Lummi Nation sees no compromise on Gateway Pacific

THE BELLINGHAM HERALDAugust 2, 2013 

In a letter to the U.S. Army Corps of Engineers, Lummi Nation Chairman Tim Ballew says the tribe "has unconditional and unequivocal opposition" to the Gateway Pacific Terminal coal export pier that SSA Marine hopes to build at Cherry Point.

The letter is the 5,000-member tribe's formal effort to exercise its treaty right power to block developments that pose a threat to tribal fisheries. In the past, the Army Corps has acknowledged that power and has refused to process permits for projects if tribal objections cannot be resolved.

Tribal officials announced Wednesday, July 31, that they would send such a letter. Earlier that same day, Muffy Walker, Army Corps of Engineers regulatory branch chief in Seattle, said her agency had not received formal notice of opposition from the tribe, and that the permitting process for Gateway Pacific would proceed until such notice arrived.

Tribal officials had already voiced strong opposition to Gateway Pacific at 2012 meetings held to gather public comment on what environmental issues should be studied as state, local and federal agencies decide whether to issue permits for the coal terminal.

In a letter to Col. Bruce Estok, the Corps' district engineer in Seattle, Ballew said the tribe's review of the project "resulted in a clear and convincing conclusion that the proposed projects, if built and operated, would have a substantial impairment on the Lummi treaty fishing right harvest at XweChiexen (Cherry Point)."

The letter also states: "The Lummi Nation cannot see how the proposed project could be developed in a manner that does not amount to significant impairment on the treaty fishing right and a negative effect on the Lummi way of life."

The letter calls upon the Corps to carry out its legal responsibility to protect federally guaranteed tribal fishing rights, originally spelled out in the Point Elliott treaty of 1855 and later upheld in a series of federal court rulings beginning in 1974.

SSA Marine and the Corps of Engineers did not immediately respond to requests for comment Friday, Aug. 2.

HISTORY OF CONCERN

State regulators and executives at Seattle-based SSA Marine have been wrestling with the tribal treaty rights issue for years as they move ahead with plans for a three-berth Cherry Point shipping terminal that could handle as much as 48 million tons of Asia-bound U.S. coal per year.

The site is at the end of Gulf Road, between the BP Cherry Point refinery and Alcoa Intalco Works smelter.

According to emails obtained via public records requests, Lummi Nation raised objections to related geotechnical sampling work in the Strait of Georgia as far back as 2009, before the current plan for the site had been publicly revealed.

SSA Marine eventually managed to convince the tribe to drop objections to that sampling work, and the Corps granted permits for it in June 2011.

Lummi Nation objections to the coal terminal proposal are also noted in official notes prepared after a Dec. 6, 2010, meeting of the "multi-agency permit team" of state, federal and Whatcom County officials convened to consider issues raised by SSA Marine's proposal. The meeting was called by then-Gov. Chris Gregoire's Office of Regulatory Assistance.

The meeting notes state that "The Lummi provided a letter to the Corps with strong language against moving ahead with project review. The Corps needs to evaluate how much staff time they can put toward this project when there may be significant tribal issues that need to be resolved."

The meeting notes also add, "The company has been talking with the Lummi."

Another set of notes prepared by the Office of Regulatory Assistance outlines the happenings at a Dec. 10, 2010, meeting at SSA's Seattle office, involving SSA executive Skip Sahlin, company attorney Rob Caldwell, and two representatives from the governor's office.

The notes, prepared by a consultant working with the governor's office, state: "Skip and Rob will work with the Lummi Tribe leadership to resolve U/A (treaty rights) issues."

Not long after that, tribal leaders edged away from flat-out opposition to Gateway Pacific.

In February 2011, the Lummi Indian Business Council approved a resolution creating the "Lummi Nation Cherry Point Team," finding that "it is in the interest of the Nation to get involved in the discussions, consideration and planning related to the development efforts by SSA Marine."

Among other things, the resolution stated that the team "is needed to examine the issues surrounding the impacts and methods of mitigation to the fisheries, fishery industry, and cultural resources, and the long-term economic development potential related to the proposed import/export dock at Cherry Point."

The resolution authorized the Cherry Point team of tribal officials to "pursue funding to participate in the planning and development at Cherry Point, gather information, conduct studies and assessments, meet with government officials from other jurisdictions or private business representatives, and engage in other activities including negotiations related to developing the Lummi Nation's position regarding the proposed import/export dock at Cherry Point, impact mitigations and other related matters."

In the May 2012 edition of the tribe's official Squol Quol newspaper, tribal leaders reported that in March 2011, SSA Marine had agreed to provide the tribe with $400,000 "to offset the cost for Lummi to review and evaluate the proposed project."

"The primary principle governing the use of the money is that the funding must not influence the outcome of the evaluation or any negotiations," the Squol Quol announcement stated.

In several other editions of the newspaper, tribal leaders repeated their intention to take no position on Gateway Pacific until environmental studies were complete. But tribal opinion apparently was shifting against the project.

One simmering issue was the unauthorized excavation work at the site performed by an SSA subcontractor in summer 2011. The area had been identified as the former site of a Lummi village, and rumors spread that ancestors' graves might have been disturbed.

Tribal officials made a point of denying that rumor in another issue of the tribal newspaper.

But by September 2012, it was clear that the tribal council was hearing a strong anti-coal terminal message from constituents. They convened a meeting on a Cherry Point beach to announce the tribe's opposition to Gateway Pacific. The event featured the burning of a giant check meant to symbolize that tribal treaty rights were not for sale.

Reach John Stark at 360-715-2274 or john.stark@bellinghamherald.com. Read his Politics blog at blogs.bellinghamherald.com/politics or follow him on Twitter at @bhamheraldpolitics.

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