1131 SW Klickitat Way Seattle Washington 98134 800/422-3505 tel 206/623-0179 fax

May 12, 2015

Sent via email and original via post

Michelle Walker Chief, Regulatory Branch Seattle District, Corps of Engineers PO box 3755 Seattle, WA 98124-3755 RE: NWS-2008-260 Gateway Pacific Terminal Dear Ms. Walker: To follow up on my letter of May 8, 2015, we are providing the following preliminary list of topic areas, our approach to the analytical work, and an initial estimate of the timeframe to develop ample facts as our response to the Lummi Nation’s (the “Tribe(s)”) petition to cease the permitting process for the Gateway Pacific Terminal project (the “Terminal”). This preliminary list of topic areas includes a brief description of the investigations we are pursuing and expert witnesses we intend to consult. The petition from the Tribe includes declarations by tribal members that incorporate claims that their tribal fishing rights would be adversely affected by the proposed Terminal project. At the outset, we note that the Tribe has first-hand access to information that we do not have. Nor have we had access to the tribal fishermen themselves to more fully understand the very general allegations made in the declarations. That means we necessarily have to obtain information from other sources: public information, experts in fisheries and other fields, and other fishermen knowledgeable about the area and fishing techniques. As the US Army Corps of Engineers (the “USACE”) well knows, this is not information that can be put together overnight. The reference to National Environmental Policy Act (“NEPA”) in our previous letter was not to suggest our effort would somehow replicate that entire process. The NEPA process does; however, arrive at an independent and objective analysis of the information requested here, which is: What are the impacts of the Terminal proposal on fisheries? Importantly, it also provides a well-established means of obtaining information from a variety of sources important to a full understanding of these issues, including experts, the public and expert resource agencies. Notably, the limited case law in this area shows judges relying heavily on the objective input of experts. Major project elements that can change as a result from a full airing of information include alternatives for the features and location of facilities, operational characteristics of the proposed Terminal, and other changes to the project that might result in enhancement of fishing opportunities for the Tribe. These could include improvements to habitat in the immediate vicinity of the Terminal that could provide benefits to offset any potential losses.

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1131 SW Klickitat Way Seattle Washington 98134 800/422-3505 tel 206/623-0179 fax

Specifically, it must be established whether the Lummi fishers do in fact use the specific area where the pier is proposed on more than an extraordinary basis. We will be seeking information to establish whether, in fact, the project will adversely affect tribal fishing success in this area. This could involve, among other things, input from public records and experts to the following:    

The habitat at the site of the pier and the bio-mass of any fisheries resources. The physical characteristics of the area that affect fishing, including the bathymetry, sediments, etc. Legal obligations such as allowed openings for different fisheries resources that affect the Tribe’s use of this area and that, in turn, might suggest mitigation actions. Practical aspects of fishing such as the depth, separation, and most efficient timing of crab pot use.

This information might lead to project changes that could include:   

Allowing crabbing to occur during the limited openings to the extent that the resource could be fully exploited. Enhancing the habitat in the immediate vicinity such that more resources could potentially be obtained than are currently available. Ways in which the overall current conditions for fishing might be improved.

In order to gather, assess, and present solid facts for your consideration, we will need to address, among other things, the following: 

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The determination of the range of operational effects (navigation of vessels for example), the application of vessel traffic management (Rule 10), and effects on Tribal access to fishing at or adjacent to the proposed wharf and trestle structure. A number of the declarations state that the Cherry Point area is only one of the areas within the designated Lummi tribal U&A to be fished. Therefore, any determination of de minimis impacts must consider the availability of the entire Lummi U&A as the baseline. Yet the Tribe was not provided baseline information to define or describe the geographic location, duration, frequency or success of tribal fishing in the remainder of the Lummi U&A area. Information to define what the universe of fishing opportunity and resource is within the Tribe’s U&A in order to determine the degree of impacts on tribal finfish and shellfish activities. Information, based on the physical characteristics of the area, habitat availability and fishing practices, about where fishing is likely and not likely to have occurred. The Tribe has not provided information on the frequency of use or fishing success of tribal fishers. Catch data has been provided for Management Areas 7a and 20a which encompasses an area beyond the Cherry Point locale. Additional information is required to estimate the portion of the reported catch that can reasonably be ascribed to that portion of Cherry Point area potentially excluded by project facilities or affected by project operations.

1131 SW Klickitat Way Seattle Washington 98134 800/422-3505 tel 206/623-0179 fax

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Information about the degree to which fishing in the Cherry Point area does not actually occur or is limited because of the higher value of fishing in other areas, thereby affecting the frequency and success of fishing at Cherry Point. Several of the declarations indicate that tribal fishing occurs at the site of existing wharfs in the Cherry Point area demonstrating that their presence has still allowed the Tribes to engage in fishing activities. Information from experts to evaluate effects of existing wharves on fishing activities and to define potential modifications to the proposed Terminal wharf and trestle that make it consistent with the practices at other locations will be obtained. Information from experts to evaluate means to reduce or eliminate potential navigation conflicts beyond those already incorporated in the project proposal. For example, we understand the tow cables from barges are a major source of gear loss and fishing interruption to tribal crab fishermen; we will analyze the effects of prohibiting bunker or cargo barges from calling at the Terminal to reduce or eliminate these impacts. Information to demonstrate the extent of potential impacts from construction and operations of the proposed Terminal on the stocks of fish and shellfish currently and historically fished by tribal fishers, to the extent that those stocks are available for harvest. Information to allow comparison of the potential impacts on the annual catch of species fished in the Cherry Point area to the natural variation in fishing success that appears in the historical record.

Absent from consideration by the Tribe in formulating its petition are measures that could be incorporated into the project features or operations of the Terminal that could eliminate or reduce impacts. They are absent because the Tribe refuses to engage in discussions with Pacific International Terminals (“PIT”) about such measures; instead they take the unsubstantiated position that all impacts are “un-mitigatable.” Yet, the declarations include information that leads to the reasonable contention that changes to the project features and/or operations could reduce or eliminate impacts, making the claim that the project effects are more than de minimis incorrect. We are refining project features and operational proposals that could eliminate or manage potential conflicts with arriving and departing vessels and tribal fishing vessels, exclude any barge operations associated with the Terminal, and offer the means to offset access limitations. Consideration of the potential effect of such project modifications should be recognized in any factual deliberation by the USACE. To respond to the declarations submitted by the Lummi fishers, PIT has already begun research to provide facts that we believe will assist the USACE in its determination of the potential for the proposed Terminal project to affect tribal fishing rights. This is a complex set of questions that we expect will require significant time and resources to adequately address. During the time since our meeting on April 10th we have worked diligently in pursuit of basic information. We have enlisted the assistance of an expert in fishery practices and anticipate identifying experts in other areas related to the use of Cherry Point as an active fishery. We have also issued Freedom of Information Act requests to agencies including the Washington Department of Fish and Wildlife (WDFW) regarding certain fish species and are attempting to assemble fish opening and fish catch data from various sources including the Fraser River Panel of the Pacific Salmon Commission and the WDFW. We continue to seek sources of data that will bring a factual basis to the issues to be considered. For

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1131 SW Klickitat Way Seattle Washington 98134 800/422-3505 tel 206/623-0179 fax

example among the declarations are claims that fishing for certain species occurs at the site of the proposed Terminal wharf and trestle. Geoduck and sea urchin are two of these species. PI Terminals has conducted surveys of the marine habitat in this area. We believe the bottom strata is not conducive to habituation by either species. We will seek confirmation of the fact and seek to determine if this condition applies throughout the Cherry Point area. We have also been researching the historic herring fishery and the relationship of Cherry Point to other regional spawning areas to compile facts regarding the actual use of Cherry Point for spawning and rearing of Pacific Herring. As we also noted in our letter to you on May 9, the USACE legal staff had previously committed to send us its understanding of the de minimis test that would be applied by the USACE to the review of the information generated by the applicant. This information is critical to completing our work plans and preparing our response. The process we intend to follow in the development of our response includes: 

Data Acquisition - Continue the process we have already initiated to identify and acquire data, information and expert opinion to address the factual questions outlined above. Specifically, we want to establish whether the Tribe does in fact use the specific area where the pier is proposed on more than an extraordinary basis. This could involve input from public records and expert input as to the following: 1) The habitat at the site of the pier and the bio-mass of any fisheries resources. 2) The physical characteristics of the area that affect fishing, including the bathymetry, sediments, tidal, etc. 3) Legal obligations such as allowed openings for different fisheries resources that currently affect the Tribe’s use of this area and that, in turn, might suggest changes to the project. 4) Practical aspects of fishing such as the depth, separation, and most efficient timing of crab pot use. 5) The migration routes, fish openings and catch data for other fishing area available to the Lummi during openings at Cherry Point.

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Retention of Experts - We are seeking the services of experts in the following areas: 1) Fishermen (or former fishery personnel) who have fished or managed fisheries in the affected waters and can verify the techniques and the places fish and shellfish are found and how they might be harvested with and without the pier; 2) Fisheries experts who can verify the effectiveness of project design/configuration modifications that would minimize impacts to access and from navigational conflicts; 3) Experts who would understand the physical characteristics of the site and what resources are actually there to be harvested; 4) Fishery management experts who can provide information of the relative productivity of competing fisheries throughout the Lummi U&A and to what extent Lummi are likely to actually fish at Cherry Point; and

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1131 SW Klickitat Way Seattle Washington 98134 800/422-3505 tel 206/623-0179 fax

5) Vessel traffic and maneuvering. 

Integrate the data, information and expert opinion – The result of our data acquisition process will be integrated in a response to the initial questions and formulated into a coherent set of facts we will place before the USACE. We should also note that at the beginning of this process we are not fully knowledgeable of all of the information available or where our research will lead. We are committed to develop the information described above in as timely a manner as possible. However we may uncover potential sources of information that we had not initially anticipated and may require additional time to incorporate these findings into our response.

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Prepare a detailed response to the Lummi petition - As requested in the initial letter issued by you on April 10, 2015, we will prepare and submit a response including supporting information and declarations from qualified experts.

We must have the time to complete each of these steps in order to have a fair opportunity to address the allegations of the Lummi Nation regarding tribal fishing impacts and assess whether the Lummi fishers and other tribal fishers can effectively exercise their treaty fishing rights. As you can see from this description, the extent of the work to be completed is extensive. We estimate that PIT will need approximately 90 days to prepare and submit the facts we believe the USACE should consider in making its determination. However, our schedule estimate is related to the timely transmittal of the USACE’s definition of the de minimis standard as noted above. If at any time we believe this schedule would need to be extended we will immediately meet with you to discuss the matter. We note again that allowing PIT the time requested to complete this work will not harm the Tribe or its treaty rights, while terminating permit review at this juncture in the process would be very harmful and prejudicial to PIT. Moreover, we believe the information we submit will show that the Tribe has not met its burden to provide verifiable, conclusive facts that the proposed project will have more than a de minimis effect on treaty fishing rights. We again assure you that we have been and will continue to diligently work on getting you facts and highquality information to assist you in your decision-making. We look forward to continuing to work with you on these very important and challenging issues. Sincerely,

Skip Sahlin Vice President, Project Development CC: Colonel John G. Buck, Commander and District Engineer Matthew Bennett, Regulatory Branch, Seattle District U.S. Army Corps of Engineers Randel Perry, Regulatory Branch, Seattle District U.S. Army Corps of Engineers Francis Eugenio, Attorney, Seattle District U.S. Army Corps of Engineers

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