SEATTLE — The U.S. Army Corps of Engineers on Monday denied a permit to a $700 million project to build the nation’s largest coal-export terminal in northwest Washington state, handing a striking victory to the Lummi tribe which argued the project would violate its treaty-protected fishing rights.
The decision effectively ends the federal environmental review of a deep-water port that would have handled up to 54 million metric tons of dry bulk commodities, mostly coal, at Cherry Point. The venture between SSA Marine and Cloud Peak Energy proposed receiving coal by train from Montana and Wyoming for export to Asia.
Col. John Buck, commander of the corps’ Seattle district, said the project can’t be permitted because the impacts from the trestle and three-vessel wharf would interfere with the tribe’s treaty rights to fish in its traditional areas.
“The corps may not permit a project that abrogates treaty rights,” Buck said during a media briefing.
The Lummi Nation cheered the decision, saying the Corps honored its treaty with the U.S. and recognized that the project would hurt the tribe’s fishing rights.
“It’s great news for the Lummi, a great win for treaty rights and Indian country,” said Tim Ballew, chairman of the tribe with more than 5,000 members and one of the largest tribal fishing fleets in the country. “The record established, and everybody knew, this project would have negative impacts to treaty fishing rights.”
Like many tribes, the Lummi signed a treaty with the U.S. in 1855 in which it ceded its land but reserved the right to hunt and fish in “usual and accustomed” areas.
Project developers said Monday that they are considering all alternatives.
“This is 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,” Bob Watters, president of Pacific International Terminal, LLC, said in a statement.
The project developers had argued that the most productive fishing for the tribe does not occur near the wharf and that the tribe didn’t provide real evidence that they fished or crabbed a lot in the area.
But the Corps said the tribe showed evidence that members fish near the proposed dock and did so regularly. The agency said the pier itself would impact the tribe’s fishing rights, and that measures proposed by developers wouldn’t minimize those impacts. At a minimum, 122 acres of the tribe’s fishing grounds would be impacted by the project.
Environmental groups opposed to the terminal cheered the decision, calling it a huge win not just for the tribe but in the fight against fossil fuels.
Montana U.S. Rep. Ryan Zinke and other supporters criticized the Corps for issuing a decision before the environmental analysis was complete.
“The Gateway Pacific Terminal is incredibly important to Montana, the Crow, and even to the blue collar workers in Washington State because it is literally the gateway to economic prosperity and rising out of poverty,” Zinke said in statement.
The Crow Nation of Montana has an option for ownership in the new terminal.
Colin Marshall, CEO and president of Wyoming-based Cloud Peak Energy, said in a statement issued by Zinke that the project “has been subjected to an unprecedented parallel process imposed by the Corps that served to pick winners and losers among Native American Tribes with differing interests in the project.”
Last month, project developers asked state and federal regulators to temporarily halt an environmental review that began in 2013, while the Corps heard the Lummi’s request. Buck said the corps’ decision puts an end to that federal environmental analysis. Developers could appeal the decision by suing in federal court.
And tribal leaders say the dispute hasn’t likely ended. “Quite possibly there’s a long road again of us, but our priority is always to protect Cherry Point,” Ballew added.
The project has become a lightning rod in the debate over whether the Pacific Northwest should become a gateway for exporting fossil fuels to Asia.
Environmental groups strongly oppose the proposal, worried about the greenhouse gases pollutants produced by burning coal and other issues such as increased train and vessel traffic. Meanwhile, some business and labor groups say it will create hundreds of jobs and generate tax revenue.
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