Have you seen the large, white mountain that suddenly appeared at the Cornwall Avenue Landfill? The site is adjacent to Bellingham Bay at the end of Cornwall Avenue, and the mountain can be viewed from the northern end of Boulevard Park, or along the South Bay trail and Boulevard Street.
The mountain consists of two large piles of dioxin-contaminated sediment dredged from Squalicum Harbor. It is covered with a white plastic sheet held in place with sandbags. The city and port, as co-owners of the landfill, obtained approval from the Washington State Department of Ecology (DOE) to dump this material at the landfill. The public was never advised that the sediment contained dioxin.
This was done as an “interim action” under the Washington Model Toxic Control Act (MTCA) to promote the “beneficial re-use” of solid waste. How a hazardous substance became part of an alleged clean-up action for a waterfront remediation site is an interesting story, and one that the media has failed to report. This story needs to be told because the city, now sole owner of the property, is proceeding with plans for waterfront redevelopment and these plans include recreational, residential and commercial development on top of the contaminated soil.
Why Was the Dioxin Mountain Created?
The dioxin mountain was never part of the original plans for the waterfront. Bellingham Bay is polluted with dioxin from industrial sites that existed along the waterfront. While the port regularly dredges Squalicum Harbor to maintain navigability, it always had access to affordable open water disposal sites in Bellingham Bay and Rosario Strait. When the port and city began jointly planning for waterfront redevelopment, it was assumed that access to open water disposal sites would continue.
All of that changed in 2010, when the U.S. Army Corps of Engineers updated its standards for open water disposal of dioxin-contaminated sediment in Puget Sound (over rigorous objections by the ports of Washington). The port needed to dredge 40,000 cubic yards of sediment at Gate 3 of Squalicum Outer Harbor. Tests from 2007 and 2010 indicated that dioxin levels exceeded the new standards. The port was required to use an upland disposal site, an extremely costly alternative to open water disposal. In the context of the waterfront redevelopment, the new disposal standards could cost the port and city millions of dollars.
The port looked for ways to reduce sediment disposal costs for the Gate 3 project, and found one through a proposed “interim action” for the Cornwall Avenue Landfill. The city concurred. The landfill is one of 12 contaminated waterfront sites targeted for remediation under the Washington Model Toxic Control Act (MTCA), as well as the site for some of the earliest proposed waterfront development.
An interim action is a temporary or partial clean-up of an MTCA site, and is intended to improve site conditions before a full clean-up is achieved. Unfortunately, the interim action has been misused by municipalities seeking to delay or reduce remediation costs. An interim action is also exempt from normal procedural requirements under state and local environmental laws, making it easier to avoid public transparency.
The port’s proposal consisted of a $1.5 million dollar “temporary” stormwater plan for the Cornwall Avenue Landfill. The landfill contains a layer of soil on top of hazardous refuse. The port claimed that stormwater run-off at the site infiltrated soil, landfill and groundwater, discharging toxins into Bellingham Bay. It proposed dumping Gate 3 dredged sediment at the landfill as a cap to reduce stormwater infiltration until a final clean-up planned is approved.
How Hazardous Is Dioxin?
There is reason to be concerned about a waterfront mountain of dioxin. Dioxins are a dangerous class of chemical contaminants formed during industrial processes, including paper pulp bleaching, manufacture of herbicides and pesticides, and production of chlorinated plastics. They are also formed during combustion processes, including waste incineration, forest fires, and burning yard trash.
In 2011, the EPA issued a Toxicity Release Inventory indicating that from 2009 to 2010, air releases of dioxin rose 10 percent and total releases, such as landfill disposal, increased 18 percent. There is no safe, practical method of disposing of the dioxin that has accumulated in the environment, although several new technologies have been successful on a small scale and hold promise for the future.
Dioxin! An interview with Dr. Linda Burnbaum, Director of the National Institute of Environmental Health Sciences (former Director of U.S. Environmental Protection Agency’s Environmental Toxicology)
Dioxin creates significant health risks because it is resistant to degradation and it remains in the environment for long periods of time, with particularly high concentrations in sediment and soil. Dioxin is fat-soluble, rather than water-soluble. As a result, it tends to accumulate in the tissue of living organisms, a process known as bioaccumulation. The concentration of dioxin increases as one moves up the food chain, a process known as biomagnification. Most human exposure to dioxin is from diet, particularly consumption of meat, dairy and fish. Virtually all Americans have dioxin in their blood and the amount of dioxin in our bodies increases as we age.
It is important to avoid any additional exposure to dioxin because no amount of dioxin is safe. Dioxin exposure creates a higher risk of cancer than any other man-made chemical. Dioxin is a powerful hormone-disrupting chemical. It binds to a cell’s hormone receptor, changing the cell’s function and causing a wide range of harmful effects, from cancers and reduced immune system function to nervous system disorders, miscarriages and birth deformity. The effects of dioxin can be passed along from parent to child.
At the same time, U.S. standards for dioxin exposure are outdated and insufficiently protective. The federal Environmental Protection Agency (EPA) needs to issue an updated dioxin assessment before standards can be revised. So far, the public has been waiting more than 25 years. Hopes that the assessment would finally be issued last year were dashed. Political pressure from lobbyists representing the farm, food, chemical and manufacturing industries has politicized the process and prevented issuance of an updated dioxin assessment. Because Washington state’s dioxin standards are connected to EPA assessment information, they are also outdated. The resulting situation is rather scary.
Dioxin is ubiquitous in our environment, there is no way to avoid exposure, and there is no known level that is safe.
Our only option is to make choices that limit the degree to which we are exposed, but this will be more difficult if the city is successful in redeveloping part of the waterfront on top of dioxin-contaminated soil.
It’s All About Money
The interim action at the Cornwall Avenue Landfill provided the port and the city with a financial windfall, suggesting that it was driven by economic incentive. The port obtained an inexpensive upland disposal site for its dredged sediment, and because it was part of an MTCA remediation project, the state paid half the cost from a dedicated state fund. The interim action provided the city with sediment needed for future development, including a waterfront park, shoreline trails, and residential and commercial buildings. Purchase and transport of clean sediment is expensive, with estimates running as high as $1 million dollars.
Moreover, the Cornwall Avenue Landfill is the landing site for a new $8 million dollar overwater walkway connecting Boulevard Park to downtown. The city is under grant deadline pressure to develop the walkway as expeditiously as possible and the interim action provided the opportunity. The landfill is regulated under the Whatcom Waterway 2007 Consent Decree and Clean-up Action Plan (the “Consent Decree”), a legal contract filed in court by the port, the city and DOE. The interim action required formal amendment to the Consent Decree. As initially drafted, the Consent Decree failed to mention the overwater walkway. The city ensured that the Amended Decree contained a provision authorizing development of the overwater walkway before completion of site clean-up.
Flawed Public Process
The interim action triggered two separate public notice and comment periods and, during each one, important health and safety information was withheld. Of course, by this point, the entire proposal was already a done deal. The port, the city and DOE discussed, reviewed and revised the interim agreement for seven months prior to commencement of the public processes. Plans were so firm that the starting date for interim action construction was determined before the starting dates for the public comment periods.
The port was responsible for public notice as part of the SEPA (State Environmental Policy Act) process. It issued a “Determination of Mitigated Non-Significance” for the Cornwall Avenue Landfill proposal. The SEPA public notice failed to disclose that the dredged sediment was contaminated with dioxin. The Washington State Supreme Court views SEPA as an environmental full disclosure law. The port and city, apparently, do not.
DOE was responsible for public notice under the Washington Model Toxic Control Act (MTCA).
It failed to mention dioxin in documents specifically drafted for public notice, such as a press release and a PowerPoint presentation. Neither was the information contained in the DOE Site Register, which, under the MTCA, is required to be issued bi-weekly to advise the public, in non-technical language, about the status of MTCA remediation sites. DOE had actually stopped issuing the Site Register for budget reasons, until it was pointed out during public comment that this was a statutory violation.
And another important fact was withheld: the dredged sediment exceeded more than the standard for open water disposal. It exceeded the MTCA clean-up standard for unrestricted land use, in some places by double the permitted level. Contaminated soil was dumped at the landfill through an interim action loophole. However, to include the interim action in the final site clean-up plan, (which has always been the intention), the city will need DOE’s approval to reduce the MTCA clean-up level for unrestricted land use (i.e., residential, commercial and recreational) to the restricted land use standard applicable for industrial operations.
A reduced clean-up standard would increase permitted dioxin soil contamination from 11 parts per trillion to 1500 parts per trillion. This is a 100 fold increase in carcinogenic exposure, one of the highest exposure rates in the nation. The port and city privately discussed this matter with, and obtained favorable response from, DOE staff. Although this is a matter of public concern, you will not find this issue discussed in any official record.
DOE defends its compliance with MTCA public notice requirements by noting that dioxin is discussed in “Section 3.3 and Table 1 of Exhibit A of the Amendment (to the Whatcom Waterway 2007 Consent Decree and Clean-up Action Plan).” In other words, DOE does not believe it had an obligation to specifically inform the public that the proposed interim action involved dioxin exceeding permissible exposure levels for planned use. Rather, the burden is on the public to review the amendments to the underlying legal contract governing an MTCA site. This is a complex and lengthy document that is not readily comprehensible without a technical and/or legal background.
The port, the city and DOE are hiding important information, often in plain sight. They are aware of the controversy that can be generated by proposals to reuse dioxin-contaminated material. The public opposition is sometimes strong enough to prevent a proposal from moving forward. This author believes that the three entities acted purposefully to minimize the risk of public opposition to the proposed interim action at the Cornwall Avenue Landfill.
Problems Plague Interim Action Plan
The interim action has been completed. The port, with city concurrence, dredged Gate 3 and transferred the sediment to its Laurel Street property for “dewatering.” The contaminated soil was amended with Portland cement, a process that is referred to as “stabilization.” This technique is used primarily to strengthen the end product. Stabilization may slow down the mobilization of dioxin into the environment, but it does not prevent it (no field studies exist.) And while stabilization might not be the newest and most effective technology, it is the simplest and the least expensive.
To protect the public and the environment from dioxin contamination, the port and city are primarily relying upon the use of a white plastic sheet, held in place with sandbags, as currently visible from the site. Because the public was not advised that the soil contained dioxin, the only objections were from local environmental organizations such as Resources, Sierra Club and People for Puget Sound, and a few informed citizens.
Problems were encountered from the very beginning of the interim action, suggesting inadequate planning and design. The port struggled with achieving the appropriate consistency during the soil-amendment process. As reported by the port’s consultant:
Initially, it was anticipated that the stabilized sediment would be placed and compacted directly after transport to the Cornwall site. The port and Ecology subsequently decided that the material would need to be stockpiled under cover for several years, and that it would need to maintain a soil-like consistency until it was regraded and placed as compacted fill as part of the final cleanup action.
Additional problems were encountered during site preparation. The port’s construction plans incorporated the use of cover soil at the site without a sufficient understanding of soil integrity. According to the construction report, as the port was preparing the site, the “upper portion of subgrade soil deteriorated rapidly under equipment traffic.” This was blamed on the wet weather. The port needed to import additional aggregate material to stabilize the site and replace the cover soil; the construction report indicated that “a significant amount of imported granular fill was used to complete construction….” The interim action was supposed to recycle existing material. Instead, it required a significant amount of new material, and generated waste from unusable cover soil that was deposited in a spoils stockpile.
The port also miscalculated the amount and the depth of soil on site. It believed that two to four feet of soil covered hazardous landfill waste. The interim plans relied upon the first foot of site cover soil to build a berm, construct roads and dig a large ditch. However, excavation of the soil unearthed hazardous landfill refuse, exposing it to rain, and increasing opportunity for environmental release of dangerous toxins. The landfill refuse needed to be excavated and stockpiled for offsite disposal at an approved upland facility. In sum, the interim action excavated the hazardous waste that it was intended to cover and protect.
Additionally, the Cornwall Avenue Landfill is unstable land located within a seismic hazard area. It is subject to erosion, liquefaction, and other factors that indicate a very high response to seismic shaking. Rather than finding a more suitable location to deposit dioxin-contaminated waste, the port issued a report indicating that the interim action would not increase the seismic hazard that already existed. Later, when analyzing the pathways for dioxin mobility into the environment, the port ignored the issue of earthquakes.
Beneficial Reuse Provisions
The real question is why this was permitted to happen. Aside from the fact that important information was withheld from the public, and that the media did little more than to disseminate the same press releases issued by the port, Washington has a beneficial reuse policy that encourages recycling of solid waste.
Under WAC 175-350-200, a solid waste can be recycled as a product or used as an ingredient in a manufacturing process as long as it does not pose a threat to human health or the environment. This policy responds to the disposal problems created by past and current generation of waste. Many designated waste disposal sites have reached capacity and are closed, and many others are nearing capacity. This is a pressing problem for the nation’s ports, which must protect navigation through constant dredging.
According to DOE, they have no official policy regarding the beneficial reuse of dioxin and rely instead on local and other regulations, but the proposal presented by the city and port relied heavily on DOE’s MTCA rules and seemingly violated beneficial use provisions.
The interim action was primarily motivated by an attempt to avoid expensive upland disposal and was of questionable necessity. It likely resulted in environmental harm and created unnecessary cost and waste. It was contingent on crucial design and monitoring plans that were not adequately established, including prevention of dioxins from leaching into groundwater, proper capping of sediment and the ensuring of cap integrity through institutional controls.
Under normal procedures, beneficial reuse requests go through a formal determination process that includes public comment. In this case, the port exploited an MTCA provision that exempts interim actions from the procedural requirements of state law. Therefore, a beneficial reuse determination was not required. Although the port was not excused from the substantive provisions of the beneficial reuse laws, there was no public transparency and the weight of the evidence suggests that DOE failed to provide proper enforcement and oversight of the project.
What Now?
The dioxin contaminated soil will remain at the Cornwall Avenue Landfill, under its protective sheet of plastic, until the city and DOE move forward with a final clean-up plan. The city, now sole owner of the landfill, intends to incorporate the contaminated soil into the final plan, possibly by requesting a reduced clean-up standard. This would require on-site containment of the dioxin. However, the interim action was not designed to contain hazardous waste, and a plastic sheet and sandbags are not a permanent solution.
The public will be given an opportunity to comment on final clean-up plans, and can request that the dioxin mountain be removed, or that site design be upgraded for adequate containment. This assumes, of course, that the public is advised that dioxin exists under that white waterfront mountain. In the meanwhile, it would be prudent for the public to keep a sharp eye on other waterfront redevelopment plans.
References
• Some information was obtained from public record requests and email correspondence with staff from the city of Bellingham, the Port of Bellingham and the Washington State Department of Ecology.
• Information was obtained from the Model Toxics Control Act website maintained by the state Department of Ecology
— Cornwall Avenue Landfill at https://fortress.wa.gov/ecy/gsp/Sitepage.aspx?csid=220 and the
— Whatcom Waterway at https://fortress.wa.gov/ecy/gsp/Sitepage.aspx?csid=219.
• This includes the Cornwall Avenue Landfill Interim Action Plan, the Interim Action Completion Report, First Amendment to Consent Decree Re: Whatcom Waterway Site and First Amendment to Agreed Order No. 1778. Of particular interest is the Cornwall Landfill Responsiveness Summary, dated 8/25/2011, reflecting public comments and Department of Ecology’s responses.
The Search for Integrity in the Conflict Over Cherry Point as a Coal Export Terminal
Today a statue of George Washington and Seneca leader Guyasuta, a guide to Washington and his party in 1753, overlooks Pittsburgh. Composite photo created by Lummi Nation Sovereignty and Treaty Protection Office.
by Jewell Praying Wolf James, Lummi Indian Tribe
“The whites got together and talked until it made my heart feel dead … I saw the Great Father [the president] again and told him that I would not let the cattle, or the Railroad, pass over my land. Finally the Great Father told us that they wanted the land … and that if we did not give it up it might be bad for us, that they might put us in some other place.” (Pretty Eagle, Crow Nation, 1880)
Introduction
We are living in a fast-paced society and rarely take the time to reflect upon the truths behind the laws that govern us. We are, one and all, proud to be law-abiding citizens. We operate under the assumption that the law is just, reasonable, and fair, and that no person stands above it. But how many people understand — or have even been introduced to — the important role Native Americans played in the governance of the American Nation?
I hope through the medium of history to give voice to a silenced history. In this article we will move through time, from first contact between European-Americans and the indigenous peoples of the Western Hemisphere, in 1492, to the present conflict over Cherry Point. Along the way, I hope to inform the reader about some of the laws, political realities, and administrative procedures that benefit corporate interests more favorably than either tribal rights or the greater public good. Just as important, I hope to show how the general public can influence the final outcome of this search for integrity.
Key Events in United States — Native American Relations
1823 Johnson v. M’Intosh – first claim of discovery ruling
1832 Cherokee v. Georgia – ruling that Indians are like wards to the guardian
1855 Point Elliot Treaty defines agreement between US government and Pacific northwest Tribes
1859 Point Elliot Treaty proclaimed law of the land
1872 President Grant shrinks Lummi reservation land by Executive Order
1883 Religious Crimes Code bans religious freedom for Native Americans (unless Christian)
1923 Circular 1665 – banned Native American ceremonial dancing
1950 Last termination era – residential schools, forced relocations, extermination of tribalism
1955 Tee-Hit-Ton termination era case – all Indians declared to have been conquered
1970 Lummi refuse $58,000 offer for San Juan Islands and mainland Lummi home areas
1974 Boldt decision – reestablishes Native American treaty claims
1978 American Indian Religious Freedom Act allows aboriginal ceremonies
1979 Lummi tribe closes commercial herring fishery for conservation purposes
1979 Supreme Court ruling on Boldt decision reaffirms rights to treaty fisheries
1988 Supreme Court strikes down American Indian Religious Freedom Act
2011 Pacific International Terminals illegally bulldozes and drills on GPT land
Part I
From Natural Law to National Law: The Growing Point
Over two hundred years ago, during the colonial period, Native Americans, in accordance with their sacred vision, pressed upon the Founding Fathers to unite the colonies and hold leadership accountable to the people they represented. The First Americans were important role-models for the development of the Constitution (1787-89). In 1987-89, the United States Congress, in Senate Concurrent Resolution 76 and House Concurrent Resolution 331, proclaimed that the Iroquois and Choctaws Confederacies were role-models for the Constitution. Students are rarely taught this history. Most Americans do not know that the Sons of Liberty worked closely with the Iroquois and Mohawks to learn how to be “First Americans” and to stand up united for their inherent rights of liberty and freedom, as one people that shall choose their leadership and hold them accountable. But to understand the full significance of this, we must first look back to the original foundation of the tribes’ relationships with the United States.1
Fray Bartolomé de Las Casas
We need to return to the time of Columbus and the life and work of Fray Bartolomé de Las Casas. In 1502, at the age of 18, this young man, whose family was known to Columbus, disembarked with Governor Ovando to the island of Hispaniola (now Haiti and the Dominican Republic). He was on the first two military missions aimed at pacifying those Natives who remained on the island. In the end, and in short order, the brutality he witnessed in the treatment of the Native peoples inspired him to renounce his family’s holdings on the island and begin his life-long campaign to protect the Indians.
In 1550, at the request of Charles V of Spain, Las Casas debated his fellow Dominican Priest Juan Ginés de Sepúlveda. Sepúlveda argued that the Indians were “natural slaves” (an Aristotelian concept that posited that there are people who by their nature or lack of rational capacities are born to be ruled by others) and that it was therefore legitimate to reduce them to slavery or serfdom. In his frustration, Las Casas stated that it would be better to enslave the blacks of Africa than to enslave the Indians. He lived to regret this outburst as the African slave trade rapidly expanded into the Americas.
Las Casas claimed the Indians had a right to be self-determining and self-governing, and should not be conquered, enslaved, or have their property taken from them. He forcefully and persuasively argued the actions of the conquistadores were criminal and in violation of the laws of Christian Nations. Sepúlveda maintained that the “savage, heathen” Indians were best described as “like women are to men, like apes are to humans, like children are to adults.”2 Two hundred and fifty years later, in the nascent United States, Supreme Court Chief Justice John Marshall ruled in Cherokee v. Georgia (1832) that the Indians “were like wards to the guardian.”3 He made Sepúlveda’s argument a principle of national law. The barbaric enslavement of Africans and the eventual shipment of 3.9 million human beings from Africa to the Americas were also justified, in part, on the basis of this presumed natural law. These are two sad and salient examples of how narrow, convergent, and self-serving theological, political, and economic interests translated into jural-legal orthodoxy and national laws moved from “discovery” into colonization. Ultimately, manifest destiny became the accompanying narrative to the formation of the United States.
The Daisy Chain of Legal Fictions
In Johnson v. M’Intosh, Supreme Court Chief Justice Marshall in 1823 gave birth to legal recognition of the “Discovery Doctrine” as a cornerstone to United States law. It proclaimed that “the first Christian Nation” to discover a territory, occupied or not, had superior right to it over and above other subsequent Christian nations making the same claim of discovery.4 It was a rule honored between nations to lessen the likelihood of war. It also proclaimed that the Indians had only the right of occupancy, not ownership, of their territory. This court decision gave birth to the next legal fiction: that the United States had conquered all the tribes they had encountered. The fiction of conquest extended west of the Mississippi and Missouri Rivers and applied to tribal peoples who knew little or nothing about the United States. In 1955, this served as a precedent for yet another legal fiction in the Termination-Era case of Tee-Hit-Ton. In this case the Supreme Court justices, by adding their signatures to the opinion, ruled as conquered all the Indian Nations.5 Here you see the daisy chain of the legal fictions passing as truth and imposed on tribal peoples who had helped form—and have often fought and died for—the United States.
The presumption was that Indians were wards, despite the fact that the United States was negotiating (in ‘good faith’) treaties with the sovereign tribes to avoid wars the United States could not afford in either blood or treasure. This mythology grew in subsequent Supreme Court decisions. What is not well known is that Chief Justice Marshall had a conflicting vested interest in a land speculation company that sought to secure illegal title to Indian lands in the Northwest Territory (Ohio at the time). His ruling legitimized, solidified and protected his investment. He would later regret this decision, but the damage was done: it was too late to reverse his decision. He died before he had an opportunity to argue for the reversal of M’Intosh or for at least a narrowing of its legal significance.6
Into the Far West
It is all too common for history books to valorize American manifest destiny. It is taught to school children to narrate American exceptionalism and the greatness of popular governance. It is used to signify the idea of unfettered freedom of conscience and person, free trade, the egalitarian spirit, and mobility. This narrative fueled and justified the arrogance of those who were sent out by the President to negotiate treaties with the Indian Tribes as the United States expanded to the west.
The painting American Progress by John Gast (1872), an allegory of Manifest Destiny advancing the American settlers by horseback, train, covered wagon, and stagecoach across the prairies as Native Americans and animals flee. Credit: Picturing U.S. History.
The negotiators came west of the Mississippi and Missouri Rivers into the Louisiana Territory, through the Great Plains, into the Far West and Northwest (Washington and Oregon Territories). They were borne by the conviction that the United States was destined to rule a “savage” continent. As Anthony Pagden described it, as the Euro-American vision of the world moved westward across North America, “so it moved also inexorably backwards.”7 This perception and conception was reflected in the debates of the 18th and 19th centuries when America was viewed as a continent in an “arrested state of development.” 8 In this frame of mind, the President’s men would unfairly, and with only a semblance of honesty and good faith, negotiate treaties with the tribes. Although the Courts recognize that the treaty negotiations were not often honorable, they have avoided review of the treaty proceedings and upheld treaties as a matter of principle, as the ‘Supreme Law of the Land’ under the Constitution.
Making Treaties, Breaking Promises
The treaties in the Northwest Territories were negotiated by Joel Palmer in Oregon Territory and Isaac Stevens in Washington Territory. These treaties covered the modern-day states of Washington, Oregon, Idaho, and Montana. The Treaty with the Omaha Indians was used as a template to structure the treaties in these territories, including the Point Elliot Treaty of 1855, which was ratified by the Senate and Proclaimed by the President in 1859 and became the “supreme law of the land” (Art. VI). These treaties were legal and political instruments that were used to permanently locate the Indians on reservations. They were one important part of the colonialization era of the American Indian (1850-1871).
Under the terms of the treaties, Native peoples, under extreme duress, ceded to the United States certain rights with the understanding that anything not given was reserved to them. This reserved rights doctrine is not an alien concept in the American experience. It was incorporated in the Constitution of the United States for the protection of the citizen and states (Articles 10 and 11 of the Bill of Rights). The problem is that the United States, and Washington state, took the rights of the treaty without honoring the commitments made to the Indians. The Indians were ordered to stay on the reservation as the settlers expanded into their aboriginal territories and secured titles to the lands — lands that were never purchased or paid for by the United States.
The Lummi were the first reef-net fishermen in the Pacific Northwest. This technology was spread amongst the tribes around the Salish Sea but was invented by the Lummi. It was introduced into other tribal communities by way of intermarriage between the tribal groups. The technology reflected the sacred balance between the male and female genders. It was a part of the duality, and of the sacredness of creation and sustainability. Those men that operated the reef nets had a duty to themselves and their families; but, in exchange for the sacred right to fish, they had to assure that every widow, woman, and child that did not have someone to care for them received enough salmon annually to sustain them. They did this in recognition that they only had a right to harvest if they respected the salmon as a gift to all the people. This is why the First Salmon Ceremony was so important to the Coast Salish Nations.
Lummi Reef Net Demonstration (ca. 1890). Photo: Lummi Nation Archive.
Throughout the San Juan Islands, as the salmon migrated into the Straits of Juan de Fuca, through the San Juan Islands, and back to the river systems, including the Fraser River, the tribal people practiced the First Salmon Ceremony. This ceremony was essential to harvesting any of the salmon runs. The salmon were the Children of Salmon Woman. Her children were a gift to us. We were obligated to honor their return. As the salmon passed through our fishing territory the First Salmon Ceremony was conducted, each in its turn. This process connected Cherry Point to all the other sites before and up to Point Roberts, into the Fraser River, in the ceremonial cycle. The people buried at Cherry Point were ancestral reef net fishermen who kept these ceremonies alive for each generation after them.
Lummi Reef Net Anchor. Photo: Lummi Nation Sovereignty and Treaty Protection Office.
In the case of the territory of the Lummi Indians, the United States offered to pay $58,000 in the early 1970s for the San Juan Islands and mainland homeland areas in Whatcom County. When the Lummi refused this offer the Bureau of Indian Affairs (BIA), as the tribe’s “guardian,” accepted the money on behalf of the tribe (their “wards”) and placed it in the U.S. Treasury. The BIA argued with the Lummi, saying the tribe could use this money to build a school, a hospital, or homes for their people. The Lummi response was to order the BIA off the reservation. After their unceremonious departure, the BIA made it clear that they would hold the money until the tribe “came to its senses.”
At the time of this “offer” the United States was still in the fever of the Termination era, conveniently terminating treaty duties and responsibilities owed to the tribes. During this most recent cycle of termination, which began in the early 1950s, the United States (through overt actions as well as subterfuge) sought to disband all tribes and exterminate tribalism. The BIA was busy relocating the individual Indians as well as whole families into major metropolitan areas to break apart their kinship ties and separate them from their collective tradition of tribalism.9 Adding insult to injury, the BIA was shamelessly paternalistic and accepted offers by non-Indians to buy Lummi land. The ultimate goal of the BIA, an agent and agency of the United States, was to make our exile permanent. Though they are the Bureau of Indian Affairs, their allegiance is first and foremost to the federal government, not the tribes. In other words, the United States attempted to pay itself to gain control of our lands. This action was as corrupt and unconscionable as the perverse application of the Discovery Doctrine in the M’Intosh decision and the twisted principle of wardship in the Cherokee ruling.
The Way Back to Xwe’chi’eXen (Cherry Point)
Around the time of the signing of the Treaty of Point Elliott, the Chief of the Lummi, Chow-it-soot, made clear his concerns about what is now known as Cherry Point. He reminded his people that this was one of their most important and ancient village sites. The Chief was adamant that this site was — and must remain — the northwest corner of the reservation. He reminded his people that it had been unlawfully taken from the Lummi and that the Lummi must get it back. Since that time, all of the Lummi Chiefs have directed Lummi leadership to get Cherry Point back into Lummi ownership and ensure its protection. It is, in the words of our current Hereditary Chief, Tsilixw (Bill James), the “home of the Ancient ones.” Its integrity must at all costs be respected and protected with its burial areas and ancient grave sites.
The relevant territorial and federal records have been buried deep in the federal archives to prevent the Lummi from re-acquiring this part of the original reservation. This story goes back to the white squatters along our eastern and northeastern reservation boundaries. We demanded the federal government remove the squatters from our reserved lands. Instead the government-appointed Farmer-in-Charge (a non-Indian married to a Lummi woman), asked the Commissioner of Indian Affairs to change the boundary to protect the squatters. President Grant, of course, complied with the request and unilaterally changed our boundaries in 1872 by a Presidential Executive Order. This Executive Order contravened federal law for only Congress can change the boundaries of an established treaty Indian reservation.
The aboriginal territory of the Lummi Nation which included the San Juan Islands, Cherry Point, and other coastal lands up to Point Roberts. The current Tribal lands are marked in red on the map, including a small property on Orcas Island at Madrona Point. Credit: Ann Nugent, History of Lummi Legal Action Against the United States (Bellingham: Lummi Historical Publications, 1980), 35.
These alienated reservation lands have never been returned to the Lummi people. We were required to move to and stay on the reservation once the treaty was ratified. Over time, significant portions of our reservation lands were sold to white buyers by the BIA despite the fact that the sales violated the treaties. Nor did the Lummi receive compensation for the sale of these reservation lands. These lands are neither lost to us nor forgotten.10
Part II
Introduction
Deforestation of the United States since 1620 is almost complete. Even in 1920, very little virgin forest remained. Photo: O Ecotextiles.
Following the signing of the treaty, our people watched as the aboriginal forests were cut down, the salmon were fished to near extinction, the rivers and streams were drained for agriculture and municipal needs, or dammed, and the animals were slaughtered by recreational hunters. Our sacred sites and cemeteries were desecrated, with our sacred artifacts and ancestral remains going to collectors or to universities for storage and study. We were not allowed to leave the reservation to fish, hunt or gather under the threat of prosecution by state or federal authorities. All during this time, the federal government, our “Trustee,” refused to protect our treaty rights against the State and its enforcers. Looking over this history, up to the present day, we ask the readers to stand with us and ask:
What About Those Promises…
…about Acting in a Moral and Ethical Manner…
The venality of the Department of War, which oversaw the BIA, stealthily taking back everything promised and allocated by Congress and the President to the Indians from 1789 to 1849, is well known to history. It was also apparent to Congress, which transferred Indian Affairs to the Department of the Interior. Sadly, but not surprisingly, they merely continued this practice from 1849 to 1872. In utter frustration, President Grant gave de facto jurisdiction over Indian Affairs to the churches believing they would act in a moral and ethical manner. This would usher in the shameful era of Boarding Schools, yet another growing point for transgenerational trauma still evident in tribal communities today.
The missionaries sent to live among the Native American communities were horrified by our traditional cultural practices and ceremonies they believed to be pagan in nature, immoral, and counter to government assimilation policies. The Religious Crimes Code of 1883 gave agency superintendents authority to use force or imprisonment to stop these religious and ceremonial practices. This religious persecution continued under Commissioner of Indian Affairs Charles Burke. In 1923 Commissioner Burke implemented the now infamous Circular 1665 that expanded upon the Religious Crimes Code and banned all forms of Native American ceremonial dancing.11
This institutional racism continued through the era of the civil rights movement. In 1988 the Supreme Court struck down the American Indian Religious Freedom Act of 1978, an Act uniformly opposed by many of the Nation’s leading extraction industries — particularly the coal industry. The court concluded that the act was bad law and bad policy. Prior to this decision Native Americans were arrested for having eagle feathers in their regalia, arrested for their spiritual practices, were largely powerless in congress or the courts to prevent the destruction of ceremonial sites and areas, and were even prevented from having spiritual ceremonies in federal prisons. Also, they could not have peyote as their sacrament in the Native American Church, even though this ceremony dates back to 8000 B.C. In addition, tribes did not have the legal right to recover the bodies of their ancestors for reburial. In the 1990s, after intensive lobbying by the tribes, the legal rights of recovery and reburial were returned to the tribes under federal law.12
…about our Fishing Rights…
The state of Washington had been attempting to restrict fishing by tribes since 1889, the first year of statehood. When the state issued permits for non-Indian fish traps in the early-1900s, the Indians were driven from their fishing grounds by non-Indian interceptions of the salmon runs. If any Indians had a choice location for a fish trap, they were driven out by force of arms and left unprotected by state law. Washington enacted laws to restrict Indian fishing to within reservation boundaries. Decades later, the U.S. government finally intervened and helped the tribes sue the state of Washington, contending that the state could not regulate the fishing practices of Indians who signed treaties with the U.S. government; that it was the tribes who had been forced to cede their right to fish to non-Indian settlers, not the other way around. This was the U.S. v. Washington (“Boldt”) decision of 1974.
Five generations after the signing of the treaty, the 1979 Supreme Court’s ruling on the Boldt decision (Washington v. Washington State Commercial Passenger Fishing Vessel Association) reaffirmed tribes’ right to have their treaty fisheries, with up to 50 percent of what is referred to as the harvestable shares. However, by the mid-1970s the salmon stocks had been seriously depleted by the state licensed non-Indian fishing fleet. Some stocks collapsed to the point that they had to be listed under the Endangered Species Act.
An aerial map of Xwe’chi’eXen (Cherry Point). Credit: Google Maps.
In 1979, the Supreme Court decision also affirmed that the fishing tribes had the right to have the salmon habitat protected. The Court reasonably ruled that Indians had a treaty right not only to their share of the fish stocks, but also a right to dip their nets into the waters and not come up empty. This was, as feared by the state and corporations, the Indian veto power over future industrial development that might impact critical habitat of the salmon and other fish stocks.
On March 29, 2013, in accordance with the 1979 decision, District Court Judge Ricardo S. Martinez ordered the state to fix approximately 180 culverts on recreational lands by 2016 and 813 culverts under the Department of Transportation by 2030. In his ruling, Judge Martinez said the tribes have been harmed economically, socially, educationally, and culturally because of reduced salmon harvests caused by state barriers that prevent fish passage. He ruled that the state has the financial ability to accelerate the pace of its repairs over the next several years.
In 1979 the Lummi tribe, on its own initiative, sought closure for conservation purposes of the state and tribal commercial herring fishery that extended from the Lummi reservation, past Cherry Point to the Canadian border. The Cherry Point shoreline was a primary herring spawning habitat. The lucrative annual herring fishery was worth about $3 million per year to our treaty fishermen. This closure is still in effect 34 years later. Lummi tribal members have sacrificed over $100 million over that time in lost fishing income. This lost income represents our investment in restoration of the future resident herring population. In addition, the immediate area is good for crab fisheries and other stocks. We understand, honor and respect what needs to be done, and have sometimes sacrificed, to be true stewards of these resources. We consider it our sacred obligation or Xa Xalh Xechnging in our language. Unfortunately, at Cherry Point and elsewhere in the Salish Sea bioregion, this sacred obligation is seldom respected in any meaningful way by either the governments or by commercial and industrial interests. In a sense, Xwe’chi’eXen (Cherry Point) represents a challenge that is faced every day by each one of the American Indian tribes and Canadian First Nation Bands in Salish territory.13
The Lummi have usual and accustomed fishing grounds scattered throughout the San Juan Islands and on the mainland of Whatcom County up to the Canadian border. Not only were our (fishing) village sites located throughout the territory, but the associated burial grounds are located at these sites, as well. Among the most important of these cultural landscapes is Xwe’chi’eXen (Cherry Point).
…about our Sacred Obligation…
Xwe’chi’eXen (Cherry Point) was an important village site for our ancestors. This 3,500 year-old village site was where our inland relations travelled by canoe to visit their relatives’ villages to the north on the British Columbia mainland and to the west on Vancouver Island. There are nine Lummi kinship groups affiliated with Cherry Point. If we take those names as a starting point, 60 percent of modern-day Lummi have direct ancestral ties to Cherry Point. Their ancestors lived there for 175 generations and it is a final resting place of many of these ancestors.
Over the past several decades there have been numerous intrusive archaeological studies completed at this former village site. We were not asked to give our permission to conduct these archaeological studies. During the time of these studies, the non-Indians operated under the assumption it is appropriate to have their way with Indian graves and cemeteries. They were, after all, “professionals.” In the course of those studies, artifacts, and human remains were “recovered” and moved to Western Washington University. They have been stored there ever since. Can you imagine if this were your family’s ancestors in a box, on a shelf, in a university, and marked as “human remains”? This is all part and parcel of the legacy of institutionalized racism that permeates our relationship with portions of the non-Indian community. We are treated with respect when it is useful, then as brutes, savages, or children of a lesser God when we are not, and promises made to us are made only to be broken.
County Councilmember Carl Weimer was walking his dog one day at Cherry Point when he discovered unexpected activity in the nearby wetlands. To his great credit, he did the right thing and notified the proper authorities. As it turned out, Pacific International Terminals (PIT), acting true to its apparent character, authorized their contractors to bulldoze in what PIT knew to be a registered archaeological site. They bulldozed four miles of road and then sunk bore holes into the land. No permits were applied for or received, though they were perfectly aware they were needed. Incredibly, PIT makes the highly dubious claim that this was simply an oversight, not unlike their illegal activity in the wetlands of Cherry Point — supposedly something that simply “fell between the cracks.”
Some of the damage inflicted on the Lummi sacred ground at Cherry Point by the Gateway Pacific Terminal proponents’ exploratory excavations and drilling. Photo:Carl Weimer.
This illegal action served to help drain wetlands, a nuisance factor in the way of their plan for development. Applying for and fulfilling the requirements would cost time, and time is money and land is a “commodity.” So, they decided to get a head start and take a slap on the wrist. The same thing occurred in the archaeological site at Cherry Point. Rather than getting the permit they clearly knew was needed, they proceeded to move in their equipment, bore their holes, and get the data. It was a business decision and a calculated risk. The information is allowing them to proceed with their preliminary design for the project. Had they followed the law, a good deal of extra work would have to be done to ensure that the integrity of this ancient village site was not damaged. It was a wise business decision that can be defended, for a time, by their legion of lawyers. We believe Whatcom County Planning has given the impression of complicity in this, their proclamations of innocence notwithstanding.
More damage inflicted on the Lummi sacred ground at Cherry Point by the Gateway Pacific Terminal proponents’ exploratory excavations and drilling. Photo:Carl Weimer.
We see all this. Our people, like most people, play by rules made by others. But Pacific International Terminals, SSA Marine, their parent multinational corporation Carrix, Inc., and their financial backers at Goldman Sachs seem to be partners to a crime, as is their public relations agency, Edelman, the world’s biggest independent PR firm and the shadowy force behind the pro-terminal group Alliance for Northwest Jobs.
In fact, PIT did commit a crime according to Washington State law. It is a misdemeanor in the State of Washington to knowingly disturb or otherwise desecrate a known archaeological site and a Class C felony to knowingly damage a burial ground or grave. They can — and should — be prosecuted on both counts. As one Lummi Council member put it (off the record), “They are well-connected and highly capitalized and paid criminals in suits and ties. Period.” The county did not vigorously prosecute PIT for failure to get the necessary permits. Instead, in August 2011, PIT was notified that they would be penalized $2,000 in fines and $2,400 in administrative fees for code violations related to the failure to acquire permits. Nor has the state diligently prosecuted PIT for violation of the Washington State laws.
The Army Corps of Engineers has also tried their best to look the other way, to justify their own missteps and oversights, and to disingenuously play the good neighbor with the Lummi. But everyone is not fooled. The Corps is a permitting agency. They are also our Trustee. They wish to be seen as good neighbors, but have shown themselves to be untrustworthy. We were reminded that Isaac Stevens was a Colonel, as was George Custer. Although many of our people are veterans who served bravely and proudly in all of America’s wars, in this situation the Army Corps is not our friend. We do not need a friend in Colonel Estok, the Seattle district commander of the Army Corps of Engineers; we need a Trustee whom we can trust.
The United States Army Corps of Engineers, with questionable legal authority in this instance, has asked the Lummi Tribe to sign a Memorandum of Agreement (MOA) to bring SSA/PIT “into compliance.” The Corps of Engineers in Seattle repeatedly misrepresents the MOA to our people (see the timeline to the right for additional detail), uses twisted logic to explain its authority regarding the violation of archaeological sites on state and private lands, fails to fully communicate the situation to their superiors in Washington, D.C., threatens to go forward with or without the Lummi on the MOA, and threatens to issue an after-the-fact permit for the wetlands violation if we do not cooperate. They may yet succeed in this unconscionable pressure tactic, but the whole process is a study in dissembling and dysfunction.
Coal Dust on the American Dream
It is an old, old story of coercion, with new players, big money, and co-option of a regulator by those whom it should be regulating. The Indians are in the way of “progress”: Indians and their sacred grounds, their burial grounds, their customary way of life, and Indians who value family and future generations above short-term profit. The naked truth is, the proposal by PIT/SSA and its partners for coal shipment, storage, and transport would cost us all — Indian and non-Indian — dearly here, and across the Pacific Northwest, but handsomely profit a handful of shareholders on the east coast.
I sometimes think I’m dreaming. I fail to see how any responsible public official — elected or otherwise — could possibly support this madness. Why? Because of the promise of jobs? Can anyone be so naïve as to think that this is not just another in a long line of promises surely made to be broken?
Here are the facts of the matter, the massive public relations campaign of PIT notwithstanding:
The desecration of one of our oldest village sites and the first archaeological site to be placed on the Washington State Register of Historic Places
Up to 1.5 billion gallons of water per year needed to water down the coal piles
Millions of gallons of toxic runoff inevitably finding its way to Puget Sound from the proposed terminal
Over 400 cape-sized ships (1,000 feet long) per year departing the Cherry Point terminal with 287,000 dead weight tons of coal per ship (fully loaded, each ship takes up to six miles to stop)
Eighteen trains per day, each 1½ miles long arriving and departing the terminal
At least 60,000 pounds of coal dust per train deposited along the rail line from Powder River and at least 500 tons of coal deposits every year in the Cherry Point Aquatic Reserve
Assuming a full build-out, 213 full time jobs at the terminal (but note that the Westshore coal terminal at Roberts Bank, Delta, British Columbia to the north has made a consistent policy of automating their operations to reduce labor costs)
Endangering a Lummi fishing fleet that includes 450 vessels and 1,000 tribal members; in the Salish Sea 3,000 people are directly employed by the fishing industry as well as 28,000 related jobs in an industry that generates $3.8 billion annually in economic benefits
The Lummi recognize the land, water, and air will be contaminated. This pollution will have a cascading effect throughout our natural environment. The river runs dry for corporate profit and the salmon cannot swim upstream during the lowest flow periods of the year. The salmon die because they cannot get to the spawning grounds. Offshore, the fragile herring population will be immediately assaulted by the dust and toxins. Crabs in the area will be poisoned as well. Who will ultimately pay the price for the inevitable damages done to the environment from this proposed terminal? Our people and the residents of Whatcom County have seen this many, many times before. The answer comes down the Nooksack River in the form of massive debris flows and silt loads from a history of clear-cutting in the forests. It can be found at the bottom of Bellingham Bay with the left-over poisons from Georgia Pacific. It is evident in the fouled waters off Point Roberts where our fishing nets are turned gray from the pollution from the Westshore coal terminal at Tsawwassen.
Fortunately, the Lummi Nation has the support of the Affiliated Tribes of Northwest Indians (ATNI) in its opposition to the Gateway Pacific Terminal proposal. ATNI represents 57 Pacific Northwest tribes in five states. Many of these tribes will be directly impacted by the coal trains. Several thousand Treaty Indians along the Columbia River and within the Salish Sea will have unavoidable and permanent damage done to their treaty fishing rights. We know and understand treaty rights would be lost for generations. After all these years, we perceive that it is still all about getting the Indians out of the way.
The offer is jobs and contamination now or movement toward less global warming tomorrow. Jobs and income opportunity are something near to home. For the average American global warming is a distant concern, out there somewhere. They are struggling to get by, dogpaddling to the American Dream. They strive to reach a moderate living income for their families, which is possible only if both parents are working. What many Americans are learning is that the top 1 percent own 42 percent of the (non-home) financial wealth in the United States; the bottom 80 percent own less than 5 percent. Among the top 100 major industrial nations, the United States ranks ninety-third in income equality.14
The corporations have a virtual strangle-hold on the American continent and now grip the Constitution through the fiction of corporate rights. They are now absurdly recognized as “persons” with standing in a court of law. These corporate persons have shamelessly covered the continent in toxic pollutants through short-sighted and self-interested industrial development. Today they are super-citizens that feed the rich and deprive the majority of Americans the basic necessities of life. These are the bad actors that hope to convince us that they have the right to develop Cherry Point — and we, the citizens, need these jobs — regardless of the environmental consequences and costs. It is a formula that has served them well in the past: the privatization of profit and the socialization of cost.
We Are “The People”
The Constitution is for “We the People” not “We the Corporations.” Sovereignty derives from the many, not the few. American Constitutional sovereignty has been popularly-based since 1787. The incorporated states tried to define “control” under the Articles of Confederation, but failed because the People did not agree. They wanted a government selected by and for the people, exercising powers delegated from the people, and held accountable to the people. The corporations involved in the coal port proposal have joined together to translate their dream into profits. They have persuaded Congressman Larsen, among others, to join them. Interestingly, he received far more in contributions from SSA Marine than any other representative in the Washington congressional delegation. Perhaps this is a coincidence, but it does not seem likely. Tribal leaders report that neither he nor his staff will give them the time of day on this issue. His mind is made up. Could this be the result of corporate influence peddling? They pave the political road with corporate contributions. Politicians are held accountable to them, not “We the People.”
We expect SSA Marine and PIT to try to influence the upcoming tribal elections in the Lummi Nation, just as they will be pouring millions into the Whatcom County elections through their surrogates. We the People are merely a nuisance to them whom they believe are easily bought and sold. This is but one in a long line of outrages of these “corporate neighbors.”
The Lummi people, their Chief, and their leadership are endowed with enough traditional knowledge and teachings to resist these temptations. We are kinship-based, not corporate. Nature is a gift, not a commodity. There are a few individuals in our community singing from the Pacific International Terminals songbook, a songbook with false lyrics and false notes for false singers, and they can unfortunately be found in any community, as can those who spill and spread ill-will and mistrust by feeding off fear and ignorance. But our people are, first and foremost, tribally-oriented fishermen. We will always aspire to the dream of restoring the Salish Sea, the streams and rivers, and the salmon runs, and preventing or, if need be, undoing the damage of our corporate “neighbors.” We will also always believe in the spirit of hope and cooperation in our relations with the citizens of Whatcom County who share our concern for the long-term health of this place we all call home.
Our Sacred Obligation
Responding to the project’s permitting process for the proposed terminal is like cutting a diamond. The owners want to harvest it, cut it, and polish it, legally, economically, and politically. Internal documents of PIT reveal that in 2012 they remained confident they could have the terminal up and operating in five years — maybe even four.15 We need to strike at the flaws and shatter this false economic diamond. This is a false diamond for its supposed benefits are dwarfed by the hidden as well as externalized costs resulting from poisoning the land, denaturing the waters, destroying historic sites, desecrating burial grounds, and damaging the health of the people.
Author Jewell Praying Wolf James speaks to supporters at the gathering at the Bellingham Unitarian Fellowship on May 27, 2013. The Lummi Nation Sovereignty and Treaty Protection Office called two separate meetings of Bellingham clergy and activists to discuss Tribal concerns about Cherry Point and the proposed Gateway Pacific Coal Terminal. Photo: Lummi Nation Sovereignty and Treaty Protection Office.
I often hear people ask: What can I do to promote a healthy environment and push back against the juggernaut of corporate power? Goldman Sachs alone has almost $1 trillion in assets!16 People feel powerless, overwhelmed, and unsure what to do. The answer is here, before us, in preventing this mega-project from going forward. We can and must stop it and put in its place a vision of responsible long-term stewardship of the land and water. We don’t need to be hypnotized by their narrative or to become a corporate colony of global finance and Wall Street investors. We are the people. We have to unite to preserve the ecological vitality of the Pacific Northwest. This is our home. We must commit to stop toxic dumping into public lands, air, and waters. We must demand that our lawmakers stop giving away public resources for private gain. But we can only do this through coalition-building. It has always been true, and is true, today.
We respectfully call upon the tribes, the non-Indian community, civic organizations, professional organizations, the business community, the faith-based communities, non-governmental organizations, and elected officials to put aside any differences for the sake of the Creation. Most importantly, we are asking that the general public take the time to become informed on the magnitude and madness of this proposal. Let our voices be heard for the benefit of our children and our children’s children — and to honor the Creation.
Now is the time. This is the place. We are the ones called to this duty in the name of our collective Xa xalh Xechnging (“sacred obligation”).
Endnotes
For an interesting background history, see http://www.ratical.org/many_worlds/6Nations/EoL/chp8.html.
Lewis Hanke, All Mankind is One: A Study of the Disputation Between Bartolomé de LasCasas and Juan Ginés de Sepúlveda in 1550 on the Intellectual and Religious Capacity of theAmerican Indian (Illinois: Northern Illinois University Press, 1974), 67.
Cherokee Nation v. Georgia, 30 U.S. (5 Peters) 1 (1831).
Johnson v. M’Intosh, 21 U.S. (8 Wheat.) 543 (1823).
Tee-Hit-Ton Indians v. United States, 348 U.S. 272 (1955).
For a concise video of Johnson v. M’Intosh, see http://freedom.ou.edu/freedom-101-2-ep-12-johnson-v-mintosh/.
Anthony Pagden, European Encounters with the New World (New Haven: Yale University Press, 1993), p. 117.
Ibid.
See http://www.dailykos.com/story/2013/04/14/1200994/-Native-schools-and-stolen-generations-U-S-and-Canada for details of the history.
See http://nativeamericanhistory.about.com/od/Law/a/The-History-Behind-The-Cobell-Case.htm for a brief summary of the Cobell case.
See http://cantonasylumforinsaneindians.com/history_blog/tag/religious-crimes-code-of-1883 for information.
See the National Park Service, http://www.nps.gov/nagpra/mandates/25usc3001etseq.htm , for the law, and see the Center for Advanced Spatial Technologies, University of Arkansas, http://cast.uark.edu/home/research/archaeology-and-historic-preservation/archaeological-informatics/national-nagpra-database.html, for information about the database associated with implementation of the law.
For additional information about the Salish Sea, and the herring and salmon fisheries, see http://www.whatcomwatch.org/pdf_content/OurLivingJewelOct2012.pdf.
G. William Domhoff, “Wealth, Income and Power,” in Who Rules America (http://www2.ucsc.edu/whorulesamerica/power/wealth.html).
The proponents’ submitted documents state that the initial construction phase would take two years and that “the first commodities would be moved through the facility in 2016.” This information can be found at the Whatcom County Planning and Development Services website: http://www.co.whatcom.wa.us/pds/plan/current/gpt-ssa/pdf/20120319-permit-submittal.pdf.
See http://www.goldmansachs.com/media-relations/press-releases/current/pdfs/2012-q4-results.pdf.
Help Us Carry the Voices: The Kwel hoy’ Totem Pole Journey
In September of 2013 a totem pole, being carved by Lummi tribal members and Master Carver Jewell James, will be transported 1,500 miles from the Powder River basin, following the rail lines, all the way to Cherry Point. Mr. James carved and delivered totem poles to each of the 9/11 sites to help heal the American Nation. The totem pole will be blessed by tribes all along the journey, and will serve as a symbol uniting the tribes, small towns, communities, and cities opposed to the project. The journey will provide an opportunity for communities and tribes to tell their story, hear how this project will impact others, unify the west, and help “draw the line” (Kwel hoy’). The journey will be covered by local, regional, and national press, and will help unite these communities and raise the voices of those who believe in the message of our sacred obligation. To learn more or to make a donation to the journey, please go to www.totempolejourney.com or call 800-670-6252. All donations are tax-deductible.
Damages to Cherry Point
1. SSA Clears Trees, Fills Wetlands, Disturbs Cultural Areas Without Permits. July 16, 2011: Whatcom County Planning and Development Services (PDS) received a report of extensive clearing and grading activity at the site for the proposed Gateway Pacific Terminal. August 2, 2011: PDS issued a Notice of Violation DOC A to Pacific International Terminals, a subsidiary of SSA Marine (SSA). The county reissued the notice on August 17. The violation involved clearing of approximately 23,132 lineal feet (9.1 acres) for access paths/roads in uplands and in wetland forest and shrub areas (approximately 2.8 acres of wetlands impacts and .98 acres of wetland buffers). July 30, 2011: SSA issued a press release DOC B, acknowledging that its contractors conducted work on the site, digging approximately 70 core-sample holes. The press release did not mention the 4.4 miles of roads (9.1 acres) or the 3.8 acres of wetlands and buffers cleared by SSA, according to the County. September 12, 2011: Whatcom County issued a Mitigated Determination of Nonsignificance (MDNS) DOC C for the SSA clearing violations.
2. DNR Determines the Disturbance Is Not Actually Part of the Project. August 12, 2011: DNR issued a “Notice to Comply” DOC D documenting numerous violations of the Forest Practices Act, including pulling of stumps and timber harvesting in wetlands without a permit.1 DNR did not issue a finding of an illegal “conversion,” asserting that a conversion only occurs when SSA actually obtains permit approvals and starts constructing the project. (Note: The Department of Ecology also issued notification of violations under the Clean Water Act.)
Had DNR found that SSA engaged in an unlawful “conversion,” Whatcom County could have imposed a six-year moratorium on approving any application for land development on the site. Whatcom County Code 20.80.738(1)(a)(iii). This would have precluded development of the coal terminal proposed by SSA for up to a decade, factoring in the time from application to final approval. In summary: DNR determined that the project had not yet actually begun; the geotechnical exploration was not the same as starting a project; and conversion of land from forestry uses did not actually occur because “the project” had not begun. DNR’s interpretation was cited in a letter DOC F from County Deputy Prosecuting Attorney Royce Buckingham explaining why the county would not impose a moratorium.
Although DNR’s notice stated that SSA conducted forest practices without a permit, DNR did not require SSA to obtain the missing permit. DNR merely required SSA to reforest the site in three years if it did not go through with the proposed marine terminal construction. Relying on DNR’s determination of “no conversion,” Whatcom County staff did not seek a six-year moratorium.
3. Whatcom County Requires an “MOA” With Tribes Prior to Further Work. August 15, 2011: SSA filed a SEPA Checklist with Whatcom County, indicating SSA’s intent to convert the land to another land use. SSA disclosed that its illegal grading and clearing had disturbed items of Native American archeological significance. September 12, 2011: PDS issued a Mitigated Determination of Nonsignificance (MDNS) under the State Environmental Policy Act (SEPA). While the first version of this document outlined conditions for restoration of disturbed critical areas and buffers, it made no mention of the archeological disturbance. DOC C October 5, 2011: The Washington State Office of Archeology and Historical Preservation (AHP) sent the county a letter objecting to the MDNS. OAHP cited the archeological disturbance and stated that, under state law, no further work could be conducted on-site until a permit was issued by their office (if Whatcom County is the lead agency), or until a “Memorandum of Agreement” (MOA) was signed by affected Tribes under Section 106 of the National Historic Preservation Act (36 CFR 800), if the U.S. Army Corps of Engineers is lead agency. October 10, 2011: Whatcom County PDS added conditions to the MDNS in response to the OAHP letter DOC G, to require either the state permit or the Memorandum of Agreement, if the Army Corps of Engineers is lead agency prior to further site disturbance. SSA did not appeal the county’s SEPA MDNS or revised conditions. The U.S. Army Corps of Engineers asserted lead agency for purposes of the cultural disturbance.
Under Whatcom County Code 20.94.080(2), all future permits and approvals that may pertain to Title 20 (Zoning Code) may be denied for the site until compliance has been achieved, in the satisfaction of the zoning administrator, or his designee. Thus, until the land and cultural disturbance violations are resolved in accordance with the county’s SEPA condition, SSA’s permit applications are subject to denial. In light of the Corps’ lead agency, this means that Whatcom County can deny SSA’s project permits, until an MOA is agreed to for the cultural disturbance.
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Genetically modified wheat has been discovered growing in a field in Oregon. GMO wheat is not approved for sale in the U.S. Above, a wheat field in Arkansas. Photo: Danny Johnston/AP.
Recentheadlines inform us that revelations of genetically engineered wheat found growing in a field in Oregon have resulted in the immediate announcement by Japan that it is canceling its importation of American white wheat—at potential losses to American farmers of well beyond hundreds of millions of dollars. Meanwhile, the biotech engineers at Monsanto were quick to assure us that this isolated field in our grain-rich northwest is nowhere near any of the sites where, since 1994, 179 field tests of “Roundup-Ready” wheat have been tested in sixteen states on over 4,000 acres of open American farmland. These tests were undertaken with the approval of the US Dept. of Agriculture, even as official national policy prohibited the cultivation of GMO wheat, and as our burgeoning markets in Asia and Europe consistently refuse to allow the stuff to enter their countries.
Yet beyond the bizarre, almost comical way in which the modified wheat was discovered (there it was, growing apparently naturally in a field intended to be fallow, and after numerous sprayings of Roundup—Agent Orange, as it was called in Vietnam—and its stubborn refusal to simply give up and die, the only explanation was…genetic engineering), the lesson seems to be not so much how great is the threat we all face from Monsanto. That part of it seems by now to go without saying. The real lesson lies in how the burden falls totally on the USDA: the regulatory agency that allowed and abetted it.
“None of this would be possible,” according to journalist Colin Todhunter of Countercurrents.org, “without the ability of the GM sector to corrupt state machinery in order to further its commercial interests.” He cites the fact that “top people from the GM sector have moved with ease to take up positions with various US government bodies, such as the USDA.” Indeed, this easy movement is the notorious “revolving door”—between Congress and the free-spending lobbies, and between corporate offices and the agencies tasked with regulating the very industries to whom they’ve become beholden.
Consider the words of Don Westfall, vice-president of Promar International, as reported by the Toronto Star on January 9, 2001: “The hope of the industry is that over time the market is so flooded (with GMOs) that there’s nothing you can do about it. You just sort of surrender.” So, as we look beyond genetic engineering to the engineering of the entire emergent corporate state, does it seem to be such a reach to look at the seeds of Monsanto as the seeds of conspiracy, with GMO as a toxic metaphor for the corruption of the many fields of a once flowering society? And is all that is left us a sort of surrender?
Just thinking….
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The Bellingham School Board voted 4-1 to close down Larrabee Elementary School, a small vibrant neighborhood school.
On Wednesday, May 8, over 100 parents, children, neighbors and friends held a rally on the front steps of Larrabee School to show their support for keeping this small neighborhood school open. From 5:30 – 8:30 pm, on the same night at the Larrabee school gym, the first and only public hearing was held on closure, as mandated by 28A.335.020, School closures — Policy of citizen involvement required.
The gym was packed with over 100 people. All of the speakers were in favor of keeping Larrabee open. Not one person spoke up who wanted the school to close. Thirty-five people each spoke for three minutes in favor of keeping Larrabee open, including current and retired teachers from the Bellingham School District (BSD), professors from WWU, Happy Valley Neighborhood Association Board members, City Council members, and many Larrabee alumni, parents, grandparents, and children. Hundreds of pages of written testimony were submitted.
Less than 24 hours later on Thursday, May 9th, the School Board met at the school district’s Administration Building. BSD Superintendent Greg Baker and his team answered questions from School Board members. Dr. Scott Stockburger first made a motion to postpone a vote for closure of Larrabee School for six months, until after a fall school bond election was held in November. The motion was voted down and then a motion was made to adopt Resolution #10-13, Pertaining to the Closure of Larrabee Elementary School for K-5 Instructional Purposes.
After discussion, a 4-1 vote resulted in the closure of Larrabee School. Board members Kenneth Gass, Steven Smith, Kelly Bashaw, and Camille Hackler voted in favor to close down the school, with only Dr. Scott Stockburger voting against the closure.
After the hearing, Dr. Scott Stockburger said, “It’s evident the community is not on board with this, and I think we’ve got some work to do to get them on board,” he said. “I think we run a big risk of alienating that community.”
“I feel like they totally ignored the community,” Larrabee parent Michell Remley said. “They discounted us as emotional parents and we presented facts. We did our homework.”
Dr. Nicholas Zaferatos, Planning professor at WWU and former Chair of the Bellingham Planning Commission said after the vote to close Larrabee, “Despite everything done by the community, the dice were loaded, the community was co-opted. The district has gone corporate. No concern for community policy nor parent/community interests, just corporate models.”
Serious issues about this action by the Bellingham School Board and Superintendent to close Larrabee School include:
No Transparent process for Closure of Larrabee — School district staff never gave a timeline to parents, teachers, and the public to explain when the Larrabee closure vote would occur. The School District administrative staff knew what the plan was, but the public did not.
Wrong RCW! Revised Code of Washington — RCW 28A.335.010 was cited for the resolution to close Larrabee in BDS Resolution 10-13. This is an incorrect Washington Code to close down a school. It relates to furnishing and insuring schools. RCW 28A.335.020 is the correct RCW.
School District Did Not Comply with the Revised Code of Washington — RCW 36.70a.70 Comprehensive Plans and the Bellingham Comprehensive Plan: Policy VB 35 states: Neighborhood schools in developed areas are retained and new schools are located consistent with the City’s commitment to infill and compact growth.
The vote to close Larrabee School ignores the Bellingham Comprehensive Plan, adopted by City Council in 2006. This plan was developed under WA State requirement RCW 36.70a.70, with wide public input through collaborative and inclusive meetings. It is our community-wide vision. Thousands of hours and thousands of dollars were spent on this process and on the Happy Valley Neighborhood Plan, adopted by City Council. The problem is that the Bellingham School District staff and the City of Bellingham staff and elected officials do not coordinate on planning. They are two different political groups that work apart. School district staff did not include neighborhood planners, architects and city staff in the Facilities Planning Task Force. School facility planning and Bellingham community planning are in two different worlds. School district staff did not comply with nor incorporate Bellingham Comprehensive Plan goals and policies.
School District Did Not Comply with the Happy Valley Neighborhood Plan — The vote to close Larrabee School ignores the Happy Valley Neighborhood Plan (2011), with HV GOAL-4: Urge the School District to keep neighborhood schools open. Bellingham School District staff did not invite nor include any neighborhood associations in the Facilities Planning Task Force. School district staff were unaware of and had not read the plan.
Trend to End Small Neighborhood Schools — The current Bellingham public school leadership movement rejects the idea of small neighborhood schools. Dr. Baker stated at the May 9th school board meeting that the new model for schools is 400 students and five acres. It rejects a model of smaller schools serving families within our existing neighborhoods.
Disconnect between City of Bellingham, Bellingham School District, and Community — There is an apparent disconnect with the school facilities planning process and the movement toward progressive urban smart-growth principles that we are trying to implement in Bellingham. This trend in Washington State destroys neighborhoods and communities. State funding drives districts to big parcels, but is a suburban model rather than an urban model and is in absolute contradiction with current urban planning principles. School district planning ignores the external costs to the neighborhoods.
What can we do to protect our neighborhood schools? It is now incumbent upon the City of Bellingham to review and revise its published comprehensive plans. It is important to vote in and vote out school board members who do not understand how communities thrive. Decide whether to work for or against school bonds. It is imperative for the School District staff and board, and City of Bellingham staff to work in a more collaborative manner to make decisions on our neighborhood schools.
And what about Columbia, Parkview, Lowell Elementary schools, what is the future of these neighborhood schools? How much do we value our older neighborhood schools? The Bellingham School District will have a huge school bond for approval on the ballot this November. Will voters support it, after the school district leadership did not support the community in what was perceived to be a unfair, non-collaborative process? Why they didn’t they work with us in a collaborative way to address problems about Larrabee?
Larrabee is an old school, but when you observe the school today, you find lively, engaged children who are learning academically and growing emotionally and socially. You find parents who are deeply committed to the school and who value its program greatly. You find teachers and a principal who choose to work there. The principal and all the teachers know all the children—and all the parents. The parents know each other, and the school functions as a community rather than as a bureaucracy. Indeed you find a school that just three years ago received a $1.5 million overhaul from the same school board. There has been significant public and private investment in this school in the last 10 years, and it was evidenced by the 100 yard signs that were up in May before the hearing that says it all, “We Love Larrabee.”
Larrabee parents and Happy Valley neighbors are sad, angry, in grief and shock that the beautiful neighborhood school is being closed down. A former Bellingham School District teacher, whose two daughters attended Larrabee, said, “I never thought I’d see the day that I did not vote to support educational levies and bonds; however, I will not support anything they put up.”
In Jane Jacobs book, “Death and Life of Great American Cities,” she wrote: “Cities have the capability of providing something for everybody, only because, and only when, they are created by everybody.” And “There is a quality even meaner than outright ugliness or disorder, and this meaner quality is the dishonest mask of pretended order, achieved by ignoring or suppressing the real order that is struggling to exist and to be served.”
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An artist’s conception of the waterfront redevelopment that the city of Bellingham is planning for the waterfront area near the Whatcom Creek outfall. Image: City of Bellingham.
In 2003, the City of Bellingham and the Port of Bellingham became partners in a joint project to restore and develop the Bellingham Bay waterfront. The public was provided opportunity to comment on waterfront plans, which continued to evolve and change over time. Much of this occurred as part of an informal process. The last opportunity for public input was in 2010. Since that time, the public review process has been on hold.
A revised draft waterfront proposal was released by the city and port on November 15, 2012, and finalized documents were issued a month later. The revised waterfront plans are being reviewed by the Planning Commission, which listened to public comment during two public hearings in March. After the Planning Commission completes its review, it will issue a recommendation for City Council consideration.
I attended the March 14, 2013, meeting of the Bellingham Planning Commission, where the city and port administrative staff (“staff”) provided a general overview of the new waterfront proposal. I was not a resident during the most active years of planning, but I knew the plans required some difficult decisions. I was hoping to hear a discussion of the planning options that were available, perhaps a review of the history of the process, and an explanation of why staff made the choices selected in the final waterfront plans.
Instead, I heard a slick PR presentation that promoted the staff’s proposal, ignoring issues of conflict and controversy.
Transparency and informed public consent requires a forthright disclosure of the strengths and weaknesses in a comprehensive planning proposal.
Staff advocated, rather than informed. I could just as easily have been attending a sales presentation.
The Planning Commission was advised that the new waterfront plan reflected extensive public process and incorporated community values. This assertion was contradicted one week later, March 21, 2013, during the first public hearing before the Planning Commission. Flawed public process was a leitmotif that evening, reflected in comment after comment by the public.1
The city and port responded with evidence believed to be proof of public process. The city’s waterfront website contains a “quick link” to the public process.2 The link leads to a list of the 2013 meetings for five citizen-appointed advisory boards, four of whom have reviewed or will review the revised waterfront plans, including the Planning Commission. The city emphasized, in response to public comment monitored by a public comment tracker, the roles of the Waterfront Futures Group and the Waterfront Advisory Group in promoting public input.3
The staff’s response is not on point. Public concerns are less about the opportunity to provide input and more about the failure to see that input reflected in the end product. For example, while the city is to be highly commended for creating a public comment tracker, it has responded to virtually all public requests for waterfront plan modification reflected in the public comment tracker with “NC,” for “no change.”
An important issue is not being addressed: prior public process related to different versions of waterfront plan proposals. The current version contains some significant amendments that reflect changes in market conditions impacting real estate and job development. Staff can not assume that, while its planning proposal has changed to reflect updated information, public opinion has remained static. Outdated public process does not protect the public’s due process rights.
Nor was this what the public was originally promised. On November 15, 2012, Mayor Kelli Linville was quoted in The Bellingham Herald as follows:
We look forward to putting the final touches on proposed agreements and getting them ready for public and legislative review….We expect these proposals to go through a robust public input process beginning early next year. When that time comes the public will have available to them all the information they need to participate in decisions about how the waterfront will develop.”4
It appears that the extent of this “robust public input”, at least before a final proposal is forwarded to the City Council, is limited to two public hearings before the Planning Commission, scheduled without any effort to educate the public about the new revisions.
And from the comments that were received during the two public hearings, proposed waterfront plans continue to contradict the public’s interest in high clean-up standards, restored shorelines and healthy ecosystem functions, well-connected trails, abundant parks, retained scenic vistas and historic preservation. It is time to examine the myth of waterfront public participation.
Predetermination of Waterfront Projects
Staff has obtained funding and City Council approval for specific waterfront plan components while the waterfront planning process is still in progress. Comprehensive city planning documents such as the annual budget, Capital Facilities Plans and Transportation Improvement Plan have been amended to include specific projects reflected in the proposed waterfront plans.
Staff convinced the City Council, sometimes against its better judgment, that this type of piecemeal process is appropriate because the waterfront projects are general and details will be determined later, allowing room for changes based on public opinion. Is there really anyone naive enough to think that the public can influence a pre-funded and pre-approved project?
A recent example of the problem is reflected in the $1.5 million grant from the Washington State Department of Commerce for development of the Whatcom Waterway sub-area of the waterfront. The city Parks Department, which shares the grant with the port, is using its portion of funds for a new park. The grant was not immediately approved, due to Council Member Jack Weiss’s concern that the grant money was getting ahead of the waterfront planning process and would result in demolition of a historic structure.
The city Economic Development Manager attempted to placate Council by removing specific details from the development agreement with the port, including a map reflecting street placement. Reduced clarity and detail in waterfront plans is not a solution beneficial to comprehensive planning efforts or public transparency. Staff argues that proposing open and nonspecific plans increases future planning flexibility, while allowing for public input. I argue that it increases the city administration’s disingenuity, leaving them less accountable and less likely to engage in comprehensive planning efforts.
The city Parks Department, with council approval, amended the city’s Capital Facilities Plan to include an interim trail around the perimeter of the Aeration Stabilization Basin (ASB). This is rather significant, because development of the ASB has been one of the most-contested issues of the waterfront planning process. The current proposal reflects development of a new marina, a proposal that significantly raises the cost of waterfront cleanup and redevelopment.
The port has been steadfastly committed to its vision of a “clean ocean marina.” At the same time, a majority of residents have opposed what they characterize as a “luxury yacht marina,” believing the site better used for waste water and/or storm water management, as a depository for the contaminated material removed from waterfront cleanup sites, or as a large public park.
The port will not be ready to develop the marina for an estimated 20 years or more. The interim ASB trail supports the proposed marina by providing some public use of the site while it otherwise sits undeveloped. $500,000 of REET (Real Estate Excise Tax revenues) funds was allocated for the ASB interim trail, despite the notoriety surrounding the marina and the lack of finality for proposed waterfront plans.
And in case the reader has lingering doubts about predetermination of certain waterfront projects, the port is proudly advertising the new waterfront marina on its website. Why wait for formal approval when the results are already known? That is why an April 1, 2013, article in the Pacific Waterfront Magazine stated, in relevant part:
Bellingham’s waterfront redevelopment plans include a new downtown marina. The port will remove more than 400,000 cubic yards of contaminated treatment sludge from a 37-acre wastewater treatment lagoon, which was formerly used to treat process water from a complex pulp, paper and chemical facility. Once the lagoon is cleaned out, it will be converted into a new marina, which will include a mile of public access along the outside of the breakwater (i.e., the above-referenced ASB interim trail) and shorelines reshaped to support salmon recovery efforts.
Public Process Problems Not New
Issues regarding public participation have plagued waterfront planning from the very beginning. The Waterfront Advisory Group (WAG) minutes from November 28, 2005, reflect public process complaints.5 The problem was acknowledged by WAG in minutes from a June 20, 2007 meeting, which stated:
There were concerns that during planning process it is hard to see the results of input. Public comment is accepted, but people want comments heard and acknowledged. They want a response. Once there is a work product, it should reflect the public comments. People should see how they impact a decision. WAG members encouraged citizens to attend Port Commission and City Council meetings.6
There was such a pronounced perception that the public was being excluded from waterfront plan development that it led to formation of activist groups, including Friends of Whatcom County and the Bellingham Bay Foundation.
Discontent with waterfront plans, dating back to the time the waterfront was referred to as “New Whatcom,” is implicit in alternative waterfront plans submitted to the city, reflected as “independent design concept proposals for New Whatcom.” Proposals were submitted by the Bellingham Bay Foundation, WAG member John Blethen, and 2020 Engineering, among others.
Conflict Over Clean-up Standards
The public’s strong preference for the most protective (and most expensive) clean-up method, off-site removal of contaminants, has consistently been in conflict with the port’s use of interim (i.e, temporary and partial) site clean-ups and less protective (and less expensive) capping and on-site containment.
In 2000, the Bellingham Bay Demonstration Pilot Project, a multi-stakeholder group co-managed by the Washington Department of Ecology, published a report recommending that mercury contamination in the Whatcom Waterway be dredged. In 2006, in response to port plans to cap the mercury, a frustrated community mobilized itself.
The Bellingham Bay Foundation formed People for a Healthy Bay and gathered 6,400 signatures in 20 days for an initiative to require the highest level of clean-up for the Whatcom Waterway. The initiative was supported by polling data indicating that the public’s primary concern was a clean, safe waterfront. The city successfully sued to keep the initiative off the ballot, and the site has remained contaminated all these years.
An interim action for the Whatcom Waterway is only now underway. The port is removing mercury from three small areas with exceedingly high levels of mercury contamination. However, there are no immediate plans for clean-up of the remaining mercury, which in some areas exceeds safe exposure levels up to fifty fold.
The public remains largely unaware of a potential problem lurking within the policy provisions of the revised waterfront plan. The “beneficial reuse” provisions from the Model Toxic Control Act have been quietly incorporated into revised waterfront plans. While the stated goal – recycling waste in a manner that protects public safety – is admirable, the policy can be misused as an inexpensive method of toxic waste disposal.
This has already occurred, as evidenced by the dioxin mountain on the Cornwall Avenue landfill site. Sediment dredged from Squalicum Harbor, contaminated with dioxin exceeding safe exposure standards, was dumped and will be capped with clean soil, upon which the site will be developed.
The revised waterfront plans require raising the height of the downtown waterfront area by at least 10 feet, creating a pressing need for a cheap source of fill. I expect to see more use of contaminated dredged soil in the waterfront. This is not a policy that staff has been disclosing in its public promotion of the revised proposal plans.
Citizen Advisory Commissions
As proof of public process, the city staff notes in its staff report the work of citizen-appointed advisory boards, particularly the Waterfront Futures Group (WFG) and the Waterfront Advisory Group (WAG), as well as the Transportation Commission, Parks and Recreational Advisory Board, the Historic Preservation Commission and the Planning Commission, noting that these citizen boards “reviewed various aspects of the Waterfront District Plans.”
Citizens appointed to these advisory groups are hand-picked by the Mayor (and the port for the WFG and WAG), and often reflect the influence of particular stakeholder groups rather than the concerns of the public at large. Some of these advisory groups have a limited scope of review, which creates some conflict with a comprehensive planning process that requires balancing and prioritizing different needs.
While the recommendations of citizen advisory groups are often irreplaceable and invaluable, they have serious limitations and have never been intended as a substitute for full public participation.
Nor have these citizen advisory groups been allowed to play an active role in shaping and guiding the waterfront plan provisions, which is the heart of a public input process. Their role in the current waterfront proposal is limited to a post-draft review function. For example, the Waterfront Advisory Group was reconvened in November 2012, after a two-year hiatus, for the purpose of reviewing the changes made by the staff in its absence.
Some of these advisory groups do not support many of the proposed revisions. In particular, I suggest the reader review the comments submitted by the Transportation Committee and the Historic Preservation Committee to make his or her own assessment of the adequacy of public process.7
Public Process Requires Public Education
Given the complexity of the waterfront planning process and the multitude of revised documents that were released in December, several public meetings should be scheduled to cover specific waterfront sub-topics. Normally, public information meetings are scheduled for complex and/or important planning proposals. It is unclear why this has not occurred here. Work sessions were scheduled to provide additional information to the Planning Commissioners, but Planning Commission’s public hearings were scheduled prior to these work sessions, depriving the public of the right to either listen or learn.
The heart of the proposal is the Waterfront District Sub-Area Plan, otherwise known as a “master plan,” which is intended to provide a “big picture” overview of proposed waterfront plans.8 It includes five waterfront sub-districts with different land use plans and zoning requirements, and five development phases that will take at least 25 years to complete. It covers a broad scope of comprehensive planning issues.
Specifics for how the waterfront policies and goals will be implemented are written into the Waterfront District development standards and the Waterfront District design standards.9 It could not be expected that the average citizen (i.e, without special training and background) could readily understand these documents. It is also important to have an understanding of the 2013 Bellingham Shoreline Master Plan.
A planned action ordinance (PAO) is being included in the revised waterfront plans for the first time, and the city’s prior refusal to sign this document was a source of friction between the city and port.10 This document impacts important public rights, but was not discussed at the staff presentation to the Planning Commission.
The PAO restricts the public’s rights to impose updated environmental standards on future waterfront developers. Developers obtain vested rights to mitigate harmful impacts based on the analysis referenced in the 2010 Waterfront Environmental Impact Statement (EIS). The EIS becomes dated over time, but there is no requirement for periodic update, even though waterfront development is expected to stretch over a number of decades. The PAO also revises and limits the public rights under the State Environmental Policy Act (SEPA).
Public process does not exist unless the public has been provided with adequate education. It is not sufficient to simply release a large multitude of complex and technical documents, many of which contain significant policy provisions unlikely to be understood by the average citizen. Implicit in the concept of public process is the obligation to provide sufficient education for informed public comment.
Summary
The city and the port have attempted to paint a rosy picture of a robust, extensive public participation process that does not hold up under closer inspection. Much of this process was relevant to prior versions of waterfront proposals, and — even then — there were complaints about inadequate public process. Problems with public process appear to be confirmed through waterfront plan provisions that are in clear conflict with public opinion on important issues, including clean-up standards and development of the ASB.
There has been no public review process over the last few years, during which time the port and city were revising waterfront plans. Public input has been restricted to a review function, and this review function has limited value because some of the proposed waterfront plans have already been funded and approved in separate processes. Numerous complex plans and documents for the revised proposal were released only a few months ago, and two public hearings before the Planning Commission were hurriedly scheduled, leaving no time for public education and discussion, despite new policies with important impacts.
The waterfront public process is but a shell, as empty as our deteriorating historic icons on the waterfront. It is great for show but has little substance and, with only a little bit of pressure, is likely to crumble.
Footnotes
1. City and Port presentation to Planning Commission on March 14, 2013 on Waterfront District Redevelopment at http://www.cob.org/documents/planning/waterfront/2013-03-14-pc-ppt-presenation.pdf; See also video at http://www.cob.org/services/education/btv10/videos/boards-commissions/2013-03-14-planning-commission.aspx.
3. City Waterfront District Comment Tracker, Public Comment Through March 29. http://www.cob.org/documents/planning/boards-commissions/planning-commission/4-11-13/comment-tracker-cont.pdf; Planning Commission Staff Report issued for March 21, 3013 public hearing, http://www.cob.org/documents/planning/boards-commissions/planning-commission/3-21-13/staff-report.pdf
4. November 15, 2012 article from Bellingham Herald at http://www.thenewstribune.com/2012/11/15/2368997/port-bellingham-release-long-awaited.html
5. WAG minutes from November 28, 2005 at, http://www.cob.org/cob/wagmin.nsf/50999134738287ed8825733200620fb5/f3b399b301506f3a8825724c0000699d!OpenDocument;
6. WAG minutes from June 20, 200 at, http://www.cob.org/cob/wagmin.nsf/50999134738287ed8825733200620fb5/5e6e93060c2fe78a8825737d00790789!OpenDocument
7. Citizen advisory group comments at http://www.cob.org/documents/planning/boards-commissions/planning-commission/3-21-13/attachment-1.pdf
8. Waterfront District Draft Sub-Area Plan, 2012, at http://www.cob.org/documents/planning/waterfront/2012-12-17-entire-subarea-plan.pdf.
9. Waterfront District Draft Development Regulations, 2012 at http://www.cob.org/documents/planning/waterfront/2012-12-17-development-regulations.pdf and Waterfront District Draft Design Standards, 2012 at http://www.cob.org/documents/planning/waterfront/2012-12-17-design-standards.pdf
10. Planned Action Ordinance, at http://www.cob.org/documents/planning/waterfront/2012-12-17-planned-action-ordinance.pdf
Wendy Harris is a retired citizen who comments on development, mitigation and environmental impacts.
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A pastoral morning at Whatcom Falls in Bellingham, something you would see on a walk described in the article. Photo: CelebrateBig.com
The basic concept of realizing a sense of place is to locate any space that offers a feeling to you that is beyond the mere geography of the location itself. In the 36 years that I’ve lived in Bellingham, no other place has captured that feeling for me as much as Whatcom Creek. From Scudder Pond, across Electric Avenue from Bloedel-Donovan Park, and three miles downstream to its mouth on the Bellingham waterfront, the creek holds a special place for me. Except for the flood control gates that regulate the level of Lake Whatcom, the creek flows the same as it always has − unrestrained. This waterway is a major part of the history of the city itself and the wildlife corridor it provides through the heart of Bellingham is at times extraordinarily active, yet always comforting.
Few cities of this size can boast of an active salmon stream bisecting a densely populated core and flowing year round to saltwater.
The stream has been at the forefront of the efforts of numerous individuals and organizations to maintain the health of this riparian corridor despite the continuing growth of the city around it. What was often used as conduit for waste has now become a showpiece for the healing power of natural places in the human psyche. On the many walks I’ve made along any part of Whatcom Creek, I often forget that I’m in the middle of one of Washington’s largest cities.
When I first moved to Bellingham, one of the first outings to explore my new neighborhood led me right to the old sandstone bridge and the Upper Falls at Whatcom Falls Park. The foresight of concerned citizens from the early part of the last century was commendable. Equally commendable is the continued effort of like-minded people in today’s fast-paced society to maintain this vital facsimile of wilderness within a sometimes chaotic world. The impression that the area made on me then has only increased over the past 36 years. In that time I’ve recorded almost 120 species of birds and a good list of mammal species along the creek, so it appears that wildlife has given its own inimitable stamp of approval.
Trail map of Whatcom Falls Park and Whatcom Creek in Bellingham.
On the last Sunday in May as part of my ongoing efforts to share this resource, I will lead a group of enthusiastic and hardy bird watchers and nature enthusiasts on the Third Annual May Day Meander/Whatcom Creek Walk. This walk along the entire length of the creek is a hands-on interpretive walk to increase the awareness of this shared treasure and point out the role the creek plays in our collective hearts and minds. The healing power of the natural world becomes evident as soon as you leave the confines of your vehicle and hear the sounds of red-winged blackbirds just down the trail.
As on past walks, we will begin the day at the Scudder Pond parking area off Electric Avenue and end the six-hour trek at the Holly Street bridge over Whatcom Creek. While I don’t expect to see all of the bird species I’ve recorded on the creek, we will see a significant number of birds, including some of the early neotropical migrants. The early courtship/breeding/nesting season will be well underway and avian activity will be noticeable. Weather has been perfect on the first two walks and I expect another glorious day this year.
From the beginning to end of the trek, we will be surrounded by bird song. The urban wetland of Scudder Pond attracts numerous species that rely on the nesting habitat the pond affords plus the availability of a diversity of food. As the weather warms toward summer, flying insects in the open space above the pond attract three species of swallows, while other species glean insects from the leaves of the budding flora surrounding the cattail marsh. The increased activity of nest-building will be a pleasant reminder that we’ve made it past winter once again and that spring has finally returned.
When we leave the open space of Scudder Pond behind and enter the wooded area of Whatcom Falls Park, the change will be perceptible. By this time of year, the trail will be covered by a canopy mixed with the new green of deciduous trees and the towering evergreens of Douglas fir and western red cedar. As we leave the main trail and continue along side trails to check for nesting barred owls, we will begin to hear and feel the sounds of moving water. After we pass the Derby Pond, the soothing sounds of moving water will be replaced by the increasing roar of falling water.
An American Dipper creek-side, working hard to find dinner. Photo: Terry Sohl.
From the bridge at the Upper Falls we will look for nesting American dippers, which contribute greatly to the unique nature of Whatcom Creek. Dippers are birds of mountain streams and while this three-mile creek is far from the mountains, it still provides enough of a facsimile for these birds to stay around throughout the year. The dipper is unlike any other bird and to have them nesting in the heart of Bellingham is a rare treat. There have been as many as four confirmed nests between the main falls and the whirlpool downstream, but no one really knows how many other nests might exist in the deeper, hidden recesses of the creek.
As the trail meanders along the creek and through the dense forest, eyes and ears will be on alert for any number of birds that might be on the hunt to feed hungry nestlings. From barred owls and Cooper’s hawks to the pileated woodpeckers and ospreys that nest near St. Clair Park, activity should be consistent with the season.
The area that was devastated by the pipeline explosion in June of 1999 continues to recover and is flourishing with new growth.
In this area is also the Middle Falls, which is as far as salmon can travel upstream on the creek.
After traversing the area of the burnout, we’re forced back to reality by the need to cross the busy intersection at Woburn Street. But there’s no need to worry since we’ll be back on the trail and the soothing sound of the creek in no time. Between Woburn and the interstate is a stretch of the creek that has been the focus of habitat restoration by the city’s parks department and other stream enhancement organizations. The Red Tail Reach is a classic example of the cooperative efforts that are an integral part of the feeling of community that embraces this creek.
The trail from Red Tail Reach goes underneath a busy freeway and takes us along a few blocks of city streets before connecting with the lower creek trail. Still, the moving water speaks volumes of a sense of place that this creek provides for anyone who needs it. Farther downstream, closer to the bay and near the end of our walk, the power of this wonderful creek is unleashed at the Lower Falls, just behind the main post office. After its final dramatic plunge, the creek reaches the saltwater of Bellingham Bay and its journey has ended.
If you’re interested in joining me on the walk on May 26, go to www.northcascadesaudubon.org and check for detailed information on the field trips page.
Joe Meche is a past president of the North Cascades Audubon Society and is still active in chapter affairs. He has been watching birds for more than 50 years and photographing birds and landscapes for more than 30 years. He has written more than 100 articles for Whatcom Watch.
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City worker near dioxin-contaminated soil at Cornwall landfill on the Bellingham waterfront. Photo: Bellingham Herald.
It was good that The Bellingham Herald headlined the waterfront dioxin problem recently.1 Unfortunately, the key issue remains largely ignored. We should be more concerned with how we define “public protection” when we often do not understand the effects that our constant use of non-natural chemistry has on us and our environment.
The cavalier approach that western society has taken to toxic substances has yielded some unhappy results.
First, this local story is significant, courtesy of Bill Taylor of the Taylor Shellfish Farms companies. As a keynote speaker at the Future of Business Conference on April 26, hosted by Bellingham’s Sustainable Connections, he explained that the Taylor Shellfish operation in Oakland Bay, Shelton was a very successful business in the early part of the 20th century, but the building of the Rayonier pulp mill in Shelton in the 1920s caused a total collapse of oyster farming in Oakland Bay by 1927. The oyster industry fought a lengthy battle that finally ended in the 1956 ruling from the Washington Pollution Control Commission (now the Washington Department of Ecology) that prohibited Rayonier from discharging industrial waste into Oakland Bay.2
At one time paper-making chemicals were not considered toxic to the environment, a belief that we find ridiculous today. We did not even consider it necessary to have a government agency charged with protection of the environment until the 1950s or later in the United States.
I remember growing up in the 1950s in Austin, Texas and seeing the DDT truck come around every spring and early summer to spray for mosquitoes. This chemical was sprayed from a moving truck as a fog that blanketed our neighborhood. Mom would run around yelling at us to shut the windows, but often we were outside playing and didn’t have any place to hide from this toxic chemistry. Again, it was believed at the time that DDT was not a harmful substance. Today, such spraying would be unthinkable.
For a more recent example of this claim of no harm, typically originating in the industry or even the company which has developed the chemistry, review Monsanto’s assertions about glyphosate and the subsequent finding that there is harm in that substance:
“Glyphosate, the active ingredient in Roundup®, is the most popular herbicide used worldwide. The industry asserts it is minimally toxic to humans, but here we argue otherwise. Residues are found in the main foods of the Western diet, comprised primarily of sugar, corn, soy and wheat. Glyphosate’s inhibition of cytochrome P450 (CYP) enzymes is an overlooked component of its toxicity to mammals. CYP enzymes play crucial roles in biology, one of which is to detoxify xenobiotics. Thus, glyphosate enhances the damaging effects of other food-borne chemical residues and environmental toxins. Negative impact on the body is insidious and manifests slowly over time as inflammation damages cellular systems throughout the body.”3
If one looks in depth, the litany of repeated mistakes with dangerous chemistry is apparent. In 2010, the United Nations added nine more chemicals to its list of banned or highly restricted substances. These chemicals were banned “because they accumulate in the tissues of living things, including humans, because they are all but indestructible once released into the natural world, and because they can spread across the globe with weather patterns and migrating animals. … they have been linked to a range of health issues, including cancer and reproductive and developmental problems.”4
A study published in Environmental Health Perspectives found the presence of these “persistent organic pollutants” (POPs) across a wide range of food types. “POPs require decades to break down and they can travel the globe blowing in the wind or travelling on water (even ending up in the Arctic). Additionally, once ingested by humans or animals, POPs can sit in our fat tissues for ages, raising our risk of cancer or other diseases, altering hormones, reducing fertility, and disrupting brain development.”5
Today there are 163 cases of cancer per 100,000 people in South and Central America. The figures for the United States and Europe are 300 and 264 cases per 100,000 population, respectively. The death rate in Latin America is higher than in the United States or Europe, probably due to more effective treatments of cancer and more widespread availability of health care in the United States and Europe.6
Maybe cancer rates are so much higher in the United States and Europe than in Latin America because we have had ever increasing exposure to chemicals, coal and environmental hazards in our daily lives. The “conquest of cancer” was announced by Richard Nixon on December 23, 1971, and 210,000 people died of cancer in 1971 in the United States. Twenty-five years later in 1996, the U.S. government had spent $39 billion on cancer research and that year, 520,000 people died of cancer.7
But even today, our regulating agencies readily accept industry claims that chemicals are not harmful and approve these chemicals for widespread use on our food, on our lawns and gardens, in our households and in materials that shape our everyday environment. With the financial industry, we see industry executives make their way from the industry and lobbying into regulatory positions in government and back again. The same musical chair careers occur with regulators of the chemical industry. Do we hear anyone ask, “Isn’t that a conflict of interest?”
Returning to the covered piles of dioxin-contaminated material on the waterfront south of downtown Bellingham, this reassuring pablum comes from The Bellingham Herald article:
“Port Environmental Director Mike Stoner and Lucy McInerney, Ecology’s project manager for bay cleanup, acknowledge that the dredged sediment contains low levels of dioxin, a dangerous carcinogen. But they also say the material is safely contained now, and the site will be safe for public use once the final cleanup strategy is in place in the next couple of years.”8
Blithe assertions of safety are difficult to accept considering the long history of miscalculated chemical approvals issued by government regulators. Recall from Wendy Harris’ article about the dioxin mountain that,
“Dioxin exposure creates a higher risk of cancer than any other man-made chemical. Dioxin is a powerful hormone-disrupting chemical. It binds to a cell’s hormone receptor, changing the cell’s function and causing a wide range of harmful effects, from cancers and reduced immune system function to nervous system disorders, miscarriages and birth deformity.”9
What we desperately need after decades of detrimental or deadly exposure to this chemical stew is a policy of caution. In the absence of clear evidence of the safety of a newly developed substance, it should be banned for use by humans completely. We should make every effort to ensure that no living organisms are needlessly exposed to non-natural chemistry unless it is demonstrably necessary for survival. Set the bar extremely high for the approval of new chemicals. If a well-known (if nefarious) president had been serious about his “conquest of cancer,”10 that would have been the first action he took in his campaign.
And in the meantime, our city and port officials should be moving those two piles of toxic dirt somewhere far from here and ensuring that no one is ever exposed to the dioxin.
Attorney Lesa Starkenburg had an unexpected announcement to make at the April 10 briefing before Whatcom County Hearing Examiner Michael Bobbink. The council chambers were hushed as a stunned audience heard her tell him that her client had entered into voluntary receivership. The briefing was being held to review progress in resolving compliance issues at the Lummi Island quarry.
A legal notice in The (Everett) Herald newspaper announced that Aggregates West, Inc. and Valley View Sand and Gravel, Inc. had entered into receivership in Washington State Superior Court in Snohomish County on March 12, 2013. Both companies are owned by David Grainger of Sardis, Canada. Resource Transition Consultants, LLC was appointed by the court to take control of the companies’ assets.
Under the Washington State Receivership Act (2004), receivership is an alternative to filing bankruptcy. While protecting creditors, it may be a quicker, less expensive and more appropriate tool than bankruptcy. The court-appointed receiver can exercise all the powers of the corporation in place of any board or executive officers as is reasonably necessary to carry on the ordinary business of the corporation and to manage its affairs in the best interests of the owners and creditors. Under the guidance of an experienced receiver, a business solution may be worked out which could include sale of assets, restructuring and focus on more profitable aspects of the business. If appropriate, stalled projects may be financed and completed. Bankruptcy remains an option.
Aggregates West and Lummi Island Quarry
Aggregates West, Inc. is located in Everson, Washington, Whatcom County. The company operates the Lummi Island quarry and is a supplier of gravel and rock products, including landscape rock, quarry spalls, wall rock, railroad ballast, crushed stone, drain rocks, pea gravel, sand, limestone, and topsoil. Most of the Lummi Island product is shipped out by barge. The company owns/manages quarries and pits in Whatcom, Snohomish, and Skagit counties.
Canadian David Grainger is president of both Aggregates West, Inc. and Valley View Sand & Gravel, Inc., companies registered in the state of Washington. While Aggregates West is the operator for the Lummi Island quarry, Valley View Sand & Gravel is one of three partners comprising Lummi Rock LLC, owner of the quarry property. Mr. Grainger has been acting as both operator and managing partner for Lummi Rock, LLC since 2005 when Lummi Rock LLC was incorporated. The other partners in the Lummi Rock corporation are the Bride family of Everett, Washington and the Christopherson Family of Bremerton, Washington. Regarding whether or not he will continue to pursue the various pending permits and mine expansion, Mr. Grainger told the Hearing Examiner that he is undecided.
No Barges Since January.
As of late April, no barges had shipped from the quarry since January. A small amount of product is being excavated and processed, and gravel trucks continue to take loads out of the quarry for use on the island .
C Street Yard Empty
Aggregates West’s barge off-loading yard at Colony Wharf on C Street in Bellingham is now empty. The property is owned by the Port, and Bellingham Marine Industries has expressed an interest in expanding into the location.
A vendor for Whatcom County, Aggregates West may have to find another waterfront location with approximately 2-4 upland acres for this purpose.
Aggregates West also has off-loading yards in Anacortes and Everett.
Required Plans Submitted
During the April 10 briefing, Whatcom County Planning said that the stormwater and shoreline restoration plans requested by the Hearing Examiner had been submitted days before. Preliminary review indicated that the plans have deficiencies and are incomplete. Initially requested by Hearing Examiner Bobbink in October 2012, the lack of progress on the plans was the subject of a heated scolding during the February 13 status meeting (See Whatcom Watch April 2013 issue).
Authority to Revoke Operating Permit
Following up on Hearing Examiner Bobbink’s request, County Attorney Royce Buckingham confirmed the Hearing Examiner’s authority to shut down the Lummi Island quarry should he decide to do so. According to county code, the Hearing Examiner can revoke an operating permit due to non-compliance (WCC 20.94.70 and 20.92.250).
SEPA Review
The Whatcom County SEPA (State Environmental Policy Act) administrator has signaled his intention to issue a DS (Determination of Significance) for the three outstanding permit applications (project and non-project) for the Lummi Island quarry. A DS will require an Environmental Impact Statement (EIS) which could take several months to complete. The pending applications include the revised Administrative operating permit (mining service road), the retroactive Conditional Use shoreline permit (pier/loading facility), and the MRL (Mineral Resource Lands) mining expansion application. The Lummi Island Conservancy, Re Sources, and the state Department of Ecology are among those who have been urging a comprehensive environmental review of the entire scope of related activities at the quarry site.
Lummi Nation
Since 1996, Merle Jefferson, the Lummi Nation’s Executive Director of Natural Resources, has been reiterating the need for a comprehensive environmental review at the Lummi Island quarry site. He has also cited damage to treaty protected resources. This was restated to Whatcom County Planning in January 2012, and in a July 2012 letter to the Army Corps of Engineers:
“The actions already taken by Lummi Rock LLC preclude the exercise of our treaty rights in this area…. The continued operation and maintenance of this facility will interfere with current and future tribal fisheries.”
Road Bait and Switch
An unpermitted road located to the west of the active quarry site was the subject of intense debate at the October 2012 appeals hearing before Hearing Examiner Bobbink. Whatcom County Planning staff issued a violation for this road in December 2010. The subject of repeated penalties, and finally a Stop Work Order in January 2012, the road lies outside of the permitted mine boundaries. Whatcom County Planning staff considers it a mining service road for ancillary mining activities and therefore it must be located completely within the permitted mine boundary. Local residents have repeatedly complained of disturbances caused by activity on this road constructed adjacent to their properties.
In an appearance of cooperation, Lummi Rock management submitted a revised operating permit application in February 2013. This included a new mining service road to be located to the east of the quarry, away from residences although still outside of approved mine boundaries. During the April 10 briefing, attorney Lesa Starkenburg stated that Lummi Rock management had changed their mind. They now want to revise the application to propose a “variation” of a road to be located, once again, to the west of the quarry despite the county’s repeated refusal to consider permitting a road on that side adjacent to residential properties. Was there ever any intention of complying?
Lummi Rock also asked the Hearing Examiner to lift the Stop Work Order on the unpermitted service road to allow hauling of large rock from the upper bench to the shoreline for barge transport to a job in Anacortes. County Attorney Buckingham stated flatly that the Hearing Examiner does not have the authority to do this. The road will remain closed.
Next Hearing on June 5
A hearing and status briefing are scheduled for June 5. The status review of pending permit applications will be combined with an appeal hearing for the February 2013 Hours of Operation permit violation and the separate appeal of penalties levied for shoreline violations.
Meredith Moench is president of the Lummi Island Conservancy. For updates and additional information go to www.lummiislandquarry.com.
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Coal dust blows at the Westshore coal terminal in Tsawwassen, British Columbia, April 2012. Photo: Jerry Bierens, Delta Optimist.
We have had our say, for the moment, in the public comment phase of EIS Scoping about the Gateway Pacific Terminal (GPT). As the agency folks work through our thousands of comments, it’s worth looking at how the findings of the EIS may ultimately be used by the agencies.
The ultimate agency decisions on GPT will be in the set of permit determinations and similar actions taken by various agencies such as the U.S. Army Corps of Engineers, Washington State Department of Ecology, Washington State Commissioner of Public Lands and the Whatcom County Planning and Development Services (PDS). A dozen or more permits will be required for the coal terminal to be built and for it to operate.
In theory, to deny any one permit would stop the entire activity. Absent all of the required permits, the coal terminal would not be allowed by law. But it may be better to think of the permit determinations as being like a jury in a capital case: a unanimous jury is required, sure, but a case with just one or two holdouts generally finds itself back in the deliberating room until a unanimous verdict is reached.
For GPT, one permitting holdout would be the target of a storm of litigation and political pressure, while a scenario with several permits denied would very likely stop everything.
So it’s useful to look at potential stoppers — concerns that, by themselves, could be enough to halt issuance of several permits.
An obvious stopper relates to the greenhouse gas (GHG) emissions from the project. The recent letter co-signed by the governors of Washington and Oregon emphatically states “in the strongest possible terms” that GHG emissions should be taken under consideration when evaluating coal export projects.
The operation of the terminal and the related ships and trains will result in certain very direct GHG emissions, but these emissions will be in quantities consistent with other development projects. The real kicker is the quantity of carbon dioxide emissions that will result from burning 48 million metric tons of coal per year. These emissions dwarf all others.
Do the Math
First, some very basic math. Expected emissions are generally calculated by use of emission factors which have been derived by engineering studies; multiply the tonnage of the coal by the emission factor, and you get the tonnage of resulting emissions. In the case of Powder River Basin (PRB) coal, the emission factor is about 1.8. So, burning 48 million metric tons of coal per year and multiplying by a factor of 1.8 will result in 86 million tons of GHG emissions, per year.
For scale, the entire state of Washington currently emits just over 100 million tons of CO2 per year, and our targeted reductions according to state law will result in a lowering of these emissions to 93 million tons per year by 2020, and then to 70 million tons per year by 2035. Therefore, just one coal port can result in approximately doubling our annual GHG emissions for the whole state.
This quantity of emissions would logically appear to be something that could not be permitted. There is no reason that a state such as Washington would implement aggressive GHG emission goals at considerable cost, only to later allow a doubling of GHG emissions due to just one new facility in the state.
The hinge point of this matter is whether the coal port will have to take responsibility for those emissions. Terminal promoters says that “China will burn that much coal anyway,” meaning that our providing coal will not measurably affect the quantity of emissions.
Potential responses start with the factual. When you add to the supply of something in a market, its price goes down. When the price goes down, more gets used. It’s called economics.
Leading by Example
Another important response is moral. It’s never reasonable to participate in something harmful on the theory that it will otherwise occur anyway.
But today, let’s go with another approach. Let’s suppose for a moment that the pro-terminal approach is true — that there is no way to stop further massive increases in Chinese coal consumption, that the coal will come from somewhere, no matter what. By the way — China already has plenty of coal, from domestic sources and current imports, for consumption at their current rate. Therefore, coal from GPT would be only a marginal supply intended to support China’s expanded coal burning capacity.
This scenario contains a baked-in assumption that there will be no systematic change in the way that the world approaches greenhouse gas emissions, global warming, and the environment generally.
Let’s be clear on the outcome: it’s very, very bad. For China, for us, and for the world. It is a profoundly dismal outlook.
Preemptively giving in to this worst-case scenario is, by reflection, the worst possible decision we could make as a community and a country. Giving in simply allows others to promote giving in as well, pointing their finger at our actions.
Promulgating this idea that “there’s nothing you can do” is not limited to the proposed coal port — it’s part of a larger climate misinformation campaign that’s been going on for many years. Previously, climate deniers funded by the fossil fuel industry focused their efforts on spreading doubt about the reality of climate change. That’s been shredded by recent events such as super-storm Sandy, so the fallback position is to say that nothing can be done.
The only real hope for salvaging our climate is to make decisions that, in every case, reflect and create the potential for much better outcomes. For instance, a very small number of coal countries, as few as four (US, Australia, Indonesia, Mongolia), could agree to limit coal exports to help meet global climate goals. An increase in the price of coal, as well as other factors like severe local pollution, may deflect China away from expanded coal use and into a further increase in its already very aggressive renewables development. The simple fact of the world seeing the United States make responsible climate choices could encourage and embolden climate action everywhere.
The Turning Point
Those good outcomes may occur, or they may not. The only certainty is that if we don’t even try, they will not happen.
From the list of possibilities above, just one example of a positive trend is the growing awareness and activism in China regarding the health effects of air pollution. Not long ago, the people in mainland China were generally willing to accept egregiously bad air quality in exchange for what was presented as progress. Very quickly, that is no longer so true, as members of the new middle class discover that they cannot breathe disposable income. Over twenty years ago, I saw this occurring in Taipei, Taiwan, which at the time had some of the worst air quality in the world. It was just horrifying, and one of the big reasons I left there in 1987 was to avoid ingesting more soot in every breath. These days, Taiwan has very good, and continually improving, air quality.
This very basic idea — that people in China care about their health and are starting to do something about worsening air pollution — undermines a line that we have been fed time after time. We keep hearing that China will increase their emissions of pollution, including greenhouse gases, no matter what. That line is false, and is intended for only one purpose, which is to discourage us from action.
The connected nature of the world economy and world trade may cause some people to believe they can get away with saying “it will happen anyway.” The connected nature of world communications will help us refute that fatalism, by helping all of the people who care about our environment to find each other, work together, and simply take heart in the fact so many people, in so many countries, are working right now to protect our environment and climate.
References
• Washington State GHG emissions are published by WA Department of Ecology — the most recent inventory, published in 2010, covers emissions through 2008. Total 2008 emissions were 101.5 million metric tons of CO2 equivalent. The emissions consist mostly of CO2, and in addition there are smaller quantities of other greenhouse gases, which have a stronger greenhouse effect than CO2. The report is at: https://fortress.wa.gov/ecy/publications/publications/1002046.pdf
• Washington State GHG reduction targets are part of state law: RCW 70.235.020 (online at http://apps.leg.wa.gov/RCW/default.aspx?cite=70.235.020.) The 2020 target is equal to the 1990 emissions level, which was 92.9 million metric tons GHG equivalent. The 2035 target is a further 25 percent reduction from the 1990/2020 level, at 69.75 million metric tons per year.
• Emission factors for carbon dioxide emissions from coal are generally expressed in pounds of CO2 emissions per million BTU’s of heating value (MMbtu). An emission factor from EIA is 212.7 lb/MMBTU for Wyoming sub-bituminous coal (http://www.eia.gov/coal/production/quarterly/co2_article/co2.html ). That coal has a heating value of about 8,500 MMbtu/ton of coal. Do the math and you get 1.8 tons of CO2 emissions per ton of coal.
• A source of some confusion may be the fact of chemistry that, if you burn carbon, you get more than 3 times the weight of carbon as CO2. Starting with a standard carbon atom with an atomic weight of 12, you add two oxygen atoms and the result is CO2 with a molecular weight of 44, which suggests that a ton of coal would yield more than 3 tons of CO2, but coal is not pure carbon. The carbon that originated from decaying organic matter is mixed in with a variety of material, such as silt, that does not burn. Sub-bituminous coal may be 60 percent carbon or less.
• There has been an avalanche of news stories about air pollution concerns in China in recent months. This appears to be partly due to the fact that the problem is now so serious that the government is no longer able to keep a lid on it in the press. This is described in a January 14 New York Times article here: http://www.nytimes.com/2013/01/15/world/asia/china-allows-media-to-report-alarming-air-pollution-crisis.html?_r=0
James Wells develops systems that support energy efficiency incentive programs. He spends his spare time encouraging people to actively participate in the decision about the Gateway Pacific coal terminal.
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Adding to the atmospheric CO2 with a coal-burning power plant. Photo: Andy Mannie.
No daylight between local, state, regional, national and global impacts of continuing Combustapalooza decades into the future
In over nine thousand EIS scoping comments about the proposed Gateway Pacific Terminal (GPT) at Cherry Point, several hundred distinct types of concerns were raised, in many variations and personal perspectives. The concerns ranged in scale from very local to world-wide. Stepping back to a wider view, they merge seamlessly together — there truly is no daylight between local, state, regional, national, and global impacts of the proposed coal export terminal.
Looking at the mosaic of all of the concerns, another pervasive pattern emerges. The commenters are asking hard questions about a proposal that is based on a commitment to continue, and even aggressively expand, the Combustapalooza for decades into the future.
The Combustapalooza is the civilization-wide frenzy of digging up or cutting down everything in sight, and then lighting it on fire. Burning stuff is the main activity in our economy, outweighing any other single activity. The Combustapalooza has been accelerating for hundreds of years, and in recent decades the gas pedal has been pushed all the way down to the floor.
The Combustapalooza, at least as we know it, is going to end. The only question is whether it will end somewhat gracefully, or very, very badly. If we double down on massive new combustion schemes, the chances of a good outcome are pretty much gone, which is a very big driver of the outpouring of concern about the GPT proposal.
We are running out of Earth
We’ve heard a lot about global warming (except for the times when we mysteriously haven’t), but global warming is just a symptom, albeit a huge one, of a larger problem. As we approach and then overshoot the limits of our available resources, whether measured as supplies of stuff to burn, places to burn the stuff, or the ability of our Earth to absorb the resulting pollution, it simply won’t matter which proximate cause is driving misery in a given place and time. As measured in any number of dimensions, we are just plain running out of Earth.
It’s of course true that the right amount of fire, in the right place, can be good or even vital. It’s been part of nature since early in the history of terrestrial life. The problem is the scale of the binge – the largest and most damaging spree of any kind, ever, in history.
It doesn’t need to end badly. Solutions have already been recognized and put into play, so that we can continue to live reasonably well without lighting absolutely everything on fire. More solutions are in the wings.It won’t be the same world, but there can be a world where we and our kids will be okay.
Coal Export Threatens the Northwest, www.PowerPastCoal.org
We must directly engage Big Carbon
If only it were as simple as building those solutions. First, we have to overcome a number of human obstacles.
Initially, the challenge was to inform and educate the public about the urgency of the situation and how to make the necessary changes. Strangely, this was the easiest to overcome. The information exists, and there have been many motivated messengers. But by itself, simply spreading knowledge isn’t even close to sufficient. As Bill McKibben said in Seattle, on the opening night of his Do The Math tour in 2012:
My original plan to solve this crisis was that I would write some books, people would read them, and then we all would do what we need to do.
This approach had some initial success before gradually turning into a march through ever-deepening mud. And then it got even worse. It was almost as if someone was deliberately obscuring the truth of the matter, sowing doubt in order to paralyze any effective action.
It seemed that way because it was. Legions of professional doubters, funded by the fossil fuel industry and applying lessons from their decades-long tobacco holding action, mobilized to sow doubt about the realities of global warming and shrinking natural resources. Even the core concepts of science came under assault.
Even measured from this moment, we have the potential to feed children better, live in more peace with more liberty, and also preserve enough of the Earth for our children. We don’t have to light our future on fire.
Now, the battle is openly joined. In the Do The Math Tour, Naomi Klein doesn’t hesitate to make the call. We know who the enemy is: Big Carbon, especially the largest petroleum and coal companies. These companies are working hard to expand their profits regardless of the consequences for everyone.
As a result, efforts must now go beyond simply spreading the truth. We must directly engage Big Carbon, on several fronts, including advocacy, divestment, consumer action, political action, regulatory battles, and even non-violent direct action.
To win, we need to consider the cognitive terrain on which this battle will be fought. The narrative that each of us holds in our minds shapes every piece of information we take in, and every decision we make. That narrative has been shaped in turn by a cultural inheritance stretching back hundreds or even thousands of years, which in its depths is slow to change even as the waves on the surface may seem to be in constant motion.
Reframing the house in which we think
The dominant world view in the United States still assumes a world without limits, perpetually promising new frontiers that will relieve the pressure and provide new sources of prosperity. Every few years, another magic frontier is paraded out. Offshore drilling. The Internet. The McMansion bubble. “Enhanced recovery” (you know, fracking). Soon, it will be the Arctic (what could possibly go wrong?).
Big Carbon and similar big businesses, of course, love the limitless model. To extract a resource from the frontier du jour is to “Produce” it, and thus justify profit.
Our entrenched concepts of unlimited extraction and combustion can be illustrated by considering a word and the meaning we attach to it. Think for a moment about the word “coal.” What images come to mind? It is literally impossible to consider coal without also thinking about it as fuel for combustion. In our minds, coal = fuel.
However, the two words “coal” and “fuel” are different. Coal is a rock that exists below the ground. It only becomes fuel in a specific application, if we choose to exercise it. It’s a corrupting use of language when we conflate a natural substance with one potential use of that substance, so thoroughly that we can’t even separate the two meanings.
Consider “crude oil” and you’ll find the same thing. Even the term includes an assumption that the “crude” substance will be “refined” for the purpose of more effectively lighting it on fire.
The materials around us are amazing miracles. For instance, if we choose to pump oil out of the ground, it can be made into literally anything, to an extent that we are only just beginning to comprehend. It’s a tragedy that the best thing we can think of to do with oil is to ignite it. At about the time that we really understand the full potential of oil to help our lives, it will be mostly gone, or will be so remote that it is very costly to extract.
The entire history of civilization can be summed up in two milestones.
The first milestone was the day we learned to light stuff on fire. It was back in the Paleolithic, and it was a very big day! Fire, good! At last, we could have barbecue, and so many other good things.
The second milestone will be the day we learn not to light so much stuff on fire. It is possible, just possible, that we may be reaching that moment as we contemplate proposals such as Keystone XL and the Gateway Pacific Terminal.
To reach this second milestone, we need to re-frame the house in which we think. We’ve seen how the names of natural substances like coal or oil are inseparable in meaning from their expected fate, in fire. Additionally, terms like Growth, Production, and Economy have steadily become outdated or corrupted to refer to things that are deeply misleading and now useless for the challenges ahead – these words now refer primarily to the process of using things up and leaving only pollution and trash.
We can’t discard the words – we need to re-purpose them for the present day and for our future. In the December issue of Whatcom Watch (http://www.whatcomwatch.org/php/WW_open.php?id=1497 ) I took on “Growth,” but there are so many terms that have been imprisoned, and are crying out to be set free.
We can discover and then communicate the new meanings for these words through a variety of channels and methods, to create moments of clarity, so people can rediscover much of the goodness in our lives that has been stolen or allowed to slip away through inattention. Re-understanding the good things we all wish for our children is the key to gracefully ending the Combustapalooza.
It doesn’t have to end badly
How we navigate the ending of the Combustapalooza will be the most important legacy of our time here in the world. We can do it stunningly badly. We may leave a world that is not only superheated and polluted, but riddled with conflict over the diminishing dregs of the combustibles. We can do it stunningly well – it’s still possible.
The actual result will be somewhere in between. This lack of a binary outcome does not diminish the importance of meaningful action. Every tick of the needle in the right direction may be the difference of many millions of human lives saved, or lived with more happiness and less need. Each step will require a lot of hard work and a lot of growth – the good kind – from all of us.
Here’s something you can do today: choose a word, and imagine all of the meanings that the word might convey, if it was freed from any assumptions or limitations. Or, create a new word. How many ways can you, and your friends, apply that word to make the world a better place?
And then, of course, I hope you will spread the word.
James Wells develops systems that support energy efficiency incentive programs. He spends his spare time encouraging people to actively participate in the decision about the Gateway Pacific coal terminal.
