Legal

Cooke Aquaculture Cypress Island fish pen

Legal Decisions Related to Our Advocacy

Shellfish Legal Actions

USACE publicly released decision:
United States Seattle District Court holds USACE nationwide48 permits unlawful – October 10, 2019
Same court vacates all existing NWP48 permits and rules all shellfish operators must apply to the USACE for individual permits allowing for public input – June 11, 2020; decision upheld on appeal, July 23, 2020
The new lawsuit alleges the Corps circumvented the federal court rulings and the required public process and continuing the excessive expansion of industrial shellfish operations without considering the cumulative impacts: Groups Again Sue Army Corps to Protect Washington’s Coastal Areas and Endangered Species from Industrial Shellfish Operations (centerforfoodsafety.org)  December 20, 2021

Community and Public Interest Groups Protect Washington’s Iconic Coastlines and Wildlife from Expanding Industrial Shellfish Aquaculture

“Seattle, WA—Today, a federal court nullified the defective Nationwide Permit 48 (NWP 48), making the vast majority of shellfish aquaculture activities in Washington illegal. However, the court also partially stayed its order invalidating the permit to allow some activities to continue pending issuance of new, lawful permits. The decision comes in response to lawsuits brought by Center for Food Safety (CFS) and the Coalition to Protect Puget Sound Habitat (Coalition) in the Federal District Court for the Western District of Washington. ” Read more: Center For Food Safety

More Thoughts

Back in October, 2019 the Federal District Court found that the Army Corps of Engineers (ACE) Nationwide Permits issued for commercial shellfish aquaculture unlawful. The Court ruling required shellfish operations to re-permit under Individual Permits but did allow planting through the 2020 season and harvesting through March 2022.

The aquaculture industry group appealed the decision. On February 11 a three-judge panel with the Ninth Circuit Court of Appeals unanimously agreed with the earlier ruling. This is good news as it requires more detailed reviews of new shellfish permits instead of issuing blanket permits.

For more information: centerforfoodsafety – press-release re shellfish aquaculture court of appeals

However our work is not finished … Efforts to protect the Dungeness Wildlife Refuge are ongoing as this project is already under an Individual Permit and the process continues. Unfortunately we cannot predict the ACE reaction to the recent rulings. At this point we hope that the ACE now sees a need for very careful reviews.

While we await the ACE decision about the Dungeness National Wildlife Refuge, the WA State Department of Ecology approved a Coastal Zone Management permit for the project. The ACE permit decision is our focus.

We will continue to keep in touch with all of you. As well, the ACE should let those who submitted comments in May of last year know when a permit decision has been made.

Until then, keep safe and hopeful,

Finfish Legal Actions

In 2018, the Washington State Legislature passed EHB 2957, banning nonnative finfish aquaculture.

Legislators expressed their concerns more broadly in their statement above.  https://lawfilesext.leg.wa.gov/biennium/2017-18/Pdf/Bills/House%20Passed%20Legislature/2957.PL.pdf?q=20211227141805

Governor Jay Inslee signed the bill but deleted Section 1.   https://lawfilesext.leg.wa.gov/biennium/2017-18/Pdf/Bills/Vetoes/House/2957.VTO.pdf?q=20211227141805   Corporations said they will turn to growing “native” species in pens.

  •   The Washington Department of Natural Resources (DNR) opposition to permitting Cooke Aquaculture to continue its finfish net pen aquaculture activities in Port Angeles Harbor was upheld when the Washington Court of Appeals issued an opinionaffirming a lower court decision to terminate the lease.

https://wildfishconservancy.org/12-16-2021-unpublished-opinion-cooke-vs.-dnr/at_download/file

  •   In an aquaculture action, Cooke Aquaculture agreed to a $2.75 million settlement brought by The Wildfish Conservancy nonprofit, based in Duvall Washington, as a result of the company’s Cypress Island 2017 net pan collapse that released over 250,000 nonnative Atlantic salmon in to open waters of the state.

https://wildfishconservancy.org/cooke-aquaculture-to-pay-2.75-million-ending-wfc-lawsuit-over-net-pen-collapse-1

The Jamestown S’Klallam Tribal Chairman Ron Allen vows to establish a fish farm in Port Angeles Harbor despite the DNR Court of Appeals decision upholding termination of its business partner’s lease.

https://www.peninsuladailynews.com/news/tribe-court-of-appeals-ruling-wont-stop-fish-farm-attempt/