Oil Check Washington

3 different Washington tribes sue over oil and coal trains, final straw in long history

Sep 23rd - A recent string of lawsuits from Local Native American Nations has brought new media attention to their fight against oil and coal in the Northwest. But contrary to some of the coverage, their step to take legal action is not a sudden move. This has been the last straw in a long standing battle to protect their indigenous sovereignty from fossil fuel expansion.

Lummi vs. Gateway Pacific Terminal

The Lummi Nation, whose boundaries stretch around Lummi Island just off the coast from Bellingham, WA (about 90 minutes north of Seattle) made headlines earlier this month when they retained Dentons, the largest law firm in the world. Their target: the Cherry Point Gateway Pacific Terminal, a coal export facility that if built would be the largest in the country. The Lummi have spent more than 2 years trying to convince the Army Corp of Engineers that this facility will impede on their legally mandated fishing rights in the waters surrounding the facility. Cherry Point is an official state aquatic reserve and the Lummi’s historic fishing grounds. By state supreme court order they have treaty rights to “usual and accustomed” fishing in the state. Gateway Pacific attempted to stir-up anti-tribal sentiment in the region by asserting that the Lummi’s opposition stems not from their mandated fishing access but a land grab. The Lummi have called these claims baseless and are set to take legal action to shut the project down.

But this is no recent development. The Lummi have been the state’s strongest voices in opposition of coal export for several years. In 2011, after Gateway Pacific damaged local Lummi Nation burial grounds while constructing on wetlands without permits the Lummi subsequently burned a mock check "signed" by Gateway at the site of the planned coal terminal. It was a pivotal symbol that galvanized local communities. Continuing their leadership against coal and oil in the Northwest, they led a faith-based totem pole tour across the Northwest and through out British Columbia and Alberta to protest local fossil fuel mega projects. The trip brought a coalition of First Nations, faith organizations and Northwest residents to their cause.

Swinomish vs. BNSF and Shell

In April of this year, the Swinomish tribe sued Burlington Northern Santa Fe Railway for violating legal agreements between the railroad giant and the tribe. The Swinomish signed an easement with BNSF to allow 1 train of 25 cars across their territory in Skagit County, WA. BNSF has now been running 6 unit trains full of Bakken crude oil (that has been exploding with terrifying frequency) with more than a 100 cars. For those of you keeping score at home, that’s 4 x as much as allowed by the agreement.

On September 16th this suit was taken to federal court after BNSF tried to have it thrown out on the local level.

From Go Anacortes article:

The tribe never granted BNSF permission to increase the number of cars and repeatedly demanded BNSF to stop violating the easement.

“This case is about BNSF living up to its word. Promises matter,” Cladoosby said. “We all know the dangers of Bakken crude. We have an established agreement for working with the railroad on these issues. It’s now up to BNSF to comply with the limitations it agreed to in writing.”

BNSF asked Judge Lasnik to refer key issues to the Surface Transportation Board, a successor agency to the Interstate Commerce Commission that resolves railroad rate and service disputes and reviews proposed railroad mergers.

The tribe said the Surface Transportation Board has no jurisdiction over tribal rights under the Indian Right-Of-Way Act of 1948.

Judge Lasnik agreed.

This is not the first dispute the Swinomish have had with BNSF or the oil’s final destination Shell Oil’s Anacortes, WA refinery.

In 1991, the tribe and BNSF signed an agreement settling a 1976 lawsuit filed by the tribe for nearly a century of trespass. Train tracks running across the northern edge of the reservation were laid in the late 1800s without consent from the Swinomish or federal government. The agreement granted BNSF an easement but with important conditions: BNSF would regularly update the tribe on the type of cargo — and only one train of no more than 25 cars would cross the reservation in each direction daily.

Meanwhile Shell has caused problems of their own. Toxic releases from Shell’s nearby refinery have routinely been released down-wind of the Swinomish reservation. In February of this year, dozens of tribal members were hospitalized when Shell flared chemicals into the area during planned maintenance.

From King 5 story:

Neighbors living near a Shell refinery in Anacortes are voicing their concerns after it released a terrible odor into the air Friday.

Members of the Swinomish tribe are complaining about breathing problems two days after smelling the odor. The tribe is about six miles south of the Shell refinery in Anacortes.

The nagging cough and the pain in his chest remind Mike Cladoosby of the horrible odor that hit him Friday afternoon.

Quinault vs. Gray’s Harbor oil terminals

The Quinault reservation lies just north of Gray’s Harbor Washington. According to a KUOW story on the region, a quarter of the tribe’s population is employed by the fishing industry. Meanwhile, Grays Harbor is set to be host to a significant influx of new oil trains. Imperium Renewables (now bought by the Renewable Energy Group) and the Westway Terminal are seeking permits to store and ship Bakken crude oil through the region.

The tribe is adamant that these new oil facilities drastically threaten not only their fishing rights, but their way of life. One tribal member was quoted saying “What’s a culture worth? What’s a history and tradition worth? You can’t put a number on it.” They’ve filed a petition with Earth Justice to the Energy Facility Site Evaluation Council to re-site the facilities based on risks to their historic treaty rights.

Local residents also have concerns about their region’s image.

From KUOW story:

“That much oil, all we’re going to be is an oil terminal. They’re going to dominate our landscape,” Said Al Carter former County Commissioner. “Nothing else is going to come here. Nobody else is going to want to come here. There won’t be any room for anything else.”

Fossil fuel projects are cropping up across the Northwest as new coal and oil reserves are tapped in the country’s interior. As project proponents look for new sites for terminals, they are repeatedly encroaching on local tribal sovereignty. After negotiations and petitioning fail, tribes have turned to legal action against these projects. This isn’t a battle between parties with equal claim over a region. It isn’t a dispute that has gray areas around ownership. Local tribes have legal and historic claims to each of these territories and fossil fuels companies in all corners of the region are attempting to circumvent their tribal ownership.

There is a land-grab happening but it isn’t coming from local tribes, its happening to them.

Nick Abraham - Editor Oil Check Northwest

[email protected] @oilchecknw


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