October 31, 2013
Number of briefs now filed on behalf of DBOC totals eight
By Sarah Rolph
The historic oyster farm in Drakes Estero is one of the resources Point Reyes National Seashore was formed to protect. Indeed, the desire to preserve the farming and ranching here is a major reason Point Reyes is a National Seashore and not a National Park.
This is one of the key facts being clarified in the tremendous outpouring of support on behalf of Drakes Bay Oyster Company’s petition requesting a re-hearing of its case in the Ninth Circuit. Eight separate Amicus Curiae, or friend-of-the-court, briefs have been filed, shedding light on legal, scientific, historic, economic, and cultural aspects of the case.
The case is about the oyster farm’s request for an injunction to remain open in the face of Park Service wrongdoing while its lawsuit against the agency proceeds. In September, the Ninth Circuit ruled against the oyster farm in a 2-1 split decision, with dissenting Judge Paul Watford writing a blistering opinion that most observers find extremely compelling. Judge Watford pointed out that when Congress was considering the 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.”
On Oct. 18, the oyster company filed its petition for a re-hearing by the full panel of Ninth Circuit judges; known as an “en banc” hearing, the re-hearing is essentially an appeal of the decision. In its petition, the oyster farm’s legal team points out: “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.”
Farm can continue
That point is underlined in an Amicus brief written by Dr. Laura Watt, a historian and professor of environmental studies at Sonoma State University who is an authority on the legislative history of Point Reyes. Dr. Watt’s interest in the case stems from her doctoral research at the University of California, Berkeley, which examined the evolution of the working pastoral landscape at Point Reyes, after becoming a National Seashore in 1962. She is currently extending this research into a book.
The brief signed by Dr. Watt acknowledges Judge Watford’s dissenting opinion and argues Point Reyes National Seashore was established to include aquaculture in its explicit protection of local agriculture – not to erode or remove it. Her brief explains that the wilderness laws would still allow the oyster farm to continue operation.
“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 nor did Congress or the public give any indication that wilderness designation would be hindered by the farm’s continued presence,” Dr. Watt writes.
Oysters a wilderness experience
In a brief filed Monday, Oct. 28, James Talcott Linford, a San Rafael attorney for the Monte Wolfe Foundation (a California non-profit whose core mission is the preservation of the Monte Wolfe Cabin, a structure located within the Mokelumne Wilderness Area) argues that “Savoring a Drakes Estero oyster is a wilderness experience.”
Linford points out that the Ninth Circuit has, in another case, “rejected an understanding of the Wilderness Act that would preserve the wilderness in a museum diorama, one that we might observe only from a safe distance, behind a brass railing and a thick glass window,” holding, rather, that it is the Act’s intent to assure that the wilderness be made accessible to people, “devoted to the public purposes of recreational, scenic, scientific, educational, conservation and historical use.” The brief shows that the historic oyster farm in Drakes Estero is a historical use and can easily be considered a conservation use “given the context of the National Seashore and the historic bargain between ranchers and environmentalists that created it.”
The Pacific Coast Shellfish Growers Association (PCSGA) filed a supporting brief arguing that both the Secretary’s Order of Nov. 29, 2012, denying DBOC a permit to continue to operate in the National Seashore, and the FEIS that informed his decision, ignored the adverse impacts – to the environment, oyster industry, and neighboring community – associated with ordering DBOC to cease its operations. The brief also claims the decision and the FEIS also failed to properly evaluate the positive environmental impacts associated with shellfish cultivation.
The PCSGA brief argues:
“Oysters are one of the world’s oldest food sources and provide a healthy, sustainable, and ‘green’ food source for California and consumers worldwide. Oysters provide significant sociological, economic, and environmental benefits to the surrounding environment and community. These benefits include job production, tourism, improving water quality through nitrogen and phosphorus filtration, just to name a few. As the owners and operators of a historic shellfish farm that operates on land that has cultivated shellfish for over 80 years, DBOC plays a significant role in providing these benefits to Drakes Estero, Marin County, and the State of California.”
The Pacific Legal Foundation filed a brief on behalf of the California Cattlemens Association (CCA) detailing significant legal issues raised by the case. CCA has several members who ranch within the boundaries of the National Seashore under reservations of use and occupancy and/or special use permits from the Park Service, and these members have a strong interest in ensuring that the Park Service complies with applicable laws when acting on future renewals of their permits.
I filed a brief myself, taking issue with the process by which some national activist groups jerry-rigged the public comment process on the environmental impact statement to give the false impression to the court and the public that most people support getting rid of the oyster farm. In fact, a poll of local residents shows 84% support for keeping the oyster farm.
As reported elsewhere in these pages: Legal Aid of Marin has filed a brief on behalf of two longtime employees of the oyster farm, Jorge Mata and Isela Meza, arguing that “closing the oyster farm will hurt real working people and their families.” Dr. Corey Goodman filed a brief detailing the false scientific narrative created and promulgated by NPS in its quest to eliminate the oyster farm. And on Tuesday, Oct. 22, a supporting brief was filed by San Francisco attorney Judith Teichman and a coalition of former legislators, environmentalists, and proponents of the sustainable agriculture practices of DBOC, including Earth Day co-founder and Sierra Club “environmental hero” Pete McCloskey.
“The breadth and number of Amicus briefs in this case is extraordinary,” said Peter Prows, a member of the DBOC’s legal team and a partner at Briscoe Ivester Bazel LLC. “The wide variety of perspectives represented is impressive,” he said. “Briefs have been filed by legislators, scientists, environmentalists, historians, legal experts, and farmers, and by conservatives and liberals alike. That’s not surprising given what’s at stake here – the question of whether government agencies can abuse their power with impunity.”
October 18, 2013
Drakes Bay Oyster Company Files Petition for Rehearing by Ninth Circuit
A Pattern of Deception
By Sarah Rolph
Last week in these pages I reported on a false story at the online publication Food World News claiming that Drakes Bay oysters had been recalled, and two tweets that were sent within minutes of the story, claiming that Drakes Bay Oyster Company (DBOC) was making people sick.
The tweets – which pointed not to the false story but to a year-old press release from the California Department of Public Health — were sent by Amy Trainer, executive director of the Environmental Action Committee of West Marin (EAC), and by Steve Maviglio, who heads a Sacramento PR firm, has recently been echoing the EAC narrative, but says he doesn’t work for Amy.
Amy’s tweet was deleted, and the cause of the story and the tweets remains a mystery.
This pattern, however, is familiar.
In September 2009, Tess Elliott, editor of the Point Reyes Light, published a story in The Nation magazine objecting to the nomination of Jon Jarvis to head the National Park Service. Entitled Scientific Integrity Lost on America’s Parks, the story is still online. In response to this story, Gordon Bennett, who was at the time a spokesperson for the Sierra Club, posted a letter that was so offensive that the publication saw fit to remove it from their web site.
In October 2011, Neal Desai of the National Parks Conservation Association (NPCA) sent a photograph to Kurt Repanshek’s National Parks Traveler blog, a photo Desai claimed was evidence that DBOC was causing harm to seals. The photograph showed no such thing. In the course of his unauthorized use of the photograph (taken by John Hulls and Todd Pickering and used by Desai without permission), Desai had altered it, removing labels that make the context of the photo clear. When the misuse was explained to Repanshek, the misleading photograph was immediately removed and the story revised.
A tweet, a letter, a photograph. Three different incidents, three different organizations, and one common behavior: smearing DBOC, using false charges egregious enough that they had to be removed from the web.
There’s ample evidence that these organizations work together. When the Park Service released the public comments about its Draft Environmental Impact Statement (DEIS) on DBOC, within minutes, a press release was issued jointly by NPCA, EAC, and the National Wildlife Federation, claiming that 92% of the comments supported removal of the oyster farm. Since 92% of anything is a very unusual result, I read those comments, and found that most of them were form letters. Using a computer program, I performed an analysis that showed that roughly 92% of the comments were in fact manufactured by the anti-oyster-farm activists, using sophisticated direct-mail software that pushed emails to the members of these organizations and sent the comment (which in most cases was not even modified by the so-called respondent) directly into the NPS comment system.
The emails used to gather these so-called DEIS comments did not even mention the DEIS, much less provide a link to the document. Instead they used scare tactics, claiming harm to wildlife and danger to wilderness. One of the email alerts, from Neal Desai of NPCA, even claimed that Harbor seals were an endangered species. Harbor seals are not endangered, threatened or even listed by U.S. Fish and Wildlife. When this misrepresentation was pointed out to Desai, he declined to correct the record.
According to the NEPA process under which the DBOC DEIS was created, public commenting “is not a vote,” and duplicate comments don’t actually count.
But the press release was very effective. It created the desired impression, and that’s apparently all that mattered to the activists working against DBOC.
It seems these activists are willing to say and do anything to undermine the ability of the Lunny family to operate Drakes Bay Oyster Farm. Law, science, history – and most recently, health regulations — have been misrepresented in the non-stop campaign to shut down the oyster farm.
Why is the NPCA allowing Desai to conduct a misinformation campaign? What kind of direction is the board of EAC providing to Amy Trainer?
The anti-oyster-farm activists have indicated they are not planning to stop with the elimination of the oyster farm. In a story in the online publication Grist, Neal Desai seemed to indicate that the ranches are next, saying:
“If the ranching has impacts, those should be managed to the extent possible,” says Desai, with the National Parks Conservation Association. “Can more be done? I’m sure. Has this actually been addressed? Probably not. The park has been focused on this oyster farm issue.”
A few wilderness activists are trying to control what happens in your community—who is allowed to do business here, who is allowed to live here, and who is not. They seem to believe that their wilderness goal trumps everything, including contracts and permits, renewal clauses, scientific integrity codes, and a tall stack of rules and regulations. They seem to believe their plans for West Marin are more important than the plans of the multi-generation families who live here. They act as if their desire for a certain kind of recreational environment is more important than your local coastal planning.
These people want control of your community. Are you going to let them take it?
August 29, 2013
For Immediate Release
June 4, 2013
Media Contact: Sam Singer
Sonoma City Council Signs Resolution Calling for Investigation into National Park Service Request for Closure of Drakes Bay Oyster Company Sonoma City Council Supports Drakes Bay Oyster Company’s Efforts Towards Providing Local Jobs and Its Model for Sustainable Agriculture
SONOMA, CA — In a unanimous decision at last night’s City Council meeting, the Sonoma City Council approved a resolution that formally offers the Council’s support to save Drakes Bay Oyster Company and calls for the investigation into the National Park Service’s denial of Drakes’ permit to continue to operate at the onshore facilities at Drakes Estero in the coastal area of Marin County. In particular, the City Council commended the oyster farm for its efforts in maintaining its environmental and agricultural stewardship which presents an exemplary model of harmonious co-existence of sustainable agriculture and resource conservation.
The City Council specifically called on Assembly Member Marc Levine, Chair of the Select Agriculture and Environment Committee, to urge the State of California to assert its rights to continue to lease the water bottoms in Drakes Estero for shellfish cultivation which would include giving support to the Fish and Game Commission in its full jurisdiction. Additionally, the City Council requested Congressman Jared Huffman to support a bi-partisan Congressional investigation by the appropriate House Committee of Natural Resources, which he is a member of, into the questionable science that informed Secretary Salazar’s decision not to grant Drakes Bay a permit for the facilities in Drakes Estero.
For years, the Lunny family, who owns and manages the historic oyster farm and the last cannery in California, has been fighting the Interior Department and the National Park Service over their attempts to close down the farm. In a decision made last November, then-Interior Secretary Ken Salazar refused to issue a permit to allow Drakes Bay to continue farming upon the expiration of its 40-year-lease—-a lease which allowed it to operate on public land within the Point Reyes National Seashore and which was created decades after the oyster farm’s inception.
“We are thrilled and honored to have the support of the Sonoma City Councilmembers,” says Kevin Lunny. “The next several weeks are an important time for our community, as we continue to build support and make our voices heard throughout Marin County, the state of California, and the country. With the support of the Councilmembers and thousands of community members, we will continue to fight to keep our historic, family-owned and community-loved oyster farm open.”
The Lunnys, who have been pressing for an extension of their lease for years, state that Salazar based his decision on flawed environmental impact studies and contend that the State, not the National Park Service, retains the right to farm shellfish in Drakes Estero and they have already extended that agreement until 2029.
Drakes Bay has already garnered the support of many individuals and organizations within the community who view the farm as a respected steward of the land and representative of the best in environmental protection. Supporters of the Save Drakes Bay Oyster Farm include California Senator Dianne Feinstein, a group of restaurant owners and sustainable food advocates, including Alice Waters of Chez Panisse, as well as many leading scientists and environmentalists throughout the Bay Area. For a full list of Drakes Bay’s 2,000+ supporters please visit www.drakesbayoyster.com/howtohelp/endorse.php.
May 26, 2013 To: Michael Getler, Ombudsman, Public Broadcasting Service, firstname.lastname@example.org From: Dr. Corey Goodman, Nancy Lunny, and Kevin Lunny Re: Response to Cause of Action May 17, 2013 letter to PBS
Dear Mr. Getler,
We recently learned of the May 17, 2013 letter and Freedom of Information Act (FOIA) request to you from Cause of Action. Regrettably, all three of our names were cited in the Cause of Action letter as if we condoned it, which we did not, and as if it was submitted on our behalf, which it was not. We only learned of it after the fact, and on May 22, we asked Cause of Action to retract the letter and FOIA request, which they did. We write today to further clarify our position, our role, and our relationship.
All three of us were clients of Cause of Action for the Data Quality Act complaint we filed last August with the National Park Service, and other related issues of scientific misconduct. Kevin and Nancy Lunny were clients of Cause of Action in the federal suit, Drakes Bay Oyster Co. v. Jewell, currently pending before the Ninth Circuit Court of Appeals. Cause of Action did a very good job representing us on these legal and policy issues. We thank them for their dedication and the quality of their work. Nevertheless, we have severed our relationship with Cause of Action, and they no longer represent us.
Along the way, some in the media have repeatedly aired accusations that we are part of some conspiracy to destroy parks and wilderness. Nothing could be further from the truth. We are environmentalists and agriculturalists. We also believe in working landscapes, the collaboration of sustainable agriculture while protecting the environment, and maintaining the character of our community.
The piece by Spencer Michels which aired on the PBS NewsHour on May 1 uncritically repeated the false accusations that we have “... spun out narratives that have no relationship to the facts.” On the contrary, our “narratives”—the virtue of a small family farm, the absence of any scientific evidence of harm to the environment, and misrepresentations of science made by a federal agency in its obsession to eliminate the farm—are indisputably true. What narratives of ours have no relationship to the facts? Conspicuously missing from the NewsHour piece was any reference to the facts of scientific misrepresentations which are central to the story. Again and again, agency personnel accused the oyster farm of causing environmental harm, only to be rebuked by the National Academy of Sciences and, mostly recently, by their own independent expert (see below).
Our efforts to explain the situation to Mr. Michels were ignored. One of us (Dr. Corey Goodman) contacted Mr. Michels by email several times, weeks prior to the broadcast, but he did not respond. Another (Kevin Lunny) provided Mr. Michels with accurate
information that was largely ignored.
We write with two missions. First, to confirm that we did not know about the Cause of Action letter and FOIA request prior to its submission, and we do not approve of it. While we believe that the PBS broadcast perpetuated biased reporting, we nevertheless steadfastly defend the freedom of the press. A free press is just as critical to our society as is truth and scientific integrity in our government.
Second, we encourage you to be more balanced in your future coverage of these important issues. We request to get together with PBS to review the NewsHour broadcast and discuss the National Park Service’s misrepresentations and its abuse of science in support of ideology.
President Obama, in the first months of his administration and again a few weeks ago, spoke eloquently about science no longer taking a back seat to ideology. We hope you agree that our government must be informed by honest science.
Five National Park Service staff who claimed environmental harm by the oyster farm were found to have violated the NPS Code of Scientific and Scholarly Conduct. That is just the tip of the iceberg. Most recently, the NPS, in their Final Environmental Impact Statement for the oyster farm permit, claimed the oyster farm had an adverse impact on harbor seals, citing the analysis of an independent harbor seal behavior expert in support of that conclusion. The problem is, the expert said just the opposite, and the NPS knew it. The independent expert, Dr. Brent Stewart, found “no evidence of disturbance” to harbor seals caused by the oyster farm’s operations. When we raised this issue, Interior went back to Dr. Stewart a second time, asked him to re-review the data, and he came to the same conclusion once again, so they suppressed his findings. That is both misconduct and a cover-up. These issues are very real, and have profound implications. Aren’t these the kinds of issues the NewsHour should be exposing?
The Department of the Interior violated the Presidents Scientific Integrity Policy over and over again in allowing a pre-determined agenda to drive false and dishonest science concerning the oyster farm at Drakes Estero. We hope your coverage in the future will get back to the important issues for our society. We also hope that by writing this letter, we can put to rest once and for all any notion that we have any objective other than assuring scientific integrity and preserving this important small family farm and with it, the character of our community. Everything else is a distraction from the real issues.
We look forward to working with you in the near future. Best wishes,
Corey Goodman, Ph.D. email@example.com
Kevin Lunny firstname.lastname@example.org
Nancy Lunny email@example.com
- ,Cause ofACTION Advocates for Government Accountability
RE: Freedom of Information Act Request
Dear Mr. Getler:
I write on behalf of Cause of Action, a nonprofit, nonpartisan government accountability organization that fights to protect economic opportunity when federal regulations, spending and cronyism threaten it.
In a recent NewsHour piece concerning a legal battle between the Drakes Bay Oyster Company and the U.S. Department oflnterior, which aired on May 1, 2013, and its accompanying online article, entitled Strange Bedfellows Join Fight to Keep California Oyster Farm in Operation,1 our Executive Director, Dan Epstein, was described as “an attorney who once worked for a foundation run by one ofthe conservative activist Koch brothers,”2 yet despite a long track record in Democratic politics and lobbying, by contrast, Tom Strickland was simply described as a “former Assistant Secretary ofthe Interior” who has ‘)oined the fight.” Amy Trainer has worked with a litany of left-leaning organizations and clients, yet she is simply described as the head of an environmental group.
Environmental activist Phyllis Faber is described as “not happy to be on the same side as Cause of Action.” In the May 1, 2013 NewsHour broadcast, Ms. Faber is quoted as stating, “I am very disturbed by that and I dont agree with it at all. I think what theyre headed for is trying to use a commercial operation in a park -they want to establish that in other public, on other public lands and I think thats terribly unfortunate.”
1 Strange Bedfellows Join Fight to Keep California Oyster Farm in Operation, PBS Newshour, (May 1, 2013), available at http://www.pbs.org/newshour/bb/north_america/jan-june13/oyster_05-0l.html; see also Spencer Michels, Conflict ofLease and Legacy Provokes Controversy on the HalfShell, PBS Newshour, (May I, 2013), available at http://www.pbs.org/newshour/rundown/2013/05/contlict-of-lease-and-legacy-provokes-controversy-on- the-half-shell.html.
For the entire letter please go to http://causeofaction.org/wp-content/uploads/2013/05/2103-5-17-FOIA-PBS-DBOC.pdf
For immediate release
NPS and USGS Falsified Finding of Harbor Seal Disturbances at Drakes Estero
New Information Shows False Science Misinformed Interior Secretary Salazar for His Decision
Inverness, California, May 13, 2013 — A scientific misconduct complaint was filed today with Interior Secretary Jewell. This complaint was based in part on new information only made available this past week via both the Freedom of Information Act (FOIA) and from the independent scientist who did the harbor seal behavioral analysis for the National Park Service (NPS) and U.S. Geological Survey (USGS). The complaint, filed by Dr. Corey Goodman, concerns the NPS and USGS claim – shown to be false – that the independent scientist – Dr. Brent Stewart – found the oyster farm disturbed harbor seals at Drakes Estero, which he did not. The complaint alleges the public was deceived.
The new information shows that evidence of disturbances was falsified. This revelation has profound implications for Secretary Salazar’s decision to not renew the oyster farm permit, showing that USGS and NPS apparently misinformed Secretary Salazar using scientific claims they knew were incorrect, and that the Department of Justice continues to use the same false science to misinform the federal court.
The data in question are included in the NPS Final Environmental Impact Statement (FEIS) released in late November 2012. The FEIS alleges that oyster boats have a “moderate adverse impact” on the harbor seals at Drakes Estero, a claim the new information shows is not true. Around the beginning of 2012, NPS asked USGS to independently analyze the 300,000 photographs from secret cameras placed along the shore of Drakes Estero from 2007 to 2010. The USGS scientists picked 165,000 photographs from 2008 for their analysis. They sent all of the series of photographs that showed possible harbor seal disturbances to an independent harbor seal behavior expert, Dr. Brent Stewart of Hubbs-SeaWorld Research Institute.
Last May, Dr. Stewart filed his report that found “no evidence of disturbance” by the oyster farm, but USGS misquoted him and claimed he found two correlated disturbances, and the NPS FEIS further misrepresented both USGS and Dr. Stewart and claimed he found cause and effect, and with it, NPS found a moderate adverse impact. Two serial misrepresentations led a finding of “no evidence of disturbance” by the independent expert to be transformed to a finding of causation of disturbances by NPS in its FEIS.
This past week, USGS released a series of emails in response to a FOIA request submitted in December 2012. Those emails show that USGS and NPS personnel believed that the analysis of the NPS photos had very high priority and was fast tracked to inform Secretary Salazar’s decision on the oyster farm permit. The emails also reveal that USGS personnel apparently briefed two Assistant Secretaries of Interior on July 3 to inform the Secretary’s decision. It appears the Secretary was briefed with false science.
In early December 2012, questions were raised concerning the USGS and NPS claims vs. the independent scientist’s findings. As a result, USGS personnel went back to the independent expert and asked him to re-review the NPS photographs. Dr. Stewart’s supplemental analysis, filed with USGS on December 10, 2012, shows that he confirmed his initial analysis, namely, the finding of no evidence of disturbances by the oyster farm. Up until this past week, Dr. Stewart’s supplemental analysis has not been made public.
Upon request from the office of Congressman Jared Huffman, Dr. Stewart provided this report to the Congressman’s staff nearly two weeks ago, and released those same documents upon request from Dr. Goodman this past week. This supplemental report, and the request and submittal emails, were not included in the USGS response to the FOIA request, raising questions as to whether USGS withheld the material in violation of FOIA, or alternatively, whether USGS personnel used private email addresses to circumvent FOIA. Regardless, this key document was not provided in response to the FOIA request.
“After receiving the supplemental report, the USGS should have retracted its own report, informed NPS that its FEIS contained major mistakes, and informed the Secretary that he was misinformed for his decision,” said Dr. Goodman. “But it appears as if none of this happened. Dr. Stewart’s supplemental report was suppressed, and with it, the evidence showing misconduct was covered up.”
Although Interior stated that the science was not important to the Secretary’s decision, the new documents paint a very different picture, one in which NPS was “chomping at the bit” for the USGS scientific analysis of the photographs because of the Secretary’s “deadlines for deciding on the permit.”
“NPS and their supporters keep saying that the science isn’t important in the federal court case, but that just isn’t true,” said Kevin Lunny, owner of Drakes Bay Oyster Company. “The Department of Justice lawyers have used these false science claims to argue that the public good favors removal of our oyster farm, and with it, the loss of 40 percent of the State’s oysters and 30 jobs.” The next hearing for the lawsuit in the Ninth Circuit Court of Appeals is scheduled for May 14, 2013.
Dr. Goodman requested that Interior Secretary Jewell convene a blue-ribbon panel of independent scientists to investigate the allegations that USGS and NPS personnel intentionally misrepresented the findings of the independent scientist concerning the oyster farm at Point Reyes National Seashore.
Barbara Garfien Dr. Corey Goodman
By Sarah Rolph ...Russian River Times May 10 “What Was the Deal?”
The story told by anti-oyster farm activists is that the Lunnys reneged on a deal. These activists have linked that story with another story about “wilderness,” claiming that the public was promised Drakes Estero would be wilderness in 2012. In fact, it’s the Park Service and those activists that changed the deal on the Lunnys and the public.
The oyster farm’s onshore operations are governed by a 1972 Reservation of Use and Occupancy (RUO, a leaselike agreement). The original RUO provided for an initial 40-year term. The RUO has an explicit renewal clause, so that onshore operations could continue beyond 40 years as long as the oyster farm has a valid California Fish and Game Commission (CFGC) lease in Drakes Estero. The oyster farm’s CFGC lease is currently valid until 2029.
In 1976, Congress considered designating Drakes Estero as “wilderness.” But the Department of Interior and the Park Service told Congress that Drakes Estero could not become a wilderness until California gave up its rights to lease Drakes Estero. Congress agreed, and it removed the wilderness designation for Drakes Estero in the 1976 Point Reyes Wilderness Act. Legally, Drakes Estero cannot become wilderness until California gives up its rights (which it has not done).
For more than 30 years after 1972, the Park Service supported continued and even expanded oyster farming in perpetuity. For reasons the Park Service has not explained, however, its position changed completely after the Lunnys purchased the oyster farm in early 2005.
Early Support for Oyster Farm Upgrade
Just 17 years ago, when the Johnson Oyster Company wanted to upgrade on-shore operations at what is now Drakes Bay Oyster Farm, the Park Service was in favor of the project. Superintendent Neubacher backed the plan with a letter to the loan officer at the Bank of Oakland.
In his November 22, 1996 letter, Neubacher assured the bank: “As stated previously, the NPS would like the improvements to occur. In fact, the NPS has worked with Marin County planners to insure the facilities attain county approval. Moreover, the Park’s General Management Plan also approved the continued use of the oyster company operation at Johnsons on Drakes Estero.”
In 1998 Neubacher conducted an environmental assessment (EA) for the upgrade project that found the project would have “no significant impact” on the environment. There was no discussion of a mandatory end-date of 2012, and no concerns about legal issues or wilderness status. None of the environmental groups now calling for DBOC’s eviction opposed the plan.
Bait and Switch
According to Kevin Lunny, at the time of purchase Neubacher promised (but not in writing) that he would put three SUPs into the name of DBOC – one for the septic system area, one for the water well and pipeline area, and one for the ancillary use area (2.2 upland acres surrounding the 1.4 acre RUO).
“Don kept his word for the septic and the well SUPs,” says Lunny. “But the Ancillary Use SUP, which had been expired and never renewed and never charged or paid for by the
Johnsons since 1997, was not put into DBOC’s name as promised.”
After the Lunnys purchased the oyster farm and spent a small fortune cleaning up the operation, instead of putting the Ancillary Use SUP in DBOC’s name, Neubacher rewrote this SUP to include a new clause requiring that the oyster farm vacate the premises in 2012. Explains Lunny, “Don attempted to contractually remove our chance for renewal seven years before the expiration, cancelling the renewal clause we had spent months talking about.”
NPS Director Bomar Intervenes
Given the extreme change in the agreement, this was a permit the Lunnys could not and did not sign. The Lunnys were supported in this decision by both Senator Feinstein and then-director of the National Park Service Mary Bomar.
Senator Feinstein became involved in early May, 2007 at the request of the Marin County Board of Supervisors. The Supervisors had become alarmed at the false science created by the NPS and the false rumors Neubacher spread about the Lunnys.
At a meeting in Olema, CA on July 21, 2007 (attended by Senator Feinstein, Marin County Supervisor Steve Kinsey, NPS Director Mary Bomar, NPS Regional Director Jon Jarvis, Superintendent Neubacher, DOI Solicitor’s Office attorney Molly Ross, Dr. Corey Goodman, and Kevin Lunny), Director Bomar removed Neubacher from the negotiations and ordered Jarvis to deal directly with the Lunnys.
Bomar specifically ordered Jarvis to remove the surrender clause added by Neubacher. The Jarvis rewrite of the SUP added multiple unjustified restrictions and new assertions of jurisdiction, but once the surrender clause was removed in 2008, the Lunnys signed the permit, considering it the best option available.
A Field Solicitor’s Opinion
The one document that is often used to support claims of non-renewability is a 2004 local field solicitor’s opinion, a letter erroneously concluding that the RUO could not be renewed. That opinion was provided to the Lunnys in early 2005, after they had taken over the oyster farm and spent over a quarter million dollars to clean up the operation.
Department of Justice lawyers have admitted in federal court that DBOC was not given the opinion until 2005, after DBOC had taken over. Yet the DoJ lawyers, the NPS, and the wilderness activists handle this fact dishonestly. They told the court and they tell the public that “Lunny was provided the opinion before escrow closed.” The close of escrow depended on NPS putting all three SUPs into DBOC’s name, and NPS failed to uphold their promise to do so. Because NPS failed to issue the third SUP, escrow never formally closed, but with the signing of the permit in April of 2008 it was considered as good as closed.
An Unexplained Shift
From the beginning of his tenure as Superintendent up until 2005, Neubacher appeared to the public to be managing the Estero as a responsible superintendent of Point Reyes National Seashore, working with all constituents concerning the fate of the oyster farm.
The public has not been told what changed in 2005. But clearly, beginning then, the Park Service at Point Reyes departed from responsible management and began acting in service of an agenda that has not been shared with the public. Regardless of one’s views on wilderness, oysters, or commercial farming, one ought to be alarmed when a government agency decides to renege on deals and rewrite history.
The public’s deal with the Park Service is that we will give them our tax dollars and they will spend them in accordance with the law. Like any citizen and taxpayer, the Lunnys had every right to expect that Neubacher and Jarvis and NPS would act lawfully. The Lunnys and the community will not rest until this injustice is corrected.
Frequently Asked Questions about DBOC and the California Coastal Commission
Is DBOC suing the Coastal Commission? Released May 10, 2013
Yes. There are actually two similar lawsuits. One was filed by Phyllis Faber and the Alliance for Local Sustainable Agriculture (ALSA). The other was filed by Drakes Bay Oyster Company.
In early April, Marin County Superior Court Judge Lynn Duryee granted an alternative writ that requires the Coastal Commission to show good cause why its cease and desist and restoration orders should not be rescinded. The hearing date is currently set for July 9, 2013.
Is it true that the California Coastal Commission is breaking environmental law?
Yes. The California Environmental Quality Act (CEQA) requires the Commission take into account any evidence about environmental impacts that would result from implementing its orders. The Order the Commission is trying to enforce against DBOC would have serious environmental impacts. (For example, the Commission is ordering the oyster farm to undertake demolition efforts to remove all the oyster racks, which have been in place for decades, without studying how that construction will affect the environment. The federal court and the Dept. of Justice lawyers agreed that the removal of the oysters and racks will cause environmental harm.)
When the evidence of these environmental impacts was submitted to the Commission, instead of taking it into account, the Commission expressly voted to exclude it from the record. That is a clear violation of CEQA.
Is it true that the California Coastal Commission is violating the Coastal Act?
Yes. The Coastal Commission is trying to control what types of shellfish Drakes Bay Oyster Company grows and how they are grown. According to explicit provisions of the Coastal Act, the authority to make these decisions is vested with the California Fish and Game Commission (which makes policy), and the California Department of Fish and Wildlife (which enforces that polic
CCC FAQ Page Two
The Coastal Commission says DBOC is violating the law by operating without a permit. Is that true?
No. DBOC is authorized to operate while waiting for its permit to be granted. Over a multi- year period, DBOC has complied with every request from the Coastal Commission throughout the permitting process. All required paperwork has been filed by the Lunnys. Coastal Commission staff chose to suspend the DBOC permit when the Park Service decided to create an environmental impact statement (EIS), telling the Lunnys that the Commission wanted to wait until the Park Service’s EIS was complete. Once the EIS was complete, instead of proceeding with the permit, the CCC proceeded with new Cease and Desist and Restoration Orders.
DBOC remains committed to following all applicable laws and processes, and stands ready to continue the negotiations the CCC broke off in 2012.
Is it true that the “unpermitted development” in the Cease & Desist Order from the CCC refers to minor additions such as new picnic tables?
Is it true that Marin County Supervisor and Coastal Commission member Steve Kinsey said the actions of the Coastal Commission staff are “morally disturbing”?
Yes. Mr. Kinsey said, on the record, that the CCC staff’s actions are “morally disturbing,” because the staff “repeated the same disproven assertions that the operation was harming harbor seals and eelgrass” NPS has made. Kinsey said: “CCC staff chose to portray the Lunnys as irresponsible operators to aid and abet the Park Service’s myopic interest in terminating the lease. Given the unequivocal support of aquaculture written into the Coastal Act and the specific support in Marin’s Local Coastal Program, I am deeply disappointed in the staff’s attitude and complicity with the NPS.”
Is it true that the Coastal Act itself (the charter for the CCC), explicitly supports aquaculture (farming of shellfish such as oysters)?
Yes. Public Resources Code 30222.5 requires to Commission to give “priority” to aquaculture proposals. Public Resources Code 30234 requires the Commission to “protect and, where feasible, upgrade” facilities serving “commercial fishing”, such as DBOC’s. Section 30234 also prohibits “reduc[ing]” existing facilities serving commercial fishing (except in circumstances not relevant here). Instead of working to protect and upgrade DBOC, however, the CCC has worked to restrict DBOC’s operations. Public Resources Code 30411(c) expresses the Legislature’s policy to “encourage” aquaculture, and says that the Commission “shall” provide aquaculture in the sites identified by the Department of Fish and Wildlife for aquaculture (DBOC is in one of these sites).
Is it true that the Marin County Local Coastal Program (the county’s formal actions in accordance with the Coastal Act) explicitly supports aquaculture?
Yes. On page 34 of the Marin County Local Coastal Program, Section 30222.5 states: “Oceanfront land that is suitable for coastal dependent aquaculture shall be protected for that use, and proposals for aquaculture facilities located on those sites shall be given priority, except over other coastal dependent developments or uses.”
Is it true that the primary policy document for Point Reyes National Seashore, the NPS General Management Plan, supports aquaculture?
Yes. On page two of the PRNS GMP, the GMP shows two Natural Resource Management Objectives for the pastoral and estuarine areas. The two objectives are:
• To monitor grazing and improve range management practices in the pastoral zone in cooperation with the ranchers and the Soil Conservation Service.
• To monitor and improve maricultural operations, in particular the oyster farm operation in Drakes Estero, in cooperation with the California Department of Fish and Game.
Salazar supporters file amicus brief; DBOC supporters sue Coastal Commission
By Lynn Axelrod
Five organizations supporting Interior Secretary Salazars decision last November to let DBOCs special use permit expire filed a ‘friend of the court brief yesterday with the Ninth Circuit Court of Appeals in Drakes Bay Oyster Companys case against the Interior Department and the National Park Service.
The EAC of West Marin, National Parks Conservation Association, Natural Resources Defense Council, Save Our Seashore, and Coalition of National Park Service retirees included the opinions of internationally honored marine biologist Dr. Sylvia Earle; acoustics expert Dr. Dominique Richard; and Dr. John Kelly, Director of Conservation Science at Audubon Canyon Ranch.
The brief challenges an earlier brief filed by DBOC supporters as containing “unsubstantiated allegations regarding private economic interests.”
Dr. Peter Baye, a coastal plant ecologist, argues in yesterdays filing that “water quality in Drakes Estero will not suffer or decline with the removal of DBOCs non-native oysters and oyster infrastructure.” This issue has been raised in related litigation filed Friday by Phyllis Faber and the Marshall-based Alliance for Local Sustainable Agriculture (ALSA).
The Faber-ALSA complaint seeks to set aside the California Coastal Commissions unanimous Cease and Desist and Restoration Orders issued against DBOC February 7.
According to an April 5 letter to the Commission from the two law firms representing Faber and ALSA, their claim is that the Commission should have prepared an environmental impact report under the California Environmental Quality Act (CEQA) before rendering its decision. Faber describes her lawsuit in a letter in this weeks issue.
The Commissions Cease and Desist Order on February 7 was as follows: “(1) to cease and desist from conducting or maintaining unpermitted development; (2) to remove onshore unpermitted development; (3) to remove and/or cease unpermitted development, including discharge of invasive Didemnum sp., Manila clams, and marine debris from Drakes Estero and beyond; and (4) to follow requirements to seek Coastal Act authorization for specified unpermitted development, and (5) to limit any interim operations and conduct them pursuant to a set of guidelines designed to protect the environment, including by controlling the invasive Didemnum sp.”
The Faber-ALSA complaint was criticized by the Environmental Action Committee of West Marin.
A written statement from Executive Director Amy Trainer stated in part: “After racking up seven years of continuous Coastal Act violations, the company continues to try to evade its legal obligations by filing this baseless lawsuit to stop a State agency from doing its job to protect our coastal resources....”
Trainer, a lawyer, noted that “regulatory actions by government agencies to protect natural resources or the environment, and enforcement actions, are categorically exempt from CEQA review.”
On a third front that focuses on actions by the National Park Service, Congressman Doc Hastings (R-WA), Chair of the House Committee on Natural Resources, has requested that the Interior Department provide its files concerning Secretary Salazars decision to allow the DBOCs special use permit to expire last November. Echoing arguments by DBOCs lawyers, Hastings writes that the Interior Dept. “was not bound to follow the National Environmental Policy Act (“NEPA”), or any other law, in considering whether to grant the oyster farms extension...”
DBOCs lawyers contend that while Interior did not have to follow NEPA in giving the oyster company a ten-year extension, it was required to do so in order to to let the companys special use permit expire.
The deadline to turn over the records is April 26. -Lynn Axelrod
UPDATE: On April 10 Marin Superior Court Judge Duryee granted The Alternative Writ of Mandate filed Friday, April 5 on behalf of the Alliance for Local Sustainable Agriculture (ALSA)>
[PROPOSED] AMICI CURIAE BRIEF OF ALICE WATERS; THE HAYES STREET GRILL [A RESTAURANT]; TOMALES BAY OYSTER COMPANY; MARIN COUNTY AGRICULTURAL COMMN’R; STACY CARLSEN; CALIFORNIA FARM BUREAU FEDERATION; MARIN COUNTY FARM BUREAU; SONOMA; COUNTY FARM BUREAU; FOOD DEMOCRACY NOW; MARIN ORGANIC; AND ALLIANCE FOR LOCAL SUSTAINABLE AGRICULTURE; SUPPORTING APPELLANTS AND REVERSAL
JUDITH L. TEICHMAN (CSBN 39434) 2558 Clay Street, #1 San Francisco, California 94115-1832 Telephone: (415) 921-2483 Email: firstname.lastname@example.org Attorney for [Proposed] Amici Curiae
CORPORATE DISCLOSURE STATEMENT (FRAP 26.1)
The Tomales Bay Oyster Company, The Hayes Street Grill, the California Farm Bureau Federation, the Marin County Farm Bureau, the Sonoma County Farm Bureau, Food Democracy Now, Marin Organic, and the Alliance For Local Sustainable Agriculture, do not have any parent corporations and no publicly held corporation owns 10% or more of their stock.
STATEMENT OF AMICI’S IDENTITY, INTEREST, AND SOURCE OF AUTHORITY TO FILE
This brief is filed pursuant to Rule 29(a) of the Federal Rules of Appellate Procedure. All parties have consented to its filing.
Alice Waters, chef, author, and the proprietor of Chez Panisse restaurant, is an American pioneer of a culinary philosophy that maintains that cooking should be based on the finest and freshest seasonal ingredients that are produced sustainably and locally, such as shellfish from Drakes Bay Oyster Farm. She is a passionate advocate for a food economy that is “good, clean and fair.” Over the course of nearly forty years, Chez Panisse has helped create a community of scores of local farmers and ranchers, such as the Lunnys, whose dedication to sustainable aquaculture and agriculture assures the restaurant a steady supply of fresh and pure ingredients.
Hayes Street Grill is a fish restaurant in San Francisco’s Civic Center district. Drawing inspiration from old San Francisco grills in the financial district when it opened in 1979, and using a unifying theme of fish and seafood, the restaurant took the grill concept a step farther by seeking out local ingredients and cooking them in a modern style so the “freshness and pristine quality of the fish, produce, and naturally-raised meats” can “speak for themselves.” The loss of the shellfish DBOC produces and sells in the San Francisco Bay Area would have a devastating impact on the Grill’s ability to serve fresh shellfish.
Tomales Bay Oyster Company [TBOC] is one of two oyster farms located on Tomales Bay in Marin County with retail shops along State Highway One. TBOC’s retail and picnic area is at capacity. The demand for oysters is too high for the Tomales Bay oyster farms to meet even with DBOC in production. They do not have the capacity to expand, and there is no other source for local shellfish. TBOC customers will be adversely affected if DBOC’s 50,000 customers attempt to visit TBOC. TBOC is also concerned about the impact on DBOC’s experienced workers, who have been living and working in the community for as long as 30 years, and who are an integral part of the West Marin community and economy. TBOC’s additional concerns are set out in comments on the Draft Environmental Impact Statements [DEIS], a copy of which is attached to the Appendix as Exhibit 7.
Marin County Agricultural Commissioner Stacy Carlsen is concerned, among other things, with the impact of closing DBOC on the lives of the children and the working families who would be impacted, working families who are part of the “social fabric of the community where they live;” of the impact on indirectly related jobs in markets and restaurants; and the impact on the availability of fresh, locally grown food for local markets. His additional concerns are set out in more deal in his comments on the DEIS, a copy of which is attached to the Appendix as Exhibit 5.
The California Farm Bureau Federation, the Marin County Farm Bureau and the Sonoma County Farm Bureau are nonprofit voluntary membership corporations whose purpose is, respectively, to protect and promote agricultural interests in the State and in their Counties, and to find solutions to the problems of the farm and rural communities. The participation of the California Farm Bureau Federation and the Marin County Farm Bureau as amici is an extension of their concern for the future of DBOC as expressed in comments on the Draft Environmental Impact Statement, which appear in the Appendix as Exhibits 21 and 22 respectively. A copy of an undated letter to President Obama asking him to rescind Secretary Salazar’s Order is posted on the Sonoma County Farm Bureau’s website. A copy is attached to the Appendix as Exhibit 24.
Food Democracy Now is a grassroots movement of more than 350,000 American farmers and citizens dedicated to reforming policies relating to food, agriculture and the environment. They want to support DBOC because they “believe in recreating regional food systems, supporting the growth of humane, natural and organic farms, and protecting the environment.”
Marin Organic was founded in 2001 by “a passionate group of farmers, ranchers, and agricultural advisors to put Marin County on the map as a committed organic county.” Marin Organic fosters “direct relationship between organic producers, restaurants, and consumers” to strengthen commitment and support for
local organic farms, such as DBOC. Alliance for Local Sustainable Agriculture [ALSA] is 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.” They are “advocates for the use of good science and fair processes.” They are also the author of a proposed “Collaborative Management Alternative” to the alternatives proposed by the NPS in the DEIS/Plan, which was supported by 1750 commentators, including several of the amici. ALSA’s comments on the DEIS include the Alternative. A copy is attached to the Appendix as Exhibit 23.
There is no single voice that can speak for the “public interest” in keeping the Drakes Bay Oyster Company [Oyster Farm or DBOC] open until the Secretary of the Department of the Interior’s [DOI] Order to close can be reviewed.
Closing the Oyster Farm would have a broad, negative and immediate impact, on the local economy and the sustainable agriculture and food industry in the San Francisco Bay Area, on the school children of the workers who live in the housing units onsite, and, in the longer term, on food security and the U.S. balance of trade. Closing down the oyster farm in Drakes Estero, which has existed since the early 1930s, would be inconsistent with the best thinking of the modern environmental movement and further tear at the fabric of an historic rural community that the Point Reyes National Seashore [Seashore] was created to help preserve.
On the other hand, the sounds of motorcycles racing by Drakes Estero on the adjacent highway will not cease if the Oyster Farm is closed. The ranches that surround Drakes Estero will remain in the area zoned “pastoral” right up to its shoreline. California’s retained fishing and mineral rights in Drakes Estero will still exist. Closing down the Oyster Farm would simply be a mark in the “win column” for the National Park Service [NPS] and
other traditional conservationists, wilderness advocates stuck in an archaic and discredited preservationist paradigm, whose apparent aim is to convert Drakes Estero to titular wilderness status at any cost.
This brief identifies a wide variety of public interests that will be seriously and negatively impacted if the Secretary’s Order to close down the Oyster Farm is not enjoined pending a decision on the merits of the case. These interests are all part of the administrative record, in “comments” on the Draft Environmental Impact Statement [DEIS] on a proposed Special Use Permit [SUP] for the Oyster Farm. These interests were disregarded when the Secretary based his decision on a false interpretation of Section 124;1 ignored the State’s fishing and mineral rights; and “was informed” by discredited National Park Service [NPS] science despite Congress directing that the National Academy of Sciences [NAS] review the science in the DEIS.2
1 Section 124 of Public Law 111-88.
2 Counsel for DBOC provided some thoughts and comments on this brief, but it was authored entirely by the undersigned. Other than the undersigned, no person, party, or party’s counsel contributed money to fund the preparation or submission of this brief.
II. SHELLFISH AS A FOOD SOURCE IN CALIFORNIA
The practice and right of people to obtain nourishment from fish, in particular mollusks such as oysters, which are relatively easy to gather, have a long history and the rights have a unique character. There is DNA evidence indicating that the first hominids to emigrate from Africa to the Middle East, Europe and Asia emanated from a shellfish rich coastal region of South Africa, Pinnacle Point, where many of their shell mounds have been found. Similar shell mounds exist, of course on the shores of Drakes Estero and Tomales Bay and similar inlets along the Pacific Coast.3
Fish generally, but shellfish in particular, have been an important food source for California for centuries, where fish, fishing and fisheries are managed as resources held in trust for the People of the State. The California Constitution contains multiple provisions designed to protect the
3 Water’s Edge Ancestors: Human evolution’s tide may have turned on lake and sea shores, by Bruce Bower, Science News, August 13, 2011, pages 22 et seq. Appendix, Exhibit 1. Counsel for amici respectfully requests that the Court take judicial notice of the exhibits in the Appendix pursuant to Fed R Evid 201(c). All exhibits are easily accessible on the web. Most of the exhibits are copies of “comments” on the Draft Environmental Impact Statement that are part of the administrative record, which, because of the circumstances under which this issue has arrived with the Court, has not yet been assembled and submitted to the Court. That correspondence is published on the Seashores website: http://www.nps.gov/pore/parkmgmt/planning_dboc_sup_deis_public_comm ents.htm. A few other exhibits are copies of commentary in the press, not evidence offered to prove underlying facts.
interest of the People in fish as food. The California Fish and Game Commission, which authorizes State leases for shellfish cultivation, is the only body to which the California Legislature may delegate policy-making authority. Article IV, Section 20. See 17 Ops. Cal. Atty. Gen. 72, at 78 (February 20, 1951).4 The Legislature must retain the People’s “right to fish” in any transfer of the State’s tidelands. Cal. Const., Article 1, Section 25. “Money collected under any state law relating to the protection or propagation of fish and game shall be used for activities relating thereto.” Id., Article XVI, Section 9. And shellfish cultivation pursuant to a State lease serves a public purpose that would require the United States to provide the States lessee with a right of way to the water, even if the SUP is not granted. Id., Article X, Section 4.
In upholding a 1919 statute that authorized the Fish and Game
Commission to regulate and control “the handling of fish or other fishery
products for the purpose of preventing deterioration or waste,” the California
Supreme Court elaborated on the importance of fish as food in California:
The public policy of this state in its relation to the food fish within its waters has been clearly, consistently, and unmistakably manifested through out the history of its fish and game legislation. It aims at the protection and conservation of food fish for the benefit of the present and future generations of the people of the state and the devotion of such fish to the
4 Appendix, Exhibit 2, California Attorney General Opinion, 17 Ops. Cal. Atty Gen. 72 (February 20, 1951).
purposes of human consumption. . . . People v. Monterey Fish Products Co. (1925) 195 Cal.548, at 557.
Today California is second only to the State of Washington in shellfish production on the West Coast. Almost 40% of the oysters grown in California and 50% of the Marin-County produced oysters are grown in Drakes Estero. The Drakes Estero water bottoms are 55% of the water bottoms in the State of California that are leased for shellfish cultivation and 85% of the shellfish growing area in Marin County and the San Francisco Bay Area.5 Shellfish produced in Drakes Estero play an important role in the local, regional and statewide economy, and there are no options for
relocating these oyster beds in California.6
III. SHELLFISH IN DRAKES ESTERO
Shellfish from Drakes Estero are an integral and important part of the Bay Area’s world famous local sustainable agriculture and food industry. Closing down Drakes Estero as a source of fresh, sustainably raised shellfish would wreak havoc with this industry. The California Fish and Game Commission has said that it intends to lease the Drakes Estero water bottoms
5 Appendix, Exhibit 4. October 10, 2012 letter to Seashore Superintendent Cicely Muldoon from California Fish and Game Director Charles Bonham. [Exhibit 5 to Lunny Rebuttal Declaration, page 91 of docket 80-1.]
6 Appellants’ Excerpts Of Record [ER] at ER0180 ¶ 66. 5
at least until 2029.7 And the Commission can continue to lease the water bottoms whether or not the Secretary grants the Oyster Farm a permit to continue to utilize the onshore facilities.
However, if the permit for the onshore facilities is denied, the supply of shellfish that local retail establishments depend on having available for their customers will be interrupted; there will be a loss of employment for many of the 31 workers employed by Oyster Farm, in particular the women who work in the only oyster cannery remaining in California; and the loss of five affordable housing units in an area where affordable housing is in desperate short supply. Many restaurants and other retail establishments that feature locally and sustainably raised seafood will have no alternative but to cease including shellfish on their menus or import shellfish from distant locations.8
In 1979 and again in 2004 the California Fish and Game Commission found it “in the public interest” to renew the State leases for shellfish
7 Appendix, Exhibit 4: July 11, 2012 Letter from California Fish and Game Commission to Secretary Salazar. [Also, ER0617.]
8Appendix, Exhibit 5: Marin Agricultural Commissioner Stacy Carlsen Comments on DEIS, Correspondence #51124.
cultivation in Drakes Estero for 25 years.9 In a July 11, 2012 Fish and Game
Commission letter to Secretary Ken Salazar the Commission asserted the
State’s continuing right to lease the Drakes Estero water bottoms:
The Commission, in the proper exercise of its jurisdiction . . . has clearly authorized shellfish cultivation in Drakes Estero through at least 2029 through the lease granted to Drakes Bay Oyster Company. The Commission will continue to regulate and manage oyster aquaculture in Drakes Estero pursuant to State law . . . .
Shellfish raised in Drakes Estero are only a few minutes or hours from market and consumption. If oysters are no longer raised in Drakes Estero, shellfish imported to fill the gap will travel great distances, e.g., from China, Korea and uncertain locations of origin, “increasing the chances for food safety problems, poor quality and product contamination” as well as adding to the carbon footprint associated with their transportation.10 Importing shellfish to replace those now grown in Drakes Estero will defeat the principle of local sustainable farm production and food security and further worsen the US trade balance.
9 See recitals in Exhibits 17, 18, 19, and 20 to Declaration of Barbara Goodyear in Support of Federal Defendants’ Opposition to Plaintiffs’ Motion for Preliminary Injunction.
10 Marin Agricultural Commissioner Stacy Carlsen. See footnote 8, 7
IV. IMPACT ON SHELLFISH CULTIVATION ON TOMALES BAY
The Tomales Bay Oyster Compay [TBOC] and the Hog Island Oyster Company are Marin County oyster growers with retail outlets located on Tomales Bay. Their companies cannot meet the local demand for shellfish. They already buy shellfish from DBOC and in some instances out of area. “Closing DBOC will cause a loss of local shellfish production that cannot be replaced.” The Tomales Bay growers were not contacted during the environmental impact process about the economic or other impacts that would flow from closing down DBOC.11
If DBOC is closed and no longer obligated to make lease payments or pay other user fees to the State, other California shellfish growers, including the TBOC and Hog Island will be required either to pay higher user fees or receive reduced State services in support of their aquacultural operations, which are paid for through fees deposited in the constitutionally-prescribed trust funds.12
Due to State concerns about run-off from cattle ranches above Tomales Bay, TBOC and Hog Island are not allowed to harvest oysters from Tomales Bay when local rainfall is a half-inch or more. If DBOC is not
11Appendix, Exhibit 6: John Finger, President and CEO, Hog Island Oyster Company Comments on DEIS, Correspondence #52047. 12 See footnote 11, supra.
available as a source for oysters needed to supply the retail shops on Tomales Bay during these events, the retail shops will either have to close or obtain oysters from out-of-area sources to meet the demand for oysters in their retail operations.
Shellfish growing operations in Tomales Bay are at capacity. The
demand for fresh oysters is too high for Tomales Bay growers to meet even
with DBOC in operation. TBOC’s retail and picnic areas located alongside
Highway One are at capacity and cannot expand. They already “struggle
with parking issues and traffic congestion.” This is a comment on the DEIS
submitted on behalf of TBOC:
DBOC customer base of 50,000-plus people will also lose the opportunity to be educated about the sustainable food production that farmed shellfish represents. Our customers will be adversely affected because former DBOC customers will attempt to utilize our area if DBOC is closed. . . . Tomales Bay oyster businesses do not offer oysters shucked and packed in jars. Oyster consumers who prefer jarred oysters will be disproportionately affected by the closure of DBOC, the State’s last operating cannery. The EIS must consider the fact that DBOC offers a product that cannot otherwise be supplied locally . . . .13
Similarly, the Bay Area restaurants that feature locally grown oysters from DBOC will have either to cease serving oysters or stop featuring local sustainably raised shellfish on their menus.
13 Appendix, Exhibit 6: Martin Seiler, Tomales Bay Oyster Company Comments on DEIS, Correspondence 50395.
V. IMPACT ON WEST MARIN SCHOOLS AND CHILDREN LIVING AT THE OYSTER FRM.
In December 2012 Interim School Principal Jim Patterson and West
Marin School Principal Matt Nagle attended a meeting of “soon-to-be-
displaced workers” of the Oyster Farm and representatives of the DOI and
NPS staff. After the meeting Mr. Patterson wrote an open letter to President
Obama expressing frustration at the likely loss of the value of the school’s
work to close the achievement gap of the children of the workers who had
been given a 90-day eviction notice. He went on to say:
. . . As the meeting proceeded, however, I began to realize that there were other issues that needed to be addressed.
The Secretary stated that he made his decision after “careful consideration.” The staff explained that he made the decision solely on the 1972 contract language and the subsequent 1976 “potential wilderness” legislation. They stated he did not even consider the scientific or environmental issues that the government has spent tens of millions of dollars on.
This is probably what made the workers feel most disrespected. They were hopeful when they heard of his visit, but it turned out to be what they described as a 20-minute photo op, without any real discussion, listening, questions or understanding (he didn’t even go out on the water to see the condition of “the pristine jewel” he is trying to save). I wish I could remember the Spanish word for mockery, because that is how the workers felt – mocked . . . .
Expressing many thoughts heard locally, Principal Patterson concluded:
This decision seems to go against everything . . . this current administration stands for. Does it create jobs? No. Does it address affordable housing? No. Does it help with immigration? No. Does it support sustainable farming? No. Does it help the economy? No. Does it help the environment? No. Consider this: Drakes Bay Oyster Company supplies oysters to a multi-million if not billion-dollar food industry in California. Will that industry stop consuming oysters? No. Oysters will be imported from Washington, Mexico, China. The impact of our carbon footprint on the whole region and
world will far outweigh any good that might be gained from turning this estuary [into] a wilderness.14
VI. ENVIRONMENTALISM: EVOLVING CONSERVATION THEORIES
The environmental movement is evolving. Chief Scientist for The
Nature Conservancy, Peter Kareiva, is a leading advocate for the need for
21st century conservationists to become more “people friendly” and to deal
with “working landscapes,” including fisheries. Writing with Michelle
Marvier, a professor of environmental studies at Santa Clara University, and
Robert Lalasz, director of science communications for The Nature
Conservancy, Kareiva pointed out that while parks and wilderness will
continue to be created the:
. . . bigger questions for the 21st century conservation regard what we will do with . . . the working landscapes, the urban ecosystems, the fisheries and tree plantations . . . . In answering these questions, conservation cannot promise a return to pristine, prehuman landscapes. Humankind has already profoundly transformed the planet and will continue to do so. [footnote omitted] What conservation could promise instead is a new vision of a planet in which nature – forests, wetlands, diverse species, and other ancient ecosystems – exists amid a wide variety of modern, human landscapes. For this to happen, conservationists will have to jettison their idealized notions of nature, parks, and wilderness – ideas that have never been supported by good conservation science – and forge a more optimistic, human-friendly vision.15
14 Appendix, Exhibit 8: Open Letter to President Obama from West Marin School Principal Jim Patterson, as published in the Point Reyes Light on 12/13/12.
15 “Conservation in the Anthropocene: Beyond Solitude and Fragility”, Winter 2012 issue of Breakthrough Journal. http://thebreakthrough.org/index.php/journal/past-issues/issue-
In a Slate article, “Environmentalists Are Battling Over the Nature of Nature,” author Keith Kloor asks, “[c]an modern greens loosen nature’s grip on environmentalism.” He quotes a leader of the “modernist environmental movement”, Emma Marris, as arguing “‘we must temper our romantic notion of untrammeled wilderness’ and embrace the jumbled bits and pieces of nature that are all around us – in our backyards, in city parks, and farms.”16
Closer to home, in a September 12, 2012, guest column in the West Marin Citizen, Sonoma State University Associate Professor of Environmental Studies and Planning, Laura Watt, commented that what makes the controversy over the future of DBOC “somewhat unique is that both ‘sides’ are environmentalists:”
Because here in West Marin, we have two powerful strands of environmentalism, wilderness advocacy and sustainable agriculture, arguing over the same patch of tidelands. . . .
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 the 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
16http://www.slate.com/articles/health_and_science/science/2012/12/ modern_green_movement_eco_pragmatists_are_challenging_traditional_en vironmentalists.single.html
maintained traditions of hiking the estero or kayaking its water 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.
. . . 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.
In closing Prof. Watt returns to a discussion of a new book on national parks, Uncertain Path: A Search for the Future of National Parks, by William Tweed, a long time NPS employee, who articulates a “strong need for a shift in NPS management,” and argues “that the old idea of park preservation as ‘keeping things the same forever’ no longer applies in today’s evolving circumstances.” In this same vein, Prof. Watt says:
. . . 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 . . . .17
Less poetic, but equally compelling is the comment regarding visitor
experience from the University of California Agriculture and Natural
Resources Department, Cooperative Extension, Marin County:
. . . Local producers, and regional and national consumers, recognize Point Reyes and West Marin as a special place, one with authentic foods of exceptional quality. . . . If embraced as an interpretive opportunity, agriculture and aquaculture, including both historic and current practices, could be a positive addition to the other wonderful natural assets this unique national seashore provides . . . .
17 Appendix, Exhibit 9: Realizing the potential, by Professor Laura Watt in West Marin Citizen on 9/6/12.
The DEIS states that preferred forms of visitor enjoyment are those that are uniquely suited to the superlative natural and cultural resources found in the parks. These preferred forms of use contribute to the personal growth and well being of visitor by taking advantage of the inherent educational value of the parks. The NPS publication, Stewardship Begins With People (Diamant et al. 2007) describes Point Reyes as . . . “a place that can reconnect people to their natural heritage through a richness of wilderness and recreational experiences; and a place that can alsoreconnectpeopletothefoodtheyeat,thelandscapes 18 where it is grown, and the honorable labor of producing it. [Emphasis added.]
VII. SCIENTISTS AND OTHER SHELLFISH GROWERS SPEAK OUT
Writing that an “anti-science mania is sweeping parts of the United
States,” water and climate scientist Peter Gleick of the Pacific Institute says,
“bad science leads to bad policy, no matter your political beliefs.” Using the
controversy over the future of DBOC as his example, Gleick points out that
good science could play a key role in the dispute over wilderness versus
local sustainable agriculture, but “we’re not getting good science:”
Science is not democratic or republican. Scientific integrity, logic, reason, and the scientific method are core to the strength of our nation. We may disagree among ourselves about matters of opinion and policy, but we (and our elected representatives) must not misuse, hide, or misrepresent science and fact in service of our political wars.19
A California shellfish grower, Phillip Dale of Coast Seafoods,
18 Appendix, Exhibit 10: University of California, Agriculture and Natural Resources, Cooperative Extension Comments on DEIS, Correspondence #51237.
19 Appendix, Exhibit 11: Bad Science Leads to Bad Policy, No Matter Your Political Beliefs, by Peter H. Gleick, Water and climate scientist, President, Pacific Institute, Blog in HUFFPOST San Francisco.
commented that the [DEIS] “document and project troubles me deeply” because of its failure to consider the “peer reviewed science” developed through research “to identify and address both positive and negative impacts resulting from shellfish culture.” He concluded:
With out the benefit of shellfish farmers fighting for good water quality and healthy environment many of the bays around the nation would be in much worse shape.20
Similarly, a Puget Sound shellfish farmer, Vicki Wilson, part-owner
of Arcadia Point Seafood, commented:
As a person trained in research methods (University of Washington, 1983) who spent a career using science as a touchstone for solid policymaking in government, I am compelled to share my dismay at the continued and misplaced credibility the DEIS gives to the work of the National Park Services’ “scientists”. Proposing and analyzing alternative courses of action for consideration by policy makers based on flawed science (misused, selectively interpreted, incomplete, purposefully ignored or undisclosed, etc.) is beyond reason.
Ms. Wilson went on to say that she found the following statement in the
DEIS equally troubling:
“The NPS fully considered DBOC’s interests in developing the range of alternatives and impact topics that are addressed in this EIS.” (Chapter 1, pp 22).
Any of the proposed alternatives in the DEIS will put DBOC out of business: it is a bit of a stretch to imagine the “good faith” behind this statement – perhaps “considered and discarded” would be more accurate.21
20 Appendix, Exhibit 12: Phillip G. Dale, Coast Seafoods Company Comments on DEIS, Correspondence #33043.
21 Appendix, Exhibit Exhibit 13. Viki Wilson, Arcadia Point Seafood Comments on DEIS, Correspondence #52025. Although it is beyond the scope of discussion in this brief, we note that Section 124 specifically
Thoughtful and detailed comments regarding deficiencies in the DEIS both as an environmental document generally and because of the inadequacies of the “science” set out in it were provided by or on behalf of the Pacific Coast Shellfish Growers Association [PCSGA] and the East Coast Shellfish Growers Association [ECSGA]. They, too, reflect an underlying concern that mistaken “science” used to force closure of the Oyster Farm could hurt the shellfish industry as a whole.
The ECSGA notes that the DEIS “fails entirely to mention or address the negative social, cultural and environmental impacts that would result if the farm is removed from Drakes Estero.” Along with a list of the benefits to the ecology of Drakes Estero provided by the Oster Farm, it lists the Oyster Farm’s role as “tourist attraction that explains to hundreds of visitors annually how sustainable aquaculture can produce local, nutritious food in harmony with nature,” and the “economic multiplier impacts that flow
provides that with the exception of a requirement that the Oyster Farm pay the fair market value for the use of the property and possible inclusion of recommendations of the NAS, the authorized permit is to be issued “with the same terms and conditions as the existing authorization.” The “existing authorization”, that is, the RUO, explicitly provided that a Special Use Permit could be granted when the RUO expired so long as the Oyster Farm has a State of California lease for shellfish cultivation in Drakes Estero. Proposing a ten-year SUP with no renewal is another example of NPS interpreting the law to facilitate closing down the Oyster Farm so Drakes Estero will have full wilderness status.
through the community” resulting from the employment opportunities and income thus provided.22
A letter on behalf of the PCSGA describes the DEIS as
“fundamentally flawed” because of the failure to use “existing
environmental conditions as the baseline against which the alternatives are
measured. . . .” PCSGA described the DEIS “methodology” as “highly
speculative,” as not comporting with “applicable regulations guiding NEPA
implementation” as failing to “ensure that a decision regarding the proposed
action will be fully informed and well-considered,” and as skewing “the
discussion of environmental consequences throughout the entirety of the
document.” After some 17 pages of analysis, the authors express a thought
shared by many commentators:
Any one of the above-identified deficiencies render the DEIS inadequate under NEPA. Cumulatively considered, these deficiencies raise the question whether the DEIS’s conclusions were carefully constructed to support a pre-determined outcome. The DEIS . . . selectively cites evidence supporting conclusions that continuing shellfish aquaculture operations will have adverse environmental consequences, while ignoring or dismissing contradictory evidence. The DEIS does not comport with NEPA’s standards, and does not reflect well on the National Park Service . . . .23
22 Appendix, Exhibit 14:East Coast Shellfish Growers Association Comments on DEIS, Correspondence #52027.
23 Appendix, Exhibit 15. Comments on DEIS on behalf of Pacific Coast Shellfish Growers Association, Correspondence #52029.
VIII. CYNICAL USE OF NEPA UNDERMINES SUPPORT FOR ENVIRONMENTAL REVIEW AND RESPECT FOR GOVERNMENT
A. Examples: Wilderness Experience and Visitor Services.
There are two particularly pertinent examples of NPS ignoring, manipulating or using very technical distinctions to avoid taking into account facts that reflect positively on retaining DBOC as a permittee, one relating to the impact of DBOC on kayakers who enjoy a “wilderness” experience on Drakes Estero, the second to the educational value of DBOC’s interpretive services.
A portion of the Drakes Estero tidelands is designated “potential wilderness.” NPS and wilderness advocates say that the presence of the oyster racks and boats and sounds associated with shellfish cultivation in Drakes Estero have a negative impact on the experience of visitors to the area designated potential wilderness. However, the commercial kayak companies offering tours of Drakes Estero report a contrary reaction. Despite risking retaliation for speaking out in support of a permit for DBOC, the three kayak touring companies, who took a reported total of 221 guests out on Drakes Estero in 2010, submitted both a joint comment and individual comments reporting that many of their guests express appreciation for the opportunity to see an example of sustainable aquaculture. The companies reported that DBOC staff often explain to
kayakers the importance of not disturbing the seals and provide backup safety support when needed. They explained that NPS had “misrepresent[ed]” the Oyster Farm’s sound impacts.24
The failure of NPS staff to contact the kayak companies for feedback on their experience, and the failure to reveal in the Final EIS visitors section the kayak companies’ support for the Oyster Farm experience, are brazen examples of NPS avoiding information or ignoring comments inconsistent with the decision to convert Drakes Estero to wilderness status by any means necessary. The NPS acknowledges that there is no data to show the number of individual kayakers that use Drakes Estero annually. But rather than acknowledge the kayak companies’ comments about their clients’ appreciation for the opportunity to see a sustainable aquaculture operation, the FEIS added “radios used by staff for music” to the list of distractions from the wilderness experience for kayakers.
The opening paragraphs in the Visitor Experience Section describe NPS-preferred forms of visitor use as including those which contribute to personal growth and take “advantage of the inherent educational value of
24 Appendix, Exhibit 16: Kayak Tour Operators Comments on DEIS, Correspondence #51105.
parks”25 In her extensive comment on the “Visitor Experience and
Recreation” section of Chapter 3 in the EIS, Oyster Farm Manager Ginny
Lunny Cummings commented in detail on the opportunities for personal
growth and education that DBOC already provides. By way of credentials to
provide the interpretive services offered by DBOC seven days a week, she
cites her early experience as a NPS Interpretive Ranger at the Seashore, and
her degree in education and prior teaching experience. She challenges the
Seashore’s authority to say in the EIS that the “primary focus of DBOC is
the commercial operation for the sale of shellfish to restaurants and the
wholesale shellfish market outside the park.” She describes the ways in
which DBOC reaches out to groups and individuals with invitations for
educational tours. She urges NPS to “fully consider the adverse impact to
50,000 seashore visitors per year if NPS chooses to evict DBOC,” and asks
that a “more informed study be made” of DBOC’s contribution to “visitor
. . . Drakes Bay Oyster Farm is an interpretive goldmine that the NPS should embrace, not eradicate. Our entire nation is beginning to understand the social, environmental and health benefits of supporting local farms, local farmers markets and local sustainable foods. NPS/PRNS have one of the finest examples right in the heart of the Seashore, in Drakes Estero, where the wildlife, mammals, a pristine estuary and healthy local food production coexist in harmony in Point Reyes National Seashore. Let the citizens of our United States not
25 See the full quotation from the U.C. Extension Comments, beginning on page 11, supra.
and then that environmental review is not necessary, and when it asserts that environmental review is required, and then denies that environmental review is necessary.
Until recently, NPS supported the continued presence of commercial oyster farming in Drakes Estero. In 1980, NPS published a General Management Plan, which made it a goal “to monitor and improve maricultural operations, in particular the oyster mariculture operation in Drakes Estero.”29 In 1998, NPS approved an expansion of the oyster farm facilities, finding that it would have “no significant impact” on the environment.30 In 2005, however, NPS informed the Oyster Farm that “no new permits will be issued” when the 40-year Reservation of Use and Occupancy [RUO] expires in 2012,31 a decision made without the benefit of environmental review. When the Oyster Farm asked for a SUP pursuant to Section 124, NPS said that environmental review was required and set a schedule for the process to be completed.
To comply with NEPA regulations and NPS’s own NEPA Handbook a “Notice of Availability” for the FEIS is required and should have been
29 FEIS 65.
30 FEIS 66.
31 Federal Defendants’ Opposition to Plaintiffs’ Motion for Preliminary Injunction page 5, lines 17-20. Also Lunny Dec. Para. 10.
published by the U.S. Environmental Protection Agency by October 26, 2012. In fact, although the FEIS, dated November 2012, was made available just before Secretary Salazar’s visit to the Oyster Farm on November 21, the FEIS has never been officially published. Rather, at this stage, NPS and Secretary Salazar assert that the “notwithstanding any other law” phrase in Section 124 excused preparation of an EIS, and that the FEIS was used merely to “inform” Salazar’s decision and Order.
By its actions, NPS induced the public and DBOC to invest time and resources into participating in a scoping process and in commenting on the DEIS. It may prove to be part of a pattern intended to wear down the owners of DBOC emotionally and financially. Whether or not that is true, the NPS last minute assertion that the Section 124’s “notwithstanding any other law” clause excuses completing environmental review before the Oyster Farm is denied a permit communicates disdain for those who participated in the environmental review process. It is particularly disrespectful of those commentators who took a significant amount of time and made a genuine effort to respond in good faith to a request for their input.
C. Public Effort To Provide Helpful Assessment Of The Environmental Impact Of DEIS Alternatives.
Comments on the Draft EIS came from people from all age groups and walks of life and with a variety of interests.
Comments came from school children and from grandparents who expressed appreciation for an easily-scheduled lecture on shellfish cultivation given to their family on a summer outing to the Oyster Farm.32
The retired State aquaculture coordinator did a detailed review of the
DEIS sharing his “institutional memory” about the Oyster Farm and the
attention the State paid to its impact on the ecology of Drakes Estero, as well
as his expertise as a career aquaculturist.33 Three pages of comments
offering additions to or corrections of statements in specific paragraphs in
the DEIS is prefaced, in part, with this general comment:
The DEIS is a document that represents what happens when working relationship fall apart and the parties who need to work together in a cooperative manner no longer talk to each other. . . . the DEIS is not an unbiased environmental review, it represents how re-interpreting history and the legislative intent of the original authors of Seashore legislation can be used to further an agenda. . . . As the former [California State Department of Fish and Game] Marine Aquaculture Coordinator very familiar with aquaculture permitting issues
32 Appendix, Exhibit 18: Doug and Margaret Moore, grandparents, Comments for DEIS, Correspondence #50078 and see attachments to Cummings letter, supra, Exhibit 17.
33 Appendix, Exhibit 19. Thomas O. Moore, Retired California Department of Fish and Game marine biologist and Marine Aquaculture Coordinator Comments on DEIS, Correspondence # 51547.
and an expert on the state aquaculture practices, given the 10- year maximum time period allotted for an SUP for DBOC, all the alternatives presented in this DEIS will put DBOC out of business. Only a cooperative management alternative will allow DBOC [to] secure the necessary permits and to remain in operation. . . .
The University of California Extension Service personnel comments, cited above, and comments from the nonprofit Marin Agricultural Land Trust34 each provided in depth discussions of the consequences for agriculture and the community of the alternatives set out in the DEIS. Other examples include the comments of amici California Farm Bureau Federation35 and Marin County Farm Bureau.36
One of the most creative commentaries came in the form of a proposed “collaborative management alternative” submitted on behalf of the Alliance for Local Sustainable Agriculture and, according to NPS statistics, endorsed by some 1,750 commenters.37 This proposed alternative builds on the suggestions of the scientists with the National Academy of Sciences and the Marine Mammal Center that an interpretive center be established “that
34 Appendix, Exhibit 10.
35 Appendix, Exhibit 21: For California Farm Bureau, Elsa Noble Comments on DEIS, Correspondence #51561.
36 Appendix, Exhibit 22: For Marin County Farm Bureau, Dominic Grossi Comments on DEIS, Correspondence #51043.
37 FEIS: Appendix F, Table F-4, page f-14.
would include exhibits on the ecology of the Estero, including its shellfish mariculture,” and that a “collaborative adaptive management approach” be used to managing shellfish cultivation in Drakes Estero. The Alternative calls for relevant organizations, including the Oyster Farm, to work together for the benefit of all. This Alternative would support the goals of the National Shellfish Initiative announced by the Department of Commerce and National Oceanic and Atmospheric Agency [NOAA] in June 2011. It would protect the “desperately needed affordable housing for farmworkers on remote Point Reyes ranches all while contributing to retention of the “distinctive ‘sense of place and character’” that makes West Marin and the Seashore a beloved destination.38
In the NPS response to the proposal, different aspects of the “Collaborative Management Alternative” were rejected for typical bureaucratic and “legal” reasons, summed up in this phrase, “because its key elements lack legal foundation.” The allegedly “missing” elements include a lack of authority to issue a renewable SUP, which, at least in part, depends on a disputed interpretation of the reference to the “same terms” as the RUO in Section 124. There is a reference to a claim that the State lacks authority to lease Drakes Estero water bottoms for shellfish cultivation despite having
38 Appendix, Exhibit 21: Jeffrey Creque for Alliance for Local Sustainable Agriculture Comments on DEIS, Correspondence ID: 51993.
done so for some 80 years. The Alternative was also rejected on the grounds that the primary
focus of the Oyster Farm is the sale of shellfish, which NPS deigns not a “service” “offered to the visiting public to further the public’s use and enjoyment of the Seashore.” This despite the Oyster Farm Manager’s eloquent description of the Oyster Farm’s commitment to providing interpretive services discussed above.39 Since the SUP is to replace an RUO that explicitly stated that the onshore facilities were to provide interpretive services, these are not legitimate justifications for dismissing support for the Collaborative Management Alternative.
When the work of correspondents, who provide thoughtful comments, is essentially disrespected, the environmental review process is rendered meaningless and leads to distrust of the agency purporting to engage in environmental review. It is not surprising that distrust of the agencies motives is reflected in several of the more thoughtful comments on the DEIS.
To spend what appears to be enormous amounts of money on a
process and then dismiss it peremptorily when ordinary people are feeling
the impact of the economic downturn, and low income workers are facing a
loss of jobs and housing, is akin to rubbing salt into the wound. Just as
Secretary Salazar’s visit to the Oyster Farm made a mockery of the workers’
concerns for their livelihood and home, Salazar’s dismissal of comments
offered during the environmental review process made a mockery of the
public interest in having the decision on the future of DBOC made after a
meaningful review process. This Court can best serve the public interest in
this case by issuing the preliminary injunction requested and returning the
case to the District Court along with instructions in which misstatement of
both pertinent facts and applicable law are corrected.
DATED: March 13, 2013
/s/ Judith L. Teichman
JUDITH L. TEICHMAN Attorney for [Proposed] Amici Curiae
Misconduct charged in Marine Mammal Commission report: Goodman v Ragen
By Lynn Axelrod Published November 8, 2012
Marshall resident Corey Goodman filed a misconduct complaint Wednesday with the Department of Commerce Office of the Inspector General against Dr. Timothy Ragen, executive director of the Marine Mammal Commission (MMC).
Goodman alleges Dr. Ragen violated Commission policies, rules, and guidelines, the Federal Freedom of Information Act, and the MMC Scientific Integrity Policy.
Dr. Goodman’s complaint centers around the preparation of the MMC report “Mariculture and Harbor Seals in Drakes Estero, California,” issued last November. That was an independent peer review of the analysis by National Park Service scientist Ben Becker and others (“Becker”) which was relied on for a Park Service Draft Environmental Impact Statement on the future of Drakes Bay Oyster Company.
Goodman alleges the MMC report was anything but independent and, instead, was the product of a biased and unethical process.
He requests that the Park Service refrain from citing the Commission report and the Becker analysis in the final Environmental Impact Statement and that it publicly retract the Becker study in light of a letter from Ragen to Goodman on June 17, 2012. (The letter is discussed below).
Goodman said by telephone that the draft EIS has “no evidence, no data [and is] all potential this, potential that.” All the NPS “has left standing is the MMC report,” he said, and he contends it was produced through secretive communications and influence by the Park Service.
The complaint details emails by Dr. Ragen to show the MMC director gave Park Service scientist Dr. Becker early access to documents not provided to Dr. Goodman and David Lewis, Marin U.C. Cooperative Extension director.
Goodman argues also that Dr. Ragen gave Becker the ability to critique the work of other parties without disclosure to them as well as “veto power” over responses to outsiders’ questions.
Goodman writes in his complaint that when Ragen authorized a review of the NPS/Becker paper “while telling the public and elected officials that he was independently reviewing [it], he was privately working with Dr. Becker to enable NPS to help review NPS, all under the auspices of the name and [supposed] independence of the Marine Mammal Commission.”
Goodman adds that Dr. Ragen violated his own statement of “basic principles that the Commission has long espoused and sought to foster...,” transparency, inclusiveness and equal access. These were publicly invoked when Ragen granted Gordon Bennett access to what Goodman called “a key site visit” during the 2010 MMC panel meeting at the Seashore.
Goodman further alleges that Ragen violated the Commission’s Scientific Integrity Policy filed with the While House Office of Science and Technology Policy in March 2011. The Commission’s policy describes similar objectives of “honest investigation, open discussion, refined understanding, and a firm commitment to evidence.”
An August 29-30 email sequence
Dr. Ragen directed three scientists, representing NPS (Becker), DBOC (Goodman), MMC (Dr. John Harwood) to submit reports to him by the close of business on August 29, 2011. Dr. Ragen promised to treat all parties equally and to distribute all three reports simultaneously at the close of business on August 30, Goodman’s allegations continue.
Ragen sent an email to everyone the evening of August 29 telling them all reports were in. He distributed them the next evening. However, Goodman alleges, Ragen was secretly “funneling” Goodman’s reports to Becker on August 29 as they were received.
The import of the early review, Goodman concludes, was that before the documents were publicly distributed the Park Service was able to quash Ragen’s attempt to set up a public meeting with it at National Seashore headquarters.
Goodman obtained some of the emails through “parallel” Freedom of Information Act (FOIA) requests directed to the Park Service and the Mammal Commission via a non-profit advocacy organization. He notes that Commission documents were less complete than Park Service documents that showed private Ragen communications.
For instance, Goodman lists a series of emails to Dr. Becker on August 29.
• “Ben, as promised.” 11:24 am
• “Ben – this just in – please replace the version I just sent.” 11:26 am
• “Ben, these two files from Corey are the last of the three reviews.” 7:27 pm
• “Ben, second part of Corey’s analysis” 7:31 pm
• “Ben, I sent you two files using YOUSENDIT.” 7:36 pm
The first two, Goodman alleges, were produced in both FOIA responses, but the last three were not produced by the Mammal Commission. Goodman finds the three words “as promised, Ben” a “metaphor” for his complaint.
His “worst suspicion was true,” he said by telephone. Ragen, he explained, cut off discussions with him and Lewis after this, would not allow a Goodman-Harwood discussion, and did not share questions from Harwood. Dr. Becker “critiqued” Goodman’s analysis but Ragen did not reveal this to Goodman.
Goodman further contends in his complaint that the Commission’s machinations “allowed NPS to omit the harbor seal section of the DEIS from the Atkins Peer Review Report, thereby eliminating the possibility that Atkins scientists would find fault with that section. By his actions, Dr. Ragen empowered the NPS to secretly review itself, and to deceive the public.”
Goodman alleges that in addition to Dr. Becker, Seashore Superintendent Cicely Muldoon was “complicit … in Dr. Ragen’s misconduct, including knowingly accepting inappropriate access to documents not provided to other parties.”
Response to Ragen’s June 17 letter
Goodman’s 56-page complaint includes a 28-page Appendix. It details a defense of his and Lewis’s work that Ragen criticized last June 17, saying their science was inadequate and they misrepresented oyster company evidence and NPS testimony.
Goodman alleges the errors lie with Ragen. As example, he describes the April 26, 2007 time card of a company employee blamed for a harbor seal disturbance recorded by the Park Service. Although the employee was working when the disturbance occurred, Goodman explains he could not have been the cause because he was a delivery driver and not a boatman.
Goodman contends: “Dr. Ragen’s explanations are so far-fetched as to make you scratch your head and wonder what Dr. Ragen is thinking, and whether this is politically–rather than scientifically–motivated.”
In his 21-page letter Ragen claimed that Goodman and Lewis failed to run an alternative math analysis. Goodman advises that they ran two analyses, including one Ragen desired, and reached the same conclusion with both.
Dr. Goodman also claims that Ragen’s June 17 letter refutes the November 2011 MMC conclusion that although data were “scant” they nevertheless gave “some support” for finding a correlation between mariculture and seal disturbances.
In his June letter Ragen wrote on page two: “...The results (Table 2) indicate that the Double Point event [a “marauding” bull elephant seal] and regional population size may have had a significant influence on harbor seals in Drakes Estero. The results also identify the low/high variable as a potential influence. Given the uncertainty associated with the analyses, the results are not proof of a correlation, but they also do not provide a basis for dismissing such a relationship.”
Goodman alleges: “Dr. Ragen’s reversal is cleverly disguised in [the June letter] that claims to show that Goodman made errors.”
Brief response from MMC general counsel
Mike Gosliner, general counsel for the Commission, said Wednesday after 5 p.m. (EST) that he’d had little time to review the complaint, having been in meetings after it was received that afternoon.
He noted that a 1990 Memorandum of Understanding between the Commission and the Commerce Department Office of Inspector General covers criminal activity and not scientific integrity. The Commission, with about 12 staff members, is too small to have its own inspector, he explained.
Gosliner said he “would expect the Commerce Inspector General will consult with me and, frankly, I’m not sure this is something we want to engage in. … I would like to do something such as have an external review because of some of the criticism ... Doing it myself won’t satisfy Dr. Goodman.”
He said “the whole issue is overly controversial and overly personal. The allegations are probably not true or have a good alternative explanation.” But, he said, an “investigation will speak for itself.”
Gosliner explained that a complaint regarding scientific integrity policy could lead to a Commission “remedy” but he is “not sure we’re at the stage where other remedies might be exhausted” instead. For instance, the complaint might be addressed by the Office of Science and Technology Policy.
What EIS? What decision?
As for the process of preparing an Environmental Impact Statement, many folks are puzzled that the Park Service’s October 30 deadline to file a Final EIS was missed.
That date was the trigger for a series of deadlines under the National Environmental Policy Act that would culminate in the Interior Department’s decision whether or not to issue the oyster company a new operating permit before the current permit expires on November 30.
Some wonder whether the October deadline was intentionally skipped because a deal has been reached between Interior Secretary Salazar and Senator Feinstein but has been withheld from the public pending the November 6 election.
An October 30 oyster company press release that publicly invited the Secretary to visit thus far has gone unanswered. It was based on a presumed trip to the area by Salazar, inferred from a comment he made at a public gathering. Seashore spokesperson Melanie Gunn said a week ago they had “no current information” about such a visit.
No responses regarding the Goodman complaint were received from the Commerce Department Inspector General’s Office or the Park Service as of press time.