May 9 — The U.S. Army Corps of Engineers denied the permit May 9 for what would be the biggest coal export facility in North America in response to a tribe, which asserted the port would affect its treaty fishing rights in waters north of Puget Sound.
The Gateway Pacific Terminal—located a few miles south of Washington's border with Canada near the Cherry Point Aquatic Reserve—had proposed to annually ship to Asia up to 52.9 million tons of coal mined largely from federal lands in the Powder River Basin.
SSA Marine, a global terminal and stevedoring company, holds 51 percent of the project shares, and Cloud Peak Energy Inc. owns 49 percent. Berkshire Hathaway Inc.'s BNSF Railway Co. would haul coal to the terminal from the northern Rocky Mountains.
The Lummi Nation, with fully adjudicated treaty fishing rights in the waters surrounding the project site, formally requested in January 2015 that the corps deny the permit. On April 1, port developer Pacific International Terminals suspended work on the environmental impact statement citing the corps' pending decision on the Lummi request (65 DEN A-14, 4/5/16).
Col. John Buck, district commander of the corps, said in a May 9 press briefing from his Seattle office that the large wharf and a trestle structure at the proposed terminal would interfere with Lummi fishing access. “The corps may not permit a project that abrogates treaty rights,” he said. “Only Congress has that right.”
Buck said impacts to the treaty-protected fishing right greater than de minimis require him to deny the permit.
Lummi Nation Chairman Tim Ballew II told Bloomberg BNA May 9 in a telephone interview that not only were treaty rights a concern but also ancient village and burial sites in the project uplands. “There were many issues that the tribe wanted to make sure were protected and that includes the ancient ones at the sacred sites of Cherry Point, along with access to the surrounding waters for our fishermen.”
“As tribes across the United States face pressures from development and resource extraction, we’ll continue to see tribes lead the fight to defend their treaty rights, and protect and manage their lands and waters for future generations,” Ballew said in a prepared statement May 9. “The impact of a coal terminal on our treaty fishing rights would be severe, irreparable and impossible to mitigate. Today’s victory is monumental and the Corps followed a fair process defined by law to make the right decision. The Corps has honored the treaty between Lummi and the United States.”
SSA Marine Vice President Bob Watters did not respond to a Bloomberg BNA e-mail query May 9 on whether the principals will challenge the corps in U.S. district court. He sent a prepared statement May 9 describing the permit denial as “an inconceivable decision. Looking at the set of facts in the administrative summary it's quite obvious this is a political decision and not fact based.” The statement ends by saying the principals are “considering all action alternatives.”
To contact the reporter on this story: Paul Shukovsky in Seattle at Pshukovsky@bna.com
To contact the editor responsible for this story: Larry Pearl at firstname.lastname@example.org
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