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Updated: Oyster Company Sues Interior Department In Bid To Remain At Point Reyes National Seashore


Editor's note: This updates to include mention of a letter the oyster farm's attorneys sent to Interior Secretary Salazar on November 1 stating that his decision wasn't bound by the National Environmental Policy Act, an interesting point in that the lawsuit argues that he violated NEPA.

An oyster company denied an extension on its lease to operate in Point Reyes National Seashore has gone to court in a bid to overturn that decision, arguing that Interior Secretary Ken Salazar acted rashly and without cause to deny the extension.

The 100-page filing, which seeks an injunction to allow the Drakes Bay Oyster Co. to continue operating until the lawsuit is settled, maintains that Secretary Salazar has torn "the fabric of a rural community" with his decision.

Drakes Bay Oyster Co. has employed 31 workers who produced between 450,000-500,000 pounds of Pacific oyster meat a year from Drakes Estero inside the Seashore for Bay Area outlets. The company's fate has been fanned in recently years by both U.S. Sen. Dianne Feinstein, an ardent supporter of the oyster company and its small workforce, and environmentalists and conservationists who wanted to see the estero granted official wilderness designation.

Those who wanted the oyster company to shut down maintain Congress long ago directed that Drakes Estero become officially designated wilderness once all "non-conforming uses" were removed. The Drakes Bay Oyster Co.'s 40-year lease to the area expired on November 30, and those in support of the wilderness designation saw it as the perfect opportunity to remove the company, a non-conforming use, from the estero.

But those backing the oyster company maintained that the lease carried a renewal clause that should have been triggered by the National Park Service.

It was in 1976 when Congress said the estero one day should be designated as official wilderness. The 1976 Point Reyes wilderness legislation that set aside 25,370 acres of the national seashore as wilderness cited another 8,003 acres encompassing the estero that would be "essentially managed as wilderness, to the extent possible, with efforts to steadily continue to remove all obstacles to the eventual conversion of these lands and waters to wilderness status" -- and the oyster operation was seen as being incompatible with such a designation.

The lawsuit filed in oyster company owner Kevin Lunny's behalf by Cause of Action, a law firm that works to hold government accountable, largely is built on the contention that the secretary's decision violated the National Environmental Policy Act, in part because the National Park Service failed to prepare a thorough environmental impact study on the oyster farm's operations at Drakes Estero.

The Seashore's Final Environmental Impact Statement, quietly issued on November 20, did not contain a "full and fair" discussion of the environmental impacts, reads the filing, and also fails to "inform decisonmakers and the public of the reasonable alternatives which would avoid or minimize adverse impacts."

However, Secretary Salazar was acting on a directive Congress issued in 2009 that he personally consider renewing the oyster farm's lease for another decade. When he announced his decision on November 29, the secretary specifically referred to that directive, noting that it "does not require me (or the NPS) to prepare a DEIS or an FEIS or otherwise comply with the National Environmental Policy Act of 1969 or any other law."

"The 'notwithstanding any other provision of law' language in Section 124 expressly exempts my decision from any substantive or procedural legal requirements," Secretary Salazar continued. "Nothing in the DEIS or the FEIS that the NPS released to the public suggests otherwise."

And while Mr. Lunny's lawyers maintain in the lawsuit that the Interior secretary was indeed bound by the legal provisions of NEPA and that his failure to adhere to that act was "arbitrary and capricious" as well as "an abuse of discretion," in a November 1 letter they pointed out that he was not bound by NEPA.

"...Section 124 includes a 'general repealing clause' that allows you to override conflicting provisions in other laws -- including NEPA -- to issue the (Special Use Permit)," wrote Ryan P. Waterman, an attorney with the firm of Stoel Rives that is representing Mr. Lunny, on Nov. 1 (attached below).

The lawsuit, filed in federal court in northern California, asks the court to either order Secretary Salazar to extend the oyster company's lease for 10 years or set aside his ruling and direct the Park Service to conduct a new DEIS and FEIS "that complies with all NEPA and other applicable substantive and procedural requirements to enable a new, neutral decision-maker to issue a NEPA-compliant (Record of Decision) allowing DBOC to continue to operate...."


I think the oyster farm may stand a good chance of getting a temporary injunction. The basis would be that the 2009 Feinstein legislation specifically stated that the NAS report was to be strongly considered in making the decision. Salazar's memo made no mention of that report.

Also - there is nothing in the 1976 Point Reyes Wilderness Act itself that says anything about the fate of Drakes Estero. The oyster farm isn't even mentioned. I know there were House reports, but I don't believe they carry the weight of the actual law. The lead author claims that it was never meant to kill the oyster farm - that it could remain potential wilderness indefinitely.

The other key issue is that the memo from Salazar directs the NPS Director to order the removal of the oyster racks and other oyster farm property from Drakes Estero. The oyster farm's attorneys state that only the State of California has that right. I don't believe they've weighed in yet. There is a California Fish and Game Commission meeting in San Diego in a week, and the oyster farm is on their agenda. I would expect Lunny will be there, as well as Neal Desai and Gordon Bennett. I watched previous meeting video, and the Commission members were skeptical that NPS had direct control over shellfish rights in Drakes Estero. One longtime Commission member noted that in 2004 the Commission added a provision to the oyster farm's state water bottom lease (due to NPS pressure) when it came up for renewal such that the lease was contingent on access to the NPS land where the shore operations sit. They put themselves in a holding pattern until they found out the Secretary of the Interior's decision. Now that the decision is here, they might make their move. I think there's a chance they decouple the water bottom lease from NPS land just to mess with NPS.

y_p_w: Any chance you might want to get in touch with a reporter who's been thinking about these issues for a couple of years? If so, give me a shout: Felicity Barringer, reachable at [email protected].

I don't know if I'm ready for anything on the record. I know nothing other than things I can readily look up on the internet.

YPW, you should contact the reporter. I've read your comments here and on SF gate, and it's well thought out. The one thing that still puzzles me is this: how will removing the oyster farm make the place better? Everybody's acting as if granting wilderness status to the bay will make the place so much better. It'll be the same water. Actually, that's not true, the water might actually not be as filtered without the oysters, but overall, the character of the place won't really change. The ecosystem is not impacted by the current oyster farm. Coming from the countryside, I don't see wilderness divorced from human activity, which is apparently what wilderness purists are looking for. I find it sad.


What's the basis for your assertion that "The ecosystem is not impacted by the current oyster farm"?

The science I'm aware of shows that the ecosystem is clearly impacted in several ways, some negative and some at least potentially positive, and a comprehensive research project would undoubtedly find additional impacts. The scientific issue (e.g., in the NAS report) is that the science is incomplete. We (scientists) don't have solid numbers for the magnitudes of some of the impacts (e.g., the positive impact of water filtration that NAS highlighted), and we don't know all of the impacts. In part this is because there has never been comprehensive measurement or monitoring of all of the components of the Estero ecosystem (not a priority for funding), and most of the available data was collected for other purposes or at other locations. A second reason is that we don't know baselines for attributes such as turbidity & nutrients (both time-varying with tide cycles, seasonally, and in response to storm events), and processes like water filtration, in the absence of the oyster racks. [And, should the baseline for comparison be the Estero with or without the native oysters that were effectively extirpated more than 100 years ago, before any oyster farming operations?

The simplistic view is that if we had good estimates of the strengths of all of the impacts, we could compute a net impact of the oyster farm that would be a single number, and then managers could renew the lease if the net impact was positive, or at least only slightly (sustainably) negative. My personal perspective is that the different impacts have different units (seals disturbed, water filtered, risk of additional invasives introduced) that simply can't be lumped into a single equation of net impact. A management decision "informed by science" would be a judgement call about whether +apples -oranges is a net positive.

Back to my hobby-horse I've posted before: who should pay for monitoring? I assert that continuation of non-core activities in a park that may have substantial impacts (+ and -) such as oyster farming requires monitoring to either detect cumulative changes or demonstrate no degradation in the natural resources ("unimpared for future generations"). Monitoring the major components of responses to oyster farm operations adequate to estimate (over 10 years) if conditions were getting worse would cost perhaps $150-200K/yr (more if you want more complete or precise estimates). That's not comparing against a no-oyster farm scenario, but simply testing whether are there temporal trends in a set of ecosystem attributes. Should that cost come out of the Point Reyes NS core budget, reducing other activities, should Sen Feinstein request that as an earmark from all taxpayers, or should DBOC have to pay for it as a condition of operating in a National Seashore? I don't know if DBOC could or would pay for that: it may be greater than their operating profits (I don't know if they were asked, either).

All that said, from my understanding, the decision to let the lease expire was not based on ecosystem services or impacts, but was based on the 1976 wilderness designation. Wilderness designation is very different from ecosystem health. Many management activities that might improve or restore ecosystem conditions are prohibited or restricted in designated winderness.

The above are my personal opinions as a scientist who has done no direct work on this issue, written while on lunch break, and do not reflect any inside knowledge of PORE or DBOC, nor reflect the views of DOI or NPS.


That sounds like a reasonable approach, that is fact driven. Truth is that Congress could grant wilderness status to the bay and make an exception for the farm. There are plenty of exceptions in existing wilderness.

I enjoyed reading Tomp2's approach also. If the lease covered the monitoring and the value of the lease, maybe they could continue. As long as the impact was near neutral. Since the lease is up, the new lease could go up as well and have more enviromental impact clauses that could break lease if impact were more negative. I also wonder if there is a Historical value that would be of value to the park system. However, the historical value could be there with or without the oyster company.

After reading a little more, I found that the 40 year lease had only 8 years left when Drakes Bay Oyster Company bought it in 2004. I would say that the previous owner sold out knowing it would be worthless without a future lease. And Drake Bay Oyster Company made a poor business decision to think otherwise. I say game over.

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