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Army Corps halts permitting process on contested coal export project

The U.S.Army Corps of Engineers announced that it has halted the permitting process forthe contested Gateway Pacific Terminal coal project in Washington in response toa challenge from the Lummi Nation regarding tribal rights. The Lummi argued thatthe terminal would affect fishing rights in waters protected under tribal agreements.

"Aftercareful consideration of all the information available to him, Seattle DistrictCommander Col. John Buck has determined the potential impacts to the Lummi Nation'susual and accustomed (U&A) fishing rights from the proposed Gateway PacificTerminal are greater than de minimis," the Corps wrote in a statement on May9.

Earlierthis year, project backer SSA Marineannounced that it hadsuspended an environmental review of the terminal until the Corps could reach afinal decision on the Lummi Nation's appeal to deny a project permit amid concernson the tribal group's fishing practices.

The postponementwas announced April 1 by the company, which owns 51% of the project. Constructionof the project was estimated to cost $700 million.

"Ihave thoroughly reviewed thousands of pages of submittals from the Lummi Nationand Pacific International Holdings," said Buck. "I have also reviewedmy staff's determination that the Gateway Pacific Terminal would have a greaterthan de minimis impact on the Lummi Nation's U&A rights, and I have determinedthe project is not permittable as currently proposed."

In acall with reporters shortly after the decision was announced, Buck said the decisionwas based largely on the construction of a trestle that was part of the terminalproposal, which proved to be enough to halt further consideration of the project.

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The colonelsaid the project could be considered again only if the Lummi were to drop theirchallenge to the terminal or the proposal was altered in such a way that it wouldno longer threaten a de minimis impact on the waters protected by tribal rights.

Lummi celebrates decision

In additionto local environmental groups, the Lummi Nation has emerged as one of the most vocalcritics of the proposed terminal.

Tim BallewII, chairman of the Lummi Indian Business Council called the Corps' decision a "historicvictory for treaty rights and the constitution."

"Itis a historic victory for the Lummi Nation and our entire region," Ballew said."We are pleased to see that the Corps has honored the treaty and the Constitutionby providing a decision that recognizes the terminal's impacts to our fishing rights.This decision is a win for the treaty and protects our sacred site. Our ancientones at Xwe'chieXen, Cherry Point, will rest protected."

Latelast year, representatives of the Lummi joined a number of other regional tribalsupporters in an appeal to the federal government to reject the permitting for theproject during a trip to Washington, D.C.

Someof those allies in the Lummi effort to halt the project joined Ballew in praisingthe Corps decision on May 9.

"Ourancestors sacrificed so much to protect these waters and our way of life,"said Melvin Sheldon Jr., chair of the Tulalip Tribes. "Thanks to them, thetreaty reserved our rights to harvest fish and shellfish and draw from the abundanceof the sea. The Tulalip Tribes applauds the Army Corps of Engineers for its decisionto deny the permit for the Gateway Pacific Terminal and protect treaty rights."

The GatewayPacific is one of a handfulof proposed coal export terminal projects facing growing resistance on the politicaland advocacy level in recent months. Proposed terminals and facility expansionshave encountered permitting and legal setbacks in Louisiana, California,Oregon and Vancouver,Canada. Further, weakened export demand has given opponents additional ammunitionin making a financialargument about supporting the new projects.

Political pushback on decision

Earlierthis year, Buck was the target of a call for a federal investigation by Rep. RyanZinke, R-Mont., who alleged that the commander had signaled that he would issuea de minimis ruling — effectively denying it — before the scheduled completion ofan environmental impact statement, calling the move "unprecedented."

The Corpsresponded that any finaldecision on the permit would not be as rushed as Zinke had suggested.

Zinkeand other political leaders in nearby coal-producing states have opponents of the terminal project,arguing that it limits the ability of producers in states such as Wyoming and Montanato reach the export market. Zinke continued his criticism of the opposition on May9, stating that the decision would have a significant impact on coal productionin Montana.

"TheGateway Pacific Terminal is incredibly important to Montana, the Crow, and evento the blue collar workers in Washington State because it is literally the gatewayto economic prosperity and rising out of poverty," said Zinke. "Furthermore,to kill a project before an Environmental Impact Study is completed sets a terribleprecedent — as an advocate of conservation, I fear for the future of our lands andresources. It's a sad day in America when even our Army Corps of Engineers can bewooed by special interests."

The CrowTribe has supported theexport project in support for the coal production it operates in Montana.

Zinke'soffice also cited comments from CloudPeak Energy Inc. challenging the Corps' decision.

"Weare very disappointed with the Army Corps' decision today," said Cloud PeakPresident and CEO Colin Marshall. "Supporters worked relentlessly to help standup to the anti-fossil fuel groups seeking to deny GPT a fair, timely permittingreview. GPT has been subjected to an unprecedented parallel process imposed by theCorps that served to pick winners and losers among Native American Tribes with differinginterests in the project. We are working closely with our partners, SSA Marine andthe Crow Tribe, as well as other stakeholders to review our options in light ofthe Corps' decision."

Bucksaid during the May 9 call that he was not aware if SSA Marine planned to pursuea further challenge to the decision.

"Weare very disappointed that the GPT project has become a political target ratherthan being addressed on the facts," said Bob Watters, an official with SSAMarine. "The terminal promises to deliver substantial benefits through economicdevelopment, the creation of family wage jobs and the generation of significanttaxes. The designs call for the terminal to operate at the highest levels of environmentalstewardship and meet all federal and state regulations."