August 17 was just another summer day, with the sun setting late, and Tim Ballew prepared his gear and set out for Cherry Point, Washington to exercise his treaty-reserved right to harvest in his people’s usual and accustomed territory.
It’s something that Ballew, chairman of the Lummi Nation, says he and his people won’t be able to do if the Gateway Pacific coal export terminal is built at Cherry Point.
Ballew’s people know Cherry Point as Xwe’chi’eXen, an ancestral village site. The point is a spawning ground for herring, an important forage fish for salmon. In the Treaty of Point Elliott of 1855, the Lummi Nation reserved the right to harvest marine resources here and elsewhere in its usual and accustomed territory – and under Article IV of the U.S. Constitution, treaties are “the supreme law of the land.”
As an indigenous nation with a government-to government relationship with the United States, the Lummi Nation’s opposition to the Gateway Pacific Terminal carries some weight. And supporters are stepping up their efforts on behalf of the project as the Army Corps of Engineers readies its decision on whether to deny the permit now, as Lummi has requested, based on alleged negative impacts to treaty fishing rights; or continue a study of the project’s environmental impacts and base the decision on that, as Gateway Pacific’s proponents want.
Information presented by proponents is somewhat skewed, and that’s not an editorial statement.
In their announcement of the Crow Nation’s potential 5 percent investment in the Gateway Pacific project – the Crow Nation sees the export terminal as a portal to Asian markets for coal mined from its lands — Sen. Steve Daines and Rep. Ryan Zinke, both Republicans of Montana, touted the participation of a “bipartisan group” of 16 senators and 17 House members in urging the Army Corps of Engineers to complete the environmental assessment. But all but one in that group, a representative from Texas, are Republicans.
SSA Marine commissioned Elway Research to gauge public support for the export terminal, but downplayed opposition to the project. In an email blast, SSA Marine touted the results of the survey of 502 Washington voters: 61 percent said the environmental assessment should be completed, and 25 percent said Lummi’s request that the environmental assessment be stopped should be denied. However, the poll doesn’t note how many people supported Lummi’s request – presumably 61 percent, since 14 percent responded “Don’t know/Not applicable,” according to the email blast.
In addition, the touted results didn’t note where poll respondents live; residents on the eastern and western sides of the Cascade mountain range would have different views on the issue because they would be impacted differently.
Here’s the status: Earlier this year, the Lummi Nation asked the Corps of Engineers to deny SSA Marine a permit to build the coal export terminal on the shores of Cherry Point because it believes the impacts to treaty fishing cannot be mitigated. Approval of the permit, Lummi argues, would be a violation of treaty rights.
SSA Marine filed a response to Lummi’s request. The Lummi Nation expects to file a defense of its request by the end of August. One source said the Corps of Engineers could issue a decision on Lummi’s request in October at the earliest.
SSA Marine claims its terminal is designed to minimize environmental impacts. A site map shows extensive buffering, enclosed rotary dumpers, on-site stormwater treatment, and covered or enclosed conveyors.
But opponents worry about the risk from increased rail and shipping traffic. In January 2014, seven cars of a 152-car train derailed near mainland Vancouver, British Columbia, spilling coal into a protected waterway where salmon spawn and an endangered turtle species makes its home.
And there’s some history. In 2013, SSA Marine paid $1.6 million in penalties and fees for illegally filling 1.2 acres of wetlands at Cherry Point, destroying another three acres of wetlands, and clearing nine acres of land, in the process degrading a Lummi ancestral village site.
Ballew said the United States’ first responsibility is to protect treaty rights. He responded strongly to efforts by Daines, a member of the Senate Committee on Indian Affairs, to ease the permit-approval process through a rider attached to a bill related to Affordable Care Act employer mandates.
“Unfortunately, you fail to fully appreciate the U.S. government’s obligation to protect and preserve our Treaty Fishing Rights,” Ballew wrote to Daines. “These rights cannot be easily ignored by the federal government. In exchange for relinquishing our aboriginal lands, we negotiated the guarantee of certain rights. Among other things, we retained the right to fish in our usual and accustomed waters. For the Lummi and other tribes in our region, the preservation of Treaty Fishing Rights in our treaties with the United States was, and is, extremely important.”
He added, “The Treaty Fishing Right guarantees both harvest of fish and access to our usual and accustomed fishing grounds and stations. The proposed development of the Gateway Pacific Terminal would gravely deny access to our fishing resources.”
Ballew wrote that the United States’ trust responsibility to uphold treaty rights requires that the Corps analyze the Gateway Pacific Terminal’s possible impacts on treaty fishing rights. “As a member of the Senate Indian Affairs Committee, you should be an advocate for honoring treaty rights,” Ballew wrote.
“Any effort to affect the scope or administrative relevance of any Indian treaty rights should be addressed – if at all – in open meetings of the Senate and House Indian Affairs committees with full and fair engagement of the Lummi Nation and other affected tribes. If you are so compelled, I urge you to take the more honorable path of pursuing any of your proposed changes to the Corps’ regulatory process through standard practice as opposed to ‘middle-of-the night’ legislative changes.”
Ballew wrote to Daines – and reiterated it to ICTMN – that the Lummi Nation will fight the project “vigorously by all means necessary.”
“In times past, our Nation and its leaders did not have the resources and were unable to stop prior efforts to construct commercial terminals in our region. That day is no more. While we may not like it, we are committed to fully utilizing the federal agency review process and the federal courts to address our concerns.”
Previous use of legislative rider
Daines’ attempted use of a late addition to an unrelated bill to push through a change to environmental policy is not a first.
During the budget session at the end of 2014, Senators John McCain and Jeff Flake, both Arizona Republicans, attached a last-minute rider to the National Defense Authorization Act of 2015 that transferred around 2,400 acres of the Tonto National Forest – land considered sacred to the San Carlos Apache Tribe – to Resolution Copper, a subsidiary of the Rio Tinto international mining corporation.
Resolution Copper plans a $64 billion mining operation that would take place over 60 years. Opponents say the mining operation will create a two-mile-wide hole and result in toxic tailings, or mining wastes.