Three summers ago, the company that wants to build the largest coal export terminal in North America failed to obtain environmental permits it needed before bulldozing more than four miles of roads and clearing more than nine acres of land near Bellingham, Wash., including some wetlands.
Pacific International Terminals also failed to meet a requirement to consult first with local Native American tribes, the Lummi and Nooksack, about potential archaeological impacts of the work.
Sidestepping tribal consultation meant avoiding potential delays and roadblocks for the projects development.
It also led to the disturbance of a site where 3,000-year-old human remains had previously been removed, and where archeologists and tribal members suspect more are buried.
Pacific International Terminals and its parent corporation, SSA Marine, subsequently settled a lawsuit by Bellingham environmental group RE Sources by paying $1.6 million, for violations under the Clean Water Act.
According to company documents released during the lawsuit and subsequently shared with EarthFix, Pacific International Terminals drilled 37 boreholes throughout the site, ranging from 15 feet to 130 feet in depth, without following procedures required by the Army Corps of Engineers under the National Historic Preservation Act.
The Gateway Pacific Terminal is one of three pending coal export facilities proposed in Oregon and Washington; three other Northwest proposals have been dropped. Mining and transportation interests want to move Wyoming and Montana coal by train so it can be loaded onto vessels on the Columbia River or Puget Sound and then shipped to Asia.
One of the boreholes at the Gateway Pacific site was drilled within an area designated as site 45WH1, a well-documented archaeological site in Whatcom County, Wash.
Boreholes are drilled to test the soil composition and geology of a site. In this case, the test was to help determine if the ground at Cherry Point could stand up to 48 million tons of coal moving over it each year.
Government regulators and tribal officials say they were unaware of Pacific International Terminals non-permitted work at Cherry Point, until a local resident was out walking in the area, saw the activity, and reported it.
Pacific International Terminals said it was an accident. The company had planned to drill 36 more boreholes at the site before its activity was reported.
According to a document the company submitted to the Army Corps of Engineers four months prior to the non-permitted activities at the site, Pacific International Terminals knew the exact location of site 45WH1 and had said that no direct impacts to site 45WH1 are anticipated as the project has been designed to avoid impacts within the site boundaries.
In the document, the company said that to mitigate potential impacts it would have an archaeologist on hand for any work done within 200 feet of site 45WH1. The company also acknowledged that it needed an inadvertent discovery plan in case human remains or other artifacts were uncovered, and that it would be required to consult with the Lummi tribe under Section 106 of the National Historic Preservation Act before any work could begin at the site. Pacific International Terminals did none of those things.
By going ahead and doing it illegally and then saying, oh sorry, but actually having the data now, it allows them to start planning now, said Knoll Lowney, one of the lawyers who represented RE Sources in its lawsuit against the terminals backers. That way if they get their permits someday, theyre ready to build right then.
Pacific International Terminals and its parent company, SSA Marine, declined repeated requests for an interview. Bob Watters, senior vice president of SSA Marine, emailed this statement:
We sincerely respect the Lummi way of life and their cultural values. Claims that our project will disturb sacred burial sites are absolutely incorrect and fabricated by project opponents. We continue to believe we can come to an understanding with the Lummi Nation regarding the Gateway Pacific Terminal.
Ancestors of the Lummi peoples hunted, fished and buried their dead at Cherry Point for more than 3,000 years. And there is no shortage of archaeological evidence to prove it.
45WH1, a small section of Cherry Point, is just 50 by 500 meters in size, though its location is not publicly shared. Researchers, including Sarah Campbell, a professor of anthropology at Western Washington University, believe the site was used extensively, spanning from 3,500 years ago until relatively recently. The Lummi signed the land away in a treaty with the federal government in 1855. It is now owned by SSA Marine and Pacific International Terminals.
Campbell believes that there are more Lummi ancestors buried at Cherry Point.
It would be highly, highly, highly unlikely that there are not human remains in unexcavated areas of the site, she cautions. Its absolutely prudent to assume that there are.
Cultural Destruction, Tribal Opposition
From the deck of his fishing boat, the Gods Soldier, Lummi tribal council member Jay Julius looks to the shore of Cherry Point. He says that, for the Lummi, the spiritual and cultural value stretches far beyond the boundaries of site 45WH1.
I see this as my peoples home. I can envision it, Julius says quietly. I know whats there now.
Julius cites Pacific International Terminals unpermitted activity at Cherry Point as a major source of tribal opposition to the Gateway Pacific Terminal.
When I come out here, its all thats on my mind is what took place here at Cherry Point when these guys bulldozed over it and called it an accident, he said. Its obvious. It doesnt take a genius to figure it out.
Accountability For Archaeological Destruction
Despite the fact that the Lummi tribal council asserted its unconditional and unequivocal opposition to the Gateway Pacific Terminal in a letter it sent to the Army Corps of Engineers on July 30, the Lummi chose not to take part in the civil suit brought by RE Sources. It is unclear why the Lummi decided against participating in the environmental law suit. Diana Bob, attorney for the Lummi, declined to be interviewed for this story.
If they dont take part in the legal process, theyre weakening themselves. Theyre throwing away their weapons, said Tom King, an expert on the National Historic Preservation Act who served on the staff of the federal Advisory Council For Historic Preservation in the 1980s.
King said Pacific International Terminals unpermitted drilling and disturbance at Cherry Point could put approval of the Gateway Pacific Terminal at risk because the company skirted the requirements of the so-called 106 process under the National Historic Preservation Act.
I think the Lummi have a very strong case, he said. The site, the area, the landscape they can show that its a very important cultural area and permitting the terminal to go in will have a devastating effect on the cultural value of that landscape.
The Army Corps of Engineers is now working on finalizing whats called a memorandum of agreement between Pacific International Terminals and the Washington State Department of Archaeology and Historic Preservation. The Army Corps says the document, which was obtained by EarthFix under the Freedom of Information Act, will serve as a retroactive permit resolving adverse effects associated with the damage caused to 45WH1 associated with non-permitted geotechnical work at Cherry Point.
The Lummi Nation refused to sign the memorandum or accept the $94,500 that was offered to the tribe as mitigation for the damage through the memorandum.