs3csgisrsx9xlsddm21y6z/file/1483873816388, Accessed, August 3, 2024. 8 See https://deptofnaturalresources.app.box.com/s/8ust93wupbs3csgisrsx9xlsddm21y6z/file/1483875226903, Accessed August 3, 2024. 9See https://deptofnaturalresources.app.box.com/s/8ust93wupbs3csgisrsx9xlsddm21y6z/file/1483881642027, Accessed August 3, 2024.
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m. “Treaty of Point No Point” means the treaty signed by Governor Isaac Stevens on behalf of the United Stated with representatives of the S’Klallam, the
Chimacum, and the Skokomish tribes10 on January 16, 1855 at Point No Point, on the northern tip of the Kitsap Peninsula, and which was ratified by the United States Senate on Mar. 8, 1859. The Treaty of Point No Point can be found at 12 Stat. 933, 2 KAPP 674 (1855) and is attached as Appendix 1.
n. “Treaty Rights” means the rights secured in perpetuity to the signatory Indian tribes and their successors in the Treaty of Point No Point, which states in Article 4:
Privileges to
Indians
ARTICLE 4. 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 United States; 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. Provided, however,
That they shall not take shell-fish from any beds staked or
cultivated by citizens.
12 Stat. 933, 2 KAPP 674 (1855) and any other applicable treaty with Indian tribes that encompasses the property that is the subject of the Trust Land Transfer Applications.
While the Point No Point Treaty Council is a Party, it does not have Treaty Rights and acts at the direction of its members, the Jamestown S’Klallam Tribe and the Port Gamble S’Klallam Tribe.
o. “Tribes” means a Federally Recognized Indian Tribe, who is a successor to the Treaty Rights in Article 4 of the Treaty of Point No Point, including but not limited
to the Jamestown S’Klallam Tribe, the Lower Elwha Klallam Tribe, the Port Gamble S’Klallam Tribe, and the Skokomish Indian Tribe.
2. Duties of Jefferson County.
During the term of this Agreement, Jefferson County shall:
a. Refuse to finalize the transfer of any property which is the subject of any of Trust
Land Transfer Applications, where the State Department of Natural Resources
requires an easement, restriction, or covenant in the proposed final transfer documents that violates or infringes on the Treaty Rights of the Tribes;
10 See December 1910 letter and petition signed by the Clallam Tribe of Indians of the State of Washington, placed in the Congressional Record, https://library.jamestowntribe.org/ld.php?content_id=51314817, Accessed August 3, 2024.
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b. Give written notice to all other Parties no later than five (5) business days from the date the Jefferson County first receives the proposed documents to transfer a property listed in a Trust Transfer Application. The notice may be sent via email
and shall be presumed received within one business day of the email being sent.
c. Give written notice to the tribes no later than ten (10) business days from the date Jefferson County has an in hand written near �inal language proposed to for the �inal transfer of a property that Jefferson County believes complies with the requirements of this Agreement. The written notice shall contain the proposed covenant language and the entire document in which it a part of or is expected to be a part of. The notice may be sent via email and shall be presumed received within one day of the email being sent.
d. Record with the Jefferson County Auditor an easement in substantially the same
form as in Appendix 2 to this Agreement for any property that is the subject of
the Trust Land Transfer Applications that is approved for transfer and funded by the Washington State Legislature that the Parties agree does not violate or interfere with the Treaty Rights of the Tribes.
The Parties agree that the duty imposed in Section 2.a. may be enforced against Jefferson
County by specific performance prior to the closing or final transfer from the Washington
State Department of Natural Resources to Jefferson County of any property that is the subject of the Trust Transfer Applications which are the subject of this Agreement.
3. Duties of the Jamestown S’Klallam Tribe, the Port Gamble S’Klallam Tribe, and the Point No Point Treaty Council.
During the term of this Agreement, the Jamestown S’Klallam Tribe, the Port Gamble S’Klallam Tribe, and the Point No Point Treaty Council separately and collectively shall:
a. Immediately (but no later than August 7, 2024) send and confirm receipt by the Washington Department of Natural Resources, which withdrawing comments about any of the Trust Transfer Applications described in this Agreement;
b. Refuse to assist any person with making adverse public comments objections to the Washington Department of Natural Resources about any of the Trust Transfer Applications described in this Agreement.
c. Refuse to disparage to any person any of the Trust Transfer Applications described in this Agreement;
d. Send a letter of support for all of the Trust Transfer Applications described in this agreement to the Washington Department Natural Resources by no later than one business day after the Effective Date of this Agreement in substantially the same form as in Appendix 3 to this Agreement.
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e. Provide a written objection to Jefferson County if any proposed covenant, easement or other restriction in any document related to the subject transfer for which Jefferson County has given written notice pursuant to Section 2.c.
interferes with the Tribes’ Treaty Rights as defined Section 1.m. no later than ten (10) days after the notice required by Section 1.m. has been received.
4. Result of a Failure A Party to Object Pursuant to Section 3.d.
The Parties agree that if neither the Jamestown S’Klallam Tribe, the Port Gamble S’Klallam Tribe, nor the Point No Point Treaty Council objects to the proposed covenant
language provided in the written notice required by Section 2.c., then Jefferson County may proceed to finalize the transfer of a property which is the subject of any Trust Transfer Application; provided the language proposed for closing is substantially the same as in the written notice required by Section 2.c. For the avoidance of doubt, a document is substantially the same if it corrects formatting, grammar, or the location in a document.
5. Procedure for Objections.
a. If the Jamestown S’Klallam Tribe, the Port Gamble S’Klallam Tribe, or the Point No Point Treaty Council timely objects to the covenant language after having received the written notice required by Section 2.c., and Jefferson County disagrees with the objection, then the Parties shall attempt to resolve the dispute
through a government to government consultation which shall be set to begin no later than ten (10) days of Jefferson County notifying the tribes in writing of the disagreement.
b. If a timely objection made pursuant to by Section 2.c. is unresolved by the government to government consultation required by Section 5.a., Jefferson County
shall not proceed with the land transfer.
6. Exercise of Treaty Rights by the Tribes and Members.
a. Nothing in this Agreement shall be interpreted as concession that the Parties agree with any interpretation treaty rights of tribes taken by the State of Washington or
any department of the State of Washington about the language of this Agreement
or otherwise. The Tribes point out that treaty rights are wholly a matter of federal law.
b. The Parties agree that fishing, hunting, and gathering by Members on any property that is the subject of the Trust Land Transfer Applications that are the subject of
this Agreement will be consistent with the use of such property, after final transfer
of such property to Jefferson County from the Washington Department of Natural Resources.
c. Tribal hunting and gathering is not inconsistent with the use of the land after final transfer to Jefferson County from the Washington Department of Natural Resources
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of any property that is the subject of the Trust Land Transfer Applications that are the subject of this Agreement.
7. Third-Party Beneficiaries.
The Parties do not intend, and nothing in this Agreement shall be construed to mean, that any provision in this Agreement is for the benefit of any other person or entity who is not a Party; except any Federally Recognized Indian Tribe who is a successor to the Treaty Rights of a tribe that was a party to the Treaty of Point No Point or other applicable Treaty is an intended beneficiary the Easement and the Easement only.
8. Jurisdiction Preserved.
Nothing in this Agreement shall be construed to cede or to alter any jurisdiction of any Party to this Agreement, to otherwise modify legal rights of any person not a Party to the Agreement, to accomplish any act contrary to local, state, tribal, or federal law, or to subject the Parties to liability to which they would not already be subject by law, except as specifically required by
this Agreement.
8. Controlling Law.
It is understood and agreed this Agreement is entered into in the State of Washington. This Agreement shall be governed by and construed under the laws of the United States, the State of Washington and the County of Jefferson, as if applied to transactions entered into and to be
performed wholly within Jefferson County, Washington between Jefferson County residents.
9. Amendment.
No changes or modifications to this Agreement shall be valid or binding upon the Parties unless such change or modifications are mutually agreed to in writing by the Tribes and Jefferson County and authorized and executed by the Jamestown S’Klallam Tribe, the Port Gamble
S’Klallam Tribe, and Jefferson County in the same manner and formality as the original Agreement by authorized representatives of the Jamestown S’Klallam Tribe, the Port Gamble S’Klallam Tribe, and Jefferson County. While the Point No Point Treaty Council is a Party, it does not have Treaty Rights and acts at the direction of its members, the Jamestown S’Klallam
Tribe and the Port Gamble S’Klallam Tribe.
10. Severability.
It is understood and agreed to by the Parties hereto that if any part or provision of this Agreement, or its application to any person or circumstances, is held illegal or invalid, the remaining parts or provisions, or application of the parts or provisions of the Agreement to other persons or
circumstances, shall not be affected, and the rights and obligations of the Parties shall be
construed as if the Agreement did not contain the illegal or invalid part.
11. Integration.
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This Agreement contains terms and conditions agreed upon by the Parties. The Parties agree that there are no other understandings, oral or otherwise, regarding the subject matter of this Agreement.
12. Notice
Any notice required or permitted to be given under this Agreement shall be deemed sufficient if given in writing and sent by registered or certified mail.
a. Jefferson County notices shall be sent to:
Jefferson County Risk Manager
Jefferson County
120 Jefferson Street Port Hadlock, WA 98339
Phone: (360) 385-9102
Email: amcknight@co.jefferson.wa.us
b. Jamestown S’Klallam Tribe notices shall be sent to:
Office of the COO
Jamestown S’Klallam Tribe
1033 Old Blyn Hwy, Sequim, WA 98382 Phone:(360) 683-1109 Email: info@jamestowntribe.org
c. Port Gamble S’Klallam Tribe notices shall be sent to:
Kelly Sullivan
Executive Director Port Gamble S’Klallam Tribe 31912 Little Boston Road NE Kingston, Washington 98346
Phone: (360) 297-2646
Email: kellys@pgst.nsn.us
d. Point No Point Treaty Council notices shall be sent to:
Randy Harder Executive Director
Point No Point Treaty Council 19472 Powder Hill Place NE, Suite 210, Poulsbo, WA 98370 Phone: 360-297-6500 Email: rharder@pnptc.org
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9. Entire Agreement.
This Agreement memorializes the entire agreement of the parties and all parts of this Agreement are contained herein. The Parties agree that:
a. No representation or promise not contained in this Agreement has been made.
b. They are not entering into this Agreement based on any inducement, promise or representation, expressed or implied, which is not contained in this Agreement.
c. This Agreement supersedes all prior or simultaneous representations, discussions, negotiations, and agreements, whether written or oral, within the scope of this
Agreement.
10. Attachments.
Any document in this Agreement identified as an attachment is part of this Agreement and is incorporated by reference into this Agreement.
11. Section Headings.
The headings of the sections of this Agreement are for convenience of reference only and are not intended to restrict, affect, or be of any weight in the interpretation or construction of the sections or this Agreement.
12. No Oral Waiver.
No term or provision of this Agreement will be waived by either Party, and no breach excused by
either party, unless such waiver or consent is in writing signed on behalf of the Party against whom the waiver is asserted. Failure of a Party to declare any breach or default immediately upon the occurrence thereof, or delay in taking any action in connection with, shall not waive such breach or default.
13. No Assignment.
Neither the Tribes, no the Point No Point Treaty Council shall sell, assign, or transfer any of rights obtained by this Agreement without the express written consent of Jefferson County.
14. Binding on Successors and Assigns.
This Agreement shall be binding upon and inure to the benefit of the Parties’ successors in
interest and assigns.
15. Facsimile and Electronic Signatures.
The Parties agree that facsimile and electronic signatures shall have the same force and effect as original signatures.
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16. Arms-Length Negotiations.
The Parties agree that this Agreement has been negotiated at arms-length, with the assistance and advice of competent, independent legal counsel.
17. Survival.
Those provisions of this Agreement that by their sense and purpose should survive the term of this Agreement shall survive the term of this Agreement. Without limiting the generality of the preceding sentence, and for the avoidance of doubt, the provisions that survive the term of this agreement include: (a) Limited Waiver of Sovereign Immunity by the Tribes; (b) Governing
Law, Dispute Resolution and Venue; and, (c) Easement.
18. Representations and Warranties.
a. Each person signing this Agreement has the power and authority to enter into this Agreement on behalf of the Party for whom signature is being made.
b. The making and performance of this Agreement will violate no provision of law or
of any Party’s articles of incorporation, constitution, by-laws, or charter; and,
c. Each Party has taken all necessary internal steps required to duly approve the making and performance of this Agreement, including required authorization by a Party’s legislative body, and that no additional internal step for approval is necessary.
EXECUTED by the Parties on the dates indicated in the signature pages below:
(SIGNATURES FOLLOW ON THE NEXT PAGES)
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LEGAL REVIEW
Approved as to form: Jefferson County Prosecuting Attorney’s
Office _________________________________ Philip C. Hunsucker, WSBA No. 46892
Chief Civil Deputy Prosecuting Attorney Counsel for Jefferson County
_____________________________
Date
Approved as to form: Law Offices of Lauren P. Rasmussen, PLLC
__________________________________ Lauren P. Rasmussen, WSBA No. 33256
Counsel for the Point No Point Treaty Council
_____________________________
Date
August 6, 2024
JEFFERSON COUNTY, WASHINGTON
Kate Dea�!¥ Jeff er on County Board of Commissioners g //_/ ti ,,, ....... ...._ I W,�1 ,,,,,·;��!����.o+ � Date / ,•c,olAM'8ifi·•.'"Q� .. Qj;· c:;. Attest: f � { 8-_,¾ i!\ �� �. ,. -< \ �\ i \o,;:•..... . .. -� .--, � ·········':f..o'_,
£2C · , ,✓, ,,,,,,, �SHING .,,(_ t ,., e,l ,,,.,,, .. , .... ,,,.,.
Carolyn Gal]!away, CMC Clerk, Jefferson County Board of Commissioners
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PORT GAMBLE S’KLALLAM TRIBE
_____________________________ [Name] _____________________________ [Title] _____________________________
Date
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POINT NO POINT TREATY COUNCIL
_____________________________ [Name] _____________________________ [Title] _____________________________
Date
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APPENDIX 1 – TREATY OF POINT NO POINT
PROCLAMATIONS,
1863.
Preamble.
�e�s•�heof 0
Treaties,
'.Reservation.
934
Vol. 1044.
be for debts of
es.
26• 1866•
01·
X
Now,
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APPENDIX 2 – TREATY RIGHTS EASEMENT
APPENDIX 2 – TREATY RIGHTS EASEMENT
Treaty Rights Easement 1
(August 6, 2024 Version)
Recording Requested by
and Return to:
Jefferson County Prosecuting
Attorney’s Office
P.O. Box 1220
Port Townsend WA 98368
_____________________________________________________________________________________
TREATY RIGHTS EASEMENT
This Treaty Rights Easement (“Easement”) is entered into and effective the ____ day of
______________________, ______, between the Jamestown S’Klallam Tribe, with an address of
1033 Old Blyn Hwy, Sequim, WA 98382, the Port Gamble S’Klallam Tribe, with an address of
31912 Little Boston Road NE, Kingston, Washington 98346, the Point No Point Treaty Council,
with an address of 19472 Powder Hill Place NE, Suite 210, Poulsbo, WA 98370 and Jefferson
County, a political subdivision under the laws of the State of Washington, with an address of 1820
Jefferson Street, Port Townsend, WA 98368. For purposes of this Easement, Jefferson County,
the Jamestown S’Klallam Tribe, the Port Gamble S’Klallam Tribe, and the Point No Point Treaty
Council collectively may be referred to for convenience as the “Parties” or, individually, as a
“Party.”
RECITALS
WHEREAS, the Tribes (defined below), including the Port Gamble S’Klallam Tribe and
the Jamestown S’Klallam Tribe, have Treaty Rights under the Treaty of Point No Point; and
WHEREAS, the Point No Point Treaty Council (defined below) is a tribal consortium for
the Port Gamble S’Klallam and Jamestown S’Klallam Tribes by providing natural resources
management services; and
WHEREAS, Jefferson County is a municipal corporation within the State of Washington;
and
WHEREAS, Jefferson County honors the treaty rights of all Indian tribes that have usual
and accustomed fishing and hunting rights within Jefferson County; and
WHEREAS, the Parties recognize that under principles of preemption, Jefferson County
is prohibited by from taking actions that violate state law, even when Jefferson County does not
agree with state law; and
WHEREAS, Washington State Department of Natural Resources is authorized by RCW
79.17.300 to create and manage a trust land transfer program, in which the department uses use
legislative appropriations for approved trust land transfers to acquire replacement real property
that will provide long-term, sustainable revenue to the trust beneficiaries or is otherwise desirable
to be added to the affected trust; and
APPENDIX 2 – TREATY RIGHTS EASEMENT
Treaty Rights Easement 2
(August 6, 2024 Version)
WHEREAS, RCW 79.17.020 authorizes the Jefferson County Board of Commissioners to
exchange land Jefferson Count owns for State Trust Lands managed by the Washington
Department of Natural Resources; and
WHEREAS, Jefferson County has obtained title to the Property after a Trust Land
Transfer Application was approved by the Washington Department of Natural Resources and
funded by the Washington State Legislature after the Jamestown S’Klallam Tribe, the Port Gamble
S’Klallam Tribe, and the Point No Point Treaty Council supported the Trust Land Transfer
Application pursuant to the Trust Land Transfer Agreement between them and Jefferson County;
and
WHEREAS, in exchange for the support of the Jamestown S’Klallam Tribe, the Port
Gamble S’Klallam Tribe, and the Point No Point Treaty Council for its Trust Land Transfer
Application Jefferson County agreed in the Trust Land Transfer Agreement to record this Treaty
Rights Easement with the Jefferson County Auditor, with such recording fully satisfying Jefferson
County’s obligations under Trust Land Transfer Agreement; and
NOW, THEREFORE, for the consideration described above, the receipt and sufficiency
of which the Parties hereby acknowledge, the Parties hereto covenant and agree as follows:
TREATY RIGHTS EASEMENT
1. Purpose of this Easement. The Easement granted hereunder shall be used solely for the
purpose preserving and protecting the Treaty Rights (as defined below) of the Tribes (as
defined below) and Members (as defined below) to exercise their Treaty Rights on the
Property (as defined below).
2. Definitions.
As used in this Easement, the following conventions and definitions shall apply:
a. Word use. Words used in this Agreement are to be taken and understood in their
natural and ordinary sense. Words not defined in this request are meant to have
their usual and ordinary meaning in the context used and as defined in the
Dictionary by Merriam-Webster (https://www.merriam-webster.com/), unless this
Agreement indicates that a different meaning was intended. Whenever the
following terms are used in this Agreement (including, without limitation, this
Section 2), the meanings in this Section 2 apply.
b. Singular or plural use of words. The use of the singular form of a word includes
the plural form and vice versa.
c. And & Or. “And” means “or” and “or” means “and,” so as to make the term
inclusive rather than exclusive.
d. “Easement” means this Treaty Rights Easement.
APPENDIX 2 – TREATY RIGHTS EASEMENT
Treaty Rights Easement 3
(August 6, 2024 Version)
e. “Federally Recognized Indian Tribe” has the same meaning as in 48 CFR §
1480.201, which states “Federally Recognized Indian Tribe” means an Indian
Tribe, band, nation, or other Federally recognized group or community on the List
of Federally Recognized Tribes. This definition includes any Alaska Native
regional or village corporation under the Alaska Native Claims Settlement Act
(ANSCA).”
f. “Jefferson County” means Jefferson County, Washington, a political subdivision
of the State of Washington, whose headquarters address is 1820 Jefferson Street,
Port Townsend, WA 98368 and whose mailing address is P.O. Box 1220, Port
Townsend, WA 98368.
g. “List of Federally Recognized Tribes” means the List of Federally Recognized
Tribes,” means the list described in 25 U.S.C. § 5131. The current List of Federally
Recognized Tribes means the List of Federally Recognized Tribes can be located
in the 89 FR 5 [FR DOC #2024-00109] (January 8, 2024).
h. “Jamestown S’Klallam Tribe” means the Federally Recognized Indian Tribe,
whose headquarters is currently located at 1033 Old Blyn Highway, Sequim, WA
98382, and who is a successor to the S’Klallam tribe’s treaty rights under of the
Treaty of Point No Point.
i. “Member” means a member of any Federally Recognized Indian Tribe that has
Treaty Rights under the Treaty of Point No Point.
j. “Parties” means the Jamestown S’Klallam Tribe, the Port Gamble S’Klallam Tribe,
the Point No Point Treaty Council and the Jefferson County collectively.
k. “Party” means one of the Parties.
l. “Port Gamble S’Klallam Tribe” means the Federally Recognized Indian Tribe,
whose headquarters is currently located at 31912 Little Boston Road NE, Kingston,
Washington 98346, and who is a successor to the S’Klallam tribe’s treaty rights
under of the Treaty of Point No Point.
m. “Property” means the property that is the subject of this Easement, which is
described by its Jefferson Assessor Parcel number, which is [ADD], its Washington
Department of Natural Resources Parcel ID Number, which is [ADD] and which
has a full legal description in Appendix A.
n. “Treaty of Point No Point” means the treaty signed by Governor Isaac Stevens on
behalf of the United Stated with representatives of the S’Klallam, the Chimacum,
and the Skokomish tribes1 on January 16, 1855 at Point No Point, on the northern
1 See December 1910 letter and petition signed by the Clallam Tribe of Indians of the State of Washington,
placed in the Congressional Record, https://library.jamestowntribe.org/ld.php?content_id=51314817, Accessed
August 3, 2024.
APPENDIX 2 – TREATY RIGHTS EASEMENT
Treaty Rights Easement 4
(August 6, 2024 Version)
tip of the Kitsap Peninsula, and which was ratified by the United States Senate on
Mar. 8, 1859. The Treaty of Point No Point can be found at 12 Stat. 933, 2 KAPP
674 (1855).
a. “Treaty Rights” means the rights secured in perpetuity to the signatory Indian
tribes and their successors in the Treaty of Point No Point, which states in
Article 4:
Privileges to
Indians
ARTICLE 4. 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 United States; 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. Provided, however,
That they shall not take shell-fish from any beds staked or
cultivated by citizens.
(See 12 Stat. 933, 2 KAPP 674 (1855)), and any other applicable treaty with Indian
tribes that encompasses the property.
o. “Trust Land Transfer Agreement” means the Trust Land Transfer Agreement
between the Jamestown S’Klallam Tribe, the Port Gamble S’Klallam Tribe, the
Treaty of Point No Point Council and Jefferson County.
3. “Tribes” means a Federally Recognized Indian Tribe, who is a successor to the
Treaty Rights in Article 4 of the Treaty of Point No Point, including but not limited
to the Jamestown S’Klallam Tribe, the Lower Elwha Klallam Tribe, the Port
Gamble S’Klallam Tribe, and the Skokomish Indian Tribe.
4. Grant of Easement. Jefferson County (as the owner of the Property) hereby GIVES,
GRANTS, EXTENDS, CONFERS AND CONVEYS unto the Tribes and their Members
a perpetual, non-exclusive easement over, under and across the Property shown hachured
on Appendix B for the purposes described in this Easement, and as limited by the terms of
this Easement.
5. Use of Easement.
a. This Easement grants Tribes and Members access in, upon, over and across the
Property as described below.
b. Members shall have access the property to exercise their Treaty Rights.
c. Tribal hunting and gathering is not inconsistent with other uses of the land.
For the avoidance of doubt, this Easement does not apply to guests of Members who are
not themselves Members.
APPENDIX 2 – TREATY RIGHTS EASEMENT
Treaty Rights Easement 5
(August 6, 2024 Version)
6. Entire Agreement. This Easement constitutes the whole agreement between the Parties
hereto with respect to the subject matter hereof and no warranties, agreements or
representations have been made or shall be binding upon either Party unless set forth within
this Easement or within a written addendum executed by the Parties. All prior oral
agreements relating to the subject matter hereof between the Parties related to this
Easement are merged into and superseded by this Easement.
7. Amendments. This Easement may not be amended, modified or changed except by a
writing signed by all of the Parties.
8. Notice.
9. All notices shall be addressed to the Parties at such addresses as are specified at the head
of this Easement, or as each of the Parties may from time to time direct in writing. Any
notice under this Easement shall be in writing and be delivered in person or by public or
private courier service (including U.S. Postal Service Express Mail and Federal Express)
or certified mail or by facsimile. Any notice given by certified mail shall be sent with
return receipt requested. Any notice given by facsimile shall be verified by a facsimile
confirmation. All notices pursuant to facsimile shall be sent to such facsimile number as
the Parties may direct in writing. Any notice shall be deemed to have been given on (a)
actual day or delivery or refusal, (b) the day of mailing by registered or certified mail, or
(c) the day facsimile delivery is verified; provided, however, that if the facsimile is
confirmed after 5:00 o’clock p.m., the facsimile notice shall be deemed given the next
business day.
10. Time. Time is of the essence for this Easement.
11. Counterparts. This Easement may be executed in counterparts, and upon every Party
having executed a counterpart, each signed copy shall have the same force and effect as an
original document and as if the Parties to the counterparts had signed the same document.
12. Covenants Running With Land. This instrument and easements granted herein are
perpetual in duration and shall run with the land and shall be binding on and shall inure to
the benefit of the Parties hereto, their heirs, executors, administrators, successors, and
assigns.
13. Severability. If any term or provision of this Easement or the application of it to any Party
or circumstance shall to any extent be invalid or unenforceable, the remainder of this
Easement or the application of such term or provision to Parties or circumstances, other
than those as to which it is invalid or unenforceable, shall not be affected thereby, and each
term and provision of this Easement shall be valid and shall be enforced to the extent
permitted by law.
14. Recitals. The Recitals of this Easement are not mere recitals but are agreed upon by the
Parties as a part of this Easement.
APPENDIX 2 – TREATY RIGHTS EASEMENT
Treaty Rights Easement 6
(August 6, 2024 Version)
15. Captions and Headings. The captions and headings in this Easement are for reference only
and shall not be deemed to define or limit the scope or intent of any of the terms, covenants,
conditions or agreements contained in this Easement.
16. Construction. In construing the provisions of this Easement and whenever the context so
requires, the use of a gender shall include all other genders, the use of the singular shall
include the plural, and the use of the plural shall include the singular.
17. Appendices. The appendices attached are incorporated herein and made a part hereof to
the full extent as if each were set forth in its entirety in the body hereof.
18. No Dedication. Nothing contained in this Easement shall be deemed to be a gift or
dedication of all or any part of the 7th Hendricks Property or the Property or any portion
thereof to the general public, or for any public purposes whatsoever, it being the intent of
the Parties that this Easement shall be strictly limited to the purposes herein expressed.
19. Governing Law. This Easement shall be governed by and construed and enforced in
accordance with the laws of the State of Washington.
(SIGNATURES ON FOLLOWING PAGE)
APPENDIX 2 – TREATY RIGHTS EASEMENT
Treaty Rights Easement 7
(August 6, 2024 Version)
IN WITNESS WHEREOF, the undersigned has executed this instrument as of the day and
year first above written.
JEFFERSON COUNTY WASHINGTON
Board of County Commissioners
Jefferson County, Washington
By:
_________________________, Chair
STATE OF WASHINGTON )
) ss
County of Jefferson )
On this _______ day of __________, 2021, before me, a Notary Public in and for said
State, personally appeared [NAME], known to me to be the person whose name is subscribed to
the within instrument and acknowledged that s/he executed the same for the purposes therein
contained.
[SIGNATURE]
[PRINTED NAME],
Notary Public for the State of Washington
Residing at
My Commission Expires
Approved as to form only:
Philip C. Hunsucker Date
Chief Civil Deputy Prosecuting Attorney
APPENDIX 2 – TREATY RIGHTS EASEMENT
Treaty Rights Easement Agreement 8
(August 4, 2024 Version)
APPENDIX A - LEGAL DESCRIPTION
The Land referred to herein below is situated in the County of Jefferson, State of
Washington, and is described as follows:
[LEGAL DESCRIPTION HERE]
APPENDIX 2 – TREATY RIGHTS EASEMENT
Treaty Rights Easement Agreement 9
(August 4, 2024 Version)
APPENDIX B - TREATY RIGHTS EASEMENT DEPICTION
[DEPICTION HERE]
20
(8/6/2024 1:34 PM Version)
APPENDIX 3 - LETTER OF SUPPORT
APPENDIX 3 – LETTER OF SUPPORT
[Letterhead Here]
Via Email and Regular Mail
August 6, 2024
[Name,
Title,
Washington State Department of
Natural Resources,
Address and Zip Code Here]
Re: Support for Jefferson County Trust Land Transfer Applications
Dear [Name Here]:
We write on behalf of the Jamestown S’Klallam Tribe, the Port Gamble S’Klallam Tribe,
and the Point No Point Treaty Council to support the Jefferson County trust land transfer
applications submitted to the Washington department of Natural Resources.
The Jamestown S’Klallam Tribe and the Port Gamble S’Klallam Tribe are Federally
Recognized Indian Tribes, with hunting and gathering rights in Jefferson County arising from the
Treaty of Point No Point Treaty of 1855. The Point No Point Treaty Council is a tribal consortium
that provides the Port Gamble S’Klallam and the Jamestown S’Klallam Tribes with natural
resources management services. Several months ago, both Tribes objected to the transfer under the
TLT program due to concerns that the transfer could lead to a diminishment or reduction of treaty
access and use of the proposed lands. Because of this, the Tribes asked for and received assurances
that Jefferson County supports treaty access and use of the properties and have documentation and
an agreement in place that resolves the Tribes’ concerns should the properties be chosen so long
as DNR does not place undue restrictions on the use of the properties that would interfere with
Treaty rights.
With this agreement in place, we are in full support of the applications and withdraw our
prior objections.
Jefferson County has four applications for trust land transfer’s pending with the
Washington Department of Natural Resources (DNR). These four applications for trust land
transfer are:
Jefferson County - Anderson Lake TLT Application (DNR Parcel ID: 6349);
APPENDIX 3 – LETTER OF SUPPORT
Jefferson County - Beaver Lake TLT Application (DNR Parcel ID: 6247);
Jefferson County - Cape George TLT Application (DNR Parcel ID: 6509); and,
Jefferson County - Jacob Miller TLT Application (DNR Parcel ID: 6354).
We know that DNR’s goal is to work toward collaborative relationships and good
communication with Tribes in all its programs, we sincerely encourage DNR to support the
applications and welcome Tribal Treaty use and access on these properties which are located in
our homeland, and communicate with us directly if any issues arise.
We hope DNR will take our Tribes’ support for these applications into consideration when
scoring these Jefferson County trust land transfer applications.
[SIGNATURE HERE]
21
(8/6/2024 1:34 PM Version)
APPENDIX 4 - JEFFERSON COUNTY TRUST LAND TRANSFER APPLICATION PARCEL DETAILS
Anderson Lake DNR Parcel ID: 6349
Jefferson County ID:21775
Jefferson County Parcel # / Geo ID: 901162001
Abbreviated Legal Description: S16 T29 R1W NW ¼
Jefferson County ID:21776
Jefferson County Parcel # / Geo ID: 901163001
Abbreviated Legal Description: S16 T29 R1W SW1/4
Jefferson County ID:21774
Jefferson County Parcel # / Geo ID: 901161005
Abbreviated Legal Description: S16 T29 R1W W1/2 NE, SE1/4
Jefferson County ID:21772
Jefferson County Parcel # / Geo ID: 901161003
Abbreviated Legal Description: S16 T29 R1W SE NE
Abbreviated Legal Description: S8 T30N R1W W1/2 NW1/4 & NW1/4 SW1/4
Beaver Valley DNR Parcel ID:6247
Jefferson County ID:20359
Jefferson County Parcel # / Geo ID: 821070001
Abbreviated Legal Description: S7 T28 R1E BALANCE OF SECTIN SUBJ TO EASE TO DAGGETT
Cape George DNR Parcel ID:6509
Jefferson County ID:11951
Jefferson County Parcel # / Geo ID:2134002
Abbreviated Legal Description: S13 T30 R2W S1/2 SE(LS R/W FOR CO RD)
Jefferson County ID:11953
Jefferson County Parcel # / Geo ID:2241004
Abbreviated Legal Description: S24 T30 R2W BALANCE OF SECTION SUBJ/EASE #101652
Jacob Miller DNR Parcel ID:6354
Jefferson County ID:10586
Jefferson County Parcel # / Geo ID:1082020
Abbreviated Legal Description: S8 T30N R1W W1/2 NW1/4 & NW1/4 SW1/4
APPENDIX 4 - JEFFERSON COUNTY TRUST LAND TRANSFER
APPLICATION PARCEL DETAILS