Taylor takes case to federal court

Suit seeks substitute tidelands if property deemed unsuitable

By John Dodge | The Olympian • Published March 05, 2009

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Taylor Shellfish upped the ante in its legal fight with the state Department of Natural Resources on Wednesday, asking a federal court to weigh in on the dispute over about 26 acres of tidelands in Totten Inlet.

A lawsuit filed in U.S. District Court in Tacoma by the Mason County-based shellfish company asks the court to require the state to provide the company with replacement tidelands, if the disputed property isn't suitable for raising shellfish.

The federal lawsuit filed Wednesday could be precedent-setting for the commercial shellfish industry in this state. Here's why:

In 1971, the state Legislature passed a law outlawing the sale of state-owned tidelands, more than a year after Taylor purchased tidelands in Totten Inlet from a private party. The state is claiming that some of those tidelands belong to the state and that Taylor has been trespassing on them for years.

The deed from the Taylor purchase contains a clause that requires the state to provide substitute tidelands if some of the lands aren't suitable for growing shellfish, which is the case in the latest state survey of the property.

In 1981, the state attorney general ruled that the state can't substitute other tidelands for oyster cultivation. Taylor is challenging that legal opinion in the federal lawsuit.

"If we prevail, there will be shellfish growers with polluted tidelands, lining up at DNR's door for substitute property," company spokesman Bill Dewey said.

The first lawsuit filed in Thurston County Superior Court Feb. 23 seeks to prove that the company, not the state, owns the disputed property.

The lawsuits come on the heels of a decision by state Lands Commissioner Peter Goldmark not to honor a settlement agreement reached between Taylor Shellfish and former Lands Commissioner Doug Sutherland the day before Sutherland left office Jan. 13.

With the settlement off the table, Taylor Shellfish is prepared to argue that it is the rightful owner of the property and has not been trespassing on state tidelands for nearly 40 years, Dewey said.

Goldmark sent company president Bill Taylor a letter Feb. 26, asking the company to stay any legal action for six months while the two sides renegotiate.

Responding March 2, Taylor rejected Goldmark's request, saying the company has suffered significant monetary and crop loss because it hasn't been able to harvest or plant geoducks and oysters there for the past nine months.

That doesn't mean the company isn't willing to return to the table to negotiate with DNR, Dewey said.

John Dodge covers the environment and energy for The Olympian. He can be reached at 360-754-5444 or jdodge@theolympian.com.