Court of Appeals Upholds SHB, Superior Court Decisions

The Washington State Court of Appeals, Division 1 decision affirmed the Shorelines Hearings Board (SHB) decision to deny the 5 acre geoduck aquaculture permit in Henderson Bay/Pierce County. The Court of Appeals stated:

1. “We conclude the SHB did not err in concluding the Coalition met its burden of proving the permit buffers did not adequately protect eelgrass from adverse impacts in violation of the SMA (Shoreline Management Act) and Pierce County SMP (Shoreline Master Program).”.. The Coalition relied on the FSEIS buffer to argue the buffers approved by the Hearing Examiner were inadequate. The FSEIS identifies the need for a “2-foot vertical buffer or a minimum of 180-foot horizontal buffer” between eelgrass and subtidal geoduck harvest areas to protect eelgrass.”

“The SHB found that while Meaders (industry expert) “is knowledgeable of the geoduck industry and science underlying aspects of industry practices,” she was not “a credible expert in all aspects of study related to the nearshore environment to which she claimed expertise.”

2. “Evidence presented at the hearing showed there are potential adverse impacts to critical habitat.”

3. “Because the consideration of a cumulative impact analysis prior to approval of the permit is consistent with the purpose of the SMA and clearly furthers the goal of the SMA to prevent “uncoordinated and piecemeal development,”the SHB did not err in concluding consideration should be given to preparing a cumulative impacts analysis.”

4. “De Tienne contends the SHB decision is not timely….. Because de Tienne stipulated to consolidation of the petition he filed on June 28, 2013 and there is no dispute the SHB extended the time period for good cause for an additional 30 days, the SHB complied with the time limits of the statute.”

Our Coalition members, who have been fighting to protect our Washington aquatic life, are relieved that the Court of Appeals recognized the record of harm of industrial aquaculture and the need to protect eelgrass, herring and critical habitat said Hendricks. We are thankful to Dan Penttila, Wayne Daley and Dr. Gary Ritchie, the scientists who testified and have spoken out about the adverse effects of shellfish aquaculture. Tahoma Audubon, Center for Food Safety and Jim Brennan have pointed out the harm as well. We are also grateful to Brad and Sandy Newell who were responsible for over $20,000 of the $60,000 of legal costs for this appeal. The Court of Appeals did award legal fees to the Coalition.

Read the full decision

Prior Decision by Thurston County Superior Court

Thurston County Superior Court Decision in Darrell de Tienne and Chelsea Farms, LLC v. Shoreline Hearings Board, Coalition to Protect Puget Sound Habitat and Paul and Betty Garrison, Pierce County

On April 3, 2015, Thurston County Superior Court Judge Carol Ann Murphy announced her decision regarding the appeal of the Shorelines Hearings Board (SHB) denial of the Shoreline Substantial Development permit for a five plus acre commercial geoduck farm in Henderson Bay on a site that included extensive eelgrass beds that had been earlier devastated by the illegal harvest of geoduck by the applicant, Darrell de Tienne, and his former harvest partner, Washington Shellfish.

Judge Murphy concluded that the SHB decision in January 2014 correctly interpreted and applied the relevant law and that its Findings of Fact were supported by substantial evidence. Judge Murphy’s decision means that, absent a further appeal to the Court of Appeals, the permit to operate the farm issued by Pierce County was revoked. The case and the Shoreline Hearings Board decision were noteworthy in several respects. The geoduck farm, had it been permitted, would have been the first subtidal farm in Pierce County. There has been a rapid expansion of commercial nearshore geoduck farms in recent years as the demand for the geoduck has exploded in Asian markets, particularly China, where the long necked clam is perceived by many as an “aphrodisiac.”

Laura Hendricks, Citizen Representative for the Coalition to Protect Puget Sound Habitat (Coalition), said her organization was especially pleased by Judge Murphy’s decision because it meant, for the first time, there would be a scientific examination and analysis of potential adverse environmental impacts associated with the proliferation of geoduck farms in south Puget Sound. “We’ve been advocating for a cumulative impacts analysis to be completed for some time now,” said Hendricks. “This is a major win.” “The commercial shellfish industry has been resisting calls for greater environmental scrutiny of their operations for years. Now, for the first time, the people who care about the environmental health of Puget Sound and the impacts of the tremendous expansion of the commercial shellfish industry in the Sound will have their concerns addressed.”

Judge Murphy’s ruling also upheld the Shoreline Hearings Board’s rejection of the 10 feet and 25 feet seaward eelgrass protection buffers contained in the Pierce County Permit for the farm. Eelgrass enhancement is one of the top three recovery goals established for Puget Sound, and protection and restoration of eelgrass in Puget Sound has been a longtime goal of the Puget Sound Partnership. The Coalition fought for seaward buffers for eelgrass protection of at least 100 feet and just recently found that the Canadian science paper that the shellfish industry presented to the SHB to try to justify smaller eelgrass buffers was rejected for publication by the Journal of Shellfish Research after the hearing.

The substantially reduced protection for eelgrass, which occurred after the formal Pierce County hearing concerning the farm’s permit had commenced, was deeply troubling to opponents of the farm, Brad and Sandra Newell, Coalition members and Henderson Bay residents. Said Brad, “That was a last minute backroom political deal, so we’re delighted the SHB decision rejecting the minimal buffer will remain in place. There was no scientific basis for such a reduction.” “It also is completely contrary to the suggested 180 foot waterward buffer for subtidal farms to protect submerged aquatic vegetation just adopted by the Pierce County Commission in its updated Shoreline Master Program last month,” added Thane Tienson, attorney for the Coalition.

The Coalition also opposed the planned farm, as it has many others, as they continue to point to scientific studies documenting harm from plastic pollution like the widespread aquaculture gear plastic pollution in Puget Sound waters. Shellfish farms use hundreds of thousands of plastic PVC tubes, HDPE netting, plastic bands and HDPE bags for their operations as scientists say the resulting plastic debris and plastic particles harm aquatic life. According to Charles Moore, the world renowned marine plastic debris expert who has testified for the Coalition, “at the present time, it does not appear possible to introduce any conventional plastic into the marine environment without harmful consequences.”