Court of Appeals Upholds Denial of Permit for Chelsea/Detienne Geoduck Farm

"Permitted shoreline uses must be 

designed and conducted in a manner 

that minimizes 

damage to the ecology, 

damage to the environment, 

and interference with the public's use of Washington's water"

Court of Appeals Decision Affirming Shorelines Hearings Board

Decision to Deny a Permit for a Geoduck Operation

[read decision here]

Date: November 14, 2016

Contact: Coalition To Protect Puget Sound Habitat

Laura Hendricks, Director

(253) 509-4987

Thane Tienson, Attorney for Superior Court and Court of Appeals

(503) 810-8303

The Washington State Court of Appeals, Division 1 attached decision affirmed both the Superior Court and Shorelines Hearings Board (SHB) decisions 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 and Center for Food Safety have pointed out the harm as well. We are also grateful to Brad and Sandy Newell who were responsible for over $20,000 of legal bills for this appeal. The Court of Appeals did award legal fees to the Coalition.

For more information on the Coalition To Protect Puget Sound Habitat, please see our website:

http://coalitiontoprotectpugetsoundhabitat.org/

DNR Tideland Leasing - Who is managing who? Part 2: DNR negotiates geoduck tideland leases with an inactive/administratively dissolved LLC.

Kent Kingman, owner of Minterbrook Oyster

and the administratively dissolved (2012)

Case Cove LLC

Case Cove LLC, "inactive" since October 1, 2012 

"Administratively dissolved

for failure to file an annual report."

Secretary of State

Kent Kingman's 'Case Cove LLC' - "Inactive" since October 1, 2012, and administratively dissolved. But good enough for DNR to negotiate terms and new contracts with for geoduck tideland leases beginning in 2013.

DNR documents released (files are large) reveal how convenient the various players in the geoduck industry make it for each other, and how convenient the state's Department of Natural Resources makes things, including negotiations with Kent Kingman's non-existent LLC. In the requests for proposals, rights to a DNR parcel in front of Kent Kingman's unpermitted shellfish operation were won by Brian Allen in 2006. Mr Allen's offered 12% and a price per acre  of $1,250/acre/year. Mr Allen agreed to give up his winning proposal ("for a piece") and DNR, beginning in December 2013, started re-negotiating with Mr Kingman's non-existent LLC, ending up agreeing to terms lower than originally offered by Mr Allen. (See the Washington State's Secretary of State website  showing Mr Kingman's Case Cove LLC being inactive since October of 2012).

Brian Allen's 2006 winning proposal -

12% and $1,250/acre.

Terms from DNR offered 12/5/2013 

to Mr Kingman's "inactive" Case Cove LLC

"...and the base rent is offered at $1,000/acre/year..."

(20% lower - and Mr Kingman still complains  - 

see the end of this post)

Mr Kingman's "Inactive" Case Cove LLC,

represented as still active.

(received at DNR 12/20/2013)

Secretary of State? It's inactive and dissolved.

Mr Kingman's Inactive on Resolving

Shoreline Violations As Well 

Kent Kingman's unpermitted shellfish farm, 

bulkhead, deck, remodeled cabin, retaining wall, etc.

\

Inactive on violations

December 2013: Settlement agreement signed.

June 2015: Not resolved.

Perhaps too busy working on a permit 

for his "oyster bar" in Purdy to get around to it?

I'll hold the lease but Taylor Shellfish will do the permitting

In notes released to the public from DNR, in a conversation with Mr Kingman about what the relationship of his "inactive" Case Cove LLC is with Taylor Shellfish, it was written:

1-14-15 BHL- I spoke to Kent today and found out that he will be the leaseholder, and Taylor will do the permitting at this point but he is paying for that service. (DNR Notes related to the now inactive Case Cove LLC)

 - or not.
But in a letter to Pierce County dated June 10, 2015, Taylor Shellfish states it is now withdrawing its permitting efforts for geoduck farming on the Kingman parcels, adjacent to those those the "inactive" Case Cove LLC is in negotiations with DNR about. The letter from Taylor Shellfish states it would be best to get his unpermitted farm "...in good order." Good idea in 2013 and still a good idea in 2015.

Subtidal Management by DNR?

Seattle Shellfish Tidelands

Leased from Mason County

(outlined in red)

(from DNR)

Current geoduck "seed" being planted

by Seattle Shellfish

Meanwhile, subtidally, wild populations are stripped from DNR "managed" tidelands and not replanted
While DNR negotiates with non-existent LLC's whose "permitting partners" are no longer permitting geoduck farming on the "owner's" tidelands, it has been reported Chelsea Sea Farms and the Detiennes are appealing their permit denial, affirmed by the courts, for their subtidal farm. In addition, Seattle Shellfish reports to the Corps they will be planting with divers. DNR? Well, that's something they apparently can't do. Instead, the few public tidelands still available are being leased to geoduck farmers. And LLC's who do not exist and whose owner complains about their previously offered terms now being too high.

Kent Kingman: "Expressed the % wholesale state royalty

should be re-evaluated..." How about thrown out?

(click to enlarge)

Get involved - Commissioner Goldmark's email: CPL@dnr.wa.gov

Tell Peter Goldmark he was not elected - twice - as the Commissioner for Public Lands to allow the aquatics division to continue as it was before he was elected. It's time for DNR to first manage their subtidal tidelands like their forest lands and require replanting, then open more intertidal tidleands to the public.