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Federal judge rules against Glacier, halts pier project

Amy Carey, right, bumps fists with Bill Moyer of the Backbone Campaign, at a gathering Saturday near Glacier’s construction site on Maury Island. - Tom Hughes photo
Amy Carey, right, bumps fists with Bill Moyer of the Backbone Campaign, at a gathering Saturday near Glacier’s construction site on Maury Island.
— image credit: Tom Hughes photo

Amy Carey had a case of laryngitis when the lawyer representing Preserve Our Islands, the group she heads, called to tell her a U.S. District judge had ruled in their favor.

She screamed so loudly, she said, that her voice came back.

Carey and others in the forefront of the decade-long battle against Glacier Northwest have done a lot of celebrating since Judge Ricardo Martinez handed down his far-reaching ruling Thursday declaring that federal agencies failed to uphold some of the nation’s strictest environmental laws in awarding the corporation a permit to move forward.

The judge’s ruling halted Glacier’s project to build a controversial new pier — a construction project scheduled to resume Saturday — until federal agencies re-examine the pier’s impact on chinook salmon and southern resident orcas, both listed as endangered under federal law.

On Friday, Glacier’s lawyers filed a notice that they’re appealing Martinez’s decision, sending the long-running legal battle to the 9th Circuit Court of Appeals. But even with that, Preserve Our Islands (POI) stalwarts like Carey are feeling a renewed wave of confidence, certain, they say, that his decision will stick.

As Carey put it, there’s “no un-ringing of that bell.”

“This is a really clear, black-and-white finding by the judge,” she added. “While Glacier may make a last-ditch effort, ... all the legal advice we’ve received is that they have no legs to stand on.”

Carey and others close to the case say it could take a year or more before Glacier’s appeal reaches the 9th Circuit or the federal agencies complete a review and issue a new decision based on the judge’s order.

Pete Stoltz, a spokesman for Glacier, however, said the setback is a minor one in what he’s called “an 11-year process.”

“This is another step in the process,” he said. “We’ve taken multiple steps previously, and we can take one more.”

Martinez, appointed to the federal bench by former Pres. George W. Bush in October 2003, issued his 28-page ruling four days after lawyers representing POI, the U.S. Army Corps of Engineers and Glacier Northwest appeared in court for a hearing on the case. According to his strongly worded decision, the Corps of Engineers and the agencies that it consulted with — the National Marine Fisheries Service and the U.S. Fish and Wildlife Service — failed to uphold the Endangered Species Act and other federal laws when they approved Glacier’s request to build a 305-foot barge-loading facility off the shores of Maury Island.

The Corps, the judge said, acted “arbitrarily and capriciously” when it ignored evidence of a significant chinook salmon population off the shores of Maury and Vashon islands. It made assumptions that a longer pier would protect eelgrass beds and inadequately analyzed the impact of pile-driving on salmon.

The federal government used what he called “random reports by a volunteer network” to determine that the region’s resident killer whales were found in the project area “only sporadically,” didn’t linger there and thus would not be harmed by the project.

“What is missing here is science,” Martinez wrote.

Finally, according to the judge, the Corps of Engineers failed to fully assess the cumulative impact the project could have on both fish and whale populations and on the overall health of Puget Sound.

“‘Which raindrop caused the flood?’ With those closing words..., plaintiffs expressed the central issue here,” Martinez wrote. “No single project caused the depletion of the salmon runs, the near-extinction of the (southern resident) orca or the general degradation of the marine environment of Puget Sound.”

The ruling stands as the first legal decision assessing the impact of a project on the southern resident killer whales — the population of orcas that regularly frequent Puget Sound — since they were listed as endangered in November 2005. And at a time when the ecological decline of Puget Sound has garnered considerable attention, it also reaffirms the need to do more to protect the region’s beloved but ailing inland sea, legal observers said.

“It seems we’re entering a phase of carefully scrutinizing what we do in Puget Sound; I think that’s true across the board,” said Steve Mashuda, a lawyer for Earthjustice, a non-profit public interest law firm. “This project was one that escaped that scrutiny but will now be subject to the proper lens of analysis. ... I think that’s both an indicator of where we are and where we’re headed for Puget Sound in general.”

Kathy Fletcher, who heads People For Puget Sound, which was also a plaintiff in the case, agreed, adding that she and other conservationists have long tried to sound the alarm about the issue of cumulative impact — what she has often called the Sound’s death by a thousand cuts.

“What action killed the Sound? It’s absolutely what we’ve been saying,” Fletcher noted.

POI and other groups have been fighting Glacier Northwest’s efforts to dramatically expand its mining operations on the eastern flank of Maury Island for more than a decade, but in recent years, the effort hasn’t gone well for Glacier’s opponents, and many Islanders thought the hard-fought battle was over.

Last July, the Corps of Engineers, saying the pier will not “result in significant impacts to the human environment,” approved a final environmental assessment of the project and issued a permit granting the sand and gravel company permission to begin building. Then, in December, outgoing state Public Lands Commissioner Doug Sutherland — noting that Glacier had all its permits in hand — issued Glacier the 30-year lease it needed to begin constructing the pier over state-owned waters, protected by way of the Maury Island Aquatic Reserve.

Glacier began constructing the pier a few days later, despite efforts by several Island activists to physically block the corporation from moving forward. The company had to stop its project in January because of a seasonal ban on in-water construction projects meant to protect spawning fish; it was gearing up to resume the effort, with an eye toward completing the pier this fall, Stoltz said.

But in the last few weeks, the tide has seemed to turn on the mammoth project. Last month, Public Lands Commissioner Peter Goldmark, the Democratic challenger who defeated Sutherland, told Glacier he had “grave concerns” about the project and asked the Japanese-owned corporation to hold off on resuming its construction project until it answered several questions about the project’s potential environmental impact.

Last week, Glacier said it had met all the legal requirements and would move forward on the project, regardless of Goldmark’s stance on the issue. Two days later, Martinez issued his ruling.

Carey, who has been the face of the fight against Glacier for the past two years, said she felt stunned by Martinez’s decision, despite her long-standing belief that such a ruling was inevitable. After she got the news, she added, she began calling friends and supporters, many of whom, like her, screamed when they heard. A little later that evening, she added, a thunderstorm broke out, causing a power outage on Maury Island.

“I joked ... that nature was celebrating with us,” she said.

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