GPT legal threats foster bottleneck of government-to-government relationship with Lummi Nation

July 26, 2016  Dena Jensen

Guess, what?  The processing of the GPT permit by Whatcom County has led, not only to a choking of due process for the public regarding Comprehensive Plan update issues that pertain to Cherry Point Industry, but also to a formidable restriction of the government-to-government relationship between Lummi Nation and our county government in matters involving Cherry Point.  During the last couple weeks I have been involved in researching some issues regarding public participation in the Whatcom County Comprehensive Plan as it relates to the section on the Cherry Point Urban Growth Area (UGA).  As an active opponent of the Gateway Pacific Terminal for the past five years, I have been frustrated by the restriction from speaking to the county council about that project, in any way, for many of those years.  However, my recent research has led me to being more thoroughly awakened to the insidious nature of this restriction.

My motivation in presenting the information in this blog post is to remind myself and others that Whatcom County is a predominately white community in which there are many areas where business-as-usual is being allowed to play out in a way that places the interests of enterprise above the rights of the minority populations within it. I believe it is only through documenting, presenting, and discussing these injustices that we can find ways to bring justice to all races and cultures in our society.

agenda

Enhanced copy of the July 12, 2016 Whatcom County Council agenda that displays the warning prohibiting audience members from speaking about the proposed Gateway Pacific Terminal

Putting the pieces together:

Whatcom County Council members recently decided to not proceed with a review of Council Member Carl Weimer’s Comprehensive Plan amendments to Chapter 2 Land Use regarding the Cherry Point UGA, and instead separated them out from the current Comprehensive Plan update review, voting  to send the amendments back to the planning commission through a motion at the July 12, 2016 Special Committee of the Whole (SCOTW) meeting. Here is a transcript of that motion from the audio of that SCOTW meeting:

Buchanan: I think the motion is, is to first of all, to separate these proposals, proposed amendments, out of our normal 20 year review cycle, right? – or 10 year review cycle – And to send it to the planning commission and to docket it for subsequent council review, but, okay, does anybody have any clarifications?
Donovan: With the understanding that a resolution will be crafted with specific instructions and timeline
Buchanan: Yes, With the understanding that staff will bring us a resolution that lays out a time line
Donovan: Will we introduce the resolution at a future meeting?
Buchanan: Yes.

Before that ever happened, I had come upon a July 12, 2016 letter from Lummi Indian Business Council (LIBC) Chairman Tim Ballew II posted in the Public Comments for the Comprehensive Plan on the Whatcom County website.  In his letter Chairman Ballew had reminded the council that the county had not consulted with Lummi Nation in drafting the proposal (made by Council Member Weimer) for the amendments of Chapter 2.  The LIBC Chairman elaborated:

Having said that[,] I know that the proposal is well intended and it is a step in the right direction. I am confident that positive changes could be made to the proposed language in order to do a better job of protecting the significant cultural properties located throughout Cherry Point. Whatever the future holds for the area, we hope that protecting the integrity of our cultural properties will be a priority.

Recalling this letter, I went back to the December 10, 2015 letter to the Whatcom County Planning Commission from the Lummi Planning Department  which had proposed specific language to be inserted in the Comprehensive Plan.  Other than Interim Planning & Public Works Director Kirk Vinish’s statement regarding this letter at the January 26, 2016 Public Hearing for the Comprehensive Plan, it was the last time I was aware that Lummi Nation had offered any input on matters regarding Cherry Point for the Comprehensive Plan.  Below is that letter:

lummi planning to pc 12102015Kirk's signature 12102015

From previous research, I knew that the planning commission, during their January 14, 2016 meeting, had talked about both LIBC’s July 21, 2015  more conceptual letter regarding the Cherry Point UGA, and also the specific language Kirk Vinish had suggested in his December 10 letter on behalf of Lummi Nation (above). At that time, planning commissioners decided to refrain from creating any amendments based on Lummi Nation’s letters.  Below is an excerpt pertaining to this from the minutes of that January 14 planning commission meeting.

Planning Commission january 14, 2016 meeting cherry point

Meanwhile, here we are a few months later, after the Gateway Pacific Terminal (GPT) Section 404/10 permit application was denied by the United States Army Corps of Engineers (Army Corps) in early May 2016 (which apparently freed-up Council Member Carl Weimer to propose his amendments to the Cherry Point UGA section of the Comprehensive Plan), and still our county government apparently has not been talking to Lummi Nation about this area of great cultural and spiritual significance to them.  It appears there has been no government-to-government consultation pursued by the county about this critical topic that Lummi Nation has expressed an active interest in.  Why would that be, except for a continuing obstruction to that relationship posed by the potential for litigation from GPT proponents?

One could be inclined to explain away the decision by planning commissioners to pass on taking action on Lummi Nation’s specific suggested language as simply the complex matter of evaluating issues that could have a potential effect on interstate commerce. This is a matter that isn’t related to GPT specifically, since that project was vested and wouldn’t be affected by a ban on coal export.  However a question remains: was there any consideration or consultation on the last section of suggested language in that December 10 letter from LIBC?  Below is that suggested language:

Page 7-8: Policy 7G-6 should be revised to read:

  • “Cherry Point environmental issues shall not be addressed on a county-wide basis, since the unique marine environment and cultural resources of Cherry Point cannot be mitigated off-site.  Public assess [sic] areas, such as marinas or the airport, may address environmental issues on a county-wide basis to be able to expand as necessary using mitigation banking or other appropriate mitigation measures.”

There is no discussion of this language (that has nothing to do with interstate commerce) reflected in those January 14, 2016 planning commission meeting minutes, nor in any records I can find for the Whatcom County Council.

And here is what the two now-final proposed drafts, first from the Planning Commission and second, the Whatcom County Council reflect as the language to be adopted for that section:

Planning commission 7g-6 final

Policy 7G-6, from Chapter 7 Economics, Whatcom County Comprehensive Plan, Posted on the county website as the Planning and Development “Staff Final Recommendation March 2015”

policy 7G-6 council comp plan final

Policy 7G-6, from Chapter 7 Economics, Whatcom County Comprehensive Plan. A link is posted on the county council webpage for July 26, 2016: “Introduction of the ordinance adopting Comprehensive Plan amendments relating to the 2016 Comprehensive Plan update and Urban Growth Area (UGA) review”

So let’s review:

On July 21, 2015 Lummi Nation submitted a letter to Whatcom County Planning and Development voicing concerns that their input, and that of the public, regarding the degradation of the environment, water shortages, and deterioration of quality of life over the last three years has not been addressed in the amendments to the Comprehensive Plan up to that point.

libc july 21 2015

Click the graphic of this selected portion of LIBC’s July 21, 2015 letter to Whatcom County Planning and Development to access the full letter on the county website.

The letter went on to propose a number of ways that the Cherry Point UGA section of the plan could address these issues of concern, concluding with these final paragraphs:

The proposed framework, theme and direction of the plan might have been adequate thirty years ago but it is now inappropriate. We believe the plan should reflect a vision for sustainable growth rather than continued, high-impact, heavy industry with a large carbon footprint.

Amendments to the comprehensive plan can, and should, create a best practices sustainable development policy framework for regulation of Cherry Point.
We look forward to having a government-to-governrnent dialogue with the Whatcom County Council prior to the approval of the UGA Proposal for Cherry Point.

About five months later, on December 10, LIBC sent another letter suggesting specific language to be inserted in Chapter 2 Land Use and Chapter 7 Economics of the Comprehensive Plan.

One month after that, on January 14, 2016 – the very same day that the Whatcom County Planning Commission voted to approve their final recommendations for amendments to the Comprehensive Plan – the commissioners discussed the two letters from LIBC and decided to take no action on their general suggestions and areas of concern regarding the Cherry Point UGA Proposal, or their specific suggested language for chapters 2 and 7.

pc vote on final comp planNearly six months after the January 14 planning commission meeting, and two months after the permit had been denied for the GPT project by the Army Corps, on July 5, 2016, Council Member Carl Weimer introduced his amendments to Chapter 2 for the Cherry Point UGA.  These are amendments on which Lummi Nation, according to Chairman Ballew, had not been consulted [emphasis mine], but which did however, take into account the input and concerns submitted in comments by Lummi Nation and hundreds of Whatcom County citizens. Finally some action had been taken!  But then, the next week on July 12, council members took no action to review those amendments, and instead voted 5-2 to send them back to the very government agency, the Whatcom County Planning Commission, that had chosen not to take action regarding Lummi Nation’s concerns or suggested language in January.

There is currently no timetable in place for the review of the Cherry Point UGA amendments to Chapter 2 by the Whatcom County Planning Commission.

 

 

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