The Gristle

‘That Day Is No More’
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‘THAT DAY IS NO MORE’: Lummi Nation last week sent their final response to the U.S. Army Corps of Engineers, along with 240 pages of documentation in support of their claim that the proposed Gateway Pacific Terminal coal pier would materially harm their fishing rights, protected by federal treaty, at Cherry Point. Tribal leaders believe the submittal provides USACE with all of the information the federal agency needs to make a determination on whether the transit and loading (and ballast discharge) of hundreds of the largest ocean-going vessels would reduce the capacity of their usual and accustomed fisheries and deny the project a shoreline permit on that basis.

“As is evident from even the most cursory reading of the case law,” tribal leaders argue in their brief, “whether a site should be afforded treaty protection ‘depends upon whether the record supports the conclusion that the site is fished by members of the Lummi Nation on more than an extraordinary basis.’

“We have no doubt that the record supports this conclusion,” they assert.

It is difficult to deny that conclusion. The state’s own vehicle traffic and risk assessment study (VTRAS) forecasts a 76 percent increase in disruption to Lummi fishing activities in the Cherry Point area. The future of the coal pier could be decided in a matter of weeks.

The project applicant, Pacific International Terminals, has fought a vigorous public relations campaign against the parameters of the Corps’ determination, trotting out a series of congressional delegates from Montana to tour the site and deliver exhortations on the economic significance of the project. They’ve applied extreme lobbying pressure in support of resolutions to expand additional shipping capacity through new and existing ports in order to allow for the sale of Montana resources to overseas markets. In August, PIT hired the seminal Seattle-based polling firm Elway Research to poll state residents and found 61 percent favored completion of the draft NEPA environmental assessment currently underway and scheduled for completion in 2017. Elway found one-quarter of these low-information respondents thought Lummi’s request should be denied (the company did not share data on how many supported the tribe’s request). In perhaps their most savvy move, PIT’s parent company, SSA Marine, also inked an agreement in August with Cloud Peak Energy that would allow the inland Crow Tribe to secure a small 5 percent piece of an agreement that would ship coal from their lands, muddying federal treaty cross-claims.

None of which matters in the scope of what the Corps must determine much more than one empty clam shell on a midden beach.

“We take issue with PIT’s mischaracterization of our request of the Corps,” Lummi Chairman Tim Ballew II wrote in his cover letter to USACE. “To be clear, we are not asking the Corps to ‘stop the environmental review process’ for the GPT. PIT appears to be trying to undermine the Corps’ confidence in its understanding of our request by claiming that certain data in the administrative record is either missing, inconsistent, or counsels for a finding that the GPT will have less than a de minimis impact to the Nation’s treaty rights. We believe that the fishermen’s declarations and the data that comprise the administrative record provide ample support for our request for a permit denial based on impact to treaty rights. Despite the project proponent’s best efforts to mislead, we are confident that the Corps will be able to discern the significant impacts that this project will have on our treaty fishing rights.”

“PIT has taken to characterizing the Nation’s opposition to its ill-conceived project as one of the tribe versus NEPA (or even more insidiously, one of tribe versus tribe),” tribal leaders asserted in their USACE submittal. “We find this approach deplorable and wholly inappropriate, given the profound importance of the Lummi Nation’s treaty rights and the United State’s solemn obligation to ensure their protection.”

“These rights,” Ballew recently wrote to Montana Sen. Steve Daines and the larger Congress, “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.”

On the eve of Washington’s statehood, Lummi surrendered all but a sliver of land and the rights to fish where they always had fished. Implicit is the understanding that fish must exist in sufficient numbers to catch, else the right is without meaning. These are not matters easily papered over by offers of cash settlements or cans of artificial crab substitute.

Vowing to fight “vigorously by all means necessary,” and anticipating an appeal of the Corps determination by the project applicant, Lummi Nation hired the world’s largest international law firm, Dentons, to represent the tribe in potential litigation.

As we’ve noted before, the existing case law on Salish tribal fishing rights is fairly succinct and unambiguous—a project’s impacts must be limited either in physical size or duration to avoid the de minimis threshold. A project that involves the largest ocean-going vessels churning 24/7 across net sets in sensitive marine habitat likely does not duck that threshold.

“Dentons has a record of fighting on behalf of tribal rights and we are happy to partner with them on this critical issue,” Ballew noted in a statement. “We are prepared to take any and all actions to protect our way of life.”

“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,” Ballew noted in his letter to Daines. “That day is no more.”

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