Tribal Fishery Opposes Washington Coal Terminal

Tribal treaty fishing rights give Washington tribes the opportunity to weigh in on, and even block, projects that could impact their fishing grounds.(Ashley Ahearn/KUOW Photo)

Tribal treaty fishing rights give Washington tribes the opportunity to weigh in on, and even block, projects that could impact their fishing grounds.(Ashley Ahearn/KUOW Photo)

December 11, 2013 Here&Now

About a quarter of all the coal the U.S. exports goes to Asian markets. To meet the demand, there are plans to build what would be the largest coal terminal in North America at a place called Cherry Point in the far northwestern corner of Washington state.

But there’s a hitch. The waters surrounding Cherry Point support a fishing industry worth millions of dollars. It’s also a sacred place for the Lummi tribe, whose reservation is nearby. And thanks to a landmark legal decision in the 1970s, tribes have the right to weigh in on — and even stop — projects that could affect their fishing grounds.

From the Here & Now Contributors Network, Ashley Ahearn of KUOW reports.

Reporter

Ashley Ahearn, environment reporter for KUOW and part of the regional multimedia collaborative project EarthFix.

 

Follow link to listen to Transcript

JEREMY HOBSON, HOST:

It’s HERE AND NOW.

Coal prices are at the highest levels in months thanks to strong demand from Asian markets like China. And to help meet that demand, there are plans to build a huge new coal terminal in Washington State, at a place called Cherry Point. But the waters surrounding Cherry Point support a fishing industry that’s worth millions of dollars, and it’s a sacred place for the Lummi tribe, which has the right to weigh in on or put a stop to projects that could affect their fishing grounds.

From the HERE AND NOW Contributors Network, KUOW’s Ashley Ahearn reports.

ASHLEY AHEARN, BYLINE: Jay Julius and his crew pull crab pots up out of the deep blue waters near Cherry Point. From massive buckets on deck comes the clack and rustle of delicious Dungeness crabs in futile attempts at escape. We’re about 15 miles south of the Canadian border.

JAY JULIUS COUNCILMEMBER, LUMMI TRIBAL COUNCIL: That’s not bad.

AHEARN: Jay Julius is a member of the Lummi tribal council. His ancestors have fished these waters, just like he does now, for thousands of years. One out of every 10 Lummi tribal members has a fishing license, and the Lummi tribal fishery is worth $15 million annually.

COUNCIL: So now we’re entering the proposed area for the coal port. As you can see, the buoys start.

AHEARN: Dozens upon dozens of crab pots buoys dot the waters around us, like a brightly colored obstacle course as we approach Cherry Point.

COUNCIL: We see buoys up there.

AHEARN: If the Gateway Pacific Terminal is built, it could draw more than 450 ships per year to take the coal to Asia. Those ships would travel through this area of Cherry Point. The tribe is worried that its shellfish, salmon and halibut fishery will suffer.

COUNCIL: What does that mean to our treaty right to fish? This will be no more.

AHEARN: That treaty right to fish could play a major role in the review process for the Gateway Pacific Terminal and the two other coal terminals under consideration in the Northwest. In the mid-1800s, tribes in this region signed treaties with the federal government, seeding millions of acres of their land. But the tribal leaders of the time did a very smart thing, says Tim Brewer. He’s a lawyer with the Tulalip tribe.

TIM BREWER: What they insisted on was reserving the right to continue to fish in their usual and accustomed fishing areas. Extremely important part of the treaty.

AHEARN: Those treaty rights weren’t enforced in Washington until a momentous court decision in 1970s known as the Boldt Decision. It forced the state to follow up on the treaty promise of fishing rights that were made to the tribes more than a century before. Brewer says the phrase, usual and accustomed fishing areas, has implications for development projects, like coal terminals.

BREWER: If a project is going to impair access to a fishing ground and that impairment is significant, that project cannot move forward without violating the treaty right.

AHEARN: And in recent decades, tribes have flexed to those treaty muscles. The Lummi stopped a fish farm that was planned for the water’s off of Lummi island in the mid-’90s. The tribe argued that constructing the floating net pens would block tribal access to their usual and accustomed fishing grounds.

BREWER: And in that case, the Corps of Engineers denied that permit on that basis. There was no agreement that was bled to be worked out there.

AHEARN: But in other situations, agreements had been made.

DWIGHT JONES: My name is Dwight Jones. We’re at L.A. Bay Marina.

AHEARN: Jones is the general manager of the marina. Behind where he’s standing, Seattle’s Space Needle pierces the downtown skyline in the distance.

JONES: L.A. Bay Marina is the largest privately owned and operated marina on the West Coast. We have about 1,250 slips.

AHEARN: The marina was built in 1991 after a decade of environmental review and haggling with the Muckleshoot tribe. The marina is within the tribe’s treaty fishing area.

JONES: It was contentious, I guess, would be the right word.

AHEARN: Could they have stopped this project from being built?

JONES: Oh, absolutely. Absolutely they could’ve stopped it.

AHEARN: But they didn’t. Instead, the tribe negotiated a settlement. The owners of L.A. Bay Marina paid the Muckleshoot more than a million dollars upfront. And for the next hundred years, they will give the tribe eight percent of their gross annual revenue.

JONES: Anybody in business can tell you that eight percent of your gross revenue is a huge number. It really affects your viability as a business, so…

AHEARN: What would you say to companies that are trying to build a coal terminal?

(LAUGHTER)

JONES: I’d say good luck. It’s a long road, and there will be a lot of cost and the chances are, the tribes will make it – will probably negotiate a settlement that works well for them and will be – not be cheap.

AHEARN: SSA Marine and Pacific International Terminals, the companies that want to build the terminal at Cherry Point, have lawyers and staff members trying to negotiate a deal with the Lummi. But Jay Julias, a Lummi councilmember, laughs when I asked him how he feels about the company’s efforts to make inroads with the tribe.

COUNCIL: I say they’re funny, but I think they’re quite disgusting. The way they’re trying to infiltrate our nation, contaminate it, use people – it’s nothing new.

AHEARN: SSA Marine declined repeated requests to be interviewed for this story. But they emailed a statement. It says: We sincerely respect the Lummi way of life and the importance of fishing to the tribe. We continue to believe we can come to an understanding with the Lummi nation regarding the Gateway Pacific Terminal project. For HERE AND NOW, I’m Ashley Ahearn in Seattle. Transcript provided by NPR, Copyright NPR.

Lummi Nation’s stance could stop proposed coal terminal

August 1, 2013

By JOHN STARK — THE BELLINGHAM HERALD

Lummi Nation Natural Resources Director Merle Jefferson says the tribe is ready to send an official letter to the U.S. Army Corps of Engineers announcing its opposition to the Gateway Pacific Terminal project at Cherry Point – a move that could stop the federal permit process for the coal terminal dead in its tracks.

The Army Corps has the authority to grant some key permits that SSA Marine of Seattle will need in order to construct its three-vessel pier at Cherry Point. On other projects, the federal agency has refused to process permit applications if Indian tribes contend that those projects would violate their treaty rights as defined by numerous federal court rulings.

During a Wednesday, July 31, press conference, an Army Corps official stopped short of saying that Lummi Nation has the power to block Gateway Pacific. But she indicated that her agency might decide to stop processing its permits if the Lummis raise formal objections.

Muffy Walker, Army Corps of Engineers regulatory branch chief in Seattle, said her agency was aware that Lummi leaders had spoken out against Gateway Pacific, but the federal agency had not received a “formal response” from the tribe saying they see no chance of reaching an agreement with SSA Marine to compensate for the project’s impacts.

“If the Lummis come to that position, it will make us reassess the direction we are going,” Walker said. “We have denied permits in the past, based on tribal concerns.”

Jefferson said tribal officials had assumed that their position was clear in the 34 pages of objections they had offered the Corps and other regulatory agencies as part of the environmental study scope process. Among other things, tribal officials say the project will interfere with tribal fishing and disrupt an important cultural site.

Once Lummi officials learned that the Corps wanted a formal letter notifying them of the tribe’s position, the tribal council quickly agreed to draft that letter. Jefferson said that letter should be on its way to the Corps by Friday, Aug. 2.

Jefferson also stopped short of saying that the tribe has the power to block the project. He did say that the tribe has a strong legal position based on treaty rights.

Lummi officials took a non-committal stance on Gateway Pacific when it was first announced, saying the tribe would take no position until its impacts got thorough study. The tribal newspaper published a series of reports outlining benefits as well as drawbacks from the project, and reported that SSA Marine had provided the tribe with $400,000 to help the tribe pay for its own study of the project.

But by September 2012, after an upwelling of opposition from tribal members, tribal council representatives met on the beach at Cherry Point to announce firm opposition to the project. Later in the fall, tribal officials were outspoken in their opposition when county, state and federal officials convened meetings to gather public comments.

SSA Marine Vice President Bob Watters said his company wants to continue to work with Lummi Nation to resolve the tribe’s concerns on both fishing rights and possible disruption of ancient tribal burials believed to exist at the site.

“We are committed to addressing Lummi concerns in detail,” Watters said in an email. “Our approach will be first to avoid impacts, then to minimize unavoidable impacts, and finally, to mitigate and positively address what remaining impacts there may be in a mutually satisfactory way.”

Watters added that his company is now conducting a study on the impacts of vessel traffic to the terminal site, with input from Lummi officials.

Reach John Stark at 360-715-2274 or john.stark@bellinghamherald.com. Read his Politics blog atblogs.bellinghamherald.com/politics or follow him on Twitter at @bhamheraldpolitics.

Ecology will study impact of coal trains when considering Gateway Pacific Terminal

Whatcom County and its regulatory state and federal partners have announced they will conduct a sweeping review of Gateway Pacific Terminal’s environmental impacts — an apparent victory for the coal terminal’s opponents.

By JOHN STARK — THE BELLINGHAM HERALD

July 31, 2013

In a joint press release issued Wednesday, July 31, the three levels of government announced that they “will closely study their direct effects at the site and evaluate a broad range of indirect and cumulative impacts likely to occur within and beyond Washington.”

Whatcom County, the Washington Department of Ecology, and the U.S. Army Corps of Engineers are producing a joint environmental impact statement for the proposed Gateway Pacific Terminal and BNSF Railway Custer Spur track expansion.

A coal train heads through downtown Bellingham alongside Roeder Avenue Wednesday, Feb. 27, 2013.PHILIP A. DWYER — THE BELLINGHAM HERALD

A coal train heads through downtown Bellingham alongside Roeder Avenue Wednesday, Feb. 27, 2013.
PHILIP A. DWYER — THE BELLINGHAM HERALD

The Gateway Pacific Terminal – proposed by SSA Marine subsidiary Pacific International Terminals – could handle as much as 48 million tons of Asia-bound U.S. coal per year. Combined with smaller quantities of other bulk cargoes, the terminal could generate 18 train trips per day through Bellingham and other cities along the rail line. That includes northbound loaded trains and returning empty trains.

According to the press release, Whatcom County and the Department of Ecology have determined that the State Environmental Policy Act require examination of impacts on “earth, air, water, plants and animals, energy and natural resources, environmental health, land and shoreline use, transportation, and public services and utilities.”

Among other things, that means “a detailed assessment of rail transportation impacts in Whatcom County near the project site, specifically including Bellingham and Ferndale.”

The study also will include “an assessment of how the project would affect human health, including impacts from related rail and vessel transportation in Whatcom County.”

The state and county also have agreed to take it one step farther, to require “an evaluation of greenhouse gas emissions from terminal operations, and rail and vessel traffic.”

Gateway Pacific supporters had argued for a narrower focus, saying it was unfair to consider project impacts far from the site. Some business leaders said such broad environmental review requirements could have a chilling effect on other major industrial development projects in the state.

This story will be updated with more details and reaction throughout the day.

Reach John Stark at 360-715-2274 or john.stark@bellinghamherald.com. Read his Politics blog at

blogs.bellinghamherald.com/politics or follow him on Twitter at @bhamheraldpolitics.

Oil train death toll likely to hit 50

Associated Press

LAC-MEGANTIC, Quebec — Everyone missing in the fiery crash of a runaway oil train in Quebec is presumed dead, police told grieving families, bringing the death toll to 50 in Canada’s worst railway catastrophe in almost 150 years.

Meanwhile, attention focused on the CEO of the railway’s parent company, who faced jeers from local residents and blamed the train’s engineer for improperly setting its breaks before the disaster.

Officials said Wednesday evening that 20 bodies had been found in this burned-out town, and 30 people were missing.

“We informed them of the potential loss of their loved ones,” said Quebec police inspector Michel Forget, who came to an afternoon news briefing from a meeting with families of the dead and missing. “You have to understand that it’s a very emotional moment.”

Edward Burkhardt, the head of the train’s U.S.-based parent company blamed the engineer for failing to set the brakes properly before the unmanned Montreal, Maine & Atlantic Railway train hurtled down a seven-mile (11-kilometer) incline, derailed and ignited in the center of Lac-Megantic early Saturday. All but one of its 73 cars was carrying oil, and at least five exploded.

The crash has raised questions about the rapidly growing use of rail to transport oil in North America, especially in the booming North Dakota oil fields and Alberta oil sands far from the sea.

The intensity of the explosions and fire made parts of the devastated town too hot and dangerous to enter and find bodies days after the disaster. Only one body had been formally identified, said Genevieve Guilbault of the coroner’s office, and she described efforts to identify the other remains as “very long and arduous work.”

Burkhardt, president and CEO of the railway’s parent company, Rail World Inc., faced jeers from residents and scorn from Quebec’s premier as he made his first visit to the town since the disaster. He was expected to meet with residents and the mayor Thursday.

Burkhardt said the train’s engineer had been suspended without pay and was under “police control.”

Investigators also had spoken with Burkhardt during his visit, said a police official, Sgt. Benoit Richard. He did not elaborate.

Until Wednesday, the railway company had defended its employees’ actions, but that changed abruptly as Burkhardt singled out the engineer.

“We think he applied some hand brakes, but the question is, did he apply enough of them?” Burkhardt said. “He said he applied 11 hand brakes. We think that’s not true. Initially we believed him, but now we don’t.”

Burkhardt did not name the engineer, though the company had previously identified the employee as Tom Harding of Quebec. Harding has not spoken publicly since the crash.

“He’s not in jail, but police have talked about prosecuting him,” Burkhardt said. “I understand exactly why the police are considering criminal charges … If that’s the case, let the chips fall where they may.”

Investigators are also looking at a fire on the same train just hours before the disaster. A fire official has said the train’s power was shut down as standard operating procedure, meaning the train’s air brakes would have been disabled. In that case, hand brakes on individual train cars would have been needed.

The derailment is Canada’s worst railway disaster since a train plunged into a Quebec river in 1864, killing 99.

Quebec police have said they were pursuing a wide-ranging criminal investigation, extending to the possibilities of criminal negligence and some sort of tampering with the train before the crash. The heart of the town’s central business district is being treated as a crime scene and remained cordoned off by police tape.

At a news conference shortly before Burkhardt’s arrival, Quebec Premier Pauline Marois faulted his company’s response.

“We have realized there are serious gaps from the railway company from not having been there and not communicating with the public,” Marois said. She depicted Burkhardt’s attitude as “deplorable” and “unacceptable.”

Burkhardt, who arrived in town with a police escort, said he had delayed his visit in order to deal with the crisis from his office in Chicago, saying he was better able to communicate from there with insurers and officials in different places.

“I understand the extreme anger,” he said. “We owe an abject apology to the people in this town.”

In an exchange with reporters, Burkhardt defended the practice of leaving trains unmanned, as was the case when the train rolled away. Canadian transportation department officials have said there are no regulations against it.

“For the future we, and I think probably the rest of the industry, aren’t going to be leaving these trains unmanned,” Burkhardt said. “We’ll take the lead with that. I think the rest of the industry is going to follow.”

Among the residents looking on as Burkhardt spoke was Raymond Lafontaine, who is believed to have lost a son, two daughters-in-law and an employee in the disaster.

“That man, I feel pity for him,” Lafontaine said. “Maybe some who know him properly may think he’s the greatest guy in the world, but with his actions, the wait that took place, it doesn’t look good.”

The disaster forced about 2,000 of the town’s 6,000 residents from their homes, but most have been allowed to return.

Coal-export impact study loses steam in Legislature

$150,000 in funding removed from budget to avoid political fray

A coal train is heading north through the old Georgia-Pacific site in Bellingham, Washington. Rail lines that few people noticed for years are suddenly busy with trains, and the increased traffic has generated a backlash in communities across the country.
Philip A. Dwyer — Bellingham Herald/MCT

By BRAD SHANNON — THE OLYMPIA

Published: April 12, 2013 on the Bellingham Herald

A House Democratic budget proposal to spend $150,000 to study the larger economic impact of coal-export facilities on Washington state was dying just one day after majority Democrats introduced their proposed $34.5 billion operating budget plan on Wednesday.

Rep. Reuven Carlyle, D-Seattle, had asked to include the money in the budget, saying it “recognizes the need for Washington to thoroughly evaluate the economic impacts of coal exports in our state.” But Thursday evening the money was on its way to being removed at Carlyle’s request.

“We felt it was a gesture to avoid the potential of a political battle that would not be constructive,” he explained in a text as the House Appropriations Committee was starting work on a series of amendments to the budget measure, Senate Bill 5034. Carlyle said it was he who asked to remove the funds.

The proposal had offered Washington a chance to gain additional information on an issue that is intensifying politically, and Carlyle had initially said lawmakers did not want “to let the project proponents and the federal government be the only sources of information on this issue.”

The coal industry’s attempt to restore its flagging fortunes by shipping much more of the fossil fuel to China and India by way of Washington and Oregon is attracting growing objections.

As McClatchy Newspapers reported last week, the industry has dropped proposals for export terminals in Coos Bay, Ore., and Grays Harbor. The surviving four proposals call for coal exports from the Gateway Pacific terminal near Bellingham, the Millennium Bulk Terminals of Longview, the Morrow Pacific Project at Port of Morrow, Ore., and the Port Westward Project at Port of St. Helens, Ore.

The exports could hit 100 million tons of coal a year and increase carbon emissions by some 240 million tons a year.

Gov. Jay Inslee campaigned on a clean-energy platform and has talked a lot about the economic opportunity in moving away from fossil fuels.

Last month, he joined Oregon Gov. John Kitzhaber in asking the White House’s Council on Environmental Quality to consider climate-change and air-pollution impacts of exporting coal from federal lands to Asia.

“We cannot seriously take the position in international and national policymaking that we are a leader in controlling greenhouse gas emissions without also examining how we will use and price the world’s largest proven coal reserves,” they said.

The House budget proviso called for the Office of Financial Management to look at the “potential cumulative economic impacts of proposed coal-export projects in the Pacific Northwest.”

It specified that the agency must take into account impacts to transportation infrastructure, economic development opportunities “forgone in favor of coal-export projects,” global carbon emissions, the state’s major economic clusters, and taxpayers.

The Republican-dominated Senate Majority Coalition Caucus was unlikely to go along. It watered down Inslee’s signature bill on climate change, reducing him to the role of non-voting chairman and stripped the legislation of language spelling out Washington’s vulnerability to global warming and acidifying oceans.

Carlyle said that “given Inslee’s deep reluctance” about the coal exports and a regional economic study by Puget Sound Regional Council, that impacts from the export projects will continue to be assessed.