By Chris Fitzgerald, KP News

Both the aquaculture industry and private tidelands owners they represent, as well as a coalition of environmental organizations opposed to current geoduck farming practices, packed a hearing room at Pierce County Planning and Land Services in early November. They were there to hear the polite and pointed legal battle among five attorneys representing four interests: Pierce County, Taylor Resources, Inc., North Bay Partners, and a five-organization environmental coalition. The hearing was convened to address two key issues concerning Foss Farm, a private tideland farm adjacent to Joemma Beach State Park. The hearing examiner’s ultimate decision will affect not only this farm, but potentially all others now operating under the same permit system countywide.

The hearing room on the Foss Farm case is packed with people representing various interest groups in November. Photo by Chris Fitzgerald

Two days of testimony failed to be enough time to conclude the witness lineup the five clients’ counsel had crafted to influence Pierce County Hearing Examiner Terry McCarthy, who continued the venue to January.

The Pierce County staff report prepared by Ty Booth, senior planner, shows the two issues are that Taylor Shellfish believes the permit should operate into perpetuity, and that, since the company does not concede the apparatus of aquaculture farming constitutes “structures,” no permit is necessary. According to the report, Pierce County disagreed with Taylor, and so notified Taylor through an Aug. 8 administrative determination. Citing a section of the Pierce County Shoreline Management Use Regulations, Booth writes, “Substantial Development permit shall be obtained for any development or use consisting of the construction or exterior alteration of structures… removal of any sand, gravel, or mineral… placing of obstructions, or any project of a permanent or temporary nature which interferes with the normal public use of the surface waters overlying lands subject to the SMA (Shoreline Management Act) at any state of water level…”

Booth testified at the hearing that he was “the face of Pierce County” to the shellfish industry. He recalled that in 2000, he shared his personal opinion with Diane Cooper, Taylor’s representative, saying, “I believe geoduck should be allowed to operate into perpetuity, if the farm is an established farm in the six-year (permit time) period.” When asked by an attorney why he said this while representing the county, he replied he wanted a “free-flow of information.” Later in his testimony, he conceded his was a minority opinion in the planning department. A statement in his staff report reads, “PALS (Planning and Land Services) has a history of pursuing unpermitted geoduck activities in Pierce County… If the appellant (Taylor) knows of others, they should file a complaint with Pierce County Code Enforcement.”  Jill Guernsey, Pierce County counsel, concluded county testimony by saying, “We are requesting the hearing examiner uphold our decision (of) July 2007.”

Cooper testified that her employer’s goal was to “work with agencies to find solutions to complicated problems.” She was instrumental in the Foss lease, and said, “(The application was) not so much about getting a permit, but going through a process (to develop relationships with county agencies)… For anything other than geoduck, we would not have applied.”

Foss Farm history

When Taylor Shellfish Farms originally applied for this first Pierce County geoduck farm in 2000, the company had successfully negotiated the site on a mile-long stretch of beach that has come to be known as the Foss Farm. The parcel is zoned “Conservancy and Natural Shoreline Environments and Rural 10.” The 120-plus acre high-bank property has been owned for multiple generations by families of the founder of Foss Tug, and is vested in a trust under the name of North Bay Partners. Upon the granting of a Shoreline Substantial Development Permit (SSDP) and Department of Ecology review shortly thereafter, Taylor’s geoduck operation commenced on the new lease.

Fast forward to early 2007, prior to which time at least one harvest on the private tideland farm had occurred. Beachfront residents residing a few lots from the site filed a complaint with PALS, arguing, according to the staff report, “that the permit had expired and that approved activity was creating a variety of adverse impacts.” In May, the county sent an email to Taylor stating, “…The activity may be operating outside the allowable timelines… and may need to cease operations and/or obtain new approval.”

According to the neighbors, in the first days of July, Taylor began a full-crew flurry of tube-placement activity on the site. A revocation of the permit on behalf of neighboring property owners and citizen groups was filed by their attorney, David Bricklin, on July 9. A month later, the county issued the determination stating, “Taylor was properly required to obtain the SSDP in 2000, the permit has now expired, and a new permit is required to continue the activity.” Subsequent to that issuance, and Taylor’s filing of appeal of the decision, Bricklin’s hearing request was withdrawn.

In response to a question at the November hearing regarding the current value of the in-ground “crop” at the Foss Farm, Taylor farm manager Brian Phipps said “approximately $6 million.” When asked why crews returned in July to pull hundreds of planting tubes that had just been placed on the site, Phipps appeared to be unaware of any company rush to beat the county clock. “We didn’t have enough seed to plant,” he said.

When the hearing reconvenes in January, Bricklin will continue with opposition testimony; Pierce County, Taylor Shellfish, and North Bay Partners witnesses have previously testified. McCarthy anticipates his findings will be forthcoming sometime in late February, unless unforeseen events delay that process.