9 may 2016

Army Corps rejects permit for coal terminal at Cherry Point

Rejection likely spells the end of the proposed export facility near Ferndale

Corps decides project would impact fishing treaty rights of Lummi Nation

By Samantha Wohlfeil, Bellingham Herald, May 9, 2016

The proposed coal terminal for Cherry Point is likely dead after the U.S. Army Corps of Engineers denied a needed permit Monday, May 9.

The Corps ruled the project would impact the treaty-protected fishing rights of Lummi Nation based on the fact that the proposed trestle and associated wharf would take up 122 acres over water.

“The Corps may not permit a project that abrogates treaty rights,” said Col. John Buck, commander of the Corps’ Seattle District.

Lummi members cheered the announcement as it was made Monday morning in Lummi Indian Business Council chambers.

“With that, I want to acknowledge the hard work and leadership taken on behalf of all tribal leaders here,” Lummi Chairman Tim Ballew told those gathered. “We wouldn’t have been able to do it without you. Today is a good day. Today definitely is a good day.”

The decision was a major blow to SSA Marine, which has 51 percent ownership of the estimated $700 million project. Last month it had suspended work on an environmental review while it awaited the decision.

The project has been heatedly debated in Whatcom County for years, with backers citing the needed living-wage jobs and opponents decrying the increased train traffic and pollution it would bring.

Those backing the project have a few options to possibly revive it. SSA Marine can change the project so it doesn’t significantly impact treaty rights, reach an agreement with Lummi Nation so the tribe withdraws its objection or sue in federal court.

It was not immediately clear what action SSA Marine or its subsidiary Pacific International Terminals would take in light of the Corps’ decision Monday.

“PIT is considering all action alternatives,” the company said in a news release.

“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,” Bob Watters, PIT president, said in the release. “We are very disappointed that the GPT project has become a political target rather than being addressed on the facts. The terminal promises to deliver substantial benefits through economic development, the creation of family wage jobs, and the generation of significant taxes.”

Lummi council member Jay Julius said what kept popping into his head was that the tribe never lost faith.

“We never ever doubted ... We always had faith we would win,” Julius said to the group gathered in council chambers Monday morning. “One of the greatest things that I witnessed personally from this is the recognition from the outside, outside of the boundaries of this reservation, and those who don’t know us as a people. ... It has provided an opportunity for those outside to learn what the treaty is.”

Members in the audience included environmentalists and local elected officials.

“Everything we knew for thousands of years was given up in the treaty, and we were placed here,” Julius said, “but we secured some rights in that treaty. I’m thankful the colonel honored the treaty.”

Coal companies were hoping exports to Asia would shore up their industry, which has been battered by competition from cheap natural gas and more stringent restrictions on pollution. Two coal companies — Arch Coal and Peabody Energy — announced in April major layoffs of workers at mines in Wyoming.
Fishing rights debate

The Corps’ decision followed a request by Lummi Nation in January 2015 to protect the tribe’s treaty fishing rights.

“The Lummi have harvested at this location since time immemorial and plan to continue into the future,” Ballew said in the Jan. 5 request. “The proposed project will impact this significant treaty harvesting location and will significantly limit the ability of tribal members to exercise their treaty rights.”

Lummi fishing territory extends from the Fraser River to Seattle, with the exception of the Strait of Juan de Fuca and Hood Canal.

The tribe’s request came just weeks after the Department of Ecology released a vessel traffic study showing 76 percent more disruption to tribal fishing once the proposed terminal was in full operation.

SSA Marine claimed the tribe failed to prove its harvest would be much affected.

The 76 percent increase in disruption from vessel traffic was misleading because it amounted to a change from 0.11 percent disruption to 0.19 percent, SSA Marine officials pointed out.

In Monday’s news release, Watters cited aerial observations by the Washington State Department of Fish and Wildlife done during fish openings from 2002 to 2014, which “sighted only 4 fishing boats within one half mile of the proposed pier location and only 11 fishing boats” a half mile to a mile out from the proposed pier.

“On average that’s only 1.15 boats per year,” Watters said. “In addition, the Glosten Vessel Traffic study concluded that vessel traffic associated with the terminal would have a less than 1 percent impact on tribal fishing.”

Although the Corps examined all information submitted about the project, Buck said, increased vessel traffic and concerns about the impact of spills weren’t part of this denial.

Supporters of the terminal claimed the Corps had catered to “special interests” and said the decision would have a “chilling impact” on families who were counting on jobs created on site.

“It’s truly disturbing that the Army Corps took the unprecedented step today to deny the permit for the Gateway Pacific Terminal project even before releasing the draft Environmental Impact Statement,” Kathryn Stenger, spokesperson for the Alliance for NW Jobs & Exports, said in an email. “To deny this permit without any involvement from the community or without releasing any of the findings from its years long review is deeply troubling and sends a dangerous signal that the Army Corps values special interests over the rule of law. This ruling could have a chilling impact on thousands of families in northwest Washington who were counting on this project to provide good-paying jobs.”

Lummi victory statement

While one option to revive the project is for SSA to get an agreement with the Lummis, it’s unlikely Lummi leaders will change their stance on the project, based on years of opposition. Ballew issued a written statement after Monday’s announcement:

“This is a historic victory for treaty rights and the constitution. It is a historic victory for the Lummi Nation and our entire region. 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.

“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’s victory is monumental and the Corps followed a fair process defined by law to make the right decision. The Corps has honored the treaty between Lummi and the United States.

We will always fight to protect Xwe'chieXen.”

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