The Bigness of De Minimis
THE BIGNESS OF DE MINIMIS: Developers of a proposed coal export pier at Cherry Point appear to have been snared by their own media hype, misinterpreting a key communication by the federal agency authorized to issue the shoreline permit and very nearly missing a deadline for response.
At the opening of the year, Lummi Nation asked the U.S. Army Corps of Engineers to deny a permit for the proposed Gateway Pacific Terminal, arguing that capacity to ship 54 million metric tons of coal per year out of Cherry Point on the largest oceangoing vessels would create impacts that cannot be mitigated in a manner that would not impair the tribe’s fishing rights. The Corps replied in February, requesting the tribe detail their claims to help the Corps determine whether the impacts on their usual and accustomed (U&A) fishing rights protected under treaty would be more than de minimis, or too trivial to merit consideration by law. SSA Marine and Pacific International Terminals issued a press release, interpreting that response to mean the Corps would not disrupt the environmental review underway for their project and would consider the Lummi petition within that framework.
Not so, declared the USACE in a flurry of correspondence last week.
“Your letter indicates your belief the U.S. Army Corps of Engineers should complete a detailed analysis of the project as required by the National Environmental Policy Act (NEPA) and other laws and regulations before addressing U&A issues. We disagree,” wrote Michelle Walker, chief of the regulatory branch of the USACE Seattle Division. “Upholding our trust responsibility to protect the tribe’s treaty rights is not constrained by procedures for pre-application environmental analysis or by post-application permit review processes.” The petition will be considered wholly outside that process, defined by legislative action, and managed under the Corps’ duty to uphold treaties as required by the Constitution.
“We are concerned,” Walker wrote on behalf of the Corps, “you may be attempting to undertake evaluations and analyses that may not be relevant to our U&A determination,” warning that SSA had not provided sufficient information to warrant a requested extension before the Corps begins to consider the Lummi petition.
This, of course, prompted a mad scramble of correspondence from SSA, pleading for an additional 90 days to fully respond to the Corps request.
“There is every reason to take the time to get all of the facts before the Corps to inform its final decision,” urged Skip Sahlin, vice president of SSA’s project development. “As you know, we are not in any way impacting the Lummi Nation’s fishing rights today. Nor will we be impacting them during the deliberations on these issues. There is no harm to the Lummi Nation in allowing us sufficient opportunity to gather the facts that we want to put before the Corps of Engineers. There is no need for a rush to judgment.”
The Corps of course agreed, granting SSA an extension of 90 days to get their documents in order, with assurances that there is no urgent clock ticking but cautioning the agency does intend to respond to the Lummi petition in a timely manner.
More devastating to SSA, however, is the apparent fact that the Corps has accepted the reasoning of Lummi Nation to apply a de minimis threshold to decide whether Lummi fishing would be impaired enough to warrant halting the project—a molecular measure so tiny it likely cannot be responded to by design changes.
“The treaty fishing right has two discrete aspects,” federal court justices wrote in a seminal 1988 test of the century-old Point Elliot Treaty signed by Lummi and other Salish Sea tribes, “the geographical aspect, and the guarantee of a proper quota of fish.”1
The geographical aspect is delivered in the shorthand U&A, usual and accustomed places:
“The right to resort to the fishing places in controversy was a part of larger rights possessed by the Indians, upon the exercise of which there was not a shadow of impediment, and which were not much less necessary to the existence of the Indians than the atmosphere they breathed,” the court asserted in its recitals.
Concerning the second aspect is the question of whether an estimated 487 of the largest oceangoing cargo vessels churning the waters and cutting across net sets in those usual and accustomed places will place no measurable reduction on the numbers of fish Lummis catch each year. The case law in making this determination is fairly clear and involves, at its center, the consideration of whether a project or operation is limited in duration or season, and thereby potentially limited in impacts to fish biology. This cannot be said of GPT.
“Absent from consideration by the tribe in formulating its petition are measures that could be incorporated into the project features or operations of the terminal that could eliminate or reduce impacts,” SSA Marine complained in correspondence to USACE. “They are absent because the tribe refuses to engage in discussions with Pacific International Terminals about such measures; instead they take the unsubstantiated position that all impacts are ‘unmitigatable.’ Yet, the declarations include information that leads to the reasonable contention that changes to the project features and/or operations could reduce or eliminate impacts, making the claim that the project effects are more than de minimis incorrect.”
It’s understandable why SSA Marine despairs that the Corps decision will not occur inside or subsequent to the environmental review of NEPA. That framework was created by industry to serve industry, and involves detailing of costs followed by negotiation of those costs. When those costs are finally haggled, a check is written and the permit issued. Within this framework, there is no scenario in which a permit is not issued, provided money papers over ecological concerns.
The Lummi refuse to be caught in that bargain. Some things of value cannot be purchased.
1Muckleshoot Indian Tribe v. Hall, 1988
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