Feds still see wiggle room in Lummi Nation position on Washington state coal terminal

John Stark

BELLINGHAM - The Lummi Nation's position on the Gateway Pacific coal terminal seemed crystal clear in a July 30, 2013, letter to Col. Bruce Estok, district engineer for the U.S. Army Corps of Engineers in Seattle.

"The Lummi Nation has unconditional and unequivocal opposition to the proposed Gateway Pacific Terminal," says the letter, signed by Lummi Indian Business Council Chairman Tim Ballew.

Later, the letter states, "The Lummi Nation cannot see how the proposed projects could be developed in a manner that does not amount to significant impairment of the treaty fishing right and a negative effect on the Lummi way of life. Please recognize this letter as a clear statement of opposition to these projects from the Lummi Nation."

Tribal officials drafted the July 30 letter after they learned that the Army Corps did not believe the tribe had sent them a "formal response" with a clear statement of opposition to the coal terminal, proposed by international shipping giant SSA Marine at a site just south of the BP Cherry Point refinery.

In the past, Corps officials have said they make a practice of suspending action on pending permits when tribes with treaty fishing rights raise such objections. But that has not happened in Gateway Pacific's case - at least not yet.

Despite the letter, Muffy Walker, Army Corps of Engineers regulatory branch chief in Seattle, said the Corps still doesn't see Lummi Nation's position against the project as firm enough to stop her agency's review process. She said tribal officials are still discussing the project with the Corps.

"Lummi (Nation) has not stated that they have requested us to go to permit denial," Walker said. "They (Lummi Nation) are continuing to talk to us in a government-to-government consultation."

Asked what Lummi Nation could do to stop the permit process, Walker responded, "They could send us a letter saying, 'There are no more discussions, we can't come to any agreement.' We would decide from there which direction to go."

In past court rulings, Seattle federal judges have given the Corps some firm direction on tribes' treaty fishing rights.

In a key 1988 case, the Muckleshoot Indian Tribe went to court to challenge the Corps' decision to grant a permit for construction of a 1,200-boat marina in Elliott Bay. In granting the permit, the Corps had decided that although the project would eliminate a bit of the tribe's usual fishing area and cut the tribe's annual salmon harvest, those impacts would be minor.

U.S. District Court Judge Thomas Zilly upheld the tribe's challenge. He issued an injunction blocking the marina, ruling that the amount of damage to Muckleshoot treaty rights was irrelevant, and no amount of damage was acceptable under law.

"No case has been presented to this court holding that it is permissible to take a small portion of a tribal usual and accustomed fishing ground, as opposed to a large portion, without an act of Congress, or to permit limitation of access to a tribal fishing place for a purpose other than conservation," Zilly wrote.

In 1996, U.S. District Court Judge John Coughenour used similar language in a case involving Lummi Nation.

In that case, the Corps and the Indian tribe were on the same side. Northwest Sea Farms Inc. went to court to challenge a Corps decision to deny the company a permit for construction of salmon aquaculture pens off of Lummi Island. In deciding against the company, the Corps had found the project would interfere with Lummi fishing rights.

Northwest Sea Farms' attorney argued that the Corps' decision against the company was wrong, because the impact on tribal fishing would not be substantial. Again, the judge found that the size of the impact didn't matter.

"The Court concludes that the Corps' decision need not be based upon a finding that the project will substantially affect the amount of fish available to the Lummi Nation," Coughenour wrote. "Rather, the record need only support the Corps' conclusion that the project would affect the Lummi Nation's right to access."

Both judges noted that the federal government - and by extension, federal agencies such as the Corps - have a legal responsibility to protect the tribes' right to fish.

Ballew reiterated all of that in a Sept. 12 email to The Bellingham Herald.

"The Lummi Nation has commitment to protect the treaty fishing right provided by the Point Elliot Treaty of 1855," Ballew's email said. "With that commitment comes the need to protect both our habitat and our usual and accustomed territory. The proposed development at Cherry Point would clearly create unavoidable adverse impacts. These proposed impacts would be permanent and the Lummi Nation does not foresee any way to mitigate the damage. The project would have a direct impact on the Nation's fishing right and our way of life. We hold the Army Corps of Engineers accountable to uphold the Federal Government's trust responsibility to protect the treaty fishing right."

Bob Watters, SSA Marine's senior vice president, also reiterated earlier statements, saying his company wants to continue to work on resolving issues with Lummi Nation.

"Lummi Nation has consistently and directly expressed to SSA Marine their concerns in regards to the potential impacts to their treaty protected fishing rights, the need to safeguard archeological resources and a desire to connect with their traditional homeland for preserving and carrying on their way of life," Watters said in an email statement. "SSA Marine is committed to working with Lummi Nation throughout the permitting process to remedy their concerns, secure protections and find solutions for serving traditional cultural properties. Concurrently, the U.S. Army Corps of Engineers will be carrying on regular consultation with Lummi Nation to assure their treaty rights have been addressed prior to issuing any permits for the Gateway Pacific Terminal."

At a July 18 meeting, the Whatcom County Democrats Central Committee passed a strongly worded resolution meant to express party support for Lummi Nation's fight against Gateway Pacific. Among other things, the resolution stated, "We propose and support the rejection of all industrial, commercial and residential uses of the remaining natural lands and waters on and adjacent to Cherry Point."

The resolution passed 39-9, and it appears to have irritated many union members. Union leaders have formed alliances with business groups to urge that Gateway Pacific get a fair hearing before decisions are made, and they tout the project's economic benefits.

Mark Lowry, president of the Northwest Washington Central Labor Council, said union members still can work with environmentalists on other issues of interest while parting ways on Gateway Pacific. But he acknowledged that he was troubled by the Cherry Point resolution.

"It's categorically rejecting absolutely everything," he said. "We're having an extremely hard time swallowing that."

John Stark
Bellingham Herald