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

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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...."

Comments

Kurt: If that be true, Dear Senator Diane.....:) But why all the devious behavior by NPS hammering a truly harmonious commercial operation. I know that's not possible in some minds but maybe it's just a mental condition that could actually be remedied without claiming disability payments and further burdening the Chinese:). Come on the tone and motivation of this decision results in lost jobs at the least but much more is lost that many choose to ignore. All people can enjoy Drakes Bay with many enjoying the connection to the natural setting having fresh oysters that were produced before their very eyes. If there are people that refuse to enjoy Point Reyes Seashore/Drakes Bay I suggest it's them and not Drakes Bay as it is.


Nope. I won't take that guilt. Oyster farmers or no oyster farmers aren't my issue. All I've done on this particular topic, in one quick quip, is question some of the logic or rhetorical style of others. I'll let you know the issues I give a damn about, and then you can accuse me of heartlessly stealing people's jobs. This issue ain't it.


Here's a link to the contract the Johnsons signed with the Park Service in 1971:

http://www.nps.gov/pore/parkmgmt/upload/planning_dboc_sup_background_ruo...

Here's a link to the 2004 Solicitor's opinion on whether the original intent was to close the oyster farm in 2012 to allow for the wilderness designation:

http://www.peer.org/assets/docs/doi/09_07_05_doi_solicitor_opinion_pt_re...

And here's a link to Devaney's findings:

http://northbaydigital.sonoma.edu/utils/getfile/collection/EHDC/id/901/f...

The Devaney findings run to 53 pages (endnotes included). Among the interesting points is that after he bought the lease from the Johnsons, Mr. Lunny for three years "had refused" to sign a Special Use Permit with the Park Service to operate the oyster farm, and that his parents also refused to sign a SUP with the Park Service for their ranch within the seashore. It appears that Mr. Lunny finally signed the SUP after calling on the Office of Inspector General to investigate then-Point Reyes Supt. Don Neubacher for bias and slander.

Also within the Devaney report is a section on congressional intent for wilderness in the seashore. It states that support from the public and during congressional hearings "favored" preserving more wilderness at Point Reyes than initially proposed by the Park Service, notes that Congress enlarged the Park Service's proposal, and noted that the Park Service's wilderness review for the seashore found that "(I)n terms of preserving and protecting marine life systems, Drakes Estero and Limantour Estero could well be considered the most significant ecological units within the national seashore."

Devaney also noted that the congressional report that accompanied the 1976 Point Reyes National Seashore Act pointed out, in terms of the potential wilderness visualized at Drakes Estero, that "(A)s is well established, it is the intention that those lands and waters designated as potential wilderness additions will be essentially managed as wilderness, to the extent possible, with efforts to steadily continue to remove all obstacles to the eventual conversion of these lands and waters to wilderness status."

Now, if the original congressmen who proposed the initial wilderness legislation were dead set against seeing Drakes Estero designated wilderness and the oyster farm removed, why wasn't that reflected in Devaney's report?

And before someone suggests he cherry-picked things, know that Devaney has been highly critical of the Park Service in the past. During a 2003 congressional hearing he testified that he has "never seen an organization more unwilling to accept constructive criticism or embrace new ideas than the National Park Service. Their culture is fight fiercely to protect the status quo and reject any idea that is not their own. Their strategy to enforce the status quo is to take any new ideas, such as law enforcement reform, and study it to death. Thus any IG (Inspector General) recommendation or, for that matter, Secretarial directive, falls victim to yet another Park Service work group charged by their National Leadership Council to defend the status quo from those of us who just do not understand the complexities of being a ranger."

It certainly would appear that the record clearly exists that since 1976 the congressional intent was to see Drakes Estero one day designated as official wilderness. Mr. Lunny knew that was a possibility, and he gambled that he could convince the Park Service to grant an extension.


But Kurt, where is the language of the "Congressional mandate". All you have given us is Delaney's interpretation which clearly has a bias. You ask:

if the original congressmen who proposed the initial wilderness legislation were dead set against seeing Drakes Estero designated wilderness and the oyster farm removed, why wasn't that reflected in Devaney's report?

Noone has suggested the Congressman was "dead set against", they said it wasn't his intent and thus far a fail to see anything in the legislation or otherwise that says it was. And his true feelings probably weren't in Devaney's report because they didn't support Devaney's conclusions.


"Also within the Devaney report is a section on congressional intent for wilderness in the seashore. It states that support from the public and during congressional hearings "favored" preserving more wilderness at Point Reyes than initially proposed by the Park Service."

I don't know if this is true or not but I know of a case in recent history where, it was said verbally and in print, that the public favored "the preferred alternative." After a request was made for release of public comments the request was denied until after the ESA was signed and became policy. Public comments submitted were eventually released where it showed that just the opposite held true. In this case the process was abused, outrageously so in some instances, I believe, to get a predetermined result that went against good public policy but pleased some of the same players involved with this decision. I heard, just this morning, that "people need and desire something "real." The current environmental community overreaches, I believe, in the Drakes Bay Oyster Issue and in others I've observed where the "real" that people need and want is ever more restricted by overreach.

Thanks for this forum, Kurt. BTW, my father was born in Park City and would like to visit when the skiing gets good and I can focus on more "real stuff" :).


FF, read the footnotes, it's all in there. Particularly XXIV, which cites the House report that accompanied the wilderness legislation. That House report reveals the legislative intent.

Trailadvocate, if it wasn't true, then why did Congress enlarge the Park Service's proposal for wilderness? Don't forget, Congress has the final say on wilderness designations.

As for skiing, I'm waiting for it to get good, too;-)


What was the year Congress enlarged NPS's proposal for wilderness, '70's? Is that supposed to be the course in perpetuity while eliminating, ever more profoundly, the "Real?" Individuals need the real while the public "good" is marginalizing the experience. Overreach is a temptation for anyone and I believe it's the case here.


Congress passed the Point Reyes National Seashore Act in 1976. What's "real," "good," and "marginalizing" is all in the eye of the beholder, however.

Regarding overreach, the devil's advocate might say it was very clear that the oyster farm's lease ran out on Nov. 30, 2012, and the Park Service was under no obligation to renew it. (In fact, if you agree with Mr. Devaney's interpretation, it couldn't renew it) To bet against that possibility, well, that's bold, no?


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