Lummi reject negotiations, demand quick response on coal terminal

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Supporters and opponents of the GPT project gathered at a public meeting at the Ferndale Event Center in 2012. Photo by Brandy Kiger-Shreve.

By Steve Guntli

The Lummi Nation is tired of waiting for the U.S. Army Corps of Engineers (USACE) to make a decision on the Gateway Pacific Terminal (GPT).

In January, the tribe issued a formal letter to the USACE to block the permit for the GPT, claiming the coal terminal would impede on federally protected tribal fishing grounds. USACE launched an investigation into the Lummi’s claims and promised to issue a ruling within a few months.

After months of delays, the Lummi have decided to take action. On August 27, the tribe issued what they are calling their final response to SSA Marine, the company behind the GPT project.

“We remain committed to assisting the Corps in evaluating our request for a permit denial,” wrote Lummi chairman Tim Ballew III, in a letter to USACE district commander John Buck. “However, we are not interested in engaging in a lengthy dialogue with the project proponent and do not anticipate the necessity of responding further.”

The USACE has attempted to negotiate the issues between the Lummi and SSA in lieu of the investigation, but the parties have not been able to reach common ground.

The tribe has retained the services of one of the world’s largest law firms, Dentons, to help with any future litigation needed after the corps makes its decision.

Dentons, which has offices in more than 49 countries, has experience defending tribal matters. Ballew said there is a high probability of a lawsuit after the USACE’s decision, regardless of how the Corps rules.

The Lummi Nation and SSA Marine have each presented cases to the Corps over the last several months. In July, SSA Marine submitted a 365-page argument to the USACE, claiming the Lummi rarely utilize the waters the coal terminal would use, and that the Lummi’s most frequently used commercial fishing grounds were elsewhere. SSA argued the statements taken by fishermen about their usual fishing grounds were too vague and would not stand up in court.

The tribe successfully blocked another project that made many of the same arguments. The Corps rejected a permit for Northwest Sea Farms, a 1.4-acre salmon farm in Rosario Strait, in 1992, and the decision was upheld in court in 1996.

The Lummi argue that the waters around Cherry Point, where the massive new coal terminal would be built, are protected as “Usual and Accustomed” fishing grounds under a treaty signed in 1855. The treaty was reaffirmed in a 2000 court ruling.

USACE spokesperson Deborah Graesser said they are taking the statements seriously, but do not have a deadline in place for a decision.

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