Judge Schaller - cannot consider the Hearing Examiner's decision
In the court's decision, Judge Schaller ruled she could not consider the Thurston County Hearing Examiner's decision to require additional studies on dissolved oxygen and benthic impacts before permit approval, only whether the Shoreline Hearings Board's (SHB) agreement with the scientific conclusions which Taylor Shellfish's contract scientists reached were valid. She deferred to the SHB decision which had reversed the county Hearing Examiner's denial of that permit based on a lack of information.
SHB condition requiring additional monitoring remanded to the SHB
In addition, Judge Schaller also ruled on Taylor Shellfish's opposition to the SHB condition that monitoring be required. That condition required Thurston County (not Taylor Shellfish) to create a monitoring plan to determine whether the project's anticipated impact on dissolved oxygen and the benthic community were more adverse than Taylor's contract scientists determined they would be.
Taylor opposed to County's development of a monitoring plan
Initially, in response to the SHB requirement for monitoring, a plan was created by Taylor Shellfish's contract scientist and submitted to the SHB for consideration. That plan was based largely on how salmon net pens were monitored. The SHB denied consideration of that plan saying it was the responsibility of the County. Taylor then decided to withdraw that monitoring plan and appeal the condition in its entirety.
"Preferred use" is not an open door to any method of any size
As with other permits, Taylor Shellfish and the industry continue to stand behind the 1971 Shoreline Management Act's statement that aquaculture was a preferred use of Puget Sound waters and shorelines. In the 40 years following the passage of that act the shellfish industry has evolved beyond anything anticipated then. Methods using plastic growout bags and PVC pipes have fragmented the habitat of the intertidal areas. Mussel rafts grow hybrid species of mussel below a 30X38 foot surface area more shellfish than an acre of tidelands, a density found nowhere in the natural environment.
A scale is out of balance
This recent decision, the result of well paid attorneys and contract scientists, has further tipped a scale towards the industrial commercialization of an ecosystem unique to Puget Sound and Willapa Bay. It is what the Shoreline Management Act was intended to prevent and what APHETI and its many supporters have been trying to put back into balance.
Association for the Protection of Hammersley, Eld, & Totten Inlets
-APHETI-
PO Box 11523, Olympia WA 98508-1523
(360) 866-8245 www.apheti.com
April 2, 2014
Re: Superior Court Decision
Greetings APHETI Members and Supporters -
On Friday, March 28, 2014, Superior Court Judge Christine Schaller heard the joint APHETI / Thurston Co. appeal to rescind the decision of State Shoreline Hearing Board (SHB) overturning Thurston County's denial of Taylor's permit application for expanded mussel raft aquaculture in Totten Inlet. Judge Schaller issued her ruling directly from the bench. It was not in favor of the APHETI / Thurston County position.
This is very disappointing to all who care deeply about the preservation of the South Sound Inlets. APHETI members have understood from the beginning this would be an uphill fight against tremendous odds. Regardless, you continued for the past 18 years to do all that could be done within the scope of resources that have come only from your generous individual donations. After the Superior Court proceedings were concluded, an APHETI member summarized her long experience by saying, “I have no regrets, just pride in having done what I know to be right!”
The following is APHETI attorney David Mann's summary of Judge Schaller's ruling:
Judge Schaller's ruling was extremely deferential to the SHB’s legal position – declaring it was a specialized hearings board with far greater experience and expertise than herself. She expressly confirmed her ruling pertained only to the SHB's decision and not Hearing Examiner Bjorgen’s ruling on Taylor's Environmental Impact Statement (EIS). In other words, because the SHB accepted the expert EIS author's conclusion (as substantial evidence) that there would be no significant impacts - that conclusion prevailed and could not be challenged on appeal. Thus her basis for ruling to uphold the SHB’s decision reversing the Thurston County's denial of Taylor permit application.
In response to Taylor's opposition to the rigorous environmental monitoring plan mandated in the SHB decision, Judge Schaller remanded the monitoring issue back to the SHB to allow Thurston Co. and Taylor to provide additional evidence in support of or in opposition to the SHB’s monitoring condition.
Next Steps: Taylor can not start anything even with a permit from Thurston Co. until the SHB monitoring issue is resolved and also gaining additional permits from various State and Federal Agencies. The APHETI Board requests your input regarding APHETI's potential involvement in these challenges – especially as to the availability of the scientific and financial resources that will be required to move forward. Please e-mail your comments to APHETI at: apheti@gmail.com or send via US Mail to PO Box 11523, Olympia WA 98508-1523.
Best Regards! -
APHETI Board of Directors.
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