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


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/

Singer Carole King on Olympic Trees – NY Times

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)

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

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.

WA Supreme Court landmark decision on forestlands

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.”

Battle of Dems over forests

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

Two Countries, Two Government Officials, Poised to Make One Critical Decision

The Wild Fish Conservancy brings up the impending decisions on net pens that both BC and Washington officials will be making. Given a conversation that I had with Commissioner Franz last year, I hold very little hope of her doing the right thing. She seems either ignorant of the issues, letting staffers make the decisions, or in favor of industry on this topic. But your input now could make a difference. Call her office. 360-902-1000


Perspective: DNR moving forward with cutting Ludlow old growth while “protecting” other areas

The confusing balancing act of Washington State Commissioner of Public Lands Hilary Franz and Jefferson County environmentalists and politicians has continued over the last month. Franz runs the Department of Natural Resources (DNR). First, a bit of background:

The Olympic Forest Coalition, which has been working hard to protect forests for decades, and includes some of the most well respected Democratic activists in the county, has issued written concerns to DNR and the County Commissioners about logging of old growth near Port Ludlow. Ludlow has seen a huge upturn in large clear-cut parcels in the last year. A drive along Paradise Bay road recently showed huge swaths cut on both sides of the road east of Ludlow.

The OFC wrote a letter to county commissioners stating:”…. request your assistance on how best to approach the BOCC on a timber sale of concern, the Beaver Valley Sorts sale near Port Ludlow, and I believe in your district. The sale has been recommended by the DNR staff to the Board of Natural Resources and will be on the BNR agenda April 5th [https://www.dnr.wa.gov/publications/em_bc_bnr_agenda_04052022.pdf ].  OFCO is very concerned that this sale contains unique plant associations remaining in our area, is an important sequester of carbon and provides resiliency in the face of climate change, and contains stands that DNR is required to conserve under the multi species Habitat Conservation Plan.”

The county commissioners then issued a letter to DNR on April 4th stating:

April 4, 2022
To: Commissioner Hilary Franz
Deputy Supervisor Angus Brodie
Board of Natural Resources
From: Jefferson County Board of County Commissioners
RE: Beaver Valley Sorts timber harvest
Commissioner, Mr. Brodie and Board Members,
The Jefferson County Board of County Commissioners( BOCC) appreciates your partnership in managing
Washington State’ s resource lands for the many benefits they convey, and we recognize the
complexity that presents in your policy- and decision- making.
We are writing to ask you to not approve and defer the Beaver Valley Sorts timber sale before the Board
on Tuesday, April 5, 2022. We ask this given the other, important work that DNR is engaged in
which will ultimately inform this sale and others like it in the future. Specifically, we would like to
delay this sale for the following reasons:
Jefferson County highly values the myriad ecosystem functions that our forests serve, especially carbon
sequestration as we see the impacts of climate change accelerating. We implore DNR and the Board of
Natural Resources to finalize a calculation of sequestered and emitted carbon to use in analysis of all
future timber sales and harvests.
(emphasis mine)
The Trust Land Transfer proviso work group is currently working to provide pathways for communities
like ours to identify the trust lands most suitable for harvest and those better suited to conservation.
We would like to see the outcomes of their work before any harvest commences on diverse, mature
forests such those in the Beaver Valley Sorts units.
While these are specific concerns related to the Beaver Valley Sorts timber sale, they are indicative of
broader, structural and existential concerns that we have about how our State’ s trust lands are held
and managed. Simply put, funding schools, libraries, emergency services and other essential
services with industrial forest practices is outdated and needs to be reconsidered.
We recognize forestry as an important economic and cultural driver in the state of Washington, but see
enormous opportunity for innovation in how state- owned lands are managed. Whether it is variable
retention harvest, or the selling of carbon credits, or development of specialty forestry products,
alternatives to clear-cutting exist. Jefferson County will gladly partner with DNR in exploring new
and alternative forest practices that don’ t pit funding of essential services with protecting our
environment. That is a zero- sum game in which nobody wins.

As this letter was being delivered, Commissioner Franz decided to temporarily pull the Beaver Valley Sorts and push it’s sale further into the summer. But it is not off the table to be sold.

Franz simultaneously was meeting with a select group of environmental orgs and Tribes from the south and east sides of the Sound. On April 4th DNR announced:

DNR to Announce First-of-its-Kind Carbon Project on State Trust Lands

Project will preserve thousands of acres of Western Washington’s most ecologically valuable forests, offset carbon emissions, and generate millions of dollars in revenue for schools and counties throughout the state

OLYMPIA – Commissioner of Public Lands Hilary Franz will unveil a historic carbon project on state trust lands on Wednesday morning that will offset hundreds of thousands of metric tons of emissions by protecting thousands of acres of Western Washington’s most ecologically valuable forests.

Franz will be joined by Tribal leaders, environmental advocates, and carbon market industry experts to discuss the unprecedented approach DNR is undertaking and potential to reset, and serve as a model for, carbon markets throughout the country.

Project areas in Whatcom, Thurston, King, and Grays Harbor counties will be used to sequester carbon and generate revenue for state trust land beneficiaries through carbon markets.

DNR media release

Mysteriously missing from this decision, was any inclusion of Jefferson County forest lands. The question is “why?”

With a letter in hand and years of work between Jefferson County and Ms. Franz (who has attended the Jefferson County Democratic Fish Fry numerous times), she appears to have ignored any opportunity to work with the county to protect its forests in this carbon project. Questions remain: Why were those counties chosen and not anything from Jefferson County? Why was their no discussion between DNR and Jefferson County Commissioners before making this announcement? Why was the Beaver Valley Sorts sale taken off the table just as this announcement was happening and pushed to mid-summer?

In a scathing editorial in the Seattle Times, Former DNR Commissioner Peter Goldmark and Mary Jean Ryan, a member of the board of the Center for Responsible Forestry and served as chair and as a member of the Washington State Board of Education from 2006-2014, stated this:

While creating a small carbon reserve with a few thousand acres of older forests is crucial to begin climate mitigation in state forests, this action is in stark contrast to DNR’s timber harvest plans. Under current state policy, older forests are being clear-cut at an alarming rate. (emphasis mine) Over the next year, the DNR has plans to log more than 5,000 acres of older forests that have similar characteristics to those identified for the carbon reserve. Since there are many younger plantations of trees available for harvest on DNR-managed lands, this choice to preferentially log older forests undermines the very goals and values expressed by Commissioner Hilary Franz on April 6. This glaring contradiction should be resolved. The DNR and the Board of Natural Resources should take swift action to abandon the plan to clear-cut these valuable older forests.

… Thankfully, communities from Bellingham to Olympia and to the Olympic Peninsula are mobilizing and organizing to save these treasured forests. We strongly believe that these forests should be conserved and not logged. We reject the idea that the state needs to log these forests to pay for important public services.

https://www.seattletimes.com/opinion/save-washingtons-legacy-forests-to-save-ourselves/

Meanwhile:

Goldmark and others said they were surprised by the policy because Conservation Northwest, the Washington Environmental Council and other plaintiffs have taken a lawsuit all the way to the State Supreme Court to argue the DNR has the authority to consider values beyond dollars when determining management of state lands not only for trust beneficiaries, but for all the people of Washington. A decision on the case is expected any time.

https://www.seattletimes.com/seattle-news/wa-to-preserve-10000-acres-of-trees-to-sell-as-carbon-credits-to-polluters/

Why the sudden decision on the eve of a lawsuit by environmental groups that are well respected? Politics?

Commissioner Franz has in the past used Jefferson County for fundraising for her campaigns. There are persistent rumors of her possibly mounting a campaign for governor. Her recent fundraising during a year when she is not running for office is interesting in light of these rumors. Her haphazard approach to this issue seems to be attempting to burnish her creds as environmentalist while angering some of her former supporters. That no discussions were held by the Commissioner with those who’s support she usually is asking for when raising funds, is puzzling in the least.

The Olympic Peninsula Environmental News will continue to follow this very confusing story.

A 30-year long Fishing Dispute Fizzles Out – Hakai Magazine

Interesting that a regional court with no native tribal peoples on it should have the last word on a treaty definition. I was under the opinion that only Congress could define treaties.


With the United States Supreme Court declining to hear the case, a protracted legal battle between two Indigenous communities has nowhere to go. ….For the past 30 years two groups, the Lummi Nation and the S’Klallam nations—represented today by the Jamestown S’Klallam, Port Gamble S’Klallam, and Lower Elwha Klallam Tribes—have been fighting in the courts about a contested slice of the Salish Sea: the waters west of Whidbey Island in northwestern Washington. Involved in this dizzying dispute are no fewer than four tribes, two treaties, and four appellate court decisions. The issue was recently brought to the United States Supreme Court for consideration, though the court declined to hear the case, leaving the Lummi and S’Klallam without an obvious legal path forward. Ashley Braun reports. (Hakai Magazine)

A 30-Year-Long Fishing Dispute Fizzles Out https://hakaimagazine.com/news/a-30-year-long-fishing-dispute-fizzles-out/

No increased WA gas tax in ‘unprecedented’ $16.8B transportation budget – Crosscut

So Cap and Trade fees have helped us put an extra $3B into public transit along with good news for pedestrians and bicycles. But is it actually reducing CO2? To be determined.


Washington legislators keep calling this year’s $16.8 billion transportation budget proposal “unprecedented.” And in many ways it is. There’s $3 billion for public transit, a huge increase over previous packages. And a lot more money for pedestrian and bicycle improvements — $1.3 billion— all paid for by the carbon cap-and-trade fee approved last session, also unprecedented for the state. But what’s missing from the budget is perhaps the most unusual of all. This year’s transportation budget does not include an increase in the state’s gas tax. Liz Giordano reports. (Crosscut)

No increased WA gas tax in ‘unprecedented’ $16.8B transportation budget

Streamside Shade & Legislation – Salish Current

The Lorraine Loomis Act named in honor of the late Swinomish tribal leader, failed in the Legislature this year. . The bill focused on protecting, restoring and maintaining habitat along salmon-bearing streams and drainages. Here’s a bit of why it did, despite the Governor’s backing.


Salmon recovery is a priority for many in Washington who see vegetated streamside buffers as important to salmon-friendly habitat. But some in the state’s agricultural community see the threat of loss of productive farmland from proposals such as the Lorraine Loomis Act discussed earlier in this year’s legislative session. Lauren Gallup reports. (Salish Current)

Streamside shade: fish and farm advocates struggle to find common ground

Banning toxic chemicals in cosmetics moves forward in WA – Crosscut

Good news as this continues forward.


A measure advancing in Washington’s Legislature would ban the use of perfluoroalkyl and polyfluoroalkyl substances, or PFAS, in cosmetics. These chemicals are often used to make beauty products — such as mascara, foundation, and lipstick — water-resistant and longer lasting. Melissa Santos reports. (Crosscut)

hemicals in cosmetics moves forward in WA 

Fight WA Senate Bills 5721 & HB 2027 now! Bad for the Environment!

Washington State Senators Van de Wege (D) and Salomon (D -32) have put forward a bill (SB 5721) along with Representatives Chapman (D) and Tharinger (D) (HB2027) to either consolidate or study the idea of consolidating the Department of Fish and Wildlife and the Parks Department into the Department of Natural Resources and give the current head of DNR, Commissioner of Public Lands (CPL) Hilary Franz, total control over our parks, fish and wildlife as well as DNR.

How did this bill get put out into the legislature? What was the impetus for this? ( In the past, sometimes these efforts were snuck in so as to get new proposals by the leadership into the public view.) Who actually is behind getting these bills to rural Democratic legislators? Why did they support this without consulting with environmental organizations and their members that contribute to their campaigns? Why has there been zero coverage on an issue of this magnitude in the Olympia and Seattle press? There are far more questions than answers.

The House bill, to be clear, it’s not advocating the same thing as the Senate Bill, but calls for a task force to look into the possibility of changing the structure of WDFW. While it is not technically a companion bill it opens the door to some kind of compromise that might start the process if they sneak out of committee.

Some of what this may be about, could be the legislature attempting to insert itself into the ongoing controversy at the wildlife commission and WDFW in specific. This news outlet has reported about that controversy in the last month.

DNR exists to make money off our forests for public schools, fights fires, and leases our shorelines to aquaculture. Currently out of 78% of timber sales, DNR only funnels a small fraction for school construction. Hilary Franz has done a very good job of fighting fires in the last two years, but has done a terrible job at leasing public shorelines. Just in the last year, she allowed a commercial aquaculture business to lease and expand into the Dungeness National Refuge, a move opposed by environmentalists (and the Refuge management) here on the Peninsula. Her leases to aquaculture have lost in court battles in the last two years, as environmental groups have successfully fought to show that the leases were made without a clear understanding of the damage being done to the shoreline. DNR is currently being sued by prominent environmental organizations. When a reporter asked her about the Dungeness lease, she claimed she did not even know what he was talking about. Is this the kind of oversight that we want for our Parks and Fish and Wildlife department? While there is plenty to criticize in WDFW and also many dedicated employees and programs that do good works, this proposal seems to be something to kill before it gets to be a bigger problem.

The hearing on the Senate bill is Tuesday at 1:30. You can weigh in yourself right now, at the following link.

Here’s the link to sign up:   https://app.leg.wa.gov/CSI/Senate
When you get to the page, select the first committee “Agriculture, Water, Natural Resources & Parks”.  Then select January 25th and then SB 5721. Unless you want to testify as an individual, select “I would like my position noted for the legislative record” – when you click on that link, it will take you to the page to select your position “Pro, Con, Other” and then type in your name, address, etc.

The hearing on the House Bill is on Wednesday the 26th at 10 AM. This is sponsored by Representative Tharinger and Chapman. The link to weigh in is also on the state website.

Follow the instructions for the Senate bill above.

The Clallam County Democrats are holding a “Let’s Talk” meeting on Wednesday evening. Part of this is meeting is to discuss re-electing Democrats. This would likely be a very good time to bring this issue up. Sign up by checking back here for the Zoom link: http://www.clallamdemocrats.org/calendar.html

The Jefferson County Democrats meet on Thursday night at 6PM. It would be an appropriate time to make your voice heard there as well.

This is very poor timing because the governor will be appointing 3 new commissioners on Monday – all three are very conservation-minded. Unfortunately, the Senate can take up to a year to approve the appointments (for instance, several appointees on the commission have still not been approved by the Senate, even though they sit on the committee and have already made decisions on behalf of the department/state). In addition, it is a very bad precedent to consolidate these agencies. If this bill goes through, CPL Hilary Franz would appoint the director of WDFW/Parks and also the commissioners, who would then serve in an “advisory” roles. It would give way too much power to current and future CPL. Can you imagine what would happen if Republicans take back the position of DNR (an elected position) and put in someone who has an agenda to commercialize the Parks? Given her background in giving up the Refuge to aquaculture, could we rule out that Hilary would not do such a thing either?

This newsletter is not alone in it’s point of view. Long time Olympic Forest Coalition board president Connie Gallant, who has promoted the highly popular Wild Olympics legislation, is strongly opposed to this move.According to Connie, the board of OFCO has also taken an official stance against the bill. We have also been told that the Washington Environmental Council has also decided to take a stand against the bill(s) and will be adding this to their “Hot List” this week.

Sallie Harrison a long time local environmentalist, summed it up as follows:

“DNR cannot even do their own job correctly. Most all of their logging projects result in short-term disasters ( landslides, habitat loss in both land and aquatic settings) and long-term produce a shocking amount of problems with ecosystem degradation and associated wildlife demise. There is no way such a plan (i.e. the Senate Bill) could result in anything but a gigantic, moribund State Agency with no coherent means of carrying out the missions of the two absorbed agencies mentioned, yet alone correct it’s own long-standing deficiencies.


If reform is felt to be needed at WDFW and/or the State Parks, then the State Leg and the Gov’s office can deal with those existing agencies. DNR has it’s own desperately needed reform issues, as current lawsuits against it illustrate. “

Thanks to Connie Gallant for her initial work on bringing this issue to our attention and others who have sent in information clarifying these bills in the last few hours.

Event: Sierra Club Conversation with OFCO Staff

January 20th, 7:00 PM

OFCO’s president Connie Gallant and Executive Director Patricia Jones will discuss the historic “All the People” case (Conservation Northwest, Washington Environmental Council, Olympic Forest Coalition, et. al. v. Franz), now before the Washington Supreme Court. The case challenges DNR’s narrow interpretation of Washington’s Constitution and federal law in managing trust forest lands. Central to this is whether DNR’s sole fiduciary responsibility is to generate revenue from timber sales or whether it has other obligations to Washington citizens not now being met (e.g., mitigating the adverse effects of climate change).

Register here.

https://act.sierraclub.org/events/details?formcampaignid=7013q000002GMDwAAO

WA legislators pondering kelp protection

Kelp is a critical part of the marine habitat. Kelp has been in decline across the Salish Sea, with few exceptions. Now, after a number of years monitoring the kelp beds (some done by the local volunteers of the Marine Resources Committees) a new bill has been put forward to the legislature this year to protect it. Worth weighing in with your support at the State web site. https://app.leg.wa.gov/billsummary?BillNumber=5619&Year=2021&Initiative=false

Marine Resources Volunteer surveying kelp bed. Photo by Al Bergstein

It’s Senate Bill 5619 (sponsored by Senators Lovelett, Conway, Das, Hasegawa, Nobles, Pedersen, Randall, Rolfes, Saldaña, Stanford, Van De Wege, and C. Wilson; by request of Department of Natural Resources.

House bill is 1661 sponsored by Representatives Shewmake, Ryu, Berry, Fitzgibbon, Ramel, Springer, Duerr, Walen, Callan, Goodman, Paul, Peterson, Ramos, Rule, Simmons, Slatter, Tharinger, Kloba, Pollet, and Harris-Talley; by request of Department of Natural Resources

Here’s an edited version of the bill.

AN ACT Relating to conserving and restoring kelp forests and eelgrass meadows in Washington state; adding a new section to chapter 79.135 RCW; and creating a new section.

BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF WASHINGTON:NEW SECTION.  Sec. 1. (1) The legislature finds that coastal ecosystems and marine vegetation provide an array of valuable ecosystem goods and services to deep water and nearshore environments in Puget Sound and along the coastline. In particular, kelp forests and eelgrass meadows act as three dimensional foundations for diverse and productive nearshore ecosystems, supporting food webs and providing important habitat for a wide array of marine life, including orcas and threatened and endangered salmon and salmonid species. These marine forests and meadows play an important role in climate mitigation and adaptation by sequestering carbon and relieving ocean acidification. Marine vegetation can sequester up to 20 times more carbon than terrestrial forests, and therefore represent a critical tool in the fight against climate change.(2) Washington state is home to 22 species of kelp and is a global hotspot for kelp diversity. However, these kelp forests are under threat and have declined in recent decades.

A 2018 study conducted by the Samish Indian Nation on the bull kelp beds in the San Juan Islands found a 305-acre loss of kelp beds from 2006 to 2016, a 36 percent decline in one decade. A statewide study published in 2021 by the department of natural resources found that compared to the earliest baseline in 1878, the amount of bull kelp in 2017 had decreased by 63 percent in south Puget Sound, with individual areas showing up to 96 percent loss.(3) The legislature also finds that kelp and eelgrass have important cultural value to northwest tribal nations and have provided diverse marine resources that have sustained and inspired indigenous traditions over generations. In particular, bull kelp has played a prominent role in traditional knowledge and technology and is used in fishing, hunting, and food preparation and storage.

Decline in kelp forests threatens these uses, and the cultural livelihoods of coast Salish peoples.(4) Washington state’s eelgrass meadows also provide vital habitat for many organisms, including nursery habitat for juvenile salmon and feeder fish. Eelgrass also helps prevent erosion and maintain shoreline stability by anchoring seafloor sediment with its spreading roots and rhizomes. Eelgrass is used as an indicator of estuary health, because of its fast response to changes in water quality.

Examples of rapid eelgrass loss include Westcott Bay in San Juan county, where in 2000 there were 37 acres of eelgrass meadows and 20 years later less than one acre remains. Changes in the abundance or distribution of this resource are likely to reflect changes in environmental conditions and therefore are key species to monitor and protect to ensure marine ecosystem health.

Kelp forests and eelgrass meadows also provide and enhance diverse recreational opportunities, including productive fishing and picturesque kayaking and diving. These activities are important for local economies and for promoting strong senses of place and overall human well-being in communities. There is a need for greater education and outreach to communities to promote sustainable recreational practices in and near kelp forests and eelgrass meadows.

Existing regional plans for conservation of kelp forests and eelgrass meadows, including the Puget Sound kelp conservation and recovery plan (2020) and the Puget Sound eelgrass recovery strategy (2015), identify the need to prioritize areas for conservation and restoration based on historical and current distributions.

The legislature further finds that our terrestrial and marine ecosystems are interlinked and the state must be proactive in conserving our resources from trees to seas by protecting and restoring our marine forests and meadows in concert with conservation and reforestation of terrestrial forests. Therefore, it is the intent of the legislature to conserve and restore 10,000 acres of kelp forests and eelgrass meadows by

2040.NEW SECTION.  

Sec. 2. A new section is added to chapter 79.135 RCW to read as follows:

(1) The department shall, consistent with this section, and subject to available funding, work with partners to establish a kelp forest and eelgrass meadow health and conservation plan that endeavors to, by the year 2040, conserve and restore at least 10,000 acres of kelp forests and eelgrass meadows. The plan should proactively and systematically address:(a) The potential loss of kelp forest and eelgrass meadow habitat throughout Puget Sound and along the Washington state coastline; and(b) Potential current and future stressors related to the decline of kelp forests and eelgrass meadows.

(2) The department shall develop the plan, in collaboration with partners, to assess and prioritize areas for coordinated conservation and restoration actions. The plan must consist of the following elements: Assessment and prioritization; identifying coordinated actions and success measures; monitoring; and reporting.(a) The department shall, together with partners, develop a framework to identify and prioritize kelp forest areas in greatest need of conservation or restoration. The framework must incorporate:(i) Conservation of kelp forests and eelgrass meadows. Utilize and build on existing research to map and prioritize areas of kelp forests and eelgrass meadows throughout Puget Sound and along the coast that are at highest risk of permanent loss, or contribute significant environmental, economic, and cultural benefits to tribal nations and local communities, including salmon recovery and water quality, and where opportunities for partnership and collaboration can accelerate progress towards the goal, and develop criteria by which an acre of kelp forests and eelgrass meadows can be considered to be conserved or restored;(ii) Map and prioritize kelp forest and eelgrass meadow areas throughout Puget Sound and along the coast where they were historically present, identifying priority locations for restoration, and where opportunities for partnership and collaboration exist that will accelerate progress towards the goal. This should include identification of sites where restoration may be possible and would most benefit nearshore ecosystem function, including where restoration could also support healthy kelp forests and eelgrass meadows, salmon recovery, water quality, and other ecosystem benefits;(iii) Identify potential stressors impacting the health and vitality of kelp forests and eelgrass meadows in prioritized areas in order to specifically address them in conservation and restoration efforts.(b) The department shall collaborate with impacted tribal nations, and other local and regional partners, to address conservation and restoration needs in the priority areas and the appropriate tools and partnerships to address them. In developing coordinated actions and success measures, the department shall:(i) Conduct an assessment and inventory of existing tools relevant to conserving and restoring kelp forests and eelgrass meadows and reducing stressors related to their decline;(ii) Identify new or amended tools that would support the goals of the plan created under this section; and(iii) Identify success measures to track progress toward the conservation and restoration goal.

(3)(a) By December 1, 2022, the department must submit a report in compliance with RCW 43.01.036 to the office of financial management and the appropriate committees of the legislature, that includes a map and justification of identified priority areas, determines an approach to monitoring the kelp forest and eelgrass meadow areas that are meeting the criteria for conservation or restoration established in the plan, and describe activities to be undertaken consistent with the plan. The kelp forest and eelgrass meadow health and conservation plan must be finalized and submitted to the office of financial management and the appropriate committees of the legislature by December 1, 2023.(b) Subsequently, each biennium, the department shall continue to monitor the distributions and trends of kelp forests and eelgrass meadows to inform adaptive management of the plan and coordinated partner actions. The department shall submit a report to the legislature that describes the kelp forest and eelgrass meadow conservation priority areas, and monitoring approaches and findings, including success measures established in the plan. Beginning December 1, 2024, and by December 1st of each even-numbered year thereafter, the department shall provide the appropriate committees of the legislature and the office of financial management with:(i) An updated map of distributions and trends, and summary of success measures and findings, including relevant information from the prioritization process;(ii) An updated list summarizing potential stressors, prioritized areas, and corresponding coordinated actions and success measures. The summary must include any barriers to plan implementation and legislative or administrative recommendations to address those barriers;(iii) An update on the number of acres of kelp forests and eelgrass meadows conserved by region, including restoration or loss in priority areas; and(iv) An update on consultation with impacted tribal nations and local communities by region.

(4) In developing the plan, the department shall:(a) Consult impacted communities using the community engagement plan developed under RCW 70A.02.050; and(b) Invite input from federally recognized tribal nations on kelp forests and eelgrass meadows with important cultural and ecological values that are threatened by urbanization or other disturbances.

WA Legislators prepare for long list of climate change bills – Crosscut and others

As we start the 2022 legislative session, there’s a lot of new bills to follow.

Lawmakers could look at more than a dozen climate proposals addressing carbon reduction and other environmental issues

https://crosscut.com/politics/2022/01/wa-legislators-prepare-long-list-climate-change-bills

Also there is a parallel and somewhat overlapping set of bills followed by the Environmental Environmental Priorities Coalition. They are a coalition of over twenty leading environmental groups who lobby in Olympia on a regular basis and organize around a set of priority bills each legislative session.  They established four to be their highest priorities for the 2022 Legislative Session, they are listed below.  As in the past, they will be sending out a weekly “Hot List” to assist in your efforts to promote this common agenda.

The key priorities for the environmental caucus, as defined by the Washington Environmental Council and other allies:

2022 Priorities

Lorraine Loomis Act for Salmon Recovery (SB 5727 / HB 1838): Across the state, salmon are on the brink of extinction. Some Puget Sound salmon species have declined by 90% compared to historical populations. In the Columbia River basin, returns are as little as 2% of historical levels. The Governor is proposing habitat legislation as a tribute to Lorraine Loomis (Swinomish Tribe, and Chair of the Northwest Indian Fisheries Commission) longtime champion for the salmon. The Act requires tree buffers tall and wide enough to shade rivers and streams. The Act also requires shifting to a standard of improving ecological conditions rather than habitat loss mitigation.

Transportation for All: We need to fund a transportation system that reduces pollution and can support a range of transportation solutions including improving multimodal transportation choices, such as biking, driving, and public transit. Transportation dollars must be used in ways that deliver the best investments possible to help build a more efficient, affordable, and clean transportation system for all.

GMA Sprawl Loophole (SB 5042): The current sprawl loophole undermines the intent of the Growth Management Act (GMA) by allowing counties to subvert the Growth Management Hearing Board (GMHB) appeals process to illegally build sprawling developments that devours farmlands, forests, and critical habitats. The loophole locks in outdated rules, and puts a financial strain on jurisdictions to provide adequate infrastructure, facilities, and services to new developments.

RENEW Act (SB 5697): All across Washington, plastic waste litters Washington’s shorelines and waterways, filling landfills to capacity, and harming wildlife. Our recycling system needs to be modernized so packaging can actually be recycled, composted, or reused. The Renew Recycling Act addresses this waste by creating a set of graduated fees on packaging manufacturers based on how readily reusable, compostable, or recyclable their products are. These fees will be used to fund improvements in infrastructure, uniform access for residents across the state, and a clear list of what people can recycle. This bill will have the added benefit of shifting recycling costs away from ratepayers and onto the manufacturers.

The Puget Sound Partnership Agenda

Buy Clean & Buy Fair (HB 1103 / SB 5366): Washington has an important role to play through investing in locally sourced materials, manufactured in facilities with high labor standards and minor environmental impact. The policy creates a reporting system with vital information on the environmental and labor impacts of structural materials used in state-funded infrastructure projects. During the 2021 session, the legislature funded the creation of a publicly accessible database to enable reporting and promote transparency. Passing Buy Clean and Buy Fair legislation sends a clear market signal of the growing demand for ethically-made low-carbon goods. (Partner: Blue Green Alliance)

Energy for All (HB 1490): Secure access to energy is crucial to keeping Washington residents healthy, safe, learning, working, and thriving, and will facilitate a Just Transition to clean energy. The Governor and Utilities and Transportation Commission moratoriums on shut-offs helped sustain residential energy service in Washington and protected the public. But these protections are temporary and utilities are already seeking to collect on debt. This legislation establishes access to home energy as a basic need and an essential resource that should be accessed in full dignity without uncertainty about affordability and threats of disconnection. (Partner: Front & Centered)

Also, you can track environmental bills here:

and here:

Congress Authorizes PFAS Testing at Military Facilities Throughout US -Whidbey Naval Base Included- MartenLaw.com

This has been an known ongoing issue with the Navy base, poisoning water supplies on Whidbey Island. The $500 million should help identify where this is happening and what can be done about it. The hidden costs of our “sound of freedom” as some promoters of the base would like to call it, creates poisoned ecosystems, ear splitting noise even inside insulated classrooms for children, and many other costs. Another sound of freedom is also the roll call in Congress to fund this activity.



By Jonah Brown

The National Defense Authorization Act for Fiscal Year 2022 (“FY22 NDAA”),
signed by the President on December 27, 2021, directs the Department of
Defense (“DoD”) to test for per- and polyfluoroalkyl substances (also
known as “PFAS”) at military sites throughout the country. A map of
formerly used defense sites can be found here: Former Sites
https://www.usace.army.mil/Missions/Environmental/Formerly-Used-Defense-Sites/FUDS-GIS/.
A map of current military installations can be found here: Active Sites
https://militarybases.com/. DoD must begin its assessment with a report to
Congress on the status of 50 priority current and former sites within 60 days
of the effective date, meaning the end of February. A map showing the
locations of these sites can be viewed at the end of this article.

Groundwater contamination from use of PFAS-containing aqueous film-forming
foam (“AFFF”) has already been discovered at hundreds of current and
former DoD facilities, including military airports, National Guard bases, and
installations controlled by the Army, Navy, Air Force, and Marine Corps. The
FY22 NDAA provides $500 million in funding to DoD to fulfill Congress’
direction to test for PFAS.
Read More

https://www.martenlaw.com/news-and-insights/congress-authorizes-pfas-testing-at-military-facilities-throughout-us

Event: 2022 Environmental Lobby Day

WHEN: January 25th, 26th and 27th

WHERE: ONLINE

https://www.facebook.com/events/223059966492649/?active_tab=discussion

Join the 350 WA Network, Our Climate, Re-Sources, Climate Reality Project, Environmental Priorities Coalition and hundreds of activists to push for key environmental health and justice legislation in 2022. During lobby days, you will team up with other activists from your district to speak up for the environmental health and justice and gain the skills to be a persuasive constituent. You’ll have the opportunity to attend online issue briefings, learn how to lobby, hear from environmental champions, and meet virtually with your elected officials to advance important environmental legislation. Stay tuned for more details and pre-register here: https://us02web.zoom.us/…/tZItce…
Email kat@wcvoters.org with questions

Groups Again Sue Army Corps to Protect Washington’s Coastal Areas and Endangered Species from Industrial Shellfish Operations

Back to the battle lines in the courthouse to make the Army Corps. of Engineers live up to the law. They were found guilty of not doing diligence in the last year, and yet they reissued the same permits in the last days of the Trump administration with no changes by sending out “Letters of Permission” to get around the ruling. A truly cynical move. What can you do about this? Donate to either CFS or the Coalition to Protect Puget Sound Habitat. From the press release today:


SEATTLE—Today, Center for Food Safety (CFS) and Coalition to Protect Puget Sound Habitat filed a lawsuit in federal court to stop the U.S. Army Corps of Engineers (Corps) from continuing the excessive expansion of industrial shellfish operations without considering the cumulative impacts to Washington’s rich and diverse coastal waters. Industrial shellfish operations adversely affect Washington’s shorelines and estuaries by destroying critical habitat for numerous species, including endangered and threatened salmon and killer whales. These operations harm Washington’s aquatic and nearshore areas by increasing plastic netting and debris, micro-plastics, pesticides, and disturbances in the environment. 

“Despite clear statutory mandates and a previous court decision requiring the government to fully consider the potential impacts of proposed shellfish operations, the Corps continues to ignore its duties by allowing industrial shellfish operations to degrade important aquatic habitats, including through the use of plastics and pesticides, endangering Washington’s shorelines, biodiversity, and surrounding communities,” said Amy van Saun, senior attorney at CFS.

In the complaint filed today in the U.S. District Court for the Western District of Washington, plaintiffs argue that the nationwide permit (NWP 48 of 2021) authorizing commercial shellfish operations in Washington violates several federal environmental protection laws, including the Clean Water Act (CWA), National Environmental Policy Act (NEPA), Endangered Species Act, and Administrative Procedure Act. The complaint also challenges the Corps’ unlawful use of “Letters of Permission” (LOP) to approve industrial shellfish operations without public notice or comment and without considering their overall cumulative impacts. 

The new lawsuit comes on the heels of a previous lawsuit against the Corps, where CFS and allies successfully sued the Trump administration for issuing a similar nationwide permit (NWP 48 of 2017). The court found the previous 2017 permit unlawful under CWA and NEPA, stating that the Corps had failed to adequately consider the impacts on Washington’s shorelines and wildlife habitat, including the cumulative effects of expanding or continuing operations in sensitive areas. In a victory for plaintiffs, the Ninth Circuit Court of Appeals subsequently affirmed the lower court’s decision. 

In January 2021, during the last few days of the Trump administration, the Corps finalized the new nationwide permit for commercial shellfish aquaculture activities. In rushing to issue the permit, the Corps ignored comments from plaintiffs and stakeholders urging the agency to fix problems with its impact analysis before issuing the new permit. For example, neither the 2017 permit nor the 2021 reissuance include any restrictions on pesticide or plastic use. Much like the unlawful 2017 permit, the 2021 permit authorizes commercial shellfish aquaculture activities in Washington without full consideration of the potential adverse effects to aquatic ecosystems and wildlife, prompting CFS and allies to launch another lawsuit to vacate the permit.

“The Coalition is outraged that the Corps would try to avoid doing what is necessary as a bare minimum under the law to protect orcas, salmon, and marine life in Washington from the toxic and physical impacts of the massive number of industrial-scale aquaculture operations that have been proposed,” said Laura Hendricks, director of the Coalition to Protect Puget Sound Habitat. “This is precisely the sort of agency action that gives ‘government’ a bad name.”
 

The Corps has already relied on the 2021 NWP 48 to approve thousands of acres of industrial shellfish activities in Washington’s coastal areas, and the LOPs to approve thousands more without public input. Many of the acres authorized for shellfish aquaculture are located near critical spawning, breeding, and feeding habitats for forage fish, threatened and endangered species of salmon and green sturgeon, birds, whales, and other wildlife species. Additionally, operations authorized under the new permit destroy eelgrass and other aquatic plants that provide habitat to wildlife and other essential ecosystem services, such as carbon sequestration, sediment stabilization, and nutrient balancing, which help mitigate the effects of climate change. 

The plaintiffs in the lawsuit are CFS and Coalition to Protect Puget Sound. CFS is represented by counsel from CFS and Coalition to Protect Puget Sound is represented by the Law Office of Karl G. Anuta and Law Office of Mike Sargetakis.

Thirty environmental leaders urge Inslee to fill vacant seats on Fish & Wildlife Commission.

In a startling development, 30 key leaders of environmental organizations around the state have sent a letter urging Governor Jay Inslee to fill the vacant seats on the fish and wildlife commission with commissioners who will emphasize conservation science and reform.

The commission has been in turmoil for the last year partially because Governor Inslee has not filled 2 vacancies on it. He has left a 3 to 3 tie with commissioners who support extreme hunting ideas not based in peer reviewed science unwilling to compromise whatsoever with more moderate commissioners who had to seek independent science because they could not trust the data that was presented in key meetings with WDFW staff. It turned out their concerns were well founded.

Just this week one of the wildlife commissioners, Fred Koontz, resigned saying that the commission was “stuck in a political quagmire”. The dysfunction in this Commission mirrors a recent state audit that found that the Department of Fish and Wildlife itself is in in a state of crisis, with management bullying “rampant” and unethical behavior normalized. The Commission is supposed to be supervising this department. If ever there was time for a top to bottom overhaul of the Department, it is now.

This state of affairs is one of the Governor’s own making, since there have been two vacancies unfilled for the last year that he could’ve easily have filled with people who want to support science and the environmental goals that he has stated he supports for his entire career. Why has he not done that?

The mess is detailed in the letter below. In decades spent covering environmental issues I have never seen anything like the current situation at WDFW. It needs attention by the Governor now.

A Second Court Rejects Cooke Aquaculture’s Challenge Over Termination of Port Angeles Net Pen Lease

Port Angeles Netpen managed by Cook Aquaculture – Photo provided by Wild Fish Conservancy

Cook loses another one. Very good news.

Media Contacts: Kurt Beardslee, Executive Director, kurt@wildfishconservancy.org

DECEMBER 17, 2021—In another legal defeat for Cooke Aquaculture, a second Washington state court has rejected efforts by the seafood giant to sue Washington state over the termination of the company’s lease for their Port Angeles netpen operation. On Tuesday, the Court of Appeals issued an opinion affirming a lower court ruling upholding the Department of Natural Resources’ (DNR) decision to terminate the lease.

The Court’s decision represents another major step forward in the public’s hard-fought efforts to remove this dirty industry from Puget Sound waters,” says Kurt Beardslee, Executive Director. “I applaud the Courts for putting our natural resources and the interest of the public ahead of this powerful corporate interest.”

The court said:

We hold that the superior court properly applied the arbitrary and capricious standard of
review because DNR’s decision to terminate the lease was administrative, and that DNR’s decision to terminate the lease was not arbitrary and capricious. Accordingly, we affirm the superior court’s final order upholding DNR’s lease termination decision.

This week’s decision concludes a nearly four-year appeal process that began in early 2018 when Cooke filed suit against DNR, arguing the agency had wrongfully terminated the lease ahead of the 2025 expiration date. In 2020, a Thurston County Superior Court Judge rejected Cooke’s challenge and the company appealed the decision to the Court of Appeals which issued the opinion this week.

DNR terminated the lease in December 2017 after an investigation revealed various violations at the Port Angeles facility,including operating outside of its boundaries, failure to pay rent timely, and not operating the facility in a safe condition.Shortly following the termination, the net pens were completely removed from Port Angeles Harbor.This week the Court overwhelming rejected Cooke’s opinion that the decision to terminate the lease was arbitrary and capricious, finding DNR’s decision “was based on facts supported by substantial evidence, pursuant to plain terms of the contract, was well reasoned and made with due regard to the facts and circumstances.”Cooke is also suing DNR in a separate ongoing lawsuit over the early termination of the company’s Cypress Island lease.The lease was terminated following the 2017 catastrophic collapse of a Cooke net pen that released over 260,000 nonnative Atlantic salmon infected with an exotic virus into Puget Sound. A comprehensive investigation by Washington agencies found Cooke at fault for the collapse and Cooke was also required to pay $2.75 million in Clean Water Act violations in a lawsuit brought by Wild Fish Conservancy. The collapse also resulted in Washington passing a landmark and widely celebrated law banning all nonnative Atlantic salmon finfish aquaculture, Cooke’s only enterprise at the time.“I hope the public will join me in thanking Commissioner of Public Lands Hilary Franz and her department for their unwavering commitment to protecting Puget Sound in the face of Cooke’s meritless, costly, and time-consuming lawsuits,” says Beardslee. “Under Commissioner Franz’s leadership, DNR has a proven record as the only regulatory agency in Washington willing to take bold action to hold this dangerous industry accountable.”In a controversial decision, the Washington Department of Fish and Wildlife permitted Cooke in 2020 to begin rearing steelhead in their Puget Sound net pens where the company holds valid leases. With the Cypress Island and Port Angeles leases terminated by DNR, Cooke only holds valid leases for two net pen sites in Puget Sound. Both leases will expire next year and Cooke will need to apply and secure new leases from DNR to continue operating in Washington. In a letter to Cooke earlier this year, DNR warned the company that the agency has not yet decided if they will issue Cooke new leases.“This week’s Court decision could not have come at a more important time. With Cooke’s only existing leases set to expire next year, DNR is in a critical decision-making period that will determine the future of this industry in Puget Sound,” says Beardslee. “

The Court’s decision removes any opportunity for Cooke to try and recover millions in lost revenue from DNR, which would have provided Cooke important leverage to potentially negotiate their future and new leases in our public waters.”

In July 2020, Wild Fish Conservancy submitted official applications to DNR requesting to lease all of the sites used by Cooke for commercial net pen aquaculture. This alternative proposal, the Taking Back Our Sound Restoration Project,seeks to hold these waters in public trust for the sole purposes of restoring these polluted sites to their natural state and restoring the public’s access to over 130 acres of Puget Sound that have been restricted for private profit for over three decades. This proposal is supported by a broad-based coalition of over 100 businesses and organizations and over 6,000 individuals who have signed onto an ongoing petition to Commissioner Franz calling on DNR to not extend, renew, or reissue leases for commercial net pen aquaculture in Puget Sound and to instead lease these waters for this unprecedented restoration project.“The expiration of these leases comes only once in a decade and offers the public a rare opportunity to work together to take back our sound from the net pen industry, “says Beardslee. “Cooke’s first lease will expire in March 2022, there foreit’s critical at this time that we continue to work together to call on DNR to make the right decision for wild fish and the health of Puget Sound.

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