Three summers ago, the company that hopes to build the largest coal terminal in North America failed to obtain the permits it needed before bulldozing more than four miles of roads and clearing more than nine acres.
It also led to the disturbance of a site from which 3,000-year-old human remains had been removed — and where archeologists and tribal members suspect more are buried.
Federal and state laws required that the company also consult with the local Lummi and Nooksack tribes about the impacts of the work, which wasn’t done: Sidestepping the tribes meant avoiding delays for the project.
Pacific International Terminals, the coal terminal company that now owns the historic land, knew about the historic site and said it would avoid it, according to a memo the company submitted to the US Army Corps of Engineers four months before bulldozing at the site.
The documents revealed that Pacific International Terminals drilled 37 boreholes throughout the site, ranging from 15 feet to 130 feet in depth, without following rules set by the Army Corps of Engineers under the National Historic Preservation Act.
Although the drilling occurred three years ago, the extent of it has been made public just recently, when EarthFix and KUOW obtained documents made public in federal court as part of a lawsuit by a local environmental group against the terminal company.
The Gateway Pacific Terminal is one of three export facilities proposed in Oregon and Washington. Mining and transportation companies want to move Wyoming and Montana coal by train to load onto vessels on the Columbia River and Puget Sound and shipped to Asia. The projects have been met with strong opposition from various groups concerned about increases in train and vessel traffic, coal dust and climate change.
The conflict has been pronounced between the coal terminal developers and the Lummi tribal leaders, some of whom have called digging on their ancestral land, “criminal,” according to a court deposition. For the tribe, the stakes include the protection of their treaty fishing rights and the sanctity of their ancestral burial grounds.
But the Lummi, for reasons unclear, declined to join a lawsuit filed by environmental group RE Sources.
According to documents obtained during discovery, Pacific International Terminals drilled without a permit. Drilling is typically done to test the soil and geology of a site. At Cherry Point in Bellingham, the test was to determine if the ground could handle 48 million tons of coal moving over it each year.
One of the boreholes at the Gateway Pacific site was drilled in an area called "site 45WH1," the first documented archaeological site in Whatcom County, about 20 miles south of the Canadian border.
Government regulators and the tribes said they didn’t know Pacific International Terminals was drilling at Cherry Point until a resident walking in the area saw activity and reported it.
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Pacific International Terminals said it was an accident. The company had planned to drill 36 more boreholes at the site before the activity was reported.
But according to a report the company submitted to the US Army Corps of Engineers four months before bulldozing at the site, Pacific International Terminals knew about the historic site.
“The project has been designed to avoid impacts within the site boundaries,” the company said in the document.
In the document, the company said it would have an archaeologist present for work done within 200 feet of the site. The company also said it needed a plan should human remains or artifacts be uncovered, and that it knew it had to consult with the Lummi tribe before work could begin at the site.
Pacific International Terminals did none of these things.
“By going ahead and doing it illegally and then saying, 'Oh sorry,' but actually having the data now, it allows them to start planning,” said Knoll Lowney, who represented Bellingham-based environmental group RE Sources in its lawsuit against the terminal's backers. “That way, if they get their permits someday, they’re ready to build right then.”
The drilling has since stopped, according to court records, and Pacific International Terminals and its parent corporation, SSA Marine, settled for $1.6 million in July 2013 for violations under the Clean Water Act – but not for disrupting native ancestral grounds. Some of the bulldozing occurred on wetlands, which are protected by state and federal laws.
Pacific International Terminals and parent company SSA Marine declined repeated requests for an interview. Bob Watters, senior vice president of SSA Marine, emailed this statement:
"We sincerely respect the Lummi way of life and … their cultural values. Claims that our project will disturb sacred burial sites are absolutely incorrect and fabricated by project opponents. We continue to believe we can come to an understanding with the Lummi Nation regarding the Gateway Pacific Terminal.”
Archeological evidence shows that ancestors of the Lummi people hunted, fished and buried their dead for more than 3,000 years at Cherry Point and its surrounding waterways.
45WH1, a small section of Cherry Point, just 50 by 500 meters in size, is the most extensively studied archaeological site in Whatcom County. The location is not shared publicly because it is spiritually important to the tribe and they are afraid of people looting the site.
Western Washington University researchers Herbert Taylor and Garland Grabert conducted seven separate field excavations at the site between 1954 and 1986.
Both archaeologists have since died. Sarah Campbell, a professor of anthropology at the university, has studied the artifacts from at the site since the late 1980s. It is a large collection, filling 150 boxes and includes harpoon points, shells, amulets, lip ornaments, reef net weights, beads, jewelry, blades and bone and rock tools.
Cherry Point is rich in potential for future research, Campbell said recently as she sorted through boxes filled with small plastic bags, each one labeled, “45WH1.”
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The area was used to hunt and fish and manufacture reef net weights made of stone, which suggest permanent residence at the site. Campbell and others believe the site was used from more than 3,500 years ago until relatively recently. The Lummi signed the land away in 1855 in a treaty with the federal government. It is now owned by SSA Marine and Pacific International Terminals.
“One of those things that makes Cherry Point important is it has a long time span,” she said. “And it provides the chance to see the changing use over time.”
The Western Washington University collection also includes human remains. Campbell believes there are more Lummi ancestors buried at Cherry Point.
“It would be highly, highly, highly unlikely that there are not human remains in unexcavated areas of the site,” she said. “It’s absolutely prudent to assume that there are.”
‘My People’s Home’
From the deck of his fishing boat, the “God’s Soldier,” Lummi tribal council member Jay Julius looked to the shore of Cherry Point. He said that for the Lummi, the spiritual and cultural value stretches beyond the boundaries of site 45WH1.
“I see this as my people’s home. I can envision it,” Julius said quietly. “I know what’s there now.”
Julius cited Pacific International Terminals’ unpermitted activity at Cherry Point as a source of tribal opposition to the Gateway Pacific Terminal.
“When I come out here, it’s all that’s on my mind – is what took place here at Cherry Point when these guys bulldozed over it and called it an accident,” he said. “It’s obvious. It doesn’t take a genius to figure it out.”
Although the Lummi tribal council asserted its opposition to the Gateway Pacific Terminal in a letter to the Army Corps of Engineers last summer, the tribe chose not to join the civil suit brought by RE Sources.
That would have strengthened the environmental group’s case against Pacific International Terminals and SSA Marine, Knoll Lowney, the group’s attorney said. The Lummi had standing in a civil court because they could have demonstrated they were culturally and spiritually harmed by Pacific International Terminal.
It is unclear why the Lummi decided not to join the environmental lawsuit. Diana Bob, who represents the tribe, declined to be interviewed for this story.
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“If they don’t take part in the legal process, they’re weakening themselves. They’re throwing away their weapons,” said Tom King, an expert on the National Historic Preservation Act. King worked the federal Advisory Council for Historic Preservation in the 1980s.
King said Pacific International Terminals’ non-permitted drilling and disturbance at Cherry Point could put approval of the Gateway Pacific Terminal at risk.
“I think the Lummi have a very strong case,” he said. “The site, the area, the landscape – they can show that it’s a very important cultural area and permitting the terminal to go in will have a devastating effect on the cultural value of that landscape.”
The Army Corps of Engineers is now finalizing a "memorandum of agreement" between Pacific International Terminals and the Washington State Department of Archaeology and Historic Preservation. The Army Corps says the memorandum, obtained by EarthFix and KUOW under the Freedom of Information Act, would serve as a retroactive permit.
The Lummi Nation refused to sign the memorandum or accept the $94,500 that was offered as mitigation.
For now, the coal terminal backers are allowed to move ahead with the permitting process. But that doesn’t mean the larger questions have been resolved around how compatible a coal terminal is at a location where local Native Americans have lived for thousands of years.
The tribe and historical preservation officers with the state and federal governments have written to the Army Corps, objecting to its decision to limit the geographic area studied to determine the potential for damage to archeological resources at Cherry Point – another point of contention as the coal terminal review continues.
Coming Wednesday: Tribes assert that coal export terminals will violate their treaty rights to fish, and they may have the legal power to defend those rights.
Read more environmental coverage at earthfix.kuow.org.