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Lummi Nation: Pacific Gateway Terminal would violate our treaty rights

The Lummi Nation, bolstered by a critical Environmental Impact Study released last month, filed a request with the U.S. Army Corps of Engineers this week. Their entreaty: That the Corps deny permits for the Gateway Pacific Terminal (GPT) at Cherry Point north of Bellingham.

Last month's Vessel Traffic and Risk Assessment Study, the first of several environmental impact assessments yet to come, unequivocally states that a huge coal-export terminal bordering Lummi lands will have a substantial impact on the tribe’s traditional fishery. “The analysis predicts that GPT would increase the Lummi fishing disruption by 76 percent in the Cherry Point subarea and 19 percent in the (adjacent) Saddlebag subarea, compared to baseline vessel traffic in 2019,” the report states.

Although it is obvious that adding nearly 500 of the world’s largest bulk carriers into the waters of Cherry Point would have an impact on fishing, the vessel study is the first to put hard numbers on the table. Other studies will deal with GPT’s potential impact on Lummi cultural traditions and on the health of the marine stock and the economic impacts of the terminal.

In this week's letter, Tim Ballew II, chair of the governing Lummi Business Council, asked the Corps to “take immediate action and deny the permit application based . . . on the project’s adverse impact on the treaty rights of the Lummi Nation. The impacts on the Nation’s treaty rights associated with this project cannot be mitigated.” The letter, addressed to Corps district commander Col. John G. Buck, relies heavily on the vessel study which, Ballew II wrote, “leads to the inescapable conclusion that the proposed project will directly result in the substantial impairment of the treaty rights of the Lummi Nation throughout the Nation’s 'usual and accustomed' fishing areas.”

That’s the strongest language the Lummi Nation has used in a series of letters and public statements about the terminal. Previous comments have left open the possibility that damages could be mitigated and that an agreement could be worked out with the Corps through Government-to-Government talks. The latest letter does not refer to this option, although Ballew says the tribe is open to continued talks. The tenor of his latest letter though makes it clear that the tribe is ready to press the Corps all the way to the courts if necessary.

“We have a good working relationship with local Corps people,” he told Crosscut, but said little direct discussion with Corps leadership has taken place.

Lummis are the dominant Native American entity in the Salish Sea adjoining the proposed terminal and Lummi opposition has been a significant factor in the politics surrounding GPT since it was announced four years ago. Those politics ramped up in 2012 during hearings on the terminal.

 A Lummi fisherman states his opposition to the Gateway Pacific Terminal at a 2012 Seattle hearing. Photo: Floyd McKay

Although the Lummi Nation was skeptical of the GPT project from the beginning, outreach efforts by developer SSA Marine maintained the possibility that some agreement could be worked out. That became less likely when tribal leaders burned a symbolic check on the beach at Cherry Point to make their point that the Lummis could not be bought.

Elders and members of the Lummi Nation protest an export terminal at Cherry Point in 2012. Photo: Floyd McKay

Also in 2012, Lummi speakers were forceful at seven public meetings hosted by public agencies charged with reviewing the proposal. Tribal leaders hosted public events in Whatcom County, and they even wrote a play, “But What About Those Promises?” to dramatize exploitation of their ancestors.

In Crosscut’s coverage of the 2013 efforts, I wrote: “Now, the Lummis appear to be well-positioned to play a key, perhaps the most critical role, in determining the fate of a huge proposal to export coal to China from Cherry Point. If the tribe's objections to the port hold and their treaty rights under federal law withstand any legal questions, the path to approval of the port planned by SSA Marine of Seattle faces a giant obstacle.”

That was written well before the first of many EIS studies appeared last month.

Although the environmental review of GPT is a complicated dance involving the project developer, state and Whatcom County agencies and the Corps, only the Corps is mandated to consider tribal rights in making its permitting decision. The Corps was not a partner in the Vessel Traffic and Risk Assessment Study, which was conducted by the Washington Department of Ecology and Whatcom County, because vessel impact on the Salish Sea is outside the issues it will consider at GPT. The official agreement specifies that “The geographic scope for the (Corps) analysis is limited to the proposal’s on?site and nearby impacts.”

Though technically, the Corps couldn't shut down the GPT based solely on the vessel study, the fact that the Lummi tribe has raised its concerns with the Corps puts the agency into new territory. In theory at least, the entire project could be shut down if the Corps determines that Lummi treaty rights — focusing on traditional and usual fishing practices — would be violated and cannot be mitigated by the terminal sponsors.

Such a decision is certainly not imminent, but this week’s letter keeps the heat on the Corps to respond to the Lummi request.

In an email to reporters, Corps spokesperson Patricia Glaesser commented: “We are reviewing the information provided by the Lummi Nation and then will meet with applicant to discuss. The Corps needs to determine, given the information provided to us, if potential impacts to the Lummi Nation's usual and accustomed fishing could be more than de minimus. We have not yet made that determination.”

Cherry Point, currently the home of three oil refineries and an aluminum plant, has impacted the traditional Lummi fishery in the region for decades, but court rulings in recent years have strengthened the hand of Native American fishers. Lummi fishermen spend about a third of their time in the area adjoining GPT, the vessel study found.

On large projects of this nature, developers typically rely on mitigation to overcome opposition; trees are planted, streams cleared, barriers constructed and so forth, to offset the damages inevitably caused by a large project. Ballew’s warning that the impacts of GPT, including the loss of fishing days and potential damage linked to the passage of large ships in a critical marine habitat, simply cannot be mitigated clearly raises the ante for the Corps and GPT.

The massive Vessel Traffic and Risk Assessment Study (click here for access) goes well beyond the impact of GPT on the Lummi Nation. For the first time, it attempts to do a cumulative assessment of oil and coal shipments planned by 2019 on the Salish Sea. Cherry Point refineries will replace some tankers with oil-by-rail, but Kinder-Morgan’s proposed oil pipeline to Vancouver will mean more tankers.

An increase of 18 percent in large ships in the Salish Sea is anticipated by 2019 if additional major projects are approved affecting the Salish Sea. In addition to GPT, that would include the Kinder-Morgan oil pipeline to Vancouver, expansion of other Vancouver port facilities and a coal terminal south of the city, and expansion of oil-by-rail. GPT would be the biggest contributor to the increased traffic. Shipping would be heaviest in critical areas of the Salish Sea, particularly around the San Juan Islands where large ships use Rosario and Haro straits and interact with ferries and fishing vessels.

The process of determining if the big export terminal can proceed nears its sixth year in 2015 with resolution unlikely for at least another year. Thousands of comments at public meetings and in letters and electronic form slowed the process substantially in 2014 and 2015 and only some of the required environmental studies are underway. The vessel study, by Glosten Associates of Seattle, was expedited because much of the data had already been collected for a Glosten study for the Corps of the expanded dock at the BP Refinery at Cherry Point.

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