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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

I have much evidence that makes me question a lot of the assumptions and supposed truths that I've heard. The temptation to deceive is epidemic and with many that assume they know better than, well, others rather self righteously it is dissapointing to say the least. So much is being lost to the character of individuals and of the country by decisions just like this one. I would suggest that legislators visit this issue if that be the last resort. I can't be certain it is but if Salazar cannot see the importance of Drakes Bay continuing to operate, for whatever reason whether it be because of the lobbying & financial support from some of Interior's special friends, then I hope the likes of Senator Diane Feinstein and other legislators see the importance this case represents to the character of the country. Hope is doesn't sound overly lofty lingo but that's my sense of things. Thanks again, Kurt.


Kurt Repanshek:
You know Zeb, the more I dig into this issue, the more fascinating it becomes. For instance, did you know that in May 1971 the federal government paid the Johnsons $79,200 for the property in question?

My understanding about the sale was that it was coercive. The federal government has the power of eminent domain. If a Charlie Johnson doesn't take their offer, he may have been left with more cash but no business. It was also in 1972.

I don't believe the oyster farm was written into the enabling legislation because it was an inholding. NPS didn't acquire the oyster farm until after the park had opened. I've also read a newspaper comment from someone claiming to be Charlie Johnson's daughter - claiming that he was forced into accepting the lease terms. I certainly would believe it given the history of NPS using eminent domain.

http://www.marinij.com/westmarin/ci_22094241/workers-devastated-by-oyste...

It's the second column by "Joyce Johnson":

My father, Charles Johnson, started this business and owned the land. The Federal governmane forced him into a 40 Year lease, but with the understanding that it would be renewed.


trailadvocate:
I have much evidence that makes me question a lot of the assumptions and supposed truths that I've heard. The temptation to deceive is epidemic and with many that assume they know better than, well, others rather self righteously it is dissapointing to say the least. So much is being lost to the character of individuals and of the country by decisions just like this one. I would suggest that legislators visit this issue if that be the last resort. I can't be certain it is but if Salazar cannot see the importance of Drakes Bay continuing to operate, for whatever reason whether it be because of the lobbying & financial support from some of Interior's special friends, then I hope the likes of Senator Diane Feinstein and other legislators see the importance this case represents to the character of the country. Hope is doesn't sound overly lofty lingo but that's my sense of things. Thanks again, Kurt.

Feinstein's original rider mandated a special use permit. If that rider had remained (I'm sure it would have been passed in the omnibus legislation) then we wouldn't have the dog and pony show with the studies or all this controversy. It would have been end of story - the show goes on. I really wished she didn't buckle to the demands of Jeff Bingaman.


The California Fish and Game Commission meeting is going on right now. It's gotten to agenda item 7B rather quickly.

http://www.cal-span.org/State_Webcast/CFG/stream_index.htm

I see Neal Desai at the podium right now.


Coercive sale? $79,200 in 1972 dollars equals $435,164.84 in 2012 dollars. For 5 acres "more or less," that works out to $87,000 per acre in today's world. Even by today's standards that's a pretty good return for waterfront property, no?

Plus the Johnsons were allowed to operate the oyster farm for another 40 years. And they profited again when they sold the remainder of the lease to the Lunnys.


Kurt Repanshek:
Coercive sale? $79,200 in 1972 dollars equals $435,164.84 in 2012 dollars. For 5 acres "more or less," that works out to $87,000 per acre in today's world. Even by today's standards that's a pretty good return for waterfront property, no?

Plus the Johnsons were allowed to operate the oyster farm for another 40 years. And they profited again when they sold the remainder of the lease to the Lunnys.

I don't use the term "coercive" lightly. From everything I've gathered about the sale, Charlie Johnson didn't want to sell. He certainly didn't sell at the time the feds were buying out the landowners of the ranches. However, he was forced to sell because otherwise he would have lost the business immediately if the feds had obtained the land via eminent domain proceedings. I don't know of any person who wouldn't reasonably think that such a deal wasn't at least minimally coercive.

If Charlie Johnson were allowed to keep his farm as an inholding, he wouldn't have been subject to NPS regulation. That would mean no NPS permits needed and no NPS oversight on his shore operations. I don't know if the payment was enough to make up for the additional regulation that he faced over the years.

In the end I don't know if I'm happy with this as a California taxpayer. I'm assuming that Charlie Johnson was paying property taxes, and once the feds took over those property taxes revenues vanished.


Interesting. The referenced report says absolutely nothing about the Oyster Company. It specifically mentions other "non-conforming" items but says absolutely nothing about the oyster company.

Oh, and by the way $87k for an acre of waterfront property would be considered giving it away where I come from.

Now in the need for fair play I would like to hear from YPW what his source is for claiming John Burton stated it was not the intent of the bill to shut down the oyster company.


EC, a "company" by its very nature doesn't conform with official wilderness.


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