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
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 article on the issue:
http://www.nationalreview.com/articles/335174/raw-deal-jillian-kay-melchior
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
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.
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 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.