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Kwel Hoy'!

Army Corps denies shoreline permit for Cherry Point

Wednesday, May 11, 2016

The long, long coal train has come to a halt.

Years ago, Lummi Nation declared Kwel Hoy’!, “We Draw the Line,” and vowed the coal trains would not unload at their fishing grounds and sacred burial site, Xwe’chieXen. They called upon the federal government to honor its treaty to protect those heritage assets.

In a decision of profound impact, the U.S. Army Corps of Engineers this week agreed, and denied Pacific International Terminals’ application to build North America’s largest coal export terminal in the Lummi Nation’s treaty-protected fishing waters off Cherry Point. Unless reviewed and overturned by a court, the decision is a mortal blow to the Gateway Pacific Terminal, a proposed project that has galvanized this corner of the Salish Sea for half a decade.

“This is an historic victory for the Lummi Nation and our entire region,” Lummi Chairman Tim Ballew II announced at a tribal council meeting brimming with emotion. “We are pleased to see that the Corps has honored the treaty and the constitution by providing a decision that recognizes the terminal’s impacts to our fishing rights. This decision is a win for the treaty and protects our sacred site. Our ancient ones at Xwe’chieXen, Cherry Point, will rest protected.

“Because of this decision, the water we rely on to feed our families, for our ceremonies and for commercial purposes remains protected. But this is more than a victory for our people; it’s a victory for treaty rights,” Ballew explained. “Treaty rights shape our region and nation. As tribes across the United States face pressures from development and resource extraction, we’ll continue to see tribes lead the fight to defend their treaty rights, and protect and manage their lands and waters for future generations.

“The impact of a coal terminal on our treaty fishing rights would be severe, irreparable and impossible to mitigate.”

“Today is a good day, an emotional day,” Lummi Vice-Chair Cheryl Sanders said, her voice breaking. “Happy times, these are happy tears.

“Today we learn again that treaty rights are not for sale.”

In phone calls to Lummi leaders and to the project applicant, PIT (now Pacific International Holdings LLC) and SSA Marine, USACE Seattle District Commander Col. John Buck said the potential impacts to the Lummi Nation’s usual and accustomed (U&A) fishing rights from the proposed Gateway Pacific Terminal are greater than de minimis, a legal threshold intended to measure those impacts.

Because the district has determined the effects to the Lummi’s rights are more than de minimis and because the Lummi maintain their objections to this proposal, the project cannot be permitted by the Corps, Buck said. An act of Congress would be required to proceed.

The Lummi Nation, in 2015, asked the Seattle Division of the Corps of Engineers to deny permits to the project, arguing it would interfere with fishing rights to “usual and accustomed areas” guaranteed by an 1855 treaty. The Lummi cited impacts to their treaty rights and included affidavits about their fishing practices and statements about potential impacts from the construction and operation of the terminal. The GPT project area is included in Lummi’s U&A fishing grounds.

“I have thoroughly reviewed thousands of pages of submittals from the Lummi Nation and Pacific International Holdings,” Buck said. “I have also reviewed my staff’s determination that the Gateway Pacific Terminal would have a greater than de minimis impact on the Lummi Nation’s U&A rights, and I have determined the project is not permittable as currently proposed.”

Both Lummi Nation and Pacific International Holdings, LLC, provided volumes of data on fishing practices, potential impacts, and mitigation to support their positions.
The U.S. Army has a duty to uphold the federal government’s responsibility to protect treaty rights. The Corps may not permit a project that abrogates those treaty rights. Only Congress can abrogate a treaty right.

Project proponents expressed “astonishment” at the decision in a statement sent out by Pacific International Holdings, a joint venture between SSA Marine and Cloud Peak Energy.

“This is an inconceivable decision. Looking at the set of facts in the administrative summary it’s quite obvious this is a political decision and not fact-based,” said Pacific International President Bob Watters. “The designs call for the terminal to operate at the highest levels of environmental stewardship and meet all federal and state regulations.”

Inconceivable, astonishing—but the outcome was baked into the review determination, without a lot of latitude for interpretation by the Corps. And to the annoyance of SSA and Pacific International, the Corps made its treaty determination separate from and outside the framework of those state and federal regulations.

Consistent with standard regulatory process, Corps spokesperson Patricia Graesser explained, if any one of the Corps’ required substantive evaluations concludes with a finding the proposal cannot be permitted, then the project proponent is notified of such finding and advised the project cannot receive a shoreline permit.

“PIH was notified the GPT Project as currently planned is not permittable, and they requested a decision on the application,” Graesser noted. “Because this proposal cannot be permitted due to effects on the Lummi Nation’s treaty rights and because of the Lummi Nation’s objection to this proposal, Col. Buck denied this project without prejudice.

“If in the future the Lummi Nation withdraws its objections to the proposal, the proponent could reinitiate processing of the application.“

“The proposed terminal could have destroyed the way of life for the Lummi and all indigenous people who depend on the Salish Sea for their livelihood and culture,” JoDe L. Goudy, chair of the Yakama Nation, said in a statement. “By denying the permit, the Corps upheld its duty to the tribes to protect treaty rights. The fight, however, is not over.”

And yet, Cherry Point was perhaps the last great hope for energy industries hoping to open a new export terminal on the West Coast of the United States. Only the Millennium Bulk terminal along the Columbia in Longview remains viable for coal export, currently heavily burdened by an exhaustive environmental review by the state Department of Ecology.

Significant impacts

“There is no dispute about whether Cherry Point or the proposal’s footprint is within Lummi’s U&A treaty fishing area,” Michelle Walker, the Chief of the Regulatory Branch at the Seattle Army Corps district office, noted in comments explaining the determination, “rather only whether the effects of the proposal will have a greater than de minimis impact on the Lummi’s treaty fishing rights.

“PIH contends there is not enough evidence in the record to show a greater than de minimis impact; GPT’s project area is not a productive area and is not fished or crabbed by the Lummi on more than an extraordinary basis; GPT’s impact is proportionally insignificant compared to the total Lummi U&A areas; potential future impacts to a potentially restored herring fishery should not be considered; and fishing and crabbing can occur effectively around the wharf, and the proposed mitigation reduces the impacts to a de minimis level. Each of these issues have been thoroughly evaluated and considered by the Seattle District,” Walker commented.

As the determination documents, Lummi fishermen have caught more than 10.7 million chinook, chum, coho, pinks and sockeye in the cited study period, as well as harvested 24.3 million Dungeness crab in areas near the proposed export facility.

A vehicle traffic study produced by the state found the Lummi spend at least a third of their time in the Cherry Point subarea for various fishing and crabbing activities.
The traffic study “goes on to conclude that if GPT is built and at full operation then Lummi fishing disruption will increase by 76 percent at Cherry Point,” the Corps noted. “PIH admits that at full buildout, GPT footprint and the new vessel approach lanes would occupy approximately 122 acres of physical space at Cherry Point. At full operation, the GPT facility would handle at least 487 total annual tanker calls.”

The litmus for determining de minimis impacts against treaty rights held by Salish Sea tribes goes back to Muckleshoot v. Hall In the 1998 Muckleshoot case, the Muckleshoot and Suquamish tribes received an injunction against a developer who wanted to build a 1,200-slip marina in Elliott Bay. The marina would have eliminated 130 acres of the bay for fishing, including “about 70 acres of which the tribes presently use for net retrieval of fish,” the judge’s opinion said.

“After a comparison of the two different sets of declarations, it is my opinion the Lummi declarations are equal to if not more detailed than Muckleshoot declarations,” Walker noted. “The Lummi declarations are more specific and identify an area with a map showing where tribal members fish and crab in the immediate vicinity of the proposed in-water structure. The Muckleshoot and Lummi declarations both speak to concerns of increased vessel traffic increasing fishing cost because of lost gear and reducing fishing efficiency,” the report author explained.

“At full buildout, the over-water impacts of the project will include a trestle, wharf, three ship berths, and new vessel approach lane covering 122 acres and handling 487 total annual vessel calls, one vessel arrival or departure every 18 hours,” the determination noted. “This does not include the incidental vessel traffic needed to operate a deep water export facility of this magnitude. Therefore, at minimum, 122 acres of the Lummi’s U&A fishing grounds will be impacted by the proposed project by eliminating the Lummi’s access to their U&A fishing grounds. PIH’s solution to the area occupied by the trestle, wharf, or birthed tankers is a directive on when and how the Lummi should fish and crab.

“Essentially,” the determination summarized, “PIH’s solution to the Lummi’s impact concerns is to have the Lummi exercise their crab and fish techniques in a manner different than what is currently being used.”

Federal judges in similar lawsuits have expressed the view that the amount of damage is irrelevant, hence the de minimis standard. U.S. District Court Judge John Coughenour ruled 20 years ago, in a suit involving the same waters, that any amount of interference with Native American fishing rights is illegal.

Northwest Sea Farms Inc. had challenged a 1996 Corps decision denying the company a permit to build a salmon farm off Lummi Island. The Corps said the project would interfere with Lummi fishing rights.

The impact would be minor, the company argued. Minor doesn’t matter, Coughenour ruled.

“The record need only support the Corps’ conclusion that the project would affect the Lummi Nation’s right to access,” he said.

Uncertain Future

The Corps of Engineers’ rulings won’t necessarily mean the end of SSA’s hopes for developing its Cherry Point site. A shoreline development permit granted by Whatcom County years ago—with no hint that it might enable a huge coal port—remains alive and gathering dust in Whatcom County files.

Tyler Schroeder, the deputy county executive heading up the County’s Environmental Impact studies, said the earlier permit appears to be viable, should the company decide to exercise it. It allows SSA to develop the Cherry Point shoreline for a terminal designed to handle grain and potash, among other commodities. It would be smaller by far than the proposed coal port, and would not be available to export volatile energy products.

Still, it comes with its own set of conflicts. SSA has not met the terms of a 1997 legal settlement requiring the company to carry out intensive studies of Cherry Point’s saltwater habitat. It was to be a state-of-the art probing into the lives of herring and other forage fish.  SSA agreed to bankroll the research in order to settle a lawsuit by a coalition of state agencies and nonprofit citizens groups.

All these years later, the studies have yet to begin. Scientists had hoped they might gain some insight into a 90 percent decline in Cherry Point herring, a once-flourishing population once thought to make up half the herring in Puget Sound. State and county officials presumably would require SSA to pay for the studies before approving a reincarnated export terminal—even without coal.

With or without the coal, the terminal would require approval by the Corps of Engineers and—by reference to treaty obligations—the Lummi Nation.

Gateway Pacific’s uncertain future comes just as SSA Marine’s potential customers are facing historically bad times.

Peabody Energy, committed to shipping 24 million tons per year through Cherry Point—half the port’s projected capacity—warned investors the company must face reorganization through bankruptcy. Reuters News Agency reported that Peabody might not have enough insurance and cash reserves to clean up its toxic mine sites across the country, as federal law requires.

The fundamentals of selling coal to Asia seem unlikely to improve for a while; the government of China is turning away from coal as a source of electric power, and closing hundreds of coal-fired power plants.

On the production side, the U.S. Dept. of Interior is completing a three year study of the way it sells off the public’s mineral wealth—the first since 1976—and hints that it might raise the cost of public land leases by as much as 50 percent.

Cloud Peak Energy, which bought a 49 percent share in the Cherry Point venture only last year, has stopped exporting coal altogether, until at least 2018. It will instead pay a penalty to Westshore Terminals in Vancouver, BC, for not meeting its contract obligations. Sightline Institute of Seattle says the penalty is less than Cloud Peak would lose if it continued exporting coal to Asia. Cloud Peak stock actually gained on news that it was suspending its export business for a couple of years in favor of paying Westshore for doing nothing.

“This has been a long journey and the Nooksack Indian Tribe is happy to be able to share in the joy and success of the Lummi Nation,” Lona Johnson, a council member for Nooksack Indian Tribe, commented. “A coal terminal at Cherry Point would violate treaty rights, and today the Corps affirmed that position and protected the Salish Sea for generations to come.”

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