City Overwater Bridge May Violate Tribal Treaty Rights

In its attempt to ensure that the Cornwall Landfill/Boulevard Park overwater pedestrian bridge is built over Bellingham Bay, the City of Bellingham is ignoring concerns raised by a number of concerned parties, including the Lummi Nation.

The Lummi’s were among the Western Washington tribes that, in concession for being forced to forfeit land, were granted treaty rights to fish at "usual and accustomed grounds and stations." These treaty rights were largely ignored until 1974, when the Washington federal District Court determined that the treaty entitled tribes to harvest salmon returning to Washington waters. United States v. Washington, 384 F.Supp. 312 (W.D. Wash. 1974), aff’d 520 F.2d 676 (9^th Cir. 1975), cert. denied, 423 U.S. 1086 (1976). Referred to as the Bolt decision, based on the name of the judge, this case was ultimately affirmed by the United States Supreme Court.

Bolt, and subsequent cases, determined that tribal fishing treaty rights have priority over the rights of private property owners, include the right to harvest shellfish, and as a general rule, provide tribes with a fifty percent allocation of the fishery resource. Because of the Bolt decision, tribes are considered part of the environmental decision-making process in Washington and act as co-managers of affected natural resources.

It is troubling, therefore, that the City proceeded with plans to develop the overwater bridge without consulting the Lummi Nation, who have treaty rights to fish within this area. The Lummi’s submitted a letter to the City on August 30, 2010, which concludes with the statement that, “a meeting to further discuss the proposed project and its impacts on the Lummi Nation interests and treaty rights is long overdue.”

In the letter, the Lummi’s raise a number of potential problems associated with the overwater bridge, including violation of fishing treaty rights, inadequate mitigation of impacts to tribal resources and failure to consider cumulative impacts and environmental justice issues. A copy of the letter, obtained through a public record request, is copied below.

The concerns raised by the Lummi’s appear to have had no impact on the City. The City completed its SEPA review and determined that an environmental impact statement (EIS), allowing an in-depth analysis of environmental issues and project alternatives, was not necessary. To date, the City has still not resolved the issue of tribal treaty rights.

The City has scheduled a meeting with the Lummi’s on November 15, a mere two days before the City Hearing Examiner conducts a public hearing and determines whether to approve the shoreline conditional use permit for this project. It appears that the City is determined to develop an overwater bridge, and that nothing, including violations of tribal treaty rights, requirements of the Shoreline Management Act, or public concerns, will prevent the construction of this project.