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Felleman and the Makahs started working on the issue in the late 1990s, as did People for Puget Sound. Congress wouldn't make the federal government, the oil industry, or the shipping industry pay for a tug. Sen. Murray wasn't the only one who tried and failed. Sen. Maria Cantwell introduced legislation that went nowhere, too.That has left it up to the state, but environmental activists and regulators worried for years that the state couldn't act, because the federal government might preeempt the field. (This wasn't just paranoia. In 2000, the U.S.Supreme Court threw out Washington spill prevention rules that dealt, among other things, with the training and English proficiency of tanker crews, because the federal government had already preempted much of the field.) A Coast Guard rule issued on the last day of 2008 for oil-carrying vessels' salvage and marine firefighting plans got rid of that argument. The rule defines “salvage” as “any act undertaken to assist a vessel in potential or actual danger, to prevent loss of life, damage or destruction of the vessel and release of its contents into the marine environment.” And it says unequivocally “we have determined that these regulations will not interfere with or preempt existing State regulations on the same subject.”
The language was “not [inserted] by accident,” Felleman says. He and the Makahs lobbied Sen. Cantwell's office for words to that effect. Then, Cantwell, who chairs the Senate Commerce, Science and Transportation Committee's subcommittee on oceans, atmosphere, fisheries and Coast Guard, “leaned on the Coast Guard on our behalf.”
He doesn't suggest that the new Coast Guard rule was an environmental triumph. Instead, he describes it as the Bush administration's “last gift to the oil industry.” It calls only for planning; it does not require drills; and it makes clear that shippers won't be held responsible for actual performance. The rule was issued on the very last day of 2008. Nevertheless, the new rule opened “a clear legal path” around the threat of preemption, Felleman says.
Once he saw the language in the rule, Felleman and Bowechop started drafting a rough version of the bill. Felleman took it to his own legislator, State Rep. Mary Lou Dickerson. She wouldn't sponsor the bill, but she “got the ball rolling,” Felleman says. Once that happened, Wishart “did the lion's share' of the work getting sponsors and shepherding the bill through the Legislature day-to-day. (This was hardly a new role. “Bruce was involved in the annual bake sale for that tug” as the Legislature scraped money together, year after year.) The Department of Ecology supported the legislation, as did the oil industry, which saw a chance to spread the cost over the whole shipping industry.
Bowechop says that the tug law represents both the culmination of a long struggle and the beginning of a new effort to make Neah Bay a center for effective spill response. He hopes that eventually tribal members will be trained to crew the tug. And he talks about using the tribal fishing fleet as a key part of the oil spill response system — as the local fishing fleet is already used in Prince William Sound. (“We don't have to re-create the wheel,” Bowechop says.)
Although there's still a long way to go, the Makahs have come a long way already. Felleman “could see the light at the end of the tunnel,” Bowechop says. “He's worked with us for many years, and for some of those years, we couldn't afford to pay him.” Felleman himself takes an ironic view of the long struggle that led up to this year's legislation. “It wasn't dumb luck,” he says. “It was dumb doggedness”
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