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How Maury Island's mining opponents finally prevailed

After years of protest and negotiation, it's final: A county park will replace the former gravel mine on Maury Island.

Maury_Island_gravel_pit.jpg

The site of Maury Island's longtime gravel pit.

After years of protest and negotiation, it's final: A county park will replace the former gravel mine on Maury Island.

It's official: Instead of spewing 10,000-ton loads of gravel from a long steel pier into waiting barges, the gravel mine site on the east coast of Maury Island will become a 235-acre King County Park. The papers have been signed.

Representatives of King County and CalPortland, which owned the site, closed the deal on Thursday (Dec. 30). (CalPortland, which has absorbed the gravel mine's longtime owner, Glacier Northwest, is — like Glacier — owned by Tokyo-based Taiheiyo Cement.) The county got the keys to the property gate.

The all-but-final agreement, brokered by the Cascade Land Conservancy, was announced in November. The Cascade Land Conservancy, Preserve Our Islands, the citizens group that has been fighting the gravel mine proposal since 1999, and the Vashon-Maury Island Land Trust are still rustling up a couple million dollars worth of private donations, but that didn't hold up the signing.

“It's surreal,” Amy Carey, president of Preserve Our Islands, told the Vashon-Maury Island Beachcomber. “It is surreal,” agrees state Sen. Sharon Nelson, the founder and first president of POI, who had been fighting the mine since the presidency of Bill Clinton.

Nelson, who lives near the site, got involved 13 years ago when she and her husband attended a meeting of the Vashon Community Council and learned that Maury Island might provide the fill for Sea Tac's third runway, then still a gleam in the Port of Seattle's eye. The Nelsons thought the community council should form a committee to study the potential threat. If you want a committee, the council president told them, you form it. So Nelson became the chair of an ad hoc community council committee to study what was then called the Lone Star site.

A couple of years later, when it became clear that the effort to halt the gravel mine would take serious money, she and some other mine opponents formed Preserve Our Islands. From there, she joined the staff of then-King County Councilmember Dow Constantine, who represented Vashon and Maury islands (as he had before as a state legislator), eventually becoming his chief of staff. She became a state representative in 2007 and then, this fall, won election to the senate, where she will be vice-chair of the Environment, Water & Energy Committee.

When Nelson got interested in the gravel mine, it seemed like a classic NIMBY issue. Massive amounts of gravel had been mined on the site from 1968 to 1978, but the pier and conveyor had fallen into disrepair, and industrial activity was a memory that most people who lived in the area didn't share. Initial plans called for mining up to 7.5 million tons of gravel a year, and loading huge barges 24/7. Would you want a monster gravel mine operating 24/7 anywhere near your home?

But unlike many NIMBY issues, this one truly had broader significance. Opponents figured from the start that it did, and, Nelson recalls, they set out right away to prove it. A $6,000 contribution from the community council enabled them to start quick studies of arsenic on the site and eelgrass in the shallow water.

To make a long story short, they found both. The arsenic shouldn't have surprised anyone — although, Nelson says, people had forgotten about the smoke plume from the old Tacoma smelter that had shut down more than 10 years before. The site was contaminated by fallout from the plume, which had showered the shoreline with arsenic for most of the 20th century.

The arsenic lies in the top layers of soil. The mining would displace that contaminated top layer and expose underlying layers of porous gravel, potentially giving the arsenic a clear path down to the aquifer. The company ultimately said it would collect the soil and isolate it — forever — in a sealed berm. The berm would be up to 30 feet high and 2,100 feet long. Opponents weren't reassured.

Eelgrass grows both north and south of the dock site. It provides vital habitat for juvenile salmon, plus the herring and sand lance on which salmon feed, and any nmber of invertebrates and crustacea. The extent of eelgrass beds is one of 20 “dashboard indicators” that the Puget Sound Partnership has adopted to gauge the health of the Sound.

Opponents argued that a long dock would shade the eelgrass and that the prop wash from tugboats would physically disturb it. To meet those objections, the company ultimately planned to build a dock of metal slats through which light could reach the eelgrass, and to extend the dock nearly 100 feet farther than originally planned, to keep the propellers farther away. Again, opponents didn't buy it.

Nelson says the Maury gravel mine didn't stay a local issue very long; it acquired statewide significance in 1999, when Puget Sound chinook were listed as a threatened species. The issue also attracted wider attention as other organizations got involved. People for Puget Sound and the Washington Environmental Council became allies more than a decade ago, and have stuck it out. They have been co-plaintiffs in the lawsuits. At the end of 2008, when Glacier began replacing the old loading pier, and Gore-Tex-clad protesters gathered along the beach in kayaks and on foot, People for Puget Sound executive director Kathy Fletcher was among them. “Kathy Fletcher is a saint,” Nelson says.

In 2002, Glacier Northwest applied to King County for a shoreline substantial development permit and a shoreline conditional use permit. Two years later, the county turned Glacier down. Glacier appealed to the state Shorelines Hearings Board. The board told the county to grant the permits. Yes, King County's shoreline master plan designated the Maury shoreline a “Conservancy Area,” but that didn't mean what it seemed. Indeed, the board observed, ”the Conservancy Environment is the only designation within King County’s master program in which mining is not prohibited.”

True, the shoreline had to be protected, but “[o]peration of the conveyor and barge loading dock is consistent with the King County [shoreline master plan] mining policies.” The board also looked back at the shoreline's historic use, observing that “[u]nder the hours of operation condition [12 hours a day, Monday through Friday], the existing character of the shoreline, shoreline uses, and level of barge loading activity are similar to the character of the shoreline when the conveyor and barge loading dock [were] used in the 1960’s and 1970s.”

Four years earlier, it had looked, briefly, as if the whole issue might become moot. Shortly before she left office, outgoing Commissioner of Public Lands Jennifer Belcher designated that stretch of Maury Island shoreline a state aquatic reserve. That turned out to settle nothing.

After Belcher retired, Republican Doug Sutherland defeated former Gov. Mike Lowry for her old job. What Belcher had done, Sutherland could undo. And he did. Sutherland revoked the orders that had established aquatic reserves on the Maury Island shore and elsewhere in Puget Sound. In 2004, after a lengthy agency review, he established the reserve again — but only after a final EIS made it clear that the proposed gravel-loading operation within it would be OK.

The 2007 legislature considered bills that would have prohibited the state authorization of industrial uses and material transport from mining or industrial activities within the Maury Island aquatic reserve. At just about the same time, Gov. Chris Gregoire launched the current effort to restore Puget Sound, and the legislature created the Puget Sound Partnership. But the bill to prohibit gravel mining in the reserve died without a House vote.

The next year, Sutherland lost a race for a third term. At the end of the year, just weeks before Peter Goldmark took office, Sutherland issued the permits. Glacier had contributed $50,000 to a PAC that had in turn contributed to his re-election campaign. No one turned up any evidence of a quid pro quo, but the coincidence (and the timing) raised a lot of eyebrows.

Goldmark promptly sent the company a letter expressing his “grave concern” and setting out a long list of unanswered environmental questions. The company sent back a 17-page answer, but a company spokesman made it clear that his employer wasn't about to wait for an OK. Construction was going to start in a matter of days. Under the terms of its permits, the company couldn't work from Jan. 15 through Aug. 14 because juvenile chinook were likely to be around. It promptly brought in a big floating crane and started replacing the old dock, while protesters in small boats and on foot gathered along the shore.

Construction work stopped for the season when the contractor found sand lance eggs in the eelgrass. And it didn't re-start last winter, after U.S. District Judge Ricardo Martinez gave POI and its allies an injunction.

Some people thought it was about time. Nelson remembers lawyer Dave Mann, who represented POI and its allies for years, telling her that if anyone actually read his briefs, they'd win. (Exactly who was reading what became an issue. Before the shoreline hearing, the county was reviewing the effect of propeller wash on eelgrass. A county official stuck a paper from Preserve Our Islands in a desk drawer and didn't tell anyone about it. He evidently copied a paper from the company and submitted it as the county's own. The director of the county's Development and Environmental Services Department acknowledged this to the shorelines board.)

Martinez evidently read them. And he discovered the government agencies that had approved the project had done some very selective reading of their own. Martinez found that even the narrow construction window that the company hurried to hit was based on flawed assumptions about the presence of juvenile chinook.

The National Marine Fisheries Service had adopted the conclusion of a company-financed study that said juvenile chinook wouldn't be around after Aug. 14. However, James S. Brennan and colleagues had done a 2004 report for King County that showed otherwise. “Data from the study show that despite the absence of natal streams on Vashon and Maury Islands, juvenile Chinook were caught in the islands’ near-shore area throughout the sampling period,” Martinez said. “The executive summary concluded that 'Vashon and Maury Islands are important considerations in near-shore salmon recovery efforts even though the area does not contain any Chinook- bearing streams.'”

This conclusion had been conveniently ignored. Martinez said the “NMFS consultation letter did not address these Brennan study data showing significant Chinook presence in the Vashon/Maury near-shore areas well past mid-summer and into the fall. Instead, the Service adopted the conclusion . . . that juvenile Chinook would be 'minimally present' during the work period beginning Aug. 15.

The work cited [by NMFS] . . . was a single study . . . which relied heavily on the absence of natal streams in the area — a factor which the Brennan study demonstrated did not reduce the presence of Chinook in the study area. . . . On the contrary, the Brennan study data and conclusions indicate that work windows beginning in mid-August do not protect juvenile salmon.”

People hadn't reported many endangered Puget Sound orcas hanging around the construction site, so the agencies concluded that orcas weren't a problem. “With two relatively large residential shoreline developments located on [nearby] southeast shorelines of Maury Island,” the Corps had written, “it is reasonable to expect that if the Project Site were a place where Southern Residents [orcas] regularly visited and lingered, then there would be more sighting records from this area compared to other areas around Vashon-Maury Islands.”

Martinez gave this reasoning the deference it deserved. “What is missing here is science,” he said. “The conclusions . . . were based on random reports by a volunteer network. . . . [T]his was not a scientific sampling. To base a conclusion regarding Orca 'lingering' in the area on a paucity of such reports in comparison to other areas is particularly egregious.”

The judge also found the Corps' view of "cumulative impact" much too narrow. An agency's judgment deserves some deference, but "the Court 'need not forgive a clear error in judgment,'" Martinez wrote. "That error was committed here when the Corps so narrowly limited the geographic scope of the analysis to 'Vashon/Maury Island and the surrounding marine waters.' That error was further compounded by limiting the impacts considered to mainly land-based impacts such as logging, agriculture, and real estate development on the islands." The Corps hadn't found much to worry about because it hadn't looked in the right places.

The judge clearly favored a broad perspective: “No single project or human activity has caused the depletion of the salmon runs, the near-extinction of the [Southern Resident] Orca, or the general degradation of the marine environment of Puget Sound. Yet every project has the potential to incrementally increase the burden upon the species and the Sound. . . . The Court fully recognizes the desirability and economic necessity of industrial progress in order for a community to flourish. However, under the National Environmental Policy Act and the Endangered Species Act, it is the federal agencies’ obligation to ensure that this progress does not cause irreversible harm to the environment.”

Martinez' ringing decision called a halt to construction work, but it didn't kill the project. Company spokesmen described it as a delay, rather than a death sentence. Sooner or later, the gravel would come out.

Then, somewhat unexpectedly, peace broke out. In 2004, before the Shorelines Hearings Board ruled in Glacier's favor, the company and its opponents had started talking about a buyout. Glacier representatives traveled to Washington, D.C., to talk with members of the state's delegation. Patty Murray corraled some federal money. Dow Constantine corraled some county cash. Glacier talked publicly about wanting $50 million, and no one had that kind of money, although the $25 million the company mentioned privately might have been in the ballpark.

However much money the company might have settled for, the negotiators never agreed on any price. The Cascade Land Conservancy (CLC) tried negotiating a couple of other times, but those efforts also went nowhere.

Finally, last year, POI president Amy Carey urged the CLC to give it one more try. As CLC president Gene Duvernoy recalls, “We said this is worth one last, best shot.”

Going into the negotiation, says CLC senior vice president Michelle Connor, who was actually at the table, the first question was what had changed. The negotiators were the same, Connor says, and she thinks that helped. But even with the same cast of characters, the atmosphere was different. The Martinez decision didn't hurt.

The company's public statements suggested it would press on, and Connor says that it said similar things in private. Still, for the first time, the company had lost, and as CLC president Gene Duvernoy observes, “a good time to negotiate is when the litigation is in your favor.”

Connor suggests that political leadership may have been crucial. Dow Constantine has “been committed to this from the first day he walked into the [County Executive's] office,” she says. The state's Congressional delegation wrote directly to the parent company in Japan. She thinks she and the other people negotiating to buy the land “may have persuaded the company that there was a change in the culture, [a different idea of] what was expected in Puget Sound.”

Negotiations may have reached a turning point last August, when the two sides took a boat ride together. The journey was detailed by reporter Leslie Brown in the Vashon-Maury Island Beachcomber:

Duvernoy was able to secure a 65-foot yacht from a CLC supporter. More important, he and Connor were able to get some key players from the Glacier Northwest’s corporate parent — Allen Hamblen, the chief executive officer of CalPortland, and Shinji Matsui, president of Taiheiyo USA — to agree to take a cruise with them....

On a beautiful August day, Duvernoy and Connor set sail with the top executives — bringing a translator as well, since Matsui didn’t speak English — and made their way past the quiet, madrone-studded slopes of the Maury Island mine site. The team had a telephone on board and put Bill Ruckleshaus — the former head of the federal Environmental Protection Agency and a high-profile champion for Puget Sound’s protection — on a speaker, part of the team’s strategy to prove to Matsui that CLC had the backing to bring a deal of this size and complexity to fruition.

Even so, it didn’t begin terribly well. Before lunch, Duvernoy said, Matsui 'spoke in a quiet tone and at great length' about why a sale wasn’t a good idea. 'It was a very cogent presentation that made it sound like we were barking up the wrong tree,' he recalled. . . .

Duvernoy can’t say exactly what shifted. But after lunch, after both sides had carefully listened to each other and Duvernoy and Connor had made it clear that they were there to negotiate, not to debate, Matsui sounded a different note. He agreed to resume serious negotiations."

It didn't hurt that, for the first time, there was real money on the table. Initially, Connor says, the company had reason to be skeptical about the other side's ability to raise enough cash. Just trolling for grants obviously wouldn't do it.

This time, the county was ready with $19.1 million and the state with $14.5 million. Another $2.4 million came in the form of a state lease to keep mining gravel for local use on a nearby site until 2030. In a time of yawning budget deficits, when governments are cutting services and laying people off, where could the state and county find that kind of money? Not in the general fund. This wasn't money that could be used to pay salaries or fix roads. The county drew its money from the bond-supported Conservation Futures Fund that can only be used to acquire undeveloped land.

The state drew its share from the ASARCO settlement. Given the need for large amounts of cash, the presence of arsenic turned out to be a blessing in disguise. At the end of 2009, to settle the largest environmental bankruptcy case ever, ASARCO agreed to pay the federal government and 19 states $1.79 billion for cleaning up smelter and mine sites, primarily in the west. Washington got  $111 million to deal with contamination caused by the Tacoma smelter. The Maury Island purchase money comes from that pot. If the site had not been heavily contaminated with arsenic, it would not have been eligible, and there might have been no deal.

But the money was there, and the pieces fell into place, and voila! Thirteen years of political and legal combat have finally come to an end.

Sharon Nelson, for one, can hardly believe it. “You wait for it and wait for it,” she says, but you don't really envision a time at which “you won't wake up every morning wondering what's going to happen.” In the heat of the battle, Nelson says, “your life revolves around the mine.”

Didn't she think at the beginning that stopping the mine was a long shot?  “I was a true believer,” she says.  In retrospect it was “a lot more of a longshot than I realized.”

  

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How Maury Island's mining opponents finally prevailed