Legal Precedent Undergirds Lummi Letter To The Corps

This article expresses the views of the author and not Whatcom Watch. Terry Wechsler, a licensed Washington attorney, is a co-founder of Protect Whatcom, the President of Whatcom Watch, and a frequent contributor about fossil fuel transportation proposals in Whatcom County.

Since the news broke on January 5, 2015, that Lummi Chairman Tim Ballew had submitted a letter formally requesting that the U.S. Army Corps of Engineers (“the Corps”) immediately halt permit review for the proposed Gateway Pacific Terminal (GPT), the county has buzzed with the question, “Is this the last nail in the coffin for the coal terminal?”

In citing Article V of the 1855 Treaty of Point Elliott, Ballew’s letter, reprinted on page 8, went beyond public statements of opposition, and requested “immediate” action. Corps spokesperson Patricia Graesser announced on Jan. 16¹ the agency would probably respond by mid-February, and announced that there is precedent for such an action.

Even before Ballew publicly announced that the tribe would not negotiate with GPT or its proponent, SSA Marine,² stating that “there’s no way to mitigate the project,” SSA Marine Vice President Bob Watters took the company’s case to the court of public opinion. In a Jan. 10 op-ed,³ Watters invoked jobs, interstate commerce, National Environmental Policy Act (NEPA) process, property interests of states in the Powder River Basin and the corporation’s favorite topic, The Slippery Slope (If you stop these ships, you might have to stop all ships!).

What Watters did not talk about was the treaty or the federal case cited in Ballew’s letter and invoked by Graesser in her statement, nor the case law backing it up. What follows is a walk through those cases and their holdings, and a review of some facts that could inform the federal agency’s determination. This is not to be read as an exhaustive, scholarly undertaking, nor is it intended to put words in anyone’s mouth. Rather, the purpose of this effort is to help readers better understand why the protracted review process for this proposal has taken a new direction.

Why Is This Letter Different From All Previous Letters?

In addition to passing a resolution in 2012, the Lummi Nation wrote at least three letters to the Corps between 2011 and 2013 stating “unconditional and unequivocal opposition” to the proposed coal terminal and related rail infrastructure. The third of those letters, dated July 30, 2013,⁴ invited ongoing dialogue with the Corps through a “government-to-government” meeting.

At that time, Muffy Walker, speaking for the Corps,⁵ stated her agency would not determine whether to halt the permit process, because the Lummi had not requested it do so, and had invited ongoing discussion. The Corps would have taken further action had the tribe said, “There are no more discussions; we can’t come to any agreement,” according to Walker. Ballew explained in a recent op-ed⁶ that the Lummi Indian Business Council (LIBC’s) Jan. 5 letter was the “natural next step”: a formal request that the Corps deny federal permits. Immediately.

This Is a Treaty Issue, Not a NEPA Issue

SSA Marine’s main argument against immediate action by the Corps is that a determination now would be premature because it would not be based on an environmental impact statement (EIS) under the National Environmental Policy Act (NEPA). In his op-ed, Watters wrote, “Prematurely stopping that process at the request of any single party not only defeats the fundamental purpose of a permit review, but also denies the project proponent, property owner and other stakeholders the due process that the law requires.”

However, the Corps is not required to rely upon an EIS in determining whether GPT’s activities would “affect” tribal fishing rights, according to Graesser. In her Jan. 16 statement on behalf of that agency, she cited Northwest Sea Farms (a case cited by Ballew in his Jan. 5 letter), a federal district court case involving Lummi fishing rights in which the Corps did not conduct an EIS at all, a fact expressly acknowledged by the reviewing federal district court in the procedural background it detailed before its holding.⁷

The courts begin analyses of treaty fishing rights with what is popularly known as the Boldt I decision of 1974. That case was decided by the federal court sitting in Seattle for the western district of Washington, affirmed by the Ninth Circuit Court of Appeals, and the U.S. Supreme Court refused to hear an appeal. The Boldt court’s holding is based on the fundamental constitutional precept that treaties are “the supreme Law of the Land; and the Judges in every State shall be bound thereby….”⁸ (The legal analysis that follows tracks federal law only, but because it preempts state law on this subject, state courts would be bound by this jurisprudence.)

Article V of the Treaty of Point Elliott of 1855 guarantees the Lummi Nation the “right of taking fish, at all usual and accustomed grounds and stations….”⁹ The U.S. Supreme Court considers this a reservation of rights by the tribe and not a grant to the tribe by the federal government.¹0 According to the Northwest Indians Fisheries Commission, “the 20 treaty Indian tribes in western Washington signed treaties with the United States in 1855-56, giving up most of the land that is now western Washington, but reserving [their] rights to harvest salmon and other natural resources.”¹¹

That reserved right, further, is a property right “which may not be abrogated without specific and express Congressional authority.”¹² Such abrogation, according to the Supreme Court, would be a Fifth Amendment taking requiring just compensation.¹³

With respect to the tribe’s property interest, the Supreme Court has established or upheld that the federal government is in an “undisputed … general trust relationship” with the tribes,¹⁴ imposing upon it and its agencies a fiduciary duty which governs any federal action.¹⁵ “Our” federal district court (sitting in Seattle) has expressly held that this duty applies to the Corps, which has a “responsibility to ensure that Indian treaty rights are given full effect.”¹⁶

Because courts consider treaties to be in the nature of contracts,¹⁷ their words are not interpreted at face value but, rather, as representations of the intent of the parties.¹⁸ Therefore, courts consider themselves bound to interpret the Treaty of Point Elliott “in the manner in which the Indians understood it.”¹⁹ Any analysis begins with the Supreme Court’s conclusion that “it is … inconceivable that either party deliberately agreed to authorize future settlers to crowd the Indians out of any meaningful use of their accustomed places to fish.”²⁰

Two and Only Two Questions

An analysis under the Treaty of Point Elliott is a two-part test, recently articulated by the federal district court in the Northwest Sea Farms²¹ case:

First, is a proposed project located in a “usual and accustomed” (U&A) fishing area.

Second, if yes, will the project “affect rights protected by the treaty.”

In determining if an area is U&A, it need not be the primary place of fishing; the Boldt decision established that any area “customarily fished from time to time at and before treaty times … is a usual and accustomed ground or station at which the treaty tribe reserved, and its members presently have, the right to fish.”²²

In considering whether a project would “affect,” or impact, a fishing right, courts do not require that a project “substantially” impair the number of fish available; it need merely “affect the Lummi Nation’s right to access.”23 And while the courts have acknowledged that some area could be so small as to be de minimus, in the Northwest Sea Farms case, the affected surface area was only 1.41 acres²⁴ which was not deemed irrelevant. GPT’s proposed pier with two capesize bulk carriers berthed would cover more than 13 acres of water surface.²⁵

Beyond the pier GPT proposes, as many as 487 “bulkers” per year²⁶ would traverse Puget Sound from the mouth of the Strait of Juan de Fuca, through Rosario and Haro Straits, to and from GPT at Cherry Point. Those vessels are twice the size of tankers allowed to transit these waters in close proximity to each other. Even SSA Marine acknowledged, through Bob Watters’ Jan. 10 op-ed, that the Lummi U&A fishing area “is approximately 1.9 million acres.” Watters’ point was the legally irrelevant argument that the proposed pier covered a statistically insignificant proportion of U&A.

Ballew, however, raises the relevant issue in his letter and op-ed: in addition to the risk bulk carrier traffic poses directly to fishing, there is the measured increase in spill risk those Panamax and capesize bulk carriers pose in waters filled with oil tankers and other commercial, fishing and recreational vessels.

GPT’s Impact on Fishing Was Already Asked and Answered

While a NEPA EIS would be a possible source of information to inform the Corps’ decision, there are multiple existing studies of the marine environment in this region. The 2010 Cherry Point Aquatic Reserve Management Plan, for example, cites dozens of studies depicting the site’s richness and vulnerability.

According to Fred Felleman, a marine biologist and consultant to Friends of the Earth, “There is ample evidence in the record documenting for the Corps that this project will interfere with the ability of the Lummi to access their treaty-protected right to harvest marine resources in the highly productive area adjacent to the proposed dock.” Felleman wrote in a Jan. 24, 2015, email. “In addition to limiting their access and directly impacting fishing gear, the additional traffic, so close to the three other industrial piers along the reach, increases the risk of accidents considerably.” He noted there would also be fuel barges in the vicinity, further increasing the risk of oil spills along prime Cherry Point herring spawning grounds as well as in the diverse habitats found along the route.

Felleman described three recent vessel traffic studies assessing the risk of a collision and spill in area waters, all of which conclude that risk significantly increases if GPT were to be permitted. One of those, conducted by George Washington University engineers, “found an increase of 12% in the frequency of accidents throughout the Salish Sea as a result of the Gateway proposal” without consideration of cumulative effects from new terminals being developed in British Columbia, he wrote.

Even without benefit of vessel traffic risk assessments, the federal government determined over 20 years ago a bulk commodities terminal at Cherry Point posed too great a risk to the environment to receive federal permits. In 1994, the U.S. Environmental Protection Agency (EPA) advised the Corps to deny federal permits required to build the terminal proposed at that time by SSA Marine through its subsidiary, Pacific International Terminals (PIT). The EPA concluded that terminal “would have substantial and unacceptable impacts on aquatic and marine resources of national importance,” expressly mentioning “populations of important fisheries resources ….”²⁷

The proposal to which the EPA referred was also named “Gateway Pacific Terminal,” and it had a very large pier, but it was in all other respects a different, smaller, much less impactful terminal:²⁸

• It was designed to handle 8.2 (versus 54) million metric tons of materials;

• Proposed commodities were wood chips, potash, sulfur, grain, iron ore pellets and calcined coke (not coal);

• Storage facilities and an elaborate dust suppression system prevented fugitive dust from entering the environment²⁹ (versus an 80-acre, six-story-high open air coal pile);

• So few commodities would be shipped by rail from other U.S. states (primarily grain), the EIS did not discuss train traffic at all (versus fossil fuel rail traffic overwhelming capacity and agricultural shippers currently losing access); but arguably the biggest difference was

• 140 vessels would have called per year, versus the 487 proposed today.

The Legal Standard of Review

Billy Frank Jr., as Chairman of the Northwest Indian Fisheries Commission, wrote:

"Through the treaties we reserved that which is most important to us as a people: The right to harvest salmon in our traditional fishing areas. But today the salmon is disappearing because the federal government is failing to protect salmon habitat. Without the salmon there is no treaty right. We kept our word when we ceded all of western Washington to the United States, and we expect the United States to keep its word.”³⁰

If the Corps does conclude, based on existing information, that GPT would be in a “usual and accustomed” area and would interfere with Lummi access to fishing there and/or elsewhere, a reviewing court will probably show great deference to the agency’s determination should SSA/PIT appeal their decision. The Ninth Circuit Court of Appeals articulated the standard of review: a reviewing court “may not set aside the decision of the Corps unless there is no rational basis for the action in the record.”³¹

Finally, no matter how much SSA Marine may want to make this issue about jobs, reviewing courts have so far shown no inclination to weigh the interests. Our federal district court has expressly stated a developer’s economic interests and even those of some members of the community may be compelling, but they do not constitute “irreparable [harm] in the equitable sense” to be weighed against a tribal treaty fishing right.³²

The LIBC has continually stressed in their correspondence with the Corps (particularly in their Aug. 2013 letter), their equitable — or trust-like — interest in fishing is Schelangen, or a way of life, woven into the Lummi cultural and spiritual fabric and something to be preserved for future generations from whom that interest was “borrowed.”

That is a trust relationship with many third-party beneficiaries.

---

Lummi Nation Letter to U.S. Army Corps of Engineers

Col. John G. Buck
Seattle District Commander
Seattle District, U.S. Army Corps of Engineers

January 5, 2015

SUBJECT: Lummi Nation Request for Denial of Permit for the Proposed Gateway Pacific Terminal Bulk Dry Goods Shipping Facility. …

Colonel Buck:

The Lummi Nation is opposed to the Gateway Pacific Terminal … project proposed at Xwe’chi’eXen (Cherry Point). … We are requesting that the U. S. Army Corps of Engineers (Corps) take immediate action and deny the permit application based, inter alia, on the project’s adverse impact on the treaty rights of the Lummi Nation. The impacts on the Nation’s treaty rights associated with this project cannot be mitigated.

The waters and tidelands impacted by this project are an integral part of the usual and accustomed fishing places of the Lummi Nation. … As part of the permitting process for this project, the Corps is required to ensure that the Nation’s treaty rights are not abrogated or impinged upon….

Review of the impacts associated with this project, including, but not limited to, those analyzed in the Gateway Pacific Terminal Vessel Traffic and Risk Assessment Study lead to the inescapable conclusion that the proposed project will directly result in the substantial impairment of the treaty rights of the Lummi Nation throughout the Nations’ “usual and accustomed” fishing areas. … The Lummi have harvested at this location since time immemorial and plan to continue into the future. The proposed project will impact this significant treaty harvesting location and will significantly limit the ability of tribal members to exercise their treaty rights. …

Additionally, the Lummi Nation has a sacred obligation to protect Xwe’chi’eXen based on the area’s cultural and spiritual significance. The Corps is obligated to comply with the mandates of the National Historic Preservation Act, specifically section 106, in evaluating the project’s potential impacts. This obligation is in addition to the Corps’ obligations that spring from our treaty rights. The Lummi Nation is opposed to this project due to the cultural and spiritual significance of Xwe’chi’eXen, and intends to use all means necessary to protect it.

In addition to the proposed project’s unacceptable and unavoidable impacts to the Nation’s access to this significant treaty harvesting location, and to the cultural integrity of the site, the proposed project location is within an especially rich and fertile marine environment that serves as important habitat for a number of forage fish, finfish, and shellfish (including several threatened and/or endangered species) that are inextricably linked to the Lummi Schelangen (“Way of Life”). Anticipated impacts to this significant aquatic environment include, but are not limited to, substantially increased ballast water discharges and associated risk of introducing invasive species, contaminant spills (product, bunker fuel oil, crude oil and refined products from adjacent facilities), noise, and vessel traffic. The impacts to these critical marine waters from coal alone may include: smothering, toxicity, substrate change, accumulation, and water quality degradation.

The devastating environmental impacts associated with this project, as well as the trust responsibility of federal agencies to ensure the protection of the treaty rights of the Lummi Nation, mandate the denial of any and all permits under the Corps’ jurisdiction.

Respectfully,
Tim Ballew II, Chair
Lummi Indian Business Council

Citations, references, and cc’d parties are omitted. For the full text, see https://www.documentcloud.org/documents/1390292-lummi-letter-to-army-corps-1-5-15.html

---

Endnotes

1 “Lummis reject ‘standing offer’ to negotiate approval of Whatcom County coal terminal,” The Bellingham Herald, Jan. 17, 2015, http://www.bellinghamherald.com/2015/01/17/4082253_lummis-reject-standing-offer-to.html?rh=1.

2 SSA Marine created a subsidiary, Pacific International Terminals, Inc. (PIT), which is technically the proponent for the coal terminal, but it is SSA Marine, Inc. Vice President Bob Watters, http://www.sos.wa.gov/corps/search_detail.aspx?ubi=601995666 who is the company’s public voice in defending the proposal. According to corporate records on file with the Washington Secretary of State’s office, Watters is not an officer of PIT. http://www.sos.wa.gov/corps/search_detail.aspx?ubi=601101784.

3 “Environment and economy don’t have to be at odds at Gateway Pacific Terminal,” The Bellingham Herald, Jan. 10, 2015, http://www.bellinghamherald.com/2015/01/10/4069501/environment-and-economy-dont-have.html.

4 “Read Lummi Nation’s formal letter opposing Gateway Pacific,”The Bellingham Herald, Aug. 2, 2013, http://www.bellinghamherald.com/2013/08/02/3126454_read-lummi-nations-formal-letter.html?rh=1.

5 “Feds still see wiggle room in Lummi Nation position on Washington state coal terminal,” McClatchy DC, Sept. 18, 2013, http://www.mcclatchydc.com/2013/09/18/202500/feds-still-see-wiggle-room-in.html.

6 “Cherry Point coal terminal would harm salmon, Lummi way of life,” The Bellingham Herald, Jan. 8, 2015, http://www.bellinghamherald.com/2015/01/08/4065288/cherry-point-coal-terminal-would.html.

7 Northwest Sea Farms, 931 F. Supp. at 1523.

8 United States v. Washington, 384 F. Supp. 312, 330 (W.D. Wash. 1974) [hereinafter Boldt I] (citing Article VI, cl. 2, U.S. Constitution), affirmed, 520 F. 2d 676 (9th Cir. 1975), cert. denied, 423 U.S. 1086 (1976).

9 12 Stat. 927, Art. V (1855).

10 Northwest Sea Farms v. U.S. Army Corps of Engineers, 931 F. Supp. 1515, 1522 (W. Dist. Wash. 1996)

(citing United States v. Winans, 198 U.S. 371, 381 (1905)), http://leagle.com/decision/19962446931FSupp1515_12295.xml/NORTHWEST%20SEA%20FARMS%20v.%20U.S.%20ARMY%20CORPS%20OF%20ENGINEERS.

11 http://treatyrightsatrisk.org. See also “Treaty Rights at Risk: Ongoing Habitat Loss, the Decline of the Salmon Resource, and Recommendations for Change,” A Report from the Treaty Indian Tribes in Western Washington, July 14, 2011, http://nwifc.org/w/wp-content/uploads/downloads/2011/08/whitepaper628finalpdf.pdf.

12 Muckleshoot Indian Tribe v. Hall, 698 F. Supp. 1504, 1512 (1988) (citing Menominee Tribe of Indians v. United States, 391 U.S. 404, 411 n.12, (W. Dist. Wash. 1968),

http://leagle.com/decision/19882202698FSupp1504_11980.xml/MUCKLESHOOT%20INDIAN%20TRIBE%20v.%20HALL. The Boldt I court noted that as of that decision, Congress had never “exercised its prerogative to either limit or abolish Indian treaty right fishing” though it could “be limited or modified in any particular or to any extent….” Boldt I, 384 F. Supp. at 337-38.

13 Muckleshoot, 698 F. Supp. at 1512-13 (citing Menominee Tribe of Indians v. United States, 391 U.S. 404, 407, 413 (1968)).

14 Northwest Sea Farms, 931 F. Supp. at 1519-20 (citing and quoting United States v. Mitchell, 463 U.S. 206, 225 (1983)).

15 Id. (citing Nance v. Environmental Protection Agency, 645 F.2d 701, 711 (9th Cir.), cert. denied, 454 U.S. 1081 (1981)).

16 Northwest Sea Farms, 931 F. Supp. at 1520.

17 Muckleshoot, 698 F. Supp. at 1511 (citing Fishing Vessel, 443 U.S. at 675).

18 Id. (citing Fishing Vessel, 443 U.S. at 676).

19 Northwest Sea Farms, 931 F. Supp. at 1521 (citing Winans, 198 U.S. at 381).

20 Fishing Vessel, 443 U.S. at 676.

21 Northwest Sea Farms, 931 F. Supp. at 1518.

22 Boldt I, 384 F. Supp. at 332; Northwest Sea Farms, 931 F. Supp. 1521.

23 Northwest Sea Farms, 931 F. Supp. at 1522.

24 Id. at 1518.

25 The three-berth pier proposed for GPT would be 105 x 2980 feet, or 312,900 square feet, covering over seven acres of surface water. Additionally, capesize bulk carrier vessels (“bulkers”) average 180 x 750 feet, or 135,000 square feet, or just over three acres. Therefore, the pier with two cape class bulkers anchored would cover 13 acres of water surface immediately adjacent to eel grass beds supporting the major nesting area of Cherry Point herring. See Gateway Pacific Terminal Revised Project Information Document (hereafter “PID (rev.)”), p. 4-23 (Mar. 2012), http://www.co.whatcom.wa.us/pds/plan/current/gpt-ssa/pdf/20120319-permit-submittal.pdf; BulkCarrierGuide.com, http://bulkcarrierguide.com/size-range.html.

26 PID (rev.) at Table 4-6, p. 4-63.

27 Letter from Chuck Clarke, Regional Administrator, U.S. Environmental Protection Agcy., to Col. Walter J. Cunningham, Dist. Engineer, U.S. Army Corps of Engineers, Mar. 8, 1994, http://wa-whatcomcounty.civicplus.com/DocumentCenter/Home/View/2829 at 90.

28 http://protectwhatcom.org/coal-costs-us-natural-resources.

29 Gateway Pacific Terminal Final Environmental Impact Statement, Whatcom County Planning and Development Services, Feb. 1997, http://www.co.whatcom.wa.us/pds/plan/current/gpt-ssa/pdf/1997-final-eis.pdf.

30 “Treaty Rights at Risk: Ongoing Habitat Loss, the Decline of the Salmon Resource, and Recommendations for Change,” A Report from the Treaty Indian Tribes in Western Washington, p.6, July 14, 2011, http://nwifc.org/w/wp-content/uploads/downloads/2011/08/whitepaper628finalpdf.pdf.

31 Northwest Sea Farms, 931 F. Supp. at 1519 (citing Friends of the Earth v. Hintz, 800 F.2d 822, 828-29 (9th Cir. 1986).

32 Muckleshoot, 698 F. Supp. at 1516.