Divergent outcomes for Cooke, Jamestown S’Klallam lawsuits against Washington DNR

Published on
September 22, 2023
Washington DNR Commissioner Hilary Franz

Separate lawsuits filed by Cooke Aquaculture and the Jamestown S’Klallam Tribe challenging the U.S. state of Washington’s November 2022 refusal of farming permits and decision to ban net-pen finfish aquaculture have met divergent fates.

The Cooke suit, filed 14 December, 2022, was in large part gutted by a May 2023 ruling from Washington Superior Court Judge Indu Thomas issuing a summary judgment against most of its claims. Cooke was requesting the reimplementation of its net-pen steelhead farming permits for its Rich Passage and Hope Island farms and the restoration of its hatchery grow-out permit, arguing the Washington Department of Natural Resources and its commissioner, Hilary Franz, had acted in an “arbitrary and capricious manner” contrary to scientifically backed best practices, and that Franz had taken “politically motivated actions” to "bury" Cooke.

Thomas ruled on 12 May that most of Cooke’s claims lacked merit.

“The lease agreements terminated following the end of their 15-year term, at which time the tenancies became month-to-month. Per the explicit terms of the agreements, the month-to-month tenancies could be terminated by DNR upon 30 days' notice, after which Cooke was required to surrender the leased aquatic lands,” Thomas wrote. “The leases did not grant Cooke any right to renewal or reauthorization beyond the 15-year term. DNR acted in accordance with the terms of the lease agreements. Cooke's claim would require imposition of new terms and obligations on DNR in contradiction to the express terms of the lease agreements. Therefore, Cooke's breach of duty of good faith and fair dealing claim fails as a matter of law.”

The case remains active, with Cooke’s demand that the DNR and Franz certify a transcript all correspondence and records related to the lease application and its denial so Thomas can determine whether DNR's denial of the lease applications was valid or whether it had basis to deny the applications.

In 2021, the Jamestown S’Klallam Tribe formed the Salish Fish joint venture with Cooke to develop a net-pen farm to raise native steelhead in Puget Sound, also known as the Salish Sea. It sued after that project became untenable following the DNR’s issuance of the ban. The tribe’s lawsuit has yet to be ruled on, and in an interview with SeafoodSource, Jamestown S’Klallam Tribal Chairman and CEO W. Ron Allen expressed confidence in the chances of the suit's success. He said DNR’s decision impinged upon his tribe’s sovereign right of self-governance and self-reliance, and that Franz’s actions were political in nature.

“Clearly, this was an overreach for her powers,” Allen said. “She clearly didn't have the power or the authority to ban all aquaculture operations in the Salish Sea.”

The tribe and DNR have filed competing motions for summary judgment that will be heard by Judge Thomas, who is overseeing both cases, on 29 September, with a judgment to be issued 13 October.

The tribe argues DNR acted politically rather than with scientific backing in its issuance of its net-pen farming ban, and that Franz’s November 2022 executive order doing so exceeded her legal authority.

The DNR argues the tribe lacks standing as it has not suffered substantial harm, and that it did not follow proper DNR procedure for appealing the decision before filing suit. The DNR also argues it was within its rights to ban net-pen finfish farming via its discretionary authority to manage state-owned aquatic areas. The Northwest Aquaculture Alliance, an aquaculture industry group, is also a plaintiff in the suit.

“DNR [has the] the power to create lease terms and conditions for leases, but not the power to explicitly ban all types of a certain kind of lease or all types of an otherwise legal activity,” its suit alleges.

Allen said Washington’s legislature voted in 2018 to continue to allow the farming of native species in state waters.

“[Franz] clearly didn't have the power or the authority to ban all aquaculture operations in the Salish Sea. DNR’s only job is to be a landlord. They don't get to decide what is an appropriate use. They don't get to decide anything other than the lease itself,” Allen said. “The other issue is that [Franz] did not consult with tribes in this … She didn't talk to any of the tribes that are engaged in aquaculture and there are multiple – it's not just the Jamestown. She had an obligation by law to consult with us other tribes and go through a rulemaking process [where] the public could give input and the companies that would be impacted could give testimony and input and she failed to do any of that.”

Allen said Franz’s actions have been in furtherance of her ... 

Photo courtesy of Hilary Franz for Governor

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