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‘Historic Victory for Treaty Rights’: Northwest Tribes Rejoice as Army Corps Rejects Coal Terminal

Northwest tribes were elated after the U.S. Army Corps of Engineers denied a permit for a proposed coal shipping terminal in the Lummi Nation’s historical territory on May 9, ruling that the potential impacts to the Lummi’s usual and accustomed fishing rights could not be mitigated.

“This is an historic victory for treaty rights and the U.S. Constitution,” Lummi Chairman Tim Ballew said in a statement released after the decision was announced.

“It is a historic victory for the Lummi Nation and our entire region,” he said. “This decision is a win for the treaty and protects our sacred site. Our ancient ones at Xwe'chieXen, Cherry Point, will rest protected. Because of this decision, the water we rely on to feed our families, for our ceremonies and for commercial purposes, remains protected. The impact of a coal terminal on our treaty fishing rights would be severe, irreparable and impossible to mitigate.”

RELATED: Lummi Chairman: We Will Fight Coal Terminal ‘By All Means Necessary’

The decision was made by Col. John Buck, commander of the Army Corps’ Seattle District.

“I have thoroughly reviewed thousands of pages of submittals from the Lummi Nation and Pacific International Holdings,” said Buck in a statement from the Army Corps. “I have also reviewed my staff’s determination that the Gateway Pacific Terminal would have a greater than de minimis impact on the Lummi Nation’s U&A rights, and I have determined the project is not permittable as currently proposed.”

Gateway Pacific Terminal, proposed by SSA Marine subsidiary Pacific International Terminals, was planned to handle the export of up to 54 million dry metric tons per year of bulk commodities, mostly coal. 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 from the railway and terminal would affect 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.

RELATED: Tribal Leaders in Pacific Northwest Take a Stand Against Coal Terminals

SSA Marine claimed its terminal was designed to minimize environmental impacts. A site map shows extensive buffering, enclosed rotary dumpers, on-site stormwater treatment, and covered or enclosed conveyors.

The Lummi Nation believed the impacts from the project could not be mitigated, and in 2015 asked the Army Corps to deny the permit based on impacts to treaty rights. Approval of the permit, Lummi argued, would be a violation of the treaty. SSA Marine wanted the Army Corps’ decision on its permit to be made based on a full environmental impact study. Buck ruled in favor of the Lummi.

“I have thoroughly reviewed thousands of pages of submittals from the Lummi Nation and Pacific International Holdings,” Buck said in an announcement released by his office. “I have also reviewed my staff’s determination that the Gateway Pacific Terminal would have a greater than de minimis (or slight) impact on the Lummi Nation’s U&A rights, and I have determined the project is not permittable as currently proposed.”

The Lummi Nation and Pacific International Holdings provided voluminous information regarding historic and current fishing practices, potential impacts, and mitigation to support their positions. The district’s evaluation of effects of the proposal on the Lummi’s U&A fishing rights was “undertaken to fulfill the federal government’s responsibility to protect treaty rights,” Buck said. “The Corps may not permit a project that abrogates treaty rights.”

SSA Marine’s next course was not immediately known. ICTMN left a phone message for Bob Watters, senior vice president of project proponent SSA Marine, but the phone number listed on the Gateway Pacific website had been disconnected. In an earlier interview, Lummi Chairman Ballew said “it’s possible” that SSA Marine would appeal.

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An Ancestral Village Site, and Critical Habitat for Various Species

The Lummi people know Cherry Point as Xwe'chi'eXen, an ancestral village site. The remains of many ancestors rest in the ground here. Offshore, Lummi people harvest fin fish and shellfish just as they have for centuries—rights they reserved for themselves and their descendants when they made land available for newcomers in the Treaty of Point Elliott of 1855.

According to the Army Corps, 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.

Salish Sea leaders were quick to respond to the Army Corps’ decision.

“We are thrilled with today’s announcement by the United States Corps of Engineers that it is denying the Gateway Pacific Terminal permit at Cherry Point because of the impact it would have on treaty rights,” Quinault Nation President Fawn Sharp said in a statement. She is also president of the Affiliated Tribes of Northwest Indians and vice president of the National Congress of American Indians.

“It is an appropriate and just decision,” she said. “But everyone who cares about fish and wildlife, the environment and human health should be happy with the Corps’ decision. This is an historic victory for tribal treaty rights as well as for everybody else who lives here. Those who understand the great value of our natural resources to our health and culture, as well as the sustainable economy of the entire region, will applaud today’s announcement.”

Sharp added that the decision defending treaty rights advances good stewardship and speaks well for American integrity.

“For too long the treaties have been shoved aside and ignored by developers and others who exert great pressure on government entities for their own interests,” Sharp said. “Tribes battle constantly to protect and restore the ecological health of the land, water and sky because we do understand how important and sacred they are. It is time for our message to be heard. We all have to work together to restore hope in this country for a healthy future for our children.”

Praise for the decision poured in from several other Northwest tribes, among them the Lower Elwha Klallam Tribe, the Yakama Nation, the Spokane Tribe, the Nooksack and the Sauk-Suiattle tribes.

“The Corps of Engineers made the right decision today. We have lived along these rivers and shores for millennia,” said , Lower Elwha Klallam Tribe chairwoman Frances Charles. “Just as it is the Corps’ duty to uphold our treaty rights, so it is our duty to fight for and protect these waters for future generations.”

Yakama Nation chairman JoDe L. Goudy echoed the Lummi in calling the decision a “victory for the Yakama Nation and all other Treaty Tribes,” in his statement, noting that the terminal “could have destroyed the way of life for the Lummi and all indigenous people who depend on the Salish Sea for their livelihood and culture” and that in denying the permit, the U.S. Army Corps had sided with its mandate to uphold treaty rights. But Goudy also noted that the proposal was not necessarily nixed for good.

“The fight, however, is not over,” Goudy said. “The threat of the coal movement remains, and the Yakama Nation will not abide these threats. We will not negotiate or accept mitigation for destruction or infringements upon the rights our ancestors secured for us and our people.”

They also expressed gratitude to the Lummi Nation for fighting against the terminal so long and vociferously, and called it a victory for health and well-being.

“This has been a long journey, and the Nooksack Indian Tribe is happy to be able to share in the joy and success of the Lummi Nation,” said Nooksack Indian Tribe council member Lona Johnson in the joint statement.

“Washington Tribes have fought long and hard to protect our natural resources—for our people and for all people,” said Kevin Lenon, vice chairman of the Sauk-Suiattle Tribe. “By denying the permit, the Corps’ recognizes the potentially disastrous consequences of a coal terminal on the health of the Salish Sea and our Tribal economies.”