Turning the Tide on Bomb Trains

Two months ago I reported on the plan to build propane export facilities at the Port of Portland. This report investigated bomb trains and the blast zone around the proposed terminal, dug into Pembina’s operations in Canada, and reported on their heavy participation in both tar sands extraction and fracking in Western Canada.

Much has happened since this last report. On April 7th the Swinomish tribe in Washington filed a lawsuit against BNSF oil trains. On April 9th Portland’s Planning and Sustainability Commission (PSC) voted in favor of Pembina’s pipeline, raising howls of opposition from the crowd. On May 6th the Tories of Alberta were unseated after 44 years of rule – kicked out by a wave of opposition to the fossil fuel industry that finally crashed along with oil prices, with the socialist New Democratic Party now in charge promising to implement the UN Declaration on the Rights of Indigenous Peoples. On May 7th Mayor Hales cleaned up the PSC’s mess and dropped his support for Pembina. On May 16th, thousands of activists showed up in Seattle to obstruct Shell’s Arctic drilling fleet, including hundreds of “kayactivists” on the water, who took leadership from Alaskan and Puget Sound tribes fighting coal and oil companies. On May 19th, an oil pipeline ruptured on the California coast, spilling over 100,000 gallons of oil and creating a 9 mile ocean slick. And on June 4th the Coast Salish Nation, representing dozens of powerful tribes in the region, announced a unanimous agreement to protect the Salish Sea from crude oil shipments by rail, pipe, and sea.

Following these successful calls for solidarity from First Nations, the Unitarian Universalist Church in Portland is asking people to bear witness to tribal struggles to protect sacred land – particularly the Lummi Nation in Washington’s Puget Sound, who are currently fighting the largest coal export terminal in the country.

On June 27th, members of the Lummi Nation will join the Unitarian Universalist’s annual General Assembly to discuss how the public can address climate change by centering indigenous struggles. The event organizers say their intent is to create stronger alliances across environmental and faith groups, and send a strong message of solidarity to indigenous nations in the fight against fossil fuels and other extractive industries. Their event begins at the Oregon Convention Center in Portland at 4:45 pm, and is both free and open to the public.

Portland’s mayor got a bit bruised during his brief foray into the world of propane exports. Fossil fuel Charlie received countless phone calls, emails, public records requests, and a string of difficult questions regarding his consultation policies with local tribes. Suddenly feeling which way the wind was blowing, and perhaps noting the oil train that caught fire the day before, Charlie shed his fossil fuel title on May 7th, and publicly dropped his support for the project, telling the press “At some point those of us in power have to listen to those who put us there.”

That same morning Tim Norgren, a local member of Laborers’ International Union of North America, locked himself to the train tracks feeding an oil terminal in Northwest Portland, stating his opposition to bomb trains, climate chaos, and the new “free trade” deal that he said would drive both.

Shortly before the mayor’s public announcement, Hales’ staff also reached out to the Columbia River Inter-Tribal Fish Commission to re-establish regular meetings with local tribes – a city commitment that was originally dropped after Hales took office in 2013.

Though Hales’ words were music to many, they were very displeasing to Port Director Bill Wyatt, who seemed worried about his business prospects with fracked gas no longer on the table. Wyatt has since pontificated on the new and dangerous effects of popular opinion, asking “…what does that mean for other companies that do business at the port? ….what if someone thinks we shouldn’t be shipping GMO corn to Korea?” From their dark tower of opulence, the Portland Business Alliance warmly agreed, suggesting that fossil fuel jobs are the only way to create equity in the city. Never to be upstaged, the Oregonian’s editorial board revved up its brain engines and sputtered hard, accusing the mayor of creating lost job “casualties”, and urging us to “refuse to look the other way while the mayor kneecaps the city’s reputation…”

Knowing a good team when they see one, Pembina announced they would stay and fight, revoking the CEO’s earlier promise to leave “if it turns out the people of Portland don’t want this.” The company is currently funding a PR blitz demanding that the city council vote on their proposal despite a total lack of interest – which could invite a lawsuit if any formal decision is made. When asked for her legal opinion, City Attorney Tracy Reeves argued there is no requirement to put Pembina on the council agenda.

The mayor’s surrender to popular opinion is clearly a reflection of climate change awareness in Portland, as well as effective groundwork in its local environmental scene. It was also sweet vindication for the hundred people who turned out to speak with the PSC back in April, including Paul Lumley, Executive Director of the Columbia River Inter-Tribal Fish Commission.

There Lumley informed commissioners that, contrary to rumors, the tribes he represented had not actually been consulted on the project, and at least one of these tribes had serious concerns about explosive propane trains making frequent visits to popular fishing sites, and passing by fishing communities. Cathy Sampson-Kruse, a Walla Walla tribal elder, explained to commissioners that their lack of consultation was also a violation of their own policies on tribal relations, which were established back in 2012 to help the city be a better neighbor to tribes, and to avoid being sued by them. Strangely, Commissioner Karen Gray was very forward in asking city planner Tom Armstrong if the project would violate treaty rights, then mysteriously voted in favor of the project, allowing it to squeak by 6-4. “The answer is: you have to ask the tribes,” Lumley later explained in an interview, “But it sure seems like it would affect their treaty-reserved resources.”

This little oversight loomed larger in the following weeks when Walter Echo-Hawk, a renowned indigenous legal scholar, held a talking circle on treaty rights and consultation at PSU, calling on the city to re-commit to consultation (an event humbly attended by members of the PSC). While these conversations moved forward activist groups bird-dogged the mayor at events and disrupted his council hearings, where they performed surreal political theater with giant cardboard heads. If that wasn’t unsettling enough, posters started to pop up all over town showing a sickly-looking Hales flanked by oil wells, covered with the text “Fossil Fuel Charlie for Mayor 2016”. On May 7th, the day after fossil fuel Tories were thrown out of office, the mayor finally dropped his support for the $500 million project, and urged the company to leave Portland.

The activists who rattled the mayor are a small part of what’s been dubbed “the thin green line” – a network of environmental activists in Oregon, Washington and British Columbia who are working to stop over 29 fossil fuel expansion and export projects in the Northwest, citing damage to air quality, waterways, coastlines, and the global climate.

And in front of that thin green line is a fierce red one, made up of Native Americans with deep spiritual connections to the local landscape. These Native Americans carry an intergenerational struggle to protect their lands from a style of development that is, by any historical standard, utterly foreign to the North American landscape.

Consultation and accommodation: a tale of two cultures

A glimpse of this cultural conflict over land can be seen in over-confident statements from Port Director Wyatt, who argued back in September that massive shipments of propane in the Columbia Gorge “add tremendous value to the River” by accelerating the transformation of the river through dredging and jetty expansion. Paul Lumley, Executive Director of the Columbia River Inter-Tribal Fish Commission, begs to differ. In an interview last month, Lumley explained that “adding value to the river means restoration of natural resources for the benefit of all members of the public,” while “destroying the river, or even parts of it, does not add value.”

Despite promises of peaceful accommodation, the U.S. government has routinely broken treaties with Native Americans by depriving them of access to traditional foods – most famously through dam-building in the Northwest.

Acting on what Barry Lopez called “a ruthless, angry search for wealth”, early Europeans saw themselves on a proud crusade to transform the new world. This became a religious mission to mine raw materials from unfamiliar landscapes as quickly as possible – including irrigation water from the Columbia River. This was backed by a strangely irreligious pride that counted all negatives, including poisoned water and ruined salmon stocks, as necessary costs for a brand of “progress” that had all the marks of solipsism. Lacking any brakes, this drive to transform landscapes under the banner of “development” was a constant risk to treaty rights, and drove numerous attempts to steal land from native reserves in the Northwest. These risks have become increasingly ominous as climate change brings drought to the Cascades, and as scientists discover that atmospheric carbon drives the acidification of oceans – which is already making the Pacific coast uninhabitable for shellfish. Given the circumstances, the need to establish two-way dialogue, and genuine accommodation, could hardly be greater. And it’s clear that we have a long way to go.

“Gold is excellent, gold is treasure, and he who possesses it does whatever he wishes in this life and succeeds in helping souls into paradise,” wrote Christopher Columbus. “Energy is the lifeblood of America’s economy,” said Sean Hannity to a conference of bakken oil executives last year. “What you have been able to show this country is nothing short of a miracle.”

Although we usually speak of Oregon and Washington as fossil fuel roadblocks, the westward shipment of fossil fuels would also cross the territory of at least 38 sovereign First Nations in Oregon and Washington, and many more in British Columbia. One of these is the Unist’ot’en Band of the Wet’suwet’en, which has blocked multiple pipelines for several years by occupying their unceded territory, and building traditional houses in the path of proposed pipelines. Affirming the rights of these nations to assert their sovereignty, and to receive full recognition from government entities that owe it to them, has become an increasingly loud demand in the fight for climate justice.

In May the Lummi Nation held a treaty rights conference in Seattle that drew over 150 people to support indigenous struggles in the fight against fossil fuels and climate chaos. There, at the Seattle University student center, Lummi representatives told the audience that their fight against coal is critical to mankind’s survival. “Our resistance is your resistance. If we lose, you are lost,” said councilmember Jay Julius.

Government-to-Government Relations (It’s really not that hard!)

Formal recognition for indigenous sovereignty comes from an official process of government-to-government consultation, which has been laid out in statutes in both Oregon and Washington.

Consultation is a necessary ingredient for any government entities that need to accommodate one another, including state agencies consulting eachother, like the Department of Forestry and the Department of Fish and Wildlife. For tribal governments, any potential decision that can affect their treaty-reserved resources requires that the responsible government agencies enter into consultation with those tribes. This allows the affected government body to address and resolve the conflict early on, before a decision has been made, and long before any action has been taken – similar to relations between state agencies or city bureaus. Failure to do so risks violating federal treaty rights, state and local laws, federal statutes, and international human rights law. The city of Boardman, for instance, could have avoided last year’s conflict over the Coyote Island coal export terminal if they had a local consultation policy in place. Instead, after years of planning, the Department of State Lands shot down the project last year after tribes told the state it was planned on top of a traditional fishing site.

After weeks of phone calls and meetings, I learned that Oregon state agencies, and especially Portland city bureaus, are very unsure about how to approach consultation with Native American tribes, and are particularly confused about the difference between what is desired and what is required. For instance, when DEQ altered the air quality permit at Port Westward in Clatskanie, they effectively legalized a thousand oil trains coming through the Columbia Gorge every year. Did DEQ consult tribes before letting oil trains start crowding their fishing sites? According to DEQ’s Tribal Liaison Christine Svetkovich, the answer is both yes and no. DEQ did tell tribes what was happening, but did not search for potential impacts to treaty rights, and did not acknowledge that their decision could trigger impacts to treaty-reserved resources. Instead, DEQ insisted that the scope of their decision was very limited – an opinion that has actually landed them in court with environmental groups, who say they did not even estimate their air pollution impacts properly.

CRITFC’s position? According to Paul Lumley “These trains would be going right by our traditional fishing sites, right by our river-side communities. The risk of an explosion, particularly for a propane train, or of an oil spill and derailment, would be very devastating. The loss of life is not something we want to risk, and my member tribes have expressed serious concern about this.”

In the run up and immediate aftermath of the April 7th PSC vote, Tom Armstrong and the mayor’s staff effectively said (in multiple interviews) that sending unread emails to tribal representatives is consultation enough, and gave no indication that they searched for potential impacts to cultural resources. This was likely the source of rumors that bothered CRITFC. In a brief interview after the hearing, Armstrong also said in a phone conversation that “there are no established protocols” for consultation in Portland – information he conspicuously left out in his testimony to Commissioner Gray. Paradoxically, both state and city officials contend that they were engaged in a sort of consultation, but in an ad-hoc manner that they apparently hoped would end as quickly as possible. “I testified before the PSC that ‘consultation has not occurred’,” explains Paul Lumley, Executive Director of CRITFC. “You would think the one message they couldn’t take away was that they did consultation, but they did. People who know better wanted to just ‘check the box’ and say consultation happened because I spoke. That’s not how consultation works.”

One factor at play here was the perception among state and local officials that tribes only have influence with the federal government. However, according to Gabe S. Galanda, a practicing attorney in Washington,

“In the Pacific Northwest, the consequences to a local government for failing to honor the normative tenet of inter-governmental consultation could include significant liability for violation of guaranteed federal Indian Treaty rights or destruction of tribal historic or cultural properties. Beyond that, it is simply a best governmental practice to consider whether the rights of sister governments might be implicated by local government action.”

Paul Lumley was fully in agreement with this final point, and highlighted the absurdity of the city assuming tribal support for Pembina’s project prior to the April hearing. “Would the city email the state, then assume they’ve signed off on a project because they don’t respond? It’s the same with tribes – we are sovereign governments just like the state of Oregon.”

“Free Trade” vs Indigenous Rights

At the April 7th PSC hearing, Sampson-Kruse attempted to emphasize that point, but Chair Baugh cut her off quickly, saying his staff would look into the matter. In a push to support Pembina, he would later describe barriers to free trade as a form of colonization, after distracting commissioners from the indigenous concerns that were actually in the room. “We industrialized this nation over the indigenous people here, and told them the same thing, and polluted this planet,” Baugh intoned. “Now we’re gonna sit here and say ‘no’?”

In early March, a unique lawsuit was filed by the Blueberry River First Nations in British Columbia that aims to stop all new oil and gas developments in their territory – one of the places where Pembina gets its fracked gas. The tribes say these operations are a violation of Treaty 8, from 1900, which promised Natives they could continue their traditional ways of life in exchange for opening up their lands to European settlement. Instead they’ve seen over 16,000 oil and gas wells, and over 28,000 kilometers of pipelines, with severe impacts on water quality, fish, and wildlife.

It’s worth remembering that just two weeks before planners voted on their pipeline, Pembina abruptly promised a $3 million “community investment fund” to help the city of Portland implement its Climate Action Plan – a kindly gesture to off-set their carbon emissions.

In 2008, Pembina also consulted with the Canadian indigenous environmental group REAC, promising off-sets to a pipeline right-of-way through Alberta, Canada for the Nipisi and Mitsue pipelines, which were planned to carry diluent and tar sands. During these meetings they promised REAC directors extensive restoration of caribou habitat covering an area that represented five times the footprint of their right-of-way: a forest that would be permanently clearcut to make way for their pipelines. The promise was exciting enough for REAC to drop their opposition to the new pipelines, despite fears that more clearcuts and pipelines could push the caribou herds into extinction.

What came next? According to REAC director Julie Asterisk, “The area they re-planted was miniscule, and far less than we agreed to. We were left with the sickening feeling that we got suckered.”

According to Doug Badger, another director of REAC, Pembina has often preferred to avoid consultation altogether, and regularly gives out cash envelopes to tribal members instead.

“Pembina is not to be trusted,” Doug told me “This is a company that thinks money can buy them anything — except restoration for the habitat they destroyed.”

Doug and other indigenous activists are cautiously optimistic that Alberta’s new government will restore respect for indigenous peoples. With thousands recently laid off by oil companies, there is also hope that people might go back to work restoring habitat harmed by resource extraction – a hope bolstered by the NDP’s pledge to implement the UN Declaration on Indigenous Rights.

Over 25 years in the making, the Declaration marks an exciting new commitment from world governments to respect indigenous peoples, and will likely create a fresh background for upholding treaty rights in the courts. With support from President Obama beginning in 2010, the federal government’s commitment could encourage our states to follow Alberta. That, plus support from the thin green line, would be a truly historic development.

Stephen Quirke works with Bark and Portland Rising Tide.