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Bob Bagley, a former Republican assemblyman who authored the 1965 legislation ceding state tidelands and water bottoms to Point Reyes National Seashore said he retained in the bill the “absolute right to fish” which he says includes oysters. Fishing rights are part of the public trust embedded in the California Constitution.

Bagley, a former Woodacre fireman said when an Inverness resident and oyster farm supporter alerted him last month of the oyster debate he immediately asked the Bancroft Library at UC Berkeley to dig into its archive and fish out the papers documenting his bills. Out of that treasure trove came letters from the NPS, the Department of Justice, the Department of Fish and Game (CDFG) and the Johnsons who had owned the oyster farm since the 1930s in agreement that the state retained the fishing rights including the oyster leases and aquaculture in Drakes Estero. The legislative history is chuck full of instances supporting oyster culture.

“AB1024 was significant piece of legislation,” said Bagley of the 1965 bill. “It’s gold. The Feds have no authority. This is the Constitution.”

In a letter from then director of the Department of Fish and Game W.T. Shannon in 1965 to Charlie Johnson, “It appears to us that all state laws and regulations pertaining to shellfish cultivation remain in effect since the conveyance by the legislature reserves fishery rights to the state.”

Other letters from the Sierra Club, the National Park Service and the Department of Fish and Game expressed the same conclusions. In legal terms, it created an administrative construction or an implied interpretation of the statute that remained intact until 2004 when the NPS Field Solicitor informed the PRNS superintendent that the United States owns the tide and submerged lands and therefore has the ultimate say in any future commercial activities of the estero.

His analysis goes on to say, “Only if the non conforming use can be eliminated,” hence the oyster farm and the date of 2012 when the federal use permit expires. After 40 years of one interpretation another began to take form.

In 2006 and 2007, letters from Joseph Milton, senior counsel for the CDFG explain its renewal of a state lease for the oyster farm in Drakes Estero until 2029. He explained that the extension was contingent upon concurrent federal permit requirements-a reservation of use- issued by the PRNS to expire in 2012. “However, invalidation of the [federal] lease due to failure of such a condition does not necessarily mean that the aquaculture operation must cease, nor does it require the state of California to compel such cessation,” wrote Milton in a 2006 letter. “However, the reservation of the right to fish cannot be construed as extending to aquaculture operations,” he said referring to Bagley’s 1965 statute.

Pete McCloskey, former Republican congressmen who ran against Nixon, co-authored the Endangered Species Act, co-sponsored John Burton’s 1976 Wilderness Bill and helped acquire $35 million to purchase 20,000 plus acres of land for the creation of the National Seashore is the last of the three elder statesmen to come forward. McCloskey, who the Sierra Club has named an environmental hero, has for the last seven weeks privately interviewed and gathered information from all sides of the oyster story to help make a personal recommendation to the Secretary of Interior Ken Salazar. He got involved after West Marin ranch owner Nan McEvoy asked him to look into the issue. The two are friends and are both olive growers.

McCloskey’s blitz on the issue covering both science and law helped him form an opinion that the oyster farm can legally stay for reasons of legislative history and for its environmental record-one that shows little impact on the estero. He interviewed the Lunny family, Dr. Corey Goodman, and former State Director of Resources Huey Johnson, California Coastal Commission staff including Dr. John Dixon and executive director Peter Douglas as well as staff from the Marine Mammal Center. He spoke with Sierra Club Deputy Director Bruce Hamilton and exchanged emails with the former Marin Sierra Club representative, Gordon Bennett who refused to meet with him. Neil Desai of the National Parks Conservation Association also declined to meet but exchanged emails. Former Superintendent Don Neubacher did not respond to his request to meet. “I will defer any inquiry to Mr. Neubacher or the scientists until the EIS is completed,” said McCloskey. 

Currently the National Park Service is conducting an environmental review (EIS) evaluating the lease extension of the oyster farm and its related impacts on Drakes Estero. The decision of the lease extension is up to the Secretary of Interior Ken Salazar. Senator Diane Feinstein attached a rider to an appropriations bill that gave the discretionary power to the Secretary. The draft EIS will be released mid-September, NPS officials say. The document will be one of several reports from different agencies released over a four-year period that have analyzed the environmental impacts, the scientific integrity of park staff, the accusations of misconduct as well as the law.

The pristine estero on the shores of the Point Reyes has become a story larger and more complicated than anyone could have imagined. The debate in far-flung West Marin has pitted environmentalist against environmentalist neatly dividing those upholding the ideology of “wilderness” and those supporting the system of local sustainable agriculture. The two ideologies are hallmarks that define West Marin but have found a place of conflict that has caused a vicious and often ugly debate culminating a price tag to the public in the millions.

“I’m pleased that John Burton, Pete McCloskey and Bill Bagley-each of whom played a key role in the transfer and use of this land at the time-are offering their unique understanding of this issue,” said Senator Diane Feinstein on Wednesday. “It is my hope that the National Park Service will extend the lease as soon as possible unless there is compelling evidence to not do so.”

But even with the powerful lawmakers on its side, the oyster farm has no guaranteed future in Point Reyes National Seashore. A key detractor to the views of Bagley, Burton, and McCloskey besides Environmental Action Committee of West Marin and the Sierra Club, both wilderness supporters, is the State Lands Commission and the California Department of Fish and Game who regulate state water bottoms. Their solicitor concluded that Drake’s Estero is owned by the United States.

Curtis Fossum, executive officer of the State Lands Commission said Bagley’s statute handed the land to the United States with unintended consequences. “The confusion is the assumption that the public right to fish or dig clams is coincident with growing oysters,” he said of oyster farming in the estero. “You have to look at the ink on the page. It’s difficult to come to any other conclusion than this land belongs to the United States.” Fossum said he interprets AB1024 to allow the public its right to fish but said, “That doesn’t include the right of the public to go and plant oysters and then sell them.” Fossum, who supports the oyster farm personally, said there are very few examples of the state handing over land to the United States. He did say the law has a caveat under the public trust doctrine. “If the United States fails to use it for public purposes, the state can get it back.”

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But the minority of Commissioners who opposed the EAC demands and the amendments motioned by Commissioner Sanchez did not stop the dismantling of the staff recommendations. Mary K. Shallenberger, chair of the commission, remarked that a compromise would not work. “The trailer owners are not willing to turn their homes into rentals,” she said referring to a plan to limit owners’ access to the trailers to 90 days a year. “It also tells me a compromise will not work.”

Co-owner Willy Vogler said he was still numb after the meeting. “As soon as those Commissioners start talking back and forth, it can get terrifying really quick.”

In a back door post-meeting at 10:30 pm Commissioners, Kinsey, the Lawson’s and the EAC hammered out a deal. The trailers would be gone in five years instead of the three suggested by the EAC, future development rights would be waived in certain parts of the property, camping on the east side of the campground road would remain and the Lawson’s would not be required to come back to Commissioners for approval of a resource management plan.

The original plan first hammered out by the county then adjusted by commission staff would have required the trailer owners to rent their property to the general public 270 days of the year. The plan would have limited the owners to stay in their trailers a maximum of 90 days a year, and no more than 30 days between Memorial Day and Labor Day. Currently, the trailers are owned by private parties leasing spaces from the Voglers with the same freedoms of anyone owning private property. Commissioners define those trailers as quasi-residential which do not comply with the Coastal Act’s embrace of public coastal access.

The move could put Lawson’s Landing out of business even with a $5 million sale of an easement on the property that will be divided among the many family members, members of the Lawson’s team said.

The income from the trailer leases, the owners of Lawson’s Landing said, would have helped pay for necessary improvements-a waste system and many other plans required by the coastal permit. Those include a camping management and operations plan, a dune trail plan, a hazard response plan, a drainage plan, a traffic management plan, a grading plan and others all in the next six months.

The EAC appealed to the Commission for stricter rules protecting the Environmentally Sensitive Habitat Area’s (ESHA) which make up most of the 965 acre property. “Why do I think this is so important,” asked Catherine Caulfield, former executive director of the EAC. “It’s one of the richest habitats of the California coast. It can be saved if we act now.” Caulfield, who has worked tirelessly on the issue for 14 years, made a series of calls to the commissioners this month. The aggressive strategy worked and the commissioners got the message.

The history of the campground, its fate and its permits to operate are of vast proportions. The property, acquired by the Lawson’s in the 1920s, has been a favorite vacation spot for Central Valley visitors since the 1930s. Since then, the affection for the place has hardly changed. Over 200 trailer homes, some which arrived in the 1950s, still line the beach with stunning views of the mouth of Tomales Bay. Families come with motor homes and tents and sometimes the area attracts people by the thousands. They come to fish, clam and enjoy the cool weather of the coast. The prices are affordable, attracting American and immigrant families from the Central Valley. The landing has become a way of life to people who have visited for decades.

But environmentalists, most notably the Environmental Action Committee of West Marin, brought attention to the fact that the campground had been operating without permits in a highly sensitive area-on the fragile dunes and wetlands. Since the initial protest by environmental groups, the Lawson’s and the Voglers, both owners of the site, have tried to comply with the web of county and state rules. It’s been a long road. Willy Vogler said Wednesday night he thinks the family can work with the plan. “We can hopefully pay the bills with the five years,” he said.

Steve Kinsey who helped form the last minute deal said, “It’s time to end 50 years of contentious debate. What happens now? A healthier environmental situation. For better or for worse, the boundaries have been established.”