Today, The Bellingham Herald has news that may be every bit as troublesome for coal exports as the EIS scoping bombshell that was dropped yesterday: the Lummi Nation is on the brink of formally opposing the Gateway Pacific coal terminal at Cherry Point, Washington.

If you’re a coal export junkie and want the details, go read the article.  But the main point is in the article’s lede paragraph:

Lummi Nation Natural Resources Director Merle Jefferson says the tribe is ready to send an official letter to the U.S. Army Corps of Engineers announcing its opposition to the Gateway Pacific Terminal project at Cherry Point – a move that could stop the federal permit process for the coal terminal dead in its tracks. [Emphasis added.]

Here’s a bit of background on the legal significance.

Just as a warning, I’m no expert on tribal history!  I’m sure that there are other, more comprehensives sources out there. So if anyone out there spots an error in what I have to say, please correct me in comments!

The Treaty of Point Elliott, signed in 1855 by representatives of the Lummi and 22 other Northwest tribes (ten of which are currently recognized by the US government), gave specific guarantees that tribes would maintain “the right of taking fish at usual and accustomed grounds and stations.”

Treaties are powerful legal instruments: they have the force of federal law, and can preempt inconsistent state laws. A 1974 court decision, largely upheld by the US Supreme Court in 1979, held that federal treaties gave many Washington tribes broad fishing rights.  That decision also also reaffirmed tribal rights to act as “comanagers” of the state’s salmon resources.

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  • In practice, this has given Washington tribes considerable latitude and authority in blocking projects that would harm their usual and accustomed fishing grounds. According to the Herald story, the Corps of Engineers staffers are very cognizant of tribal authority:

    “If the Lummis come to that position, it will make us reassess the direction we are going,” Walker said. “We have denied permits in the past, based on tribal concerns.”

    And while the Corps are very well aware of the Lummi’s concerns, they say they haven’t yet received a formal notice of tribal opposition to the project. Once they receive that formal notice, they may have to reevaluate the permitting process.

    In short, the legal ramifications of formal Lummi opposition to the Cherry Point terminal could be huge. I’ll leave it to legal experts to correct me, but this news may wind up being even more significant to Gateway Pacific’s prospects than the broad Environmental Impact Statement scope announced yesterday. After all, a federal EIS process requires a review of the environmental consequences of a permit, but doesn’t necessarily prevent a permit from being issued. Formal tribal opposition, on the other hand, could actually create a huge legal obstacle for the project.

    Stay tuned!