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

Zebulon may have identified an element of this debate that applies not only to this issue, but to the broader question of wilderness and other official designations for natural areas:

" 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."

Are the already sometimes subtle differences between "wilderness," "wildness" and "natural areas" becoming increasingly blurred in the minds of more and more people in today's society? The answer has important implications in lots of areas: legally, politically and practically for public land management.

I'm thinking of what might have happened from a practical view if the California Fish and Game commission hadn't attached a valid federal reservation as a condition for the validity of the water bottom lease. Certainly NPS thought that once they ended the federal reservation, the waters of Drakes Estero would become full wilderness. Of course they were also pushing for Johnson's state lease to end before 2012.

And frankly having a shore operation right there was the only thing that made any economic sense. That included fuel for the boats and keeping the boats where they would be less likely to pick up hitchhikers. I remember reading the oyster farm's response to the DEIS noted that they minimized invasive species introduction because they had the only motor boats, and that a more likely source for invasives would be the recreational kayakers and clam diggers who didn't properly clean their equipment.


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 agree 100%. What a weird society we live in when it comes to these issues.

I think these trivial victories for the Wilderness purists are pyrrhic and I predict they're going to result in one big ultimate defeat someday. Their purists' numbers are already dwindling and eventually there won't be enough octogenarian white people left to sustain the political base the Wilderness Act needs to continue in its current form. The Act will totter along on autopilot until some event precipitates a crisis—perhaps, for example, China will cut off our supply of rare earths and someone will have noticed there's a big neodymium or dysprosium deposit in some Wilderness somewhere. The extractive industries will move in after getting the Act reformed over minimal political resistance, since the purists will have succeeded in creating a society in which few know what a Wilderness is and fewer still will ever have visited one.

So, imtnbke and Zeb, should we open up the shores of Yellowstone Lake to resorts? Think how wonderful it would be to have a nice lodge to retreat to on the Promontory after a day spent water skiing (with a wet suit, of course).

Should the Sawtooth Wilderness in Idaho be cut through with roads so we can better access the backcountry lakes? Maybe do the same with the Russian Wilderness in California, only for four-wheeler access? They deserve recreation in the great outdoors, too, no?

I fear your approach to how wilderness should be managed would be detrimental to the nation as a whole and individuals personally. We need these places not only for muscle-powered recreation and the solitude they offer, but also for the rejuvenation and personal reflection that can be achieved beyond the reach of today's "civilized" world.

And don't forget what they provide in terms of vital wildlife habitat, air-cleansing forests, and natural ground-water filtration systems.

The "harmony" you describe can already be found in many parts of the country in the form of national and state forests, Bureau of Land Management areas, Bureau of Reclamation recreation areas, Fish and Wildlife refuges, even within National Park Service Heritage areas "where natural, cultural, and historic resources combine to form a cohesive, nationally important landscape."

There's no need to stake similar claims in every inch of the wild country. As has been pointed out many times before on the Traveler, officially designated wilderness represents just a fraction of the public landscape -- 109,501,440 acres, or roughly 5 percent of the entire nation's landmass. And roughly half of that wilderness is in Alaska, far out of reach for most Americans.

Climb the mountains and get their good tidings, Nature's peace will flow into you as sunshine flows into trees. The winds will blow their own freshness into you and the storms their energy, while cares will drop off like autumn leaves. As age comes, one source of enjoyment after another is closed, but nature's sources never fail. -- John Muir

For the nth time, that 5% is not relevant. The percentage of open spaces currently designed as wilderness is closer to 20% or 30%, not exactly an immaterial percentage.

I don't also don't buy the slippery slope that allowing an oyster farm in the estrero will lead to doom all around the country wilderness. Anyhow, it does not matter. The NPS is going to get its wilderness (at least their imaginary construct representation of it) and 30 poor souls will lose their jobs.

Kurt Repanshek:

So, imtnbke and Zeb, should we open up the shores of Yellowstone Lake to resorts? Think how wonderful it would be to have a nice lodge to retreat to on the Promontory after a day spent water skiing (with a wet suit, of course).

Should the Sawtooth Wilderness in Idaho be cut through with roads so we can better access the backcountry lakes? Maybe do the same with the Russian Wilderness in California, only for four-wheeler access? They deserve recreation in the great outdoors, too, no?

That's a far different argument than what anyone is making. As it stands now, existing mining claims are still valid even if an area becomes designated as wilderness. Death Valley NP still has 29 valid mining claims that could be exercised.

And frankly, Grant Village was built near Yellowstone Lake in my lifetime. Of course that's not designated wilderness.

The key to the oyster farm was that it was an existing business. I remember seeing a report on the proceedings that led to the potential wilderness status, and a great many organizations and people supported the continuation of the oyster farm as something compatible with the natural surroundings. You're not going to many similar preexisting uses.

Zeb and y_p_w, my response was more focused on imtnbke's position that the Wilderness Act's "purists' numbers are already dwindling and eventually there won't be enough octogenarian white people left to sustain the political base the Wilderness Act needs to continue in its current form."

Slippery slopes do exist, even if you don't want to believe in them. As you might recall, in the uproar over bike racing through Colorado National Monument, a former superintendent of Shenandoah mentioned that the folks behind the Tour de Trump bike race had pointed to instances where parks had allowed bike racing (I believe he referenced the citizen's ride through Colorado Monument) in a bid to gain approval for using the Skyline Drive.

Hi, Kurt —

I think we don't disagree on that much. I would like to see conservation succeed and so would you. It's only that I think the current model needlessly alienates some people and renders many more indifferent. For that reason, it puts conservation at risk in the medium or long run.

If I might address a few of your points . . .


[S]hould we open up the shores of Yellowstone Lake to resorts? Think how
wonderful it would be to have a nice lodge to retreat to on the
Promontory after a day spent water skiing (with a wet suit, of course)


Since I haven't been there, I don't know the answer. It seems that the national parks have a number of luxury hotels as it is. Would it be better to get rid of them? I don't know the answer to that either.


Should the Sawtooth Wilderness in Idaho be cut through with roads so we
can better access the backcountry lakes? Maybe do the same with the
Russian Wilderness in California, only for four-wheeler access? They
deserve recreation in the great outdoors, too, no?


What I'm trying to say is that it is current Wilderness policy that makes this scenario all the more likely someday. If no critical mass of people are aware of what Wilderness offers, it's hard to imagine support for it in 50 years if some national need presents itself for, e.g., resource extraction, in the places you name.


We need these places not only for muscle-powered recreation and the
solitude they offer, but also for the rejuvenation and personal
reflection that can be achieved beyond the reach of today's "civilized"
world.


I agree with that in all respects, except that, having seen the mess that commercial and government pack trains make, I favor human power, not muscle power. But if these places are lost, then no rejuvenation and personal reflection will be achieved in them. It seems to me that the oyster controversy is an excellent warning sign of what may be impending. Places that have been artifically purified of any human endeavor other than maybe walking may soon have no constituency as a result.

Keep in mind that the national parks and Wilderness overall are separate issues, even though about half of the national park territory is also Wilderness. The national park acreage is small and virtually everyone agrees those acres benefit from a high degree of preservation. Wilderness is much larger and more controversial. We're all aware of the gauzy phrase that the national parks are "America's best idea." That may be an overstatement—perhaps the American-invented Internet would rival it for pride of place—but it has to be one of the best ones, because it's been emulated worldwide. No country I know of has emulated our Wilderness policies. That should be instructive to us.

imtnbke:
I agree with that in all respects, except that, having seen the mess that commercial and government pack trains make, I favor human power, not muscle power. But if these places are lost, then no rejuvenation and personal reflection will be achieved in them. It seems to me that the oyster controversy is an excellent warning sign of what may be impending. Places that have been artifically purified of any human endeavor other than maybe walking may soon have no constituency as a result.

Keep in mind that the national parks and Wilderness overall are separate issues, even though about half of the national park territory is also Wilderness. The national park acreage is small and virtually everyone agrees those acres benefit from a high degree of preservation. Wilderness is much larger and more controversial. We're all aware of the gauzy phrase that the national parks are "America's best idea." That may be an overstatement—perhaps the American-invented Internet would rival it for pride of place—but it has to be one of the best ones, because it's been emulated worldwide. No country I know of has emulated our Wilderness policies. That should be instructive to us.

My issue is that in all of this, there seem to be favorites - that the NPS/Interior policy makers and Superintendents pick their winners and losers, and little of it really seems to have anything to do with wilderness ideals.

I also visit our designated wilderness areas and see the tons of exceptions that have been carved out over the years in fully designated wilderness as well as areas that remain potential wilderness at the decision of those policy makers I mention. I know that the dams and fire roads were grandfathered in. I've climbed up and down the Half Dome cables. I also remember that huge outhouse at Little Yosemite Valley. I'm wondering how that fits into wilderness ideals. I mention these exceptions because it seems that somehow someone managed to find a middle ground rather than an absolute.

The issue I have is that Kurt has taken an editorial position that the oyster farm needs to go because it was always slated for that as potential wilderness. In the meanwhile, he's written glowing articles encouraging people to visit the Yosemite High Sierra Camps. Those articles don't mention their potential wilderness status, their maintenance backlog, the various "nonconforming uses", the commercial pack trains that supply the camps, the helicopters brought in to service the waste disposal, etc.

And there will be no way Drakes Estero will be free from serious human derived impacts (beyond the human propelled boating) until they remove those ranches and stop allowing recreational clam digging on the shoreline. It might technically be a wilderness because those thing happen just outside some dotted lines on a map, but the effect is that it's hardly a wilderness with unregulated vehicle noise on Sir Francis Drake Blvd and all those activities outside Drakes Estero mucking things up.

It's also going to be interesting what happens to the oyster farm location. I've read some say this is a victory for kayakers. It won't be if NPS decides to stop maintaining the road. I wouldn't be surprised if making it harder for kayakers to access Drake Estero wasn't part of the plan all along.

Anyone who has followed my history here knows I'm not a lassez-faire anti-government crusader. I question why anyone needs to drive on a beach. Although I own a couple of mountain bikes, I'm actually quite OK that NPS has few areas where they're allowed. I have no issues with closures when they serve to protect threatened or endangered species. I've been accused of all sorts of things, including being a paid shill for the oyster farm (never even met Kevin Lunny) or an anti-government type.

I know some people thought of the oyster farm as some decrepit looking buildings mostly Hispanic workers. Frankly - that's what a real oyster operation looks like.
Point Reyes NS is extremely special to me. With the exit of the oyster farm, it's going to be a little bit less special.

I'd be the first to agree that the National Park System is frought with exceptions to this and that, and that superintendents in one park will come down on an issue differently from those in another.

It also can't be overlooked that Congress holds large sway in many park decisions. The reason there's no officially designated wilderness in Glacier or Yellowstone national parks, just to name two iconic parks that lack designated wilderness, is due to the failure of the congressional delegations from Montana and Wyoming to pen wilderness legislation.

As to where the Traveler stands on the Drakes Bay Oyster Co., we have tried to stick to citing the existing wilderness legislation dating to 1976, and the interpretations that have descended from it. Any review of our stories will turn up articles critical of both the NPS and the oyster farm, as well as articles that might be interpreted as favorable to both.

As to the High Sierra Camps in Yosemite, I'm not sure we've ever written "glowingly" of them, as we've never stayed in them. That said, perhaps a look at those operations and where they lie in context to wilderness would be worth the time investment. But is anyone pushing to have them removed? That's an angle that would justify the time.

Without checking, if memory serves me well I believe the Traveler did question the use of a helicopter for hauling building materials to a cabin site within designated wilderness in Sequoia NP, and also perhaps Katmai.

The bottom line is that there are 398 units in the park system, and only one full-time writer/editor at the Traveler. Plus, there is a timely news element to what's ongoing at Drakes Estero, so naturally our editorial calendar will include more items tied to that than to the High Sierra Camps.

You'e done incredibly well, Kurt! I mean seriously, continually to bring different facets of the arguments from very knowledgable and passionate contributors. Personally, I hope the conversation results eventually in something real and not just ideology played out that neuters the real value to the culture. Rock On, Kurt:)!

Absolutely there are people who are asking to have the High Sierra Camps removed. Here are the public comments on the Vogelsang HSC backcountry utilities maintenance project:

http://www.nps.gov/yose/parkmgmt/upload/VBCU_30-36.pdf
http://www.nps.gov/yose/parkmgmt/upload/VBCU_49-64.pdf
http://www.nps.gov/yose/parkmgmt/upload/VBCU_65-66.pdf

I'd include all of them, but several links are broken. In particular, comment 53 is from Yvon Chouinard, the founder of Patagonia, Inc. and a well known wilderness advocate. I haven't had a chance to go over all the comments, but they seem to be overwhelmingly against the HSCs. Most call for at least no going through with an expensive maintenance project, while others call for the HSCs to be completely removed.

I'd buy that you've got no editorial position per se if you didn't publish Neal Desai's piece on why they oyster farm must go without a counterpoint piece. I'm sure you could have gotten at least one of Peter Gleick, Pete McCloskey, Corey Goodman, etc to write a piece if you'd just asked.

While often disagreeing, I certainly enjoy and appreciate the NPT.

I second that.

Kurt, I agree with you that it's too bad the wilderness legislation isn't more clearly written. When I read it, I was amazed at how vague the language is.

However, I don't share your view that Interior is a trustworthy source on this matter; they have a conflict of interest here. I have a hard time understanding why you believe their lawyers more than you believe Burton, Bagley, and McCloskey, who were there at the time.

Senator Feinstein's staff looked into the history when she was asked by the County Supervisors to get involved. I don't think she would have proceeded to support the oyster farm's continuation if that search had found any evidence that the oyster farm was not meant to continue.

Local historian and environmental law expert Laura Watt has done a lot of research about this in the course of her thesis work and upcoming book on Point Reyes. She finds no record of any intent to eliminate the oyster farm. There's a summary in her article here: http://www.marinij.com/ci_7495904

So, what's going on with the extremes? They going to win another one?

Trailadvocate, of course they will. That little farm is no match for the NPS and its army of lawyers. The environuts got their new idyllic seashore whey they can go and revel in this new monument to environmentalism that "protects" another piece of pristine environment. The whole thing is so inane and devoid of common sense that it's scary.

"So, what's going on with the extremes?"

Which extreme do you mean? There seem to be at least two of them out there.


There seem to be at least two of them out there.


Yeah Lee - real extreme to want to keep a few acres out of 71,000 for an Oyster Operation that has been there for decades.

Lee won't be happy until every single acre of open space becomes wilderness and is fenced off so that humans can't disturb the pristine wild landscape. :)

TA, great article. The "environmentalists" are an interesting bunch. First, they put out of work 30 people, and then want to give them a measly $5000 to help out. But clearly, being able to put a label on a few acres of coast line was more important than people's livelihood.

Edited to play nice.

C'mon, Zeb, no need to use disparaging tags.

Regarding trailadvocate's link above, Felicity Barringer is an excellent New York Times reporter. Unlike many (in fact most) environmental reporters, she hasn't allowed her presumed immersion in the culture of orthodox environmentalism to taint her ability to report accurately. To use the vernacular, she hasn't drunk the Kool-Aid, and that is rare among environmental journalists.

So it's instructive that she accurately identifies the Point Reyes oyster farm ouster as the product of an environmentalist temperance crusade. Particularly noteworthy is this language in her column:

"On the linguistic front, two adjectives were repeatedly wielded by wilderness advocates in pressing their case. The estuary was deemed 'pristine,' with all those connotations of purity, even though people have been working there in one way or another for 100 years. It was also called 'iconic,' as if a small Northern California inlet were sacred to a vast number of people. (One wilderness advocate has repeatedly called it 'a church.')

"The oyster farm was predictably described as 'industrial' and 'commercial,' as if it were a giant factory, not a modest mariculture business."

We mountain bikers hear the same overheated rhetoric from wilderness advocates.

In fact, more and more they're starting to remind me of Islamist fanatics. The Wilderness purists want to drive out oyster farms, bicycles, baby strollers, and historical structures like a lookout in Washington state. Of the latter effort, the National Trust for Historic Preservation wrote:

"A small group of wilderness advocates have made it their mission to erase the imprint of human culture in wilderness areas, and the National Trust for Historic Preservation is pushing back." Source: http://blog.preservationnation.org/2012/04/02/federal-court-orders-removal-of-historic-fire-lookout-in-washington-state/#.UPRRNGfz5n8

The only inaccuracy in that quotation is the reference to a "small group" of such individuals. The desire to purge Wilderness is rife among a large swath of Wilderness preachers.

It's markedly similar to the Taliban's religiously inspired mission to wipe out anything that it sees as un-Islamic, such as the historical Buddhist carvings in Afghanistan and, in recent weeks, Al Qaeda's destruction of important historical structures in Mali:

http://en.wikipedia.org/wiki/Buddhas_of_Bamiyan

http://www.cnn.com/2012/07/12/world/africa/mali-shrines-destroyed/index.html

One thing is for sure: the Wilderness strict constructionists are amassing enemies left and right. When the National Trust for Historic Preservation has become fed up with their messianic crusades, you know they're going to face headwinds in the future.

I disagree, imtnbke, that it's fine and dandy to use disparaging tags to identify either groups or individuals. That's one of the approaches, I believe, that has led to all the divisiveness in the country. People seem to have forgotten how to be courteous and respectful.

It long has been the policy of the Traveler to accept any and all comments -- as long as they're presented in a constructive approach without demeaning or attacking another individual. You don't have to agree with their position. But we certainly expect one and all to approach discussions with a modicum of respect. If necessary, please reread our Code of Conduct.

If that's not possible, than I would suggest you refrain from commenting.

Hi, Kurt --

I see all sorts of sharp-tongued dialogue on NPT and as long as it doesn't get too insulting, I don't find it objectionable. I gather that you dislike one term that I used in my reply. I see nothing wrong with it, but since it could prove a distraction, allowing people to focus on me rather than the point I'm trying to make, I'll edit my comment to use a less direct noun. (For others' reference, we're not talking about profanity here or anything close, but rather an acerbic term that people use to refer to Wilderness advocates with strict views.)

Kurt, I believe these folks are who Zeb and imtnbke could be referring to. The dialogue is extreme, I believe.

http://www.dailykos.com/story/2012/12/07/1168079/-Dear-Progressive-Bay-Area-Please-STFU-about-Drakes-Bay-Oyster-Farm#

A federal court is holding this morning a hearing on the oyster farm's application for a preliminary injunction to stop the implementation of Secretary Salazar's decision to close it.

The San Francisco Daily Journal legal newspaper has a fine article in yesterday's edition (Jan. 24) on the legal maneuvering and various legal experts' views on the farm's chances of success.

Unfortunately, the Daily Journal doesn't make its content public. (See http://www.dailyjournal.com/.) But if you live in California, you can stop by the local law library at your county courthouse or law school and read the article there. Or if you have a friend who's a lawyer, he/she may have a subscription and will let you read the article.

The latest San Francisco Daily Journal article, from yesterday, suggests that the Federal District Court judge in Oakland, Calif., is likely to rule in the government's favor, based on her questions and comments at the hearing this week.

The interesting thing will be to see what the government will do in a couple months when the oyster racks are still there. From what I read, it would take two years for the company to remove all of it. What a cluster..

Presumably government lawyers helped write the oyster farm's lease agreement, and if they were thinking ahead, they will have specified in the lease that the farm owner bears the costs of eventual removal of the infrastructure. But perhaps the owner will declare bankruptcy and walk away from the expense.

I read that this impending closure is going to reduce California oyster production by about 40%. I suppose people in Prince Edward Island and Puget Sound will be happy.

Personally having been a part of an intimate relationship with things wild from serious Bering Sea storms with no refuge to leading first time adventurers (old and new) into the wilds of our Parks I truly believe the trend to seperate people from witnessing and experiencing places like Drakes Bay whether it be working the Oyster Beds or just seeing it in operation is a loss in many ways.

This from Earth Island Journal. In Defense of Drakes Bay Oyster Co.

http://www.earthisland.org/journal/index.php/elist/eListRead/in_defense_of_drakes_bay_oyster_company/

[b]imtnbke:

Presumably government lawyers helped write the oyster farm's lease agreement, and if they were thinking ahead, they will have specified in the lease that the farm owner bears the costs of eventual removal of the infrastructure. But perhaps the owner will declare bankruptcy and walk away from the expense.
Such language is in the reservation of use signed in 1972. I really doubt that they could just walk away. I doubt the farm is set up as an LLC, but I could be wrong. Kevin and Nancy Lunny operate the G Ranch at Point Reyes, and they have lots of assets. I doubt they would simply walk away. However, it sound like they'd like to exhaust all avenues before tearing things down. If they tear it down there's really no going back.

I'd think an interesting possibility would be that there will be a new Secretary of the Interior. The new Secretary might conceivably override Salazar's decision. I'm not sure how this might sit with the law, but who knows what is and isn't legal.

Overriding Salazar's decision would be a positive. Either by Salazar himself or the incumbent Secretary of Interior. Considering how PC rules, it wouldn't surprise me if the most considered qualification is that it be a women. Consideration for those 30 jobs and a century of tradition of which the Bay area has grown to appreciate in a multiple of ways, would be a low percentage bet but I will remain hopeful.