Lummi Nation Stands Up For Bellingham Bay

Wendy Harris is a retired citizen who comments on development, mitigation and environmental impacts.

The Lummi Nation is standing their ground beyond Cherry Point. As the Bellingham Bay waterfront planning process moves forward, the Lummi are insisting that tribal treaty rights, and the ecological functions of the bay, be restored and protected. Lummi Nation is a designated natural resource co-manager for the bay, yet the city, the port and Washington State Department of Ecology (DOE) continue to make waterfront plans without consulting the Lummis or considering their treaty rights.

The Lummi Nation has used Bellingham Bay since time immemorial for commercial, subsistence and ceremonial purposes, but lost access to almost 750 acres of Bellingham Bay nearshore when it was dredged, filled, armored and developed, and toxic substances, such as dioxin, mercury and heavy metals, were discharged into the bay. (See nearshore graph on facing page.)

In 2010, the city learned that grant funding for an overwater walkway connecting Boulevard Park and Cornwall landfill would not be released without Lummi concurrence. The Lummis raised concerns regarding environmental impacts and the lack of adequate mitigation. They questioned the need for this project, noting that this area of Bellingham Bay was one of few nearshore areas that had not been modified to harm tribal fishing rights, and that the overwater walkway duplicated the path of the South Bay trail. The Lummis advised that “Bellingham Bay is the backyard for the Lummi Nation and each permanent change impacts the ability for the tribal members to exercise their treaty reserved rights in the Bay” (Letter to city dated February 8, 2011.)

The city has allegedly been conducting settlement negotiations with the Lummi, but this matter remains unresolved after three years. Perhaps the problem is best reflected in the city’s continuing failure to treat the Lummi Nation as a co-manager of Bellingham Bay. One would expect that after the conflict regarding the overwater walkway, the city would include the Lummis in waterfront plans impacting Bellingham Bay generally, and the Cornwall Landfill specifically. Instead, the city continues to ignore tribal concerns and interests.

On September 13, 2013, the Lummis filed an objection to the cleanup plan proposed by the Washington Department of Ecology (DOE). The cleanup plan is based on the proposal submitted by the port and the city. There are two basic strategies for a site cleanup: off-site removal of toxic waste, or on-site containment. While it was agreed that off-site removal was the best environmental solution for the Cornwall Landfill, it was deemed to be too expensive. The proposed strategy is to cap the toxic waste with dioxin-contaminated sediment, sand and plastic liners.

In their strongly worded letter, the Lummis objected to on-site containment and requested off-site removal of toxins. The tribe noted that a cost analysis failed to include the value of tribal treaty rights, and allowed the city to save money at Lummi expense. The letter stated that “as the site remediation is currently contemplated, there is little benefit or resolution to the impacts imposed on the Lummi Nation.” The Lummis asked for corrective actions for past transgressions and protection against further impacts to tribal resources. DOE has not yet responded to the Lummi request.

Treaty rights can only be exercised in a healthy, functional Bay, and while the city remains focused on extracting as much short term profit as possible from the waterfront, the Lummis remained focused on an environmentally healthy resource that will sustain its people for the long term. The well-written Lummi letter regarding cleanup is reprinted below.

-------------------------

insert start

September 13, 2013

Ms. Mala Bellon, Director

Department of Ecology

P.O. Box 47600

Olympia, WA 98504-7600

Subject: Comments on the Draft Cornwall Avenue Landfill Clean-Up Site (Facility Site ID No. 2913) Bellingham, Washington Remedial Investigation and Feasibility Study

Dear Ms. Bellon,

The purpose of this letter is to provide comments from the Lummi Natural Resources Department on the public review draft remedial investigation and feasibility study (Rl/FS) for the Cornwall Avenue Landfill Clean-Up Site (Facility ID No. 2913). The Lummi Cultural Resources Department may be submitting comments on the Rl/FS under a separate cover.

The Lummi Nation has a basic and fundamental concern with the RI/FS and its associated preferred clean-up option that is highlighted by a gap in the site history presented in the fact sheet for the proposed action. Although the text of the RI/FS accurately states that historically the majority of the site consisted of tide flats and subtidal areas, the project fact sheet (the only document about this proposed action that is generally read by the public and the basis for public comments) indicates that the site history began in 1888 with the site being used for sawmill operations including log storage and wood disposal. The site was then used by the City of Bellingham as a municipal waste landfill from 1953 to 1965. The omission of the historic use of this site is factually incorrect, misleading, and a poor substitution for reality. If factually accurate, the site history section of the fact sheet would begin with time immemorial and would have identified the use of the site by Lummi Indians for commercial, ceremonial, and subsistence harvest of salmon and shellfish and to provide habitat for the organisms relied on for this purpose. This traditional use and value of the site, which is protected by a Treaty with the United States, was curtailed without permission, compensation, mitigation, or apology by first dumping wood waste on this important habitat and fishing area and then dumping the garbage of the citizens of Bellingham on lands that we rely to exercise our Schelangen (“way of life”).

This filling and destruction of habitat and fishing areas that our people rely on with the garbage of our neighbors is highly insulting. Now, the liable parties are seeking to compound these insults with a RI/FS conclusion that removal of the contaminated soil and garbage would be too expensive even though the RI/FS also concludes that removal would:

1. Provide the highest level of protection of human health and the environment of all of the alternatives consider;

2. Be the most permanent of the alternatives considered;

3. Have the highest certainty of long-term effectiveness of the alternatives considered; and

4. Have the highest net environmental benefit based on the amount of aquatic habitat improved and created.

The Lummi Nation has additional concerns with the analysis that was undertaken in the feasibility study. A Disproportionate Cost Analysis that considered only the clean-up costs to the potentially liable parties (Port of Bellingham, City of Bellingham, and the Washington State Department of Natural Resources) was used to eliminate the removal alternative from further consideration. This resulted in an artificial narrowing of the potential solutions to the waste and contamination. If the Disproportionate Cost Analysis considered the costs to the environment, the costs to the Lummi Nation, environmental justice, cumulative effects, and other non-market goods and services over the last 125 years that have already been incurred as a result of the dumping activity at this site, a different conclusion may have been reached. The approach taken in evaluating the clean-up alternatives essentially ignores the disproportionate cost to the Lummi Nation associated with land use activities that destroyed land relied on since time immemorial to support the exercise of treaty protected rights. Ignoring the disproportionate cost already incurred by the Lummi Nation (and the environment overall) allows the City of Bellingham to essentially “pocket” all of the cost-savings that it has already realized by dumping garbage into our fishing areas rather than shipping its municipal solid waste to an appropriate upland location.

The Lummi Nation is the primary natural resource manager in the Bellingham area. The Lummi Nation is one of the signatories to the Point Elliot Treaty of January 22, 1855 (12 Stat. 927), which was ratified by the United States Senate on March 8, 1859, Proclaimed April 11, 1859, and which reserves certain rights for the Lummi people including but not limited to “the right of taking fish at usual and accustomed grounds and stations” and “hunting and gathering roots and berries on open and unclaimed lands.” The decision of United States v. Washington (384 F. Supp. 312, 377 W.D. Wash. 1974), aff’d, 520 F.2d 676 (9th Cir. 1975), cert. denied, 423 U.S. 1086 (1976)) and subsequent court orders, as upheld by the United States Supreme Court, provide rules of engagement of the Lummi Nation and other co-managers relating to natural resources management. The Lummi Nation is a federally recognized Indian tribe and the Lummi Indian Business Council (LIBC) is the duly constituted governing body of the Lummi Indian Reservation by the authority of the Constitution and By-laws of the Lummi Nation of the Lummi Reservation, Washington. The Lummi Indian Business Council and the Lummi Natural Resources Department regularly works with Ecology and other state agencies to address concerns regarding our shared resources. What were formerly highly productive tide flats and subtidal areas that performed important ecological functions and that were fished by the Lummi People, now called the Cornwall Avenue Landfill Site, is located within our adjudicated usual and accustomed grounds and stations. As the site remediation is currently contemplated, there is little benefit or resolution to the impacts imposed on the Lummi Nation.

The Lummi Nation is a fishing tribe and has used the waters and shorelines of Bellingham Bay since time immemorial. Prior to and following the arrival of Euro-Americans, the shorelines of Bellingham Bay were used as fishing villages and the tidelands and waters of Bellingham Bay were used to harvest fin and shellfish for commercial, ceremonial and subsistence purposes. Although the Lummi Nation still fishes the waters of Bellingham Bay, the resources and the habitat that is required to support a sustainable harvestable surplus have been degraded by human activities and shoreline development, which have limited or precluded the use of traditional hunting, fishing, and gathering sites along the bay. As shown in [the figures above], approximately 748 acres of the Bellingham Bay nearshore has been impacted (dredged, filled, or armored) including the Whatcom Waterway, the Aerated Stabilization Basin (ASB), and the Cornwall Avenue Landfill. In addition to these actions, which have physically precluded the exercise of tribal treaty rights in these areas and eliminated key habitat needed to sustain salmon and shellfish, the Whatcom Waterway, the ASB, the Cornwall Avenue Landfill and surrounding areas are contaminated with a number of substances released from industrial waterfront activities including mercury discharges from the former Georgia-Pacific chlor-alkali plant and the essentially unregulated dumping of municipal waste.

Consistent with LIBC Resolution 92-126, the Lummi Nation’s position is that it is time for the Washington Department of Ecology (Ecology) to take corrective actions for these past transgressions and to prevent any further impacts to tribal resources. Resolution 92-126 resolves that, “The policy of the Lummi Nation is to ensure no further loss of the resource base or of environmental quality, and to restore and enhance damaged areas within the Lummi homeland and territories.” Accordingly, our position is that Ecology should take the following actions:

1. Consider the impacts and costs over the last 125 years ( adjusted for inflation) of the dumping of wood waste and municipal solid waste on the people who relied on the former tidelands and subtidal areas for commercial, ceremonial and subsistence purposes — not just the clean-up costs for the potentially liable parties who have already benefited from the destruction of resources relied on by the Lummi Nation.

2. Despite the higher costs, require the potentially liable parties to implement Alternative 4 (i.e., remove the contaminated soil and garbage and restore approximately 7 acres of tidal and subtidal habitat and fishing areas).

Sincerely,

Merle Jefferson, Executive Director

Lummi Natural Resources Department

insert end