Army Corps needs more information before deciding on Lummi request to reject coal port

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 U.S. Army Corps of Engineers on Wednesday, Feb. 4, gave its first official response to Lummi Nation’s request that the agency “take immediate action and deny the permit application” for a proposed coal terminal at Cherry Point, to protect the tribe’s fishing grounds.

A Corps letter asks for more information from the tribe, signaling that any action by the federal agency won’t be immediate.

The Lummis’ Jan. 5 request to reject the port, based on long-held fishing rights, could be enough to halt Gateway Pacific Terminal before an environmental review is complete. Courts upheld a similar request from the tribe to halt a salmon farm in Rosario Strait more than 20 years ago.

The Corps’ letter asked where exactly the tribe sets nets and crab lines, and how long those lines are set.

“We need detailed information for our administrative record on the Nation’s specific use of the (terminal) project waters and how the facility’s construction and operation would affect access to, and use of, these waters,” said Col. John Buck, district engineer for the Corps in Seattle, in the letter to Lummi Chairman Tim Ballew.

Based on traditional practices and reinforced by recent court decisions, the Lummi fishing grounds stretch from the Fraser River to Seattle, and west to the eastern Strait of Juan de Fuca. A vessel traffic study the state Department of Ecology released in December said Gateway Pacific Terminal would put 487 additional vessels on these waters, increasing by 73 percent the disruption of Lummi fishing by ship traffic.

The terminal would ship up to 48 million metric tons of coal to overseas markets as early as 2019.

Ballew said the Corps and Lummis have been meeting about Gateway Pacific Terminal for three years, and the Corps should have enough information to decide whether to deny the terminal. The standard established in recent court cases is that tribal rights take precedence over any project on the water if it has more than a negligible impact on fishing.

“They’re aware we utilize the entire (fishing grounds) for different species at different times of the year, and that includes the marine areas at Cherry Point,” Ballew said Thursday, Feb. 5, in an interview. “I think that they have enough to make a determination now, but we’re committed to continuing the government-to-government consultation, and we’ll help them with their request for more information.”

The tribe will meet the Corps’ request for a response within 30 days, Ballew said.

“We share the Corps’ goal of arriving at a well-reasoned and defensible decision,” Ballew said in a prepared statement the tribe released on Thursday, Feb. 5.

In a statement on Jan. 10, officials at SSA Marine, the Seattle-based company that seeks to build the terminal, responded to the Lummis’ request to the Corps to reject the permit by asserting that an environmental review of the project should be completed first. The Corps has maintained that consideration of tribal fishing rights is independent of the environmental review.

Ballew on Tuesday, Feb. 3, rejected an offer from SSA Marine to negotiate with the tribe over how to “harmonize the facility with the environment.”

In a statement on Thursday, Feb. 5, SSA Marine remained steadfast in wanting to negotiate.

“As we have said all along, we are dedicated to working with the community, including the Lummi, on this important project. And we will continue working with the Corps of Engineers on issues raised in the environmental review,” said Bob Watters, senior vice president at SSA Marine.