So... A little drama in Bellingham. Since it surrounds our beloved Kennicott, I figure this is a good place to post these articles. Both from the Bellingham Herald (http://www.bellinghamherald.com/) and both stories are from Friday (20 November).
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Story #1
Lummis object to Fairhaven Shipyard's new drydock operationJOHN STARK; THE BELLINGHAM HERALD
Published: 11/20/09 4:01 am
BELLINGHAM - Objections from Lummi Nation have disrupted Fairhaven Shipyard's plans for use of its new drydock to lift and service the Alaska ferry Kennicott, already moored alongside the drydock at the company's Fairhaven pier.
Earlier this week, it looked as though Lummi objections to a required permit from the U.S. Army Corps of Engineers might postpone the shipyard's $5 million Kennicott job indefinitely.
The tribe's approval is required on many waterfront projects because federal courts have recognized that the Lummis and other tribes have a treaty-guaranteed right to make a living harvesting salmon, crab and other marine resources. Federal permits for any waterfront project with potential impact on marine resources can be stopped by tribal objections.
Tribal officials had told Neil Turney, president of shipyard parent company Puglia Engineering, that they would drop their objections if he consented to payment of an "impact fee" to the tribe every time his company uses the drydock. But Turney said he won't consider that.
On Thursday, Nov. 19, Turney said he now plans to try to get around the legal difficulty by moving the floating drydock - with the Kennicott inside - to the Port of Bellingham's shipping terminal at the end of Cornwall Avenue, and do the repair work there.
Turney said his attorney advised him that that might be a legal way to get around the permit issue on the southside. But he wasn't sure of that, and he couldn't explain why he would not need a permit to work on the Kennicott at the alternate location.
"They could come down here tomorrow (Friday) and drop the hammer on us," Turney said.
The lift of the Kennicott is scheduled to take place Friday morning, Nov. 20.
Lydia Bennett, the Port of Bellingham's real estate director, said the port has agreed to let Turney moor the drydock, christened the "Faithful Servant," at the shipping terminal. Fairhaven Shipyard is a port tenant, and Bennett said the port wants to help the shipyard get through its current difficulties.
THREAT TO COMPANYTurney said a long delay in the Kennicott project could threaten the survival of his company, which spent more than $12 million to buy, transport and refit the drydock. The company faces financial penalties if it can't complete the $5 million ferry refurbishing contract on time.
The shipyard employs more than 100 people, and recently added to its payroll in the expectation that the new drydock was about to begin operations, providing new contracts and more jobs.
"We have sunk every last dime we have into this project," Turney said. "We have to get it operational."
Until last week, Turney said, Army Corps officials led him to believe his company would have its permit in a matter of days. Key federal agencies had signed off on the permit, and Lummi officials had raised no concerns after getting a September tour of the facility and assurances that tribal members would get jobs and job training at the shipyard, Turney said.
The project was also included in an August 2009 agreement between the port and Lummi Nation that supposedly cleared the way for a number of Bellingham waterfront projects. The agreement contains language in which the tribe appears to agree not to oppose permits for the drydock.
IMPACT FEES SOUGHTBut Turney said he got a call from Lummi officials on Tuesday, Nov. 10, saying they wanted a written agreement with the shipyard before giving their approval to the drydock.
They provided the company with a proposed two-page "memorandum of understanding" that would require the shipyard to pay the tribe an "impact fee" of $20,000 every time the new drydock lifts or launches a vessel. That would mean $40,000 to the tribe on every job.
Turney was furious.
"They came to us to extort money at the very last second," he said. "Here we are, we're ready to go, and the Lummis come out of the woodwork and broadside us."
Although he resented having to pay anything, Turney said he initially offered the Lummis $5,000 per job. They countered with $20,000.
"We said absolutely not," Turney said. "That was the end of that meeting."
Since then, Turney's attitude appears to have hardened. He said he got a call from tribal officials Thursday, Nov. 19, and they apparently wanted to reopen negotiations. Turney said he told them he wouldn't pay a dime, even if his company goes bankrupt.
Tribal spokeswoman Lyn Dennis said tribal officials had no comment on the matter.
ARMY CORPS SLOW TO ACTPatricia Graesser, Army Corps of Engineers spokeswoman in Seattle, said the shipyard applied for its permit in June, but the corps did not officially notify Lummi Nation of the application until Nov. 9, the day before tribal officials contacted the shipyard with their concerns.
She said the delay in notification was a mistake on the corps' part.
"That was really our responsibility," Graesser said. "They should have been notified in August. ... It is unfortunate."
She said the corps had been expediting its permit process and was close to making a decision when the tribe weighed in.
"The concerns of the Lummis have not been resolved, and without that we can't issue a permit," Graesser said.
Graesser said the corps customarily withholds permits in the face of tribal objections.
"The corps can proceed (to issue a permit over tribal objections), but the courts have found against the corps when we have done that in past cases," Graesser said.
Turney said he didn't think the date of the corps' official notice should have made much difference. Tribal officials visited the shipyard and drydock in September and raised no concerns about the project, he said.
Also, the August agreement between the tribe and the port spells out the environmental safeguards that would be in place at the new drydock.
The port's Bennett said port and tribe need to sit down again to reach a mutual understanding about what the August agreement means.
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Story #2
Fairhaven Shipyard hoists Alaska ferry despite federal warningParties to conflict sound upbeat after meeting
JOHN STARK - THE BELLINGHAM HERALD
BELLINGHAM - Fairhaven Shipyard used its new drydock to lift the Alaska ferry Kennicott on Friday, Nov. 20, despite a warning from the U.S. Army Corps of Engineers that the operation could violate federal law.
But by Friday evening, there were hopeful signs that the shipyard and the Port of Bellingham might work out an agreement with Lummi Nation that would resolve the legal difficulty.
Tribal officials met Friday afternoon with port officials and Neil Turney, president of shipyard parent company Puglia Engineering, at the office of port attorney Frank Chmelik. The shipyard is a port tenant.
After the meeting, the port's acting executive director, Fred Seeger, said the talks had gone well.
"We had a very productive discussion," he said. "I am optimistic that we can come to a resolution."
Turney agreed.
"It felt like it was positive," he said.
On Thursday, Nov. 19, Turney had said his company needed to get started on the $5 million ferry refurbishing project, and could not wait until issues with Lummi Nation were resolved.
Turney said he had thought he was within days of getting the Army Corps permit he needed to put the company's refitted drydock into operation for the first time.
But on Nov. 10, tribal representatives raised environmental issues and told Turney they would block his permit unless he agreed to the payment of an "impact fee" of as much as $20,000 for each lift and launch. Turney has refused to make any such payment.
The tribe's approval is required on many waterfront projects because federal courts have recognized that the Lummis and other tribes have a treaty-guaranteed right to make a living harvesting salmon, crab and other marine resources.
Federal permits for any waterfront project with potential impact on marine resources can be stopped by tribal objections.
Turney had hoped he might be able to get around his permit problem at the Fairhaven location by moving the drydock, christened "Faithful Servant," to the Port of Bellingham's shipping terminal to the north. But on Thursday, Nov. 19, Army Corps project manager Erin Legge warned him otherwise.
"If this activity is completed without Corps authorization, it may be considered a willful and knowing violation of the Rivers and Harbors Act," Legge wrote in an e-mail provided to The Bellingham Herald by Turney.
On Friday, Turney shrugged off that warning.
Shipyard workers and two Foss Maritime tugs spent much of Friday maneuvering the Faithful Servant into deep water, submerging it, and slowly easing the big blue ferry into place, while clusters of spectators watched from vantage points at Boulevard Park and the Taylor Avenue boardwalk.
"We had no choice," Turney said in a telephone interview. "We had to push this issue today. We couldn't wait any longer."
In his e-mail reply to the corps, Turney said the survival of his company and its 150 workers was at stake.
"We have invested ALL of our resources into this business expansion and job creation project," Turney wrote. "We ARE on the brink of bankruptcy due to the delays in getting the first lift accomplished and the necessary refinance of this asset."
Turney also told the corps he had dropped plans to use the port shipping terminal and would simply return the Faithful Servant to the shipyard pier in Fairhaven once the Kennicott was aboard.
Another corps official, Muffy Walker, said Friday that Turney and his company could face a wide range of consequences. In some cases, she said, the corps grants permits after a project has been completed. But a violator also can be ordered to undo any work done without a permit, and in extreme cases, the corps can go to the Department of Justice for criminal prosecution.
But Walker, chief of the corps' regulatory branch in Seattle, said the first step is a mild one: The corps will mail a stop-work order to the company.
Lummi Indian Business Council Chairman Henry Cagey said early Friday he had no immediate comment.
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There is a photo with the second article of the Kennicott entering the drydock here
www.bellinghamherald.com/102/story/1168638.html
