In a response sent early this Wednesday morning, May 20, the U.S. Army Corps of Engineers told The Bellingham Herald it won’t hold SSA Marine to a strict deadline in its response to Lummi Nation’s assertion that SSA’s coal terminal would interfere with tribal fishing.
The Corps was not able to fully respond by deadline to questions posed to it for a story that ran in today’s Bellingham Herald. The Corps only said on Tuesday, May 19, that it was assessing a request from SSA Marine for another 90 days to gather information and formulate a response to the tribe’s claim that SSA can do nothing to reduce the harm Gateway Pacific Terminal would cause to fishing on Lummi grounds. The tribe asked the Corps on Jan. 5 to reject a permit for the terminal, citing the Corps’ responsibility to preserve treaty-protected fishing rights.
SSA’s request for more time is not out of bounds, Corps spokeswoman Patricia Graesser indicated in an email she sent us early on Wednesday. SSA Marine also goes by Pacific International Terminals (PIT) as the would-be operator of Gateway Pacific Terminal.
“We can be flexible in the time we give PIT,” Graesser wrote. “We want to ensure we make a determination with the most accurate, complete information, but it is not an open-ended process. While there is no deadline, we are intent on a timely and deliberate process.”
In a preliminary response, dated May 12, SSA Marine said the Lummis’ own information about fishing practices suggested the coal terminal could be designed and operated to accommodate fishing.
“The declarations (of Lummi members regarding fishing practices) include information that leads to the reasonable contention that changes to the project features and/or operations could reduce or eliminate impacts, making the claim that the project effects are more than de minimis incorrect,” the letter said.
Those Latin words, “de minimis,” loom large in this case. Short for the phrase de minimis non curat lex (”the law does not concern itself with trifles”), it’s the standard the Corps has said it will apply in deciding whether Lummi fishing would be disrupted enough to warrant halting the project.
“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 more than de minimis,” the Corps wrote in an email to The Bellingham Herald on Jan. 16, 11 days after the tribe submitted its request.
SSA Marine said that it wouldn’t necessarily be able to make a 90-day deadline unless it heard from the Corps about what its de minimis standard would be. Graesser said it has provided that information to SSA Marine, including three examples of the de minimis standard in prior case law:
In the Muckleshoot case, decided in 1988, the Muckleshoot and Suquamish tribes got an injunction against a developer who wanted to build a 1,200-slip marina in Elliott Bay.
The marina would have eliminated 130 acres of the bay for fishing, including “about 70 acres of which the tribes presently use for net retrieval of fish,” the judge’s opinion said.
“According to the Corps, the area to be eliminated represents about 6 percent of the Chinook fishing area from West Point to Pier 91, and about 27 percent of the prime Chinook fishing area between Four Mile Rock and Pier 91,” the opinion said.
The judge took into account tribal claims that other fishing areas had been compromised by vessel traffic and development, making the Elliott Bay areas that much more important to them.
SSA Marine said in its May 12 letter that the Lummis did not provide enough information to indicate the fishing production at Cherry Point relative to other fishing areas. Tribal chairman Tim Ballew has said the Corps has all the information it needs to make a decision.
In another U.S. District Court case, a judge in 1996 upheld the Corps’ decision to reject a permit for Northwest Sea Farms’ salmon farm off Rosario Strait because it would have interfered with Lummi fishing. The farm would have covered 11.36 acres under the water’s surface for anchorage, and 1.41 acres on the surface.
From the decision:
“First, the Corps found that the record established that members of the Lummi Nation presently fish the proposed site of the project on a ‘more than extraordinary basis.’ Second, the Corps found that the record illustrated that the project would deny members of the Lummi Nation access to the site.”
SSA Marine is familiar with the legal standard applied in the 1996 case. From its May 12 letter:
“Specifically, we want to establish whether the tribe does in fact use the specific area where the pier is proposed on more than an extraordinary basis.” A little later in the letter, SSA says, “We believe the information we submit will show that the tribe has not met its burden to provide verifiable, conclusive facts that the proposed project will have more than a de minimis effect on treaty fishing rights.”
In the third case, from 1992, the U.S. District Court rejected the Lummis’ motion for an injunction against a dredging disposal site in Bellingham Bay. The court determined that Lummi Nation was not likely to win an argument in court that the disposal site’s impact to fishing was more than de minimis.
“The interference with the treaty right must reach a level of legal significance,” the court decision said. “The court is not convinced, for the purposes of a preliminary injunction, that the plaintiffs have demonstrated they will probably succeed on the merits of their treaty claim.”
The disposal site was only to be used for at most 10 days, at the rate of four barges a day, which would take about 10 minutes each to dispose of their waste. The material was determined to be no more toxic than what already existed in the bay, and fish migratory routes would not be affected, the judge’s decision said.