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Public Oral Argument in Industry Appeal of Federal Court Nullification of Unlawful Shellfish Aquaculture Permit in Washington

February 01, 2021
Center for Food Safety

(Seattle, WA) -- Tomorrow, on February 2nd, the U.S. Ninth Circuit Court of Appeals will be hearing arguments in Center for Food Safety's (CFS) ongoing lawsuit challenging the Clean Water Act general permit used to authorize the vast majority of shellfish aquaculture in Washington state.

In October 2019, the Federal District Court for the Western District of Washington ruled in CFS's favor, finding the permit unlawful. In June 2020, the court vacated the permit. Industry groups appealed the decision and briefing was completed in fall 2020.

WHAT: Public Oral Argument in Industry Appeal of Court Decision Overturning Army Corps Permit for Commercial Shellfish Aquaculture in Washington

WHEN: Tuesday, February 2, 2021 at 9:00 AM Pacific

WHERE: Ninth Circuit Court of Appeals Virtual Courtroom >>


CFS and Coalition to Protect Puget Sound (CPPSH) originally filed the lawsuit challenging the U.S. Army Corps' issuance of Nationwide Permit 48 (NWP 48) for commercial shellfish aquaculture in 2017. CPPSH had also previously challenged NWP 2012. In June 2020, a district court sided with CFS and CPPSH, nullifying the defective Corps' general permit and making the vast majority of shellfish aquaculture activities in Washington illegal.

The court found that NWP 48 was unlawful due to the agency's failure to adequately consider the impacts, including cumulative, of commercial shellfish aquaculture to Washington shorelines and wildlife habitat when it issued the permit. However, the court also chose—at CFS/CPPSH's suggestion—to partially stay its Order invalidating the permit to allow the industry to plant through the 2020 season (with restrictions regarding eelgrass), to harvest through March 2022, and, most importantly, to allow Tribal Treaty activities.

The appeal has been pursued by industry trade group PCSGA and Taylor Shellfish. The Corps is not appealing the Judge's decision. The industry appellants claim the district court's analysis of the Corps' errors is faulty and that the court should have allowed full aquaculture activities to continue under the defective permit. Siding with CFS and CPPSH, in July 2020 the Ninth Circuit Court of Appeals denied the industry's motion to stay the decision nullifying NWP 48 pending appeal. Meanwhile, the Corps has already re-issued NWP 48, along with 15 other NWPs.

Coalition to Protect Puget Sound Habitat is represented by Karl G. Anuta (Law Office of Karl Anuta), Thane Tienson (Lanye Bennet Blumstein, LLP), and Mike J. Sargetakis (Oxbow Law Group).


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