A U.S. senator and representative from Montana hurriedly circulated petitions in their respective chambers to ask the U.S. Army Corps of Engineers not to kill the proposed coal terminal at Cherry Point.
The 16 U.S. senators who signed their letter, including Montana Republican Steve Daines, were appealing to the Corps to not halt Gateway Pacific Terminal as requested in January by Lummi Nation until after a thorough environmental review is completed, with the release of a draft environmental impact statement.
The tribe argued that the coal terminal would impact its right to fish at its “usual and accustomed” (U&A) areas in ways that could not be avoided. The Corps has said if it is convinced those impacts were more than“de minimis” — a legal term for “negligible” — then it would shut down the project, even before an environmental review is completed.
The letter initiated by U.S. Sen. Steve Daines got my attention because it said, “The Seattle District of the Corps has indicated it might conclude a de minimis determination on the impact of the project on the U&A fishing rights ... as soon as the end of July 2015.”
That would be tomorrow.
My attention was piqued even further by the report Wednesday evening on the Missoulian’s website about the House and Senate petitions:
“Word began circulating recently that the Corps would honor the Lummi’s request, effectively killing the project,” wrote the Missoulian.
This is where a phone call from the Missoulian to the Corps would have been handy.
The Corps is not close to a decision and certainly won’t make one by Friday, July 31, said Patricia Graesser, spokeswoman for the Seattle District. The federal agency is still involved in mediating a back-and-forth between coal terminal proponent Pacific International Terminals (an arm of SSA Marine) and the Lummi tribe.
The Corps received more than 300 pages of material from SSA Marine earlier this week, Graesser said, which it forwarded to the tribe for its consideration.
While Graesser wouldn’t be pinned down on a decision date, she said it definitely won’t come until after the tribe responds to the latest from SSA Marine. The Corps is requesting the tribe’s response by late August.
Graesser said in an email to me on Tuesday, July 28 (coincidentally, I had asked her for an update before the House and Senate letters came out):
“We don’t have a deadline for reaching a determination of the extent of potential impacts to the Lummi Nation’s usual and accustomed fishing. The Corps takes treaty rights seriously and will undertake due diligence to ensure we honor our trust responsibility to the Lummi.
“In general if a determination is made that a proposed project would have more than de minimis impacts on Usual and Accustomed Treaty fishing, the Corps must deny a permit with prejudice. Treaty reserved rights are guaranteed by the U.S. Constitution and cannot be abrogated without specific and express Congressional authority. ...
“While there is no deadline, we are intent on a timely and deliberate process.”
You might have noticed, the senators’ letter said the draft environmental impact statement will be released in March 2016. Graesser said it won’t come that soon. The latest estimate for the release of the draft EIS is August 2016, she said.
One more note about the particulars in the senators’ letter: It cited precedent in the Corps’ decision making, saying, “In at least four cases where U&A fishing rights were evaluated, the Corps elected to develop a draft EIS and thoroughly evaluate mitigating features before determining whether a project would have a de minimis effect on U&A rights.”
Graesser in an interview didn’t refute that, but she said the Corps has ruled to protect fishing rights before completing the draft EIS at least twice: once for a salmon farm off Lummi Island, and another time for a private pier on the northern tip of Bainbridge Island.
One more point that needs to be clarified comes from the Missoulian report:
“The Crow Tribe of Montana also has a treaty right to profit from the natural resources of its land. Crow coal is likely to be exported to Japan and South Korea through the Cherry Point port. Daines said both tribes’ interests should be weighed in the Army Corps environmental review.”
Graesser said that is outside the scope of the Corps’ review.
“The scope of our analysis is within the immediate project footprint and nearby,” she said. “We’re not looking at rail impacts, and we’re not looking at coal mining.”