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The Gristle

Closing a door, opening another

CLOSING A DOOR, OPENING ANOTHER: It’s a given, there has always been an industrial presence and a fourth pier envisioned for Cherry Point. The state Commissioner of Public Lands confessed as much in a 1995 letter to the U.S. Army Corps of Engineers as she prepared to protect the remainder of tidelands as part of an aquatic reserve management plan. The assumptions of a Cherry Point industrial park extend many decades further back than that, with a proposal in the 1970s from Chicago Bridge and Iron to construct and ship offshore drilling rigs from that location. By 1997, plans had matured into an actual shoreline development permit issued to Pacific International Terminals to construct a deepwater pier at Cherry Point.

The land and shoreline use assumptions of such an industrial facility—its size, footprint and product—has always been left a bit vague; and the intervening years have meanwhile produced a broader understanding of the ecological function of tidelands and a deepening of tribal rights to the usual and accustomed product of that function, as defined and protected by treaty. In short, there always was a healthy industry thriving at Cherry Point from time immemorial—it was called a fishery; and those plans laid in the 1970s more or less proposed to replace one industry with another.

The Army Corps of Engineers made a bold motion to close the door on those assumptions in May when the federal agency found the impacts of a proposed pier to tribal treaty fishing rights were non-trivial and could not be mitigated. The state Department of Natural Resources bolted the door the following month when they terminated the application for a tidelands lease permit for the Gateway Pacific Terminal. Evidently state law does not yield Whatcom County sufficient authority to complete the trifecta, and lock the door by officially ending the permitting process currently underway in county planning.

A zombie shambles on in that office; and moreover there remains the problem of the back door being left open through that earlier 1997 permit agreement for a smaller pier intended to ship a more restricted cargo.

Whatcom County Council member Carl Weimer this week introduced proposed amendments to the county’s Comprehensive Plan update currently underway in an attempt to better clarify land use policy for Cherry Point in the county’s central planning policy document. Notably, Weimer’s amendments pull into focus greater detail and emphasis on that already existing industry that had received only casual attention in earlier Comp Plans:

“Cherry Point,” Weimer notes in his proposed ammendents, “is important historically and culturally to the Coast Salish people, and part of the usual and accustomed fishing area for five treaty tribes, reserved under the Treaty of Point Elliot of 1855. The Lummi Nation and Western Washington University have identified an ancestral village dating back over 3,000 years ago in this area. The Cherry Point UGA contains sites of primary archeological and cultural significance.

“Since the designation of this area for industrial development years ago, newer scientific study of the shoreline ecology has identified Cherry Point’s unique function as part of the Fraser River/Salish Sea ecosystem and the associated Cherry Point Aquatic Reserve has been designated by the state Department of Natural Resources to recognize the ecological importance of the aquatic lands in this area,” Weimer’s proposed amendments detail, while also adding language concerning the emerging and cumulative effects of climate change in county resource lands.

Of course, none of this should come as a surprise.

As far back as 1997, the Whatcom County Hearing Examiner found in reviewing the permit application for that earlier pier proposed by Pacific International Terminals that “the proposed trestle and pier will have unavoidable impacts on commercial fisheries” and detailed the potential harm to the area’s ecological functions from the project.

The main difference between then and now is, today such a determination matters. Impacts found nonsignificant two decades ago are today project killers.

Tribal treaty rights, and the case law that governs them, were considerably strengthened again this week by the unanimous decision of the federal Ninth Circuit Court of Appeals that found the state must continue to replace infrastructure that impede the ability of salmon to spawn. The Ninth Circuit Court upheld an earlier finding that culverts that block salmon from more than 1,000 miles of streams in Western Washington violate treaties between tribal governments and the United States.
The Court of Appeals affirmed a 2007 decision that hundreds of state-owned, fish-blocking culverts must be repaired. The latest ruling confirms that the State of Washington must invest $2.4 billion to repair the culverts over the next 15 years.

“The Treaty of Point Elliott of 1855 was more than just a piece of paper,” Lummi Nation Chairman Tim Ballew II said in a statement. “It was a promise to the Lummi Nation that our way of life, our schelangen, would be preserved. Our past leaders were forced to make many concessions in the treaty, but they never wavered on our people’s right and ability to fish. Our families, our culture and our economy rely on the ability to harvest fish.”

It’s an affirmation of growing and strengthening case law regarding tribal treaty fishing rights that has been going on as long as, and parallel and in opposition to, planning for expanded industry at Cherry Point.

“Courts have consistently determined what we already knew: that fish need good habitat to survive, and a healthy fishery is directly linked to good habitat,” Ballew said. “Lummi has fought from the beginning for this critical case that is, in so many ways, a phase two of the Boldt decision”—referring to the landmark U.S. District Court ruling in 1974 that found Northwest tribes had a right to fish.

If tribes have a right to fish, then there must be fish else the right is without meaning.

Weimer’s amendments wisely anticipate this strengthening claim and are appropriate for the county’s central planning document.

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