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Lummi Nation and Crow Tribe at odds over provision in energy bill

Friday, December 4, 2015

Members of the Lummi Nation stand against a coal export terminal in Washington. Photo from Sierra Club

The Lummi Nation and the Crow Tribe clashed on Capitol Hill this week as Republicans pushed another controversial energy bill through the House.

By a vote of 249 to 174, the House passed H.R.8, the North American Energy Security and Infrastructure Act, on Thursday. The bill drew opposition from Democrats as well as a direct veto threat from President Barack Obama over numerous provisions affecting the nation's energy supplies.

But it was a different provision in the 235-page measure that sparked attention in Indian Country. Republicans successfully adopted an amendment on Wednesday that wades into a dispute that has pitted the Lummis and other Pacific Northwest treaty tribes against the Crows and their Congressional delegation.

"Perhaps without even knowing the implications of their actions, some members of Congress are working to undermine treaty rights," Lummi Nation Chairman Tim Ballew II and Tulalip Tribes Chairman Melvin Sheldon, Jr., wrote in The Hill as the rider was being considered on the floor of the House.

The amendment was written after Northwest tribes asked the U.S. Army Corps of Engineers to deny a permit for the Gateway Pacific Terminal in Washington. The project site is located on the Lummi Nation's usual and accustomed fishing grounds at Cherry Point and tribes worry that the shipment of coal would erode their treaty protected rights.

The rider, though, prevents the Army Corps from taking action until all other relevant federal agencies have weighed in on the environmental impact statement for the project. The Crow Tribe, whose leaders have signed a deal to ship coal from their reservation in Montana to the proposed terminal, supports the provision.

The Crow Tribe has partnered with Cloud Peak Energy to develop a mine on the reservation in Montana. Both are now a part of the proposed Gateway Pacific Terminal in Washington. Photo from Big Metal Coal

“The Gateway Pacific Terminal is a project that is essential to my tribe’s future and our economic hopes are at this point completely dependent on securing a port for exporting our low-sulfur coal to markets that currently rely on high-sulfur coal supplies," Crow Chairman Darrin Old Coyote said in a press release on Thursday. "It is so essential that my tribe has actually taken an interest in the project and are a part-owner of this project.”

The Crows and their partner, Cloud Peak Energy, are working to develop the Big Metal Mine on the reservation and the terminal is key to their success -- without it, they will have to find a different way to ship coal to markets in Asia. The partners envision sending 1.4 billion tons of coal overseas, a deal that would generate millions of dollars for the tribe.

The Army Corps has yet to issue an environmental impact statement for the terminal. The state of Washington and Whatcom County are also conducting their own reviews of the project.

According to the Washington Department of Ecology, the draft EIS won't be ready until late 2016. The final EIS won't come until "late 2017" -- meaning a decision would rest with the next president if the process continues as planned.

On the other hand, if the rider becomes law, it would prevent President Obama and his administration from altering the process.

"It is not about coal. It is not about commodities, nor is it about treaty rights because, quite frankly, the Crow Tribe in Montana has treaty rights, too," Rep. Ryan Zinke (R-Montana), a new member of Congress, said during debate on the measure. "This is not to pit one poor nation against a rich nation. It is about simple fairness."

Zinke co-sponsored the amendment that affects the Gateway Pacific Terminal. It was included in H.R.8 by a voice vote and it reads:

SEC. 3007. ENVIRONMENTAL REVIEW FOR ENERGY EXPORT FACILITIES.

Notwithstanding any other provision of law, including any other provision of this Act and any amendment made by this Act, to the extent that the National Environmental Policy Act of 1969 (42 U.S.C. 4321 et seq.) applies to the issuance of a permit for the construction, operation, or maintenance of a facility for the export of bulk commodities, no such permit may be denied until each applicable Federal agency has completed all reviews required for the facility under such Act.

The Senate must take action on the measure before it becomes law.