111th Congress Did Well When it Comes to National Park Wilderness, But It Could Have Done Better

A review of how the 111th Congress acted on wilderness legislation shows that the National Park System benefited quite nicely, but it could have fared better.

According to Frank Buono, a former National Park Service official who now tracks wilderness issues, "the 111th Congress designated wilderness in more separate park units (6) than in any Congress since 1980 in the Carter Administration."

That said, he notes that "the number of acres designated was dwarfed by the park wilderness in the 1980 Alaska National Interest Lands Conservation Act, and in the California Desert Protection Act of 1994."

As, it seems, with any other legislation coming out of Washington these days, the wilderness provisions at times cover more than wilderness issues. For instance, notes Mr. Buono, "(T)he 111th Congress also adopted a provision that is unprecedented in the history of National Park System wilderness. Senator Diane Feinstein (D-CA) inserted a provision into an Interior Appropriations Act to allow the Secretary to permit for a ten-year period a commercial aquaculture operation in an area of designated potential wilderness in Point Reyes National Seashore, California.

"Specifically, Section 124 of the Interior Appropriations Act for Fiscal Year 2010 (October 30, 2009) authorizes the Secretary of the Interior to renew a permit for a commercial oyster farm in Drakes Bay, an area designated as potential wilderness in 1976, for a ten year period, beginning on November 30, 2012," he notes. "The authorization for the oyster farm in the Drakes Bay Estero was due to expire in 2012. At that point the nonconforming use would have ceased, enabling the NPS to convert the potential wilderness into full wilderness by publication of a Federal Register notice."

Here's a recap of recent congressional action on wilderness issues from Mr. Buono:

Senator Thomas Coburn (R-OK) almost single-handedly blocked any wilderness designation in the ending days of the 110th Congress. In response, Senate Majority Leader Harry Reid (D-NV) placed an omnibus federal lands bill at the top of the Senate calendar in 2009. The 111th Congress hit the ground running on park wilderness, and other public land issues. On March 30, 2009, President Obama signed into law Public Law 111-11. The law designated wilderness in six areas of the national park system. They are (in alphabetical order):

1. Joshua Tree National Park (California) - Congress designated 36,700 additional acres of wilderness and 43,300 acres of potential wilderness in Joshua Tree. The new wilderness came on lands that were Joshua Tree by the California Desert Protection Act of 1994. Joshua Tree became the first park in which Congress acted on three separate instances to designate wilderness.

2. Pictured Rocks National Lakeshore (Michigan) - Congress designated 11,740 acres as the Beaver Basin Wilderness in Pictured Rocks.

3. Rocky Mountain National Park (Colorado) - Congress designated approximately 249,339 acres of Rocky Mountain National Park as wilderness.

4/5. Sequoia and Kings Canyon National Parks (California) - Congress established the John Krebs Wilderness in the Mineral King area of Sequoia National Park, encompassing 39,740 acres and 130 acres of potential wilderness. Congress also designated 45,186 additional acres of wilderness in the Sequoia-Kings Canyon Wilderness. The John Krebs Wilderness is one of only three NPS wilderness areas where Congress did not make the references in the Wilderness Act to the “Secretary of Agriculture” applicable to the “Secretary of the Interior.” Thus the “special provisions” in the Wilderness Act found at section 4(d) are inoperative in the John Krebs.

6. Zion National Park (Utah) - Congress designated 124,406 acres of Zion as wilderness. Zion is one of the three NPS wilderness areas where Congress did not make the references in the Wilderness Act to the “Secretary of Agriculture” applicable to the “Secretary of the Interior.” Thus, the “special provisions” in the Wilderness Act found at section 4(d) are inoperative at Zion.

The 111th Congress designated wilderness (including potential wilderness) within the National Park System of approximately 550,000 acres.

While the additions certainly are welcome, the list of parks that have no officially designated wilderness is not short and, in some cases, quite surprising. For instance, neither Yellowstone nor Glacier have officially designated wilderness. Nor do Canyonlands, Voyageurs, Grand Canyon, Great Smoky Mountains, Big Bend, Grand Teton, Craters of the Moon National Monument, Cumberland Gap National Historical Park, or Sleeping Bear Dunes National Lakeshore.

Wilderness designations can be contentious issues. Mining interests oppose them because they can put potential reserves out-of-bounds. Developers can't open up roads. And even mountain bikes can't negotiate them because of The Wilderness Act's prohibition against any "form of mechanical transport."

How important are the designations? In places such as Glacier or Yellowstone probably not overly so, as the rough and rugged backcountry of these places is managed for their wilderness qualities and not likely to be intruded upon by roads or structures. At the same time, lacking official wilderness designations, these landscapes could still be eyed for communication towers or mountain bike trails, Park Service officials have noted.

Comments

Is there a correlation between the 111th doing well and the country being in the tank with disaster looming?

Wilderness is valuable to discourage development in the back country. In 1966 the superintendent at Zion showed me a map indicating a proposed development of visitor facilities in the wild lands east of Zion Canyon, to be accessed by a spur road off the Mount Carmel highway. In that era some NPS managers seemed to favor development of campgrounds and roads in the back country to "reduce crowding" in popular front country areas. Perhaps it was a lingering influence from Mission 66. That proposal was later dropped, NPS recommended the area for wilderness designation, and it became part of the Zion wilderness in the 2009 law. Development ideas will continue to pop up; wilderness designation helps NPS managers resist them.

The information here about Drake's Bay Oyster is inaccurate and misleading.

This statement is not true: "The authorization for the oyster farm in the Drakes Bay Estero was due to expire in 2012. At that point the nonconforming use would have ceased, enabling the NPS to convert the potential wilderness into full wilderness by publication of a Federal Register notice."

The Reservation of Use and Occupancy for the oyster farm's shoreside facility does expire in 2012, but that legally binding document contains a renewal clause. The Department of Fish and Game, in 2004, renewed the farm's shellfish aquaculture lease in Drakes Estero through 2029, a clear sign that the oyster farm has been expected to continue. It is not true that the oyster farm (a "nonconforming use" that pre-dates the National Seashore by decades) was intended to cease in 2012. There is ample evidence that the authors of the Point Reyes wilderness act, Sen. Gene Tunney and Rep. John Burton, expected the oyster farm to continue.

The idea that the oyster farm was intended to be eliminated in 2012 is misinformation being spread by those who want the oyster farm to be removed. (They are also spreading misinformation about the oyster farm's environmental impact.)

The former Park Service superintendent wanted to remove the oyster farm, and has always had the authority to do that, but apparently didn't want to take responsibility for that decision, given that there are at least as many local-food advocates in West Marin as there are wilderness advocates. It's a complicated history, but the Feinstein legislation was meant to underline that authority, not to change it.

There are strong differences of opinion on this issue, but there are no legal or scientific facts that support the removal of the oyster farm.

The historic dairy farms still operating at Point Reyes seem to be working but to purists (?). How do purist's make a living, anyway?
I'm glad there are a few decisions that actually include us in the food chain. :) Boy, does it ever storm at Point Reyes. The pines I saw grow horizontally :).

Well, this is a nice, thought-provoking article to start off the new year. Thanks.

Now perhaps you could help us all with an article explaining this statement: "The John Krebs Wilderness is one of only three NPS wilderness areas where Congress did not make the references in the Wilderness Act to the “Secretary of Agriculture” applicable to the “Secretary of the Interior.” Thus the “special provisions” in the Wilderness Act found at section 4(d) are inoperative in the John Krebs."

Also, it seems we could use a little reporting to clarify the Drakes Bay situation.

Kurt, Bob et al, you can't imagine how much more interested in the nuances of park management I have become since I discovered NPT, and I work here! Thank you for the in-depth reporting, and for casting your eye far and wide across the breadth of the whole national park system. For many of us, it's far too easy to fall into the trap of viewing "the national parks" from the limited perspective of one or a few parks where we might live, work, or play.

Mr. Buono has it wrong with respect to Senator Diane Feinstein’s provision to allow a ten-year extension of a two acre on-shore facility associated with a State of California aquaculture lease in Point Reyes National Seashore.

In fact, the Secretary of the Interior already had the authority to renew the statutorily renewable permit for the mariculture operation’s on-shore facilities, which are adjacent to, not within, an area of potential wilderness designation. That authorization is due to expire in 2012, but is explicitly renewable. Feinstein’s provision merely made explicit the State of California’s interest in seeing the on-shore permit renewed. The State of California’s right to aquaculture within Drakes Estero was explicitly retained when the State passed the Estero to the National Parks Service in 1964. It was this retained right, and other issues, not the on-shore oyster processing facility, which was considered incompatible with full wilderness designation when the Point Reyes Wilderness Act was passed in 1976.

It is the Secretary of the Interior, not the NPS, who declares, through publication of a statement to that effect in the Federal Register, when all nonconforming uses have ceased, and thereby changes potential wilderness designation to full wilderness designation. By adopting the Feinstein provision, Congress merely confirmed this fact. Since the State of California has no intention of giving up the 50% of its mariculture production represented by its Drakes Estero leases, wilderness advocates should perhaps finally, after 35 years, accept the recommendation of the principal author of the Point Reyes Wilderness Act, Representative John Burton, who said, "This legislation is intended to preserve the diverse uses of the seashore... There are two area proposed for wilderness which may be included as wilderness with 'prior non-conforming use' provisions. One is Drakes Estero where there is a commercial oyster farm." Another author of the Act, Senator John Tunney said, "… The existing agricultural and aquacultural uses can continue."

Senator Feinstein, recognizing the public value provided by the oyster farm and the State of California’s retained rights to mariculture in Drakes Estero, simply supported the original congressional intent of the Point Reyes Wilderness Act. Anyone who cares about sustainable food production or understands the importance of shellfish mariculture to the conservation of marine resources, should applaud Senator Feinstein’s action and support the continuation of mariculture in Drakes Estero.

Thanks for your note, Ranger. I think more than a few of us are learning about the nuances every day as we follow life in the parks.

As for the Point Reyes oyster debate, we've had a few stories on it:

http://www.nationalparkstraveler.com/2009/05/national-research-council-report-blasts-park-service-report-oyster-farming-point-reyes-natio

http://www.nationalparkstraveler.com/2010/02/point-reyes-national-seashore-superintendent-promoted-yosemite-national-park5333

http://www.nationalparkstraveler.com/2009/09/coalition-calls-sen-feinsteins-rider-extending-life-oyster-farm-point-reyes-national-seashore-be-str4647

This indeed is an intricate issue, one with more than a few nuances as some of the comments above indicate.

What seemingly is accepted by all is that commercial oyster farming was well under way in Drakes Estero in 1976 when Congress designated the estuary as potential wilderness.

After that, though, views vary.

Back in the 1970s Interior Department officials, noting that the Drakes Bay Oyster Co. operation would run counter to official wilderness designation, directed the National Park Service to push for that designation in 2012 when the oyster farm's lease expires.

According to the National Park Service, "the eastern portion of the estero (Estero de Limantour) is congressionally designated Wilderness Area and the rest of the estuary is designated potential wilderness and reverts to full wilderness in 2012."

While Sarah Rolph above disputes that statement, the Interior Department's Office of the Solicitor has rendered an opinion that the Drakes Bay Oyster Company must be removed from the estero because it would be a "non-conforming use" under the Wilderness Act.

Cue the lawyers.

My understanding about the renewed shellfish permit for DBOC is that its validity is contingent on the NPS reauthorizing the use of those specific shore operations. For example, the DBOC couldn't lose their right to their current shore operations and farm oysters in Drakes Estero with shore operations at Tomales Bay.

I know there are some statements and documents that claim that the oyster farm's shore operations must cease, but they're only legal opinions that can change with administrations and of course with legislation. I've seen plenty of "non-conforming uses" in NPS and Forest Service wilderness (and/or potential) areas, including dams, buildings, large signs, or campgrounds. The High Sierra Camps continue to operate in Yosemite even though they employ "permanent structures". Several lakes in the Sierra are surrounded by wilderness areas, but with existing businesses (lodges, stores, campgrounds, boat rentals) allowed to exist just outside the wilderness boundaries.

I've participated in several discussions on this issue in other forums, and some of the rhetoric is off the charts. One rather unknowledgeable person claimed that the oyster farm's shore operations were designated to be wilderness and the current road to the farm should be allowed to revert to vegetation. This road is a preferred route for kayakers, whose activities will still remain legal in Drakes Estero regardless of wilderness status. I even recall Neil Desai verified this (that the road and shore operations are not within the potential wilderness boundary) in a comment attached to his guest column on NPT.

I think the end is near for some of the National Parks, including our Voyageurs National Park. People in the area are pushing to have it changed to a national wildlife area. I put a poll on my web site http://lakekabetogama.org pertaining to this issue and the results are overwhelmingly in favor of eliminating the National Park designation. Obama's Debt Reduction Committee has also recommended closing some national parks.

"For instance, neither Yellowstone nor Glacier have officially designated wilderness. Nor do Canyonlands, Voyageurs, Grand Canyon, Great Smoky Mountains, Big Bend, Grand Teton, Craters of the Moon National Monument, Cumberland Gap National Historical Park, or Sleeping Bear Dunes National Lakeshore."

In the case of Voyageurs National Park, we get no visitors, and the Park Service has done nothing to develop any trails. More info at http://lakekabetogama.org

Kurt, the record shows that Congress expected the oyster farm would continue as a pre-existing non conforming use within wilderness. I am certainly not the only one who holds this opinion. This fact is found in the congressional record, and was provided to you by Jeffrey Creque.

Neither of us is aware of any 1970's Interior Department directive to remove the oyster farm in 2012--nor are any of our sources. This claim has been repeated often, but there is no known evidence for it.

If it is it true that there was a 1970's Interior Department directive that overturned congress' plan to continue the aquaculture within the Point Reyes wilderness, there should be a citation.

Could you provide that, please?

This is a serious issue, and if you are going to take a stand on it, you are obligated to back up your claims.

Sarah,

If you can point to a specific section of the authorizing legislation for the seashore or the related Point Reyes Wilderness Act that allows continued operation of the oyster farm beyond 2012, and not simply quotes from the authors of the act, that'd be helpful. The review conducted by the Interior Department's Office of the Solicitor found no such binding directive in reaching the conclusion that the NPS was not obligated to extend the farm's lease beyond 2012.

And if such provisions did indeed exist, why did Sen. Feinstein feel it necessary to insert a rider into an appropriations bill giving the Interior Department the authority to renew the lease? And in her letter of May 2009 to Interior Secretary Salazar the senator specifically used the word "renew" in asking him to allow the Drakes Bay oyster farm to continue operations. She doesn't cite any existing congressional intent to allow continued operation.

Here's how the Solicitor's Office interpreted the matter in February 2004 correspondence to the Park Service. Not only do these documents specifically note that "Tom Johnson, as a condition of his sale to the Park Service, reserved the right to operate an oyster farm for 40 years until 2012," but they add that the Park Service could withdraw that right at any time for operational violations.

The bottom-line, according to the solicitor, is summed up in two paragraphs:

Because JOC (Johnson Oyster Co., which is today's Drakes Bay Oyster Co.) operates with major violations of the terms of the Reservation, well documented noncompliance JOC is clearly in breach of contract, which relieves the National Park Service of its obligation to permit JOC to remain on the property until 2012. Given the requirements of the Reservation and JOC’s failure to satisfy them, the Park Service clearly has the authority to terminate the Reservation and to direct JOC to vacate the property on which it operates.

Removal of JOC from the Point Reyes National Seashore property and its oyster farming from the Estero, would allow the Service to begin the conversion of the area to wilderness status, which directive Congress charged the Park Service to accomplish.

The solicitor's findings were cited, and included, in the National Research Council's 2009 critique of the Park Service's report on how the oyster farm impacts the estero. If you have a more recent opinion that overturns these findings, I'd certainly be interested in seeing it.

I've pasted the Research Council's narrative on this aspect of the lease, including the solicitor's findings, below, or you can find them at the Research Council's website.

The National Park Service position that it cannot authorize continued operations beyond the expiration of the Reservation of Use and Occupancy in 2012 is primarily based upon the 1976 Point Reyes National Seashore legislation. National Park Service Reservations of Use and Occupancy (RUOs) are created as part of the real property transaction when the United States purchases the underlying land, and the National Park Service does not renew or extend expired RUOs. After the expiration of a National Park Service RUO, continued use and occupancy of the land is possible if a new authorizing instrument can be issued under applicable laws. The National Park Service and the Department of the Interior Solicitor’s Office read the 1976 legislation designating Drakes Estero as Potential Wilderness and strengthening the enabling act for Point Reyes National Seashore [P.L. 94-544 (Oct. 18, 1976) and P.L. 94-567 (Oct. 20, 1976), 16 U.S.C. § 1132 note] as eliminating the discretion of the NPS to authorize continued operations through a new authorizing instrument beyond the expiration of the RUO in 2012. In addition to the 1976 legislation, other legal requirements that the NPS has identified that would impact authorization of operations beyond 2012 include the National Environmental Policy Act, the National Park Service Organic Act, the Marine Mammal Protection Act, the Endangered Species Act, and the National Park Service regulations as set forth in Title 36 of the Code of Federal Regulations.

In this legal context, the decision on a renewal of the Reservation of Use and Occupancy for Drakes Bay Oyster Company to continue to operate in Point Reyes National Seashore is subject to the U.S. Wilderness Act (P.L. 88-577, Sep. 3, 1964), which defines Wilderness as follows:

A wilderness, in contrast with those areas where man and his own works dominate the landscape, is hereby recognized as an area where the earth and its community of life are untrammeled by man, where man himself is a visitor who does not remain. An area of wilderness is further defined to mean in this Act an area of undeveloped Federal land retaining its primeval character and influence, without permanent improvements or human habitation, which is protected and managed so as to preserve its natural conditions and which (1) generally appears to have been affected primarily by the forces of nature, with the imprint of man’s work substantially unnoticeable; (2) has outstanding opportunities for solitude or a primitive and unconfined type of recreation; (3) has at least five thousand acres of land or is of sufficient size as to make practicable its preservation and use in an unimpaired condition; and (4) may also contain ecological, geological, or other features of scientific, educational, scenic, or historical value.

(16 U.S.C. 1131-1136, section 2©)

Regarding prohibited and permitted uses of Wilderness areas, the Wilderness Act states:

Except as specifically provided for in this Act, and subject to existing private rights, there shall be no commercial enterprise and no permanent road within any wilderness area designated by this Act and, except as necessary to meet minimum requirements for the administration of the area for the purpose of this Act (including measures required in emergencies involving the health and safety of persons within the area), there shall be no temporary road, no use of motor vehicles, motorized equipment or motorboats, no landing of aircraft, no other form of mechanical transport, and no structure or installation within any such area.

(16 U.S.C. 1131-1136, section 4©)

The Wilderness Act goes on to make special provisions regarding use: “the use of aircraft or motorboats, where these uses have already become established, may be permitted to continue subject to such restrictions as the Secretary of Agriculture deems desirable” (16 U.S.C. 1131-1136, section 4(d)(1)) and “[c]ommercial services may be performed within the wilderness areas designated by this Act to the extent necessary for activities which are proper for realizing the recreational or other wilderness purposes of the areas” (16 U.S.C. 1131-1136, section 4(d)(6)).

The Wilderness Act was amended as follows in the Point Reyes Wilderness Act of 1976 (PL 94-544, Oct. 18, 1976):

SEC. 3. The area designated by this Act as wilderness shall be administered by the Secretary of the Interior in accordance with the applicable provisions of the Wilderness Act governing areas designated by that Act as wilderness areas, except that any reference in such provisions to the effective date of this Act, and, where appropriate, any reference to the Secretary of Agriculture, shall be deemed to be a reference to the Secretary of the Interior.

SEC.4 (a) Amend the Act of September 13,1962 (76 Stat. 538), as amended (16 U.S.C. 459c-6a), as follows: In section 6(a) insert immediately after the words “shall be administered by the Secretary,“ the words “without impairment of its natural values, in a manner which provides for such recreational, educational, historic preservation, interpretation, and scientific research opportunities as are consistent with, based upon, and supportive of the maximum protection, restoration, and preservation of the natural environment within the area.”

(PL 94-544, Oct. 18, 1976)

At the request of the superintendent of the Point Reyes National Seashore and the regional administrator of NPS, the Office of the Solicitor, San Francisco Field Office, in the Department of the Interior prepared memoranda on the status of Johnson Oyster Company (now DBOC) under the terms of sale of the property to NPS and the subsequent Potential Wilderness designation of Drakes Estero under the Point Reyes Wilderness Act of 1976 (PL 94-544, Oct. 18, 1976).

The memoranda are reproduced in their entirety on the following pages.

Here are the specific documents (ie. memoranda) from the solicitor's office, as cited by the Research Council. (Unfortunately, the maps and various attachments mentioned in the documents were not on the council's website):

United States Department of the Interior

OFFICE OF THE SOLICITOR

San Francisco Field Office 1111 Jackson Street, Suite 735 Oakland, California 94607

February 26, 2004

To: Superintendent

Point Reyes National Seashore

From: Field Solicitor

San Francisco Field Office

Re: Point Reyes Wilderness Act

As requested, this memorandum opinion reviews the Point Reyes wilderness situation as it related to the Johnson Oyster Company 40-year Reservation of Use and Occupancy which expires in 2011, or might be terminated sooner for cause or other processes. The Wilderness Act of 1964, and the Point Reyes Wilderness Act of 1976, provide the guidance for implementation of wilderness within the Seashore and are the basis for NPS’s obligations to manage the subject land and waters toward conversion of the potential wilderness areas to wilderness status.

In conjunction with the Seashore authorization Act of 1962, the State of California, by 1965 legislation (copy attached), conveyed to the United States all of the right, title and interest of the State in lands one-quarter mile seaward of the mean high tide. More precisely the State granted “all the tide and submerged lands or other lands beneath navigable waters situated within the boundaries of the Point Reyes National Seashore …” to the United States. Excepted from this grant and reserved to the State were the “right to fish upon, and all oil, gas and other hydrocarbons in the lands … together with the right to explore or prospect …” within the tidal and submerged lands. However, these reserved rights were not to be “exercised in such manner as to cause … unnecessary pollution of the coastal waters”, and no “well or drilling operations of any kind shall be conducted upon the surface of such lands.”

On October 18, 1976, the Point Reyes Wilderness Act designated 25,370 acres as wilderness, and 8003 acres as potential wilderness. Public Law 94-544, Oct. 18, 1976. The area designated as potential wildness (2811 acres) for area 2 of three areas included the waters of the Drakes Estero and the adjoining inter-tidal land and upon which Johnson Oyster Farm operates a commercial oyster business.1 (map attached)

This Congressional designation of the wilderness and potential wilderness (see the House and Senate discussions of the legislation in the Congressional Record -copy attached) was made notwithstanding a September 8, 1976 letter written by John Kyl, Assistant Secretary of the Interior, to James A. Haley, Chairman of the Committee on Interior and Insular Affairs wherein he stated the Department’s position on the Point Reyes Wilderness Act. While DOI was largely supportive of the Act, Mr. Kyl’s letter said that the Department did not recommend the inclusion of the tidelands extending one-quarter mile offshore within the boundaries of Point Reyes, as granted by the State of California as potential wilderness. According to the Kyl’s letter, the State’s retention of mineral and fishing rights rendered this area “inconsistent with wilderness.” This letter is the only record in the legislative history that raises this point in the area’s wilderness and potential wilderness designation. After review of the 1965 State Act, the Wilderness Act, Point Reyes Wilderness Act, case law and present day NPS Directors’ orders and Management Policies, it is the view of this office that the remarks in the Kyl letter are not only inaccurate but overridden by the Congressional action, as explained below.

The 1965 State Act is very limited in its two reservations of rights, i.e., public right to fish and severely restricted mineral exploration access, i.e., no surface disturbance of any kind. Both reservations would not conflict with the Secretary converting the potential water area and shore land wilderness acres into designated wilderness. Further, notwithstanding the Departments’ letter, the Congress ultimately designated 25,370 wilderness and 8000 potential wilderness acres which exceeded the acreage recommended by the Administration. This reflects that Congress did not heed Mr. Kyl’s recommendation and conclusions and enacted its preferred wilderness act.

Addressing the potential wilderness lands and water, the House Report 94-1680, accompanying the eventually enacted Bill (HR 8002) states that it was its intent that there be “efforts to steadily continue to remove all obstacles to the eventual conversion of these lands and waters to wilderness status.” (copy attached) The designations are implemented by the Park Service’s 2001 Management Policies on wilderness which state that “[I]n the process of determining suitability, lands will not be excluded solely because of existing rights or privileges (e.g., mineral exploration and development, commercial operations…”)2 Further, the Park Service’s Management Policies clearly state that the Park Service must make decisions regarding the management of potential wilderness even though some activities may temporarily detract from its wilderness character. The Park Service is to manage potential wilderness as wilderness to the extent that existing non-conforming conditions allow. The Park Service is also required to actively seek to remove from potential wilderness the temporary, non-conforming conditions that preclude wilderness designation. 6.3.1. Wilderness Resource Management, General Policy. (selected excerpts attached)

Hence, the Park Service is mandated by the Wilderness Act, the Point Reyes Wilderness Act and its Management Policies to convert potential wilderness, i.e., the Johnson Oyster Company tract and the adjoining Estero, to wilderness status as soon as the non conforming use can be eliminated.3

Ralph G. Mihan

1.

It is noted that the State continues to issue to Johnson Oyster Company commercial allotments in Drakes Estero which seem to be in conflict with the 1965 State legislative grant and 1976 Congressional mandate to convert the bays of the Estero into wilderness status. On the other hand, the continued public fishing in the Estero is consistent with the State legislative grant and the conversion to wilderness status.

Further, since the United States owns the tide and submerged lands in Drakes Estero, it clearly follows that permission of NPS is appropriate for commercial activities taking place on those granted lands.

2.

See the District Court ruling that past commercial activities, in this case timber harvesting, do not preclude an area’s wilderness designation. Minnesota Public Interest Research Group v. Butz. 401 F. Supp. 1276, 1329 (1975)

3.

The status of the Johnson Oyster Company will be addressed in a separate document.

Here's that separate document:

OFFICE OF THE SOLICITOR

San Francisco Field Office 1111 Jackson Street, Suite 735 Oakland, California 94607

MEMORANDUM

February 27, 2004

To: Superintendent

Point Reyes National Seashore

From: Field Solicitor

San Francisco Field Office

Re: Johnson Oyster Company Property Status

As requested, this office has reviewed the case file pertaining to the long standing non compliance by the Johnson Oyster Company (JOC) with the terms and conditions of its Reservation of Use and Occupancy. (“Reservation”)

The Johnson Oyster Company is operating on National Park Service fee land in Point Reyes National Seashore under a 1972 Reservation in which Tom Johnson, as a condition of his sale to the Park Service, reserved the right to operate an oyster farm for 40 years until 2012 1. For the last many years, the JOC has operated in violation of the agreed upon conditions contained in the Reservation. Some of this property and the adjoining Drakes Estero where the oysters are farmed are currently within designated “potential wilderness” Area 2 and will become “wilderness” upon cessation of JOC’s operations. As soon as the property and waters are vacated, NPS would proceed with its conversion to wilderness preservation, as required by the Wilderness Act (16 U.S.C. 1131-1136), and more specifically the Point Reyes Wilderness Act of 1976, (PL 94-544, Oct.18, 1976)

“Potential wilderness” is an area which contains “lands that are surrounded by or adjacent to lands with the wilderness designation but that do not themselves qualify for immediate designation due to temporary, non-conforming, or incompatible conditions.” National Park Service Management Policies 2001, Section 6.2.2.1. This designation imposes land management obligations on NPS in that the NPS’s 2001 Management Policies direct that the Park seek to remove the non-conforming conditions that preclude wilderness designation.

The October 12, 1972, Charles W. Johnson (Tom Johnson’s father) sold his five acres of property for $79,200.00 to the National Park Service. The Reservation retained for the “Vendor, its successors and assigns, a terminable right to use and occupy the … property … together with the improvements situated thereon, for a period of 40 years for the purpose of processing and selling wholesale and retail oysters, seafood and complimentary food items, the interpretation of oyster cultivation to the visiting public, and residential purposes reasonably incidental thereto.…”

The right to engage in these activities, however, was made contingent upon the satisfaction of various conditions including maintaining the property in a “safe, sanitary, and sightly condition, open to reasonable inspection by the National Park Service, and meeting all Federal, State, and County health, sanitation, and safety standards applicable to operation of and residence within areas engaged in the processing and retail sale of oysters.” In addition, the JOC was made responsible for utility services, including sanitation, not committing waste, and complying with all National Park Service rules and regulations. It also precluded constructing any temporary or permanent structures without the approval of the Park Service.

On December 5, 1995, the Superintendent, wrote JOC a letter describing a variety of violations of the conditions of the Reservation, i.e., operating a septic system, water system and buildings in violation of Marin County health and safety codes (Condition 1 of the Reservation); maintaining numerous buildings and trailers that were not authorized by NPS or permitted by Marin County (Condition 5); and erecting structures that were not authorized by NPS or permitted by Marin County (Condition 7).2 Six months later, on April 10, 1996, the Superintendent sent JOC another letter explaining his noncompliance with the mobile home conditions imposed on JOC in the Reservation.3

To date JOC continues to violate the terms of the Reservation. In his most recent communication with Mr. Johnson on September 17, 2003, the Superintendent wrote a letter detailing JOC’s continuous violations of the Reservation. The letter notes that required permits have not been obtained, a sewage system was not installed, and design and environmental compliance reviews have expired. The letter also describes other violations found during a recent inspection including water draining into the Estero from JOC’s shucking room; the presence of overflowing oil and gas drums; inadequately contained above-ground fuel storage tanks; the careless presence of fuel containers, engines, refrigerators, and other items; operation of essentially a junkyard; and other health and safety violations.

Because JOC operates with major violations of the terms of the Reservation, well documented noncompliance JOC is clearly in breach of contract, which relieves the National Park Service of its obligation to permit JOC to remain on the property until2012.4 Given the requirements of the Reservation and JOC’s failure to satisfy them, the Park Service clearly has the authority to terminate the Reservation and to direct JOC to vacate the property on which it operates.

Removal of JOC from the Point Reyes National Seashore property and its oyster farming from the Estero, would allow the Service to begin the conversion of the area to wilderness status, which directive Congress charged the Park Service to accomplish.

Ralph G. Mihan
1

In addition, the National Park Service has issued various special use permits to Mr. Johnson over the years.

2

The letter also described a variety of violations of the conditions of JOC’s special use permits for the use of a water-well drilled on Seashore land, and also for parking facilities.

3

Despite Mr. Johnson’s continuous violation of both the terms of his agreements with the National Park Service and Marin County’s regulations, the County sought to find a friendly solution that would avoid forcing Mr. Johnson off the property on which he operated JOC. Thus, on January 9, 1997, Marin County and Mr. Johnson entered into a Stipulated Agreement Between the Parties and Order (“Stipulated Agreement”) detailing Mr. Johnson’s maintenance obligations and specifying the consequences of noncompliance. Marin County Superior Court #165361.

4

In contrast to the Reservation, the Marin County Court approved Stipulated Agreement docs specify consequences for failure to comply with its conditions. These consequences are cessation and removal of the offending activity.

I would note that the 1972 RUO with Johnson's did include a renewal clause which either wasn't mentioned in the docs you cite or that could have been edited by Kurt. Whether that would have been overridden by the 1976 Point Reyes Wilderness Act is subject to debate, although some Interior Dept opinions are that it is. In any case, Sen Feinstein's legislation changes everything.

Come to think of it, maybe I should head over there this weekend. A little whale watching at the lighthouse and two dozen oysters sounds like a nice day.

y_p_w, I cut-and-pasted the docs in their entirety, and linked back to them, to avoid charges that I selectively edited them.

As to whether there was a renewal clause out there, that seems pointless in light of the Solicitor's Office position that any violation of the conditional use provisions allows the Park Service to sever the contract before it runs its course.

Kurt Repanshek:
y_p_w, I cut-and-pasted the docs in their entirety, and linked back to them, to avoid charges that I selectively edited them.

As to whether there was a renewal clause out there, that seems pointless in light of the Solicitor's Office position that any violation of the conditional use provisions allows the Park Service to sever the contract before it runs its course.

I'm pretty sure that the Interior Dept is keen to avoid lawsuits or to appear heavy handed. They would have had their hands full if they did that. As it stands they have their hands full trying to find ways to end the current RUO.

Again - the extension has been fundamentally changed by Senator Feinstein's legislation. I'm no opponent of wilderness designations. I'm also a huge fan of Drakes Bay Oyster Company. I really don't think it's incompatible for someone to be a fan of wilderness while also being a proponent of this unique business (as far as the NPS goes). You know me - I'm not a one-trick pony only posting here on a single issue like Cape Hatteras ORV use or firearms. I truly care about Point Reyes NS and it's my feeling (among many others) that the oyster farm is a valuable component of what makes the place special. While a wilderness designation would be interesting, I think the character of Drakes Estero is really a function of solid management practices and not whether or not it's got a "full wilderness" designation.

Has the senator's rider fundamentally changed things? It doesn't direct the Interior Department to extend the lease, but only gives it the authority to do so.

Kurt Repanshek:
Has the senator's rider fundamentally changed things? It doesn't direct the Interior Department to extend the lease, but only gives it the authority to do so.
It's certainly the opinion of quite a few opponents of that rider that it does fundamentally change things. I've personally felt that the NPS or Interior Dept could extend it with a different opinion from a change of administration. However - the lead for this was previously the NPS administration, while the rider planted the authority with the Secretary. Now NPS Director Jon Jarvis is unlikely to shift his stand on the matter after being so invested in trying to defend the actions of PRNS. I doubt Secretary Salazar has enough background on it that he's biased one way or the other. Certainly the rider may have been a "strong suggestion" meant to win hearts and minds among Interior Dept personnel - especially Secretary Salazar.

Actually Craters of the Moon has had designated wilderness since 1970 - it was one of the first wilderness areas administered by the NPS. http://www.nps.gov/archive/crmo/wildpurpose.htm

Kurt, I was just wondering if the newly added wilderness in the 4 places you site, were run by the NPS before, or will there be new costs in it's management. And if there are new costs, does the legislation come with a boost to the budget. As I have said before, I am all for our parks growing...I just see it a problem when they want to shrink the budget.

"At the same time, lacking official wilderness designations, these landscapes could still be eyed for communication towers or mountain bike trails, Park Service officials have noted."

Sorry for being late to this thread, but I just could not let it go. Man, that says a lot about the anti cycling bias of the park service, equating communication towers with mountain biking. This is especially funny since there is no such thing (to my knowledge) as a dedicated MTB trail in the NPS (unless you're talking about fireroad that nobody uses...). Cyclists only want access to multi use trails. What's especially galling in this comment is that it implies that mountain biking would not be an appropriate usage for a park. It's just plain sad.

Zeb, there's multi-use biking/hiking trails in Mammoth Cave National Park, Whiskeytown NRA has some great single-track, one of our new sponsors, Holiday River Expeditions, offers a mountain bike trip in the Maze District of Canyonlands National Park, there's a 2.5-mile-long hiking/biking trail at Saguaro National Park, and I know the folks at Big Bend NP have been trying to approve a mountain bike trail.

These are just off the top of my head. I'd venture there are other opportunities out there.

Oh, almost forgot. At New River Gorge National River they're seeking comments on a plan to develop two “stacked loop” single-track trail systems that would blend beginner, intermediate, and expert loops systems together.

Point Reyes NS has several multi-use trails open to bicycles. There are even three backcountry campgrounds that could be accessed via bicycle.

The trails open to bikes are in dotted red:

http://www.nps.gov/pore/planyourvisit/upload/map_park.pdf

Guys,

I did not make my point clearly. The comment I quoted implied that the NPS official was worried about "MTB trails", which I took to mean MTB dedicated trails, hence my comment about the park not having MTB ONLY trails. I understand that the NPS has quite a few (but definitely not enough) multi use trails.

Sorry, Zeb, must have gotten waylaid by this sentence from your comment:

"Cyclists only want access to multi use trails"

That said, I don't think you'll ever see "MTB ONLY trails." If mountain biking opportunities are expanded in the national parks, I'd wager that the trails would also be open to hikers and stock use.

Kurt,

Multi use trails are the answer, no disagreement here.

I tend to believe that the language of "mountain bike trails" meant multi-use trails that would be open to mountain bikes. Unpaved trails open to bicycles are still relatively rare in NPS areas, even without wilderness status. Why get hung up over a short phrase that doesn't explain the whole context?

YPW,

Even if the language meant opening trails to MTB, it was still in the context of seeing bicycles as a threat (apparently almost as dangerous as cell towers). Looks like a clear anti bike bias to me.