On June 6, the head of Washington state’s Department of Natural Resources denied a coal export terminal proponent’s application for an aquatic land lease in Lummi Nation’s historical territory.
It was the second permit denial in a month, and likely the deathblow to the coal export terminal proposed by Pacific International Terminals, a subsidiary of SSA Marine. If approved, the coal shipping terminal at Cherry Point would have reportedly been North America’s largest.
The waters off Cherry Point– which the Lummi know as Xwe'chieXen – have been fished since the beginning of time by the Lummi and other Coast Salish peoples. The waters are habitat for numerous sensitive species. And Cherry Point is an ancestral village site.
On behalf of the public, the state’s Department of Natural Resources owns and manages Washington’s aquatic lands and navigable waters, and any project that involves use of those public lands or waters for structures, such as docks and piers, requires a lease.
The project also required a permit from the U.S. Army Corps of Engineers, certifying that the project would not have more than a de minimis impact on the marine environment. The Corps of Engineers denied the permit application on May 9.
“Because Pacific International Holdings, LLC cannot obtain the necessary permit from the Corps of Engineers, DNR cannot approve the lease application for the project,” state Commissioner of Public Lands Peter Goldmark wrote Skip Sahlin, vice president of Pacific International Holdings in Seattle. “Accordingly, DNR will take no further action on the application.”
Lummi Chairman Tim Ballew II called Goldmark’s decision “a victory for our people —a victory for treaty rights. By denying Pacific International Terminal’s request for an aquatic lands lease for DNR-managed aquatic lands at Cherry Point, we take another huge step toward permanently protecting Lummi’s sacred site,” he said in a statement issued by his office.
“We applaud Commissioner Goldmark for following the law and upholding Lummi Nation’s treaty rights. Because of his leadership, our schelangen, our way of life, can survive for future generations of families that will fish the waters of the Salish Sea and harvest along its shores.
“By affirming the decision made by the U.S. Army Corps of Engineers, the State of Washington recognizes the devastating impact a terminal at Cherry Point would have on Lummi’s treaty rights.
“Because of Commissioner Goldmark's decision, the water we rely on to feed our families, for our ceremonies and for commercial purposes remains protected.”
The Gateway Pacific Terminal was expected to handle up to 54 million dry metric tons per year of bulk commodities, mostly coal, including coal from the lands of the Crow Nation in Montana. BNSF Railway Inc. had proposed adding rail facilities adjacent to the terminal site.
The project was opposed by First Nations in the Pacific Northwest and Canada, particularly those who share the Salish Sea. The risk of coal and oil spills was too great, they said, and they contended that coal dust would impair the health of marine waters and nearby communities. They also contended that increased shipping would result in substantially increased ballast water discharges, which would introduce invasive species to the local marine environment.
SSA Marine claimed its terminal was designed to minimize environmental impacts. A site map shows extensive buffering, enclosed rotary dumpers, onsite stormwater treatment, and covered or enclosed conveyors.
The Lummi Nation asked the Corps of Engineers in 2015 to deny the project’s potential impacts to treaty-reserved fishing rights. SSA Marine wanted the Corps’ permit decision to be made based on a full environmental impact study.
The project had some tough hurdles to overcome.
The Lummi Nation and the United States are signatories to the Treaty of Point Elliott of 1855, which made a wide swath of Western Washington available for non-Native settlement. In the treaty, the Lummi reserved the right to fish and harvest in their usual and accustomed areas. According to Article VI of the U.S. Constitution, treaties are the supreme law of the land. Lummi contended that any negative impact to its treaty-reserved fishing rights would be a violation of the treaty.
In addition, the waters off Cherry Point are considered critical habitat for king salmon, bull trout, rockfish, and three pods of killer whales. Other endangered or threatened species found at Cherry Point are Puget Sound steelhead, Stellar sea lions, humpback whales, leatherback sea turtles, marbled murrelets and spotted frogs.
In an earlier interview, SSA Marine senior vice president Bob Watters said the Corps of Engineers’ denial of his company’s permit based on the project’s potential impacts to Lummi’s historical fishing areas is “a political decision rather than a regulatory decision.” He said his company is “looking at all its options” and “will decide shortly how we plan to proceed” in response.
Much of the Cherry Point uplands is privately owned, although the Lummi Nation has the right to protect cultural resources at the site. SSA Marine owns 1,100 acres, with an option to purchase an additional 400 acres, Watters said.
Another coal export terminal proposed
Meanwhile, another coal terminal is proposed in Longview, a Southwest Washington city of 36,000 people in the historical territory of the Cowlitz Tribe. And it involves some of the same players that had a stake in the Gateway Pacific Terminal project.
The terminal is proposed by Millennium Bulk Terminals of Seattle at the site of a former Reynolds Aluminum smelter, and would ultimately have the capacity to handle 44 million metric tons of coal per year, including coal from Crow lands in Montana. Eight loaded BNSF trains – 125 cars per train – would arrive at the terminal daily. The potential environmental impacts of the project are being studied by Cowlitz County and the state Department of Ecology. Public comment is being accepted until June 13.
Any increase in train traffic worries Fawn Sharp, a Gonzaga University-educated lawyer who serves as president of the Quinault Nation and the Affiliated Tribes of Northwest Indians. The proposed coal export terminal is located 90 miles southeast of a six-car train derailment June 2 that spilled product next to the Chehalis River. While the spillage involved cracked grain, Sharp said the mishap would have had worse consequences if the product had been oil or coal.
“This is too close for comfort. It’s what we have been fearing ever since proposals were made to expand oil terminals here, along with a projected 10-time increase in oil train traffic,” she said in a statement issued by her office after the derailment. “This crash is a vivid demonstration of the very serious problems these proposals … pose to us.”
Had that train contained something other than cracked grain, “the spill would have been a major tragic blow to our fishermen, our economy and our way of life,” she said. “It would have killed everything in the water at a time when we are already facing a severely diminished wild Coho run due to pollution and climate change impacts in the ocean.”
Larry Ralston, Quinault Nation Council member, said the rails and bridges on the train’s route have been seriously out of repair and that heavy trains have no business traversing them, even though some repairs have been made.