After
careful consideration of all the information available to him, Seattle District
Commander Col. John Buck has determined the potential impacts to the Lummi
Nation’s usual and accustomed (U&A) fishing rights from the proposed
Gateway Pacific Terminal are greater than de
minimis.
Because
the district has determined the effects to the Lummi’s rights are more than de minimis and because the Lummi
maintain their objections to this proposal, the project cannot be permitted by
the Corps.
In
2015 the Seattle District received a request from the Lummi Nation for the
Corps to deny a permit requested for the GPT project proposed by Pacific
International Holdings, LLC. (PIH). The
Lummi cited impacts to their usual and accustomed treaty rights and included
affidavits about their fishing practices and statements about potential impacts
from the construction and operation of the terminal. The Lummi Nation signed the Treaty of Point
Elliot in 1855, which established the Suquamish Port Madison, Tulalip, Swinomish, and Lummi
reservations and guaranteed fishing rights in perpetuity at each tribes’ Usual
and Accustomed (U&A) fishing areas. The GPT project area is included in their
U&A fishing area.
“I
have thoroughly reviewed thousands of pages of submittals from the Lummi Nation
and Pacific International Holdings,” said Col. Buck. “I have also reviewed my staff’s
determination that the Gateway Pacific Terminal would have a greater than de minimis impact on the Lummi Nation’s
U&A rights, and I have determined the project is not permittable as
currently proposed.”
Both
the Lummi Nation and Pacific International Holdings, LLC, provided voluminous
information regarding fishing practices, potential impacts, and mitigation to
support their positions. The district’s
evaluation of effects of the proposal on the Lummi’s U&A fishing rights is
undertaken to fulfill the federal government’s responsibility to protect treaty
rights. The Corps may not permit a
project that abrogates treaty rights.
As
part of its evaluation of the permit application for the Gateway Pacific
Terminal proposal at Cherry Point near Ferndale, Washington, the Corps had been
overseeing development of a Draft Environmental Impact Statement consistent
with National Environmental Policy Act requirements until the applicant
suspended this work April 1. As part of
standard regulatory procedures, the Corps has continued evaluating the proposal
consistent with the requirements of other federal laws and conducting
consultations as needed consistent with the requirements of the Endangered
Species Act, the National Historic Preservation Act, and our tribal treaty
trust responsibility.
Consistent
with standard regulatory process, if any one of the Corps’ required substantive
evaluations concludes with a finding the proposal cannot be permitted, then the
project proponent is notified of such finding and advised the project is not
permittable. PIH was notified the GPT
Project as currently planned is not permittable, and they requested a decision
on the application. Because this
proposal cannot be permitted due to effects on the Lummi Nation’s treaty rights
and because of the Lummi Nation’s objection to this proposal, Col. Buck denied
this project without prejudice.
If
in the future the Lummi Nation withdraws its objections to the proposal, the
proponent could reinitiate processing of the application. A number of other tribes have expressed
concern about effects of the proposal on their treaty rights, so if processing
of the application resumes, consultation with those tribes would occur as
needed to collect information and make decisions with respect to effects of the
proposal on their rights.