Supreme Court shrinks definition of the Clean Water Act

Posted on May 30, 2023 by Al Bergstein

Well I’m sad that this case ended this way. But I really think that there is a silver lining in this. For too long the EPA has decided what could be protected under the Clean Waters Act and frankly I understand though I don’t agree with the Supreme Court decision.

Congress ultimately ought to be the arbiter of putting into the law specific protections rather than having some vague understanding of wetlands somehow being connected to navigable waters of the United States. I’ve never understood exactly what that definition is and thought that it was being quite lenient or overly protective, perhaps Republicans would say overreaching, for the EPA to make those decisions rather than to have them baked into law. I have always thought that navigable waters meant rivers, lakes and ocean areas that would be usable by commercial boats. I don’t know that I would consider Priest Lake, a “navigable water” if it was my decision to make. Apparently, the justices felt the same way, given that there was no dissent, just differences of opinion on the decision. It is hard to imagine on this Supreme Court a 9 to nothing decision but that was what this was. So I don’t know that I would necessarily blame conservative judges though it’s so easy to do so given their recent uncovered flaws.

ALITO, J., delivered the opinion of the Court, in which ROBERTS, C. J., and THOMAS, GORSUCH, and BARRETT, JJ., joined. THOMAS, J., filed a concurring opinion, in which GORSUCH, J., joined. KAGAN, J., filed an opinion concurring in the judgment, in which SOTOMAYOR and JACKSON, J.J., joined. KAVANAUGH, J., filed an opinion concurring in the judgment, in which SOTOMAYOR, KAGAN, and JACKSON, JJ., joined.

The justices wrote,

The uncertain meaning of “the waters of the United States” has been a persistent problem, sparking decades of agency action and litigation. Resolving the CWA’s applicability to wetlands requires a review of the history surrounding the interpretation of that phrase.

21-454 Sackett v. EPA (05/25/2023) (supremecourt.gov)

There are many other areas where agencies determine what is the proper law for an industry. Thinking specifically about NOAA and the Army Corps of Engineers in their decision making processes that the court has over and over again found flawed. In fact the Army Corps of Engineers was one of the agencies that was specifically called out in this decision by the court.

I’m hoping that out of this fiasco, that allows homeowners to build homes out over wetlands, that we can come to some new type of laws that will actually regulate our waters properly.

Supreme Court shrinks definition of the Clean Water Act — High Country News – Know the West (hcn.org)

Filed under: Environmental Law, Environmental Protection | Leave a comment »

Judge rejects Cooke’s claim that Washington state violated agreements with forced closure of netpen operations

Posted on May 19, 2023 by Al Bergstein

“Cooke has lost 330,000 fish from the decision and said it has suffered significant financial harm.” Judge doesn’t buy the arguement that the State violated the contracts with the companies. This is a precident that may be used in other cases to come.

The news is behind a paywall, but you can sign up for free and read the rest at:

Judge rejects Cooke’s claim that Washington state violated agreements with forced closure of netpen operations | IntraFish.com

Filed under: Around the Salish Sea, Around the Sound, Environmental Law | Comments Off on Judge rejects Cooke’s claim that Washington state violated agreements with forced closure of netpen operations

Federal Court Rules on Overharvest of Salmon

Posted on May 10, 2023 by Al Bergstein

From Wild Salmon Conservancy. A major ruling with far reaching impacts.

May 3, 2023— Yesterday, in an international, coastwide environmental victory, Seattle federal Court issued a landmark order halting the overharvest of Chinook salmon in Southeast Alaska that has persisted for decades, jeopardizing the survival of federally-protected Southern Resident killer whales (SRKW) and wild Chinook populations coastwide. This significant decision will immediately allow the starving Southern Resident population far greater access to these Chinook which are the whale’s primary prey, marking a turning point for their recovery.

“This Court decision is the largest victory for Southern Resident killer whale recovery in decades and will be celebrated internationally. After years of inaction by our federal government to address the prey crisis facing the Southern Residents, Judge Jones’ decision will finally provide starving orcas immediate access to their primary prey,” says Emma Helverson, Executive Director of Wild Fish Conservancy. “What’s more, by allowing far more wild Chinook to return home to their spawning grounds, this action is also helping to recover and restore wild Chinook from rivers throughout Oregon, Washington, and British Columbia, essential to rebuilding both populations in the long-term.”

On Tuesday, U.S. District Judge Richard A. Jones issued a final ruling in Wild Fish Conservancy’s lawsuit agreeing that halting the summer and winter seasons of the Southeast Alaska Chinook troll fishery is the most appropriate remedy. The Court subsequently remanded NOAA Fisheries’ inadequate biological opinion in order for the agency to address the serious underlying violations of environmental law previously found by the Court.

In that biological opinion evaluating the fishery’s impact on threatened and endangered species, NOAA admitted that over the last decade and persisting today, Chinook harvest is occurring at levels that are unsustainable for the long-term survival and reproductive success of both threatened wild Chinook populations and endangered Southern Resident killer whales. Still, NOAA authorized the harvest to continue at these levels relying on proposed mitigation they claimed would offset this serious harm. In summary judgement in August, the Court overwhelmingly found the mitigation was insufficient and violated the Endangered Species Act (ESA) and that NOAA failed to conduct legally required environmental review of the mitigation, which would include opportunities for public input and an evaluation of alternatives, such as reductions in harvest.

Southern Resident killer whales were listed as Endangered in 2005. Currently, there are only 73 individuals in the population, an alarming decrease from nearly 100 only 25-years ago. Reduced prey availability, specifically large and abundant wild Chinook, has been identified by killer whale experts and NOAA as the primary cause of their decline. Research has shown an alarming 69% of Southern Resident killer whale pregnancies are aborted due to insufficient Chinook salmon and inbreeding depression has been identified as a growing threat to the population’s survival and recovery.

“This is unbelievable news, yet so long in coming,” said Wild Orca’s Science and Research Director, Dr. Deborah Giles. “The high pregnancy failure rate within the Southern Resident killer whale population is linked to poor nutrition, so having more fish returning to their home waters in British Columbia, Washington, and Oregon, will increase the whales’ prey base and improve their chances of giving birth to healthy calves.”

In an expert declaration evaluating the effect of the troll fishery’s harvest on the Southern Resident population, modeling by Dr. Robert E. Lacy projected closing the fishery would increase prey availability by approximately 6%, which would be enough to stabilize the population and stop their decline toward extinction, though additional actions would be required to begin to grow the population. The Court stated: “Though there is uncertainty as to how much prey would ultimately reach the SRKW, the record before the Court suggests that closure of the fisheries meaningfully improves prey available to the SRKW, as well as SRKW population stability and growth, under any scenario.” As a result of yesterday’s decision, approximately 172,000 Chinook that would have been harvested or indirectly killed in the 2023 summer and winter seasons of the Southeast Alaska troll fishery will now be able to continue their historical migration south to home spawning grounds and into the whale’s key foraging areas.

“Dr. Lacy’s findings suggest that the single action of closing this fishery would increase prey availability enough to stabilize the Southern Resident population. Stopping the precipitous decline of the whales toward extinction is the highest priority toward recovery efforts. These findings clearly demonstrate that Chinook harvest in Southeast Alaska’s troll fishery is contributing to the decline of the whales, validating why the Court’s decision is so critically important to the survival of this population,” says Helverson.

While the fishery occurs in Southeast Alaska marine waters, most people are unaware that up to 97% of all Chinook harvested in the Southeast Alaska troll fishery migrate from rivers throughout British Columbia, Washington, and Oregon. Roughly half of the fish harvested originate from the Columbia River, and many come from populations listed as Threatened under the ESA. Currently, these Chinook are harvested in their ocean rearing habitats preventing them from migrating back into southern waters where the Southern Resident killer whales encounter them. Majority of stocks harvested in the fishery are identified as priority stocks for the Southern Residents.

“Alaskan fishers should not be blamed for NOAA’s chronic mismanagement of this fishery, and we are sincerely sympathetic to the burden this decision will pose to Southeast Alaskan communities,” says Helverson. “However, this decision will finally address decades of harm and lost opportunity this overharvest has caused to fishing communities throughout British Columbia, Oregon, and Washington who depend on these fish, particularly Tribal and First Nations. In addition to the unparalleled benefits to killer whale and Chinook recovery, the Court’s decision is addressing this historic inequity and restoring control to coastal communities of the destiny of salmon recovery in their home watersheds.”

“The underlying harvest issues in this case are not an anomaly, but rather just one example that demonstrates the problems caused when harvest occurs in the ocean where it is impossible to avoid unintentionally harming threatened and endangered populations or intercepting high proportions of salmon from rivers coastwide,” says Kurt Beardslee, Director of Special Projects. “Scientists are increasingly calling for harvest reform measures that shift harvest out of the ocean and into fisheries in or near each river of origin where salmon return, providing fisheries managers and coastal communities the ability to manage recovery with far greater accuracy and success.”

Filed under: Around the Salish Sea, Endangered Species, Environmental Activism, Environmental Law, fisheries, Orcas, Salmon | Comments Off on Federal Court Rules on Overharvest of Salmon

EVENT: Puget Sound Day on the Hill Livestream! May 9th

Posted on May 4, 2023 by Al Bergstein

Dear Puget Sound recovery community, 

Registration is now open for two Puget Sound Day on the Hill livestream events!

 

Puget Sound Federal Leadership Task Force – coordination of resources, policies, and programs to support ecosystem and salmon recovery and the protection of treaty rights

May 9, 2023 | 7:00 a.m. – 8:00 a.m. PDT

REGISTER HERE

The first livestream event, on May 9, will be a panel discussion about Puget Sound recovery with representatives from federal agencies moderated by Peter Murchie, Puget Sound Geographic Program manager at the U.S. Environmental Protection Agency (EPA). 

Tentative panelists include:

  • Sara Gonzalez-Rothi, senior director for water, Council on Environmental Quality
  • Zach Penney, senior advisor, National Oceanic and Atmospheric Administration
  • Steve Kopecky, deputy chief, Northwest Division Regional Integration Team, U.S. Army Corps of Engineers
  • Zach Schafer, senior advisor, Office of Water, EPA
  • Karnig Ohannessian, deputy assistant secretary of the Navy for environment and mission readiness

 

Puget Sound Day on the Hill event with Congressional delegation and Admiral Hann

May 10, 2023 | 7:00 a.m. – 2:30 p.m. PDT.

REGISTER HERE

The second livestream event, on May 10, will feature members of the Washington Congressional delegation and Admiral Nancy Hann of NOAA’s Commissioned Officer Corps. The livestream will take place from 7:00 a.m. – 2:30 p.m. PDT.

Tentative schedule:

7:30 a.m. – 8:00 a.m.Rep. Gluesenkamp Perez
8:00 a.m. – 8:30 a.m.Rep. Strickland
10:00 a.m. – 10:30 a.m.Rep. Larsen
10:30 a.m. – 11:00 a.m.Admiral Hann
11:00 a.m. – 11:30 a.m.Rep. Schrier
11:30 a.m. – 12:00 p.m.Rep. Jayapal
12:00 p.m. – 12:30 p.m.Rep. Kilmer
12:30 p.m. – 1:00 p.m.Sen. Murray
1:00 p.m. – 1:30 p.m.Sen. Cantwell
  

Rep. DelBene will stop by between Rep. Kilmer and Sen. Murray

Please join us for these livestream events to support Puget Sound and salmon recovery and to encourage the good work done by federal agencies and our Congressional delegation. Both events will be recorded and available to view for registered participants.

We hope you’ll join us on May 9 and 10!

Filed under: Around the Salish Sea, education, Environmental Activism, environmental education, Environmental Law, Events, Government | Comments Off on EVENT: Puget Sound Day on the Hill Livestream! May 9th

Puget Sound Partnership Legislative Update

Posted on April 14, 2023 by Al Bergstein

In case you have not signed up for their weekly updates.

PugetSoundLegislativeUpdate_20230412Download

Filed under: Environmental Law, legislature, Olympic Peninsula | Comments Off on Puget Sound Partnership Legislative Update

Canada Shuts Down 15 Fish Farms in B.C., Citing Risks to Wild Salmon – Maritime Executive

Posted on February 20, 2023 by Al Bergstein

The pressure is building on Canada to end the use of net pens that effect wild salmon runs. A huge win for Alexandra Morton and her supporters, but more importantly, for the wild salmon runs which, as the article points out, are in serious decline.

After years of concerns over the impact of aquaculture on wild sockeye salmon, Canada’s fisheries department has decided not to renew the operating permits of 15 Atlantic salmon farms in an environmentally sensitive area of British Columbia. 

Canada Shuts Down 15 Fish Farms in B.C., Citing Risks to Wild Salmon (maritime-executive.com)

Filed under: Aquaculture, Endangered Species, Environmental Law, Environmental Protection, fisheries, Government | Comments Off on Canada Shuts Down 15 Fish Farms in B.C., Citing Risks to Wild Salmon – Maritime Executive

Bad bill on watersheds needs your input.

Posted on February 3, 2023 by Al Bergstein

Oddly, Senator Kevin Van de Wege is promoting a terrible bill, (SB5517) which would dramatically alter the issue of the instream flow rule. Eastern Washington has been trying for years to get something like this through but the Dems have been not been willing to support it. Now, with Van de Wege co-sponsoring this bill, it seems possible. Below you will find a Sierra Club overview of the problems with this bill. I am surprised if the Tribes support this. My guess is that the farmers of the Dungeness valley are behind this and getting Kevin to promote it. With only two sponsors my experience tells me it’s just a straw dog that Kevin did for them. We encountered this same kind of bill a few years ago regarding gravel bed “management” by farmers down on the Chehalis River. The tribes killed the bill. But it’s not to say that there ought to be a solid showing of dislike for this.

Please contact Kevin’s office and also put your comments in down at the State web site.

. Quick action – sign in “CON”

  1. Go to the SB 5517 Sign-In webpage. (this is a direct link to the SB 5517 specific sign on)
  2. Choose CON as your position
  3. Fill in the remaining boxes: First name, Last name, Email, Address, and Phone
  4. Leave Organization blank
  5. Check the box “I’m not a robot”
  6. Finally, hit submit!

Filed under: Environmental Activism, Environmental Law, fisheries, legislation | Tagged: , | 5 Comments »

Court Recommends Halting Alaska’s Unsustainable Harvest to Protect Wild Chinook and Southern Resident Killer Whales

Posted on December 16, 2022 by Al Bergstein

Yesterday, The federal court in Seattle issued a landmark decision. The outcome of this is still to be determined. But it likely means an end to Chinook harvest in Alaska. NOAA has been losing in court due to their lack of rigorous science behind their decisions. This lawsuit was brought by the Wild Fish Conservancy, one of the most effective environmental organizations in the Pacific Northwest. If you want to support their work, it’s a good time to donate.

More to come on this. 

December 16, 2022— In a massive international and coast-wide decision for wild Chinook and Southern Resident killer whale recovery, Seattle’s federal Court issued a landmark opinion on Tuesday that recommends terminating unsustainable commercial salmon harvest that has persisted for decades until new environmental reviews of those fisheries occur. Overfishing was found in a previous ruling to illegally harm the recovery of both endangered Southern Resident killer whales and wild Chinook salmon across the Pacific Northwest.


On Tuesday, U.S. Magistrate Judge Michelle Peterson issued a report and recommendation on Wild Fish Conservancy’s lawsuit, agreeing that halting the summer and winter seasons of the Southeast Alaska Chinook troll fishery is the most appropriate remedy. Simultaneously, the judge found the federal government’s inadequate biological opinion should be remanded back to NOAA in order for the agency to address violations of environmental law.


In August, U.S. District Court Judge Richard A. Jones issued a stunning summary judgment based on a previous report and recommendation by Magistrate Peterson confirming that NOAA violated the law by improperly relying on undeveloped and uncertain future mitigation to offset ongoing overfishing authorized by NOAA.


In their most recent analysis of this fishery’s impact on threatened and endangered species, NOAA admits that over the last decade and continuing today, Chinook harvest is occurring at levels that are unsustainable for the long-term survival and reproductive success of both threatened wild Chinook populations and endangered Southern Resident killer whales. The overharvest of the whales’ prey has been ongoing for decades.


“The benefits to wild Chinook and Southern Resident killer whale recovery from the Court’s action cannot be overstated,” says Emma Helverson, Executive Director of Wild Fish Conservancy. “If adopted by the District Judge, this recommendation will result in the first scientifically-proven recovery action in the Pacific Northwest to immediately provide Chinook for starving killer whales. The decision will also recover and restore the larger and more diverse life histories of wild Chinook these whales evolved to eat, which are fundamental for rebuilding both populations.”


While these Chinook are harvested in Southeast Alaska marine waters and currently certified by major U.S. seafood certifiers as ‘sustainable wild caught Alaskan Chinook’, approximately 97% of all Chinook harvested in the Southeast Alaska troll fishery actually originate from rivers throughout British Columbia, Washington, and Oregon. Currently, these Chinook are harvested prematurely, before they can migrate back into southern waters where the Southern Resident killer whales encounter them. In 2021, the fishery of concern harvested approximately 150,000 Chinook, many of which were listed as threatened under the Endangered Species Act.
For the first time in decades, Magistrate Peterson’s recommendation to terminate this fishery would finally allow these Chinook to migrate back down the coast and pass through the Southern Resident killer whales’ key foraging areas. Similarly, this action would support the coastwide recovery of wild Chinook stocks by allowing far more wild Chinook to return and spawn in rivers in B.C., Washington, and Oregon.


“I want to emphasize that Alaskan fishers are not to blame for NOAA’s chronic mismanagement of this fishery, and we are sympathetic to the burden this decision may pose on Southeast Alaskan communities,” says Emma Helverson, Executive Director of Wild Fish Conservancy. “However, it’s critical to also acknowledge that for decades this fishery has harvested majority non-Alaskan Chinook at unsustainable levels with cascading and coastwide consequences for fishing communities throughout British Columbia, Oregon, and Washington. In addition to the unparalleled benefits to killer whale and Chinook recovery, the Court’s decision will restore more control to communities over the recovery of their local Chinook salmon populations, particularly tribal people and First Nations.”


Southern Resident killer whales were listed as Endangered in 2005. Currently, there are only 73 individuals in the population, an alarming decrease from nearly 100 only 25-years ago. Reduced prey availability, specifically large and abundant Chinook, has been identified by killer whale experts and NOAA as the primary cause of their decline.


“With less fishing in Alaskan waters, more Chinook can return to spawn in their home rivers in British Columbia, Washington, and Oregon,” said Dr. Deborah Giles, Science and Research Director at Wild Orca. “An increase in larger, mature fish is essential—not just for the whales— but for the survival of these imperiled Chinook populations, whose future also hangs in the balance. A recovery for Chinook benefits all fishers, whales, and humans alike.”


“Despite the clear evidence, for too long government agencies, certifiers, and the media have been unwilling to acknowledge and address the unsustainable salmon harvest management in this fishery and others that is harming the recovery of the Southern Resident killer whales and the wild Chinook they depend on,” says Helverson. “The Court’s finding is playing an important role in bringing science and policy closer together for the benefit of wild salmon, killer whales, and coastal communities.”


In the coming months, the Magistrate Judge’s report and recommendation and any objections from the defendants will be considered by the District Judge presiding over the case for a final ruling.
### 

Filed under: Environmental Law, Environmental Protection, Orcas, Salmon | Tagged: | 1 Comment »

Port Townsend City Council recognizes rights of whales in WA

Posted on December 6, 2022 by Al Bergstein

On Monday night, the Port Townsend mayor and city council took the step to declare that the Southern Resident Orcas have inherent rights. Port Townsend is the first county in Washington State to take this step, in a growing movement known as the Rights of Nature. The “Rights of Nature” framework is the recognition that Nature is a living being and rights-bearing entity. Rights recognition takes Nature out of the realm of property.

Mayor David Faber, Patrick Johnson of QUUF and members of the North Olympic Orca Pod

Patrick Johnson of the Green Sanctuary Environmental Action Team from Quimper Unitarian Universalist Fellowship read the following:

On behalf of Legal Rights for the Salish Sea, Earth Law Center, and our friends and supporters at the Green Sanctuary Environmental Action Team from Quimper Unitarian Universalist Fellowship, and the North Olympic Orca Pod, we’d like to extend our heartfelt thanks and appreciation to Mayor Faber and the members of the Port Townsend City Council for supporting this proclamation recognizing the inherent rights of the Southern Resident Orcas. We have been asking our decision makers to take BOLD action to save these unique and critically endangered orcas, and tonight YOU have done that! Your leadership and compassion for Nature will be a model for other city/county councils to follow. This is historic! 

Central to a “Rights of Nature” framework is the recognition that Nature is a living being and rights-bearing entity. Rights recognition takes Nature out of the realm of property. It reflects an inseparable human-Nature relationship rooted in mutual enhancement and holism rather than dominion, subjugation, and exploitation. Rights of Nature, therefore, offers a framework in line with natural law and science, allowing us to properly respect and value Nature (intrinsic values) as decision making occurs. Over twenty countries already embrace Rights of Nature concepts at some level of government.

In 2018, the Affiliated Tribes of Northwest Indians (comprised of American Indians/ Alaska Natives and tribes in Washington, Idaho, Oregon, Montana, Nevada, Northern California, and Alaska) passed Resolution #18-32 recognizing a sacred obligation to the Southern Resident Orcas, “our relatives under the waves.” The Resolution explains that the sacred obligation “to ensure all our relations are treated in a dignified manner that reflects tribal cultural values that have been passed down for countless generations” is to be understood in the context of “an inherent right and a treaty right, and in terms of indigenous ways of knowing the natural law” as embodied in their relationship to the Southern Residents. 

At a more fundamental level, recognizing the Southern Residents’ inherent rights shows that we as a society value them as living beings. It shows that when we say we want to prevent their extinction, we mean it. This will undoubtedly require changes in the way we do business; opening space for innovations so that we can have a future with clean rivers, ocean and seas, and healthy habitats for humans, animals and plants alike. 

We would not be here without the pioneering work and commitment to Ocean Rights by Michelle Bender and Elizabeth Dunne at the Earth Law Center. Many thanks to our friends at the Center for Whale Research, especially Ken Balcomb; Dr. Debra Giles at Wild Orca; and Howard Garrett, Susan Berta and Cindy Hansen, and everyone at the Orca Network. 

The following is the proclamation of the city of Port Townsend:

Press Release from the Earth Law Center

Port Townsend, WA (December 6th, 2022)—Yesterday evening, Port Townsend’s Mayor David J. Faber signed a Proclamation describing the City of Port Townsend’s support for action by local, state, federal and tribal governments that secure and effectuate the rights of the Southern Resident Orcas.

The Southern Resident Orcas (“the Orcas) are culturally, spiritually, and economically important to the people of Washington State and the world. However, despite federal legal protections for nearly two decades, the population continues to decline and is critically endangered, with only 73 individuals left in the wild.

The Proclamation states that the Southern Resident Orcas possess the inherent rights to: “life, autonomy, culture, free and safe passage, adequate food supply from naturally occurring sources, and freedom from conditions causing physical, emotional, or mental harm, including a habitat degraded by noise, pollution and contamination.”

Kriss Kevorkian of Legal Rights for the Salish Sea (LRSS), with the help of Patrick Johnson, of the Green Sanctuary Environmental Action Team from Quimper Unitarian Universalist Fellowship, introduced the idea of the Proclamation. “We are so grateful to the Mayor and City Council of Port Townsend for taking bold action to save these unique and critically endangered Orcas.” says Kriss Kevorkian, founder of LRSS.

Legal Rights for the Salish Sea partnered with Earth Law Center (ELC) in 2018 and are working to educate local communities on a new legal tool to protect Nature and communities – Rights of Nature. Together, they are leading a campaign to gain support for recognizing the rights of the Orcas at the local and Washington State level, and to take immediate actions to protect and restore the Orcas’ rights by addressing their main threats to survival.  “Recognizing the Southern Residents’ legal rights means that we must consider their wellbeing and needs in addition to human interests in decision making, and that they will have a voice in a variety of forums, including courts. Through their human guardians acting on their behalf and in their best interests, the Orcas will be able to express what they need to exist, thrive, and evolve,” explained Elizabeth Dunne, ELC’s Director of Legal Advocacy. “When structures such as the lower Snake River dams interfere with the Southern Residents’ ability to obtain prey (salmon) crucial for their survival, then to realize their rights we must find solutions to remedy the problem,” said Dunne. 

Legal rights for species and their habitats is not new. Hundreds of Rights of Nature laws exist in approximately 30 countries. Both San Francisco and Malibu passed resolutions protecting the rights of whales and dolphins in their coastal waters in 2014; New Zealand’s Government legally recognizes animals as ‘sentient’ beings; the Uttarakhand High Court of India ruled that the entire animal kingdom are legal entities with rights; and the United Kingdom now recognizes lobsters, crabs, and octopus as sentient beings.

Howard Garrett, co-founder of the Orca Network, supports this effort because he sees recognizing the Southern Residents’ inherent rights as “essential to the orcas’ survival and well-being. Without this recognition, people will continue to put economic and self-interest above the Southern Residents’ very survival.”

“Over the past few years, we have continued to see the population decline, and actions to recover the population have been slow and piecemeal. Business as usual is not working” says Michelle Bender. “We thank the leadership of Port Townsend and hope more local communities support a call for policies that give the Orcas, and all Nature, a voice in decision making and a seat at the table.”

This effort is also supported by an online change.org petition and declaration of understanding, of which over 10 organizations have signed onto.

Earth Law Center created a toolkit to help advocates introduce a resolution to their local communities, share the campaign on social media and other helpful talking points. You can take action and view the toolkit here.

#         #         #

Earth Law Center (www.earthlawcenter.org) works to transform the law to recognize and protect nature’s inherent rights to exist, thrive and evolve. ELC partners with frontline indigenous people, communities and organizations to challenge the overarching legal and economic systems that reward environmental harm, and advance governance systems that maximize social and ecological well-being.

Legal Rights for the Salish Sea (LRSS- http://legalrightsforthesalishsea.org/) is a local community group based in Gig Harbor, WA, founded by Dr. Kriss Kevorkian, educating people to recognize the inherent rights of the Southern Resident Orcas. Under our current legal system humans and corporations have legal standing but animals and ecosystems don’t. We believe that animals and ecosystems should also have legal rights, not just protections that can be changed by different administrations.

Filed under: Endangered Species, Environmental Activism, Environmental Law, Environmental Protection, Events, Government, Jefferson County, Jefferson County, Olympic Peninsula, Orcas | 1 Comment »

Net Pen Aquaculture Industry Targets DNR’s Hilary Franz

Posted on November 27, 2022 by Al Bergstein

In a series of articles across multiple platforms, the net pen aquaculture industry and their allies have targeted Washington State’s Department of Natural Resources (DNR) Commissioner Hilary Franz for attack and lawsuits after her controversial decision to end net pen aquaculture of Atlantic salmon in Puget Sound and Hood Canal.

Posts on LinkedIn (which does not allow critical rebuttal) by Jeanne McKnight, a PR specialist that works for the aquaculture industry, along with articles in SeaWestNews about the benefits of net pen aquaculture point to a new attack on Franz by the industry. Past Chairman of the Pacific Aquaculture Caucus Peter Becker also weighs in with his opinion in a long reply to McKnight’s original post.

The articles and posts point out that Franz came from a law degree background and not the “fisheries science industry”, so as not to be capable of deciding for an industry that has long been in the driver’s seat regarding influencing the regulators charged with regulating them. Cooke did an excellent job in the past of dividing to conquer the regulators by helping legislate multiple agencies to regulate multiple aspects of each farm, ending in a fiasco of collapsing nets due to poor maintenance and escaped fish. Franz rightly decided that Cooke should be banned from the near shore waters and shorelines of the State because of that incompetence. Her agency is charged with protecting those wild stock resources (along with other agencies).

The articles also raise smear tactics based on her decision by saying she ‘cherry picked’ the tribes in support of her decision (not even notifying the Jamestown S’Klallam Tribe who are partnering with Cooke Aquaculture for a sable fish net pen in Port Angeles harbor). This blog believes that Franz will exempt the Jamestown in the near future and allow them to create net pens for black cod as long as Cooke is not part of the business model.

All these are desperate tactics by an industry under attack both here and in Canada. The long-time work of Dr. Alexandra Morton in Canada, raised scientifically valid hypothesis and proofs over and over again that the industry is partially if not fully responsible for the collapse of wild stocks in many rivers in Western British Columbia while the industry takes credit for 97% of Canadian salmon produced being farm raised (as reported in an article in the industry journal SeaWestNews.) That statistic can also be read to mean that since farmed salmon have arrived 97% of wild salmon have vanished. The question is why is that statistic true? Alexandra Mortons’ research, among others such as Dr. Lawrence Dill, point to the reasons that the industry would rather ignore. Viruses from the farms as well as sea lice coming from the pens that are co-located in passages that the wild salmon have to traverse. The industry here claims that sea lice are not the problem that they are in B.C.

The reality is that this issue is not over yet, though Commissioner Franz’ decision (political though it may be) is not without the possibility of challenge in the courts. Washington State Dept. of Fish & Wildlife (not DNR) having lost a limited case ruling in the Washington State Supreme Court in a unanimous decision that only dealt with whether or not the permit for Cooke had met SEPA standards, the industry believes DNR may not be on the most solid ground to uphold this new decision. Can they argue that the decision was arbitrary and capricious? The industry also sees this as a test to save the geoduck aquaculture industry from a similar fate, as many of the same issues raised in this case could be applied by environmentalists to the near shore. Actually, they already have been but have not yet found the political support to stop the ongoing destruction of our shorelines by geoduck aquaculture illegally supported by both DNR and the Army Corps of Engineers (as decided in recent court battles lost by both agencies. )

Don’t go popping champagne bottles just yet, as we have not seen the end of the industry as it relates to this issue. The arc of justice may be finally bending in the way of environmental protection as it relates to the problems of net pen aquaculture, but the industry will do its best to bend it back to profit over wild stocks.

Filed under: Aquaculture, Around the Salish Sea, Endangered Species, Environmental Law, Environmental Protection, Government, legislation | Tagged: | 5 Comments »

What you should know about Industrial Raised Shellfish Aquaculture: An overview

Posted on November 18, 2022 by Al Bergstein

Kristina Sinclair gave a presentation to the Protect the Peninsula’s Future’s (PPF) meeting last night. I share her presentation with you with her permission. The questions that this presentation raises are many. What is the limit to these operations on our beaches? How much of the Sound and Hood Canal do we the people of this State want to see turned into the images in this presentation? Since 2000 the State has engaged in a promotion of commercial geoduck aquaculture for the profit of a small number of companies selling almost entirely to China. Do we want this to continue unabated? Can we expect local state and federal legislators who receive significant political contributions from these businesses to make changes on our behalf? Without considerable public outcry this will continue. Watch this slideshow, look at the map and you make up your mind.

Kristina Sinclair is an Associate Attorney at the Center for Food Safety (CFS), where she focuses on environmental cases challenging industrial agriculture, including commercial shellfish.

Kristina earned her J.D. from the University of California, Berkeley, School of Law. While in law school, Kristina was an Articles Editor for the California Law Review. She also participated in the Environmental Law Clinic, served on the steering committee for Students for Economic and Environmental Justice, and worked as a teaching assistant for Appellate Advocacy. Upon graduation, she received recognition for her pro bono work and a Certificate of Specialization in Environmental Law.

Since joining CFS, Kristina has been working on a lawsuit challenging highly disruptive industrial shellfish operations in Washington. In this case, CFS and Coalition to Protect Puget Sound allege that the U.S. Army Corps (USACE) failed to properly consider the potential risks before reissuing the nationwide permit for commercial shellfish activities in January 2021, in violation of the Clean Water Act, National Environmental Policy Act, and Endangered Species Act. In addition, USACE has authorized over 400 commercial shellfish operations without any public notice or environment review. Consequently, these operations have significant adverse effects on Washington’s local environment and wildlife.  In this presentation Kristina provides an overview of USACE’s shellfish permitting requirements, as well as the ongoing litigation challenging USACE’s unlawful shellfish permitting actions. She also shares some insights from this legal work and potential opportunities for future advocacy.  

  • Background on USACE’s Permitting Requirements
  • History of USACE’s Unlawful Permitting Actions in Washington
  • Previous Case
  • Current Case
  • Future Opportunities

Interactive map of Industrial Shellfish Aquaculture in Puget Sound & Hood Canal.

Below is the PDF of the Slideshow. It is over 4MBs so it might load slow on a slow link.

2022-11-17 Industrial Shellfish SlidesDownload

Filed under: Aquaculture, Clallam County, Environmental Activism, environmental education, Environmental Law, Environmental Protection, Jefferson County, Olympic Peninsula, Puget Sound, Straits of Juan de Fuca | Tagged: , , | 1 Comment »

Dept. of Nat. Resources Bans Future Net Pen Aquaculture – Major Win for Environmentalists, Tribes, Salmon & Orcas.

Posted on November 18, 2022 by Al Bergstein

Today, Washington’s Commissioner of Public Lands Hilary Franz made history when she announced a new groundbreaking executive order that will prohibit commercial net pen aquaculture in Washington state marine waters. During the press conference, a question about the net pen proposed by the joint business venture of the Jamestown S’Klallam Tribe and Cooke Aquaculture to create a net pen to farm Black Cod (Sablefish) was deflected with a mention that Commissioner Franz had been in discussions with them on this issue. It was not clear whether they were not going to be allowed to put the pen in under the Tribe’s name or not. Franz also mentioned that upland farming of salmon would likely be approved by DNR. The industry has long stated that this method is not commercially viable at this time.

This ends a long history of industry “spokespeople”, who have been involved with Marine Resources Committees both in Clallam and Jefferson Counties, touting the benefits of these pens and disrupting anyone coming forward to raise concerns, such as when Professor Dill, a researcher from a distinguished Canadian University came to Port Angeles a few years ago to discuss his scientifically based concerns and was shouted down by industry representatives.

While Commissioner Franz’ concerns about ending destruction of the near shore by these farms could easily be carried over to the nearshore beach destruction by industrial geoduck operations over thousands of acres of beaches throughout the Sound and Hood Canal, there was no discussion of that issue today.

This blog has been a long time critic of Commissioner Franz, due to her seemingly lack of concern over industrial aquaculture in our waters. We welcome and thank her for finally taking strong legal action on this issue. It has been viewed both here on the West Coast, nationally and internationally as a major step towards recovering and protecting our waters.

Press Release from the Wild Fish Conservancy, the major group working to end this policy.


“This new policy was announced earlier today by Commissioner Franz at a press conference on Bainbridge Island overlooking the Rich Passage net pens alongside leaders from Wild Fish Conservancy and Suquamish Tribe. The news comes on the heels of another long-awaited and widely-supported decision announced earlier this week by Commissioner Franz that DNR has refused new decade-long leases to global seafood giant Cooke Aquaculture to continue operating commercial net pens in Puget Sound.

“After the incredible news announced earlier this week, it is almost impossible to believe we are now celebrating an even bigger, groundbreaking victory for our wild salmon, orcas, and the health of Puget Sound,” said Emma Helverson, Executive Director of Wild Fish Conservancy. “By denying new leases to Cooke and bringing forward this comprehensive, bold new policy to prevent commercial net pens from ever operating in Washington marine waters again, Commissioner Franz is ensuring Puget Sound will be protected, not just now, but far into the future for the benefit of generations to come.”

Together, the lease denial and executive order will require Cooke to remove all of their net pen facilities from Puget Sound before the end of year, marking the end of the commercial net pen industry that has operated in Washington state for over 40 years. The benefits of these actions for the recovery of wild fish, water quality, and the greater health of Puget Sound cannot be overstated. Immediately, this action will cease chronic untreated pollution that has been discharged daily at these aquatic sites for over forty years. Finally, these heavily polluted and degraded sites will have the opportunity to heal and begin the process of natural restoration as part of the largest passive restoration project in Washington State.

The decision will also eliminate many major risk factors that harm the recovery of wild salmon and steelhead, including ending the risk of exposure to viruses, parasites, and diseases that are amplified and spread at unnatural levels by massive densities of farmed fish and the risk of future catastrophic escape events in which farmed fish could compete with, attempt to interbreed, or spread pathogens to threatened and endangered wild fish.


DNR’s decision will also restore the public and Tribal access to over 130 acres of Puget Sound that have been restricted by this industry for over forty years. More broadly, Washington’s decision will unite the entire U.S. Pacific Coast in excluding this industry from marine waters. Combined with Canada’s recent commitment to transition open water net pens out of British Columbia waters, this decision also has the potential to eliminate a major limiting factor to wild Pacific salmon recovery at a coastwide, international scale.


“After the news earlier this week, we’ve heard from colleagues all around the world in places like Chile, Tasmania, Scotland, and so many others working to protect their own public waters from the environmental harm of commercial net pen aquaculture,” says Helverson. “Today’s historic decision is setting a new standard that will serve as a model and rallying cry to bolster the efforts of communities and governments around the world working toward this same end and we stand committed to leveraging our massive success to support their efforts.”


Cooke is the same company found at fault for the catastrophic 2017 Cypress Island net pen collapse that released over 260,000 nonnative and viral-infected Atlantic salmon into Puget Sound. Cooke purchased all of Washington’s net pen facilities in 2016 with plans to expand exponentially in Washington waters.

In response to this expansion plan, Wild Fish Conservancy launched the Our Sound, Our Salmon (OSOS) campaign in April 2017 to raise public awareness about the environmental impacts of commercial net pen aquaculture. In 2018, a coalition of over 10,000 individuals and hundreds of businesses and organizations under the banner of OSOS, worked in concert with Tribal efforts, to advocate for Washington’s landmark law banning nonnative Atlantic salmon aquaculture.

In July 2020, in response to Cooke avoiding the ban by transitioning to native species, the OSOS campaign launched a new initiative, Taking Back Our Sound, with the goal of preventing Cooke from receiving new leases. Through this effort, 9,000 individuals and 127 business and organizations called on DNR’s Commissioner of Public Lands Hilary Franz through a petition and direct actions, which included a Bainbridge Island city resolution, to deny new leases to Cooke and to restore Puget Sound for the benefit and use of all. In making her decision over Cooke’s lease request, DNR was required by statute to issue a decision in the best interest of the public.
“It’s clear this victory for wild salmon, orcas, and Puget Sound belongs to no one person or group. Without the separate actions of thousands of individuals, Washington’s Tribal Nations, businesses, organizations, chefs, fishing groups, scientists, elected officials, and so many others working together over the last five years, this would never have been possible,” says Helverson. “It is truly inspiring to see what is possible when the public unifies their voices and works together with the law and science on their side toward the shared goal of a healthier Puget Sound.”

Filed under: Aquaculture, Around the Salish Sea, Endangered Species, Environmental Activism, Environmental Law, Environmental Protection, First Nations, fisheries, legislation, Olympic Peninsula, Puget Sound, Straits of Juan de Fuca | Tagged: | Comments Off on Dept. of Nat. Resources Bans Future Net Pen Aquaculture – Major Win for Environmentalists, Tribes, Salmon & Orcas.

WA Dept of Natural Resources Cancels Leases for Remaining Net Pen Salmon Farms in Puget Sound

Posted on November 15, 2022 by Al Bergstein

While many are glad to see this long-awaited decision, it is by no means the end of Cook Aquaculture and its efforts to farm fish here. But if they indeed do remove the Rich Passage net pen, it could be good news for the remaining salmon that run through Orchard Rocks off southern Bainbridge Island. Why? Because it has never been fully investigated as to whether this net pen was partially responsible for the collapse of the salmon run through the passage and Agate Pass. Given recent news that the Hood Canal Floating Bridge may be a significant cause of salmon collapse in Hood Canal, and the hunch by some old fishermen that stocks collapsed after the net pen in Rich Passage went in, anything is possible. Obviously, shoreline development in the area at that time also had a good deal to do with the salmon loss.

A reminder to all that Cooke still has a business agreement with the Jamestown S’Klallam Tribe and the two are rearing Black Cod (Sablefish) in Port Angeles harbor. My guess is that Cooke will look for additional opportunities like this and will approach other tribes if they haven’t already. Still to come, is understanding how the recent unanimous Supreme Court ruling may affect this decision. Will Cooke and allies sue in court, based on their previous win? I don’t think this is as over as it seems, but for now, it’s a good decision, long overdue.

Official Press Release:

The Washington State Department of Natural Resources (DNR) has ended the remaining two finfish net pen aquaculture leases on Washington’s state-owned aquatic lands.

DNR officials informed Cooke Aquaculture Monday that the agency will not renew expired leases for the two remaining finfish net pen aquaculture facilities in Washington; in Rich Passage off Bainbridge Island and off Hope Island in Skagit Bay.

“Since the catastrophic Cypress Island net pen collapse in 2017, I have stood tall to defend the waters of Puget Sound,” said Commissioner of Public Lands Hilary Franz. “This effort began by terminating finfish net pen operations due to lease violations. Despite years of litigation – and a company that has fought us every step of the way – we are now able to deny lease renewals for the remaining net pen sites. Today, we are returning our waters to wild fish and natural habitat. Today, we are freeing Puget Sound of enclosed cages.”

“This is a critical step to support our waters, fishermen, tribes, and the native salmon that we are so ferociously fighting to save,” said Commissioner Franz.

DNR’s denial of Cooke Aquaculture’s request to re-lease the sites to continue finfish net pen aquaculture gives the company until December 14 to finish operations and begin removing its facilities and repairing any environmental damage.

The Hope Island lease expired in March and has been in month-to-month holdover status since. The Rich Passage lease expired in November.

Decision Draws Support

Salish tribes and conservation groups hailed the decision as a step toward protecting the habitat of struggling stocks of native salmon.

“We are very pleased that Commissioner Franz rejected Cooke Aquaculture’s lease application. Removal of the existing net pen will restore full access to the Tribe’s culturally important fishing area in northern Skagit Bay. Swinomish are the People of the Salmon, and fishing has been our way of life since time immemorial. Cooke’s net pens have interfered with the exercise of our treaty rights for far too long. We look forward to the day when the Hope Island net pen facility will be a distant memory,” said Swinomish Indian Tribal Community Chairman Steve Edwards.

“This decision is a joyous and historic victory for the recovery of wild fish, orcas, and the health of Puget Sound,” says Emma Helverson, Executive Director of Wild Fish Conservancy. “For years, the public has overwhelmingly called for an end to this dangerous industry in our public waters. Commissioner Franz’s response proves she is both accountable to the public and dedicated to protecting Puget Sound’s irreplaceable public heritage for current and future generations.”

“We say, ‘the table is set when the tide goes out.’ Seafoods have always been a staple of Samish diet and traditions,” said Tom Wooten, Samish Indian Nation Chairman. “By removing the Sound’s remaining net pens, our delicate ecosystem now gets a chance to replenish, repair and heal. We are grateful and lift our hands to the DNR’s partnership in helping protect the Salish Sea that tie us to our history and culture.”

Denials End Saga Started by 2017 Collapse

Cooke Aquaculture had previously leased four sites for net pen aquaculture from the Department of Natural Resources, recently growing steelhead trout in the net pens after years of using them to grow Atlantic salmon.

DNR’s letters denying an extension of Cooke’s leases lists several areas where the firm violated terms of the leases. DNR determined that allowing Cooke to continue operations posed risks of environmental harm to state-owned aquatic lands resulting from lack of adherence to lease provisions and increased costs to DNR associated with contract compliance, monitoring, and enforcement.

In August of 2017, a net pen at Cooke’s Cypress Island fish farm collapsed, releasing hundreds of thousands of Atlantic salmon into Puget Sound. As a result, DNR terminated that lease. Cooke was fined $332,000 and found negligent by the state Department of Ecology. The net pens were removed in 2018.

In December of 2017, DNR terminated Cooke’s Port Angeles lease due to Cooke operating in an unauthorized area and failing to maintain the facility in a safe condition. Cooke challenged that termination in the superior court and that litigation is still pending.

The Washington state Legislature in 2018 phased out Atlantic salmon farming, and the company since shifted operations at its remaining leaseholds in Rich Passage and Hope Island to grow sterile steelhead trout.

Future Net Pen Policy will be Announced Friday

Following the denials of these lease renewals, Commissioner Franz is reviewing policies for net pen salmon aquaculture throughout Washington’s state-owned aquatic lands, and will announce this decision at a press conference alongside partners and tribes at 11 a.m. Friday, November 18, on Bainbridge Island.

Seattle Times article (Behind paywall)

WA will not renew leases for Puget Sound fish farms, 5 years after spill | The Seattle Times

Filed under: Aquaculture, Around the Sound, Endangered Species, Environmental Law, fisheries, Government, Olympic Peninsula, Salmon | Tagged: , , , | 4 Comments »

Enforce Sen. Magnuson’s ‘little amendment’ to protect Salish Sea – Seattle Times

Posted on November 4, 2022 by Al Bergstein

One of the best things that Magnuson ever did was to get this amendment passed. Since the 70s, we have minimized our risks with this law. As the article points out, environmental groups like Friends of the Earth and Friends of the San Juans have been fighting hard for years over the lack of enforcement by the Army Corps of Engineers and others. The Corps, as long-time readers of this blog know, are hell bent to do whatever industry asks of them, including hiding key documents in lawsuits and not upholding the laws when it suits industry. They have proven themselves unworthy of public trust.

A good article that summarizes where we are at with the Magnuson Act some 45 years later.

Enforce Sen. Magnuson’s ‘little amendment’ to protect Salish Sea | The Seattle Times

Filed under: Around the Salish Sea, Environmental Law, Environmental Protection, Oil Spills | Tagged: , , | 1 Comment »

What’s at stake if the Columbia River Treaty were to end

Posted on October 3, 2022 by Al Bergstein

Under the Trump administration, this agreement was at risk. Now, less so. An important treaty, you likely never knew existed.

In the mid-20th century, Canada and the U.S. collaborated together to form the Columbia River Treaty. This agreement meant both countries would jointly develop, manage and regulate the Columbia River. The treaty was intended to last for 60 years which means it expires in 2024. Earlier this month, 32 Pacific Northwest groups sent a letter to U.S. officials urging them to modernize this treaty as that deadline approaches. Rolando Hernandez reports. (OPB)

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Judge: Sustainable Salmon Harvest isn’t Sustainable – Post Alley

Posted on August 31, 2022 by Al Bergstein


King salmon that you might have eaten recently apparently might not be available much longer. I know when I saw them in the fish-market two weeks ago I wondered if whether it had been legal to catch it. I assume it had as our fish market is very good at making sure that the only buy a sustainably caught fish .But here’s the background on it.

Those sustainably harvested Chinook salmon seemingly legally caught by trollers off Southeast Alaska aren’t “sustainably harvested.” So ruled U.S. District Judge Richard A. Jones, adding that the plan that has allowed them to be harvested there violates the federal Endangered Species and National Environmental Policy acts. On August 10, the federal judge granted Duvall-based Wild Fish Conservancy (WFC) summary judgment against the National Marine Fisheries Service (NMFS), its parent Department of Commerce, various officials of both agencies, and the Alaska Trollers Association and the State of Alaska, which had intervened. Dan Chasen writes.

https://www.postalley.org/2022/08/31/judge-sustainable-salmon-harvest-isnt-sustainable/

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Singer Carole King on Olympic Trees – NY Times

Posted on August 27, 2022 by Al Bergstein

Singer/Songwriter and environmental activist Carole King wrote an opinion piece on why the Biden Administration should sign an executive order immediately…

“…directing his secretaries of the interior and agriculture to take all steps available to them to stop commercial logging on public land. We can’t wait a year…..Forest preservation is a climate solution. That’s why we need action to safeguard the forests on the public lands we all share. Federal law requires that most public lands be managed for multiple uses, such as recreation, gas and oil development, mining and logging. But this longstanding policy is running headlong into efforts to slow the warming of our planet.“

Read the whole opinion piece here:

Opinion | It Costs Nothing to Leave Our Trees as They Are – The New York Times (nytimes.com)

Filed under: Climate Change, Environmental Law | Comments Off on Singer Carole King on Olympic Trees – NY Times

Bombshell Court Victory: Chinook Harvest Harms Southern Resident Killer Whales and Wild Chinook Recovery

Posted on August 10, 2022 by Al Bergstein

From the Wild Fish Conservancy:

AUGUST 10, 2022— A bombshell ruling from Seattle’s federal Court landed Monday evening calling out the federal government for failing to protect endangered Southern Resident killer whales (SRKWs) and wild Chinook by approving unsustainable Chinook harvest at levels that are harming the recovery of both federally protected species.

On Monday, U.S. Judge Richard A. Jones issued summary judgement in a lawsuit brought by Wild Fish Conservancy in March 2020 challenging NOAA Fisheries for authorizing commercial salmon harvest in Southeast Alaska’s Chinook troll fishery at levels that the federal agency admits in their most recent analysis of the fishery are pushing federally protected SRKW’s and wild Chinook closer to extinction. The Court’s order overwhelming agreed that NOAA violated the law by improperly relying on undeveloped and uncertain future mitigation to offset this ongoing harm to species protected under the Endangered Species Act (ESA).

“We applaud Judge Jones ruling that is finally calling into question decades of unsustainable Chinook harvest management in Southeast Alaska and marks a watershed moment for the recovery of Southern Resident orcas and wild Chinook,” says Emma Helverson, Director of Wild Fish Conservancy. “To date, reducing overharvest on the whale’s primary prey is the only scientifically-proven recovery action moving forward that promises immediate access to Chinook for these starving orcas and which will help to recover and restore larger and more diverse wild Chinook these whales evolved to eat which are fundamental for their long-term recovery.”

“While our entire region has been searching for a solution to this extinction crisis, federal fishery managers and our region’s representatives to the Pacific Salmon Treaty have been approving harvest at levels they acknowledge are pushing orcas and wild Chinook closer to extinction,” says Kurt Beardslee, co-founder and Director of Special Projects of WFC. “What’s worse, the only solution they’re willing to consider to solve this problem is producing more hatchery fish which will further harm wild Chinook recovery and which these managers well-know will largely be absorbed by commercial fisheries under a management paradigm that offers zero allocation to orcas.”

In the Southeast Alaska Chinook troll fishery at issue, many people are unaware that only 3% of all Chinook harvested originate from Alaskan rivers, while the majority 97% originate from rivers throughout British Columbia, Washington, and Oregon. As an example, over half of the fish harvested would return to the Columbia River and its tributaries, including the Snake River. If given the opportunity, these Chinook will migrate back down the coast serving as the primary prey for the SRKWs as the Chinook pass through the whale’s key forage areas. Instead, these Chinook are being harvested outside of the range of the whales, regardless of their status under the ESA, and at levels that federal fishery managers acknowledge are unsustainable for the long-term survival and reproductive success of both wild Chinook and the Southern Resident population.

“This is unbelievable news, yet so long in coming,” said Wild Orca’s Science and Research Director, Dr. Deborah Giles who filed a declaration in the lawsuit. “Most fish caught in the Southeast Alaska Chinook fishery are from home rivers in the Southern Resident killer whales’ critical habitat—areas designated by NOAA Fisheries as essential to their survival. The government’s own research has shown that Chinook from Washington State rivers are vital prey in winter, and yet they have permitted these fish to be caught when they’re feeding in Alaska, depriving the whales of the vital nutrition needed to sustain healthy pregnancies, and grow this population.”

“NOAA has failed fishers, salmon, and orcas for decades,” emphasized Beardslee. “Alaskan fishers who follow the rules are not to blame here, the fault lies with fisheries managers and NOAA for consistently approving unsustainable harvest plans. The Court’s order will finally hold NOAA accountable for following the law and adhering to best available science, while shining a light on the systemic failure of the Pacific Salmon Treaty— a win-win for wild salmon, orcas, and coastal communities alike.”

The Court further found NOAA violated the ESA by relying on the supposed benefits to SRKWs from increasing hatchery production, without fully evaluating the harm those same hatchery increases will cause to native Chinook salmon populations in Puget Sound, the Columbia River, the Snake River, and the Willamette River. NOAA recognizes hatcheries and associated impacts as one of the top four factors contributing to the decline of wild salmon, along with overharvest, habitat loss, and hydroelectric dams.

Finally, the Court held that NOAA Fisheries violated the National Environmental Policy Act (NEPA) by approving the Southeast Alaska Chinook salmon harvest levels, and by implementing increased hatchery production in Puget Sound and Columbia River to offset those harvests, without any NEPA procedures, which would include opportunities for public input and an evaluation of alternatives.

In October 2021, Wild Fish Conservancy filed a separate lawsuit against the Washington Department of Fish and Wildlife for implementing massive expansions in hatchery production purportedly to increase prey for SRKW without undergoing legally required State Environmental Policy Act (SEPA) environmental review and procedures.

Filed under: Environmental Law | Comments Off on Bombshell Court Victory: Chinook Harvest Harms Southern Resident Killer Whales and Wild Chinook Recovery

WA Supreme Court landmark decision on forestlands

Posted on July 22, 2022 by Al Bergstein

This is an incredibly important ruling by the Washington State Supreme Court. Why? Because it opens up the real possibility of better timber management to protect old growth along with looking at harvest and its effect on global warming by DNR.

The basis of the lawsuit was this: Article 16, Sec on 1 of the Washington State Constitution states “all the public lands granted to the state are held in trust for all the people.”

Read on. Joint press release from Conservation Northwest, Washington Environmental Council, and Olympic Forest Coalition. Below it is DNR head, Hilary Franz’s response.

Washington State Supreme Court Rules in Conservation Northwest v Commissioner of Public Lands
In an unanimous decision, Court recognizes State’s authority to manage forestlands for public benefit.

OLYMPIA, WA— Today, the Washington State Supreme Court confirms that the state has a constitutional mandate and broad authority to serve “all the people” of Washington and the public interest when managing state lands. This unanimous decision in the case of Conservation Northwest, et al. v. Commissioner of Public Lands, et al . , recognizes that the Department of Natural Resources (DNR) can integrate the many diverse public benefits of forests into the management of state forestlands, beyond maximizing revenue genera on from timber harvests.


DNR has historically managed forestlands in ways that maximize revenue from logging, even at the expense of other public interests and benefits. This decision recognizes that the agency, Commissioner of Public Lands, Board of Natural Resources, and State of Washington have the power to manage public lands in ways that truly reflect and support our state’s evolving environmental, economic, and social needs.


The court’s decision states that DNR’s need to serve identified beneficiaries and DNR’s requirement under the State constitution to serve the public interest “should be construed in harmony.” As the Court explained, “[t]here appear to be myriad ways DNR could choose to generate revenue from the state and forest board lands or otherwise put them to use for the benefit of the enumerated beneficiaries.”


The court also states that DNR is not required to generate revenue specifically from timber harvests on state lands, but may elect to do so because of their discretion as trust managers. The agency is also not required to prioritize revenue maximization on in their land management.


“The battle we’ve been fighting is to achieve a fair balance. We have argued that the management of these lands has historically been pushed to maximize revenue. We have never fought to end all timber harvest on state lands,” said Peter Goldman, Director, Washington Forest Law Center and co-counsel for plaintiffs, “This decision confirms instead that the agency, Commissioner of Public Lands, Board of Natural Resources, and State of Washington does not have to maximize timber harvest or revenue generation, and have broad discretion on to balance revenue genera on for identified beneficiaries with management for the broader public interest. DNR and the Legislature now can design 21st Century forest management that meets the challenges we face today.”


Environmental organizations Conservation Northwest, Washington Environmental Council, and Olympic
Forest Coalition, as well as eight community members, brought forth the lawsuit arguing that the state constitution requires that the federally-granted public forestlands managed by the state Department of Natural Resources (DNR) are “held in trust for all the people.” There are approximately 2 million acres of “state trust lands” that were granted to the state by the federal government upon statehood, including almost 1.5 million acres that are forested.


“The court issued a monumental conservation ruling. Over coming years and decades, this ruling will be cited in support of nature-protection policies made by the legislature and the DNR. In short, the nature of this trust is that the state has the discretion to protect the public’s resources,” said Mitch Friedman, Executive Director of Conservation Northwest.

“We are encouraged to see that the Washington State Supreme Court has recognized the power and broad discretion the State has to manage public lands for the benefit of all the people, and not just for maximum timber revenue. Our state’s forests provide immense benefits to all of us–people, trees, animals, and our futures. Washingtonians should not be forced to choose between harvesting timber for funding and having healthy forests to protect our air, water, habitat, and public health,” said Alyssa Macy, CEO of Washington Environmental Council and Washington Conservation Voters. “This decision opens the door for the Department of Natural Resources to manage our public lands toward a healthy, equitable future for generations to come.”


“We are now seeing unprecedented changes in our state forests, habitats, and watersheds from climate disruption”, said Connie Gallant, President of the Olympic Forest Coalition , “We can no longer afford to mine our forests only for short term revenues, assuming without scientific evidence that they will continue to grow back indefinitely. We simply cannot blindly sacrifice the environment any more. The Court recognized that DNR and the Legislature must balance the interests of all the people , not only maximize revenue from timber harvests. This case has clearly put the responsibility on the Commissioner of Public Lands and the Legislature to resolve the policy differences, balance our interests and find a clear path forward. DNR has the discretion – their hands are no longer ed. We can manage for carbon, for science, for revenues, for all our interests. We literally have some of the most important forests in the world to either mi gate climate disruption or add to it. We shall see if the Commissioner of Public Lands and our elected officials take up the baton the Washington Supreme Court has passed to them and protect these forests.”


Article 16, Sec on 1 of the Washington State Constitution states “all the public lands granted to the state are held in trust for all the people.” Conservation NW et al. v. Commissioner of Public Lands et al. asked the court to interpret this constitutional language to require that the agency must consider both generating revenue and the multitude of other ecological benefits of state forestlands.


Upon Washington’s statehood in 1889, the federal government granted Washington 3 million acres of land through the Enabling Act to be held for the public and to support public institutions, including K-12 school construction and state universities. The Board of Natural Resources (BNR) sets policies for management of state trust lands, and management is carried out by the Department of Natural Resources (DNR).


The environmental organizations and individuals in this case were represented by the Ziontz Chestnut law firm and the Washington Forest Law Center.


###


“Keeping the Northwest wild” since 1989, Conservation Northwest is a regional non-profit organization that protects, connects and restores wildlands and wildlife from the Washington Coast to the British Columbia Rockies. Staff operate in local communities and rural areas around Washington and into southern B.C., using dialogue to find common ground and collaborative solutions for challenging issues including habitat corridors, wilderness conservation, forest restoration and endangered species recovery.
The Olympic Forest Coalition (OFCO) promotes the protection, conservation and restoration of natural forest ecosystems and their processes on the Olympic Peninsula. This mission includes monitoring and caring for the public forests, watersheds and bays of the Peninsula. OFCO’s approach integrates science-based solutions that protect and restore natural ecosystems, threatened and endangered species, and healthy rural communities. OFCO incorporates the climate crisis and mitigating its impacts on the Olympic Peninsula as foundational for all of its work.


Washington Environmental Council is a nonprofit, statewide advocacy organization on that has been driving positive change to solve Washington’s most critical environmental challenges since 1967. Our mission is to protect, restore, and sustain Washington’s environment for all.

Commissioner Franz Statement in Response to Washington Supreme Court Ruling

OLYMPIA – Commissioner of Public Lands Hilary Franz, head of the Department of Natural Resources (DNR), released the following statement in response to the Washington Supreme Court’s unanimous ruling in Conservation Northwest, et al. v. Commissioner of Public Lands et al., regarding the interpretation of the state Constitution’s policy on management of state trust lands:

“I believe strongly in our mission to protect public lands, support healthy forests, and provide essential benefits to the people of Washington.

“Today’s ruling affirms DNR’s position that it has discretion under the constitutional and legislative mandate to manage public lands on behalf of the communities we serve and ensure our public lands are providing the greatest environmental, social, and economic good.

“I also recognize that in the face of a rapidly changing climate, we must do everything we can to safeguard public lands and protect our forests. This is why DNR has made climate resilience and long-term sustainable land use a core part of our work, including being a nationwide leader in efforts to restore forest health and conserve forestland and critical habitat across our state.

“I look forward to our continued work to ensure Washington state’s public lands are healthy, support our communities, and are protected for generations to come.”

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Battle of Dems over forests

Posted on June 11, 2022 by Al Bergstein

Recently two strongly worded Op-Ed pieces ran in the Seattle Times, highlighting a growing rift between the efforts of Commissioner of Public Lands Hilary Franz and Democratic Senator Kevin Van de Wege of the Olympic Peninsula. Both Franz and Van de Wege are staunch Democrats, both often attend the local fish fry’s and usually have been seen as being on the same page.

However, in the last months, to highlight Earth Day, Commissioner Franz went out on a limb to lock up forests (also known by the title “Working Forests” for the fact that they are usually cut down at some point) and trade the lock for “carbon offsets” to polluters.

On the face of it, this might seem like an innocuous “good thing” to do. But it appears that Commissioner Franz decided on this for her own reasons, perhaps to gain an opportunity to host President Biden when he was here, and gain a photo op of her and the President Biden on his trip here in April. Her announcement included protection of forests in Whatcom, Thurston, King and Grays Harbor counties. Oddly missing was Clallam and Jefferson Counties, two counties that non-profits working hard to get Franz to save some old growth that is planned on being harvested this summer. Also, it apparently was done with little or no involvement of Senator Van de Wege, who then launched his own scathing Op-Ed piece denouncing Franz move, one he said “…should be effective, measurable and transparent — standards notably ignored in the Washington Department of Natural Resources’ recent decision to set aside more state trust lands as carbon reserves while selling carbon offsets that allow industrial polluters to keep polluting.”

Van de Wege went on, “Whatever actions we take, our climate policies should be effective, measurable and transparent — standards notably ignored in the Washington Department of Natural Resources’ recent decision to set aside more state trust lands as carbon reserves while selling carbon offsets that allow industrial polluters to keep polluting.

“…DNR adopted this fundamental change of course in state policy without honoring traditional safeguards such as thorough analyses, public hearings and oversight by the state Legislature or Board of Natural Resources.

“While in the past DNR has acknowledged that the sale, exchange or purchase of trust lands must be approved by the Board of Natural Resources, in this case the agency has notably declined to commit to honoring the board’s oversight. At best, DNR has offered only vague promises of “engagement” to some undefined and uncertain degree.

He finished by saying, “Did DNR adequately analyze the impact of unintended consequences from its proposed carbon lease? Reducing the responsible timber harvest in Washington state will decrease our state’s capacity to produce wood products, leading to an increase in carbon-emitting imports from places that do not sustainably manage their forests, or the substitution of concrete and steel, both of which are significant contributors to carbon emissions.

“Until these troubling questions are answered, the state should not proceed with a carbon reserve policy that may be neither effective, measurable nor transparent while undermining well-established practices that combat climate change and support rural communities.”

This blog has been highly critical of Ms. Franz approach to her leasing the Dungeness Spit to a commercial aquaculture farm, over the objections of numerous significant environmental concerns raised by everyone from the Dungeness Spit Wildlife Refuge manager to a number of scientists and environmental organizations. As reported here before, she denied to this reporter in front of a crowd of democratic funders any knowledge of the leasing of the Spit though her signature was affixed to the document. This new initiative seems poorly thought out and even more poorly communicated within her own party.

Ms Franz, it has been rumored in Democratic circles for years, has had her eye on the Governorship. While she is clearly running for future office on her work on fighting fires in Washington State, she might worry a bit more about the political fires she herself is starting on the Olympic Peninsula. Senator Van de Wege is a powerful force in our state politics, especially for holding onto a very conservative district like Clallam County. He is known as an environmental champion, having been given that honor years ago by People For Puget Sound for his efforts to both support ending fire retardants use in industry and his support for the rescue tug at Neah Bay, which has saved many ships over the years. His Op-Ed clearly shows she has angered him, and it’s going to be very hard for her to mend that fence.

Read the whole Op-Ed by Senator Van De Wege here:

https://www.seattletimes.com/opinion/lack-of-transparency-clouds-management-of-trust-lands/

Read Commissioner Franz’ reply here:

https://www.seattletimes.com/opinion/we-must-stop-fighting-over-our-forests-and-come-together-to-start-fighting-for-our-forests/

For more on DNR’s Carbon Project that has angered Senator Van de Wege…

https://www.dnr.wa.gov/CarbonProject

Filed under: Clallam County, Environmental Law, Olympic Peninsula | 1 Comment »

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