Kah Tai Lagoon Nature Park - Status Update

Admiralty Audubon Program for November: Kah Tai Status Update

The public is invited Thursday, 17 November at 7 p.m.
Port Townsend Community Center, Lawrence and Tyler

Following the recommendation of the Washington State Recreation and Conservation Office on 7 September, the National Park Service concurred on 27 September that all 78.5 acres included in the original Kah Tai Lagoon Nature Park boundary are protected in perpetuity.

Historic records were used to demonstrate to officials at City, State and Federal levels that the original intent of the Park was clear. Many of those documents came from public records requests to government offices at all levels and from long hours of internet searching of government records available online. Where government records needed supplementation, seven boxes of citizen archives provided critical details. The archives of the Friends of Kah Tai were stored in attics, under beds, in basements and closets of numerous Friends in their 30+ years of existence, just waiting to finally tell their story.

Rick Jahnke will discuss how the NPS ruling affects Kah Tai and the citizens of Port Townsend.

just a reminder

curiouser and curiouser

Today we have another presentation of some target-rich text in the Port's lawsuit.

"4.4 Plaintiff Port first learned of the existence of the claim of interest in the United States in the Subject Property on or after 2008, when the defendants state Recreation and Conservation Office and defendant the US National Park Service and others communicated the United State's intent to encumber the Subject Property via recordation of a re-created Map purporting to depict a US Land and Water Conservation Fund Act (16 USC section 4601-4 - 4601-11) section 6(f) grant-based use restrictions would encumber the Port's property and restrict it to "park" purposes."

[4.5 and 4.6 address RCO recommendation and NPS ruling in September 2011]

"4.7 Prior to such time, and no sooner than 2008, Plaintiff Port had no reason to know of the claim of interest of the United States or its agencies in the Subject Property, and in fact the City and state agency RCO had disavowed in writing any continuing encumbrance on the Port's Subject Property beyond the Port-City lease term which terminates in July 12, 2012.

4.8 Plaintiff Port is informed and believes, and thereon alleges, that none of the plaintiff's predecessors in title knew or had reason to know of the existence of the claim of interest of the United States or its agencies in the Subject Property at any time prior to 2008" (emphasis added).

As an LWCF park, Kah Tai was inspected every five years. Among the documents found in public records requests are the ones shown here (click on images to enlarge). The upper image is the cover letter for the 2005 inspection. Note it is from IAC, which is responsible for compliance inspections in LWCF parks. Note also that it is addressed to the current port manager and that it lists both state grant number 81-043A and the FEDERAL LWCF grant number 53-00486.

The lower image is the actual inspection report. Note that it says LWCF in the upper right, and that it lists the Port as 'project sponsor'. The inspection comments are 'Very attractive facility with trails around lagoon, restroom and picnic shelter being the prominent site improvements. Trail access is possible from several locations around the lagoon, with primary parking provided at the trailhead at 12th Street.'

Note the inspection included evaluation of use for intended purpose, compliance or evidence of conversion. Note that signage to acknowledge funding program and partners is checked.

This inspection was in 2005. The port manager received the report. How can the Port claim not to know about Kah Tai's LWCF status before 2008?

anybody want a copy of that contract?

Continuing with the Port lawsuit, paragraph 4.3 from the 24 October post:

If the Port is attempting to suggest that the City leading the application process and the Port merely being a 'signator' absolves the Port of any obligation, note the language in the IAC grant manual in force at the time (IAC Participation Manual #5: Application Policy and Procedure, January 1979):

5.03 Special Application Conditions

5.03A Joint Projects: Joint projects are where one jurisdiction owns the property which is to be developed by another. In each case, a prime sponsor must be identified through an appropriate resolution passed by both agencies. In these instances, each agency will be required to sign the Application and Project Contract and be bound by the terms and conditions therein [emphasis added].

The City record is replete with resolutions as described by 5.03A but the Port's record is less transparent, particularly with the loss of all manager's reports for the period. However, we can be certain that at some point prior to signing the 1981 grant project contract, the Port had done the paperwork to be a proper IAC applicant.  In City minutes in the early 1970s, the Port tried to get the City to participate in an IAC grant for a park in the Kah Tai area. And by 1977, the Port requested and received an IAC retroactive waiver for the HJ Carroll property on the western boundary of Kah Tai. Why would the IAC grant a waiver to an entity that was not already a proper applicant?

creation of 'facts' from fallacies

Section 4.3 of Port's Quiet Title lawsuit: "An encumbrance consisting of a US Land and Water Conservation Fund Act (16 USC section 4601-11) section 6(f)(3) grant-based use restriction by which the use of the Port Property is restricted to park uses purportedly due to the Port's lease of the Subject Property to the City of Port Townsend via a thirty year term lease which allowed the City of Port Townsend to qualify for a US Department of Interior grant for park purposes which included acquisition of lands other than the Port's Subject Property for which the Port was also a signator on the grant application."

That's one incredibly long, target-rich sentence.

1. No one but the Port 'purports' any such thing. Lease is irrelevant to the 6(f) ruling. RCO, NPS and anyone who can subtract 30 from 2012 agree on this. The 20+ acre lease in question was signed in 1982. The acquisition grant contract was signed in 1981. The grant application's assurances of compliance were signed in 1980. The retroactive waiver requested by the Port for the HJ Carroll land to be included in an LWCF park was 1977/78!

2. Since the lease for 20+ acres did not exist in 1980 or 1981, it cannot be what 'allowed' the City to 'qualify' for anything.

3. The only lease in place between the City and Port in late 1980/early 1981 was for a few underwater parcels and a 10-ft strip of shoreline on the southeastern side of the lagoon so that the boundary of the area containing all private parcels to be purchased would be controlled by the City. And even this lease was an afterthought, toward the end of the application process, to help the acquisition grant application earn enough points in the evaluation process to qualify for funding.

4. The lease in 1982, for 20+ acres of Port land, was needed by the Port because it offered them control of City-owned rights of way in the boat yard, which the Port required for their own Comprehensive Plan. The City also needed to show control of the Port land for its 1983 IAC development grant application because the Port had not yet transferred its property to the City as it had agreed to do in the acquisition grant application process.

"Somehow it seems to fill my head with ideas---only I don't exactly know what they are!"

Alice in Wonderland, after reading the poem Jabberwocky

rewriting history, in lieu of facts

6 December 2001 - Email, Port Manager to City Attorney: "We have the IAC Grant contract in our files. There are no port signatures on the document...I have also checked our Commission minutes and there is not mention of any Port Commission approval of any such IAC grant. I will keep checking."

16 August 1982 - Port Commission minutes: "Review of Kah Tai Park Plan Paul Jacobson and Mark Welch, Representatives of the City of Port Townsend Park Board and Steve Hayden of the Citizen Advisory [sic] presented to the Commission a detailed plan of the proposed park [subject of IAC grant]...the representatives pointed out that the present plans could change dependent on monies available and that the park would take several years before completion. [Port Commission President] Mr. Thompson moved to approve the plans as submitted. Motion passed unanimously." (emphasis added)
---
There are no port signatures on the 1983 grant contract because it was a city grant with the state. There ARE port signatures on the 1981 grant contract with the state (IAC, now RCO) and federal (NPS) government. And perhaps there would be much more information about both grants if all the port manager's reports hadn't disappeared from port archives...

pre-planning an insanity defense

The Port Commission voted to go forward with their quiet title lawsuit against NPS, RCO and the City on 14 September 2011 - one week after RCO recommended the full boundary as 6(f)(3) and two weeks before NPS ruled. It seems they recognized the NPS handwriting on the wall before it was actually written.

One of the more curious aspects of the lawsuit is that it sues the City for attorney fees to sue the City. And the City is not being sued because they've done anything legally offensive. The City is named because they had the audacity to follow the terms of the 1982 lease with the Port and manage the park land as park land because the lease said it could only be managed as park land or the lease would be void. But because it was managed as park land, it is the City's fault that RCO and NPS decided it was park land and called it 6(f) protected, so it is the City's fault that the lease wasn't ignored and the land mismanaged.

What rabbit hole have we just fallen into?

good advice from a Friend of Kah Tai

I hope the interested public will carefully read the record that WA State RCO and the National Park Service recently agreed clearly shows that previous Port authorities had fully committed the land in question to the full 78+ acre park. This became a legal limitation that runs with the title to the full park configuration on acceptance of the Federal Land and Water Conservation Funds by those previously authorized to do so on behalf of the public entity known as the Port of Port Townsend.  There are irregularities in the post-award grant management that have been documented that by no means negate the RCO recommendation and NPS decision. Contrary to the Port manager's interview in today's Leader, the Port has not yet fully exercised its administrative options to apply for a conversion of the land from outdoor recreational use to whatever while providing land of equal environmental value offsite.

As we watch this fools' parade, the commissioners, manager, manager's staff and contract lawyer should be asked what happened to the former port manager's reports from the 1980's?  That would settle the intent of the Port at the time of the grant implementation. We now are fortunate that past managers and mayors are willing to step forward and certify their intent and official involvement in this important and historical moment in the survival of this wonderful open space jewel.

Commissioner Thompson has indicated his continued wish that the land be used for extensive commercial development. So long birds, so long trees, hello pavement. Is that the opinion of the public he represents?

Until this is resolved, please urge the City and Port officials to renew the lease so that the City and its volunteer corps can continue to protect and maintain this wonderful resource land for walking, birding, playing, sky watching, and all those activities that really make us human.

Paula Mackrow
Friends of Kah Tai Board

the neverending story

acquisition boundary draft, 1980

 The article in the Port Townsend Leader today presents an interesting version of history. That would be 'history' according to the Port of Port Townsend. The map provided in the electronic article is a draft that indicated only private parcels to be purchased, and yet the caption claims that it indicates the land protected by 6(f). The same caption is on the map in the electronic subscription version, except that the private parcels aren't shown and the Port land is all blacked out and not within the 6(f) boundary.

authenticated final park boundary, 1980

The various map drafts were hand-drawn back in 1980 during the application process, so all are originals. The upper left map here is a version for which the base map is dated June 1980 (click on image to enlarge). Note that in this version, what is parcel S in the Leader article map is parcel Y here. The 'Boundary' that the title refers to is the acquisition boundary around the private parcels to be purchased or donated.

At the lower left is the final park project boundary (as opposed to acquisition boundary) map that was submitted on 18 November 1980 and authenticated in June 2011 by the person who drew it in 1980 and submitted it to RCO (IAC) Director Robert Wilder, who submitted it to NPS. Note the differences in the final private parcels, including their letter designations. Note that both of these versions include an additional parcel labeled 'U' in the southeastern quadrant, not included in the draft map in the Leader.

The 18 November 1980 map is the only map in the RCO or NPS archives where the total number of parcels and their letter designations matches the acquisition schedule that was submitted in the grant application process. The solid black line was drawn in at that time over the dashed gray full park boundary because, to quote the artist, "...the light gray does not copy well, and copied even less well in 1980 - thus the black line overlying it. A careful scrutiny shows it is indeed identical to the black line, which accurately portrays the final project boundary."

The mere filing of a lawsuit does not change the NPS ruling, which is not appealable. The boundary is the full 78.5 acre park, according to RCO. According to NPS. And according to the grant application agreed to by City and Port elected officials 30 years ago.

The link to today's 'history' lesson on the Leader's public website is below.

http://ptleader.com/main.asp?SectionID=36&SubsectionID=55&ArticleID=30236

tackling urban myths, continued

Another day, another rebuttal to less-than-illuminating comments regarding the recent Leader article  about the NPS ruling protecting Kah Tai.

To the authoritative-sounding comments from the park 'historian': The Kah Tai Alliance is an entity of varying composition that has coalesced and dissolved several times in the last 30+ years. It arose in the 1970s from efforts to save what remained of Kah Tai Lagoon from development. Kah Tai became PT's first Adopt-A-Park in late 2001 and the adoption was by the Kah Tai Alliance. The iteration of the KTA in 2001 included Admiralty Audubon, Jefferson Land Trust, Friends of Kah Tai, People for a Livable Community and Port Townsend High School Environmental Club.

Note that Friends of Kah Tai and Audubon are both named explicitly in the 1981 LWCF park grant narrative and Admiralty Audubon and Kah Tai Alliance are named explicitly in the US Fish and Wildlife publication: Important Fish and Wildlife Habitats of Washington (http://hdl.handle.net/2027/umn.31951002875369y) (Important fish and wildlife habitat of Washington: an inventory (1978). US Fish and Wildlife Service 85 pp.).  The Alliance may be silent at the moment, but the organizations that fostered the most recent iteration are mostly alive and quite well, thank you.

If the Port had cancelled the lease early as suggested by the same commenter, they would have lost control over the City ROWs in the boat haven early as well, an issue yet to be resolved. If the Port had cancelled the lease early, the LWCF rules would still be in place and they would have to manage the land as a park. However, there are RCWs which suggest that ports cannot as a rule legally manage parks - more on that soon.

The City offered to plant approx. 450 tree seedlings (Douglas Fir, Shore Pine, Willow spp., Cottonwood and Western Red Cedar, not a single exotic on the list) in 2001-2002 but the Port threatened legal action against them to stop the effort. So while the Port insists that the City maintain the park it refuses to let them do so. The Port administration claims that they knew nothing about any plans to develop the park and that permission is required for any effort, even though back in 1982, members of the Parks Board gave the Port Commission a detailed briefing on the plans for park development and the Commissioners passed the plan as presented, unanimously (more on this soon as well). This information is available in the Port minutes.

And then there's the comment from a former port commissioner who was in office in 2003 when the Port prepared its 20-year Comprehensive Scheme (http://www.portofpt.com/comp_scheme.htm) that chose Alternative 2 for Kah Tai - No Development, with an EIS that declared that any development would be harmful (http://kahtai.blogspot.com/2010/08/whats-wrong-with-this-scheme.html). There doesn't seem to be any evidence in the Scheme that any commissioner produced a minority opinion against that finding. Why now does he suggest we fill in the lagoon?

Red Herrings and Overlooked Facts

The Port Townsend Leader published an article about the NPS ruling today (link) that contains some interesting quotes and comments in need of a little clarification.

The Port Administration's claim of missing documents is a red herring. RCO Director Cottingham's recommendation (see September 8 post, below) to NPS referenced 21 state and federal documents for verification of her recommendation.

The Port Administration's claim that none of the LWCF money bought Port land is a red herring. LWCF funds cannot be used to buy public lands except in very rare circumstances which do not apply to Kah Tai. Also, along with her recommendation Ms. Cottingham attaches a document from the Department of the Interior which states that the "entire area identified in the project agreement" is subject to the 6(f)(3) provisions, not just the parts purchased with LWCF funds. And the "entire area" is identified as between 78 and 80 acres in 13 individual documents.

The Port Attorney's contention that she could find no legal basis that port property was subject to continuing obligations is curious. Ms. Lake had access to precisely the same documents that RCO and NPS used. In fact, citizens received via a public records request full copies of the RCO and NPS records requested by Ms. Lake and those records contain every document RCO and NPS used for their determinations. Ms. Lake apparently overlooked the existence of a signed contract and assurances of compliance that bind the Port to the obligations.

The claim that an aquatic center can be appropriate for the Park is belied by the rules for compliance and conversion of 6(f)(3) lands. 'Compliant use' is 'compliant' with the language in a particular project. Nowhere to be found in the 1980/81 EIA; project narrative; application correspondence between local, state and federal offices; or state or federal briefing documents are references made to a swimming pool of any kind, much less an aquatic center. What is mentioned repeatedly is restoration of wildlife habitat. At RCO on 31 March 2011, staffers referred openly to the Make Waves effort as their first "swimming pool conversion". Any attempt to put an aquatic center in the park would therefore likely require a conversion, which is not simple or easy. An early demonstration of the need for a conversion is that a proposed project CANNOT go anywhere else. Good luck with that.

Birding at Kah Tai

The birders were out in force this foggy morning at Kah Tai. Our group of fourteen humans ranged in age from 70s+ to a charming boy of perhaps 7 with his grandmother. The Admiralty Audubon trip leader carried one of several spotting scopes in the group. The calm waters of the lagoon were dotted with flotillas of individual species and groups of species, sailing about their business. An adult mallard was trailed by several non-mallard juveniles. "Teenagers," was all the trip leader said in explanation.

Marsh Wren. Greater Yellowlegs. Killdeer. Virginia Rail. Great Blue Heron. Scaups. Buffleheads and Ruddy Ducks. Did somebody say Wood Ducks? (Nope, no Wood Ducks.) Wigeons. Shovelers. Mergansers. Glaucous-winged Gulls. Long V's of Canada Geese honked in and splash-landed while others lined up for takeoff after feeding and resting. Flocks of migrating Yellow-rumped Warblers. Ruby-crowned Kinglets. A Spotted Towhee. Juncos. Crows. Rock Pigeons. An Anna's Hummingbird.

One birder, quiet and thoughtful, was in line at one scope or another for most of the announced sightings. Finally, he said, "I always thought this was just all blackberries and Scot's Broom here. I had no idea...".

That is the whole point of Kah Tai Lagoon Nature Park. Nearly 80 acres of water, marsh and uplands rehabilitated from dredge spoil, threatened repeatedly by development from people who see nothing but blackberries and Scot's Broom. But in the middle of our small town, accessible to all, it remains a serene oasis. It is now officially federally protected by National Park Service regulations.

Go see the blackberries and Scot's Broom if that's what you expect. But don't be surprised if the Park sneaks up and changes you.

Kah Tai Rising

stained glass by Phyllis Hopek/Hopeck(?)

In the late 1970s, many Port Townsend artists and poets, artisans of all kinds, contributed their talents to raise funds and consciousness about the value of Kah Tai Lagoon. This worthy endeavor forestalled efforts underway to develop a strip mall next to what remained of the original saltwater estuary.

Protest songs were composed and recorded. Poems were written and performed. Benefit concerts were held. Quilters, sculptors, painters, actors, everyone who had something to offer came forward, gift in hand to help the cause. Balloons and corn on the cob were sold at street fairs to raise funds and help pay for the legal actions made necessary by developers.

Ultimately, concerned citizens ran for office and were elected to change the political landscape of the town in order to save the lagoon. A wildlife park of nearly 80 acres exists today because good people cared enough to make it happen. It's taken more than 30 years to get close to finishing the job they started, but Kah Tai is safer tonight than it has been in a long time.

It's Official!

Today, those who support the preservation of Kah Tai Lagoon Nature Park received more good news from the Washington Recreation and Conservation Office (RCO) when RCO staff forwarded an important letter from the National Park Service (NPS). On September 27, 2011, Michael Linde, NPS Pacific West Region Leader, Community Assistance Programs, sent the letter to Kaleen Cottingham, Director, WA RCO, to concur with the RCO's 6(f)(3) boundary determination for Kah Tai Lagoon Nature Park. NPS corrected a small discrepancy so that the Park's northern boundary terminates at the southern edge of 19th Street/Blaine Street. Our Park is intact! Although future development is not impossible, it has been rendered very, very difficult and really expensive. NPS does not spend public funds to create temporary parks and their bar to demonstrate need for conversion is exceedingly high.