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Serving the Ranching community and the towns of Muir Beach, Stinson Beach, Bolinas, Dogtown, Olema, Pt Reyes Station, Inverness, Inverness Park, Marshall, Tomales, Dillon Beach, Nicasio, Lagunitas, Forest Knolls, San Geronimo & Woodacre.

 
 

 

 

 

 

 

 

November 28. 2013

This is the fourth in a series of reports about the Amicus Curiae, or friend of the court, briefs filed in support of Drakes Bay Oyster Company’s petition to the Ninth Circuit requesting an en banc hearing of its case. The oyster farm is fighting for an injunction to remain open while its lawsuit against the National Park Service proceeds. Citizen readers are invited to read the briefs and respond with Letters to the Editor or with essays of their own.

 

 Perspective

 Oyster workers to Ninth Circuit: closing oyster farm would hurt working people

By Sarah Rolph

As has been reported in these pages, eight separate friend-of-the-court briefs have been filed in support of Drakes Bay Oyster Company’s request for a rehearing in the Ninth Circuit. The briefs shed light on legal, scientific, historic, economic, and cultural aspects of the case.

One of the most compelling briefs was filed by Jorge Mata and Isela Meza, two longtime employees at the historic oyster farm. In the brief, Mr. Mata and Ms. Meza point out that, “closing the oyster farm will hurt real working people and their families.”

The oyster farm provides employment for approximately 30 skilled men and women. As has been the community tradition for decades, the oyster farm and its processing facility – the last remaining oyster cannery in California – provides jobs for the wives of men who work at the surrounding ranches. These jobs will be lost if the oyster farm closes.

Jorge Mata has worked at the farm for 28 years, along with several members of his family. His wife Veronica has worked at the oyster farm for 24 years and is currently in charge of the shellfish packing operation. His sister Leticia has worked at the oyster farm for 29 years. His grown son Jorge Mata Jr. and his daughter Ruby work part-time at the oyster farm.

In the brief, Mr. Mata emphasizes that he is proud to work at the oyster farm, where his family is treated with respect, earns a living wage, is able to live and work together, and has developed personal relationships with his coworkers and the Lunny family.

Isela Meza, also known as Rosa, the oyster company’s staff marine biologist, has worked and lived at the oyster farm for five years. She oversees the handling of microscopic oyster larvae, ensuring that they set and begin to grow properly at the beginning of the oyster-planting process. Ms. Meza has a decree in Marine Science and was trained as an Oceanologist at the University of Mexico, Baja, graduating in 2008.

Oyster farming requires specialized skills and compliance with numerous regulatory requirements. If the oyster farm closes, it is unlikely that the employees will be able to find other jobs in the area where they can put their specialized skills to work.

Please read the brief for yourself and consider sharing your thoughts about this issue with the readers of The Citizen. The brief can be found here: <http://oysterzone.files.wordpress.com/2013/10/amicus-curiae-of-employees-jorge-mata-and-isela-meza-10-28-13.pdf> Send your letters and essays to the Citizen editor at editor@westmarincitizen.com

 

 

 

 

 

 

 

 

 

 

November 21, 2013

Goodman brief details history of NPS ‘false’ science

By Sarah Rolph

Those who have closely followed the Drakes Bay Oyster Company controversy know that local scientist Dr. Corey Goodman became involved in April 2007 when County Supervisor Steve Kinsey contacted Goodman, based upon his scientific credentials and experience in science and public policy, and asked him to analyze National Park Service science on Drakes Estero.

Kinsey then invited Goodman to testify as an independent scientist at the May 8, 2007 County hearing as to whether park service data supported their claims. At the time Goodman did not know Kevin Lunny, owner of the oyster company. Goodman’s analysis showed that park data did not support park claims, and he testified that park officials misrepresented their own data.

Goodman is passionate on the topic of scientific integrity. At the May 2007 meeting, he stated:

“I believe that public policy decisions can and should be informed by quality science. But this must be science conducted rigorously, without agendas or conflicts of interest. The political process can be dangerously misled by bad or misused science. One of my greatest concerns when I see science being invoked in public policy debates is to make sure that it is good science and not pseudo-science or – even worse – a blatant misuse of science.”

 

 ‘Blatant misuse’

 

The history of the oyster company controversy has shown these comments to be prescient. What has happened since 2007 has, sadly, been a blatant misuse of science.

Goodman’s amicus brief supporting the company’s petition for en banc rehearing in the Ninth Circuit provides an excellent summary of this blatant misuse. 

There is no scientific basis for the view – promulgated by the park service Final Environmental Impact Statement – that the oyster farm causes significant environmental harm to Drakes Estero.

“To this day,” the brief argues, “NPS and their supporters continue to recite a fictional narrative that they have evidence of environmental harm, when they have no such evidence.”

Goodman’s brief details the shocking history of false park service claims. As the brief explains:

“The EIS is the latest chapter in a seven-year effort by NPS to claim the oyster farm causes environmental harm. Again and again, NPS issued papers, reports and testimony claiming the oyster farm harms the environment. Each time, NPS had to correct, revise, or retract its claims after being sharply criticized by the National Academy of Sciences, the Department of the Interior’s Inspector General and Office of the Solicitor, or Congress. But each correction has proven to be a new opportunity for NPS to misrepresent the science on some new issue – be it eelgrass, sediments, fish, harbor seals, soundscape, and, most recently, a tunicate. 

“In the end, NPS spent millions of dollars searching for adverse environmental impacts that do not exist. It is difficult not to conclude that this pattern was intentional. It certainly was not harmless.”

The park EIS even claims that the oyster company is bad for water quality.

In fact, the opposite is true: oysters, being filter-feeders, provide environmental benefits to the waters in which they live, which is why oyster restoration projects are under way globally. Just last week, on November 15, the San Francisco Chronicle featured on its front page an exciting update about the oyster restoration effort in San Francisco Bay – an effort made possible by the donation of Lunny’s oyster shells. In case you missed it, that article is here: <sfgate.com/science/article/2-million-oysters-in-bay-begin-restoration-effort-4984300.php>

The Ninth Circuit majority, having been misled by the park EIS, called removal of the oyster farm an “environmental conservation effort.” Unless the park intends to remove the surrounding cattle ranches, which they publicly promise not to do, the prudent “environmental conservation effort” would be to allow the oysters to continue to filter and clarify the water, not to eliminate the oyster farm.

The false claims in the EIS were so outlandish that Congress expressed concern about “the validity of the science underlying the [Draft EIS]” and directed the National Academy of Sciences to review it.

 

‘Oysters beneficial’

 

The academy review pointed out that the EIS had it backwards – that the oysters are “beneficial” for the environment:  “… the committee determined that an alternate conclusion on the overall impact of DBOC operations could be reached, with the beneficial effects of shellfish filtration outweighing the adverse impacts from sediment disturbance and the low levels of contaminants generated by DBOC activities.”

The EIS review is not the first time the academy was asked by Congress to review park service science. The academy was also asked to get involved in 2009. They convened a scientific panel, held a series of public meetings, and ultimately released its review on park service claims on May 5, 2009. That academy panel came to two major conclusions:

“[NPS] selectively presented, overinterpreted, or misrepresented the available scientific information on DBOC operations...”

“...there is a lack of strong scientific evidence that shellfish farming has major adverse ecological effects on Drakes Estero.”

Nevertheless, the park service continued to press its false narrative.

The details are incredible. For example, a secret camera program was put in place to monitor oyster workers without their knowledge. Apparently the park was hoping to find evidence for its claims that oyster boats disturb seals – the three years of data from the secret cameras instead proved the opposite. The park had those photos analyzed by outside experts, and the seal expert who reviewed them found the same result. The park had no other evidence for its claims about seals, so it took the astounding step of changing the report, claiming in the EIS that the review found disturbance to seals – the opposite of what was actually found.

Please read the brief to learn the full story of the malfeasance. You can find it here: <cdn.ca9.uscourts.gov/datastore/general/2013/10/25/13-

 

 

 

 

 

November 14 Citizen: 

: Watt amicus brief claims oyster farm was always intended to stay in Seashore

By Sarah Rolph

It may come as a surprise to some readers to learn that for years, until recently, both the Park Service and local environmental groups supported the historic oyster farm in Drakes Estero. Drakes Bay Oyster Company’s petition for en banc rehearing in the Ninth Circuit provides this short history:

“Before it became obsessed with destroying the only oyster farm in Point Reyes National Seashore, the National Park Service had for many decades supported the oyster farm, as did local environmental groups and the community at large. The oyster farm and the surrounding cattle ranches provide the agricultural heritage the Seashore was created to protect.

“When Congress was considering legislation that became the 1976 Point Reyes Wilderness Act, wilderness proponents stressed a common theme: that the oyster farm was a beneficial pre-existing use that should be allowed to continue notwithstanding the area’s designation as wilderness. To this day, modern environmentalists and proponents of sustainable agriculture praise Drakes Bay as a superb example of how people can produce high-quality food in harmony with the environment.

“Since 2005, for reasons that remain a mystery, the Park Service has changed position and sustained a vendetta against the oyster farm. The Park Service has been reprimanded by the National Academy of Sciences, which in 2009 found that the Park Service had “selectively presented, over-interpreted, and misrepresented the available scientific information”, and by the Solicitor’s Office of the Department of the Interior, which in 2011 found “bias” and “misconduct” in the evaluation of harbor-seal data. Despite these reprimands, the Park Service falsely asserted, in the final environmental impact statement (“EIS”) made public in November 2012, that Drakes Bay had a “moderate adverse impact” on harbor seals. It has since come to light that the Park Service’s harbor-seal expert actually found “no evidence” of harm.”

(Find the petition here: <http://cdn.ca9.uscourts.gov/datastore/general/2013/10/18/13-15277_PFR.pdf>)

In her Amicus Curiae brief in support of DBOC’s request for a re-hearing by the Ninth Circuit, Dr. Laura Watt provides a detailed legislative history that makes it abundantly clear that the oyster farm was always intended to stay.

The brief shows that even in the earliest discussion of the creation of the Seashore, in the 1950, “a key concern was the possible effects of establishing a park on the local agricultural economy,” and points out that the park service supported this concept and specifically supported maintaining the oyster farm as well as the historic ranches. Dr. Watt observes that “the Point Reyes National Seashore...was established with the explicit intention to protect local agriculture, including aquaculture, rather than to erode or remove it.”

Congress’s view remained the same when, a few years later, Congress adopted the Point Reyes Wilderness Act of 1976. “Nowhere in the legislative history does anyone make a specific objection to the oyster farm or discuss an end to its operation in the future;” the brief argues, “nor did Congress or the public give any indication that wilderness designation would be hindered by the farm’s continued presence.”

In fact, Dr. Watt concludes that Judge Watford’s dissent (in the September split decision by the Ninth Circuit against the oyster farm) correctly found that, in the Point Reyes Wilderness legislation of 1976, “all indications are that Congress viewed the oyster farm as a beneficial, pre-existing use whose continuation was fully compatible with wilderness status.”

Read the brief here: <http://cdn.ca9.uscourts.gov/datastore/general/2013/10/25/13-15227_Amicus_brief_by_Dr_Laura_Watt.pdf>

 

 

 

 

 

 

 

Bagley/McCloskey brief argues for sustainable agriculture

By Sarah Rolph

One thing that is notable about the Amici brief filed by William T. Bagley et al. on behalf of the oyster company is the number of supporters, many of them local luminaries.

Joining the brief are:

  • Former State Assemblyman William T. Bagley, who in 1965 authored Assembly Bill 124 transferring the Point Reyes tidelands to the National Park Service, specifically reserving the state’s right to fish.
  • Former Congressman “Pete” McCloskey, coauthor of the Endangered Species Act, who and intervened with the Office of the President to secure the 1970 Congressional appropriation that enabled the National Park Service to create the Seashore.
  • Phyllis Faber, a noted wetland scientist who helped found, and served on, the California Coastal Commission, and co-founded the Marin Agricultural Land Trust.
  • Mark Dowie, an award-winning investigative environmental and science reporter and resident of West Marin with a stated interest “is in ensuring that public policy and decisions impacting the environment are based on accurate facts and sound science.”
  • Tomales Bay Association, a 50-year-old West Marin County environmental organization that supports DBOC “as a critical component of on-going habitat restoration projects for Threatened & Endangered species, especially native oyster restoration projects in SF Bay and elsewhere in the State, because it is the last operating cannery in California and therefore the only readily available source of shell in California.”
  • Patricia Unterman, owner of the Hayes Street Grill, known for its fresh fish, who says, “The loss of the oysters produced by DBOC would have a devastating impact on our mission, our menu and the expectations and pleasure of our customers. We cannot replace the fresh, local, shucked oysters from DBOC.”
  • Tomales Bay Oyster Company, one of two oyster farms located on Tomales Bay in Marin County with retail shops along Hwy. 1; its retail and picnic area is at capacity and its customers will be adversely affected if DBOC’s 50,000 customers attempt to visit.
  • Alliance for Local Sustainable Agriculture, an unincorporated association of people who believe that “a diversified and healthy agricultural community is important to our individual health and to our community’s and our nation’s safety, economy and environment,” and are “advocates for the use of good science and fair processes.”
  • The California Farm Bureau Federation and the Marin and Sonoma County Farm Bureaus, nonprofit voluntary membership corporations that exist to protect and promote agricultural interests in the State and in their Counties,
  • Food Democracy Now, a grassroots movement of more than 350,000 American farmers and citizens dedicated to reforming policies relating to food, agriculture and the environment.
  • Marin Organic, founded in 2001 to foster “direct relationship between organic producers, restaurants, and consumers” to strengthen the commitment and support for local organic farms, such as DBOC.

While these supporters are indeed impressive, the brief is also notable for its facts and its analysis.

The brief argues: “The Drakes Bay Oyster Company is a treasured part of California’s coastal zone in the Point Reyes National Seashore. Shellfish from Drakes Estero are an important part of the San Francisco Bay Area’s world famous local sustainable agriculture movement. Modern environmentalists hail Marin County and DBOC as a model for sustainable agriculture. Consistent with Federal policies supporting increasing the Nation’s supply of sustainably raised seafood, California, which leases Drakes Estero to DBOC, has declared shellfish cultivation there to be ‘in the public interest.’”

Please read the brief, think about what it means to you, and share your thoughts with The Citizen. You can find the brief here:

http://cdn.ca9.uscourts.gov/datastore/general/2013/10/22/13-15227_Documents.pdf

 

 

 

Cow Girl Creamery

Cantina & Cheese Counter

Point Reyes Station, CA

415.663.9335 

www.cowgirlcreamery.com

Tony’s Seafood 

Marshall, CA 

415-663-1107

PALACE MARKET

Point Reyes Station

415.663.1016

In response to Laura Watt’s recent Op-Ed:

 

To the Editor:

 

Congress passed the Wilderness Act in 1964 so that many different landscapes all around the United States would receive extra protection for their natural conditions. In a ”wilderness” area, not subject to business, development, or motorized activity, habitat and ecosystems would function naturally and with integrity. People’s use of wilderness would be harmonious with this management goal. It is as far from commerce as you can get.

 

In 1975, I was vice-chair of the federal advisory commission, appointed by the Secretary of the Interior, for the GGNRA and Point Reyes National Seashore. People here had studied the Wilderness Act and saw that a large part of the Seashore deserved this special wilderness protection. Following an extensive and well-attended public hearing, our commission recommended that a large part of the Seashore be designated as wilderness. In 1976 Congress designated 33,373 acres of wilderness, of which 8,003 acres had various non-conforming uses, so they were put into a sub-category of “potential” wilderness. This represented some compromises. 

 

The public didn’t request and Congress didn’t provide any special exemption for the oyster company to operate past 2012. The public has waited nearly forty years for this rare marine wilderness protection to be implemented at Drakes Estero–– an immense compromise in itself. The “owners” of this national park and the designated wilderness are the people of the United States, not the Drakes Bay Oyster Company.

 

What is particularly troubling to me is the potential damage to the National Wilderness Preservation System if Interior Secretary Ken Salazar breaks the promise with present and future generations by permitting the commercial use past its designated closure. It would be a betrayal and would set a terrible precedent for the Park Service and the Department of the Interior. This battle suggests that a promise of the Congress to the American people, whether for wilderness designation or a national park, may be broken for any number of personal or commercial reasons.

 

It is important to understand what wilderness means and to stand up for it. Wilderness is a way of keeping alive the very origins of our place on our planet. The people of this part of Northern California, joined by people from across our country, are rightly and admirably intent on doing the best they can for the environment. They need to show that they understand that the environmental integrity of the Point Reyes wilderness and prospective erosion of the entire national wilderness preservation system are at stake in this confrontation.

 

Amy Meyer

3627 Clement Street

San Francisco, CA 94121

 

415-221-8427

 

 

Follow-up to West Marin Citizen, in response to Amy Meyer’s letter

1 October 2012   By Laura Watt 

 

In her recent letter to the editor, Amy Meyer described her role on the Citizens Advisory Commission (CAC) back in 1975, making recommendations for the designation of lands within Point Reyes National Seashore as wilderness. She asserted that, by including Drakes Estero in the “potential wilderness” category, it was always the intention of Congress and the public that the oyster farm cease operation in 2012, once its reservation of use expired. She described this as a “promise,” the breaking of which could threaten the entire national wilderness preservation system.

What she did not include is any documentation of this promise. As an academic historian, I am always interested in finding more documents—so if any exist that confirm these assertions, I would love to see them!

In my own research, reading through everything I’ve been able to find about the designation of wilderness at Point Reyes—the planning documents, comment letters from environmental organizations and members of the public, and testimony from Congressional hearings, as well as the formal bills and reports, and subsequent management plans—I have not come across any statements anticipating closure of the oyster farm in 2012.

In contrast, quite a number of statements suggest the opposite: that the oyster farm was intended to continue under potential wilderness designation, with no clear end point or expiration date. For instance, in the 1974 Final EIS for Proposed Wilderness (page 56), the NPS wrote, “This is the only oyster farm in the seashore. Control of the lease from the California Department of Fish and Game, with presumed renewal indefinitely, is within the rights reserved by the State on these submerged lands ...  and there is no foreseeable termination of this condition.”

In response, the Sierra Club wrote a letter of comment, including (page A-51): “The draft Environmental Impact Statement implies that none of the Drakes Estero can be classified as wilderness because of Johnson Oyster Farm. This is misleading. The company’s buildings and the access road must be excluded but the estero need not be. The water area can be put under the Wilderness Act even while the oyster culture is continued —- it will be a prior existing, non-conforming use.” No suggestion of eventual termination was included.

Ms. Meyer’s own CAC subcommittee suggested the following at their meeting on August 5, 1975: “Specific provision should be made in the legislation to allow the following uses to continue unrestrained by wilderness designation: a. Operation of that portion of the Murphy ranch that falls within the proposed wilderness … b. Operation of Johnson’s Oyster Farm including the use of motorboats and the repair and construction of oyster racks and other activities in conformance with the terms of the existing 1,000 acre lease from the State of California.” (They also recommended, “the preamble of the wilderness legislation should clearly state the atypical nature of wilderness at Point Reyes.”)

These recommendations were expressly endorsed in Congressional testimony by legislative co-sponsors Senator Cranston, Senator Tunney and Representative John Burton. In addition, letters from the Environmental Action Committee of West Marin, the Marin Environmental Forum, the Inverness Association, and from Jerry Friedman as Chair of the Marin County Planning Commission all specifically endorse the recommendations of the CAC. Nowhere in the 1976 hearings does anyone make a specific objection to the oyster farm, nor give any indication that they expected wilderness designation would be hindered by its continued presence, nor discuss an end to its operation in the future.

Since passage of the wilderness bill, the 1980 General Management Plan for PRNS included management objectives, under Natural Resources Management, “to manage seashore activities in the pastoral and estuarine areas in a manner compatible with resource carrying capacity,” and specifies “To monitor and improve mariculture operations, in particular the oyster farm operation in Drakes Estero, in cooperation with the California Department of Fish and Game”; and under Cultural Resources Management, “to monitor and support productive land uses and activities which are consistent with historic patterns,” and specifies “to ensure that agricultural and maricultural activities are consistent with the historical evolution of land and water use in Point Reyes.” In the Assessment of the Alternatives, the summary table of development proposals lists Johnson’s Oyster Farm as both the existing and proposed uses at that location; in other words, the EIS did not consider the possibility of the oyster farm shutting down.

These historic documents, plus the renewal clause in DBOC’s lease, suggest that closure of the oyster farm was not widely anticipated as a result of potential wilderness designation. My research findings on this issue are similar to those of John Hart, whose book, An Island in Time: 50 Years of Point Reyes National Seashore, has just been published. Again, if anyone has additional documents to share, I would very much like to read them.

A New Mariculture Permit for DBOC Would Violate the Wilderness Act

In her guest column in last week’s Citizen, Laura Watt requested contemporaneous, written evidence that the Point Reyes Wilderness Act was intended to eliminate mariculture from the designated wilderness in Drake’s Estero in 2012. Here it is.

DBOC is currently operating as a non-conforming use in a designated wilderness area. The 1964 Wilderness Act flatly prohibits commercial enterprises “subject to existing private rights.” Mariculture was allowed to remain in the newly-designated wilderness area because, at the time, it was an “existing private right,” albeit temporary.

Congress expressed its intent to remove mariculture from Drake’s Estero in 2012 by the very act of designating it “potential wilderness.” As the then-Director of the National Park Service stated to a Senate subcommittee, potential wilderness areas include “nonconforming private … uses which are temporary in nature and involve areas that we believe should be designated wilderness when … the nonconforming use is terminated.” [emphasis added.] The Director’s written comment explained that “… after removal of any nonconforming uses, the area [designated as potential wilderness] would be added to the wilderness with proper notice by the Secretary of the Interior.

After passing the Act, Congress issued an accompanying report explicitly stating that “potential wilderness” is “a category of lands which are essentially of wilderness character, but retain sufficient non-conforming structures, activities, uses or private rights so as to preclude immediate wilderness classification. “ The report went on to declare the “intention that those lands and waters designated as potential wilderness additions will be essentially managed as wilderness, to the extent possible, with efforts to steadily continue to remove all obstacles to the eventual conversion of these lands and waters to wilderness status.” [Emphasis added].

Wilderness advocates wanted the Estero to be included in the new wilderness area with mariculture continuing as a non-conforming “private right.” Their remarks urging the continuation of oystering must be taken in their proper context: it was 36 years before the expiration of the reservation of use and the Park Service was arguing to exclude the Estero. In that light, it is plain that the issues these advocates were addressing were whether the Estero should be included in the new wilderness area at all and whether including it would require the immediate end to mariculture. No wilderness advocate argued that the mariculture should continue beyond the expiration of the Reservation of Use and Occupancy (RUO) and indeed, if that had been their objective, these groups and individuals would not have supported a wilderness designation for the Estero.

Taking the well-understood meaning of “potential wilderness” together with the Congressional report advising the NPS “steadily to remove” nonconforming uses, and the recognition by all sides that commercial oystering is in fact non-conforming, it is plain that Congress placed Drake’s Estero in potential wilderness with the expectation that mariculture would be discontinued upon the expiration of the RUO in 2012 so that the full wilderness designation could take effect. That expectation should now be honored.

Carolyn Longstreth, Inverness

 Published October 11, 2012

 Laura Watt’s column  published Oct 18, 2012

There is a long history of disagreement over the meaning of wilderness; this is not a unique circumstance to the Drakes Estero conundrum. So to suggest that the meaning and intent of wilderness is clear and unambiguous here, regardless of which “side” one is on, can only result from a selective (or cherry-picking) view of the history. I first got involved with this debate, back in 2007, because it seemed that the pro-wilderness side was doing just that: looking at a few sentences in isolation without considering the broader record. It is that cherry-picking tendency that sharing my research here is intended to address.

 

Carolyn Longstreth pointed out last week that the 1964 Wilderness Act prohibits commercial enterprises within wilderness areas – but Drakes Estero isn’t wilderness, it’s potential wilderness, managed as wilderness but with the oyster farm expressly allowed to remain as a non-conforming use. No one has proposed removing the “potential” status, so, like the High Sierra Camps located within potential wilderness areas of Yosemite National Park, there is no current conflict between the structures, or the use, and the designation.

 

It is bit ironic that Longstreth quoted the then-NPS Director from his 1976 testimony about temporary uses in wilderness, because that testimony was given to argue against designating Drakes Estero as potential wilderness. Given that the oyster farm had been a fixture of the Estero for more than 50 years at that point, it was impossible to see it as “temporary,” and that was part of the NPS’s reasoning for why that area shouldn’t be included in any designation at all. It does not follow that, because Congress ignored the NPS’s argument and went ahead with the potential wilderness designation, that somehow the oyster farm is required to “become temporary.” (And there’s really no way of conceiving of a now 80-year use as temporary!)

 

Longstreth also quotes from House Report 94-1680 (which was actually written before passage of the bill, not after as she states), which included a single sentence that refers to the “efforts to steadily continue to remove all obstacles” to eventual wilderness conversion. In contrast, there are numerous sentences and statements elsewhere in the legislative record, as I discussed in my last guest column, clearly stating an intention to allow the oyster farm to remain – and there is absolutely no reference, anywhere, to allowing it to remain only until the reservation of use (RUO) expires. To suggest that it is “plain” that everyone meant “only until the RUO expires in 2012” is to put words in their mouths – and three of the legislators in question have recently assured the Interior Secretary that no such intention existed. How can Congress, written generically, have that intention if the sponsoring Congressional representatives did not?

And there is no requirement to convert potential wilderness to “full” with any particular speed.  Even taking that single sentence literally, it still says nothing about the pace of removal, other than to say “steadily.”  Considering that the following sentence in the same document directs the Park Service to remove the utility lines in the Muddy Hollow corridor “as promptly as possible,” it becomes clear that these are relative terms; it took the NPS 23 years, from 1976 to 1999, to accomplish that first assigned task.  To remain on a steady pace, literally, the NPS has at least until 2022 to make the next change—and probably longer, since 23 years was “as promptly as possible.”  And as the State of California still retains reserved rights in the Estero, confirmed by a letter from the Department of Fish and Game this past week, the oyster farm is not the only remaining obstacle to full wilderness designation.

 

It is important to remember that the 1976 wilderness bill was the first Congressional use of the potential wilderness designation, so to suggest that it had a well-understood, unambiguous meaning at the time is reading today’s values into the record.  A second legislative report that accompanied the bill, this one from the Senate, made clear that many legislators were in fact uncomfortable with the designation: “The [Senate] Committee’s retention of the potential wilderness provisions contained in the House passed measure should not be construed to be an advocacy of this classification by the Committee.  Although the Committee understands the Department’s rationale for this legislative classification, the Committee reserves the right to question this procedure at future wilderness hearings.” 

 

Similarly, there is no clear consistent policy within the NPS today on conversion of potential wilderness to “full”; for example, the 1980 Yosemite General Management Plan stated,  “The Ostrander ski hut and the High Sierra camps will be reclassified as potential additions to wilderness.  They will continue to be available for public use.”  Just five years ago, an NPS official testified before Congress that Southern California Edison could continue its use of a check dam for hydroelectric power within proposed potential wilderness in Sequoia-Kings Canyon “as long as it wants,” with no hints toward its steady or eventual removal on any time frame.

 

Reading through the 1976 wilderness hearings, it appears that the primary intention of insisting on potential wilderness status was to keep motorized vehicles out of the Estero.  The Sierra Club’s representative testified, “The possibility of jeeps and motorcycles having access to the Estero shore and adjoining area is a frightening one.”  Similarly, a letter from the Marin Conservation League specified, “MCL strongly urges inclusion in Wilderness of the quarter-mile strip of tidelands and Drake’s Estero.  The fragile and important estero must have protection from recreational motor boats.  The beaches must be protected from off-shore vehicles.  We recommend controlled burns in the Bishop pines forest and Douglas fir forest and we do not object to the non-conforming use of the Johnson Oyster Co. operation in Drake’s Estero.”

 

Furthermore, if one is to take the language from the 1964 Wilderness Act literally regarding no commercial enterprises being allowed to enter or use wilderness, then all commercial pack trips, kayak guides, or photography workshops should be banned as well—these are all instances of one party commercially profiting from a use of wilderness.  In addition, the cameras themselves should be left at the wilderness boundary, as the law bars any mechanical uses in wilderness; this is why mountain bikes are not allowed.  One could argue that hiking, sight-seeing, and photography are passive rather than direct uses of the resource, but the wilderness law does not make this distinction; and, what could be a more direct use than walking through a wilderness area and setting up camp for the night?  As a society we tend to exempt recreational or tourist uses of places from the meaning of “use,” but they are uses, and are not free of impact; the Wilderness Act states that the “imprint of man’s work should be substantially unnoticeable,” yet trails are constructed and maintained by people for their own use, and are clearly noticeable across an open landscape.

We will not solve the great debates over wilderness here at Point Reyes—and the decision about continuing the oyster farm does not represent a crucial precedent in the management of wilderness.  While my book manuscript is not yet complete, I’m happy to share my research with whomever would like to examine the historic record more closely for themselves, so that they can reach their own conclusions about what it means.  But we cannot take individual sentences or words from that record, and take them literally, without considering the entire historic record.

 




By Judith Teichmann   Published October 25, 2012 

As a retired public law lawyer concerned with the future of agriculture in West Marin, I’ve done extensive research of the factual and legal issues pertinent to the status of Drakes Estero as “potential wilderness”.   Because it is virtually impossible to have a meaningful discussion of technical legal issues in a newspaper, I have read in silence what I believe are inaccurate descriptions of Congressional intent in designated Drakes Estero “potential wilderness” and of Congress’ ability to force closure of a nonconforming use simply by designating the Seashore’s tidelands “potential wilderness.”  As the pressure mounts and last minute and scurrilous claims are hurled to destroy the Drakes Bay Oyster Farm, I offer for your reader’s consideration the results of my research on a few pertinent factual and legal issues.

 

 

Congress Did Not and Could Not Extinguish State’s Rights Through Legislation Over Public Trust Land.

 

Congress adopted two Public Laws [P.L.] creating the Point Reyes Wilderness area.  The first, adopted on October 18, 1976, dealt solely with lands at Point Reyes.  The Department of the Interior Field Solicitor relies on a comment in the House Report on that P.L. in his 2004 memorandum advising that the National Park Service has an obligation to eliminate nonconforming uses in potential wilderness areas. As Professor Laura Watt has pointed out, that House Report specifically cites the utility lines in the Muddy Hollow Corridor, which were to be undergrounded, as an example of a nonconforming use to be eliminated.

 

The second, P.L. 94-567, adopted on October 20, 1976, designated areas in several national parks or recreation areas “wilderness.”  It is the second P.L. that provides that “potential wilderness” can be converted to full wilderness status when the nonconforming uses no longer exist.  The Senate Report on P.L. 94-567 cites a number of specific features in areas designated “wilderness” members of Congress considered consistent with the designation of the areas as “wilderness.”  Examples include grazing in and the use of motorized vehicles to maintain fencing and protect the area from domestic livestock in the case of the Great Sand Dunes National Monument.  In the case of Haleakala National Park in Hawaii, three small non-wilderness enclaves containing cabins used by hikers were retained with the understanding that future activities would be conducted in a manner as compatible as possible with the contiguous wilderness area.  Preservation of a historic cabin was considered appropriate in Saguaro National Monument in Arizona.  The statements in the Congressional Record regarding preservation of the oyster farm in Drakes Estero are entirely consistent with this history of the purposes behind the use of  “potential wilderness” in the later P.L.

 

Contrary to the frequently cited DOI Field Solicitor’s 2004 memorandum to the Superintendent of the Seashore, Congress could not have eliminated the fishing rights retained by the State in 1965 simply by designating Drakes Estero “potential wilderness.” The United States has only a “proprietorial interest” in the lands that make up the Point Reyes National Seashore, including the bottomlands in Drakes Estero.  See Department of the Interior Department Manual, Part 6-1: Federal Areas Within States, Chapter 1: Jurisdiction, Section 1.2B. Office of the Solicitor, Effective Date 6/25/80.  (I found it online.)  

 

Both Contemporaneous and Long-Standing Interpretations of State’s Retained Fishing Rights Are That They Include Shellfish Cultivation.

 

As former Assemblyman Bill Bagley has pointed out, there is correspondence in 1965-66 between the Director of the California Department of Fish and Game and the Superintendent of the Point Reyes National Seashore confirming their understanding that the fishing rights retained by the State in 1965 include the State’s right to lease the Seashore tidelands for shellfish cultivation.  

 

What hasn’t been discussed is correspondence and actions in the early 1970’s that are consistent with the earlier correspondence.

 

(1)  The deed for the 1972 purchase of the land and facilities on shore Drakes Estero by the United States  incorporates the Johnson Oyster Company’s  “offer to sell.”  Paragraph 11 in the offer to sell that contains the Reservation of Use and Occupancy and also provides:

 

 

 

 

 

(2) In a letter dated December 12, 1973 Acting Attorney General Robert Bork approved the deed for the purchase of the facilities on the shores of Drakes Estero from the Johnson Oyster Company noting that the Department had advised that the retained rights and easements would not “interfere with the proposed use of the land.”  [The deed and this correspondence is available on the PRSN website.]

 

(3)  The April 1974 EIS for the DOI proposed Point Reyes Wilderness area specifically reconfirms the contemporaneous interpretation of the fishing rights retained by the State in 1965. It provides:

 

“. . . control of the lease from the California Department of Fish and Game, with presumed renewal indefinitely, is within the rights reserved by the state on theses submerged lands.”

 

(4)   Finally, the State’s grant of the tidelands was conditioned on the United States recording the deed for the lands.  DOI did not record the Deed for the submerged lands until September 1974, a few months after the Attorney General approved the deed for the onshore land and facilities and the EIS on the proposed wilderness areas confirmed that both the federal and state governments understood the State’s retained fishing rights to include the right to lease the submerged lands for shellfish cultivation.  [Marin County Recorders Office.]

REALIZING THE POTENTIAL     By Laura A. Watt

A few weeks ago my former student, Adam Williams, arrived in Sonoma County after completing a 4500-mile bicycling trip across the country (he started in April in Maine), as part an organization called Foodcycle (foodcycleus.com) to raise awareness of lunchroom sustainability in schools.  His incredible commitment of time and energy to this issue has reminded me of just how central food has become to environmentalism in the past decade.

Oddly, when I started my dissertation research at Point Reyes in 1999, there was a common presumption in West Marin that agriculture was on its way out; many believed that the local dairy industry could not compete long-term with the Central Valley, and soon it would lose economic viability and gradually disappear.  Yet the last decade has brought this enormous change, with an explosion of organic producers, farmers markets, niche products—in some ways returning to Point Reyes’ early days of butter and cheese! Liquid milk, while still important, isn’t the only game in town these days.

Last year I reviewed a wonderful new book on national parks, written by William Tweed, called Uncertain Path: A Search for the Future of National Parks.  Tweed, a long-time NPS employee from Sequoia NP, articulated a strong need for a shift in NPS management, mostly in response to the challenges posed by climate change; he argued that the old idea of park preservation as “keeping things the same forever” no longer applies in today’s evolving circumstances (review at http://www.hcn.org/issues/43.1/rethinking-national-parks-and-wilderness).

Adam’s cross-country odyssey and Tweed’s book now come together in my mind regarding the debate about Drakes Bay Oyster Company and the bewildering intensity with which it has become polarized.  What makes this controversy somewhat unique is that both “sides” are environmentalists; this is not Big Industry vs. a greener vision of the world, it is two not-entirely-unrelated visions of a healthy environment, and Point Reyes straddles both. 

Because here in West Marin, we have two powerful strands of environmentalism, wilderness advocacy and sustainable agriculture, arguing over the same patch of tidelands.  Both approaches are important and valid, but we as a society haven’t worked out what to do when they conflict.  In some core way, the disagreement seems to be over whether humans have a role in nature beyond that of a tourist, visiting on the occasional hike and snapping photos. 

After all, the wilderness status at Point Reyes is not in danger here; Drakes Estero was designated potential wilderness in 1976, and has been managed as wilderness ever since, with the sole exception of maintaining the oyster rack structures, which long pre-date the designation (and the park).  The “commercial operation” itself is on shore, on land that is historically part of the pastoral zone, and which is not part of the wilderness designation.  DBOC is part of a long history of fishing and mariculture in West Marin, and many families have maintained traditions of hiking the estero or kayaking its waters and then gathering around a picnic table to celebrate with a plateful of oysters.  For them, there is no either/or between sustainable agriculture and the wild.

When you think about it, there is little difference between DBOC’s use of the potential wilderness of the estuary and that of commercial kayak tours; both are providing a service to paying customers that relies on the natural ecosystem, without inputs or manufacturing.  Oysters thrive in the same wild conditions that other organisms do, and DBOC is guiding our use of the shellfish resource in a similar way that a kayak guide shows visitors to the most spectacular spots.  An oyster even tastes wild, bringing the sharp brininess of the sea to our mouths along with a deep appreciation of place, like the idea of terroir in winemaking.

Another, more direct parallel exists between the oyster operation and livestock grazing, a practice specifically allowed in wilderness areas by the 1964 Wilderness Act.  The cattle or sheep move out across the landscape, finding their own dinner in the meadows of a wider variety of public lands, and convert something inedible to humans, grass, into useful meat and fiber.  Human guardians lightly guide their movements, but the animals do the work themselves.  Similarly, the oysters hang around in the water column and filter out the nutrients they need, turning something inaccessible to us into (delicious) edible protein—the oyster racks and bags are akin to fences at best, the oyster workers more like cowboys who check on their progress and safety, and then occasionally round them up, without diminishing the wild ecosystem upon which they depend.

Regardless of which metaphor you prefer, the wildness of the estero and the passive production of oysters are not as mutually exclusive as the rhetoric sometimes suggests.  To return to Tweed’s discussion of changing management strategies in parks, I would argue that Point Reyes represents the future, as we will increasingly need to reconcile the two “sides” of environmentalism, finding new ways for them to coexist and complement one another.  Because of this, I personally believe that DBOC should not be closed, nor grudgingly tolerated for only another ten years, but embraced as an integral part of our experience of this place, of relying on nature for something in addition to recreation; it truly teaches us about the interdependence that has always existed on the Peninsula between nature and humans.

 

 

Drakes Bay Oyster Company

www.drakesbayoyster.com

415.669.1149

Enjoy farm fresh Drakes Bay Oysters in our picnic area overlooking the estero. 

The Farm House Restaurant

Est. 1865

Downtown Olema 

415-663-1264

www.pointreyesseashore.com 

The Marshall Store

www.themarshallstore.com

415.663-1339  Oysters 

Hog Island Oysters

www.hogislandoysters.com 

Marshall, CA 

 

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