There has been a lot of back-and-forth over the past five weeks among Lummi Nation, the U.S. Army Corps of Engineers and Gateway Pacific Terminal as the tribe asserts its fishing rights, in order to stop the coal terminal from being built.
Stories that have run already in 2015 in The Bellingham Herald described the tribe’s request on Jan. 5 that the Corps immediately reject a permit for GPT, followed by GPT asserting its ‘standing offer’ to negotiate with the tribes, to the Lummis rejecting the latest request to meet with GPT, to the Corps asking the Lummis for more information about that early-January request.
The latest volley came today, Monday, Feb. 9, from Gateway Pacific Terminal, which made a curious statement about the subject of the most recent of the above stories, the one about a Corps letter asking the Lummis for more information.
In a statement headlined, “ Army Corps Declines to Disrupt EIS Process,” Gateway Pacific Terminal spokesman Craig Cole wrote, “The US Army Corps of Engineers, the lead federal agency in conducting an environmental review of the proposed Gateway Pacific Terminal project, has declined the Lummi Nation’s request to deny the project a permit without completing the EIS process now underway.”
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What this says is, the Corps won’t consider Lummis’ request to “take immediate action and deny the permit” until an environmental impact statement is finished. That could be a year from now.
Lummi Nation Chairman Tim Ballew has said he would like to see the EIS put on the “back burner” so the tribe and the Corps can sit down in government-to-government consultation and come to a conclusion about whether GPT would disrupt Lummi fishing grounds more than negligibly.
In a phone interview today, Monday, Feb. 9, Cole said he was the one who wrote today’s release. I told him I thought it was a head scratcher, given that the Corps was indicating the EIS and consideration of Lummi fishing rights were independent.
“Your article is a head scratcher to us,” Cole replied. “I think both interpretations are legitimate.”
That is, my “interpretation,” which has the Corps considering Lummi fishing rights separately, and possibly first; and GPT’s interpretation, which says the consideration of fishing will come after the EIS is finished.
“The EIS process certainly informs any decision that’s going to be made. That produces a much greater degree of information on which the Corps can base its considerations,” Cole said.
Cole continued: “It’s hard to picture for example that some of the same issues that are being studied in the EIS would not also inform the corps in its decisions about the U&A rights. The two are in fact interwoven from an informational standpoint.”
(“U&A” stands for “usual and accustomed” fishing grounds, the language used in court cases.)
More Cole: “You would certainly expect the Corps to take into account all the information available. ... We don’t view the two processes as competing. The EIS is complementary to the Corps’ deliberations.
“... We understand the Corps will consider whatever information it deems is appropriate. We respect that. We think the EIS process would be very informative to all concerned. We think it’s important to explore possibilities, and that requires people to consider what could be. ... The EIS will describe potential impacts but also potential avoidances and mitigations.
“I thought your story was an interesting angle. In reality the Corps will do in its judgment what it thinks is best. ... The fact is there’s probably more than one way to read that Corps letters … from what the Corps has said at this point.”
If GPT would have asked the Corps directly about this, as the media has, GPT would have learned that the federal agency’s position is less open to interpretation than the coal terminal proponent makes it out to be:
“Our treaty trust responsibility (to protect tribal fishing rights) is distinct from our documentation requirement under NEPA (to prepare an EIS). To assess our trust responsibility, we needn’t have concluded NEPA documentation,” Corps spokeswoman Patricia Graesser said.