A Cooke Aquaculture Pacific fish farm in Puget Sound. Cooke's staff in Washington State, some of whom had been fish farming for decades, lost their jobs after Hilary Franz's ban.

Aquaculture group seeks judicial review of Washington State fish farm ban

Department of Natural Resources conducted 'a predetermined and inadequate rulemaking process that ignored the best available science', claims NWAA

Gareth Moore editor
Published

Aquaculture advocacy group the Northwest Aquaculture Alliance (NWAA) has applied for a judicial review of what it says is an unlawful ban on commercial net pens in the state waters of Washington State in the Pacific Northwest of the United States.

NWAA president Jim Parsons said the state’s Department of Natural Resources (DNR), led by its then-Public Lands Commissioner Hilary Franz, “conducted a predetermined and inadequate rulemaking process that ignored the best available science and ignored the intent of the State Legislature when it set forth a new law allowing for the production of native species in commercial net pens”.

The lawsuit alleges that in its predetermined rulemaking process, resulting in the banning of commercial finfish net pen aquaculture in state waters, “DNR failed to satisfy Administrative Procedure Act (APA) procedures; stepped beyond its statutory authority; promulgated arbitrary and capricious rules; and violated State Environmental Policy Act (SEPA) requirements”.

The road to Washington's fish farms ban

Net-pen farming of non-native fish – which has in practice meant Atlantic salmon – has been banned in Washington since 2018, following an escape of upwards of 150,000 salmon (the number in contested by Cooke) after the collapse of a farm owned by Cooke Aquaculture Pacific in 2017.

Cooke pivoted to farming native steelhead salmon (seagoing rainbow trout) but was thwarted by the state’s public lands commissioner Hilary Franz. In 2022, she refused to renew leases for Cooke's farms in Puget Sound, and a few days later she signed an executive order prohibiting commercial finfish net pen aquaculture on state-owned aquatic lands managed by her agency, the Washington State Department of Natural Resources (DNR).

In 2023, a court ruled that Franz’s 2022 ban does not make the practice illegal, but January’s decision by the Board of Natural Resources was a victory for Franz.

Despite NOAA studies concluding that there was no harm to Endangered Species Act (ESA)-listed salmonids from the operations of fish farms in Washington State, Franz told the Board that “there is no debate that there are impacts” from net-pen aquaculture, according to a report in the Seattle Times.

Washington State’s Board of Natural Resources agreed to formalise the ban on January 7 this year, in a vote hurried through before Franz’s tenure as lands commissioner finished at the end of January.

Own science

Parsons said NWAA members had hoped that the board - some of whom agreed that the vote left them little time to review the scientific documents submitted in the matter - would have had more time to consider the nearly 500 pages of scientific information NWAA, agencies, and scientists had submitted into the record.

He noted that DNR relied, and admitted to doing so, on its own science rather than the science that other respected agencies such as the US government’s National Oceanic and Atmospheric Administration (NOAA) and the Washington Department of Fish and Wildlife had submitted into the record.

“This ban was rushed through,” said Parsons, a former general manager of salmonid farmer Cooke Aquaculture Pacific, the company most affected by the ban. He added that “NWAA hopes that a more thorough judicial review of the rule will result in a decision to invalidate the rule banning commercial net pens so we can return to what we have been doing in this state for more than 40 years: growing nutritious, high-quality fish that consumers can afford”.

Second challenge

NWAA’s members include leaders in the production of fin fish and shellfish in freshwater and marine environments as well as support businesses in Hawaii, Oregon, Idaho, Washington, and Alaska. Representing NWAA in its litigation is the Pacific Northwest firm, Northwest Resource Law PLLC.

The NWAA initially challenged the ban on commercial net pens when it was declared by Franz in November 2022, but Thurston County Superior Court dismissed the case following DNR’s representation that Franz’s order had no effect and was not a predetermined decision of forthcoming rulemaking.

“The Alliance now comes before the Court with DNR’s predetermined rulemaking process complete and the matter ripe for challenge,” the NWAA states in its petition for a judicial review.

The full petition can be read here.

washington state cooke aquaculture pacific aquaculture net pen ban judicial review news northwest aquaculture alliance