Washington State’s Commercial Net Pen Ban ‘Has No Legal Effect,’ Court Rules

Washington Department of Natural Resources’ so-called “net pen ban,” which last November effectively banded commercial net-pen fish farming is not legally binding, a Superior Court judge has ruled.

During an Oct. 20, Summary Judgment Hearing regarding a Jamestown S’Klallam Tribe-Northwest Aquaculture Alliance’s (NWAA) complaint against the state Department of Natural Resources (DNR), Thurston County Superior Court Judge Indu Thomas ruled that DNR’s ban on net pens is only an internal directive to begin the rulemaking process regarding commercial net pens in state aquatic lands.

This decision essentially declares that the “ban” on commercial net pens that Public Lands Commissioner Hilary Franz touted last November has no legal effect in Washington.

Franz’s announcement had made it clear that net-pen fish farming would not be permitted by Washington’s DNR on state-owned aquatic lands, effectively closing down the industry permanently.

The order had aligned Washington’s net pen salmon aquaculture policy with policies already in place in Alaska, California and Oregon.

“Commercial finfish farming is detrimental to salmon, orcas and marine habitat,” Franz said at the time. “I’m proud to stand with the rest of the West Coast today by saying our waters are far too important to risk for fish farming profits.”

In response to the judge’s ruling, NWAA issued a statement calling Franz’s previous statement inflammatory and expressing gratitude for the court’s ruling.

“We got confirmation from Thurston County Superior Court that fish farming in commercial net pens is not illegal in Washington, contrary to the inflammatory public statements made by the Commissioner of Public Lands during her November 18, 2022, press conference, where she announced that ‘Washington’s public aquatic lands will no longer be home to commercial finfish net pen aquaculture,’” NWAA Executive Director Jeanne McKnight said in the statement.

“When NWAA intervened in the Jamestown S’Klallam complaint, we had hoped the Court would find that Commissioner Franz overstepped her authority in banning commercial net pens in state-owned aquatic lands,” McKnight continued. “Instead, we got the next best thing: clarification that what looked to the entire aquaculture sector as a de-facto ban on commercial net pens in Washington is not a ban at all—just hyperbole on the part of a politically motivated agency head who is now running to be the next Washington governor.”

Franz, who announced her campaign for governor this past May, has been the Commissioner of Public Lands since January, 2017.

She previously served on the Bainbridge Island City Council, Puget Sound Transportation Futures Task Force and other panels before becoming commissioner. She was also the executive director of Futurewise, an environmental advocacy group.

McKnight said that while her organization was grateful for the clarification by the Superior Court, “the fact remains that the public statements by Commissioner Franz had a chilling effect on the entire aquaculture sector,” and that this was caused by a “climate of uncertainty from DNR’s public condemnation of one of the world’s most sustainable methods of food production.”

In joining the Jamestown S’Klallam Tribe’s lawsuit against DNR, NWAA sought to resolve the uncertainty in Washington regarding marine aquaculture, McKnight said.

“Now that we can confirm that marine fish farming is still legal in Washington state,” she said, “we will continue to advocate for the development of responsible, sustainable aquaculture in the Pacific Region.”

The NWAA advocates for the sustainable production of aquatic foods and represents aquaculture producers and support-related businesses in Washington, Oregon, Idaho, Alaska, Hawaii and British Columbia.