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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

Founding Fathers:
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.

1972. It wasn't exactly a prime place to build luxury houses, although there was talk of it. It was an industrial operation.

As for John Burton - he's been on the record several times. As was Bill Bagley and Pete McCloskey.

http://abclocal.go.com/kgo/story?section=news/assignment_7&id=8325489

That wilderness act created the Point Reyes National Seashore and the park service is trying to use it to get Lunny out. But the legislators responsible for that act say they never intended to get rid of the oyster farm.

"It wasn't even an issue, I mean there was no contention and trust me, in Marin County, when people had a beef, I would hear about it," former Congressman John Burton said.

Burton and Pete McCloskey, along with former Assm. William Bagley helped write the law in the 1960s and 70s. They all say some environmentalists and the park service have twisted their words.

Bagley was actually a friend of the former owner.

"Knowing Charlie Johnson, I wasn't about to put the man out of business," Bagley said.

Bagley wrote the 1965 legislation that would eventually give property rights to the National Park Service. He says that because of its cultural and historical importance, the oyster operation was always meant to be a part of the park. As proof, he points to a 1961 feasibility study stating "existing commercial oyster beds and an oyster cannery at Drake's Estero...should continue under national seashore status because of their public value."

http://www.marinmagazine.com/Marin-Magazine/November-2008/The-Oyster-War/

John Burton, the former state legislator who represented Northern California in the House of Representatives in the mid-1970s and was a primary sponsor of the Point Reyes Wilderness Act, says the oyster farm was a nonissue at the time. “I have no recollection upside down or sideways of the oyster company,” he says. “I don’t remember any mention of the oyster farm coming up in the bill at all.”

What about the “steadily removing” clause in the House report? “The committee wrote that,” he says. “I don’t know anything about it.”


Thank you ypw. So, do we want to take the word of the person that wrote the bill or the interpretation of a bureaucrat of some staffers wording. I think the weight of the evidence would be on the side of the author.

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

So true, and so irrelevant as the property in question is not "official wilderness".


EC, Devaney didn't interpret, makeup, or write the House report that accompanied the wilderness legislation and which explained the congressional intent to designate Drakes Estero as wilderness; he quoted it.

As for relevancy, on December 4 the Park Service posted notice that "all uses in Point Reyes National Seashore that are prohibited by the Wilderness Act (Pub. L. 88-577) have ceased and certain Federal lands that were previously designated as potential wilderness are, upon publication of this notice, designated as wilderness."

http://govpulse.us/entries/2012/12/04/2012-29381/designation-of-potentia...


It seems a bit premature since the oyster racks are still there. Even if one assumes that NPS has the authority to order the removal of the oysters and oyster farm property, there was a 90 day notice given to complete the removal.

I'm still wondering what happened at the California Fish and Game Commission meeting in San Diego. The last I saw was that an attorney representing the oyster farm was arguing about who had authority over shellfish farming in Drakes Estero. I didn't really see anything after they came back from the lunch break. I don't know the whole list, especially since they took several comments and the were out of order with respect to agenda 7 items. I did see Neal Desai, someone from a Marin agricultural group, one person who was railing against NPS, and the attorney I mentioned previously.


Ah yes, hooray for buerocrats and legal speak to make this such a great country. Somehow this BS just doesn't match up to the "Intent" going back a bit farther in recorded history. Say, how about 1777 for a good year. I doubt there was mention of Point Reyes National Seashore/Drakes Bay Oyster but what do you think their intent was? Put Drakes Bay Oyster employees on food stamps so some administrator wearing the Hat won't have to watch people actually working? Certainly you can recognize a little tongue in cheek but there is some truth here, I believe. Find a way to work it out, please.

I am not responding to you, Y_P_W. I agree with others on here that appreciate your efforts and theme.


that were previously designated as potential wilderness are, upon publication of this notice, designated as wilderness."

That is interesting, I thought only Congress could do that. Looks like another Bureaucrat stretching beyond his authority. And again as to intent, I think I will take the word of the bill's author over anybody else, including some staffer that writes a report before the bill is even passed and an administrator that selectively quotes - and thereby interprets - that report.

PS -If you want to call me EC, why don't you free up that name and he can post with complete transparency.


Founding Fathers:
That is interesting, I thought only Congress could do that. Looks like another Bureaucrat stretching beyond his authority. And again as to intent, I think I will take the word of the bill's author over anybody else, including some staffer that writes a report before the bill is even passed and an administrator that selectively quotes - and thereby interprets - that report.

That is the way potential wilderness is converted to designated wilderness. Once the "nonconforming uses" cease, that is published in the Federal Register and the area becomes fully designated wilderness. The Congressional authority already exists.

However, to publish the notice at this point seems rather premature. The oyster racks are still there. I don't think Kevin Lunny is going to start to remove them until he's out of legal options. It seems like Director Jarvis is putting the cart ahead of the horse.


Ah, I am the beneficiary of разрядка and out of the Gulag.

Thanks again ypw, I wasn't aware that the only impediment from potential to actual was the elimination of nonconfroming uses. Puts a lot of incentive on the powers that be to get rid of those "nonconforming" uses no matter the consequences.

And just out of curiosity - is that just the way it works or is that defined in the Wilderness Act or some other legislation?

Edit: I meant to say перестро́йка rather than разрядка but they both are applicable.


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