Ecuador’s Constitutional Court Applies “Rights of Nature”to Safeguard Protected Forest

What could this have to do with the Olympic Peninsula? Well, just a few months ago, our Department of Natural Resources decided that putting 80,000 bags of oysters inside a National Wildlife Reserve was a good idea, regardless of the scientific opinions of the biologists at the Reserve. Perhaps a court challenge could call into affect the “Rights of Nature” to safeguard the Spit from commercial exploitation?


QUITO, ECUADOR— In an unprecedented ruling, the Constitutional Court of Ecuador has applied Ecuador’s constitutional provision on the “Rights of Nature” to safeguard Los Cedros Protected Forest from mining concessions. The Court voted 7 in favor and 2 abstentions.

With the ruling, published on December 1st, the Constitutional Court ordered that activities that threaten the Rights of Nature should not be carried out within Los Cedros Protected Forest, thereby prohibiting mining and all types of extractive activities. Water and environmental permits to mining companies will now also be denied. 

Two-thirds of the reserve is covered by mining concessions granted to the Ecuadorian state mining company, ENAMI, and its Canadian partner, Cornerstone Capital Resources. The Constitutional Court agreed to hear the case in May 2020.

The Court’s decision also imposes a series of orders on the Ministry of the Environment, Water and Ecological Transition to comply with the decision. These include orders for the Ministry to help construct a participatory plan for managing the Los Cedros Protected Forest and to ensure respect for the Rights of Nature and the right to a healthy environment. The Court also ordered the government to adopt regulations so that the future issuance of environmental records and licenses and the use of water for extractive activities avoid violating the Rights of Nature, as in the case of Los Cedros.

Overall, this decision clearly details the effects of the Rights of Nature for administrative authorities in a way that was unprecedented.

“This case is emblematic not only for Ecuador but also for the international community,” said Alejandro Olivera, senior scientist and Mexico representative at the Center for Biological Diversity. “This progressing and innovative ruling protects the imperiled wildlife, such as the endangered brown-headed spider monkeys and endangered spectacled bears, from mining companies.”

In September 2020, Earth Law Center, the Global Alliance for the Rights of Nature, the Center for Biological Diversity, International Rivers, and the Great Lakes Environmental Law Center (“Coalition”) filed an amicus curiae (friend of the court) brief (Spanish; English) before the Ecuadorian Constitutional Court. The brief asked the Court to protect Los Cedros and robustly enforce constitutional provisions that establish the Rights of Nature, or “Pachamama,” including the rights to exist, to restoration, and the unique rights of rivers, especially the Magdalena River.

“This is a historic victory in favor of Nature. The Constitutional Court states that no activity that threatens the Rights of Nature can be developed within the ecosystem of Los Cedros Protected Forest, including mining and any other extractive activity. Mining is now banned within this amazing and unique protected forest. This sets a great juridical precedent to continue with other threatened Protected Forests. Today, the endangered frogs, the spectacled bears, the spider monkey, the birds, and Nature as a whole have won an unprecedented battle”, says Natalia Greene from the Global Alliance for the Rights of Nature. 

“It is undoubtedly good news, but the situation of Los Cedros Protected Forest is not an isolated event in Ecuador,” said Constanza Prieto Figelist, Latin American Legal Director at Earth Law Center. “This is a problem of the forests throughout the country. In recent years, many mining concessions that overlap with Protective Forests have been awarded.”

The brown-headed spider monkey, found in Los Cedros, has lost more than 80% of its original area of distribution in northwest Ecuador. In 2005, it was estimated that there were fewer than 250 brown-headed spider monkeys globally, granting the species a place among the top 25 most endangered primates in the world.

The groups note that the case is of great significance, both for Ecuador and the world, because it has the potential to establish important and influential “Earth jurisprudence” that will help guide humanity to be a benefit rather than a destructive presence within the community of life. The proposed mining is unlawful, the Coalition say, because it violates the rights of the Los Cedros Protected Forest as an ecosystem as well as the rights of the many members of that living community.

# # #

Earth Law Center (https://www.earthlawcenter.org) is a non-governmental organization based in the United States of America, Mexico, and Canada that promotes the application of the Rights of Nature at the local and international levels. The organization creates alliances with local organizations to recognize and promulgate laws that recognize the inherent rights of rivers, oceans, and coastal and terrestrial ecosystems. Thus, it seeks to make a paradigm shift, fighting for the formal recognition of the rights of nature to exist, prosper and evolve. Earth Law Center aims to grant ecosystems the same rights recognized to people and corporations, allowing them to defend their rights before national and international courts, not only for the benefit of people but also for nature itself.

Part 2 – Brinnon Resort’s unpaid bills to Jefferson County

In the first part of our short series, we explored the issue of the Statesman Group, an international developer out of Canada, and it’s unpaid bills to Jefferson County for work the county did for them on behalf of approving the Pleasant Harbor Resort. The resort, a large Master Planned Resort (MPR), has been the issue of contention since it was unveiled back in the early 2000s. The County gave a green light to develop, with numerous requirements to be met. In exchange, the County, because of the lack of employees due to the financial aftermath of the real estate crash of 2008-09 offered to do a great deal of work to expedite the approvals in exchange for being paid agreed upon sums for the work. It was a reasonable thing to do, given the financial situation the County was in at that time. Though the County did do a great deal of work it was paid for between 2008 and 2016, starting in 2016 Statesman started challenging the invoices. For some reason, this dispute has gone on for 6 years, totaling over $190,000, money the County can ill afford and a situation most of us would never be allowed to do as individuals or small time developers.

Since this dispute started, Statesman has received permission by the Department of Natural Resources to log the property, and according to my sources, they have. This logging activity most likely generated revenue for Statesman.

The County has been involved in negotiations with the Statesman group for many months now, records revealed through Public Records Act requests have shown that County attorney Philip Hunsucker and County officials have been going back and forth for years seeking to receive payments from Statesman. Mr. Hunsucker has stated the following in letters to Stateman’s attorney in May of 2021:

  • “Your client previously paid without question invoices with the same sort of detail in the so-called “block bills” he is now complaining about.”
  • “…when the County tried to get your client to pay invoices in January 2017, he refused”
  • “Some of the work the County did with tribes also was necessary to address your client’s missteps with the Port Gamble S’Klallam Tribe (PGST).”
  • “Significant work was required by the County to ensure that all MOU’s and environmental reports required by Ordinance No. 01-1028-08 were completed, including the Water Quality Management Plan and the Wildlife Management Plan. This issue also coincides with the need to coordinate with tribes. The PGST provided detailed and substantive comments to Water Quality Management Plan and the Wildlife Management Plan that had to be addressed”

Mr. Hunsucker also offered a 5% discount on the bill if they paid immediately.

The question that has been asked by many in the opposition to this MPR, is “What other business in Jefferson County would be allowed to not pay hundreds of thousands of dollars owed to the County for work done over six years and then offered a discount to pay these late bills?”

A logical follow up to this question is, “Why can’t the County issue a stop work order to Statesman until these bills are paid?

This reporter reached out to former County Commissioner John Austin, who was one of the commissioners that approved this MPR in the first place. His comment was, “It’s very distressing to me that they have not followed their agreement with the County.” He went on to state that he would likely have been reluctant to approve this MPR if he knew that this would have been the outcome.

It would be informative to get an official statement from the County as to why they have not issued a stop work order on this development until bills are paid. On Page 62 of the 2017 agreement with Statesman, it states:

(11) Violations and Penalties. The administrator is authorized to enforce the provisions of this article whenever he or she determines that a condition exists in violation of this article or permit issued hereunder. All violations of any provisions of this article, incorporated standard or permit issued. pursuant to this article are made subject to the provisions of Chapter 18.50 JCC, which provides for voluntary correction, notice and orders to correct the violation, stop work and emergency orders, and
assessment of civil penalties
(emphasis added).

https://test.co.jefferson.wa.us/weblinkexternal/ElectronicFile.aspx?dbid=0&docid=1899761&AspxAutoDetectCookieSupport=1

Additional investigations by the Brinnon Group have found the following brochure put out by Statesman. It raises the specter that Statesman does not have the financial resources to complete this project.

A redflag on Statesman finances was raised back in August, 2016, when the company distributed a flyer that proposed public financing of the Pleasant Harbor development…. Statesman proposed a $2,000,000 “Recreational Community Grant” from Jefferson County. A transfer of about 30 acres of the Pleasant Harbor site to the state for another Recreational Community Grant in the amount of $9,250,000 was proposed (a cost of over $308,000/acre of undeveloped, vacant land), as well as a $26,500,000 loan from the state. These requests totaled almost $38,000,000 in corporate welfare to Statesman. During this time in 2016, while Statesman was asking for public money for its project, it was not paying its bills to Jefferson County.

From email provided by The Brinnon Group

Additionally, according to a letter sent earlier this month to the County, raises the issue of whether the County is crossing a legal line by allowing this situation to continue. And at what point is it considered bad debt and written off?

Article 8, Section 7 of the Washington Constitution states: “No county, city, town or other municipal corporation shall hereafter give any money, or property, or loan its money, or credit to or in aid of any individual, association, company or corporation . . .” (emphasis added).

From email provided by The Brinnon Group

The Brinnon group is asking that the County take steps to ensure that Statesman can finance this project. They ask, quite reasonably it would seem to most individuals here, that the County require financial security or a bond for payment to the County, such as an irrevocable line of credit from an established financial institution. The question also might be asked, “Why hasn’t the County already done that?”

How much longer are the taxpayers of this county expected to wait before the bills that are due them are paid? Who else would get this kind of kid glove treatment by county officials?

A great deal more background on this can be found on the website of The Brinnon Group, the citizens who have been opposing this development since the beginning. http://www.brinnongroup.org/

Olympic Forest Coalition, WEC & Conservation NW argue case in WA Supreme Court today

This is the kind of lawsuit I find very useful. Status quo is not always legally correct, and challenging the notion that the only thing we can do with public forests is cut them for educational funding has never seemed correct. Our naive ancestors thought that what seemed like endless supplies of trees could fund education forever. We now know how simplistic that idea was. So we’ll find out if the court agrees. Big ramifications if they do. Everyone in this case are folks I’ve met and have a great deal of respect for their stances.


OFCO and colleague plaintiffs Washington Environment Council and Conservation Northwest, and individual plaintiffs Marcy Golde, Peter Bahls, et al, are before the Washington Supreme Court this Thursday, October 21st at approximately 10:00 AM in the “All the People” case. The lawsuit seeks to remove a barrier to balanced and ecological forest management by giving DNR the discretion to pursue timber harvest alongside other benefits. Timber production and associated revenue for beneficiaries, carbon management promoting climate stability, protections of clean water, species and habitats and against landslides and floods during extreme weather events, regrowth of older, complex forests for future generations, as well as non-timber forest products, cultural value, and recreation.

Our lawyer, Wyatt Golding from Chestnut Zioinzt, will argue the case for “All the People” of Washington (Conservation NW, et al. v. Commissioner of Public Lands et al., No. 99183-9). The case centers on the interpretation of the Washington Constitution and the federal land grant when we became a state. Article 16, Section 1 of the Washington State Constitution states that “all the public lands granted to the state are held in trust for “all the people”.


You may watch the hearing on state TVW.

See https://www.tvw.org/watch/?eventID=2021101173

Conservation Groups Challenge Washington’s Artificial “Fix” to  Southern Resident Killer Whale and Salmon Recovery 

This in from the Wild Fish Conservancy. After trying to move the needle with the WDF&W they have decided that the courts need to get involved. The State should not be allowed to ignore the very laws that it imposes on everyone that lives here, simply to try scientifically dubious efforts to appease special interest groups. To be clear, see the items I’ve boldfaced below to highlight the criticality of this lawsuit.


October 13, 2021— This week, conservation organizations Wild Fish Conservancy and The Conservation Angler  filed suit against the Washington Department of Fish and Wildlife for its repeated refusal to follow state  environmental laws when setting statewide hatchery policy, including when it recently embarked upon a massive  expansion in the production of hatchery salmon that could cause irreparable damage to fragile wild fish  populations and to endangered Southern Resident killer whales. 

Filed in King County Superior Court, the lawsuit alleges that the Department has been ignoring the requirements  of the State Environmental Policy Act (SEPA) since 2018, when it suspended key components of a science-based  hatchery reform policy designed to prevent state hatcheries from continuing to contribute to the decline of wild  populations of salmon and steelhead and from impeding their recovery. This significant action to abandon  science-based hatchery reform was taken without any public notice and was widely criticized, including in a  letter signed by 77 prominent fisheries and orca scientists and advocates, who called on Governor Inslee to  reinstate the science-based policy recommendations and another letter delivered to the Washington legislature by  five former Fish and Wildlife Commissioners responsible for implementing the hatchery reform policy in the  early 2000’s. 

After neutralizing the safeguards provided by this hatchery reform policy, the lawsuit alleges, the Department  began to massively increase hatchery production of Chinook, coho, and chum salmon at state run facilities,  purportedly to provide more food for Southern Resident killer whales. However, the Department did not support its hatchery expansion plan with any evidence that the Southern Resident killer whales would actually eat or be  sustained by hatchery salmon. Killer whale scientists agree the whales subsist primarily upon older and larger  Chinook that are found almost exclusively in the native Chinook populations that hatcheries have failed to  produce, protect, or restore.  

Even worse, the Department refused to engage in the SEPA process, including drafting an environmental impact  statement that would have assessed any and all potential adverse impacts of the proposed hatchery expansion on  both threatened wild salmon and steelhead populations and on the starving Southern Resident killer whales.  Hatcheries have long been recognized as one of the four primary threats to wild fish populations.  

“The Department took a big gamble, with the only certain payoff going to Washington’s fishing industry, while  all the risks are borne by our orcas and wild salmon populations,” said David Moskowitz, Executive Director of  The Conservation Angler. “But state environmental law does not allow the Department to risk the future of our  fish and wildlife on such an unproven strategy—it requires our agencies to make well-informed decisions based  

on a careful analysis of the potential adverse environmental impacts of their actions.” 

In 2020, at the same time the Department was actively implementing massive hatchery increases without  environmental scrutiny, the Department released a report titled ‘A review of hatchery reform science in  Washington State’ that found “hatcheries have potential for large magnitude ecological impacts on natural  populations that are not well understood, not typically evaluated and not measured” and that “…a focus on  efficiency and maximizing abundance prevents widespread implementation of risk reduction measures.”  

What’s more, the report recommended that prior to increasing hatchery programs, more environmental review  was necessary to evaluate cumulative hatchery effects and to ensure increases wouldn’t harm wild fish recovery,  warning large-scale hatchery production “can magnify the political pressure to take advantage of abundant  hatchery runs at the expense of natural populations” and concluding that increasing program size can raise both  “ecological and genetic risks”. The authors warned that “a rigorous justification for program size is essential for  implementing scientifically defensible hatchery programs.” 

“No doubt, many people supported the state’s ‘Orca Prey Initiative’ with the best of intentions, because it  was presented to the public as a scientifically-credible and rigorously vetted solution to feeding the  starving population of Southern Resident killer whales. The problem is that scientists know that producing  more hatchery fish is not going to solve the problem, and will likely make this crisis worse”, said Kurt  Beardslee, Executive Director of Wild Fish Conservancy. 

“As ridiculous as it sounds, reducing overharvest of the whales’ primary food wasn’t even considered as  an acceptable solution by the Governor’s Southern Resident Orca Task Force and other resource managers.  Instead, the plight of the Southern Residents provided an opportunity for powerful commercial and  recreational fishing interests to push for massive increases in hatchery production, putting our orcas and  wild salmon at even greater risk”, Beardslee says. 

### 

Wild Fish Conservancy is a conservation ecology organization dedicated to conservation, protection, and  restoration of wild fish ecosystems in the Pacific Northwest. wildfishconservancy.org 

The Conservation Angler fights for the protection of wild Pacific anadromous fish populations throughout the  Northwest, all the way to Russia’s Kamchatka Peninsula. theconservationangler.org 

Wild Fish Conservancy and The Conservation Angler are represented in this matter by Animal & Earth  Advocates, PLLC of Seattle, Washington.

Salmon-killing tires get congressional hearing – KUOW

This is a must needed first step towards changing the equation to what may prove to be one of the root causes of our loss of salmon. Worth noting that no Washington State representatives are on this committee (why? I don’t know). It also appears that it is populated by far more Republicans than Democrats. Again. Why? I don’t know.


A study that pinpointed a chemical from car tires as the cause of salmon die-offs in West Coast creeks has prompted a congressional hearing. The toxic effects of tire dust and skid marks on coho salmon were the subject of a U.S. House of Representatives Natural Resources Committee hearing Thursday. Washington State University researcher Jenifer McIntyre said 6PPD-quinone, a chemical recently discovered in used tires, has been washing off roadways and killing coho salmon. John Ryan reports. (KUOW)

Salmon-killing tires get congressional hearing

With rollback of Trump proposal, new Biden plan cuts just 2% of spotted owl protections -OPB

Good news as the Biden Administration works to reverse the damage done by Trump.


The U.S. Fish and Wildlife Service is proposing to withdraw the previous administration’s rule that slashed millions of acres of critical habitat protections for the northern spotted owl. The proposed new rule would reduce the protected habitat area in Oregon by 200,000 acres — leaving far more land protected for the threatened owl than called for by the Trump administration. This comes after the Biden administration’s U.S Interior Department delayed and reviewed the Trump administration’s Jan. 15 rollback of 3.4 million acres of designated critical habitat protections for the imperiled species in Washington, Oregon and California. Monica Samayoa reports. (OPB)

With rollback of Trump proposal, new Biden plan cuts just 2% of spotted owl protections

Canada and the United States release new action plan for Salish Sea Ecosystem – Yahoo Finance

More good news as the Biden Administration opens up communications and cooperation with neighbors.

…Today, the governments of Canada and the United States announced that they have signed a new four-year “Action Plan” under their Joint Statement of Cooperation—first signed in 2000—that commits both countries to work together on transboundary issues and challenges facing the Salish Sea ecosystem. Under the action plan, the two nations will continue to engage with partners across the region to advance shared priorities for ecosystem health, including information sharing, improving transboundary coordination, and reporting on ecosystem health. Environment and Climate Change Canada and the U.S. Environmental Protection Agency also updated their joint “Health of the Salish Sea Ecosystem Report” analyzing ten indicators of the health of the Salish Sea. Overall trends described in this report reveal some improvement, but also areas of no change or decline that can be identified as ecosystem priorities for future action. (Yahoo Finance)

Canada and the United States release new action plan for Salish Sea Ecosystem (yahoo.com)

Lawsuit Adds New Protections and Increased Foraging Opportunity for Starving Southern Resident Killer Whales – Wild Fish Conservancy

Wild Fish Conservancy put out this update on their work last week. It is interesting to note the details of what we are told about the government desire to protect and restore wild salmon versus the actual regulations that they are creating. I’ll reproduce the whole email here. But first, why is this information important to us here? 

Our Governor and fisheries management people publicly state that they are fighting to protect wild salmon stocks. Wild Fish Conservancy spends the time to be in the meetings and review the actual laws that are being passed, both state and federal to bring these goals to a reality. 

It appears that even with the best of intentions, the goals are washed out in the process, eventually continuing the practices that have led us here, with what seems like ‘greenwashing’ the work. Why? 

That a 10 year agreement between the U.S. and Canada of over 100 pages of work governing our joint salmon stocks would not include any reference to Southern Resident killer whales or their forage needs seems more than an oversight. 

We cannot rely on government to take a strong stance in their efforts to save the wild stocks. The pressures (in terms of real dollars) on them are too great to expect them to have the backbone to accomplish them. While so many organizations talk about actually taking the steps to restore salmon Wild Fish Conservancy is willing to sue to make sure the science is implemented in law. I dislike lawsuits, but at times, they are the only tool left, before all the salmon are gone forever.

As Kurt says at the end of this email: Despite NOAA’s acknowledgement that the current harvest rates are harming both ESA-listed Chinook and orcas, they continue to authorize the fishery to operate business as usual, citing speculative and unproven plans to mitigate this harm. To date, this hypothetical mitigation has yet to be implemented, yet the fishery continues to harvest at the expense of both protected species.

I applaud their efforts in an era when too little is being done to stand up to industry and government inaction and hope you will support their work as you can.

__________________________________

NEW PROTECTIONS
This week, as the result of a lawsuit by Wild Fish Conservancy and the Center for Biological Diversity, federal fisheries managers announced a proposal to increase protections and foraging opportunity for the starving Southern Resident killer whale population.

The action comes in the form of a newly proposed amendment to the Pacific Coast Salmon Fishery Management Plan, which guides the management of all salmon fisheries in Federal waters off the coast of California, Oregon, and Washington.

Once adopted, the newly proposed ‘Amendment 21’ will finally acknowledge and address the complex prey needs of the critically endangered Southern Resident killer whale population by limiting non-tribal commercial Chinook salmon fishing in years of low Chinook salmon abundance to protect foraging opportunities for the orcas. Killer whale scientists have identified lack of available prey as the primary cause of the Southern Resident’s decline.

These new protections are the result of a 2019 lawsuit challenging NOAA Fisheries for failing to acknowledge the overwhelming evidence that the current management plan governing these West Coast fisheries is harvesting prey critical to the survival of the Southern Residents, especially in years of low Chinook abundance.

The fisheries’ impacts on the protected orca population had not been formally analyzed since 2009. Our lawsuit called for the agency to conduct a new analysis, as required by the Endangered Species Act, that considered over a decade of new scientific information about the reason for the population’s decline, their relationship to salmon, and the impacts of prey depletion on their survival and recovery. NOAA Fisheries finally agreed to conduct a new analysis which confirmed current management was not sufficient to meet the needs of the endangered Southern Residents and that actions would need to be taken to improve foraging opportunities for the starving whales, leading to the proposed new amendment.

SETTING A NEW PRECEDENT
As an action alone, the new amendment is a small step forward when considering the scope of the crisis facing the Southern Resident killer whales. At the same time, this action represents the beginning of a fundamental shift in how federal agencies should be managing commercial salmon fisheries. 

Amendment 21 sets a new precedent that says it is no longer acceptable to fundamentally ignore the prey needs of federally-protected killer whales when managing commercial salmon fisheries.

 

Below we’ve shared information about another lawsuit filed by Wild Fish Conservancy in 2020 over harvest practices in Southeast Alaska that are contributing to the decline of both Southern Resident killer whales and Puget Sound Chinook. Amendment 21, and the underlying litigation, have set in motion important momentum critical to the outcome of this second ongoing lawsuit.

A COASTWIDE THREAT
The Pacific Coast Salmon Fishery Management Plan is not unique. For decades, commercial salmon harvest plans authorized by federal and state officials throughout the coast have ignored or failed to adequately address the prey needs of the Southern Residents. When fishery managers come to the table to make critical salmon harvest and allocation decisions, the whales are often not considered as a “stakeholder”, despite the population’s continued decline toward extinction and federal protected status.

A primary example is the Pacific Salmon Treaty, an international agreement between the United States and Canada that governs the management of all Pacific salmon stocks of mutual concern and is the most consequential and far-reaching management plan governing commercial salmon fisheries in Washington, British Columbia, and Alaska. In 2018, the public had the opportunity to review the Pacific Salmon Treaty’s new 10-year agreement, which will be in affect through the year 2028. In the over 100 page document, there is not a single mention of the Southern Resident killer whales, let alone their foraging needs.

Last month, Wild Fish Conservancy submitted our summary judgement motion in another lawsuit against NOAA Fisheries launched in 2020 over the authorization of harvest in the Southeast Alaska Chinook troll fishery that is pushing both Southern Residents and wild Chinook populations in the northwest closer to extinction, a conclusion NOAA acknowledges in their own 2019 analysis of the fishery.

The Chinook troll fishery operates 10-months of the year outside of Southeast Alaska and is considered a mixed-stock fishery, meaning a fishery where Chinook are indiscriminately harvested regardless of their protected status, age, hatchery or wild origin, and what river they originated from.

Nearly all of the fish harvested in this fishery will go on to be marketed as sustainably-certified, wild-caught Alaskan Chinook. However, data confirms 97% of the Chinook harvested in the fishery originate from rivers in British Columbia, Washington, and Oregon. If given the opportunity, these Chinook would migrate back down the coast serving as the primary prey for the Southern Resident killer whales as the Chinook pass through the whale’s key forage areas. Instead, these fish are being harvested outside of the range of the whales and at levels that federal fishery managers acknowledge are unsustainable for the long-term survival and reproductive success of the Southern Resident population.

At the same time, wild Chinook are being harvested regardless of their origin and status under the Endangered Species Act, which further impedes the recovery of critical Chinook populations throughout the Pacific Northwest the whale’s depend on. 

Despite NOAA’s acknowledgement that the current harvest rates are harming both ESA-listed Chinook and orcas, they continue to authorize the fishery to operate business as usual, citing speculative and unproven plans to mitigate this harm. To date, this hypothetical mitigation has yet to be implemented, yet the fishery continues to harvest at the expense of both protected species. The insufficiency and hypothetical nature of the mitigation is at the heart of Wild Fish Conservancy’s arguments in this case. We will be sure to continue to update you as this extremely consequential lawsuit moves forward over the coming months.

Seabed mining opponents off WA Coast find win in legislature – Public News Service

Finally we have a ban on seabed mining off the coast. Thanks to everyone who pushed this bill. Sad it took a Democratically controlled legislature to pass it. This article explains why it’s a good thing.


Gov. Jay Inslee signed a seabed mining ban into law Monday. The measure prohibits mineral extraction within three miles of Washington’s coastline. It received nearly unanimous support in the Legislature, except for two “no” votes in the House. Lee First, co-founder of Twin Harbors Waterkeeper, helped mobilize businesses and conservation organizations to support the ban. Eric Tegethoff reports. (Public News Service)

Seabed Mining Opponents Off WA Coast Find Win in Legislature

Puget Sound Days on the Hill -Puget Sound Partnership

We’d like to remind you to register by 1:59 p.m. Pacific Time tomorrow, Thursday, May 6, for the third of this year’s virtual Puget Sound Days on the Hill sessions, which will be held on Friday, May 7, from 1:00–2:00 p.m. Pacific Time, hosted by the Puget Sound Partnership and the Northwest Indian Fisheries Commission.

Please click here to register for the May 7 session. The confirmation email will provide the unique Zoom link for the session. 

At this session, we’ll discuss Puget Sound restoration and protection, salmon recovery efforts, climate change adaptation and mitigation, and infrastructure, among other topics, with Representative Dan Newhouse. We will also host a panel discussion, “What’s Happening in D.C.?,” with Morgan Wilson, director of Governor Inslee’s office in Washington, D.C., and Rich Innes of the Meridian Institute. Wilson and Innes will discuss the appropriations process and give an overview of potential upcoming legislation, such as the infrastructure package.

Representative Newhouse will speak for about 25 minutes, including a Q&A component, beginning at 1:30 p.m.

Advance registration is required.

We will send regular announcements with confirmed speakers for the week as well as a registration link for each event. You can also check https://www.psdoth.org for the latest information.


Week 3:

Friday, May 7, 1:00 – 2:00 p.m. Pacific Time

With Representative Dan Newhouse and panelists Morgan Wilson (Governor Inslee) and Rich Innes 

Group sues US over inaction to protect threatened species – OPB

Another day, another environmental lawsuit over the former administrations attacks on environmental protections. We’ll be seeing these for some time to come. 

Decisions by the Trump administration to withhold endangered-species protections for the northern spotted owl, monarch butterflies and other imperiled wildlife and plants could be set aside. That’s the goal of a conservation group’s lawsuit Thursday, challenging inaction on petitions to extend Endangered Species Act protections for several species that warranted them. Monica Samayoa reports. (OPB)

https://www.opb.org/article/2021/04/02/group-sues-us-over-inaction-to-protect-threatened-species/

New Challenge to Navy EIS by COER

The Whidbey Island group “citizens of the ebey’s reserve” (COER)   is continuing it’s challenge to the Navy Environmental Impact Statements (EIS). These rubber stamp items never seem to be anything more than a bureaucratic formality rather than a serious opportunity for the public to challenge Navy demands to our waters and air.


The 60-Day Letter 

Threats to Northwest Washington
The United States military is waging a war on Americans and the living environments that are located next to their military installations. Civilians, communities, and the natural environment including the entire Puget Sound estuary have become casualties of that war. In Northwest Washington, the communities and waters—known as the Salish Sea—surrounding the Olympic Peninsula, San Juan Islands, Vancouver Island and Gulf Islands, and Puget Sound are under assault by the Navy…including iconic and endangered species such as the Marbled Murrelet and the Southern Resident Killer Whales (Orcas) and decreasing numbers of salmon. 

Northwest Washington communities have partnered with the military to do their part for national security. In 2018, the Department of Defense (DoD) announced its decision to vastly expand the Navy’s Growler jet program and electronic warfare training over Whidbey Island, the San Juan Islands, and the Olympic Peninsula. The impacts of more jets flying more often include deafening noise, poisoned air, land and water, livelihoods in jeopardy, and harm to threatened species in Northwest Washington. In making its decision, military leadership ignored the objections of citizens, organizations, elected officials, and public agencies. 

Because few public processes exist to ensure citizen input on military issues, SDA and its member groups (together representing 25,000 Washingtonians) have joined forces to seek a balance between the needs of the military and the needs of impacted communities. SDA encourages economic diversification and defends policies and institutions designed to preserve our land, air, water, and wildlife. 

COER, a founding group member of the Sound Defense Alliance has initiated legal action against the Navy’s Final Environmental Impact Statement, as well as other legal challenges over the past 8 years, including the attached 60-day Notice of Intent to Sue under the Endangered Species Act. 

The attached 60-day notice alerts government agencies of their violation of Section 7 of the ESA for failing to reinitiate formal consultations with regard to the NWTT SEIS and the Growler EIS.  These agencies have a duty to reinitiate consultation when “new information reveals effects of [their] action that may affect listed species or critical habitat in a manner or to an extent not previously considered.” 50 C.F.R. § 402.16(a)(2).  The duty to reinitiate Section 7 consultation in this case is triggered by Kuehne’s new scientific findings on Growler noise under water.  

These projects cannot legally go forward without new biological opinions that consider the effects of Growler noise radiating great distances in all directions from the air-water interface.  Moreover, the new biological opinions must analyze the effects of Growler noise deep underwater in conjunction with the effects of vast and increasing man-made noise affecting the underwater environment and the marine fauna that live and breed there. 

Listed government agencies have 60 days in which to consider COER’s notice and to reinitiate consultation in these projects before COER can file suit under the ESA.  

COER has offered to meet and confer with the agencies as to the violations noticed.

Citizens of the Ebey’s Reserve (COER) is represented by Bricklin & Newman, LLP, attorneys at law, 1424 Fourth Avenue, Ste. 500, Seattle, WA 98101, telephone 206.264.8600.  

For more information on COER: search “citizens of the ebey’s reserve” on Facebook; or visit citizensofebeysreserve.com/

Scramble to re-issue permits for area shellfish farms underway following lawsuit -Skagit Valley Herald

The State is working to grant updated operating permits after the fiasco of the Army Corps of Engineers losing a major lawsuit last year under appeal. It will be interesting to see how, since the judge found that the existing permits had not taken long term harm ot the environment into consideration, as to how the state will not get sued again since I don’t understand at this point what they changed about determining long term environmental damage. More to follow on this.

Shellfish farms in the state and the agencies that issue them operating permits are scrambling to complete farm-by-farm paperwork following litigation over whether a former permitting system ensured adequate protections for the marine environment…State Department of Ecology spokesperson Curt Hart said the agency has received 446 applications for shellfish farm permits and has issued public notices for decisions on about 150 of them under Clean Water Act requirements. A public notice was issued this week for one of 16 applications for shellfish growers in Skagit County. Kimberly Cauvel reports. (Skagit Valley Herald)

Scramble to re-issue permits for area shellfish farms underway following lawsuit 

The never ending Spotted Owl saga

Once again, after the Trump Administration tried to roll-back the laws protecting the last remaining old growth on the Olympic Peninsula, the Biden Administration will take a look at whether science played any role at all. Likely not. Even if it goes through, it won’t bring back the one log trucks that helped wipe out virtually all of the habitat for old growth species. That ship sailed with the passage of shipping whole logs to Japan in the late 1970s, and that was about the time the last one log truck ran on the Peninsula.. Long before the Spotted Owl was the issue. Blame it on the desire to cut every last old growth for profit. The Spotted Owl issue was simply a logical outcome of wiping out the forests that they depend on.


The U.S. Interior Department is delaying and reviewing the Trump administration’s last-minute roll-back of federal protections for the imperiled northern spotted owl, which called for slashing protections from millions of acres of Northwest forests. On Jan. 15, just days before leaving office, the Trump administration published a final rule revising Endangered Species Act protections for the northern spotted owl. The rule lifted critical-habitat protections for the bird from 3.4 million acres in Oregon, Washington and California. The U.S. Fish and Wildlife’s had proposed a far more modest revision, seeking to remove critical habitat status from a little over 200,000 acres in 15 counties in Oregon. Monica Samayoa reports. (OPB)

OPB

Biden administration will reconsider northern spotted owl forest protection rollbacks

EVENT: WDFW hosts online meeting to hear public input on fish passage and screening rule

February 16, 2021
Contact: 
Gabrielle Stilwater, fishpassagerules@dfw.wa.gov

WDFW hosts online meeting to hear public input on fish passage and screening rule

OLYMPIA — The Washington Department of Fish and Wildlife (WDFW) is working to create new rules surrounding fish passage and screening improvement work. The public is invited to an online meeting on Thursday, Feb. 25 from 1 to 2 p.m. to learn more about the topic and provide input. No registration is required to attend.

The rulemaking effort is rooted in recommendations from Gov. Inslee’s Southern Resident Orca Task Force. In 2018, the task force published its report identifying lack of prey as a key threat to Southern Resident Orcas. Recommendation three of the report endorsed agencies to apply and enforce laws that protect salmon habitat.

The task force specifically noted that WDFW should develop rules to fully implement Chapter 77.57 Revised Code of Washington (RCW), better known as the fishways, flow, and screening statutes.  

“Barriers that block fish from swimming upstream or fish movement instream, such as deteriorating culverts, outdated bridges, and diversion dams undermine the state’s salmon recovery efforts and impact other aquatic species,” said Margen Carlson, Habitat Program Director at WDFW. “We want to help landowners protect fish by creating rules that provide clear guidance.”

WDFW has drafted the first version of rules for comment. For more information, visit wdfw.wa.gov/species-habitats/habitat-recovery/fish-passage/rule-making.

People with limited internet access can call the Habitat Program at 360-902-2534 to learn how to participate by phone and request print materials.

Although fish passage and screening requirements for new construction has been codified through Hydraulic Project Approval (HPA) rules, rulemaking for fish passage and screening will focus on compliance standards used for current and future fish passage and screening improvement projects, such as climate adapted water crossings. New rules are anticipated to go into effect in 2022.

The Washington Department of Fish and Wildlife is the state agency tasked with preserving, protecting, and perpetuating fish, wildlife, and ecosystems, while providing sustainable fishing, hunting, and other recreation opportunities.

Thane Tienson, prominent environmental lawyer from Astoria, dies at 74

A huge loss to the environmental community in the Pacific Northwest. Our condolences to his family and friends. Who’s willing to step into his huge shoes?

“He changed water rights on the John Day River in central Oregon,” Erik Tienson said. “He was just a freedom fighter for the Pacific Northwest. His life goal was to have The Dalles Dam be blown up, and restore Celilo Falls.”

Read the whole story at:

https://www.dailyastorian.com/news/local/tienson-prominent-lawyer-from-astoria-dies-at-74/article_7a98c5f2-64e2-11eb-9d42-bbdb3ac2477d.html

Court of Appeals Backs Environmentalists: Federal Greenlight of Industrial Shellfish Aquaculture Unlawful

This is the most significant court ruling in decades and likely changes everything about shellfish aquaculture in the Salish Sea. It’s importance cannot be overstated. This blog has covered the trial over the last two years. We have been astonished at the brazen lack of science applied and found during discovery of the Army Corp. of Engineers. The time has come to start applying real science to the selling off of our beaches and virgin bays, converting them to commercial aquaculture farms with no real debate or discussion on “where will this all end”. The creation of this lawsuit was a ‘hail Mary” pass by the environmental groups that brought the suit. If they had lost, likely all future attempts at stopping this insanity would have failed. Congratulations to both the lawyers at the Center for Food Safety and the Coalition To Protect Puget Sound Habitat for their efforts. This is a win for all of us.

Today, the 3-judge appellate panel unanimously agreed with the District Court, holding that the Corps failed to support its approval of NWP 48, violating the Clean Water Act and National Environmental Policy Act. Describing the Corps’ reasoning as “illogical,” the Court focused on its failure to analyze the admitted cumulative impacts of adding industrial-scale shellfish aquaculture to an already-impaired environment, and its reliance on a “limited scientific study” to justify a much broader determination of minimal impacts.

https://www.centerforfoodsafety.org/press-releases/6264/court-of-appeals-backs-environmentalists-federal-greenlight-of-industrial-shellfish-aquaculture-unlawful

Federal Judge George Boldt issues historic ruling affirming Native American treaty fishing rights on February 12, 1974

On this day, history for both the NW Tribes and all Tribes across this country changed for the better. One of the most important rulings in the history of U.S.< > Tribal relations, no matter which side of this you may have been on. For the Tribes, it showed that the legal system could work for them. For non-natives, it showed that their dominance of the fisheries and other resources was over and that “honoring the treaties” was a not just a hollow phrase. Nothing would be the same again. It also represents the only way forward if we are going to continue to build a coalition that can effectively restore the salmon runs. The Tribes have been the most effective partners in doing this work, as shown by the Jamestown, Elwa and Port Gamble S’Klallam peoples. We raise our hands in thanks for this day. We have little time left to save the runs, and the small incremental progress being made needs to accelerate.



On February 12, 1974, Federal Judge George Boldt (1903-1984) issues an historic ruling reaffirming the rights of Washington’s Indian tribes to fish in accustomed places. The “Boldt Decision” allocates 50 percent of the annual catch to treaty tribes, which enrages other fishermen. At the same time Judge Boldt denies landless tribes — among them the Samish, Snoqualmie, Steilacoom, and Duwamish — federal recognition and treaty rights. Western Washington tribes had been assured the right to fish at “usual and accustomed grounds and stations” by Federal treaties signed in 1854 and 1855, but during the next 50 years Euro-American immigrants — armed with larger boats, modern technology, and the regulatory muscle of the state — gradually displaced them. The campaign to reassert Native American fishing rights began in 1964 with “fish-ins” on the Puyallup River led by Robert Satiacum (1929-1991) and Billy Frank Jr. (1931-2014), who defied Washington state attempts to regulate their fishing. (History Link)

Federal Judge George Boldt issues historic ruling affirming Native American treaty fishing rights on February 12, 1974

Democrats urge investigation into removal of owl protections – KNKX

In badminton the thing you hit to the opponent is called the “shuttlecock”. In the game of “blame something for the destruction of Northwest virgin forests and the subsequent loss of the old fashioned timber industry” the shuttlecock has been the indicator species, the Spotted Owl. It’s again back in play this year.

The Trump administration took the side of the rural timber industry, who has blamed the Spotted Owl on their industry’s decline, despite huge amounts of evidence to the contrary (i.e. starting with no real limits on old growth logging for the last 100 years until it was too late, the advent of the chain saw and other high yield mechanical harvesting starting in the 1940s, and the real death knell, the decision of Congress in the 1970s to allow raw logs to be shipped to Japan), the industry continues to believe that if only we allowed this indicator species to die off, we could return to the heyday of one log trucks plying highway 101. That idea flies in the face of the reality that less than 1% of old growth forest in the Pacific NW still exists. So what is the fight about, really?

Eight Democratic lawmakers called Tuesday for an investigation into “potential scientific meddling” by the Trump administration in its rule to remove critical habitat protections for the imperiled northern spotted owl in the Pacific Northwest.

KNKX.ORG

Read the latest Spotted Owl badminton game overview and all it’s sordid details, here.

https://www.knkx.org/post/democrats-urge-investigation-removal-owl-protections

State Senator Van de Wege introduces bill to ban seabed mining.

This idea is a good start to protect the seabed from mining efforts and I’m glad to see Senator Van de Wege getting ahead of this issue before it becomes a problem.Too often in the past we have allowed bad environmental practices to go on until science shows us the error of our ways. This bill is working off the science done elsewhere so we don’t have to repeat the same mistakes.

It’s unclear at this point as to who will be opposing this bill. But it will be worth following to see who shows up to testify against it. It’s slated to go to a public committee meeting on 26 January.

Press Release from State Senator Van de Wege.


Dear friends and neighbors,

It’s great when we enact laws to correct or eliminate activities that are causing harm. What’s even better is when we can address a problem before it even becomes a problem.

That’s the goal of my legislation to ban seabed mining, a growing industry that ravages natural habitat to extract minerals and deposits from the ocean floor. Simply put, seabed mining sucks up the ocean floor to capture metals, minerals and gemstones. This gouges the seabed, creating plumes of sediment that resettle in surrounding areas and can smother deep sea vents. The threat to marine life is obvious — locally we could see serious disruption to crabbing, fishing and shellfish. But the risks extend as well to scientific progress — some of these species are uniquely adapted to the lack of sunlight and intense pressure of deep water, and might prove critical to the research and development of medicines, protective gear and other applications.

So far, seabed mining has not been practiced in our state — and Senate Bill 5145 will ensure that it never is. The legislation would prohibit our state Department of Natural Resources from issuing permits or leases for mining on state-owned aquatic lands along our coast from Cape Flattery south to our state’s southern border, as well as in Grays Harbor, Willapa Bay, and the Columbia River downstream from the Longview bridge. The bill will be heard Tuesday by the Senate Committee on Agriculture, Water, Natural Resources & Parks.

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