Updated: Oyster Company Sues Interior Department In Bid To Remain At Point Reyes National Seashore

Editor's note: This updates to include mention of a letter the oyster farm's attorneys sent to Interior Secretary Salazar on November 1 stating that his decision wasn't bound by the National Environmental Policy Act, an interesting point in that the lawsuit argues that he violated NEPA.

An oyster company denied an extension on its lease to operate in Point Reyes National Seashore has gone to court in a bid to overturn that decision, arguing that Interior Secretary Ken Salazar acted rashly and without cause to deny the extension.

The 100-page filing, which seeks an injunction to allow the Drakes Bay Oyster Co. to continue operating until the lawsuit is settled, maintains that Secretary Salazar has torn "the fabric of a rural community" with his decision.

Drakes Bay Oyster Co. has employed 31 workers who produced between 450,000-500,000 pounds of Pacific oyster meat a year from Drakes Estero inside the Seashore for Bay Area outlets. The company's fate has been fanned in recently years by both U.S. Sen. Dianne Feinstein, an ardent supporter of the oyster company and its small workforce, and environmentalists and conservationists who wanted to see the estero granted official wilderness designation.

Those who wanted the oyster company to shut down maintain Congress long ago directed that Drakes Estero become officially designated wilderness once all "non-conforming uses" were removed. The Drakes Bay Oyster Co.'s 40-year lease to the area expired on November 30, and those in support of the wilderness designation saw it as the perfect opportunity to remove the company, a non-conforming use, from the estero.

But those backing the oyster company maintained that the lease carried a renewal clause that should have been triggered by the National Park Service.

It was in 1976 when Congress said the estero one day should be designated as official wilderness. The 1976 Point Reyes wilderness legislation that set aside 25,370 acres of the national seashore as wilderness cited another 8,003 acres encompassing the estero that would be "essentially managed as wilderness, to the extent possible, with efforts to steadily continue to remove all obstacles to the eventual conversion of these lands and waters to wilderness status" -- and the oyster operation was seen as being incompatible with such a designation.

The lawsuit filed in oyster company owner Kevin Lunny's behalf by Cause of Action, a law firm that works to hold government accountable, largely is built on the contention that the secretary's decision violated the National Environmental Policy Act, in part because the National Park Service failed to prepare a thorough environmental impact study on the oyster farm's operations at Drakes Estero.

The Seashore's Final Environmental Impact Statement, quietly issued on November 20, did not contain a "full and fair" discussion of the environmental impacts, reads the filing, and also fails to "inform decisonmakers and the public of the reasonable alternatives which would avoid or minimize adverse impacts."

However, Secretary Salazar was acting on a directive Congress issued in 2009 that he personally consider renewing the oyster farm's lease for another decade. When he announced his decision on November 29, the secretary specifically referred to that directive, noting that it "does not require me (or the NPS) to prepare a DEIS or an FEIS or otherwise comply with the National Environmental Policy Act of 1969 or any other law."

"The 'notwithstanding any other provision of law' language in Section 124 expressly exempts my decision from any substantive or procedural legal requirements," Secretary Salazar continued. "Nothing in the DEIS or the FEIS that the NPS released to the public suggests otherwise."

And while Mr. Lunny's lawyers maintain in the lawsuit that the Interior secretary was indeed bound by the legal provisions of NEPA and that his failure to adhere to that act was "arbitrary and capricious" as well as "an abuse of discretion," in a November 1 letter they pointed out that he was not bound by NEPA.

"...Section 124 includes a 'general repealing clause' that allows you to override conflicting provisions in other laws -- including NEPA -- to issue the (Special Use Permit)," wrote Ryan P. Waterman, an attorney with the firm of Stoel Rives that is representing Mr. Lunny, on Nov. 1 (attached below).

The lawsuit, filed in federal court in northern California, asks the court to either order Secretary Salazar to extend the oyster company's lease for 10 years or set aside his ruling and direct the Park Service to conduct a new DEIS and FEIS "that complies with all NEPA and other applicable substantive and procedural requirements to enable a new, neutral decision-maker to issue a NEPA-compliant (Record of Decision) allowing DBOC to continue to operate...."

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Drakes Bay-NEPA Letter.pdf797.92 KB

Comments

I think the oyster farm may stand a good chance of getting a temporary injunction. The basis would be that the 2009 Feinstein legislation specifically stated that the NAS report was to be strongly considered in making the decision. Salazar's memo made no mention of that report.

Also - there is nothing in the 1976 Point Reyes Wilderness Act itself that says anything about the fate of Drakes Estero. The oyster farm isn't even mentioned. I know there were House reports, but I don't believe they carry the weight of the actual law. The lead author claims that it was never meant to kill the oyster farm - that it could remain potential wilderness indefinitely.

The other key issue is that the memo from Salazar directs the NPS Director to order the removal of the oyster racks and other oyster farm property from Drakes Estero. The oyster farm's attorneys state that only the State of California has that right. I don't believe they've weighed in yet. There is a California Fish and Game Commission meeting in San Diego in a week, and the oyster farm is on their agenda. I would expect Lunny will be there, as well as Neal Desai and Gordon Bennett. I watched previous meeting video, and the Commission members were skeptical that NPS had direct control over shellfish rights in Drakes Estero. One longtime Commission member noted that in 2004 the Commission added a provision to the oyster farm's state water bottom lease (due to NPS pressure) when it came up for renewal such that the lease was contingent on access to the NPS land where the shore operations sit. They put themselves in a holding pattern until they found out the Secretary of the Interior's decision. Now that the decision is here, they might make their move. I think there's a chance they decouple the water bottom lease from NPS land just to mess with NPS.

y_p_w: Any chance you might want to get in touch with a reporter who's been thinking about these issues for a couple of years? If so, give me a shout: Felicity Barringer, reachable at .

I don't know if I'm ready for anything on the record. I know nothing other than things I can readily look up on the internet.

YPW, you should contact the reporter. I've read your comments here and on SF gate, and it's well thought out. The one thing that still puzzles me is this: how will removing the oyster farm make the place better? Everybody's acting as if granting wilderness status to the bay will make the place so much better. It'll be the same water. Actually, that's not true, the water might actually not be as filtered without the oysters, but overall, the character of the place won't really change. The ecosystem is not impacted by the current oyster farm. Coming from the countryside, I don't see wilderness divorced from human activity, which is apparently what wilderness purists are looking for. I find it sad.

Zebulon--

What's the basis for your assertion that "The ecosystem is not impacted by the current oyster farm"?

The science I'm aware of shows that the ecosystem is clearly impacted in several ways, some negative and some at least potentially positive, and a comprehensive research project would undoubtedly find additional impacts. The scientific issue (e.g., in the NAS report) is that the science is incomplete. We (scientists) don't have solid numbers for the magnitudes of some of the impacts (e.g., the positive impact of water filtration that NAS highlighted), and we don't know all of the impacts. In part this is because there has never been comprehensive measurement or monitoring of all of the components of the Estero ecosystem (not a priority for funding), and most of the available data was collected for other purposes or at other locations. A second reason is that we don't know baselines for attributes such as turbidity & nutrients (both time-varying with tide cycles, seasonally, and in response to storm events), and processes like water filtration, in the absence of the oyster racks. [And, should the baseline for comparison be the Estero with or without the native oysters that were effectively extirpated more than 100 years ago, before any oyster farming operations?

The simplistic view is that if we had good estimates of the strengths of all of the impacts, we could compute a net impact of the oyster farm that would be a single number, and then managers could renew the lease if the net impact was positive, or at least only slightly (sustainably) negative. My personal perspective is that the different impacts have different units (seals disturbed, water filtered, risk of additional invasives introduced) that simply can't be lumped into a single equation of net impact. A management decision "informed by science" would be a judgement call about whether +apples -oranges is a net positive.

Back to my hobby-horse I've posted before: who should pay for monitoring? I assert that continuation of non-core activities in a park that may have substantial impacts (+ and -) such as oyster farming requires monitoring to either detect cumulative changes or demonstrate no degradation in the natural resources ("unimpared for future generations"). Monitoring the major components of responses to oyster farm operations adequate to estimate (over 10 years) if conditions were getting worse would cost perhaps $150-200K/yr (more if you want more complete or precise estimates). That's not comparing against a no-oyster farm scenario, but simply testing whether are there temporal trends in a set of ecosystem attributes. Should that cost come out of the Point Reyes NS core budget, reducing other activities, should Sen Feinstein request that as an earmark from all taxpayers, or should DBOC have to pay for it as a condition of operating in a National Seashore? I don't know if DBOC could or would pay for that: it may be greater than their operating profits (I don't know if they were asked, either).

All that said, from my understanding, the decision to let the lease expire was not based on ecosystem services or impacts, but was based on the 1976 wilderness designation. Wilderness designation is very different from ecosystem health. Many management activities that might improve or restore ecosystem conditions are prohibited or restricted in designated winderness.

The above are my personal opinions as a scientist who has done no direct work on this issue, written while on lunch break, and do not reflect any inside knowledge of PORE or DBOC, nor reflect the views of DOI or NPS.

Tomp2,

That sounds like a reasonable approach, that is fact driven. Truth is that Congress could grant wilderness status to the bay and make an exception for the farm. There are plenty of exceptions in existing wilderness.

I enjoyed reading Tomp2's approach also. If the lease covered the monitoring and the value of the lease, maybe they could continue. As long as the impact was near neutral. Since the lease is up, the new lease could go up as well and have more enviromental impact clauses that could break lease if impact were more negative. I also wonder if there is a Historical value that would be of value to the park system. However, the historical value could be there with or without the oyster company.

After reading a little more, I found that the 40 year lease had only 8 years left when Drakes Bay Oyster Company bought it in 2004. I would say that the previous owner sold out knowing it would be worthless without a future lease. And Drake Bay Oyster Company made a poor business decision to think otherwise. I say game over.

"Request an Earmark?" How about keeping those 30 people producing something that people want and understand that nature is providing a sustainable environmental product. So little interest by NPS hardliners for consideration other than their own narrow vision when this clearly is a very good example of history, culture, marine science and a quickly dissapearing work ethic. I say Drakes Bay Oyster and NPS learn to appreciate the opportunity here! Man up (enough with the PC) and work together for everyone's benefit. Enough with the divisions!

You decipher it very well, y_p_w. Not always the case with today's reporting.

David Crowl:
After reading a little more, I found that the 40 year lease had only 8 years left when Drakes Bay Oyster Company bought it in 2004. I would say that the previous owner sold out knowing it would be worthless without a future lease. And Drake Bay Oyster Company made a poor business decision to think otherwise. I say game over.
All of that is fine, but Lunny actually went out and got a Senator to throw in a rider to a law, and that rider expressly gave the man in charge the authority to approve an extension. I would also note that the original form of that ride actually mandated a 10 year extension but was modified to the current form due to objections.

However, it gets really interesting because of the competing jurisdictions. I've noted that the 40 year RUO was only for the shore operations and that the oyster farm pays the State of California to lease the tidelands where the oysters are placed and harvested. There's a California Fish and Game Commission meeting coming up December 12, and I think they'll sort out things that they essentially punted on last May. Last May an agenda item was that they might officially assert that only they had rights to control aquaculture in Drakes Estero. In the end they only determined that they would assert their support for the oyster farm and ask that NPS work with them on the issue. Many things really aren't that clear. Someone from the California Attorney General's office was at the April meeting, and his words were, "Usually people say things are perfectly clear because they aren't."

Like I said, stay tuned for the Dec 12 meeting. Anyone going to San Diego?

http://www.fgc.ca.gov/meetings/2012/121212agd.pdf

San Diego's always a nice place to go for business, especially for this business:).

I mentioned that it was NPS pressure that attached a condition to the state water bottom lease that its validity was tied to the shore operations being available, and that one of the commissioners said he was on the Commission at the time the condition was added. I found a letter on the PORE website signed by Don Neubacher and addressed to the Commission urging them not to issue a 25 year renewal, and that they were concerned about what they believed to be violations by Johnson's Oyster Co. He was urging that they at most issue a 6 month or 1 year temporary lease until the violations were addressed. I would note that it did say that the area was to become wilderness in 2012; their intent was unequivocal.

I think in the end the 25 year renewal with conditions was a compromise. I don't know if the California Fish and Game Commission is in the habit of issuing temporary leases or if it even has the power to do so.

y_p_w I will ask you this question because you seem to have the best grasp on all the documents; Does California Fish and Game only have rights to grant the extension on the water rights and not the shore operations? And If the NPS wants to stop the shore operation then the water rights do not really matter because it would be inconvienent for them to boat back and forth. Is that correct?

David Crowl:

y_p_w I will ask you this question because you seem to have the best grasp on all the documents; Does California Fish and Game only have rights to grant the extension on the water rights and not the shore operations? And If the NPS wants to stop the shore operation then the water rights do not really matter because it would be inconvienent for them to boat back and forth. Is that correct?

I believe there are a variety of leases and permits that apply to the shellfish operation. They come from NPS, the California Coastal Commission, and the California Fish and Game Commission/California Dept of Fish and Game. I think it's safe to say that the previous two really don't seem to have as good a working relationship with the oyster farm as with CDFG and CFGC.

I also found a document that indicated that a 90-day extension was granted, but I know that later in the year the 25-year renewal was granted.

The following memo from California Dept of Fish and Game Director to the Fish and Game Commission describes the situation with the lease better than I could. As far as I can tell, this was the first time the validity of the oyster farm's water bottom lease was tied to the shore operations.

http://www.nps.gov/pore/parkmgmt/upload/planning_dboc_sup_deis_references_cdfg_2004b_040614.pdf

The subject leases, totaling 1,060 acres of state water bottom lease area, were established on June 1, 1979. Since then, the lessee has worked cooperatively with the Department on all aquaculture related issues. Mr. Johnson submitted written notification to indicate his interest in renewing the lease within the one-year time period stipulated in his lease. He has also indicated an interest in renewing the leases for the maximum twenty-five (25) year period. The Department supports the renewal of the leases and concurs with the requested twenty-five year renewal period. Johnson Oyster Company has been operating on National Park Service fee land in Point Reyes National Seashore under a 1972 Reservation of Use and Occupancy (Federal Reservation) in which Mr. Johnson, as a condition of his sale to the Park Service, reserved the right to operate an oyster farm for 40 years until 2012. However, there is some uncertainty whether the Federal Reservation will be extended. For this reason, the Department is recommending that the renewed leases be contingent upon there being a Federal Reservation in place.

Recommendation:

The Department recommends approval of the requested lease renewals for a period of twenty-five years, contingent on there being a Federal Reservation for the land use within the Point Reyes National Seashore.

The California Fish and Game Commission has to sign off on all leases, and here's the meeting summary:

http://www.fgc.ca.gov/meetings/2004/062404summary.aspx

32. REQUEST OF TOM JOHNSON, JOHNSON OYSTER COMPANY, INC., FOR LEASE RENEWAL OF STATE WATER BOTTOM LEASE AGREEMENTS FOR M-438-01 AND M-438-02, DRAKES BAY, MARIN COUNTY.

Approved; received public testimony.

And to answer your question, were the Fish and Game Commission to modify the terms of the lease such that they weren't tied to the reservation of use, it would probably be an expensive proposition to operate with the shore operations elsewhere. I don't even know about the legality of operating motorized boats to get to Drakes Estero. DBOC could do it when they had the reservation of use, but if they tried to operate motorized boats to harvest, it would probably be something for the lawyers to sort out. As for the costs, I don't know. However, it is about 30 miles by boat to Bolinas and about 40 miles to Marshall. I'm guessing it would turn into an expensive proposition.

It seems if I understand what you are saying; Fish and game extended lease contingent on NPS approval of shore operations, Which NPS did not grant.

However, the question is whether or not NPS/Interior has the authority to order out the oyster racks. The memo from Salazar unilaterally orders out DBOC property from Drakes Estero. It's unquestioned that they can give orders regarding the shore operation, although that's also a subject of this lawsuit. However, they are probably considering their next step. If anyone has the authority to order the oyster racks out, it would be the California Dept of Fish and Game of the Fish and Game Commission since they issue/enforce the water bottom leases.

The CFGC actually punted back in May on the question of whether or not they were going to absolutely assert that they absolutely controlled the rights to aquaculture in Drakes Estero. They just noted on the record that they supported the oyster farm and that they would like NPS to renew. Several CDFG Directors for years have also voiced their support for an NPS renewal. I think they'll probably decide on something at the meeting this Wednesday. I'm pretty sure they're not happy with the Interior Dept decision and might possibly make a statement by decoupling the lease from the shore operations.

I also know that the California Coastal Commission doesn't have a good relationship with the oyster farm. If you read that letter from CDFG, the Director says that his department doesn't do enforcement for any other regulatory agency.

Another take on this issue:

COALITION OF NATIONAL PARK SERVICE RETIREES BACKS SECRETARY OF THE INTERIOR’S DECISION ON POINT REYES OYSTER FARM

Washington, DC. The Coalition of National Park Service Retirees (CNPSR) today praised Secretary of the Interior Ken Salazar’s decision to not renew the permit to allow an oyster farm in Point Reyes National Park to continue to operate inside designated wilderness.

Coalition chair, Maureen Finnerty said, “This decision is a clear affirmation that decisions within the areas of the National Park System must be based on accurate fidelity to the law, the best available sound science and scholarship, and in the long term public interest. Secretary Salazar has clearly placed resources stewardship ahead of the narrow commercial interests of the farm’s operator. This is a win-win for the American people.

When the Congress designated Drakes Estero a Wilderness Area in 1976, Congress allowed an existing oyster company to grow non-native oysters until its lease expired on Nov. 30, 2012. The current owner of the oyster farm bought it from its previous owner in 2005 with the clear understanding that its occupancy permit would expire in 2012. He tried to apply political pressure to the National Park Service (NPS) and the Department to extend the permit, claiming that his operation was not harmful to the resources of the park. The public does not agree. 92% of the more than 52,000 public comments received during the comment period of the NPS’ last Environmental Impact Statement on the Drakes Bay Special Use Permit favored full wilderness protection for the area and a termination of the lease.

By denying the permit extension, Secretary Salazar is acting in the public interest and carrying out his responsibilities as defined in the 1916 NPS Organic Act, the 1964 Wilderness Act, and the 2006 NPS Management Policies. CNPSR Executive Council member, Rick Smith, said, “The oyster farm has a long history of violating the environmental regulations of the California Coastal Commission and the NPS. It also has been operating without federal permits required to protect navigable waters. The NPS is charged with operating areas of the National Park System in ways that are not in derogation of the values and resources for which the area was established. Secretary Salazar’s decision will allow the NPS to more faithfully carry out this mission. We applaud his decision."

Rick

NPS is just so pristine and pure as the wind driven snow. No one (or organization is) but what this is here and any number of other situations that I can recall (and document) is to use lofty verbage to condemn and push aside real people's lives (and liberty) for the public good BS. There's a place for public good but not at the continued price of the individual. Not one of the supporters of this decision I am guessing would find joy in working in the elements that these future Food Stamp customers find rewarding far more than just toil. The thing about working for the government I find is how detached one becomes to reality (detached from my own reality at least). This type of Environmentalism, which fits into the present media discourse, is a trend that with every incremental step, dooms working people to an ever smaller piece of the pie and life where they are some of the most connected to the environment.

Not really trying to alienate the Gov't crowd but the issues out there are bigger than our own personal deals, I believe.

Funny how most the folks that come out supporting NPS/FS policies are current or past employees or affiliates, many of which worked for these very agencies. In contrast, the ones most unhappy with the policies are the public these government employees are supposed to be serving.

Funny how gadflies use self serving generalities.

Self serving is this government's mantra if you want to go full combat, Mr. B, respectfully!

Thanks for proving my point, Rick.

C'mon, let's not get on that poor horse again....

Tomp2,

You’re quite right that technically it’s not accurate to say “the ecosystem is not impacted by the current oyster farm” because there are some tiny negative impacts and some substantial positive impacts. But the spirit of that remark is correct.

Science is always “incomplete,” isn’t it? But the NAS did say in its Best Practices in Shellfish Mariculture report, which reviewed all the science there is, that there is no evidence of any substantive negative impact. And the NAS also said in its recent review of the fraudulent EIS that there is no data to support the outlandish claims made in that document.

I have nothing against science for the sake of science, but there is no reason to worry about the ecology at Drakes Estero. The eelgrass has doubled since the oyster farm has been flourishing under the Lunnys, there are so many harbor seals the place is reaching its carrying capacity, and birdwatchers flock to the place because it’s so pristine.

Hi y_p_w, nice to see you!

I second the motion that you contact Felicity Barringer. You don’t have to go on the record, she would probably be happy to speak to you on background (in other words, just for her knowledge). It helps the reporter to speak with someone who has been following the story for a long time. Also you can give her valuable details about the visitor experience since you go there a lot.

Hey, are you following us on twitter? @saveoysterfarm #SaveDBOC

cheers, S

trailadvocate,

That’s a great article by Jillian Kay Melchior, isn’t it?

There is also a nice op-ed in the Wall Street Journal today:

http://online.wsj.com/article/SB10001424127887323501404578161483500373510.html[/url]

The NPS behavior has been pretty disgusting in this whole story. The NPS has displayed a near fanatic approach to the estrero, and Salazar seems all too happy to buy the BS science served to him by the NPS. Of course, the NPCA follows along like a lapdog.

Rick B. and others on this forum are all too happy to see 30 poor saps losing their job in their quest for ever more wilderness.

What a sad state of affairs.

It was a fine article as was the WSJ piece. I believe it states what many believe. Many that love wild places but not the way this element of the Interior Dept likes.

Stay strong (and smart:)!

You know Zeb, the more I dig into this issue, the more fascinating it becomes. For instance, did you know that in May 1971 the federal government paid the Johnsons $79,200 for the property in question?

And that while that agreement did indeed state that at the end of the 40-year lease, "a special use permit may be issued for continued occupancy of the property" for the oyster farm, Earl Devaney, at the time Inspector General for the Interior Department, wrote in 2008 that "an extension (of Drakes Bay Oyster Company's) Reservation of Use and Occupancy would violate a congressional mandate that the oyster operation be removed as soon as the RUO expires in order to manage Drakes Estero as wilderness."

More so, Devaney pointed out that Reservation of Use and Occupancy agreements extended by the Park Service "are deeded interests in the real estate and by policy cannot be renewed beyond their expiration dates. In 2005, Johnson assigned the right of the remaining years in this RUO agreement to Kevin Lunny, who renamed the oyster farm the Drakes Bay Oyster Co."

So if you follow that legal interpretation, and the other interpretations down through the years, the science really didn't need to come into play. The Park Service was bound by the Johnson sale and subsequent RUO to end the lease on November 30, 2012.

It would seem that the only way this could be resolved in favor of DBOC would be for Congress to legislate it.

Kurt: If that be true, Dear Senator Diane.....:) But why all the devious behavior by NPS hammering a truly harmonious commercial operation. I know that's not possible in some minds but maybe it's just a mental condition that could actually be remedied without claiming disability payments and further burdening the Chinese:). Come on the tone and motivation of this decision results in lost jobs at the least but much more is lost that many choose to ignore. All people can enjoy Drakes Bay with many enjoying the connection to the natural setting having fresh oysters that were produced before their very eyes. If there are people that refuse to enjoy Point Reyes Seashore/Drakes Bay I suggest it's them and not Drakes Bay as it is.

Kurt, could your provide us the specific legislation and language that created the "congressional mandate" or are you just going on the word of Earl Devaney? As I recall, someone (perhaps in an earlier thread on the subject) indicated that one of the sponsoring Congressmen specific said that wasn't the intent.

Nope. I won't take that guilt. Oyster farmers or no oyster farmers aren't my issue. All I've done on this particular topic, in one quick quip, is question some of the logic or rhetorical style of others. I'll let you know the issues I give a damn about, and then you can accuse me of heartlessly stealing people's jobs. This issue ain't it.

Here's a link to the contract the Johnsons signed with the Park Service in 1971:

http://www.nps.gov/pore/parkmgmt/upload/planning_dboc_sup_background_ruo_1972.pdf

Here's a link to the 2004 Solicitor's opinion on whether the original intent was to close the oyster farm in 2012 to allow for the wilderness designation:

http://www.peer.org/assets/docs/doi/09_07_05_doi_solicitor_opinion_pt_reyes.pdf

And here's a link to Devaney's findings:

http://northbaydigital.sonoma.edu/utils/getfile/collection/EHDC/id/901/filename/902.pdf

The Devaney findings run to 53 pages (endnotes included). Among the interesting points is that after he bought the lease from the Johnsons, Mr. Lunny for three years "had refused" to sign a Special Use Permit with the Park Service to operate the oyster farm, and that his parents also refused to sign a SUP with the Park Service for their ranch within the seashore. It appears that Mr. Lunny finally signed the SUP after calling on the Office of Inspector General to investigate then-Point Reyes Supt. Don Neubacher for bias and slander.

Also within the Devaney report is a section on congressional intent for wilderness in the seashore. It states that support from the public and during congressional hearings "favored" preserving more wilderness at Point Reyes than initially proposed by the Park Service, notes that Congress enlarged the Park Service's proposal, and noted that the Park Service's wilderness review for the seashore found that "(I)n terms of preserving and protecting marine life systems, Drakes Estero and Limantour Estero could well be considered the most significant ecological units within the national seashore."

Devaney also noted that the congressional report that accompanied the 1976 Point Reyes National Seashore Act pointed out, in terms of the potential wilderness visualized at Drakes Estero, that "(A)s is well established, 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."

Now, if the original congressmen who proposed the initial wilderness legislation were dead set against seeing Drakes Estero designated wilderness and the oyster farm removed, why wasn't that reflected in Devaney's report?

And before someone suggests he cherry-picked things, know that Devaney has been highly critical of the Park Service in the past. During a 2003 congressional hearing he testified that he has "never seen an organization more unwilling to accept constructive criticism or embrace new ideas than the National Park Service. Their culture is fight fiercely to protect the status quo and reject any idea that is not their own. Their strategy to enforce the status quo is to take any new ideas, such as law enforcement reform, and study it to death. Thus any IG (Inspector General) recommendation or, for that matter, Secretarial directive, falls victim to yet another Park Service work group charged by their National Leadership Council to defend the status quo from those of us who just do not understand the complexities of being a ranger."

It certainly would appear that the record clearly exists that since 1976 the congressional intent was to see Drakes Estero one day designated as official wilderness. Mr. Lunny knew that was a possibility, and he gambled that he could convince the Park Service to grant an extension.

But Kurt, where is the language of the "Congressional mandate". All you have given us is Delaney's interpretation which clearly has a bias. You ask:


if the original congressmen who proposed the initial wilderness legislation were dead set against seeing Drakes Estero designated wilderness and the oyster farm removed, why wasn't that reflected in Devaney's report?

Noone has suggested the Congressman was "dead set against", they said it wasn't his intent and thus far a fail to see anything in the legislation or otherwise that says it was. And his true feelings probably weren't in Devaney's report because they didn't support Devaney's conclusions.

"Also within the Devaney report is a section on congressional intent for wilderness in the seashore. It states that support from the public and during congressional hearings "favored" preserving more wilderness at Point Reyes than initially proposed by the Park Service."

I don't know if this is true or not but I know of a case in recent history where, it was said verbally and in print, that the public favored "the preferred alternative." After a request was made for release of public comments the request was denied until after the ESA was signed and became policy. Public comments submitted were eventually released where it showed that just the opposite held true. In this case the process was abused, outrageously so in some instances, I believe, to get a predetermined result that went against good public policy but pleased some of the same players involved with this decision. I heard, just this morning, that "people need and desire something "real." The current environmental community overreaches, I believe, in the Drakes Bay Oyster Issue and in others I've observed where the "real" that people need and want is ever more restricted by overreach.

Thanks for this forum, Kurt. BTW, my father was born in Park City and would like to visit when the skiing gets good and I can focus on more "real stuff" :).

FF, read the footnotes, it's all in there. Particularly XXIV, which cites the House report that accompanied the wilderness legislation. That House report reveals the legislative intent.

Trailadvocate, if it wasn't true, then why did Congress enlarge the Park Service's proposal for wilderness? Don't forget, Congress has the final say on wilderness designations.

As for skiing, I'm waiting for it to get good, too;-)

What was the year Congress enlarged NPS's proposal for wilderness, '70's? Is that supposed to be the course in perpetuity while eliminating, ever more profoundly, the "Real?" Individuals need the real while the public "good" is marginalizing the experience. Overreach is a temptation for anyone and I believe it's the case here.

Congress passed the Point Reyes National Seashore Act in 1976. What's "real," "good," and "marginalizing" is all in the eye of the beholder, however.

Regarding overreach, the devil's advocate might say it was very clear that the oyster farm's lease ran out on Nov. 30, 2012, and the Park Service was under no obligation to renew it. (In fact, if you agree with Mr. Devaney's interpretation, it couldn't renew it) To bet against that possibility, well, that's bold, no?

I have much evidence that makes me question a lot of the assumptions and supposed truths that I've heard. The temptation to deceive is epidemic and with many that assume they know better than, well, others rather self righteously it is dissapointing to say the least. So much is being lost to the character of individuals and of the country by decisions just like this one. I would suggest that legislators visit this issue if that be the last resort. I can't be certain it is but if Salazar cannot see the importance of Drakes Bay continuing to operate, for whatever reason whether it be because of the lobbying & financial support from some of Interior's special friends, then I hope the likes of Senator Diane Feinstein and other legislators see the importance this case represents to the character of the country. Hope is doesn't sound overly lofty lingo but that's my sense of things. Thanks again, Kurt.

Kurt Repanshek:
You know Zeb, the more I dig into this issue, the more fascinating it becomes. For instance, did you know that in May 1971 the federal government paid the Johnsons $79,200 for the property in question?
My understanding about the sale was that it was coercive. The federal government has the power of eminent domain. If a Charlie Johnson doesn't take their offer, he may have been left with more cash but no business. It was also in 1972.

I don't believe the oyster farm was written into the enabling legislation because it was an inholding. NPS didn't acquire the oyster farm until after the park had opened. I've also read a newspaper comment from someone claiming to be Charlie Johnson's daughter - claiming that he was forced into accepting the lease terms. I certainly would believe it given the history of NPS using eminent domain.

http://www.marinij.com/westmarin/ci_22094241/workers-devastated-by-oyster-farm-closure

It's the second column by "Joyce Johnson":

My father, Charles Johnson, started this business and owned the land. The Federal governmane forced him into a 40 Year lease, but with the understanding that it would be renewed.

trailadvocate:
I have much evidence that makes me question a lot of the assumptions and supposed truths that I've heard. The temptation to deceive is epidemic and with many that assume they know better than, well, others rather self righteously it is dissapointing to say the least. So much is being lost to the character of individuals and of the country by decisions just like this one. I would suggest that legislators visit this issue if that be the last resort. I can't be certain it is but if Salazar cannot see the importance of Drakes Bay continuing to operate, for whatever reason whether it be because of the lobbying & financial support from some of Interior's special friends, then I hope the likes of Senator Diane Feinstein and other legislators see the importance this case represents to the character of the country. Hope is doesn't sound overly lofty lingo but that's my sense of things. Thanks again, Kurt.
Feinstein's original rider mandated a special use permit. If that rider had remained (I'm sure it would have been passed in the omnibus legislation) then we wouldn't have the dog and pony show with the studies or all this controversy. It would have been end of story - the show goes on. I really wished she didn't buckle to the demands of Jeff Bingaman.

The California Fish and Game Commission meeting is going on right now. It's gotten to agenda item 7B rather quickly.

http://www.cal-span.org/State_Webcast/CFG/stream_index.htm

I see Neal Desai at the podium right now.

Coercive sale? $79,200 in 1972 dollars equals $435,164.84 in 2012 dollars. For 5 acres "more or less," that works out to $87,000 per acre in today's world. Even by today's standards that's a pretty good return for waterfront property, no?

Plus the Johnsons were allowed to operate the oyster farm for another 40 years. And they profited again when they sold the remainder of the lease to the Lunnys.

Kurt Repanshek:
Coercive sale? $79,200 in 1972 dollars equals $435,164.84 in 2012 dollars. For 5 acres "more or less," that works out to $87,000 per acre in today's world. Even by today's standards that's a pretty good return for waterfront property, no?

Plus the Johnsons were allowed to operate the oyster farm for another 40 years. And they profited again when they sold the remainder of the lease to the Lunnys.

I don't use the term "coercive" lightly. From everything I've gathered about the sale, Charlie Johnson didn't want to sell. He certainly didn't sell at the time the feds were buying out the landowners of the ranches. However, he was forced to sell because otherwise he would have lost the business immediately if the feds had obtained the land via eminent domain proceedings. I don't know of any person who wouldn't reasonably think that such a deal wasn't at least minimally coercive.

If Charlie Johnson were allowed to keep his farm as an inholding, he wouldn't have been subject to NPS regulation. That would mean no NPS permits needed and no NPS oversight on his shore operations. I don't know if the payment was enough to make up for the additional regulation that he faced over the years.

In the end I don't know if I'm happy with this as a California taxpayer. I'm assuming that Charlie Johnson was paying property taxes, and once the feds took over those property taxes revenues vanished.

Interesting. The referenced report says absolutely nothing about the Oyster Company. It specifically mentions other "non-conforming" items but says absolutely nothing about the oyster company.

Oh, and by the way $87k for an acre of waterfront property would be considered giving it away where I come from.

Now in the need for fair play I would like to hear from YPW what his source is for claiming John Burton stated it was not the intent of the bill to shut down the oyster company.

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

Founding Fathers:
Oh, and by the way $87k for an acre of waterfront property would be considered giving it away where I come from.

Now in the need for fair play I would like to hear from YPW what his source is for claiming John Burton stated it was not the intent of the bill to shut down the oyster company.

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

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

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

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

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

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

Bagley was actually a friend of the former owner.

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

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

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

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

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

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


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


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