Waterfront Development Requires Lummi Approval

Wendy Harris is a retired citizen who comments on development, mitigation and environmental impacts.

A recent joint City of Bellingham and Port of Bellingham meeting on the current status of Bellingham Bay waterfront planning was notable for the information that was not discussed. In particular, facts omitted from discussion of the overwater walkway connecting Boulevard Park to the Cornwall Avenue Landfill resulted in misrepresentation of the project’s status.

An email to the city voicing my concerns received a prompt response from Mayor Kelli Linville, assuring me that there was no intention to hide information and that final decisions will be subject to public process. I do not doubt the sincerity of the mayor’s response, particularly since most waterfront development efforts predate her tenure. I also understand that months of work go into development and remediation plans, and that only so much can be encapsulated by staff during a one-hour update.

However, it should be clear that information directly impacting waterfront development costs and third-party interests is a relevant item for discussion. While none of this information is hidden, it is also not immediately obvious without submitting a public record request. Thus, at some point during the joint meeting, staff should have discussed the impacts of Lummi Nation treaty rights.

The city and port have spent the public’s money developing waterfront plans, but failed to secure the right to develop these plans. Waterfront development projects that require federal permits, or rely upon federal grants, cannot move forward without the consent of Lummi Nation. Yet this fact was never mentioned at the joint meeting. Development of the overwater walkway was reported to be moving forward, without indication of any obstacles. In reality, this project is on hold due to the city’s inability to reach a settlement with the Lummi.

Lummi Concurrence Required

After the meeting, I confirmed that the Washington State Department of Transportation (WSDOT), under directive from the U.S. Army Corps Of Engineers, will not process permits submitted by the city, or release federal funding for grants, until Lummi concurrence is obtained. I confirmed with a Lummi Nation official that there has been no settlement for the overwater walkway project or the waterfront in general.

This delay calls into question whether the city will need to forfeit grant money, obtained through earmarked federal funds, courtesy of Senator Patty Murray, for the eight-million-dollar overwater walkway project, intended to connect Boulevard Park to the downtown waterfront. After emphasizing throughout the planning process that it needed to follow an expedited schedule to avoid losing federal funds, the city appears to have been lax in tracking grant expiration dates.

The Lummi were among the western Washington tribes that signed the Point Elliot Treaty of 1855, reserving their right “of taking fish at usual and accustomed grounds and stations” and “hunting and gathering roots and berries on open and unclaimed land.” This provides the Lummi with all rights to land enjoyed at the time the treaty was signed.1 This includes the shores and tidelands of Bellingham Bay. Tribal fishing treaty rights have priority over the rights of private property owners, and the Lummi may cross private lands to fish.

Tribes are entitled to half of available fin and shellfish. A tribal share can be reduced if a share less than 50 percent will support a “moderate living” from fishing for tribal members. Currently, the presumption of the courts is that the tribes are not making a moderate living from fishing.

Complicated, and to some extent, unresolved, litigation established some basic but important natural resource management consequences arising from treaty rights. Treaty fishing rights provide not only the right to fish, but also the ability to fish. Treaty tribes have an enforceable right to prevent environmental degradation of fishery habitat below the point where they are able to obtain their 50 percent share. (How and when these rights can be enforced is somewhat less clear.)

Accordingly, treaty tribes are considered part of the environmental decision-making process and act as co-managers of affected natural resources. This places treaty tribes in a unique position among natural resource stakeholders by creating a greater ability to protect natural resources impacted by state and local action. Increasingly, treaty tribes are interested in exercising these rights.

Although the new Bellingham Shoreline Master Plan (awaiting approval by the Washington Department of Ecology, a process stalled by loss of personnel), requires that the city treat the tribes as co-managers, the city, relying on a woefully outdated 1989 Shoreline Master Plan, ignored the Lummi Nation’s rights as co-manager, as well as the value of tribal fishing rights, when it worked with the Port of Bellingham developing waterfront plans.

Overwater Walkway

The overwater walkway is the first of the many planned waterfront projects that will be developed, and it has forced a reluctant city to confront the issue of Lummi treaty rights. The results of these negotiations will establish precedent for future waterfront projects. So far, the city is off to a rocky start. Although there have been several meetings to negotiate with the Lummi in the last year and a half, no settlement has been reached.2 This is not surprising in light of the city’s actions. The city requested and obtained primary negotiation authority, a matter that would have been normally been handled by the Federal Highway Administration, as the grant provider. This does not appear to have worked to the city’s advantage.

The initial meeting between the city and the Lummi, held on September 9, 2010, did not take place until two months before a public hearing by the Bellingham Hearing Examiner regarding the city’s conditional use permit for the overwater walkway. In other words, the city’s design plans, proposed mitigation, and SEPA (State Environmental Policy Act) review were substantially completed before the city engaged in settlement negotiations with the Lummi. The Lummi were cognizant of this fact and noted in a letter to the city that their initial meeting was long overdue. When the negotiation process began, the Lummi were already unhappy that they had been ignored.

The situation was not helped when the city offered the Lummi an insultingly small money settlement. The settlement offer of $50,000 failed to reflect fair compensation for tribal fishing rights and ignored the Lummi’s environmental concerns. Nor can I imagine that the relationship between the city and the Lummi Nation improved when the city, after several unsuccessful meetings, requested that the Washington State Department of Transportation (WSDOT) process its remaining permits while settlement discussions remained on going.3 (Fortunately, unlike our state agencies, the federal government does a better job of saying “no” to local government.)

Project Stalled

The city made this request the same month that the Washington Department of Ecology reviewed and approved the local permits for the overwater walkway. The remaining permits require WSDOT and federal review, and therefore, Lummi concurrence. As a result, the project is stalled at the 30 percent design stage. While the city may be moving forward with site remediation, it can not move forward with development of the overwater walkway.

The environmental concerns raised by the Lummi echo those raised by other concerned citizens and organizations, including Resources, People for Puget Sound and Sierra Club. The Lummi note that 748 acres of Bellingham Bay nearshore has been dredged, filled or armored, including the Whatcom Waterway and the Cornwall Avenue Landfill, precluding the use of traditional hunting, fishing and gathering sites along the bay. Additionally, Whatcom Waterway, the Aerated Sediment Basin (ASB) and surrounding areas are contaminated with toxic industrial waste, including mercury.

The Lummi assert that the design of the overwater walkway (at least as of last year) extends 500 feet from the shoreline and permanently blocks access to approximately 25 acres of treaty-protected fishing grounds. Under the National Environmental Policy Act (NEPA), the federal government is required to identify and address activities that have disproportionately high and adverse human health or environmental effects on minority populations, low income populations and tribes.

The Lummi have also been clear that they will not agree to the overwater walkway without mitigation for cumulative impacts to treaty-protected natural and fisheries resources. The first requirement under mitigation sequencing is to avoid the impact. The Lummi question the fundamental need for this project, noting that a connector pathway, the South Bay trail, links the downtown core with the Boulevard Park trail and Taylor Dock, and that bike lanes along State Street create additional linkage.4

While treaty right negotiations are a sensitive matter, the fact that there are negotiations is not. The city needs to be more forthcoming about this situation so that city council and the public can make informed choices about waterfront development.

Endnotes

1. Treaty rights in Washington were largely ignored until 1974, when the federal District Court determined that the treaty entitled tribes to harvest salmon returning to Washington waters. United States v. Washington, 384 F.Supp. 312 (W.D. Wash. 1974), aff’d 520 F.2d 676 (9th Cir. 1975), cert. denied, 423 U.S. 1086 (1976). Referred to as the Boldt decision, based on the name of the judge, this case was ultimately affirmed by the United States Supreme Court.

2. I am not privy to city/Lummi negotiations. I have obtained my information from a series of public record requests filed with the city of Bellingham, as well as monthly email updates issued by the site engineer for the overwater walkway project.

3. This is reflected in a Quarterly Project Report Form that the city is required to file with WSDOT.

4. Federal grants for the project are premised on the city’s assertion that the overwater bridge is necessary because no alternative transporation route exists. Objections to this assertion will allegedly be reviewed at the state and federal level when the permits are processed by WSDOT, triggering a NEPA (National Environmental Policy Act) review.