Editor's note: This updates with Kevin Lunny disputing details of 2005 meeting with conservationists.
Deciphering recent congressional intent, not always an easy task, currently is at the center of an oyster company's bid to remain within Point Reyes National Seashore waters.
While Congress in 1976 passed legislation stating that the waters of Drakes Estero should be declared offical wilderness once all nonconforming uses were removed, attorneys for the Drakes Bay Oyster Co. say Congress more recently intended for the Interior Department to extend the oyster company's lease to operate there.
These points will be argued in detail on May 14, when the Ninth U.S. Circuit Court of Appeals take up the case of Drakes Bay Oyster Co., which is owned by Kevin Lunny and his family, long-time ranchers in the area. It was back in late February when the appellate court granted an emergency order to prevent the National Park Service from shutting down the company by allowing its lease to expire as scheduled last November.
Now the court will consider whether to grant a temporary restraining order against the Park Service, something that would allow the oyster company to continue operations until its lawsuit over lease renewal plays out.
Well-Aged, And Cited, Documents
Trotted out time and again by pro-wilderness groups in this case are two old documents, one from 1972 (attached below), the other from 1976. The first gave the Johnson Oyster Co. a 40-year lease, until November 2012, to continue farming oysters in the estero, which had been transferred to the federal government to create Point Reyes National Seashore along the California coast just north of San Francisco. The second was the Point Reyes National Seashore And Wilderness Act (attached below), which not only designated official wilderness in the seashore, but designated the estero as potential wilderness that was to become official wilderness once all nonconforming uses were removed. The oyster company is the last nonconforming use.
Last November, then-Interior Secretary Ken Salazar declined to exercise a renewal option contained within the lease agreement. In opting to let the lease expire on its own, the Interior secretary said Congress intended that the waters of Drakes Estero would become official wilderness.
But did Congress have the power to extend that designation? Did the Park Service oppose such designation for Drakes Estero before it supported it? Those are among the questions the Lunnys, who bought the oyster farm from the Johnsons in 2005, hope the Ninth Circuit will give them a chance to address by granting a TRO and allowing their lawsuit to proceed.
In their appeal (attached below) of a district court's refusal to issue a TRO, attorneys for Drakes Bay Oyster Co. note that the state of California holds reserved fishing rights in Drakes Estero. As a result, the estero can't be designated as wilderness, they argue. That point, they go on to claim, was raised by Interior officials in the 1970s before and after Congress passed the wilderness bill. (However, in 2004 the U.S. Solicitor's Office in San Francisco issued an opinion that the state's submerged rights could not stand in the way of wilderness designation.)
Too, the oyster company's attorneys argue, when Congress adopted legislation in 2009 giving Secretary Salazar authority to control the fate of the oyster company, it specifically intended for him to extend the company's lease. To make that point, they note that the legislation in question, known as Section 124, stated that "notwithstanding any other provision of law, the Secretary of the Interior is authorized to issue a special use permit with the same terms and conditions as the existing authorization, except as provided herein, for a period of 10 years from November 30, 2012..."
Nowhere in that legislative construction, the attorneys note, did Congress insert the words "or deny" a permit for the oyster company.
"Congress intended to put a thumb on the scale in favor of DBOC. It did not intend to confer unreviewable authority on Defendants to deny DBOC a permit," the attorneys wrote in their appeal.
The government, however, says that interpretation of Section 124 is "too narrow a construction of the statute, which, read as a whole, confers upon the Secretary all necessary authority either to issue a permit on the same terms as DBOC’s prior authorizations, to issue a permit on different terms, or not to issue a permit."
"In Section 124, Congress created a special authorization for the Secretary to consider whether to issue a permit for DBOC, supplanting any existing procedures that DBOC might invoke to apply for a permit and the existing rules that constrained the Park Service in considering such an application," the government's brief (attached below) filed with the Ninth Circuit reads.
Past Ninth Circuit rulings have held that when Congress uses the word "authorizes," it confers upon agency officials the power "to grant or to deny a request...", the Justice Department attorneys added. Such congressional intent is reflected in Section 124 in the Drakes Bay matter, they continued, because Congress reworded the Section from stating that the Secretary "shall extend" the oyster company's lease to is "authorized" to do so.
Once A Valued Component
Once upon a time, the oyster operation was seen as a key component of the estero and the national seashore. And oyster farming has a long history in the estero, dating back at least to the 1800s when commercial operations worked there, according to area residents.
When the Park Service in 1974 released an Environmental Impact Statement assessing proposed wilderness in the Seashore, it stated that while Drakes Estero is one of the Seashore's "outstanding natural areas -- an aquatic museum with a rich and varied concentration of marine invertebrates and birds," it also pointed to the Johnson Oyster Co. operations.
"Control of the lease from the California Department of Fish and Game, with presumed renewal indefinitely, is within the rights reserved by the State on these submerged lands," the EIS stated. "The existence of the oyster farm operation renders the estero unsuitable for wilderness classification at present, and there is no foreseeable termination of this condition. ... In summary, none of the Drakes Estero alternative unit is considered suitable for wilderness."
Six years later, when the seashore's general management plan was adopted in 1980 (and which remains in effect because the Park Service has not revised it), it lists a goal of monitoring and improving maricultural operations in the seashore, "in particular the oyster farm operation in Drakes Estero."
As the years went on, the Park Service continued to support the operation. In the mid-1990s, when the Johnson Oyster Co. was seeking a loan to fund improvements, former seashore Superintendent Don Neubacher wrote promising letters to banks on behalf of the company.
"...the Point Reyes National Seashore General Management Plan (1980) clearly states that an oyster farm would continue at the northern end of Drakes Estero where Johnsons is located," Mr. Neubacher wrote a financial consultant in July 1996 (attached below). "Therefore, continuation of an oyster operation has been discussed publicly and approved by the National Park Service."
Several months later, in November 1996, he repeated that same message to the Bank of Oakland (attached below).
"...the NPS would like the planned improvements to occur at Johnsons. In fact, the NPS has worked with Marin County planners to insure the facilities attain county approval," wrote Mr. Neubacher. "Moreover, the Park's General Management Plan also approved the continued use of the oyster company operation at Johnsons on Drakes Estero. We are genuinely excited about the planned changes and pledge to work with the Johnsons and the Bank of Oakland to make the project successful."
Both letters did note the oyster operation's lease ran until November 2012.
As to whether the state of California holds a reserved right in the estero, the Justice Department's position is that the "California State Lands Commission studied the State’s interest in Drakes Estero and concluded that the State had 'conveyed out all of the State’s real property interest except the mineral estate,' adding that the constitutional 'right to fish' does not cover aquaculture.
"And although California stated that it will authorize shellfish cultivation through 2029, based upon the 25-year lease that it granted in 2004, it also recognizes that the use of that lease depends upon Park Service permits," the government maintained.
Perhaps the superintendent's support of the Johnson Oyster Co. was tendered with hopes the loan would be granted and the problems confronting the Johnsons with dilapidated sewer systems and facilities would be remedied, all with an understanding that the lease nonetheless would run out in 2012. However, Superintendent Neubacher has declined to discuss the matter.
When the Johnsons failed to move forward with the vision, Mr. Neubacher, now superintendent at Yosemite National Park, met with Kevin Lunny to discuss his buying the operation from the Johnsons, which he did in 2005 and renamed the operation the Drakes Bay Oyster Co.
But somewhere between his conversations with Mr. Lunny in 2004 and a few short years later, their relationship changed. Advocates of the oyster company maintain that the Park Service turned from being a proponent of the operation to seemingly searching for a way to shut it down, though the terms of the company's Reservation of Use and Occupancy clearly entitled it to continue operations through November 2012.
Today the Interior Department and Park Service point to the 1972 lease and the 1976 wilderness legislation for the seashore as guiding them to let the oyster farm's lease run out so the "potential wilderness" in Drakes Estero can be officially designated as wilderness.
Outside groups that support that end goal say the designation will create the West Coast's only marine wilderness area, will improve natural habitat for both sealife and birdlife, and will uphold the terms of the 40-year lease.
What Turned The Park Service Against The Oyster Company?
What changed Superintendent Neubacher's position on the oyster farm is difficult to say. A request for an interview with the superintendent to discuss his past support of the oyster operation was turned down.
But his position toward the operation clearly had changed. Just a handful of years after the superintendent met with Mr. Lunny to discuss his taking over the oyster operation, the Park Service staff at the seashore produced an environmental report critical of the oyster operation. But an ensuing, independent, review concluded the Park Service had overstated the impact the farm had on the estero. The Park Service report, the National Research Council concluded, had been skewed and "selectively" manipulated the science.
Since the Research Council's finding was released in May 2009, the Drakes Bay Oyster Co. has been cast as both environmental polluter and purveyor of fresh, locally raised seafood, as ignoring provisions of its lease designed to protect harbor seals during the pupping season, and as a small business operating in a sustainable fashion.
During a long telephone conversation late last month, Mr. Lunny could only speculate over what spawned the Park Service's enmity. Back in the late 1990s there was great, and widespread, support for the Johnson oyster operation and its long-term plans, he said.
"It wasn't just the Park Service that was real supportive, it was all the conservation groups, too, even the Sierra Club, the Environmental Action Committee of West Marin, everybody supported this new expansion," said Mr. Lunny, referring to plans the Johnsons had for enlarging their operation and adding a visitor center.
In 2004, the Lunnys approached the Park Service about taking over the operation and cleaning it up. They realized that a lot of work needed to be done to turn the place around, but also believed there was great public support for the oyster farm that would make it successful.
"(Superintendent Neubacher) said, 'Kevin, do you realize the financial problems they're having?' And I said, 'Yeah.' He said, 'Do you realize the environmental problems with those buildings, the debris on the shoreline, that kind of stuff?' I said, 'Yeah,'" recalled Mr. Lunny.
"I said I think we can make this work. His first gut feeling was, 'I think it's a terrible idea, the place is too far gone,''' he said.
But the very next day the superintendent called Mr. Lunny and asked to meet with him over the possibility.
During those first conversations, said Mr. Lunny, the seashore superintendent said the "lease is explicitly renewable." The two men also discussed a clause in the lease that allowed the Park Service to buy out the lease if the Johnsons were not going to stay the entire 40 years. The fact that the Park Service didn't move to do that, said Mr. Lunny, further encouraged him and his family to acquire the oyster farm.
He Said-He Said
Apparently, though, the Park Service's change of heart over the oyster operation started not long after the Lunnys purchased the farm. Mr. Lunny maintains that he heard from a friend, (then-Tomales Bay Association President) Ken Fox, that around 2005 or so some environmental groups in the area during a meeting with Superintendent Neubacher bristled at the Park Service's support of Drakes Bay Oyster Co., that they had expected to see the oyster farm gone after the Johnsons couldn't complete the cleanup of their operations.
How that influenced the superintendent's view of the oyster operation, he said, is impossible to say.
"You know what, it's a theory," said Mr. Lunny. "It's really tragic because we had a great relationship, and a real exciting time working together with the Park Service, doing the cleanup. We'd love to know really why that happened."
What happened, explains Amy Trainer, executive director of Environmental Action Committee of West Marin, is that the environmental groups were glad to hear the Lunnys intended to clean up the oyster operation, but were adament that the lease not be renewed beyond November 2012.
"He came in 2004 and closed this deal with full knowledge from Neubacher and the Park Service and the Interior Solicitor's Office that it was over on November 30, 2012," said Ms. Trainer, noting a 2004 solicitor's interpretation that stated not only that the Park Service was within its rights to order the oyster farm out of the seashore, but that Congress did intend for the estero to be designated as official wilderness after the existing lease expired in November 2012.
"He sat in my office, with three of my former board members, ...and talked it over. Kevin said, 'I have a business plan, I can make my money back in seven years, and probably like Neubacher they said, 'Great, we'll support you, but you understand that after 2012 this is supposed to become marine wilderness, it's been that way since '76', and he said, yes I understand.
"And they told him, 'If something changes, we'll fight you.'"
As for the Park Service's seeming reversal of support for the oyster farm, her view was that the agency's position changed "because Kevin went back on his word, which was signing on the dotted line that said this is good through November 30, 2012. And then he signed a special use permit in April of 2008 that was good through November 30 of 2012. And when he started this attack campaign, he and his supporters, against the Park Service, I think that's when a lot of things changed."
The problem with Ms. Trainer's description of the meeting between Mr. Lunny and representatives from conservation groups, maintains Mr. Lunny, was that she was not present and did not work for the Action Committee at the time. Catherine Caufield, who was executive director of the organization and who attended the meeting, thought there might be a way the wilderness area could be created and the oyster operation saved, he said this morning.
While some opposed the Lunnys' goal of seeing their lease renewed past November 2012, Ms. Caufield thought a compromise might be possible, he said. According to Mr. Lunny's recollection, she wondered whether parts of the estero could be designated official wilderness and others continue to be used to grow oysters.
At the National Parks Conservation Association, Neal Desai supported Ms. Trainer's interpretation.
"We have people who said they spoke to Lunny, and said, 'Can you get out of here in 2012, and he said absolutely. 'I can make my money and get out and I know it's the end,'" said Mr. Desai. "We're not out there pushing that message because, frankly, we don't have a tape-recording of that."
"... He told people he could make his money and get out, and that's why we were supportive," he added. "There wasn't a problem when he took over, but as soon as he took over he changed his view; 'We want to stay.' That's when it became a major problem for us. As soon as he took over he started expanding. That became a problem for the Park Service, for different reasons. They were extending into an area that's historically been known and documented since the early '90s as being problematic for harbor seals. And so they (the Park Service) had their own issues."
A 2008 report by the Interior Department's Office of Inspector General also clouds the matter. In it Mr. Fox, who Mr. Lunny maintains told him that environmental groups were pressuring Mr. Neubacher to see the oyster company ceased operations in 2012, denied making such a claim. But supporters of the oyster company note that Mr. Fox disagrees with the OIG report and even went on camera with local media refuting it.
That report also noted that Steve Kinsey, a Marin County supervisor, maintained that Superintendent Neubacher was "holding the (Lunnys) hostage" until they agreed to sign an agreement that they would shut down the farm by 2012.
Whose scenario -- did Superintendent Neubacher tell Mr. Lunny the lease could be renewed beyond November 2012, or did Mr. Lunny go back on his word about leaving at that point -- is an accurate one?
Today, waiting for the Ninth Circuit hearing on what exactly "notwithstanding" means, Mr. Lunny is weighing whether to spend what he described as "hundreds of thousands of dollars" on planting oyster spat, or baby oysters.
"We should be planting right now, or we're putting ourselves out of business," he said. "We're doing the job ourselves that the wilderness activists want to get done."