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

EC, Devaney didn't interpret, makeup, or write the House report that accompanied the wilderness legislation and which explained the congressional intent to designate Drakes Estero as wilderness; he quoted it.

As for relevancy, on December 4 the Park Service posted notice that "all uses in Point Reyes National Seashore that are prohibited by the Wilderness Act (Pub. L. 88-577) have ceased and certain Federal lands that were previously designated as potential wilderness are, upon publication of this notice, designated as wilderness."

http://govpulse.us/entries/2012/12/04/2012-29381/designation-of-potential-wilderness-as-wilderness-point-reyes-national-seashore

It seems a bit premature since the oyster racks are still there. Even if one assumes that NPS has the authority to order the removal of the oysters and oyster farm property, there was a 90 day notice given to complete the removal.

I'm still wondering what happened at the California Fish and Game Commission meeting in San Diego. The last I saw was that an attorney representing the oyster farm was arguing about who had authority over shellfish farming in Drakes Estero. I didn't really see anything after they came back from the lunch break. I don't know the whole list, especially since they took several comments and the were out of order with respect to agenda 7 items. I did see Neal Desai, someone from a Marin agricultural group, one person who was railing against NPS, and the attorney I mentioned previously.

Ah yes, hooray for buerocrats and legal speak to make this such a great country. Somehow this BS just doesn't match up to the "Intent" going back a bit farther in recorded history. Say, how about 1777 for a good year. I doubt there was mention of Point Reyes National Seashore/Drakes Bay Oyster but what do you think their intent was? Put Drakes Bay Oyster employees on food stamps so some administrator wearing the Hat won't have to watch people actually working? Certainly you can recognize a little tongue in cheek but there is some truth here, I believe. Find a way to work it out, please.

I am not responding to you, Y_P_W. I agree with others on here that appreciate your efforts and theme.


that were previously designated as potential wilderness are, upon publication of this notice, designated as wilderness."


That is interesting, I thought only Congress could do that. Looks like another Bureaucrat stretching beyond his authority. And again as to intent, I think I will take the word of the bill's author over anybody else, including some staffer that writes a report before the bill is even passed and an administrator that selectively quotes - and thereby interprets - that report.

PS -If you want to call me EC, why don't you free up that name and he can post with complete transparency.

Founding Fathers:
That is interesting, I thought only Congress could do that. Looks like another Bureaucrat stretching beyond his authority. And again as to intent, I think I will take the word of the bill's author over anybody else, including some staffer that writes a report before the bill is even passed and an administrator that selectively quotes - and thereby interprets - that report.
That is the way potential wilderness is converted to designated wilderness. Once the "nonconforming uses" cease, that is published in the Federal Register and the area becomes fully designated wilderness. The Congressional authority already exists.

However, to publish the notice at this point seems rather premature. The oyster racks are still there. I don't think Kevin Lunny is going to start to remove them until he's out of legal options. It seems like Director Jarvis is putting the cart ahead of the horse.

Ah, I am the beneficiary of разрядка and out of the Gulag.

Thanks again ypw, I wasn't aware that the only impediment from potential to actual was the elimination of nonconfroming uses. Puts a lot of incentive on the powers that be to get rid of those "nonconforming" uses no matter the consequences.

And just out of curiosity - is that just the way it works or is that defined in the Wilderness Act or some other legislation?

Edit: I meant to say перестро́йка rather than разрядка but they both are applicable.

The Point Reyes Wilderness Act of 1976 doesn't say anything about how it's supposed to happen, but publishing the notice in the Federal Register is the way they declared the former Muddy Hollow powerline corridor full wilderness. I remember seeing the notice somewhere.

The procedure is in the California Wilderness Act of 1984. I don't know if any areas have been added to full wilderness under the Act.

http://www.nps.gov/legal/parklaws/Supp_V/laws1-volume1-appendix.pdf

CESSATION OF CERTAIN USES
SEC. 108. Any lands (in section 106 of this title) which represent
potential wilderness additions upon publication in the Federal Register
of a notice by the Secretary of the Interior that all uses thereon
prohibited by the Wilderness Act have ceased, shall thereby be
designated wilderness. Lands designated as potential wilderness
additions shall be managed by the Secretary insofar as practicable
as wilderness until such time as said lands are designated as
wilderness.

I'm also not sure that the NPS Director has the authority to publish the notice as he's attempting to do. I think it has to come directly from the Secretary of the Interior in order to be legal.

I'm confused. So this is a California designation not a national one? Isn't this federal land? How does California have the power to designate on federal land and how does the NPS have authority to implement a California law?

The California Wilderness Act of 1984 was what Congress called the package of wilderness bills....

I found something interesting:

http://books.google.com/books?id=8kXQAAAAMAAJ&printsec=frontcover&source=gbs_ge_summary_r&cad=0#v=onepage&q&f=false

Besides the fact that they have Alan Cranston as being from Wyoming, there's something from the cosponsor, who I believe is John Burton.

He stated (page 273) that the oyster farm could be included in the wilderness as a "prior, non-conforming use".

On page 361:

NONCONFORMING USES

Two activities presently carried on within the seashore existed prior to its establishment as a park and have since been considered desirable by both the public and park managers Because they both entail use of motorized equipment specific provision should be made in wilderness legislation to allow the following uses to continue unrestrained by wilderness designation

1 Ranching operations on that portion of the pastoral zone that falls within the proposed wilderness These operations should be carried out in accordance with generally acceptable local standards of ranching practices and will include such activities as the use of pickup trucks and tractors for the purpose of maintaining necessary ranch roads stock ponds and fences as well as caring for the health of the stock and periodic supplemental feeding

2 Operation of Johnson's Oyster Farm including the use of motorboats and the repair and construction of oyster racks and other activities in conformance with the terms of the existing 1,000 acre lease from the State of California

STATEMENT OF HON JOHN V TUNNEY A US SENATOR FROM THE STATE OF CALIFORNIA

The last issue of concern to the Advisory Commission involved the management of the tidal zone off Point Reyes and protection of Drakes Estero This issue which concerns the question of the State's right to control fishing in the area is one which I believe can be resolved to everyone's satisfaction

When the State conveyed some 10,000 acres of tide and submerged lands to the Federal Government for the Seashore it reserved both commercial fishing and mineral rights However transferrance of that land eliminated any possibility that exploratory mineral development would be permitted in the area Therefore what remains to be determined is how managing the lands as wilderness can be coordinated with any fishing activities which might be permitted by the State.

I hope this issue can be dealt with in the Committee report by clarifying both the State's rights and the Park Service's responsibilities in this regard

STATEMENT OF HON JOHN L BURTON A US REPRESENTATIVE FROM THE STATE OF CALIFORNIA

1 There are two areas proposed for wilderness which may be included as wilderness with prior non conforming use provisions One is Drakes Estero where there is a commercial oyster farm The other is the farming operation of the Murphy Ranch located at the northwest end of the Muddy Hollow Road corridor

Having witnessed a Superintendent that was quite full of himself and his power it doesn't surprise me that some may assume power that they should not have. It's all about the greater good, you know. Powers that many went to great lengths to delineate because they understood the weakness of the human condition. But then, I appreciate humbling where as politicos despise it:)! I'm going to step aside a bit, realizing there are better minds dealing with getting to where we want to go to truly connect and convey to individuals and not the masses as many in resource management seek. It's me, I know, as I've had so many incredibly personal experiences with visitors and do not treat them lightly.

I just included the section from the California Wilderness Act because that's the way the feds declare that potential wilderness has been converted to full wilderness. It was a law passed by Congress. The Point Reyes Wilderness Act was the first time Congress had used the term "potential wilderness additions" and they didn't define the mechanics of how it could be done.

However, there still is confusion over the authority to control the rights to shellfish farming. The state hints that it still has those rights. The feds unilaterally act as if those rights have been ceded to the feds. This is a situation that lawyers love.

Regarding the conversion of potential to formally designated wilderness, there is at least on prior example in California. In January 2011, the BLM signed off on the Elkhorn RIdge potential wilderness, an area that had been designated as potential wilderness in the 2006 Northcoast Wild Heritage Act. Inholdings acquired prior to the legislation had been heavily logged but were recovering satisfactorily to the point where the BLM office in Arcata felt that they could be included.

You can read the Federal Register notice here: http://www.gpo.gov/fdsys/pkg/FR-2011-01-13/pdf/2011-606.pdf

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.

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

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.

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


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.

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.

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.

Thanks ypw. Your post are quite informative.