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

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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...."

Comments

Thanks ypw. Your post are quite informative.


ecbuck:

However, in the past they simply published a notice in the Federal Register and it was considered full wilderness.

Has that been done outside the lands listed in the 1984 act? Do you have any examples. Not questioning your truthfullness, I just want to get a full understanding of the process. If that is something established as a legislated practice, there wouldn't seem to be a need to include that language in the 1984 act.

Yeah. In fact it was done in Point Reyes.

http://www.nps.gov/pore/parkmgmt/upload/lawsandpolicies_fr_doc_99_29779.pdf

I can't seem to copy and paste. However, it references Public Law 94-567, which was a larger wilderness bill that seemed to have duplicated most of the the language of Public Law 94-544 (Point Reyes Wilderness Act). That was actually enacted two days later.

http://www.nps.gov/pore/parkmgmt/upload/lawsandpolicies_publiclaw94_567.pdf

SEC. 3. All lands which represent potential wilderness additions, upon publication in the Federal Register of a notice by the Secretary of Interior that all uses thereon prohibited by the Wilderness Act have ceased, shall thereby be designated wilderness.

And you know the whole thing about "managed as wilderness to the extent possible"? That's not even in the Point Reyes Wilderness Act. That was language specified in future Congressional wilderness designations. The PRWA was the first time "potential wilderness" had ever been designated.

http://www.nps.gov/pore/parkmgmt/upload/lawsandpolicies_publiclaw94_544.pdf

I still think they're messing up the procedure. The NPS Director seems to think that he can make issue the notice and it's legal, when the law clearly says that his boss needs to do so. The NPS Director actually issued the 1999 notice for Muddy Hollow.


It seems that some aren't very respectful of grass roots efforts. It appears to me for the most part it's those folks with all the abreviations before and after their names that have departed from much common sense in exchange for whatever is driving things. Snark is where it's at, apparently.


However, in the past they simply published a notice in the Federal Register and it was considered full wilderness.

Has that been done outside the lands listed in the 1984 act? Do you have any examples. Not questioning your truthfullness, I just want to get a full understanding of the process. If that is something established as a legislated practice, there wouldn't seem to be a need to include that language in the 1984 act.


ecbuck---Among all the comments from the armchair lawyers on the oyster farm issue, it's good that you refocused our attention on Agenda 21. Maybe now we can have an equally robust discussion on the U.N. I am sure it would be enlightening.

Rick


I only brought up California Wilderness Act Section 108 because it's a decent overview of how it's been done regardless of whether the specific method was spelled out in the enabling legislation. The Point Reyes Wilderness Act doesn't actually say anything about how a potential wilderness addition gets converted to fully designated wilderness. However, in the past they simply published a notice in the Federal Register and it was considered full wilderness.


Oh, and by the way. This land grab is but the beginning of Agenda 21. The UN has designated 50% of US territory as land that should be devoid of human presence.

https://sites.google.com/site/waterwatchalliance/wildlands.jpg


Thanks Kurt - I should have figured that one out my self. Now here is my conundrum.

The referenced paragraph indicates the properties go to wilderness with the cessation of non-conforming activities. That paragraph, however, limits those conversions to lands specifically listed in Section 106. A search for Point Reyes produces no entry in Sec 106. Is it part of some other titled land that is listed?

Also, I would note that this (very broad) legislation was in 1984 and certainly cannot be assumed to reflect the intent of the original legislation that was specific to Point Reyes.


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