Point Reyes National Seashore Releases Draft EIS On Oyster Farm Operation

A draft environmental impact statement examining an oyster farm at Point Reyes National Seashore contains four possible alternatives, three of which would allow the operation to continue for at least 10 years if the Interior secretary agrees.

At the same time, the document makes clear that the Park Service has complete authority over the land and submerged lands in Drakes Estero and can direct Drakes Bay Oyster Co. to move out of the estero when its current lease for 1,049 acres ends in November 2012.

While Interior Department guidelines prefer that agencies identify a preferred alternative in their DEISes, this one does not contain one. It does, however, cite an "environmentally preferrable alternative," and that would be to let the lease expire late next year.

Point Reyes officials will take public comment on the DEIS through November 29, after which it will review the comments before coming to a recommendation on the future of the oyster company.

"This is an important decision that is best made with meaningful public input," said Point Reyes Superintendent Cicely Muldoon. "Our recommendation to the (Interior) Secretary will be based on the principles that guide such decisions in all national parks, including fidelity to the law, the best available sound science, and the long-term public interest. We invite all to weigh in and make their voices heard."

At issue is whether the oyster farm is adversely impacting Drakes Estero and its marinelife, particularly harbor seals. The estero long has been viewed for designation as official wilderness -- the 1976 legislation that set aside 25,370 acres of the seashore as wilderness cited another 8,003 acres 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 is seen as being incompatible with such a designation.

The Park Service's handling of the oyster company's future has been both contentious and embarassing for the agency in recent years. While a Park Service report on the oyster operation concluded that it was impacting harbor seals, the report at times has withered under scrutiny.

While the existing 40-year lease for the operation was scheduled to sunset on Nov. 30, 2012, congressional legislation passed in 2009 gave Interior Secretary Ken Salazar the authority to extend it beyond that date. In the wake of that legislation, the Park Service moved to conduct an environmental impact statement to judge whether the operation was adversely impacting the estero.

The Draft EIS evaluates four alternatives, from "no-action" under which the existing agreement to operate will expire and the area would be converted to wilderness, to the issuance of a new 10-year permit at differing levels of operation, including one that reflects the level in shellfish production requested by the current operator. All public comments received on the Draft EIS will be evaluated and considered in the development of the NPS selection of a preferred alternative that will be identified in the Final EIS.

A trio of former politicians who worked on the legislation that helped create the national seashore, including retired U.S. Reps. Pete McCloskey and John Burton, recently wrote Secretary Salazar to say it was always intended that the oyster farm be allowed to continue operations in the estero.

"The seashore is somewhat unique in the National Park System in that from the beginning, it was intended to have a considerable part of its area, consisting of the historic scenic ranches being leased back to their owners, and to retain an oyster farm and California's only oyster cannery in the Drakes Estero. The estero sits in the middle of those 20,000 acres of ranches designated as a pastoral zone; the oyster plant and cannery on the shores of Drakes Estero are in that pastoral zone," reads the letter sent by Mr. McCloskey, Mr. Burton, and former California Assemblyman William T. Bagley.

The letter also cited then-Park Service Director Conrad Wirth's position in 1961 that "... existing commerical oyster beds and the oyster cannery at Drakes Estero...should continue under national seashore status because of their public values. The culture of oysters is an interesting and unique industry which presents exceptional educational opportunities for introducing the public, especially students, to the field of marine biology."

Yet those positions clash with a Solicitor's Office opinion, rendered in February 2004, that stated not only was the Park Service within its rights to order the oyster farm out of the seashore, but that Congress did intend for the estero to be designated as official wilderness after the existing lease expired in November 2012.

The first chapter of the DEIS references the Solicitor's Opinion, as well as convenyances made by the state of California, in presenting the Park Service's position that it controls what uses are permitted within the estero.

Upon review of the lands conveyances made by the Office of the Surveyor General and the Legislature, the California State Lands Commission (CSLC) determined that they have conveyed out all of the State’s real property interest except the mineral estate, leaving the CSLC with no jurisdiction over the bed of Drakes Estero (CSLC 2007iii).

The NPS’s jurisdiction over DBOC’s aquaculture operation is not limited by the rights the state retained when it conveyed the tide and submerged lands in Drakes Estero to the United States. The California Department of Fish and Game (CDFG) and CSLC have concluded, and the NPS agrees, that the “right to fish,” as retained by the state, does not extend to aquaculture, such as DBOC’s commercial operation (CDFG 2007biv; CSLC 2007v). In its official communications on this issue, CDFG explained that “fishing involves take of public trust resources and is therefore distinct from aquaculture, which is an agricultural activity involving the cultivation and harvest of private property” (emphasis in original) (CDFG 2007b).

Because the right to fish does not extend to aquaculture, CDFG concluded that the NPS has primary management authority over DBOC operations (CDFG 2007bvi, 2008vii).

The DEIS also makes the Park Service's case that the estero has long been scheduled to be declared official wilderness.
... House Report 94-1680, which accompanied the (1976 wilderness designation) public law, provided that, “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.” The commercial shellfish operation in Drakes Estero, now operated by DBOC, is the only nonconforming use that prevents conversion of the waters of Drakes Estero from congressionally designated potential wilderness to congressionally designated wilderness (appendix B).
The DEIS also notes that when the current operators of the oyster farm took it over in December 2007, just seven years remained on the original 40-year lease and that "(T)here were no changes to the terms of the RUO or to its expiration date."

While the DEIS notes that each of the alternatives that would allow the oyster farm to receive a new lease would create only "long-term minor adverse impacts on fish," it also notes that continued operations "would not be consistent with relevant law and policy. The continued maintenance of a non-natural community in Drakes Estero does not further the goal of NPS Management Policies 2006 to preserve and restore natural communities and ecosystems. Perpetuation of non-natural habitat would continue to attract fish communities that would not naturally be found in Drakes Estero."

As to harbor seals, the document states that allowing the oyster farm to continue operations would have "long-term moderate adverse impacts on harbor seals due to continuation of commercial shellfish operations within Drakes Estero year-round, for another 10 years, and the associated use of motorboats and bottom bag cultivation on sandbars and mudflats adjacent to the designated harbor seal protection areas. This would result in continued human presence and potential harbor seal disturbances throughout the year."

The DEIS also notes that recreational kayaking in the estero also could cause harbor seal and bird "flushing," and "could also impact harbor seal migratory patterns during pupping season." To that end, the Park Service said it would "evaluate recreational use levels within Drakes Estero and may limit use by permit. Increased kayaking and other nonmotorized watercraft within Drakes Estero has the potential to impact wildlife and wildlife habitat (harbor seals and birds), special-status species, soundscapes, visitor experience and recreation, and socioeconomic resources."

The Draft Drakes Bay Oyster Company Special Use Permit EIS is open for review and comment through November 29. The Draft EIS is available on the NPS Public Comment site at http://parkplanning.nps.gov/pore. Copies may also be obtained at park headquarters.

Comments may be submitted online at http://parkplanning.nps.gov/pore, or by mailing or hand delivering comments to: Draft EIS DBOC SUP c/o Superintendent, Point Reyes National Seashore, 1 Bear Valley Road, Point Reyes Station, CA 94956; or at one of the public meetings below.

The National Park Service will host three public open-house meetings for the public to ask questions and comment.

Tuesday, October 18, 6:00 - 8:00 p.m. - Dance Palace Community Center, 503 B Street, Point Reyes Station, CA 94956

Wednesday, October 19, 6:00 - 8:00 p.m. - Fort Mason Center, Building D, San Francisco, CA 94123

Thursday, October 20, 6:00 - 8:00 p.m. - Tamalpais High School Student Center, 700 Miller Avenue, Mill Valley, CA 94941