Drakes Bay Oyster Co. Seeks TRO To Keep Point Reyes National Seashore Oyster Farm In Business

Attorneys for the Drakes Bay Oyster Co. on Wednesday sought a temporary restraining order to prevent the Interior Department from ordering the oyster farm out of Point Reyes National Seashore.

The lawyers supported their request with claims that Interior Secretary Ken Salazar broke the Administrative Procedures Act and violated the National Environmental Policy Act when he decided late last month not to extend the oyster company's lease for 10 years. Instead the secretary gave the company 90 days to remove its operations from the shoreline and waters of Drakes Estero.

In denying the lease extension on November 29, the Interior secretary cited the value of wilderness and congressional intent. On the very next day, Park Service Director Jon Jarvis declared the estero part of the Philip Burton Wilderness at the Seashore, effective December 4.

"Public Law 94-567 identified much of Drakes Estero as potential wilderness, and not as designated wilderness, due to the presence of a commercial shellfish operation in the estero. The authorizations for the commercial shellfish business operating in Drakes Estero expire on November 30, 2012. Accordingly, all uses prohibited under the Wilderness Act within Drakes Estero have ceased as of 11:59 p.m. on November 30, 2012," the director wrote. "Drakes Estero is entirely in federal ownership. Pursuant to Section 3 of Public Law 94-567, publication of this notice hereby effects the change in status of 1,363 acres of Drakes Estero, more or less, from potential wilderness to designated wilderness."

In heading to court for the TRO, the oyster farm's lawyers argued that implementing the Interior secretary's order "will cause the immediate and irreparable loss of 2.5 million oyster spat (approximately 20-25 percent of its 2014 crop) and the corresponding immediate layoff of one-third of its employees over the Holiday season, and it will cause the utter destruction of Plaintiffs’ business, harm to the public, and irreparable environmental damage to Drakes Estero in the next 90 days. Furthermore, it is impossible for Plaintiffs to comply with the Secretary’s decision because it would take much longer than 90 days for Plaintiffs to comply."

The attorneys also pointed out that no harm would be done by blocking the secretary's order, since the Park Service had the option in 2004 to block the transfer of the Johnson Oyster Company to Kevin Lunny and his Drakes Bay Oyster Co. but didn't exercise that option. "If NPS judged it sufficient to wait at least until the end of the RUO (Reservation of Use and Occupancy), it cannot claim imminent harm from waiting a short while longer to allow Plaintiffs' claims to be heard," they wrote.

Furthermore, they said complying with the secretary's order would actually lead to environmental damage to the estero due to "increased nutrient loading and nitrogen pollution from upland sources due to the absence of the shellfish that filter, sequester, and remove these pollutants from the ecosystem..."

Comments

Again, I'm not sure how he can go ahead with the designation just yet. The oyster racks are still there and 90 days was given to vacate. They don't magically disappear just because this was published.

I've also noted that there is an argument that the State of California still reserves the right to shellfish farming in Drakes Estero. The Director of California Fish and Game wrote a letter to the Pt Reyes Superintendent indicating this uncertainty. If the oyster farm has any argument that may have legs, that would seem to be the strongest.

http://www.eenews.net/assets/2012/10/23/document_gw_03.pdf

That uncertainty is apparent in the complaint by the attorneys representing the oyster farm. I'm going to find out what happened at the California Fish and Game Commission meeting tonight. Not sure when the archives are up, but they should be easier to follow than live video.


Again, I'm not sure how he can go ahead with the designation just yet. The oyster racks are still there and 90 days was given to vacate. They don't magically disappear just because this was published.


I think it means that the area has now been given the designation, even if the area doesn't yet comply with that designation.

Does anyone know Diane Feinstein's address?? I want her to help me apply for a Bison ranching operation in Yellowstone-- all the Bison dung generated will enhance the landscape just like the oyster "splat" is helping the estuary.

It says "all uses prohibited" have ceased as of November 30. That can't be true. The oyster racks are still there. If they want to have the oyster racks removed, it's going to take motorized boats to effectively do it. He's claiming that the oyster farm is gone, and that clearly isn't the case.

In this context, "designated wilderness" seems to be a prescriptive, not descriptive, term.

gutz54

Does anyone know Diane Feinstein's address?? I want her to help me apply for a Bison ranching operation in Yellowstone-- all the Bison dung generated will enhance the landscape just like the oyster "splat" is helping the estuary.

The oyster farm predates the establishment of Point Reyes NS by decades. The oyster farm land wasn't even part of the original park, and was likely obtained from Charlie Johnson under the threat of eminent domain.

Heck - the cattle and dairy ranches create a considerably worse impact than the oyster farm on the health of Drakes Estero. Secretary Salazar even went so far as to encourage that their special use permits be valid for 20 years compared to their current 10 years.

It would seem to go against the proper procedure. Once all nonconforming uses cease, that fact can be published in the Federal Register. Those uses haven't ceased. Cart is before the horse.

Wouldn't that be the case for an area that is under consideration by Congress for wilderness designation? If so, then wouldn't the question be whether the oyster farm is inside/outside an area already designated as wilderness when the lease expired?

It's a bit complicated. The oyster **farm** itself isn't in the wilderness plan. The oyster **racks** are and they haven't been removed. The notice claims that the uses have ceased. They clearly have not. This isn't a notice of intent. The wording is clearly a notice of effect.

y_p_w--

The meeting summary pdf is not up on the fgc site, but Cal-Span has the meeting video available:

http://www.cal-span.org/cgi-bin/archive.php?owner=CFG&date=2012-12-12

I don't have the time nor bandwidth to watch it, but would appreciate your summary!

I saw it too but wasn't in a place where I could turn up the volume. I wish I'd brought headphones. I'm checking it out tonight when I get home.

They went into exec session and took no action.

Thanks, ecbuck!

Evidently, the TRO was rejected by the judge.

Rick -

Where did you see/hear that?

Tess Elliott of the Point Reyes Light writes that the hearing is scheduled for Jan 15. However, I don't see it on the judge's calendar.

http://www.ptreyeslight.com/Point_Reyes_Light/Home/Entries/2012/12/13_Enviros_intervene_in_oyster_farm_lawsuit.html

The motion, which will be considered by Judge Elizabeth Laporte of the United States District Court for the Northern California District on January 15, concludes by asking the judge to deny the oyster farm’s request for injunctive relief, to dismiss the complaint, and to compensate EAC for its costs and attorney’s fees related to the filing.

Here's the calendar:

http://cand.uscourts.gov/CEO/cfd.aspx?71BJ

Perhaps an emergency temporary restraining order wasn't granted, but I thought there will still be a hearing on the merits.

My opinion is that this was a policy decision for better or worse. However, I'm not sure they got the law correct on who has authority over the oyster racks. If there's any argument that the feds overstepped their authority, that would be it.

One thing in listening to the game commission hearing today is that it appears the lease for the racks is dependent on there being an on shore lease. That was one of the items that people were asking the commission to change. The went in Exec session so the discussion wasn't public but came out and said they were taking no action.

ecbuck:
One thing in listening to the game commission hearing today is that it appears the lease for the racks is dependent on there being an on shore lease. That was one of the items that people were asking the commission to change. The went in Exec session so the discussion wasn't public but came out and said they were taking no action.
Without the shore operations it frankly wouldn't make much financial sense to operate. It would take too much time and use too much fuel to haul oysters from Drakes Estero to some other place.

However, the one thing I thought that might be a possibility is that a judge rules that only the State of California has the authority to order out the oyster racks since they lease the water allocations. That would probably only delay the final outcome if there are no shore operations nearby.

I'm a landlord myself. If I rent to someone and I have terms in a lease that my tenant violates, it would be up to me to enforce those terms. An upset neighbor doesn't have the authority to enforce our lease. That would be my argument with regard to the oyster racks. Even if the CFGC doesn't decouple the water bottom leases from the federal reservation, I believe it's still up to the State of California to evict. That would be how I've understood contract law.

It might not look to us like the financials would work but that was what the Lunny's lawyer was arguing for.

So depressing. The museum model of national park and wilderness management makes it likely our kids will regard these places as as alien as the far side of the moon. Back to the video game!

In Cape Verde's Parque Natural de Fogo, there's a winery within the park boundaries and inside the volcanic crater that's the park centerpiece. Also, people live inside the park and practice traditional economic activities. It hasn't destroyed the parklike nature of the place, as I discovered last spring. Here are some online pictures (not mine):

http://www.superstock.com/stock-photography/FOGO+ISLAND?pagenum=1 (many pictures of the park and its facilities, some showing its residents)

http://www.superstock.com/preview.asp?image=1848-703466&imagex=140&id=19018061&productType=3&pageStart=100&pageEnd=200&pixperpage=100&hitCount=258&filterForCat=&filterForFotog= (the winery itself)

This could never happen here; instead, we pretend that these places are "untrammeled," which they never were.

imtnbke:

I believe past NPS Director George Hartzog Jr would agree with you, strongly! This is what he fumed when similar NPS efforts were directed toward NPS Hubbell Trading Post: "No way was the trading post on the Navajo Reservation going to be "another goddamned dead embalmed historic site." Congress agreed, and the agency's mandate was to manage Hubbell Trading Post as a living, breathing trading post with an authentic Indian trader running the place. Sadly, in recent years this and several other Icons in the Intermountain Region have been castrated to fit the modern NPS model. The whole saga of Billy Malone and Hubbell Trading post was chronicled on Kurt's site here. It's a pattern that I believe and have a sense that a significant number inside NPS would be relieved to see changed (Below SES ranks).

Served as NPS Director: George B. Hartzog, Jr., January 9, 1964 - December 31, 1972

Thanks, trailadvocate. That is most interesting indeed.

Bad PR (at the very least), Secretary Salazar. It takes a good man to say he was mistaken and lead.

http://www.sfgate.com/science/article/Drakes-Bay-fans-load-up-on-oysters-4083725.php

Sorry Kurt, good PR for those 1%'ers that are so villanized by some and through their 1% er guilt support ripping the grounding out of those that actually work with the environment (how the term has been bastardized). White guilt, environmental guilt or whatever some choose to ramp up the dialogue there are some out there that actually live with the environment instead of standing on top and speal verbage of the pop culture decline. People need and want to connect and this deal going on now seperates them from "real" for the sake of PC. I really do get it and have seen the benefits of real with countless numbers of people knowing that they have touched "real" and are forever respectful but not what Secretary Salazar has determined what we should experience. The country is greatly in need of "real", friend. This week has shown that need in spades!! As always, with respect for the discussion that you provide here.

Thanks

Uh, back to the wilds? Does that mean one needs to buy oysters from Asian suppliers or from a local environmental friendly supplier that in the process of actually growing oysters cleans the environment of evil toxins (documented) and supports health to the ecosystems (intelectual lingo:) but actually true. What is also true here is elitest BS lording over those that actually work (deriving worth) and providing a product that connects individuals to the resource. Where exactly do all these governors of commerce derive their paychecks? Off the backs of these people actually working and paying taxes which connects them to the food chain in the most real and if I may use a term that's not often used to describe people of the earth, soulful enterprise:)! There is a connection that locals and visitors to Drakes Bay Oyster Co. experience that increases their knowledge of the food chain in the most natural of settings. If that is lost to PC disconnect it is a huge tragedy with the culture further damaged, I believe. It's not enough to Google all the intelligence of mankind. What's needed is to waller in the mud if need be and touch it. Not just read about it or accept some directive on how we should feel about the environment. We're getting to far detached from it as it is with the result showing up in ever more dire ways. Leave Drakes Bay Oyster Co. as it is. It is doing a service far more important than what it's given credit!

I wouldn't really worry about imports from Asia. It would be impractical to import live oysters from Asia. The would take too long to economically transport, and they'd probably die and/or dry up in transport.

The oyster production in Washington state is considerably more than in California and in most years they could easily pick up any demand. Still - DBOC pretty much only sold in the Bay Area. Other local oyster companies (Hog Island) had some customers as far away as the East Coast. It's going to require further transport. Washington is having issues with seeding and Hog Island says they've had issues with their seed too. I've read that they don't like this decision in Washington; Hama Hama Oyster and Taylor Shellfish are on the record as hating this devision. The oyster suppliers in Tomales Bay aren't too happy. DBOC was one of their suppliers. They can't always harvest after heavy rains but still have oyster bars/restaurants to operate as well as selling to people coming in to buy oysters.

I said goodbye today with a plate of Drakes Bay oysters bought at a local market. They were a little bit dry, but I'm guessing they stopped harvesting.

Silly bureauocrats but then the decision does dovetail nicely with administration policy. Put people out of work and dependent. This decision does succeed at that at the very minimum. Does not seem to me a very good trade. Can't have that independent "I did that" attitude gumming up the plans. If only Lunni would have donated to the campaign like John Corzine or any of the other bundlers.

So, the options have run out in your opinion, Y_P_W?

Trailadvocate, this is not part of an "administration policy." It's been in the works, quite literally, for decades, at the request of Congress. Indeed, during the Bush administration the Interior Department's solicitor came to the same conclusion, that the intent was to have Drakes Estero designated as official wilderness.

Not a great time to kill jobs whatver the Congress decided decades ago (unclear on that). So now in Wilderness Drakes Bay will outboard/inboard motors not be allowed or is that going to be another exeption that will be allowed. There are more exeptions/waivers being given lately than I have ever seen. Just not in this case where 30 individuals no longer have jobs in the worst job market since the Great Depression. Just 30 jobs you say? There is not much you can say that will make this pass the smell test that this is a good thing, to me anyway. The blinding ideology that supports this action is destructve and I'm sure will have unexpected consequences in the future. What are the 30 oyster workers going to be retrained for? I know, government jobs most likely. Nice world we're building.

Respectfully

It's pretty amusing to see all the Salazar supporters hide behind Congress' intent. What about the real issue at hand? Whether removing the oyster farm makes the place any wilder or more pristine? That being said, I fully expect the NPS to get its way. Common sense clearly does not have any sway at the NPS.

All about them, Zeb. But what do you expect with a long time mentor to the present occupant like Bill Ayres (speaking at University of Oregon). How are the Parks likely to fare in this new world? I would have thought the likes of this would be far out there but it's arrived. Going to be interesting ...

http://www.theblaze.com/stories/bill-ayers-to-university-students-americas-game-is-over-and-another-world-is-coming/

C'mon, Zeb, like it or not, we're a nation of laws. You can't pick and choose the ones you like. If you don't like one, work to change it, just as the mountain bikers are when it comes to wilderness, but don't complain when folks point to laws to support their views.

And of course removing the buildings and operations of the oyster farm will make the place wilder and more pristine. Will it turn the clock back 150 or 200 years, no.

"nation of Laws," Kurt? That argument is being shot full of holes on a daily basis. Laws are just bumps in the road for the current crop of ideologues, I believe.

Of course this is a nation of laws. Kevin Lunny actually went as far as to lobby for a law that did give hope that the farm's operation could be extended. This was a policy decision. If Salazar had approved a new 10 year special use permit, that would not be a violation of law. There's your Congressional intent.

Of course it remains to be seen how the balance changes. There are still cattle surrounding Drakes Estero, and they are still going to be there (in fact Salazar is encouraging the terms to be doubled) and the runoff flows every time it rains. Don't be surprised if a dead zone forms in Drakes Estero due to a combination of the runoff and increased amounts of phytoplankton.

Kurt - I agree 100%. We are supposed to be a nation of laws. Unfortunately, the progressives have a way of twisting those laws to creating meaning that was never intended. You know "living Constitution" and the like. This is a case in point. The original law never intended to have the Oyster Company removed (per the words of its sponsor). The bureaucrats have used their interpretations to get to their extreme outcome. Removing the buildings and operations will have insignificant impact relative to the 33,000 acres that are preserved as wilderness.

EC, show me where in the "original law" that there was no intention to remove the oyster farm? I can show you the language that called for it, but haven't seen "the words of its sponsor" embedded in it.

In light of that, I would disagree that the bureaucrats have used their interpretations. Rather, they have pointed to the language of the original wilderness legislation as well as the lease agreement the Johnsons originally signed to support their decision. Even Mr. Lunny acknowledged that the lease would expire on November 30 without an extension.

I would agree with y_p_w that Salazar made a very curious decision to remove the oyster farm yet extend the ranching leases.

Kurt - YPW has already provided the comments from the Burton - the sponsor - saying it was not the intent. And obviously if the ranching leases are extended, the "law" isn't the reason the Oyster Company wasn't shut down.

EC, I know what Mr. Burton has said, and I've talked to Pete McCloskey, Jr., as well. Whatever they recall, they apparently didn't insist that that clarity be inserted into the wilderness legislation. And in light of how crafty politicians are at slipping things into legislation, that comes somewhat as a surprise.

The oyster farm and the ranching operations are two separate issues. I don't believe the ranching leases are in areas that were/are to be designated official wilderness.


We are supposed to be a nation of laws. Unfortunately, the progressives have a way of twisting those laws to creating meaning that was never intended.


Conservatives good. Progressives bad. Hulk smash.

By definition - Justin.

The original legislation actually says nothing about the fate of the oyster farm. There were in fact house reports where it was discussed, but nothing was specifically placed in the legislation or the supplemental larger wilderness bill that passed a couple of days after the Point Reyes Wilderness Act.

There was no clarity in the legislation either way, and it's frankly silly to insist that. This was a policy decision, pure and simple.

y_p_w, I'm really curious by your position that there was no clarity in the legislation. The wilderness legislation passed in 1976 clearly referenced not only the 25,370 acres that would automatically become officially designated as wilderness once the president signed the bill, but also referred to the 8,003 acres, which included Drakes Estero, that were labeled as potential wilderness.

DOI Inspector General Devaney read the House report that accompanied the legislation, and it stated that, "it is the intent that those lands and waters designated as potential wilderness 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."

What's not clear?

The "house report" does not accompany the legislation. It is not written by the bills sponsor nor incorporated as part of the legislation. It is a staffers write up based on his opinion and carries no weight of law. YPW's point is that the legislation - i.e. that which is voted on by Congress makes no mention of the Oyster Company and itself does not require its removal. The fact the sponsor had no intent to remove the Oyster Company is probably why it isn't mention or required in the actual legislation.

With all due respect, EC, you're grasping at straws. The report was written and approved by the House Interior and Insular Affairs Committee specifically to accompany the legislation. The report is an analysis of the debate that occurred over the legislation, and represents both the minority and majority views.

You would expect that when Congress establishes a "potential wilderness" that it is the intent that the nonconforming uses be removed as soon as possible, and in this case the Johnson's lease provided 40 years of continued use, which ended November 30. Why would they bestow that designation if they didn't intend one day to remove the "potential."

Kurt Repanshek:

With all due respect, EC, you're grasping at straws. The report was written and approved by the House Interior and Insular Affairs Committee specifically to accompany the legislation. The report is an analysis of the debate that occurred over the legislation, and represents both the minority and majority views.

You would expect that when Congress establishes a "potential wilderness" that it is the intent that the nonconforming uses be removed as soon as possible, and in this case the Johnson's lease provided 40 years of continued use, which ended November 30. Why would they bestow that designation if they didn't intend one day to remove the "potential."

What member of Congress votes on a bill understanding the entire background? The PRWA was only about 1 page long. It seems really simple if you read it.

As far as "potential wilderness" goes - there are several camps in the Sierra placed under the "potential wilderness" category. They remain potential wilderness to this day even though there would seem to have been several times when a removal could have been done. I believe there's been at least one Yosemite wilderness management plan since the California Wilderness Act where a management decision could have been made that it was their chance to remove them. Recently several of these camps required repairs to the septic systems and grease traps. I understand not repairing them and allowing them to revert to fully designated wilderness was an option. In the end Don Neubacher (yes - the former Point Reyes Superintendent) approved a call for bids and is willing to spend park funds to keep these facilities operating and delaying their conversion to fully designated wilderness. When it came time to renew the concessionaire's contract, they put the operation of the Yosemite High Sierra Camps in the bid. They've had ample opportunities to remove these camps but have chosen not to as a policy choice.

I don't even sense that they remain because the concessionaire wants them. They don't make a whole lot of money for Delaware North, and every year they have to worry about opening dates. I sense that they remain there because higher ups in NPS want them even though their continued presence precludes their conversion to fully designated wilderness.


[= 14px; line-height: 18px; background-color: #ffffff]And of course removing the buildings and operations of the oyster farm will make the place wilder and more pristine. Will it turn the clock back 150 or 200 years, no.[/]


Sadly enough, there are plenty of people who buy into that specious argument. I find more wilderness in seeing human living in harmony with nature than in the modern day museum pretend wilderness that the NPS is selling us. I suspect that the pull of the wilderness argument is stronger with all the city folks that have never lived on a farm and idealize nature.

I started thinking about it for a sec, and the buildings and dock actually aren't in the wilderness area. I already knew that, but it bears noting. The NPS could have theoretically said that to Lunny that they would like the buildings to remain as a museum, and it wouldn't really change anything regarding the wilderness designation. Ending the federal reservation of the oyster farm is just a means to indirectly void the state water lease.

I still think that until the state tells him to leave, he's under no obligation to remove the oyster racks. I thought he was paid up for the current term. Of course it becomes far more difficult (including the practicality of removing the oyster racks) once the shore operations are gone.

Zebulon: I found that to be sadly true at an early age on another California coastal bay. As a kid growing up the bay was my playground and schoolground. During the season I would connect with the weather, the tides and the rest of the Wild"s spectrum of courses in childhood education while collecting a few Pacific Brant to feast on at family dinners.

A disturbing part of the education was that people from urban areas were moving to my playground and were not appreciating the connection I had while building their ideas of connection very near spots where the Brant Geese and ducks would come to get grit and freshwater, eliminating the opportunity. All the while the Oystermen would work the beds for a few hours on the changing tides a few days a week. It is and always has been my strongest connection to "Real" to work and enjoy the wilds. Pitying those that can't seem to allow themselves or others that connection. There have been many that, with gentle urging (and sometimes not so gently but with respect) have come to appreciate something other than their own first impulses of PC and driving political environmental group's arguments seeking ever more "issues" at which to fundraise. The goal seeming to be further overreach toward the "museum" model resulting in significant collateral damage to cultural connections. This seems to be an ongoing theme that doesn't have to be, I believe.

My appeal is to leave the Oystermen alone and enjoy. The word "diversity" comes to mind in the real sense.