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

Posted December 21, 2021 at 9:42 am by

Cooke Aquaculture's Port Angeles Net Pen facility - Contributed photo

The fol­low­ing sto­ry comes to you from Wild Fish Con­ser­van­cy

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 net pen 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 of Wild Fish Con­ser­van­cy. “I applaud the Courts for putting our nat­ur­al resources and the inter­est of the pub­lic ahead of this pow­er­ful cor­po­rate interest.”

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

Tak­ing Back Our Sound is a pub­lic grass­roots cam­paign launched by Wild Fish Con­ser­van­cy in July 2020 to engage the pub­lic in a move­ment to take back our waters from the com­mer­cial open water net pen indus­try. oursound-oursalmon.org/taking-back-our-sound

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2 comments...

  1. Jus­tice for the whales is at hand. Now we need to open up the water­ways to their breed­ing grounds.

    Comment by TODD A EKSTROM on December 21, 2021 at 11:22 am
  2. Sur­round them with a thou­sand kayaks.

    Comment by Norris Palmer on December 22, 2021 at 9:48 am

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