Montana Mischief

U.S. Senate applies pressure to Cherry Point review

Wednesday, August 5, 2015

Steve Daines is not happy with the U.S. Army Corps of Engineers and that agency’s decisions about the handling of the review process for the Gateway Pacific Terminal coal pier proposed for Cherry Point. The U.S. Senator from Montana has introduced a flurry of legislation intended to ease the regulatory burden of coal exports. In April, the Republican chaired a field hearing that focused on the importance of coal to Indian tribes in the West. He’s toured the GPT site at Cherry Point and has excoriated Gov. Jay Inslee for the state’s sluggish response in support of this project.

“It is critical we make this facility happen,” Daines said. “This will serve as an important economic driver, both for the people of my home state of Montana, as well as the people here in Washington, who will greatly benefit from the increased export capacity the terminal will bring.”

Though his state is tiny in population—so small Montana has but a single representative in the lower House, compared to Washington’s ten—that creates a potent condensate that lets Daines apply focused and relentless attention in support of the state’s resource-extraction industries.

Most recently, Daines used his influence to encourage 16 members of the Republican Senate and a score of Republican members of the U.S. House of Representatives to pen a letter to USACE, protesting the Corps’ decision to review the potential impacts to tribal fishing rights separately from environmental review of the impacts to shorelines under the National Environmental Policy Act (NEPA).

If constructed, Gateway Pacific Terminal at Cherry Point could send as much as 54 million tons of coal a year across the Pacific in the largest of ocean-going vessels. Earlier this year, the Corps was persuaded by the appeals of Lummi Nation to consider whether that vessel traffic and shoreline industrial activity could harm tribal fisheries, protected by federal treaty. The Corps determined the matter of treaty rights warranted a separate and independent analysis from that required under NEPA—a two-prong approach to considering the project. Indeed, the one prong may be resolved before the second prong even gets started.

That’s what alarms the Republican Congress.

A separate analysis “would short-circuit the public review period for a very important project to our nation—the Gateway Pacific Terminal expansion,” the Senate coalition warned in a July 28 letter to Thomas Bostick, the commanding general of USACE. The letter was signed by Senate Majority Leader Mitch McConnell and other senior members of the Republican caucus.

“The project has been undergoing environmental review as part of the [NEPA] analysis for over 28 months,” the senators noted. “The draft EIS is expected to be released in March 2016. We understand the Lummi Indian Nation and other local tribes have raised certain concerns over the impacts of the new facility could have on their usual and accustomed (U&A) fishing rights. As part of these concerns, the Seattle District of the Corps has indicated it might conclude a de minimis standard on the impact of the project on the U&A fishing rights prior to the issuance of a draft EIS,” the senators noted.

“We respectfully and strongly urge the Corps to complete the NEPA process and develop project alternatives including mitigation efforts before determining de minimis impacts to any tribes’ U&A fishing rights,” the senators warned.

Gaining a permit under NEPA is relatively straightforward: Identify things that will be lost or diminished by a project (impacts) and pay cash or deliver offsets to replace or paper over the loss (mitigation).

A more molecular determination, a de minimis standard lies at the very threshold of what can be measured and therefore likely cannot be mitigated. The tribes’ position—echoed in a number of court decisions that have upheld the de minimis standard—is that fishing is so central to tribal culture and way of life that it cannot be papered over by cash settlements or hidden behind cans of farmed salmon.

Lummi Nation replied to the Senate letter and Montana’s lobbying efforts with a letter that attempts to articulate the issues of concern to the tribes.

“Because I believe your letter misstates the regulatory review process underway, and greatly reflects a misunderstanding of the significance of Indian treaty rights at stake, I write in an effort to improve your understanding to avoid further misleading efforts to undermine the Corps’ regulatory responsibilities,” Lummi Chairman Tim Ballew responded in a letter this week.

“The ‘two-prong’ approach serves at least two purposes,” Ballew explained. “First, it allows the Corps to independently and clearly assess the impact of the project on treaty fishing rights. And second, it serves to promote regulatory efficiency and reduce environmental review costs.

“The Corps must assess the impact of the Gateway Pacific Terminal on our treaty fishing rights regardless of the timing of that approach. Under the course of action you recommend in your letter, the Corps could come to the conclusion that there is more than a de minimis impact on our treaty fishing rights and deny the permit after years of review and expenditure of millions of dollars of agency costs,” Ballew noted.

“Any effort to affect the scope or administrative relevance of any Indian treaty rights should be addressed—if at all—in open meetings of the Senate and House Indian Affairs committees with full and adequate rights of consultation by the Lummi Nation and affected tribes,” Ballew warned. “I urge you to take the more honorable path of pursuing any of your proposed changes in federal environmental law through standard practice, as opposed to ‘middle-of-the-night’ legislative changes.”

Ballew copied his letter to Washington State’s congressional delegation, including Sens. Patty Murray and Maria Cantwell.

Prompting the exchange of letters was the decision by the U.S. Army Corps of Engineers last month to not delay consideration of tribal claims, as petitioned by Pacific International Terminals (PIT), a subsidiary of Seattle-based SSA Marine and proponent of the GPT project. The company reported they needed more time to respond to tribal concerns, complaining that Lummi Nation would not work with them to identify potential impacts as precursor to strategies to mitigate those impacts. The impacts cannot be mitigated, was the tribal response. The Corps noted PIT was at liberty to submit materials at any point in their review of tribal treaty rights but declined to halt their proceedings until those materials arrived.

“We denied PIT’s request for additional time to respond to our information request,” Michelle Walker noted on behalf of the Corps division’s regulatory branch. “However, we did indicate we would consider additional information they believe is relevant if it is reached before we make a final de minimis determination.” Lummi Nation would also be provided opportunity to respond to new submitted data, she noted.

“Although the USACE has not completed the EIS, which will identify how to avoid, minimize and ultimately mitigate potential impacts, and although Lummi Nation has refused to discuss mitigation, Lummi Nation simply asserts that impacts cannot be mitigated,” PIT Vice President Skip Sahlin wrote to the Corps’ Seattle division in late July. “The USACE must make an informed decision based upon conclusive facts and Lummi has the burden to prove impacts violate its treaty rights. If the facts are not conclusive, the project review must certainly proceed.”

With the letter, a frustrated Pacific International Terminals recently submitted a binder of hundreds of pages of documents in support of their project; however, the materials contained nothing substantive that would change the tribe’s petition for review, Ballew said.

“We believe the Corps has the materials they need in order to make their determination of de minimis impacts to our rights under treaty,” Ballew said.

For more information on the 2015 Lummi Totem Pole Journey,

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