by Sandy Robson

In a January 5, 2015  letter sent to the United States Army Corps of Engineers (“the Corps”) by the Lummi Indian Business Council (LIBC), LIBC Chairman Tim Ballew II wrote: “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 Corp’s jurisdiction.”

The project Tim Ballew is referring to in the letter is SSA Marine’s proposed Gateway Pacific Terminal (GPT), a 48 million metric ton per year coal export terminal that would be located at Xwe’chi’eXen (Cherry Point), in Washington state. The letter to the Corps, authorized by the LIBC, was signed by Ballew, and it asked the Corps to immediately deny SSA Marine’s permit application for the proposed GPT at Xwe’chi’eXen (Cherry Point), based on the project’s adverse impacts on the treaty rights of the Lummi Nation. The LIBC letter stated that, “The impacts on the Nation’s treaty rights associated with this project cannot be mitigated.” The Lummi Nation is guaranteed rights under the Treaty of Point Elliott of 1855.

In response to news of this letter to the Corps, SSA Marine senior vice president Bob Watters authored an Op-Ed published in The Bellingham Herald on January 10, 2015. While the words “treaty” or “treaty rights” were used nine times in the LIBC’s 2-page cover letter accompanying the 97 page document they sent to the Corps, Bob Watters never used the words “treaty” or “treaty rights” in his Op-Ed. This noticeable omission is illustrative of the fact that SSA Marine, in its endeavor to build and operate the proposed GPT at Xwe’chi’eXen (Cherry Point), continues to minimize and/or ignore the treaty rights of the Lummi Nation and the Nooksack Indian Tribe. Ignoring those treaty rights as if they don’t exist does not cause those treaty rights to disappear.

Four days after the Herald published Watters’ Op-Ed, SSA Marine, via its GPT email mailing list, disseminated a GPT promotional piece with a full version of Watters’ response to the January 5 letter to the Corps from the Lummi Nation. That email promotional piece was entitled “Good Faith Consultation Offered Tribes.”

‘Good Faith’ is respecting and honoring Lummi treaty rights

“Good Faith,” according to an overview on Wikipedia, is “a concept used in law and philosophy which denotes fair and open dealing in human interactions. This is often thought to require sincere, honest intentions or beliefs, regardless of the outcome of an action. The opposed concepts are bad faith, mala fides (duplicity) and perfidy (pretense).”

It is easy to question if SSA Marine’s and Bob Watters’ professed “concern about the challenges to Lummi fishers” is fair or sincere when SSA Marine continues to pursue its plan to build and operate GPT. They carry on with their coal export scheme, even though the Lummi Nation has stated consistently, for years, that it is opposed to SSA Marine’s project.

Sincere and honest intentions are hard to discern when, even after the Lummi Nation has asked the Corps to deny SSA’s permit application for GPT, citing that the project will cause devastating environmental impacts to the Lummi Nation and will cause unacceptable and unavoidable impacts on the treaty fishing rights of the Lummi Nation, SSA Marine still continues to push forward with plans to build its terminal.

Watters wrote in his Op-Ed that “Gateway Pacific Terminal will protect tribal cultural and historical sites on our private property, which is not part of the reservation.” 

Whether or not the proposed site for GPT at Xwe’chi’eXen (Cherry Point) is part of the original Lummi reservation is still in question. An August 2013 special insert in the Whatcom Watch, “The Search for Integrity In the Conflict Over Cherry Point as a Coal Export Terminal,” written by Jewell Praying Wolf James, offers overview and depth on the history of Xwe’chi’eXen (Cherry Point). Also, when Watters said that SSA’s property at Xwe’chi’eXen (Cherry Point) is not part of the Lummi reservation, it is important to note this fact: SSA Marine does not own the waterways and tidelands which it would need permission to use for the essential shipping component of its proposed coal export terminal.

SSA Marine’s recent vessel traffic study reveals GPT will impact Lummi Nation’s fishing and cultural resources

The negative impacts from 487 Capesize and Panamax vessels which would call on GPT yearly, would conflict with the Lummi Nation’s fishing rights at one or more of its usual and accustomed fishing places under the Treaty of Point Elliott. The recently released “Vessel Traffic and Risk Assessment Study” (VTRAS) provides substantial evidence of some of, but not including all of, the impacts to the Lummi Nation’s treaty fishing rights from the increased vessel traffic that the proposed GPT would bring to the Northern part of the Puget Sound.

The VTRAS study was conducted by Glosten and Associates. The study’s Executive Summary explains that the study was required as part of a 1999 settlement agreement stemming from an appeal of the Shoreline Substantial Development permit applied for in 1992 by SSA Marine’s created subsidiary, Pacific International Terminals (PIT). The permit was one of the permits SSA/PIT needed for its proposed GPT shipping terminal at that time, which could have handled and shipped 8.2 million tons of cargoes (coal was not one of those commodities). After that permit was issued by Whatcom County in 1997, several agencies, along with several groups, appealed that permit decision by the county. An agreement was made during the 1999 settlement which required SSA/PIT to perform an analysis, with oversight by the state Department of Ecology, of the additional ship traffic brought by the newly proposed GPT. The Lummi Nation participated in the VTRAS, but it was not a party to the 1999 settlement agreement.

Watters’ claim that SSA Marine will protect tribal culture and historical sites, could bring to mind a question: Did SSA/PIT protect tribal culture and historical sites when in July 2011, without obtaining the necessary permits, its engineering contractor AMEC Earth & Environmental, Inc., bulldozed/cleared 9 acres, drilled 19 boreholes (from 80 ft. to 130 ft. deep), performed 19 cone penetration tests (100 ft. deep), destroyed close to 3 acres of wetlands, and illegally filled approximately 1.2 acres of wetlands at the proposed GPT site at Xwe’chi’eXen (Cherry Point)? The Washington Department of Ecology said in its September 23, 2011 letter to SSA/PIT that the work done by SSA/PIT was in violation of state law.

Additionally, with the unauthorized, illegal drilling and land clearing work SSA/PIT did at that time, the company had ignored a requirement (section 106) of the National Historic Preservation Act, by failing to consult first with Native American tribes (the Lummi and Nooksack), about potential archaeological impacts of that unauthorized land clearing and drilling.

Lummi Nation’s sacred obligation to protect Xwe’chi’eXen

Watters wrote in his Op-Ed that his company “has a standing offer out to the Lummi and other affected tribes to discuss how we [SSA Marine] can work to enhance their [the tribes’] cultural and economic prospects.”

Perhaps Bob Watters might benefit by re-reading LIBC’s January 5 letter, because in it, LIBC Chairman Tim Ballew stated: “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.” Ballew added that “the Lummi Nation has a sacred obligation to protect Xwe’chi’eXen based on the area’s cultural and spiritual significance.”

In reading the LIBC’s letter to the Corps, it is evident that the best way that SSA and Bob Watters “can work to enhance” the tribes’ cultural prospects, is to immediately withdraw SSA’s permit applications for GPT.

Watters wrote in his opinion piece: “The state governments of Montana, Wyoming, and North Dakota have all expressed concern that the environmental impact statement process is being used inappropriately (and unconstitutionally) to block their ability to engage in interstate commerce for the export of the products that they produce and rely upon for their livelihoods.”

States don’t have ‘livelihoods’; Lummi fishers do

In that statement, Watters strongly focused on the “livelihoods” of the states of Montana, Wyoming, and North Dakota. His Op-Ed had zero focus on the treaty rights of the Lummi, Lummi Schelangen (“Way of Life”), and the Lummi peoples’ survival. There was no mention in the Op-Ed that the Lummi’s treaty fishing rights are secured to them by our federal government. Article V of the Treaty of Point Elliott provides that, “The right of taking fish from usual and accustomed grounds and stations is further secured to said Indians in common with all citizens of the Territory. . .”

In his Op-Ed, Watters referred to a number of polls which he claimed support building and operating GPT.  Not only are polls not a definitive representation of how the people in Whatcom County actually feel about GPT, but the polls Watters cited have no relevance to the LIBC’s letter giving reasons for the Lummi Nation’s request that the Corps immediately deny SSA Marine’s permit application.

None of the questions in the polls cited by Watters refer to the Lummi Nation and the adverse impacts from the proposed 48 million metric ton per year coal terminal on the Nation’s treaty rights, and on its peoples.

In an excerpt taken from SSA Marine’s January 14 GPT “Good Faith Consultation” promo piece featuring Watters’ full statement reacting to the LIBC letter, he said: “To give perspective, Lummi Nation’s court-affirmed usual and accustomed (U&A) fishing area is approximately 1.9 million acres.  The GPT proposed lease of state tidelands is an area of 46 acres, or 2/1000 of one percent of that U&A area.”

The last sentence of that paragraph in Watters’ full statement, differs from the last sentence of the same paragraph in Watters’ Op-Ed in the Herald which read: “Gateway Pacific Terminal’s proposed lease of state tidelands is just .002 of that usual and accustomed area.” The reference to “46 acres” was not included in his Herald Op-Ed.

To shed light on a potential reason why the reference to “46 acres” (the area size of state tidelands in the proposed lease for GPT) was omitted in the Watters Op-Ed, this quote from a January 17, 2015 Bellingham Herald article may provide some insight:  “Corps spokeswoman Patricia Graesser said on Friday, Jan. 16, that a similar permit denial by the Corps withstood a challenge in U.S. District Court, in a 1996 decision. In that case, the Corps had rejected a permit application from Northwest Sea Farms to operate a salmon farm west of Lummi Island. The Corps had ruled that the farm, about 1.4 acres on the water’s surface, would interfere with Lummi fishing grounds.”

According to the online documentation of that cited U.S. District Court case, the salmon farm project had been proposed “in the Rosario Strait, west of the Lummi Islands and near the Lummi Rocks. The area required for anchorage would have covered some 11.36 acres, while the total surface area coverage would not exceed 1.41 acres.”

Watters/SSA Marine may have decided not to include the “46 acres” number in the Op-Ed because of the fact that in 1992, the Corps had already rejected the permit application of the proposed salmon farm that would have involved an area of 1.41 acres on the water’s surface, and covering some 11.36 acres of anchorage area.  So, pointing out that the proposed GPT project would necessitate leasing an area of 46 acres of state tidelands which is nearly four times larger than the salmon farm permit application which had been denied by the Corps in 1992, surely would not be advantageous to SSA Marine’s position.

GPT project would be against the public interest

When Northwest Sea Farms’ permit application was denied in 1992 by the Corps, and that permit denial by the Corps was subsequently challenged in U.S. District Court by Northwest Sea Farms, the Corps’ permit denial was upheld by that court in its 1996 decision. According to the online documentation of that case, “The denial [the Corps’ 1992 permit denial] was based upon a finding that the project would be against the public interest because it would conflict with the Lummi Nation’s fishing rights at one of its usual and accustomed fishing places under the Treaty of Point Elliott.”

It appears from reading Bob Watters’ Herald Op-Ed, and his full statement featured in the GPT email promotional piece, that he and SSA Marine are unwilling to acknowledge that the GPT project proposed at Xwe’chi’eXen (Cherry Point) would, just as the Corps concluded in the case of the proposed salmon farm in 1992, “be against the public interest because it would conflict with the Lummi Nation’s fishing rights at one of its usual and accustomed fishing places under the Treaty of Point Elliott.”

With its January 5 letter to the Corps, Lummi Nation has demonstrated its conviction that: “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 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 Nation’s ‘usual and accustomed’ fishing areas.”

SSA Marine continues to push the GPT project on the Lummi Nation when the Nation has repeatedly stated its steadfast opposition to the project. After the recent LIBC letter requesting that the Corps immediately deny the permit application for GPT, Watters and SSA Marine are worlds away from demonstrating “Good Faith” by launching public challenges which prioritize the necessity for trade and economic development above the duties imposed by the trust obligation owed by the Corps to the Lummi Nation.