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Army Corps: No Cherry Point coal terminal decision in March

FILE - In this Jan. 9, 2014, file photo, rail cars are filled with coal and sprayed with a topper agent to suppress dust at Cloud Peak Energy’s Antelope Mine north of Douglas, Wyo.
FILE - In this Jan. 9, 2014, file photo, rail cars are filled with coal and sprayed with a topper agent to suppress dust at Cloud Peak Energy’s Antelope Mine north of Douglas, Wyo. Casper Star-Tribune

Montana’s Rep. Ryan Zinke, a supporter of a proposed coal export terminal planned for Cherry Point, expects the U.S. Army Corps of Engineers will deny a permit for the project, ruling in favor of Lummi Nation.

The tribe asked the Corps to reject the permit for Gateway Pacific Terminal in January 2015, as it would impact the tribe’s fishing grounds.

In a Tuesday, March 15, announcement on his website, Zinke said the Corps’ Seattle district is planning an “unprecedented move” to issue a ruling before an environmental study on the project is completed “in order to appease liberal political power-brokers.” He said that ruling could come as soon as Wednesday, March 16.

But Corps spokeswoman Patricia Graesser said the determination isn’t expected to be made this month.

“The Corps of Engineers is using voluminous submittals from the Lummi Tribe of the Lummi Reservation ... and Pacific International Terminals” to determine what type of impact the project likely would have on the tribe’s treaty rights, Graesser wrote in an email.

If the Corps finds that the project impacts treaty rights, it would deny the project’s permit and halt work on an environmental study due out this year. Such a finding likely would result in lawsuits from terminal backers.

Zinke announced Tuesday that he wanted the Department of Defense to investigate Col. John Buck, the commander of the Corps’ Seattle district, for issuing a ruling on the impacts before a draft Environmental Impact Statement is completed.

“As a Colonel in the United States Army, it is illegal for Mr. Buck to be politically swayed in any manner, as his primary duty is to defend this nation in its entirety,” Zinke wrote in a letter.

Lummi Chairman Tim Ballew said that after reading and hearing Zinke’s comments, he thought Zinke might not understand the process that the Corps is following. That process is well-defined and there is precedent showing the Corps has authority to make similar permit decisions, Ballew said.

“I hope that his rhetoric or his comments that he made this week don’t delay the Corps from doing its job,” Ballew said. “They have the authority and we expect them to make a determination that’s based on the impact to treaty fishing rights, and antics like this just delay the process.”

The environmental study, performed under the National Environmental Policy Act, is scheduled to be released in October, but that is subject to many factors, Graesser wrote.

“The Seattle District has an obligation to make a timely, sound and well-documented decision,” Graesser wrote, “and can make this determination separate from the NEPA process after receipt, review, and analysis of appropriate information.”

Skirting the EIS is absolutely unprecedented and starts a slippery slope of choosing who has to play by the rules and who is above the rules.

Heather Swift, communications director for U.S. Rep. Ryan Zinke, R-Montana

The project, proposed for the industrial Cherry Point area northwest of Bellingham, is backed by SSA Marine, the Crow Tribe in Montana, and Cloud Peak Energy.

Since submitting the application last year, the tribe has been hopeful the Corps would rule in its favor. The tribe had expected a decision by the end of March.

“The Lummi have harvested at this location since time immemorial and plan to continue into the future,” Ballew said in the Jan. 5, 2015, request. “The proposed project will impact this significant treaty harvesting location and will significantly limit the ability of tribal members to exercise their treaty rights.”

Zinke argues that no project should be denied until “all the facts are available,” specifically referring to the environmental study.

“Skirting the EIS is absolutely unprecedented and starts a slippery slope of choosing who has to play by the rules and who is above the rules,” Zinke’s Communications Director Heather Swift wrote in an email to The Bellingham Herald. “That’s why a bipartisan group of lawmakers urged the (Corps) to complete the EIS. We understand that the Lummi have treaty rights. The Crow have treaty rights too though, something the Lummi fail to even recognize.”

However, there is precedent for denying a permit if the Corps rules there would be more than “de minimis” impacts on the Lummi’s fishing rights.

The Corps responsibility to protect tribal treaty rights is independent of the NEPA process.

Patricia Graesser, U.S. Army Corps of Engineers spokeswoman

In May 1996, a federal judge upheld a Corps decision to deny a permit to Northwest Sea Farms, which wanted to build a salmon farm west of Lummi Island that would have kept Lummi fishers out of 11 acres of their accustomed fishing grounds.

The ruling was cited by the Corps and the tribe in 2015 as establishing the standard for protecting fishing rights.

“While NEPA may provide a platform for the comprehensive review of all potential effects of an activity subject to the Corps control and responsibility, the Corps responsibility to protect tribal treaty rights is independent of the NEPA process,” Graesser wrote.

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 2014 said the terminal would put 487 additional vessels on these waters, increasing by 73 percent the disruption of Lummi fishing by ship traffic.

In an email Wednesday, Swift wrote that Col. Buck had just informed Zinke’s office that a decision would not be made Wednesday.

“This is a small victory for the countless Bellingham-area stakeholders and workers who have been pushing for this project, as well as the Crow Nation who have treaty rights to prosper off their lands and resources.”

Samantha Wohlfeil: 360-715-2274, @SAWohlfeil

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