Legal battle to keep National Archives in Seattle ramps up

SEATTLE — Washington State Attorney General Bob Ferguson’s efforts to stop the closure and sale of the National Archives in Seattle are heating up, with his team due in federal court Friday morning to ask for an injunction to immediately stop the sale.

The public can listen in on Zoom.

If Ferguson loses at the hearing, he admits, “It’s not the end of the world, but it’s extremely important, no two ways around it.”

His office has been aggressive in fighting the sale, producing 586 pages of declarations from tribal representatives and historical groups about the importance of the archives.

Ferguson, along with 29 tribes and various groups, filed a lawsuit on Jan. 4 seeking to declare the sale illegal. But that lawsuit could take a while to wind its way through the courts, so hence an the request for a preliminary injunction.

Having declared the 10-acre site on Seattle’s Sand Point Way Northeast as surplus, the federal government plans to move 800,000 cubic feet of archival records from here to facilities in Kansas City, Missouri (1,840 miles away) and Riverside, California (1,200 miles away). The archives hold millions of boxes of documents, a tiny fraction of them digitally scanned.

Moved will be the history of 272 federally recognized tribes in Washington, Alaska, Oregon and Idaho, as well as all federal records generated in the Pacific Northwest, including military, land, court, tax and census documents. The collection also comprises more than 50,000 original files related to the Chinese Exclusion Act of 1882.

The surprise announcement that the archives in Seattle were going to be sold was the work of a little-known entity — the five-person Public Buildings Reform Board, charged with finding excess federal property and putting it up for bid.

Historians and tribal leaders felt betrayed by the lack of public input sought on the decision.

But as board member Angela Styles said in January 2020, the board was “not required by statute to seek public input first.”

Attorneys for both sides are coming in loaded with declarations from experts and those affected, and their versions of how the facts align.

This is real life law and order, and the public can have free ringside seats to listen to the battle, which begins at 9 a.m. Friday before U.S. District Court judge John Coughenour.

The Zoom video version is only for the lawyers and the judge, but the public can listen in by calling (669) 254-5252, and at the prompt, put in the meeting ID: 161 786 3808.

Before Ferguson’s office took up the cause, things were looking dire for those wanting to keep the archives in Seattle.

The sale accelerated when the General Services Administration signed a contract Feb. 4 with a real estate broker to handle the Seattle site and 11 other properties around the country, bundled together and deemed surplus.

In an earlier court filing, Ferguson’s office said, “In a rushed effort to sell off federal property, the Trump Administration intends to remove from the Pacific Northwest some of the most vital original records of this region’s history and people.”

In response to calls for help from tribal leaders and historians, U.S. Sens. Patty Murray and Maria Cantwell, and Rep. Jamila Jayapal, whose district includes the facility, have expressed their concern. But there have been no specifics and a plan to save the facility hasn’t emerged. A spokeswoman for President Joe Biden’s administration said it was still looking into the dispute.

The federal government, represented by Brian C. Kipnis, an assistant U.S. attorney in Seattle, disputes that the process was rushed. “After waiting over eight months to file this action, plaintiffs have invented a faux emergency as an excuse to peremptorily seek a preliminary injunction,” he wrote in a legal brief.

That brief includes a declaration from a National Archives engineer, who said that bringing the Sand Point facility up to standard would cost from $52 million to $71 million, and $90 million to $92 million to build a new facility in the Seattle area.

Such funding, he says, “is simply not available in the foreseeable future.”

Ferguson’s office replies, “If the facility is in need of repair in the longer term, it should be repaired, but there’s no indication that the records aren’t safe there now. In fact, NARA (National Archives and Records Administration) has said that after the sale, it plans to lease the property back and keep the records there for three more years.”

Lisa Marshall Manheim, a University of Washington associate law professor of law, said with a preliminary injunction, “You’re saying, ‘I need temporary relief right now. Once that’s in place, we can proceed as normal with the stages of litigation.’

“There are different ways a judge can decide. If the plaintiff loses the preliminary injunction, he could still win at a later stage of litigation,” she said. “But the judge also could issue a ruling that signals to the parties whether he’ll rule for or against at a later stage.”

If Coughenour signals he’d rule against Ferguson, says Manheim, “The ballgame may not technically be over, but it’s close.”

The sudden decision to close what might be seen as a collection of dry historical records has brought out deep emotions.

On Jan. 19, saying that since the feds didn’t bother to hold public hearings in the Northwest about the sale, Ferguson held his own virtual meeting, attended by more than 300 people.

One of those speaking was Charlene Nelson, 81, chairwoman of the Shoalwater Bay Tribe in Pacific County.

“We lost our land. We lost tribal members from diseases we never had before, but we survived,” she said. “We struggled to keep our language, our history, our tribes. … There were agreements, births, deaths, written in a language we had learned. The documents are valuable. They tell our history.

“Where are our voices in this decision?” Nelson asked. “Where are the sounds of our drums?”

Right now, the future of the archives here is in Judge Coughenour’s court.