From: To: Cc:

Subject: Date: Attachments:

Lundgyjst. Lance NWS Brooks. Allyson CDAHPl: John Eddins Tasa. Guy CDAHP) ; Jenkins. Chrjs NWS ; Morrjs. Frances NWS; Perrv. Randel J NWS : Walker. Michelle NWS; Skip Sahlin : Eugenio. Francis X NWS : Whjt!am. Rob CDAHP)

DRAFT GPT- MOA 20130903.docx (UNCLASSIFIED)

Wednesday, September 04, 2013 7:33:16 AM

DRAFT GPI - MOA 20130903.docx

Classification: UNCLASSIFIED Caveats: NONE

Greetings,

After a year or so, we final have an update on the MOA for resolving adverse effects associated with the damage caused associated with non-permitted geotechnical work at Cherry Point.

1. We received word that the Lummi are not interested in resolving adverse effects. Basically, no mitigation can replace something that is priceless. We will keep them in the MOA as concurring parties, but do not expect them to sign. Since they are no longer going to perform the museum work, they no longer will be invited signatories.

2. Conducting the work in Stipulation 3 (the museum work) is no longer as feasible. The reason we selected it is that the Lummi were already doing such work at WWU and had the connections, training, and staff to do it. We decided to change the mitigation to something that would be meaningful to the tribes, to archaeology in Whatcom County, that is simple, and that is somewhat distanced from Cherry Point and all of the politics associated with the Gateway Pacific Terminal project. We looked at the list of ideas that DAHP had come up earlier, and have changed Stipulation 3 away from curation work at WWUto:

"PIT shall pay $91,000 to fund the Skeletal Human Remains Assistance Account (http://www.dahp.wa.goy/human-remajns-assistance-account)"

According to my conversations with Guy Tasa, most of the funds have historically been used in Whatcom County. It would be even better if we could earmark them exclusively for Whatcom/San Juan counties, if possible. We are communicating with Nooksack and Samish to see if this is acceptable and meaningful mitigation.

3. ACHP/John: When we last sent out a version of this, ACHP was not participating in the Section 106 process. Since that time ACHP has indicated an interest in the Gateway Pacific Terminal project. This MOA is not for the larger GPT project - it is to mitigate adverse effects to a site caused by unauthorized geotech probing (and associated access). Let me know if the ACHP want to participate/sign the MOA.

4. DAHP: Please let me know if you have any concerns with this approach, and we would appreciate your comments on this draft. Also note that the Lummi will be in the MOA as concurring parties, but they will almost certainly not be signing the MOA. Allyson, you or your staff may want to talk to Lena.

5. After we receive your comments and hear back from the tribes, we'll send out another draft version. Hopefully we'll be able to get this finalized in time to conduct the other part of the MOA - the protection and mitigation of the site - prior to the onset of the rainy season.

Thanks, please let us know if you have any comments or concerns,

Lance

Lance Lundquist, Archaeologist Environmental & Cultural Resources Branch US Army Corps of Engineers, Seattle District P.O. Box 3755

Seattle WA 98124 (206) 764-6909 lance.a.lundquist@usace.army.mil

Classification: UNCLASSIFIED Caveats: NONE

1\..fEMORANDUM OF AGREEMENT

Al\.10NG THE U.S. ARMY CORPS OF ENGINEERS,

THE WASHINGTON STATE DEPARMENT OF ARCHAEOLOGY & HISTORIC PRESERVATION,

PACIFIC INTERNATIONAL TERMINALS, INC, MID

THE LUMMI }>l-ATIC»l

Mitigation of AdYerse Effects to Site associated with Pacific International Terminals, Inc. Geotechnical Sampling and Access, Cherry Point, \\'hatcom County, Washington.

1. WHEREAS, U.S. Army Corps of Engineers, Seattle District (Corps) Regulatory Branch received an after-the-fact Department of the Army (DA) permit application and archaeological damage assessment from Pacific International Terminals, Inc. (PIT) for unauthorized .. :.t..... . ~ ~~ ... work located at Cherry Point,

quadrangle, Whatcom County, Washington; and

2. WHEREAS, the Corps' issuance of such a permit is subject to reYiew under Section 106 of the National Historic Preservation Act, 16 U.S.C. (NHPA), and its implementing regulations {36 CFR Part 800 and 33 CFR 325, Appendix C); and

3. WHEREAS, the Corps established the Project's permit area, as defined at 33 CFR 325, Appendix C(1)(g), as all areas of project-related ground-disturbing activities plus access and staging areas associated with the DA permit; and

4. WHEREAS, according to PIT the purpose of the geotechnical investigation and associated land clearing was to collect subsurface data on PIT property. To prepare temporary access pathways in forest and shrub areas, a tracked excavator was used to knock oYer trees and to pick up smaller vegetation and push it to the perimeter of the 17-foot-wide access path. Following initiation of clearing, geotechnical work began. As a result of clearing for a geotechnical cone penetrometer test, archaeological Site a National Register eligible property, was iH:ad>;eFteRtly damaged, and PIT voluntarily halted fieldwork on July 22, 2011. The Corps issued PIT a cease and desist order on August 30, 2011. By this time, access paths to all geotechnical investigation locations were completed, but only approximately half of the intended geotechnical data had been collected; and

5. WHEREAS Site - , a large shell-midden site dated between approximately 2,500 to 250 ) ears old, was the first site to be formally recorded in Whatcom County, and has a history of archaeological investigation by Western Washington University (WWU). The site was first inspected by archaeologists in 1954 and 1956, and was the focus ofWWU field schools in 1969,

SUBJECT: Mitigation of AdYerse Effects to- associated with Pacific International Terminals, Inc. Geotechnical Sampling and Access, Cherry Point, \Vhatcom County, Washington.

1970, 1971, 197~and 1986. ·wwu previously excavated approximately 300 cubic meters across the enti~ site. Evidence of a wide range of activities as well as human burials was uncovered as a result of WWU's exca\·ations; and

6. WHEREAS, the Corps consulted with affected tribes, the Lummi Nation (Lummi), the Nooksack Tribe (Nooksack), the Samish Indian Nation (Samish), the Upper ~ribe, and the S\\inomish Tribe, and the Lummi, Nooksack, and Samish indicated that Sit~ and the \icinity is culturally and historically significant to them and have asked to participate as consulting parties in the Section 106 process; and

7. WHEREAS, the Corps requested PIT prepare a damage assessment for damage to Site iiiiiiii and an archaeological survey of the unauthorized geotechnical sampling and access work; and

8. WHEREAS, PIT provided the damage assessment and archaeological sun·ey as described in the report titled "Damage Assessment of Site - · Pacific International Terminals Property, Cherry Point, Whatcom County, Washington" (Report), dated September 9, 2011 and prepared by AMEC Earth & Em ironmental (Af\..tEC), and in an addendum prepared by AMEC titled "ADDE.VDUM Damage Assessment ofSite - Pacific International Terminals Property, Cherry Point, Whatcom County, Washington" dated October 21, 2011; and

9. WHEREAS the Corps determined that PIT damaged 6.3 cubic meters of cultural material from Siteililill, and that this damage would have a estimated value of $94,500, based on v;hat professional archaeological data recovery of the 6.3 cubic meters of the site would cost, as described in the Corps letter to the Washington State Department of Archaeology & Historic Presen·ation (DAHP) aka Washington State Historic Presen·ation Officer dated November 1, 2011; and

10. WHEREAS, as a result of the archaeological survey no new National Register-eligible historic properties were identified within the permit area; and

11. WHEREAS, the Corps has notified the AdYisory Council on Historic Preservation (ACHP) and the ACHP has advised the Corps, in a letter dated NoYember 18, 2011, that it will not participate in the Section 1 06 process; and

12. WHEREAS, the Corps has consulted with DAHP, Lummi, Nooksack, Samish, and PIT in accordance with Section 106 of the National Historic Presen·ation Act, 16 U.S.C. §470 (NHPA), to resolve the adverse effects of the undertaking on Site- and

13. VIHEREAS, fii:IF~aat te 36 CFR Part 80G.6(e)(2), aaa 61:1e te theiF FespeHsieilities el:ltliHee ifl this MemeFaREil:lm ef AgFeemeHt (MOA), the CeFf!S bas iEWitea PIT aaa the btimmi te siga this MOA as sigaateFies; ami

!413 . WHEREAS, pursuant to 36 CFR Part 800.6(c)(3), the Corps has invited the Lummi, Nooksack and the Samish tribes to sign this MOA as concurring parties; and

Page 2 of12

SUBJECT: Mitigation of Adverse Effects to - associated with Pacific International Terminals, Inc. Geotechnical Sampling and Access, Cherry Point, Whatcom County, Washington.

NOW, THEREFORE, the Corps, DAHP, and PIT, L1:1mmi, ~laaksaek, aea Samish agree that the Corps shall ensure the following stipulations are implemented to protect, minimize and mitigate adverse effects to Site , and that these stipulations shall govern the restoration of Site

until this MOA expires or is terminated.

Stipulations

The Corps shall ensure that the following stipulations are implemented:

1. Monetary Payment. PIT will pay $94,500for mitigation of site damages. The monies will be paid and expended as detailed in Paragraphs 2 and 3 below.

2. Site Protection. Currently, Site remains at risk due to erosion from weather and looting. PIT will protect the site from erosion, vandalism, and effects of construction by implementing the following mitigation measures:

a. PIT will apply a seed-mulch mixture consisting of native grass species over the disturbed portion of the site. No ground disturbance for access, staging, or work will be permitted v:ithin the boundaries of Site (work will be done by hand or by equipment operated outside the site boundary).

b. PIT will erect and maintain No Trespassing signs around the property to discourage trespassing and vandalism.

c. PIT will create and implement protocols to prevent future damage to Site··· including any future ground disturbing work within 150' of the delineated boundary of Sit: 1 , which will require the presence of an archaeologist meeting the Secretar) of the Interior's Professional Qualification Standards for Archaeology and Historic Preservation to monitor the vmrk. These protocols will include prmisions for tribal notification and tribal participation (if a tribe so desires) in any activity that would require archaeological monitoring.

d. Report. A professional report on the implementation measures shall be prepared and provided to the Corps documenting the successful implementations of all Site protection measures stipulated in this section. PIT shall distribute copies of the report to the consulting parties.

e. Work Plan. PIT will prepare a plan that incorporates the aboYe considerations {or submission to the Corps no later than 30 days after this MOA is executed. Prior to implementation, the plan will be subject to review by consulting parties and approval by the Corps. PIT will implement the plan in full, following timelines detailed in the plan.

f. Monies. PIT shall bear the expense for the above site protection described in Sections 2.a. through 2.e., estimated at $3,500 of the $94,500 described in Paragraph 1 above. PIT shall bear the expense for all costs be) ond the amount allocated in this paragraph.

Page 3 of 12

SUBJECT: Mitigation of Adverse Effects to- associated with Pacific International Terminals, Inc. Geotechnical Sampling and Access, Cherry Point, Whatcom County, Washington.

3. Additional Payment Mitigation. PIT shall pay $91,000 to fund the Skeletal Human Remains Assistance Account (http://www .dahp. wa. gov/human-remains-assistance-account).

arehi•1al werk at WWU as fullews:

e. H~:~man remaiRS ·.viii be verified by a physisal aHthrepelegist.

e. All h~:~man re!'HaiRs aHa fuRerary ebj eets iaeRtifiee iR ~e m~:~se~:~m eelleetieRs will ee repatriated liReer the previsiBRS ef the NatiYe AmerieaH Graves PreteetieR ana. RepatriatieR Aet (PI:!Biie La-v1 HH (jQl; 2S U.S.C. 3QQ1 et sell). The h~:~maR reH~:aiRs will ee fully reeereea (e.g. , measarea, aeserieea, aHa pflBtegraphee) prier te eeaeeessieR ana repatriatieR.

e. NeR fuHerary aRe RBR humaHs remaiRs eKamiRea iR the eelleetieRs alifiRg ~e seareh fur h~:~maH aHa fuRei'IH)' rem aiRs ·.vill ee Uflliatea te e~:~rreRt earatieR staftaari:ls, if tliey are Ret e~:~rreHtly iH ~at state. CUFFeHt suratieH stanaaras address !eRg tefHI managemeHt ana presep,•atieH aHa shall fellew these established ey ~e NatieHal Pa-rk £ep,·ise (J(j CFR part

+91-:

e.

be ae¥elepea antlp£9'liaea te the Carps. Reearial will ee seeraiRatea with eBHSiiltiHg parties, pRwieiHg all iHterestee eeRsaltiRg parties reaseRable assess aHa aeeemmeaatieRs s~:~sh that reelifial eeremeRies (iRel~:~eiHg separate seremeHies if Fe€!1iestee by tribes) eaH be perfurmee.

f. Dee~:~meRtatieR. State Arehaeelegieal site fuFHI(s) fer sites aRe eelleetieRs werJeee eH aRaer tliis MOA will be updated eetailiHg what was aeeemf!lishee iReleaiRg iHfurmatieH eR what hemaH remaiHs were ieeHtifiea aHa where hlim!lH remaiHs aRe asseeiatee fuHerat)' ebjeets Vlere reeeriee.

g. RepeFtiHg. AHy party perfurmiRg saastantive elemeHts eftliis agreemeHt shall previae meHtltly flFBgress reperts eR aeti¥ities earriea el:tt flliFseaHt te this agreeHI:eHt te the Carps. The Carps shall furware by email the meftthly pregress reperts te ~e eeRsultiHg parties. A FiRal Repert semmariziRg all tile aetivities eaeertal<eH perseaHt te ~is agreeH~:eHt shall ee prB'Iieee te the Carps withifl six meHtlis ef all eempletieH ef all tasks. The Lemmi shall previae this fiRal repert te all eeas~:~ltiHg parties.

h. Werk PlaH. The Lammi NatieH has agreed te 68Haast the werk aeserieee iR this f!aragraph (ParagFaflh 3), fulle•NiHg similar werk that they ha,,e eeHeuetee at WWU. Te exeeute the Vlerk, the Lemmi 'NatieH will prepare aHa implemeat a werk plaH iaeleeiHg a

Page 4 of 12

SUBJECT: !\litigation of Adverse Effects to - associated with Pacific International Terminals, Inc. Geotechnical Sampling and Access, Cherry Point, Whatcorn County, Washington.

selleaale tllat details eemplienee with Seetiaas 3.a. threagh 3.g. far SHbmissiaa ta the Ca~s aa later tlum 9Q Eiays after this MOA is exeeatea. Prier te imf!lemeatatiaa, the plan ·.viii ee SHBj eet ta revievr ey eaasaltiag f!arties end af!flf9'ral by the Carps. The wark plaR sRall B8 aatharea aRS eaffiea eat by ar ~mEier the Saf!eFViSiSR ef f!Fefessieaals meetiag the Seeretery af IRterier Steftaards Of tile af!f!FSf!riate aiseif!liRe eJ!:f}ertise (36CFR part 66).

i. Maaies. PIT shall f!FeYiae to the Laffiffii Iaaiaa Basiaess CoHReil $5,QGQ ta f!rej'lare the vrerk f!lan ia Seetiaa 3.8. vrithia 30 days afexeeHtiag this MOA •. PIT will pre•liae ta tile Lammi laaien Basiaess CotiReil $86,GQQ te eamj'llete the vrerk fellewiRg a timeliae fer paymeRt aRQ aeiheraeies detailed iR the WSrk j'llaB:. These ffieRies will be asea to fttRa asj'leets Eieseribea abeYe hwoiYiRg aeeess ta the ealleetieas at WWU, My fees ar eests reEJairea ey WWU, east assaeiatea .,.,.ith earatiaa, easts assaeiatea with repertiag, ;me ether east asseeiatea with rebarial. ~ffleRses aaa easts that elfeeea the amaHRt f!fOVit:lea ey PIT fer Vrarl< eaaaaetea iR this paragrapR shall ee the F6SfiORSibility efthe Lammi Natiaa.Casts sf tribal eeremoaies. Aay easts aftrieal eeremeRies assaeiatea with repatriatiaa ar maaitariag vrill be the respaasieility af eaefi iaaiviat:tal tribe.

4. /{~ .W~!Y:f?~ ................... ....................................................................................... -···· •''-l F_o_rm_a_tted_' _: u_n_der_l_ln_e ______ .-J

42_. Administrative Stipulations

a. Disputes arising about the implementation of the stipulations of this MOA will be resohed in the following manner:

( 1) The Corps shall notify all other signatories in writing of any instance where a signatory or consulting party to this MOA objects to the implementation of an) of the stipulations set forth aboYe. The Corps shall consult to resolve the objection. If the Corps determines that the objection cannot be resolved, the Corps shall forward all documentation releYant to the dispute, including the Corps' proposed resolution, to the ACHP. Within fifteen (15) business days after receipt of adequate documentation, the ACHP shall either:

a) proYide written recommendations relath e to the dispute, or

b) notify the Corps that it will comment in accordance with 36 CFR Part 800.7(c).

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SUBJECT: Mitigation of Ad..-erse Effects to .. associated with Pacific International Terminals, Inc. Geotechnical Sampling and Access, Cherry Point, Whatcom County, Washington.

(2) Any comment provided by the ACHP in response to such a request shall be taken into account by the Corps in accordance with 36 CFR Part 800 with reference to the subject of the dispute. The Corps' responsibility to ensure that all other actions under this MOA that are not the subject of the dispute are carried out shall remain unchanged. Prior to reaching a final decision on the dispute, the Corps shall prepare a written response that takes into account any timely advice or comments regarding the dispute from the ACHP, signatories and consulting parties, and provide them with a copy of this written response. The Corps will then proceed according to its final decision.

(3) If the ACHP does not provide its advice regarding the dispute within the fifteen (15) day time period, the Corps may make a final decision on the dispute and proceed accordingly. Prior to reaching such a final decision, the Corps shall prepare a written response that takes into account any timely comments regarding the dispute from the signatories and consulting parties to the 1\IOA, and provide them and the ACHP with a copy of such written response.

b. At any time during implementation of the measures stipulated in this MOA, should an objection to any such measure or its manner of implementation be raised by a member of the public regarding historic preservation, the Corps shall take the objection into account and consult as needed with the objecting party, the DAHP, or the ACHP to determine how best to address the objection.

c. If the terms of this agreement have not been implemented within five years of execution of the MOA, this agreement shall be considered null and void, unless the signatories agree in writing to an extension for carrying out its terms. If this agreement is considered null and void, the Corps shall so notify the parties to this agreement, and if PIT chooses to continue with the undertaking, shall re-initiate review of the undertaking in accordance y·ith 36 CFR Part 800.

d. Any signatory to this agreement may propose to the Corps that the agreement be amended, whereupon the Corps shall consult with the other parties to this agreement to consider such an amendment. This MOA will be amended when such an amendment is agreed to in \\Titing by all signatories. The amendment will be filed with the ACHP and go into effect on the date of the last signature from signatories.

e. If the Corps determines that it cannot implement the terms of this agreement, or if any signatory determines that the agreement is not being properly implemented, such party may propose to the other parties to this agreement that it be terminated.

The party proposing to terminate this agreement shall so notify all parties to this agreement, explaining the reasons for termination and affording them at least 30 days to consult and seek alternatives to termination. The parties shall then consult.

Should such consultation fail, the Corps or other signatory party may terminate the agreement by so notifying all parties.

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SUBJECT: Mitigation of Adverse Effects to- associated with Pacific International Terminals, Inc. Geotechnical Sampling and Access, Cherry Point, Whatcom County, Washington.

Should this agreement be terminated, the Corps shall either:

(1) Consult in accordance with 36 CFR Part 800.6 to deYelop a new MOA;.or

(2) Request the comments of the ACHP pursuant to 36 CFR Part 800.7.

f. Execution of this 1\IOA by the Corps, DAHP, and PIT, ~mEl Ll:l:R!:R!:i, and its submission to the ACHP, and implementation of its terms, evidence that the Corps has afforded the ACHP an opportunity to comment on the undertaking and its effects on historic properties, and that Corps has taken into account the effects of the undertaking on historic properties.

5. }ole '.Vaiver

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i Formatted: Underline

SUBJECT: Mitigation of Adverse Effects to - associated with Pacific International Terminals, Inc. Geotechnical Sampling and Access, Cherry Point, Whatcom County, Washington.

SIGNATORY PARTY:

U.S. ARMY CORPS OF ENGINEERS, SEATTLE DISTRICT

Bruce A. Estok Colonel, Corps of Engineers District Commander

Date:

Note: Signatures continued on next page.

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SUBJECT: Mitigation of Adyerse Effects to - associated with Pacific International Terminals, Inc. Geotechnical Sampling and Access, Cherry Point, Whatcom County, Washington.

SIGNATORY PARTY:

WASHINGTON STATE HISTORIC PRESERVATION OFFICER

By: Date:

Title: ----- ---------

Note: Signatures continued on next page.

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SUBJECT: Mitigation of Adverse Effects to .. associated with Pacific International Terminals, Inc. Geotechnical Sampling and Access, Cherry Point, Whatcom County, Washington.

SIGNATORY PARTY:

PACIFIC INTERNATIONAL TERMINALS, INC.

By: Date:

Title: ------------- -

I Note: Signatures continued on next page.

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SUBJECT: l\Iitigation of Adverse Effects t~ associated with Pacific International Terminals, Inc. Geotechnical Sampling and Access, Cherry Point, Whatcom County, Washington.

CONCURRING PARTY:

SIGNATORY PARTY:

LUMMI NATION

By: Date:

Title: -------------

Note: Signatures continued on next page.

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SUBJECT: Mitigation of Adverse Effects to- associated with Pacific International Terminals, Inc. Geotechnical Sampling and Access, Cherry Point, Whatcom County, \Vashington.

CONCURRING PARTY:

NOOKSACK TRIBE

By: Date:

Title: --------------

Note: Signatures continued on next page.

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SUBJECT: Mitigation of Adverse Effects to . associated with Pacific International Terminals, Inc. Geotechnical Sampling and Access, Cherry Pomt, Vlhatcom County, Washington.

CONCURRING PARTY:

SAtvUSH INDIAN NATION

By: Date:

Title: --------------

Note: End of signature pages.

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