BELLINGHAM - The Lummi Nation's position on the Gateway Pacific coal terminal seemed crystal clear in a July 30, 2013, letter to Col. Bruce Estok, district engineer for the U.S. Army Corps of Engineers in Seattle.
"The Lummi Nation has unconditional and unequivocal opposition to the proposed Gateway Pacific Terminal," says the letter, signed by Lummi Indian Business Council Chairman Tim Ballew.
Later, the letter states, "The Lummi Nation cannot see how the proposed projects could be developed in a manner that does not amount to significant impairment of the treaty fishing right and a negative effect on the Lummi way of life. Please recognize this letter as a clear statement of opposition to these projects from the Lummi Nation."
Tribal officials drafted the July 30 letter after they learned that the Army Corps did not believe the tribe had sent them a "formal response" with a clear statement of opposition to the coal terminal, proposed by international shipping giant SSA Marine at a site just south of the BP Cherry Point refinery.
In the past, Corps officials have said they make a practice of suspending action on pending permits when tribes with treaty fishing rights raise such objections. But that has not happened in Gateway Pacific's case - at least not yet.
Despite the letter, Muffy Walker, Army Corps of Engineers regulatory branch chief in Seattle, said the Corps still doesn't see Lummi Nation's position against the project as firm enough to stop her agency's review process. She said tribal officials are still discussing the project with the Corps.
"Lummi (Nation) has not stated that they have requested us to go to permit denial," Walker said. "They (Lummi Nation) are continuing to talk to us in a government-to-government consultation."
Asked what Lummi Nation could do to stop the permit process, Walker responded, "They could send us a letter saying, 'There are no more discussions, we can't come to any agreement.' We would decide from there which direction to go."
In past court rulings, Seattle federal judges have given the Corps some firm direction on tribes' treaty fishing rights.
In a key 1988 case, the Muckleshoot Indian Tribe went to court to challenge the Corps' decision to grant a permit for construction of a 1,200-boat marina in Elliott Bay. In granting the permit, the Corps had decided that although the project would eliminate a bit of the tribe's usual fishing area and cut the tribe's annual salmon harvest, those impacts would be minor.
U.S. District Court Judge Thomas Zilly upheld the tribe's challenge. He issued an injunction blocking the marina, ruling that the amount of damage to Muckleshoot treaty rights was irrelevant, and no amount of damage was acceptable under law.
"No case has been presented to this court holding that it is permissible to take a small portion of a tribal usual and accustomed fishing ground, as opposed to a large portion, without an act of Congress, or to permit limitation of access to a tribal fishing place for a purpose other than conservation," Zilly wrote.
In 1996, U.S. District Court Judge John Coughenour used similar language in a case involving Lummi Nation.
In that case, the Corps and the Indian tribe were on the same side. Northwest Sea Farms Inc. went to court to challenge a Corps decision to deny the company a permit for construction of salmon aquaculture pens off of Lummi Island. In deciding against the company, the Corps had found the project would interfere with Lummi fishing rights.