Northwest tribe calls for halt to coal project review – Casper Star-Tribune, Jan. 7, 2015

January 7, 2015

Categories: Coal, News


By Benjamin Storrow

A recent request by the Lummi Nation to halt a federal permit review of the Gateway Pacific Terminal in Bellingham, Washington, sets an important legal marker in the debate over coal exports, according to legal observers and analysts.

The tribe, in a Monday letter to the U.S. Army Corps of Engineers, asked the government to end its review of the proposed facility, which would send up to 48 million tons of coal mined in Wyoming and Montana to Asia each year.

“The impacts on the Nation’s treaty rights associated with this project cannot be mitigated,” wrote Tim Ballew II, chair of the Lummi Indian Business Council.

Coal companies in the Powder River Basin are pushing for export terminals in the Northwest to act as bridges to Asia’s growing economies. The effort comes as the domestic market for coal contracts amid a glut of cheap natural gas and tightening regulations.

Wyoming Gov. Matt Mead, a Republican, has led a campaign by state officials to promote coal exports in the Northwest. The governor said Tuesday he was unaware of the Lummi’s letter until being informed of it by a reporter, but added tribal concerns need to be respected and addressed.

“We have to recognize that, as we would in this state if somebody was coming from another state to do something, we want our questions answered. That is the obligation of the coal companies and the railroads and the state of Wyoming to address those legitimate concerns,” Mead said. “I think we can and think we can overcome them, and we can ultimately have success exporting coal out of the terminal.”

Threats to the Lummi fishery include ballast water discharges, introduction of invasive species and contaminant spills, among others, Ballew said.

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

Native American tribes play a key role in the debate over coal exports.

A series of federal court rulings beginning in the 1970s affirmed tribes’ rights to fish in their “usual and accustomed places,” said Sarah Krakoff, a professor of law at the University of Colorado, where she specializes in Native American law. The rulings boosted the tribes’ economic fortunes, with the revival of native fishing and an overhaul of fisheries management in the Pacific Northwest, she said.

Oregon regulators rejected a coal export dock planned on Columbia River last year, citing its impact on tribal fishing rights in the area. That case is now being appealed.

The Lummi Nation is one of several tribes with fishing rights at Cherry Point, the proposed site of the Gateway Pacific Terminal. The tribe has long opposed plans to build a coal terminal at the site, but Monday’s letter represented an escalation of their efforts to defeat it, Krakoff said.

“I think what the Lummi Nation is signaling is they are prepared to engage in other legal measures if the approval process goes forward without taking their concerns into account,” she said.

For the project to proceed, the Army Corps of Engineers’ review will need to show the dock does not have an adverse impact on tribal fishing rights, Krakoff said. The legal standard for issuing a permit would otherwise be difficult to defend in court, as the federal government is obligated to protect the tribes’ interests, she said.

Travis Deti, associate director of the Wyoming Mining Association, echoed Mead’s point about respecting local concerns. Yet he said the process needs to be fair for coal companies and tribes alike.

“Unfortunately there are these NGOs out there that have found this process useful for delaying and stopping development. That’s not fair,” Deti said.

Gateway Pacific is one of three coal docks proposed in the Pacific Northwest. If approved, it is projected to begin operations in 2019.

A second facility in Longview, Washington, Millennium Bulk Terminals, would export 44 million tons of coal to Asia annually. The third, Coyote Island Coal Terminal in Oregon, was the project rejected and now under appeal. It would ship a little fewer than 9 million tons of coal abroad each year.

The Lummi letter changes little about Gateway Pacific’s prospects, said Bob Watters, senior vice president at SSA Marine, the developer of the dock. The purpose of the Army Corps of Engineers’ review is to identify any potential impacts to the fisheries and how to mitigate them. That review continues, Watters said.

“I don’t see this as changing anything,” he said.

But a spokeswoman for the Army Corps of Engineers said the letter could alter the government’s review.

Patricia Graesser, an agency spokeswoman, said the division received the letter and 97 pages of attachments outlining potential impacts to the fishery on Monday. The agency will examine the Lummis’ concerns and determine if they have adverse impacts, she said.

Graesser, asked if that may change the government’s review, responded, “It may, depending on what we determine. It has the potential to do that.”

She gave no timeline for when the Army Corps of Engineers would complete its analysis of the Lummis’ concerns.

The Corps’ review concerns the dock site. The Washington Department of Ecology and Whatcom County also must complete their own environmental analysis of the dock and shipping lanes that serve it.

Today, several oil refineries and an aluminum plant sit at the sight of the proposed coal dock. But those were built prior to the federal court rulings strengthening protections for Native fishing rights, said Floyd McKay, journalism professor emeritus at Western Washington University and a longtime observer of the coal export debate. Tribal fishing boats can often be observed off the coast, he said.

The Lummis’ letter is not a game changer because the Army Corps of Engineers could still approve the project, but it puts pressure on the federal government to reject it, McKay said.

“That is a big deal legally because courts over the year have strengthened the hands of the tribes in matters such as this,” he said. “They have to be taken very seriously.”


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