April 1, 2020
At press time, the Washington State Department of Natural Resources (DNR) had won a victory in Thurston County Superior Court against New Brunswick, Canada-based Cooke Aquaculture. The victory is the rejection, by Judge Carol Murphy, of Cooke Aquaculture’s challenge to the DNR’s termination of Cooke’s Port Angeles, Washington net pen lease. The ruling found that the DNR’s termination was supported in the record and was not arbitrary or capricious (emphasis ours).
The case was a technical matter regarding the termination by the DNR of a Cooke net pen lease in Port Angeles in December of 2017.
In its determination to terminate the lease, DNR had found that “…Cooke’s net pens in Port Angeles [were] operating in an unauthorized area. The department further found that Cooke [had] failed to maintain the facility in a safe condition and had failed to replace unencapsulated flotation material in order to prevent Styrofoam from disintegrating into the water.”
These two findings were judged to be enough to terminate the lease.
Cooke took DNR to court, claiming that the cancellation fell under the “arbitrary and capricious” standard because, four months earlier, another Cooke facility had suffered a spectacular failure of its containment system, releasing more than 250,000 farmed Atlantic salmon into the fragile ecosystem near Cypress Island in Skagit County, Washington.
The incident cast a shadow over Cooke, but also served to embarrass the state agency ostensibly tasked with ensuring that these types of things don’t happen.
Cooke’s lawyers apparently believed the termination of the company’s Port Angeles lease was predicated upon the Cypress Island collapse and not the issues facing the Port Angeles property.
Regarding the Cypress Island collapse, investigations have determined that the pens were the subject of severe biofouling that had produced 110 tons of material – an average of 11 tons per net. No wonder they collapsed.
DNR also terminated that lease, and Cooke’s appeal of that termination is still pending in the superior court.
In August and September of 2017 we didn’t spare any ink taking Cooke Aquaculture to task for the environmental disaster of the Cypress Island net pen collapse, followed by weeks of coverup, obfuscation and misreporting by the Canadian company. We were also very clear on the lack of communication, planning and coherent response by the Washington State Department of Natural Resources.
Was the DNRs subsequent lease termination in Port Angeles arbitrary and capricious? Judge Murphy says it wasn’t. Cooke has 30 days to appeal that ruling.
Having read the lease terms, and the violations that led to the termination, it’s clear that Cooke violated the lease. The violations themselves, however – essentially technicalities – don’t rise to the level of gross negligence exhibited at the Cypress Island facility. We’re inclined to believe that, had the Cypress Island failure not happened, both leases would have been renewed without any DNR staff having visited to confirm that the stipulations of the leases was still being observed.
Cooke has filed additional lawsuits, still pending in the superior court, related to both the Cypress Island and Port Angeles lease terminations, seeking damages for alleged breach of contract and due process violations.
Cooke’s lawyers have to earn their keep, we suppose, but we don’t see these suits going anywhere. The lease terms are fairly precise, and the failure of the pens and subsequent sudden and massive discharge of a quarter of a million invasive Atlantic salmon is a pretty clear violation of the lease.
There are sad lessons to be learned from any maritime disaster. Following the Cypress Island fiasco, a responsible company would have made sure the rest of its facilities were operating to standard.
The fact that four months later a nearby facility with the same landlord hadn’t been brought into compliance is appalling. That it took the State of Washington Department of Natural Resources four months to discover the violations in Port Angeles after the Cypress Island collapse is inexcusable.
Cooke deserved to have its lease terminated. What does the Washington State Department of Natural Resources deserve?
Chris Philips can be reached at: 206-284-8285 or email: email@example.com