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Lummis done talking, call for decision on coal port

Then-Lummi Nation Chairman Clifford Cultee, left, and Hereditary Chief Bill James speak at a 2012 protest against a proposed coal export terminal at Cherry Point.  The tribe sent a letter on Monday, Jan. 5, 2015 to the U.S. Army Corps of Engineers, asking the agency to reject a permit application for the coal terminal because it would interfere with tribal fishing grounds.
Then-Lummi Nation Chairman Clifford Cultee, left, and Hereditary Chief Bill James speak at a 2012 protest against a proposed coal export terminal at Cherry Point. The tribe sent a letter on Monday, Jan. 5, 2015 to the U.S. Army Corps of Engineers, asking the agency to reject a permit application for the coal terminal because it would interfere with tribal fishing grounds. THE BELLINGHAM HERALD

Lummi Nation’s leaders expect the U.S. Army Corps of Engineers will stop a proposed coal terminal at Cherry Point.

The tribe asked the Corps in January to reject permits for the terminal, claiming the 2,980-foot dock and up to 487 ships per year berthing there would interfere with traditional fishing areas protected by an 1855 treaty.

“We have faith in the Corps that they know their responsibilities and will do the right thing,” Lummi Chairman Tim Ballew said.

The tribe doesn’t expect its fight against Gateway Pacific Terminal to end there, however. Lummi Nation announced on Thursday, Aug. 27, it had hired Dentons, reportedly the world’s largest law firm, to represent it in future lawsuits related to the terminal.

Dentons, with offices in 49 countries, was hired for its experience helping tribes, Ballew said.

“The way things stand now, there is a high probability of a lawsuit after the Corps’ decision, and we just want to be prepared for anything, although we hope it doesn’t have to go that far,” Ballew said.

Craig Cole, spokesman for terminal applicant SSA Marine, declined to comment.

Also on Thursday, Lummi Nation delivered what it said was its final answer in the back and forth between the tribe and SSA Marine, which began after the tribe asked the Corps to halt the project.

“We are not interested in engaging in a lengthy dialogue with the project proponent and do not anticipate the necessity of responding further,” Ballew wrote to Corps Col. John Buck in a letter dated Thursday, Aug. 27.

“Accept this letter and accompanying reply as our final response,” Ballew wrote.

SSA Marine made a case on July 27 for where it believed Lummi Nation routinely fished within the area protected by the treaty, which is from the Fraser River to Seattle.

“The facts show it is not at the proposed project site,” SSA Marine’s response said.

Commercial-level fishing, SSA Marine argued, happened elsewhere and wouldn’t be disturbed by Gateway Pacific Terminal.

Generic statements provided by Lummi fishers that they “have fished throughout the Lummi Nation’s usual and accustomed fishing grounds and specifically in the area of Cherry Point” would not pass legal scrutiny, SSA Marine’s response said, signaling what could be an argument it would make in a future lawsuit.

“In a litigation context, the assertions of a causal connection between the project and impacts to treaty rights ... would likely face a motion to strike as speculative and without foundation,” SSA Marine said.

In its response on Thursday, Lummi Nation said it had already won a fishing-rights case, in 1996, involving a location the applicant had claimed the Lummi didn’t fish frequently. In that case, the tribe blocked Northwest Sea Farms from putting a salmon farm west of Lummi Island that would have kept the tribe out of an 11.36-acre area.

By SSA Marine’s own estimate, the area covered by the terminal’s pier, three ships berthed at the pier and a “vessel approach lane” would be 122 acres.

“We are left wondering why (SSA Marine) believes that making the very same arguments in this matter should produce any different result,” Lummi Nation’s latest response said.

A Corps official couldn’t say with certainty what the agency’s next step would be.

“The short answer is, it depends,” Corps spokeswoman Patricia Graesser said Thursday, Aug. 27, in an email to The Bellingham Herald. “We need to review what the Lummi Nation has provided us to determine if they have provided new factual information that (SSA Marine) should have an opportunity to review and potentially respond to.”

In other words, one more swing in the back and forth between the Lummis and SSA Marine could be coming.

“We don't have a deadline,” Graesser said, “but we do owe both parties a timely determination.”

Reach Ralph Schwartz at 360-715-2289 or ralph.schwartz@bellinghamherald.com. Follow him on Twitter at @BhamPolitics.

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