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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...."


"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?

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.

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.


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:


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.

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