County moves to block amphitheater

By NEIL MODIE
SEATTLE POST-INTELLIGENCER REPORTER

King County officials moved toward a courtroom war with the Muckleshoot Indian Tribe yesterday, threatening to use county zoning laws to halt the tribe's controversial, 20,000-seat concert amphitheater.

If the Metropolitan King County Council passes an emergency ordinance Monday applying rural zoning to parts of the Muckleshoot Reservation, the move could set up a federal court test with national implications.

"I have been told that the tribe will litigate the issue" if the proposed ordinance passes, John Halliday, the tribe's economic development director, said yesterday after a council discussion of the issue.

County Executive Ron Sims said later that unless the county can negotiate its differences with the tribe -- a prospect he deemed unlikely -- "we'll be in court for a long, long time, and it'll be one of the most expensive litigations we've ever been in."

The U.S. Supreme Court has held that counties may impose taxes and land-use regulations on certain lands within a reservation under certain circumstances. But King County would be moving into largely uncharted legal territory.

Sims notified the Muckleshoots last week that King County believes it has the authority to tax and regulate reservation property that is privately owned, whether by tribal members, non-members or the tribe itself. But he said county and tribal officials should negotiate their differences.

Sims' approach was less confrontational than a proposed ordinance introduced yesterday by Councilman Kent Pullen, who would impose county rural zoning for one year on all privately owned land within the reservation.

It would exempt property held by the federal government in trust for the tribe. State and local governments have no authority over trust lands.

Pullen requested a legal opinion from the county prosecutor's office several weeks ago; that led to Sims' edict and to the proposed ordinance.

The type of zoning sought by Pullen permits one dwelling per 10 acres, as well as land uses consistent with farming and rural activities.

The proposed interim zoning would allow the county to develop "comprehensive plan policies, land use designations and zoning" for privately owned reservation lands.

The 3,439-acre reservation was established in 1857 and expanded to its present size in 1874. It has about 1,200 acres held in trust, about 1,000 acres owned by the tribe, and the remainder owned by tribal members or non-members.

Pullen said if his ordinance passes, the county presumably would issue a stop-work order to block construction of the amphitheater. Then, he predicted, either the tribe would sue the county, challenging its authority, or the Muckleshoots would ignore the order and the county would sue the tribe.

Halliday, in an interview, asked, "How does (the county) enforce things against a government that has sovereign immunity, that is in its own territory that is granted by treaty with the United States government?"

If the issue is litigated, he added, "I have no doubt that the tribe will prevail."

Pullen introduced the ordinance as an emergency measure because of environmental damage he said already is occurring at the amphitheater site, along state Route 164 between Auburn and Enumclaw.

The tribe has been racing to build the facility since June. Construction now is more than one-third completed. Since the Muckleshoots are a sovereign government, the amphitheater is being built under tribal -- not county -- building, zoning and planning laws.

Citizens for Safety and Environment, an opposition group of Auburn-Enumclaw area residents, says the project will cause air, water and noise pollution, disrupt farming, damage wetlands, threaten salmon in the White River and worsen congestion on the crowded two-lane highway.

David Bricklin, the group's attorney, applauded Pullen's move but said he believes the county already has the authority to halt the project. He said it violates existing county ordinances regulating traffic, grading, storm water and critical areas such as wetlands and steep slopes.

Passage of Pullen's ordinance on an emergency basis would cause it to go into effect immediately, bypassing the county executive. That would require approval by nine of the council's 13 members.

The chances of that happening were unclear yesterday. But even if the measure lacks the votes to pass next week as an emergency, it could pass later by a simple majority after a regular, slower public hearing process.

Councilman Larry Gossett said that for the county to impose tax and land-use authority on a sovereign tribe would be "a horrible precedent for our government."

Councilman Dwight Pelz called it "a very extreme measure" that should be subjected to thorough discussion in the council's regular committee hearing process.

But Pullen said the amphitheater project is "extremely time-sensitive" because silt from the excavation is polluting the White River and the facility, when complete, "will paralyze roads." It is scheduled to open in August.

Pullen, running for re-election today, represents a district that includes the Auburn-Enumclaw area. He had asked for the prosecutor's opinion whether the county has taxing and land-use regulatory authority over reservation land owned by the tribe and its members.

Prosecutor Norm Maleng, briefing the council yesterday, said court precedents for such action are "fairly recent, unsettled and open to interpretation."

But he said it is "not so much a legal issue . . . as what does the county want to do as a public policy matter on this issue."

The county is basing its legal position on three federal court precedents arising from tax and land-use disputes between counties and tribes in Washington state.

The U.S. Supreme Court held in 1989 that Yakima County could regulate land use on Yakama Indian Nation land owned by non-tribal members in parts of the reservation that are accessible to the public and have no Indian religious significance.

In 1992, the Supreme Court said Yakima County could tax Yakama reservation land owned by the tribe or its members. The 9th U.S. Circuit Court of Appeals broadened that opinion in a later ruling.

King County already taxes property owned by non-Indians on the Muckleshoot Reservation. It collected taxes on the amphitheater site when it was owned by a non-tribal member before the tribe reacquired it in1990.

P-I reporter Neil Modie can be reached at 206-448-8321 or neilmodie@seattle-pi.com