In a victory for residents, tribal communities and environmental groups, the Columbia River Gorge Commission has upheld a Wasco County decision to deny Union Pacific its permit to run additional rail lines through the town of Mosier, where one of its crude oil trains derailed and burned only a year ago.
The commission will issue its written decision on the matter by early September.
Created by Congress in 1986, the Columbia River Gorge Commission oversees the management and protection of the National Scenic Area that extends for 83 miles along both sides of the Columbia River.
On Tuesday, at the Readiness Center in The Dalles, the commission deliberated on the fate of a proposed construction project that would double 5 miles of track owned by railroad giant Union Pacific. The project raised strong opposition from local community members, who cited the massive accident one year ago on June 3, when a train carrying 94 tankers of crude oil derailed in Mosier, 69 miles east of Portland. Some of the cars burst and shot fiery plumes into the air, and continued to burn for 14 hours. The disaster confirmed the worst fears of local residents after the evacuation of the K-8 Mosier Community School.
A June 23, 2016, report from the Federal Railroad Administration found that the accident was caused because Union Pacific had failed to maintain its track, adding that “broken and sheared lag bolts … are critically important to resolve quickly.”
Earlier this year, an investigation by The Associated Press showed that nearly 24,000 defects were found on the nation’s 58,000 miles of oil train routes. Union Pacific received the most violation recommendations, at more than 800, according to the report.
Union Pacific reached an agreement with the Federal Railroad Administration to conduct more inspections and make improvements to their lines. The company began running trains through Mosier just two days after the fire was out, and by the end of the month, more oil trains were running.
Even prior to the accident, Union Pacific had sought to expand its lines. It applied for a construction permit with Wasco County to add additional tracks through Mosier to facilitate more train traffic. That call was immediately opposed by local leaders. Within a week after the June 3 disaster, local leaders rallied near the scene led by the chairman of the Yakama Nation, JoDe Goudy, to call for an end to oil train traffic in the Columbia River Gorge.
Wasco County Commissioners denied Union Pacific’s permit application in November after hearing from local tribes that the project would harm their treaty rights.
Since that November decision, Union Pacific has vigorously appealed that ruling. It first appealed to the Columbia River Gorge Commission and later attempted to move the hearing to federal court and the Land Use Board of Appeals – two legal forums with greater distance from the communities most at risk.
The railroad company’s first attempt to wrest control from the Gorge Commission was dismissed on March 8. The case is now on appeal to the Ninth Circuit Court. On March 10, Union Pacific appealed to Oregon’s Land Use Board of Appeals arguing that state permits should be issued regardless of Wasco County’s treaty rights concerns. Union Pacific withdrew the LUBA appeal after Friends of the Columbia Gorge filed a motion to dismiss – arguing that the Gorge Commission maintained exclusive jurisdiction. On April 5, the Ninth Circuit Court denied an additional motion from Union Pacific that would have expedited their federal case and prevented the Gorge Commission from making their Tuesday ruling.
At the Gorge Commission hearing, the railroad’s lawyers argued that the tribes must meet a high burden of evidence to demonstrate a treaty rights violation, and repeatedly argued that federal railroad law should neutralize the laws that protect the National Scenic Area and authorize the Gorge Commission to protect the scenic area for its recreational and treaty-protected uses. Union Pacific attacked the use of the National Scenic Area Act to deny its permit by characterizing it as a “state law” – despite the fact that it was passed by Congress and signed by President Ronald Reagan in 1986.
The commission disagreed – and voted to deny the company’s claim that federal railroad law prevents Wasco County from making their finding for tribal treaty rights. According to Friends of the Columbia Gorge attorney Steve McCoy, the Gorge Commission is empowered to protect the Gorge not only for its scenic values, but for its treaty-protected uses – with clear sections of the National Scenic Area Act naming such terms. Early knowledge of this may have contributed to UP lawyers appealing to other courts.”
FURTHER READING: Bill McKibben, climate change and the Mosier derailment
On June 3, the anniversary of the Mosier accident, leaders from Gorge communities joined Goudy, Warm Springs tribal councilor Carina Miller, and Walla Walla elder Cathy Sampson-Kruse to commemorate the disaster, and to draw attention to the continuing danger posed by oil trains that still run along the track.
Dr. Maria McCormick, a Mosier physician, explained how she saw the event through her training as a medical professional.
“The oil crash last year was a sentinel event,” McCormick said. “We know that sheared screws were the cause of the spill. But it was not the root cause. The root cause of the oil spill and fire last year on June 3 is that we are transporting oil by rail.”
That afternoon, Goudy connected the incident to the Doctrine of Discovery that legalized the seizing of land and cultural rights from tribes like the Yakama Nation, comparing that doctrine to the present-day situation in the Gorge, where communities are forced to accept economic projects that put their lives and environment in jeopardy.
“Where was the manifested right for an individual to express (such) domination and dehumanization? What was its origin? There are practical, real steps in time, associated decisions, case law, legislative acts, that have empowered and materialized the ability to make decisions that dominate and dehumanize people. It started with native people. But now the residents that have endured this derailment last year – you are beginning to feel what it’s like to be dehumanized.”
Goudy said the Doctrine of Discovery remains a key legal tool that is used to violate Native rights, particularly in dispute resolution and court proceedings.
Chuck Sams, communications director for the Confederated Tribes of the Umatilla, agrees that the Discovery Doctrine is still harming tribes in court.
“It’s still inculcated into American law,” Sams said. “And until such time as we’re willing to recognize the racist values of those laws, and the structures they put in place to ensure that they are perpetuated, we’re going to always face that in a federal court, or even a state court for that matter.”
Some of these tensions were clearly on display at Tuesday’s hearing in The Dalles, with the railroad’s lawyers arguing that tribes are not competent to determine treaty rights violations, and that local governments like Wasco County are fundamentally not authorized to recognize such violations when doing so might obstruct a federal railroad corporation.
“It is a very conscientious choice, that we are putting ourselves in a position to prolong our reliance on fossil fuels,” Goudy said. “The ability to make a choice to seek profit rather than responsible decision-making is enabled by a judicial system and a legislative system that currently promotes that type of choice.”
FURTHER READING: John Ahni Schertow shines a spotlight on indigenous resistance
In March, Goudy joined the Standing Rock Sioux tribal council and thousands of tribal members in Washington, D.C., to call for the dismantling of “the flawed and unholy idea of the Doctrine of Discovery” and an end to U.S. government actions that continue its legacy of “domination and dehumanization.” Last year, Goudy traveled to the Vatican to hand deliver a request to Pope Francis to revoke the Doctrine of Discovery and three papal bulls supporting it.
“He asked me to pray for him, which I did. I asked him to pray for me,” Goudy said.
For years, the Gorge has been an economic battleground for out-of-state energy companies hoping to score big by investing in infrastructure projects that connect domestic supply chains to the global market.
Many of these proposals have been shot down by tribes who retain deep ancestral ties to specific sites, and reserved the right to protect those sites in contractual treaty negotiations signed back to 1855 with the U.S. government.
In May 2016, the Army Corps of Engineers denied a key permit for a massive coal export terminal at Cherry Point after finally agreeing that the project would harm the fishing rights of the Lummi Nation. The Lummi had formally opposed the project on that basis for nearly three years and had engaged in significant legal and advocacy work to prove what was ultimately a simple observation. The financial backer of the terminal, Pacific Island Terminal, implied that Lummi Nation fishermen may be confused about where they fish and how often they do it.
The situation mirrored an earlier one in Boardman, Oregon, where a coal terminal was rejected in August 2014 after a company spokesperson told the media that a tribal fishing site either did not exist or existed somewhere else – despite official documentation from the Yakama and Umatilla tribal governments. Similar conflicts continue today where energy companies jockey for property rights over existing rights-holders – including at the Port of Tacoma in Washington and along the Klamath River in Southern Oregon.
“You can call it what you want – improper consultation, irresponsible decision, but I call it genocide,” Goudy said. “It is a genocidal act to continue to make irresponsible decisions that will impact a people and our nation that will shorten our sustained existence, and that’s what the United States is doing to Native nations. Not just Yakama Nation – all Native nations.”
For tribal leaders, these modern-day legal battles are the continued cultural influence of the Doctrine of Discovery and the related notion of terra nullius, or vacant land lacking Native occupancy. The absence of native education in U.S. schools provides support for such a doctrine.
“Our education system, kindergarten through college, does not teach American Indian history,” said Sams, of the Confederated Tribes of the Umatilla. “We’re taught as if we’re already gone.”
Sams says the lack of education on Native history is a major obstacle for effective treaty rights enforcement, and that a tribal delegation will soon be traveling to Omaha, Neb., where Union Pacific is headquartered, to explain tribal concerns with rail safety with the company. One concern Sams said he’ll raise is that slowing mechanisms for dangerous locations have already been installed in Washington but not in Oregon.
“We recognize that it’s costly. But in my knowledge, and in historical perspective, I’ve never seen the rail company in dire straights for funding,” Sams said.
In November, project supporters in Boardman announced they had reached an agreement with tribes and environmental groups that will prevent further legal disputes over coal while facilitating discussion of other proposals at the site – as long as they do not harm treaty fishing rights.
FURTHER READING: Lummi Nation's Elden Hillaire on pipelines' threats to tribal lands
On June 8, tribes scored another victory when a U.S. district judge in Washington found in favor of the Swinomish Indian Tribal Community, asserting that BNSF Railway cannot use federal pre-emption to override tribal rights involving a 1991 easement agreement between the Swinomish and BNSF. In that case, BNSF moved significant quantities of oil trains through the Swinomish reservation without permission.
By settling that tribal rights in that case are not pre-empted by federal railroad law, U.S. District Judge Robert Lasnik cleared the way for the Swinomish to seek an injunction that might remove oil trains from their treaty lands completely.
“A deal is a deal is a deal,” Swinomish Chairman Brian Cladoosby said. “The tribe takes the agreements that it signs seriously, and we expect them to be honored.”
Ironically, Tuesday’s decision by the Gorge Commission fell just a few days after treaty day weekend – an annual celebration where plateau tribes celebrate the signing of their treaties with the U.S. government.
“You can learn a lot in 162 years,” said Asa Washines, a tribal councilor with Yakama Nation, soon after the Yakama Nation’s treaty day parade. “Our treaty rights are inherent, and they are the supreme law of the land. It’s unfortunate that they (railroad companies) feel this way, but the thing about them, all these coal and oil trains that are coming down the Columbia River, we defeated several of them, but we know they’ll just keep coming, and so we’ll just keep fighting.
“In the last 160 years since the signing of our treaty, we’ve been really cognizant of how to move forward. We will continue to be on the forefront of protecting our natural resources, and what they mean not only to Yakama Nation but to all people,” Washines said. “And so we will continue this fight, we will continue to educate folks, we will continue to push forward and bring awareness, to raise the consciousness of all people so they understand where we are coming from. And once they realize we are right, history will remember it. I think people want to be on the right side of history as opposed to the wrong side of history.”