After more than 2.5 years of government-to-government conversations, the federal agency overseeing millions in grant funding earmarked for the Lutak Dock replacement project is at impasse with the Chilkat Indian Village.
Documents from the Maritime Administration, MARAD, show that the agency determined that the Lutak Dock repair and replacement project would have no adverse effect, meaning MARAD defined an area of potential effect associated with the project and then determined that it would not be negatively impacted. If MARAD’s finding stands, that means the agency can take the next steps to move the project permitting forward.
But the Chilkat Indian Village did not agree with that assessment and on Sept. 9, MARAD asked the Advisory Council on Historic Preservation to review and comment on its findings to help resolve the disagreement.
On Monday, the historic preservation office issued an opinion saying staff at MARAD had not appropriately applied the criteria to determine that something would have no adverse effect and that the finding itself was premature.
Additionally, it has been widely speculated in Haines that the consultation process – known as a section 106 review – stalled the project, with some laying the blame on the Chilkat Indian Village. But the federal reviewer attributes the delay to MARAD staff who combined several steps in the consultation process without first notifying the state, tribes or the public.
“Failure by the agency to obtain this agreement … may result in delays, which has been demonstrated in this consultation,” wrote advisory council director of the office of federal agency programs Jaime Loichinger.
Documentation of specific conversations between the Chilkat Indian Village and MARAD are not public. But, in its letter seeking a review, MARAD lays out a timeline that began on Jan. 23, 2023 when it sent a consultation letter to the state’s historic preservation office, the Chilkat Indian Village, Chilkoot Indian Association, Central Council of Tlingit & Haida Indian Tribes of Alaska and Sealaska Corporation.
That timeline includes days, sometimes months between formal communication – and includes Chilkat Indian Village requests for extension of time to review and respond to information. It also includes virtual and in-person interaction between MARAD staff and members of the Chilkat Indian Village.
MARAD characterized its main points of disagreement with the Chilkat Indian Village concerning how the agency was determining how large the area of potential effects of the Lutak Dock project should be. Right now, the agency is considering three potential dock designs and its definition of the area it could potentially affect is a 50-foot buffer around construction activities.
The Chilkat Indian Village raised concerns about its traditional and cultural use of the region, and asked the agency to expand that buffer – particularly if it was used for ore transfers and mining-related operations. MARAD staff call that possibility a hypothetical and, essentially, outside of the scope of the agency’s role to consider.
“CIV has failed to show any proof that the dock’s intended use is for the shipment of ore or other industrial projects,” according to MARAD’s letter. “It is not MARAD’s role to determine what hypothetical future products Haines Borough may ship from Lutak Dock, nor can MARAD control future use once funding is obligated and spent.”
The tribal government requested that the buffer around construction areas be expanded to one mile, which MARAD did not agree to do. The letter also notes that CIV has accused MARAD of not negotiating in a “reasonable and good faith manner,” but the agency found that accusation to be unfounded.
In her response to MARAD, Loichinger argued that MARAD had effectively placed the burden on the tribe to identify historic properties that could be impacted rather than MARAD staff considering the entire range of potential effects.
“Moreover, MARAD’s definition of the [area of potential impact] provides limited detail on the types of effects beyond physical disturbances … despite CIV’s request to analyze those auditory, atmospheric and visual effects that might reasonably result from construction of the proposed dock,” she wrote.
She did support MARAD’s justification for refusing to consider the potential impacts shipping ore, also calling it speculative.
Ultimately, she suggested that MARAD revise its area of impact and consider the full range of potential effects from construction.
“As appropriate, MARAD should consider whether additional identification efforts are needed to evaluate properties that are of religious and cultural significance to Tribes, including the CIV,” Loichinger wrote.
Finally, Loichinger attributed delays in this Section 106 process, at least partially, to MARAD. She wrote that the agency had combined several steps in the process which, while legal, should only be done when the federal agency and its state counterparts agree that it’s appropriate and all other consulting parties – like the tribes – and the public still have a chance to weigh in.
“While MARAD made efforts to be responsive to CIV’s concerns, including providing extensions to review periods, hosting additional meetings, and conducting site visits, many of the concerns expressed by the CIV might have been avoided had MARAD either conducted the Section 106 review affording adequate time for consultation, or sought agreement in advance …to collapse these steps.”
MARAD staff now must choose how to respond. Wendy Coble, who is the acting federal preservation officer at MARAD, did not answer a phone call or email seeking more information about the agency’s next steps – attributing her absence to the federal shutdown in an auto-generated reply.
The Section 106 review process shows the agency could go back into negotiation with the Chilkat Indian Village over the potential impacts of the project and how to address them. Or it could stick with its original findings, though it is required to show how it incorporated the review into its final decision.