Lummis reject ‘standing offer’ to negotiate approval of Whatcom County coal terminal

A coal train waits south of Blaine, Friday morning, Oct. 11, 2013, to cross the border and unload in Canada.
A coal train waits south of Blaine, Friday morning, Oct. 11, 2013, to cross the border and unload in Canada. THE BELLINGHAM HERALD

The chairman of Lummi Nation said Thursday, Jan. 15, the tribe is not negotiating with the shipping-terminal company that would build a coal-export facility at Cherry Point.

Lummi Chairman Tim Ballew sent a letter to the U.S. Army Corps of Engineers dated Jan. 5, asking the agency to immediately deny a federal permit for the Gateway Pacific Terminal. The terminal applicant, SSA Marine, responded by asserting its “standing offer” to meet with Lummi officials and work out a deal that would allow the terminal to be built.

“Plain and simple, the response is just as the letter to the Corps said,” Ballew said on Thursday, Jan 15. “There is no way to mitigate the damages the proposed project would bring.”

The terminal’s pier and up to 487 vessels a year would interfere with Lummi fishing grounds, according to a vessel traffic study released last month by the state Department of Ecology. Lummis were given the right by an 1855 treaty to fish their “usual and accustomed” grounds, which extend southwest from the Cherry Point area to the eastern Strait of Juan de Fuca.

At full capacity, Gateway Pacific Terminal would export up to 48 million metric tons of coal and 6 million metric tons of other commodities to overseas markets. Barring delays in the permitting process, the terminal could be fully operational by 2019.

“We very much appreciate the concern about the challenges to Lummi fishers,” wrote Bob Watters, senior vice president of SSA Marine, in a company statement issued the same week as the tribe’s letter to the Corps. The company’s statement was printed in part in a “Whatcom View” opinion column in The Bellingham Herald on Saturday, Jan. 10.

Watters said the Lummi fishing industry has not been self-sustaining, with fishermen taking federal subsidies and retraining grants.

“This makes self-sustaining, private sector job creation all the more important, and we have a standing offer out to the Lummi and other affected tribes to discuss how we can work to enhance their cultural and economic prospects,” Watters wrote.

Ballew was asked if the tribe had taken SSA Marine up on its offer to negotiate.

“We’re not negotiating with GPT or SSA because the standpoint from the leadership, the community and the fishermen is, there’s no way to mitigate the project,” Ballew said.

SSA Marine’s statement also said the Corps would be breaking the law if it denied the permit before the project application underwent a full review.

“Prematurely stopping that process at the request of any single party not only defeats the fundamental purpose of a permit review but also denies the project proponent, property owner and other stakeholders the due process that the law requires,” Watters wrote.

Corps spokeswoman Patricia Graesser said on Friday, Jan. 16, that a similar permit denial by the Corps withstood a challenge in U.S. District Court, in a 1996 decision. In that case, the Corps had rejected a permit application from Northwest Sea Farms to operate a salmon farm west of Lummi Island. The Corps had ruled that the farm, about 1.4 acres on the water’s surface, would interfere with Lummi fishing grounds.

“Our treaty trust responsibility is distinct from our documentation requirement under NEPA,” Graesser said. NEPA is the National Environmental Policy Act, which requires a review of the environmental impacts that would arise from approving a permit application.

“We needn’t have concluded NEPA documentation to assess our trust responsibility,” Graesser said.

The Corps is not finished reviewing the Lummi’s letter, which with supporting documents was 97 pages. Graesser said on Friday that the Corps should have a response to the Lummi “within the month.” Corps officials will meet with SSA Marine once they have responded to the tribe’s letter.

“A permit may be denied if usual and accustomed fishing treaty access issues cannot be resolved,” Graesser said. “The Corps needs to determine, given the information provided to us, if potential impacts to the Lummi Nation’s usual and accustomed fishing could be de minimis,” or trivially small as established by case law. “We have not yet made that determination.”

SSA Marine’s statement anticipates that legal angle.

“Lummi Nation’s court-affirmed ... fishing area is approximately 1.9 million acres,” Watters wrote. “The GPT proposed lease of state tidelands is an area of 46 acres, or 2/1000 of 1 percent of that ... area.”

Chairman Ballew said SSA Marine’s calculation does not include the disruption caused by ships.

“They can’t just take into account just where the pier would be located,” Ballew said. “The vessel traffic associated with that needs to be taken into account.”

The vessel study said the traffic added by the operation of Gateway Pacific Terminal would increase by 73 percent the disruption of Lummi fishing by vessels. The added traffic also would increase the risk of oil spills, the study said.