Law360 is discussing the recent U.S. Army Corps of Engineers ruling that halted the proposed Gateway Pacific Terminal in Washington state, noting that the decision in favor of the Lummi Nation’s opposition to the project puts developers on notice that their projects may meet a similar fate if they can't reach an understanding with affected Native American tribes.
The Corps refused to issue a permit for the planned $660m+, 54 million metric ton deep water coal export terminal on the strength of the Lummi Nation's traditional fishing rights under the 1855 Treaty of Point Elliott. The Corps said the SSA Marine-controlled company promoting the project hadn't shown the project would have only a minimal impact on the tribe's usual and accustomed fishing area off the Washington coast, and that proposed mitigation measures to address the actual impact weren't sufficient.
With the decision firmly backing federal treaty rights for the Lummi and with tribes more ready than ever to enforce their prerogatives, developers have to find ways to address tribes' economic, environmental and cultural concerns or risk wasting their time and money on a failed project. Some fear the ruling could have a major chilling effect on energy projects and other proposals, but the ruling could also encourage developers to try to take advantage of the authority of tribes, who can often move the process of approving a project along more quickly than other governments, according to W. Gregory Guedel, chair of Foster Pepper PLLC's Native American practice. "Tribes with their sovereignty and what they're able to do under their treaty rights can often be extremely powerful facilitators and catalysts for economic development projects," Guedel said.