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After a legal review, state decides it has authority to raise ferry fares by 2.5 percent

After weeks of uncertainty and two legal opinions, Washington State Ferries has decided it can move forward with its 2.5 percent general fare increase on Jan. 1.

The issue has been on hold since November, when state voters passed an initiative that requires a two-thirds vote of the Legislature before taxes can be raised and a simple majority vote before the state can impose or increase fees.

Shortly after Initiative 1053's passage, Tim Eyman, its sponsor, used the initiative to challenge the latest ferry fare hike, approved by the Washington State Transportation Commission in mid-November and slated to go into effect Jan. 1. Sen. Pam Roach (R-Auburn) wrote a letter to the state Attorney General's Office asking for an opinion on the issue — and the ferry system, not sure which way the issue would land, held off on printing new schedules or selling ferry passes.

Then, this week, the Attorney General's Office issued back-to-back opinions that left some people scratching their heads.

On Tuesday, Deputy Solicitor General Jeff Even wrote a 14-page informal opinion suggesting that the Transportation Commission lacks the authority to raise ferry fares; because of I-1053, he said, such fares can be increased only with "majority legislative approval."

Then, on Wednesday, the Attorney General's Office issued a two-page memorandum clarifying the opinion. Because the Transportation Commission acted before the measure went into effect, it did, in fact, have the authority to increase ferry fares.

The problem, said Kristin Alexander, a spokeswoman for the Attorney General's Office, is that Even, when he wrote his non-binding opinion, didn't realize the Transportation Commission had completed its process.

"He thought that the process was still going on and had not been finalized," Alexander said.

"It's not a flip-flop. ... It's an additional point, based on an additional fact."

Even's analysis, however, suggests that all future changes in ferry fares, tolls and other fees the Transportation Commission imposes will now have to go through the Legislature, said Reema Griffith, executive director of the panel. It's possible, she said, that the Legislature will opt to delegate that authority to the commission, a citizen's panel that was formed to try to take such issues out of the political realm. Then again, lawmakers may choose not to.

"It's all up in the air right now," Griffith said.

The back-and-forth over the impact of I-1053 on ferry fare hikes comes at the same time that the governor has proposed a 10 percent rate increase for 2011, one of the highest in recent years.

Kari Ulatoski, who chairs Vashon's Transportation Committee, said she's frustrated by the role Eyman's initiative will play. Ferry-service advocates worked hard to ensure ferry-served communities were represented on the Transportation Commission; now, the issue will be decided by the Legislature, a more political process, she said.

Eyman disagreed, saying the seven-member commission is "accountable to no one."

"They have no reason to listen to people, whereas an elected representative knows ... they can be voted out of office," Eyman said.

Meanwhile, Ulatoski said she tried to get Eyman to come to a Dec. 9 meeting about ferry service on Vashon. "I wanted him to see what happens when this kind of situation arises," she said.

Eyman said it's not true that Ulatoski invited him. "She totally fabricated that one," he said.

Ulatoski disagreed, saying she and Eyman had an e-mail over I-1053 but that he did not respond to her request that he come to the Dec. 9 meeting. "He should re-read his emails," she said.

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