OLYMPIA — The Jamestown S’Klallam Tribe filed an appeal Friday against the state Department of Natural Resources’ decision to end finfish net pen aquaculture in state-owned waters, a move the tribe said violated tribal consultation rules and exceeded the department’s authority.
Filed in Thurston County Superior Court, Jamestown’s complaint alleges DNR’s executive order — announced by Public Lands Commissioner Hilary Franz at a Nov. 18, news conference — failed to provide the tribe with the required due process regarding impacts and tribal exemptions and is contrary to legislative action and a violation of the separation of powers.
“As a Tribe, we have always been conscientious stewards of our natural environment and look seven generations ahead in all that we do,” Jamestown S’Klallam Chairman/CEO W. Ron Allen said in a statement.
“Modern, well-regulated aquaculture is the environmentally responsible solution for producing seafood and exercising our Tribal treaty rights – now and into the future,” he continued.
The appeal asks the court to find the commissioner’s order does not have the full force of law and must be withdrawn or revised.
In an email, DNR spokesperson Joe Smilie said DNR officials spoke with Allen and the tribe prior to the Nov. 18 announcement and that during the upcoming rule-making process, DNR will have more detailed consultations with tribes and opportunities for public comment.
“Over the last three years, the commissioner and staff have had significant discussions with tribes throughout the Puget Sound on the future of net pens on state-owned aquatic lands,” Smilie said.
“Specifically, we have had over 25 government-to-government meetings with more than a dozen tribes to discuss the future of finfish net-pen aquaculture on state-owned lands over the past three years.”
In addition to meetings with the Jamestown S’Klallam Tribe, Smilie said DNR also consulted with representatives from the Lower Elwha Klallam Tribe, the Lummi Tribe, the Suquamish Tribe and the Swinomish Tribe. These discussions have been ongoing with tribes in Puget Sound since the collapse of Cooke’s net pens off Cypress Island in 2017, Smilie said, adding that Franz met with Allen personally in August.
“Our discussions with tribal leaders like Chairman Allen informed Commissioner Franz’s order prohibiting commercial net pen finfish aquaculture, particularly the clause at the end that clarifies that the order does not alter, amend, repeal, interpret or modify tribal sovereignty, treaty rights or other tribal rights or claims,” Smilie said.
In 2019, the Jamestown tribe signed an agreement with Cooke Aquaculture Pacific, LLC, to build an all-female steelhead trout farm in Port Angeles Harbor, but Franz’s order makes the feasibility of that project uncertain, Allen said.
Cooke filed its own appeal against Franz’s decision on Wednesday. The appeal made similar claims that the order exceeded the department’s authority and violated the company’s due process.
Franz has repeatedly cited the 2017 net failure on Cooke’s Cypress Island facilities which released thousands of non-native Atlantic salmon into Puget Sound. In statements defending the order, Franz was specifically critical of Cooke — based in New Brunswick, Canada — and in its appeal, the company alleges it’s the target of a politically-motivated attack.
In a statement Friday, Jamestown tribal officials said it was committed to environmentally responsible aquaculture and called Franz’s order “ill-informed and overreaching.”
Both Cooke and Jamestown officials cited a March 2022 report by the National Oceanic and Atmospheric Administration that found little to no impacts on native fish species from proposed net pen fish farming.
The two appeals also claim Franz’s order was the state executive branch violating the separation of powers in conflict with legislative authority.
“The Commissioner overstepped her authority by ordering the DNR leadership and staff to effectuate a total prohibition on commercial aquatic net pens, in conflict with legislative authority (House Bill 2957) and other applicable laws including, but not limited to, the Aquatic Lands Act, ch. 79.105 RCW, which specifically authorizes water-dependent uses, so long as they are permitted in accordance with applicable laws,” Jamestown’s appeal says.
That’s an interpretation with which Mike Chapman, a Democrat representing Washington’s 24th Legislative District, which includes the Olympic Peninsula, agrees.
Chapman was a cosponsor on HB 2957, the 2018 legislation passed in the wake of the Cypress Island net failure.
That bill banned the farming of nonnative species only, Chapman said, and specifically allowed for further net pen aquaculture.
“We specifically wanted to continue to support tribal and commercial fish farms,” Chapman said Friday.
“It was because of the tribes’ input and their work in the area that we felt like we don’t want to regulate an industry completely out of business.”
District 24’s other state lawmakers, Rep. Steve Tharinger and Sen. Kevin Van De Wege, said they were not specifically familiar with the language of the appeal and declined to comment but said a meeting with Jamestown representatives would take place before the start of the next legislative session.
All three of District 24’s lawmakers voted for HB 2957.
“The departments of Ecology, Agriculture, and Fish and Wildlife, as well as the Department of Natural Resources, shall continue the existing effort to update guidance and informational resources to industry and governments for planning and permitting commercial marine net pen aquaculture,” the bill said.
However, the bill also noted that section expired on June 30, 2020.
________
Reporter Peter Segall can be reached at peter.segall@peninsuladailynews.com.
