Northwest Tribes Band Together to Stop Oil-by-Rail

There’s no such thing as a good place for an oil-train derailment, but this year’s June 3 spill outside Mosier, Oregon, could have been worse if the 16 oil cars had derailed and caught fire even a few hundred feet in either direction. The derailment was just far enough away from populated areas, including a nearby school and mobile home park, that no injuries resulted, and the amount of oil that spilled into the river was limited. If it had happened another mile-and-a-half down the tracks, the damaged tank cars would have tumbled directly into the Columbia river during the peak of the spring Chinook salmon run.

“This derailment right along the Columbia River is … a reminder that oil trains mean an ever-present risk of an oil spill into our waterways, threatening fisheries and livelihoods for Quinault Indian Nation members and our neighbors in Grays Harbor,” Quinault Vice President Tyson Johnston said.

There are massive oil train ports planned for Anacortes, Grays Harbor, and Vancouver in Washington state. They have not yet broken ground, but if they ever do get built, the indigenous tribes that need healthy salmon to sustain their communities got a preview of what could go wrong.

The communities that live and fish along the Northwest’s most important waterways have been working to bring these proposals to a screeching halt. “Proposed crude oil terminals in Grays Harbor are a threat to our treaty rights to fish in our usual and accustomed places,” Johnston said. “Our safety, way of life, and economic future is on the line.”

The 96-car train that derailed in Mosier was headed to Tacoma from the Bakken oil fields. Bakken oil train traffic to the West Coast spiked from practically nothing in 2012 to almost 200,000 barrels a day at the start of 2015, according to the US Energy Information Administration.

While production in the Bakken fields is off its late-2014 peak, terminal developers are betting on the long-term prospects of oil pumped from the Bakken region and from the tar sands of Alberta, Canada. If the proposed facilities for Anacortes, Grays Harbor, and Vancouver ever operate at full capacity, that 2014 peak for crude oil by rail will look like a drop in the bucket:

• In Grays Harbor, Westway Terminal’s proposed expansion would outfit the company’s port to move crude oil from trains onto ships. The crude oil terminal could bring in nearly five trains per week to the harbor.
• In Vancouver, the proposed Tesoro-Savage oil terminal would be the largest rail-to-vessel shipping facility in North America. It would bring in another 36 loaded trains per week, or about 360,000 barrels of oil.
• In Anacortes, the Shell Refinery aims to build out a rail loop and additional unloading equipment in order to facilitate six more oil trains weekly than it already handles.

Significantly, weeks before the Mosier derailment, the Lummi Nation in the coastal northwest corner of Washington won a years-long battle against a massive coal export terminal proposed for the tribe’s shores.

Gateway Pacific Terminal (GPT), a project of marine shipping corporation SSA Marine, would have been the largest coal export facility anywhere in North America, large enough to handle 48 million metric tons of coal annually. It had the backing of two major players in the Powder River Basin coal industry, Peabody Energy and Cloud Peak Energy, to build a 3,000-foot-long wharf extending into waters fished by generations of Lummis.

Burning the coal proposed to ship through GPT would have produced 96 million metric tons per year of carbon pollution. Even the unburned coal at the terminal would have posed spill risks to the local aquatic ecosystem, an important economic, cultural, and spiritual resource for the Lummi Nation. An environmental impact analysis, begun in February 2014, had been slow-moving and its outcome uncertain.

How did the Lummi stop Gateway Pacific? They took a bold and unusual stand in January 2015, when they asked the U.S. Army Corps of Engineers to protect their right to fish their “usual and accustomed grounds and stations,” as written in the 1855 Treaty of Point Elliott. Treaties are powerful legal instruments with the force of federal law and the potential to preempt inconsistent state laws. If successful, they would win a decisive, precedent-setting victory. A failure would open the door to weakening treaty protections.

After 16 months of increasingly well-organized and visible public opposition to the project, the Corps decided the tribe was right: The coal port would impede tribal fishing practices. The Corps rejected SSA Marine’s application to build the pier.

The victory resounded throughout the region, increasing support and bolstering the resolve of other tribes embroiled in their own energy development battles.

“Today was a victory not only for tribes but for everyone in the Salish Sea. I hope we are reversing a 100-year trend of a pollution-based economy, one victory at a time,” Brian Cladoosby, chairman of the Swinomish Indian Tribal Community and president of the National Congress of American Indians, told the Seattle Times.

“The Corps’ decision is a victory for the Yakama Nation and all other treaty tribes,” JoDe Goudy, chairman of the Confederated Tribes and Bands of the Yakama Nation, said in a written statement. “The fight, however, is not over. The threat of the coal movement remains, and the Yakama Nation will not abide these threats.”

Sure enough, the Yakama have joined with the Confederated Tribes of the Umatilla Indian Reservation and others to protest the massive Tesoro-Savage oil-by-rail terminal proposed for the banks of the Columbia River in Vancouver. In contrast to the Lummi, the Umatilla and Yakama are willing to let the environmental review process play out before taking overt action to protect their treaty rights.

In 2014, both tribes asked that the environmental impact statement (EIS) for the Tesoro-Savage project consider impacts to treaty rights. However, as the Lummi fight illustrated, treaty rights may be considered separately from the EIS, which remains the centerpiece of any major environmental review and is intended to outline all the potential environmental problems and ways to handle them.

Still, Yakama officials clearly rejected the notion that impacts to their land and treaty rights could be mitigated. “To be clear,” wrote Chairman of the Yakama Nation Tribal Council Harry Smiskin in a 2014 comment to the Corps, “Yakama Nation will not negotiate nor agree to so-called mitigation for any violations or actions resulting in the diminishment or destruction of its treaty-reserved rights.”

Cladoosby, the Swinomish chairman, struck the same note in a statement to the media earlier this year about the GPT: “There is no mitigation. We have to make a stand before this very destructive poison they want to introduce into our backyards. We say no.”

In another tactic, the Swinomish Indian Tribal Community sued BNSF Railways in April last year for violating a contract between the tribe and the railroad that limited the length of trains that passed through the Swinomish reservation to 25 cars each and required the tribe be informed of changes in cargo. The Swinomish had learned from the media that BNSF was delivering crude oil on trains with 100 cars or more to the Shell and Tesoro refineries in Anacortes.

The tribe won an early decision in the lawsuit when a federal judge denied a BNSF motion to bring the issue before the Surface Transportation Board. The case is properly heard in federal court, the tribe said in a September 2015 statement, “The STB has no jurisdiction over tribal rights.”

It’s worth noting the basis for the Corps’ decision in the Lummi case. While the Lummi Nation was prompted to make its request to the Corps by a vessel traffic study that concluded the coal port would bring 487 more vessels through the tribe’s fishing grounds, the Corps did not rely on busier vessel-traffic lanes through Lummi fishing territory to make its decision. Instead, it referred only to the disruption of fishing that would occur at the dock site itself — about 122 acres total.

While the main area of concern for the Yakama and Umatilla is away from the proposed Vancouver oil terminal site — their main fishing grounds are the 150 miles of the Columbia River between Bonneville Dam and McNary Dam — the Quinault Indian Nation fishes out of Grays Harbor, where it has notable success fishing where ships would dock at the Westway expansion.

That fishing spot would be disrupted. The completed draft EIS for Westway describes how tribal fishers would need to either work around the increased number of vessels or fish elsewhere. But here’s an important legal point: In the Lummi Nation’s case, the Corps’ Colonel Buck found that just going somewhere else to fish, as long as the tribe could hit its catch quota, was not an adequate protection of treaty rights.

Tribes are not confronting fossil-fuel projects alone and in a vacuum. They have been sharing resources and lobbying together in Washington, D.C., to oppose the many fossil-fuel projects proposed for the Pacific Northwest. “Working with the Lummis and seeing what they’ve gone through with the Army Corps of Engineers was definitely helpful, because it sets a precedent,” said Johnston, the Quinault Indian Nation vice president.

Unlike the Lummi, the Quinault approach has been to focus the fight at the state rather than the federal level. Even with the different approach, the Quinault tribe believes the Lummi decision “bolsters and strengthens the position we have,” Johnston said.

Could the Lummi Nation’s assertion of treaty rights be a magic bullet other tribes could use to stop fossil-fuel projects?

“There’s no direct answer to the question, except — maybe,” said Robert Anderson, director of the Native American Law Center at the University of Washington School of Law. “The Cherry Point decision rested on evidence of direct interference with Lummi fishing by increased shipping traffic (at the terminal). The less direct the connection between such interference and environmental harm, the more difficult any case will be.”

For the Lummi, fishing is such an integral part of their identity that they decided to sidestep the long, drawn-out EIS process and pull out all the stops to save their way of life. The Quinault, Umatilla, and Yakama appear willing to see the environmental reviews for Tesoro-Savage and Westway through to the end.

If this approach seems more conservative, keep in mind the Lummi strategy was risky. If the decision had been appealed in federal court, a judge somewhere down the line could reverse the Corps’ ruling and, by doing so, unravel some of the treaty protections the Lummi Nation and other tribes rely on for their survival.

“I definitely think there should be concern from all tribal leadership because we don’t know what the results would be if it went to a higher court,” reflected Lummi council member Jeremiah “Jay” Julius a few days before the Corps released its decision.

But even a setback for treaty rights through a decision by, say, a conservative U.S. Supreme Court wouldn’t be daunting for the Lummi Nation, said Darrell Hillaire, a former tribal chairman. “You think that this one issue is going to extinguish that belief? No, it’s going to strengthen us.”

Like other tribal members interviewed for this article, Hillaire takes a long view, both when looking forward and looking back. He pointed out that White settlers thought they might eradicate Lummi members after the introduction of alcohol and smallpox, or force them to assimilate after sending Lummi children to boarding schools where they couldn’t learn their own language. Hillaire said Lummi believe they are survivors.

The Lummi Nation showed remarkable unity in its opposition to the terminal, which helped members get through the long fight. Likewise, other tribes are united in opposition to fossil fuel projects across the region. Whatever the end game might be for tribes such as the Yakama and Swinomish, there’s a sense that the tide is turning in their favor. Hillaire sees the current times as empowering for tribes.

“What we have now is an emergence,” he said. “Not just Lummi, but there are a lot of First Nations people — their culture and their social structures, their government itself … they’re all emerging. I think they see that as a continuation of their sacred responsibility.”