By Phuong Le Associated Press

SEATTLE (AP) – The U.S. Army Corps of Engineers on May 9 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 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 Gateway Pacific Terminal 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.

The Lummi Nation said 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 May 9 that they are considering all alternatives.

“This is an inconceivable decision,” Bob Watters, president of Pacific International Terminal, LLC, said in a statement.
“Looking at the set of facts in the administrative summary, it’s quite obvious this is a political decision and not fact based.”

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, about 100 miles north of Seattle.

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 effects. At a minimum, 122 acres of the tribe’s fishing grounds would be impacted.

Opponents had criticized the project over concerns about air and water pollution, coal dust, train traffic and carbon emissions from burning coal, while supporters touted good-paying jobs and tax revenue.

“We’re totally at a crossroad and the Northwest stood up and said we’re not going to allow this to happen in our own backyard,” said Beth Doglio, co-chair of Power Past Coal, a coalition of more than 100 groups opposed to coal exports.

She said continuing to build new fossil fuel infrastructure and helping coal be burned overseas while climate change is raging is not the direction the region should be headed.

Meanwhile, Montana U.S. Rep. Ryan Zinke and the Alliance for Northwest Jobs and Exports, a trade group, criticized the Corps for issuing a decision before the environmental analysis was complete.

Zinke said in a statement the project 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.”

The Crow Nation of Montana has an option for ownership in the new terminal.

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.

“Quite possibly there’s a long road ahead of us, but our priority is always to protect Cherry Point,” Ballew added.

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