SEATTLE -- A federal agency says a Puget Sound tribe has not made a convincing enough case to to halt the permitting process for the largest proposed coal export facility in the country.
The Army Corps of Engineers is overseeing the review of the Gateway Pacific Terminal, a train-to-ship coal facility proposed for construction near Bellingham. It said in a letter to the Lummi Nation that it would not halt the permitting process. Instead it asked for more detailed information about tribal fishing practices.
The Lummi Nation's tribal lands abut the site of the proposed coal terminal -- one of three proposed in the Northwest to move Montana and Wyoming Coal to Asian markets. In a letter the tribe argued the proposed Gateway Pacific Terminal and the hundreds of large coal ships it would draw each year would violate the fishing rights it secured in a treaty with the federal government.
The letter from the Corps' District Engineer Colonel John G. Buck was made public Wednesday. In it, Buck said the tribe needs to provide more information:
"While the information you provided supports historic and current fishing practices in the subject waters, we need detailed information for our administrative record on the Nation's specific use of project waters and how the facility's construction and operation would affect access to, and use of, these waters."
The letter goes on to give an example of information that would be useful, including "how sea cucumbers are harvested and how the proposed structure will impact the fishing practices."
A legal expert said it's not surprising the Corps would want more information before it makes a decision that's almost certain to be legally challenged.
"If they are at all thinking about denying the permit they need to build the administrative record, get that documentation, so they cannot later be sued by the industry for making an arbitrary and capricious determination here," said Sanne Knudsen, law professor at the University of Washington.
The Crow Nation Indian tribe in Montana supports the project because its reservation sits on a large coal reserve that could one day be exported through the Lummi's fishing area. The Gateway Pacific Terminal backers - SSA Marine and Pacific International Terminals - have been trying to convince the Lummi that it is possible to mitigate the potential impacts of the terminal on tribal fishing areas and sacred sites.
Skip Sahlin, vice president of Pacific International Terminals, sent a letter to the Lummi, detailing updates to the terminal's design: "The revised Terminal site plan that has been put forth reduces wetland impacts by 49 percent over the originally submitted project and ensures more than two-thirds of the property will remain undeveloped. The revised plan was also developed with the objective of avoiding to the extent possible impacts to cultural resources."
But the Lummi remain unconvinced. Tribal Chairman Timothy Ballew II responded to Sahlin's letter saying, "While we appreciate your desire to engage on these issues, we remain steadfastly opposed to this project and do not see the utility in pursuing any further discussion."
Because it's a sovereign nation, the Lummi has the potential to halt the project all together, as has happened in other instances.
“There is history of the Army Corps of Engineers denying a permit application based on impacts to usual and accustomed fishing areas,” said Patricia Graesser, a spokeswoman for the Corps, in a previous interview. “It is possible that we would halt that process.”
After a meeting between the Corps and Lummi on Wednesday, Lummi Chairman Timothy Ballew II said he sees signs that the government-to-government consultation is moving forward. He expressed confidence that Army Corps officials "will uphold their trust responsibility."
In Oregon, the state government stopped the permitting process last year for a coal-export dock on the Columbia River after tribes argued their treaty fishing rights would be violated.