Oyster Company Wants Full 9th Circuit Panel To Consider Injunction Against National Park Service

An oyster company battling to keep farming oysters in a wilderness area of Point Reyes National Seashore wants the entire 9th U.S. Circuit Court of Appeals to hear its case against the National Park Service.

Drakes Bay Oyster Co. announced its intention not to back down Wednesday after a three-judge panel of the appellate court denied its request to be allowed to continue operations in Drakes Estero pending the outcome of a lawsuit filed against the Park Service.

“After reading the Court’s decision -- and especially the dissent from Judge (Paul J.) Watford -- we are more convinced than ever that we will prevail based on the merits of our case,” said Drakes Bay owner Kevin Lunny.

At issue is the company's desire to remain in Drakes Estero at the national seashore. When Drakes Bay bought out the farm's previous owners in 2005, the existing lease for the operation ran through November 2012. While Mr. Lunny was optimistic he could obtain a lease renewal from the Park Service, last November then-Interior Secretary Ken Salazar declined that request, saying Congress long had intended for the estero to become part of the Philip Burton Wilderness.

The oyster company's lawyers sued the Park Service over that decision, arguing that the Interior secretary's decision was arbitrary and capricious, and violated both the federal government's Administrative Procedures Act and the National Environmental Policy Act.

An agreement reached between the oyster company and the U.S. Justice Department allowed it to continue operations through March 15 while the company sought an injunction against the Park Service.

In February, a U.S. District Court judge refused to issue the order and Mr. Lunny's attorneys then asked the 9th Circuit to grant the injunction. On Tuesday, in a 2-1 ruling, a three-judge panel from the appellate court also refused to grant the request.

"Drakes Bay’s disagreement with the value judgments made by the Secretary is not a legitimate basis on which to set aside the decision. Once we determine, as we have, that the Secretary did not violate any statutory mandate, it is not our province to intercede in his discretionary decision. We, therefore, affirm the district court’s order denying a preliminary injunction," read part of the majority opinion.

Mr. Lunny, however, was clinging to the hope that a full court review of the matter would result in a ruling in line with Judge Watford's opinion that "no conflicting laws prevented the Secretary from issuing a permit to Drakes Bay. Continued operation of the oyster farm is fully consistent with the Wilderness Act, and the farm’s existence is therefore not an “obstacle” to converting Drakes Estero to wilderness status as directed by the Point Reyes Wilderness Act. Instead, it was the Interior Department’s misinterpretation of the Point Reyes Wilderness Act that proved to be the 'legal sticking point' here."

In announcing his intent to pursue relief from the full 9th Circuit Court, Mr. Lunny implied that his case had national significance.

“With the support of thousands of environmentalists, community members and elected leaders around the nation, we will continue to fight for what’s right and remain committed to succeeding in our fight to remain open and serve our community,” he said in prepared comments. “Although we strongly disagree with the panel’s decision, we remain steadfast in our opinion that we can prevail based on the merits of our case."

Comments

Interesting, a judge thinks that the farm operation was consistent with the wilderness act.

Zebulon:
Interesting, a judge thinks that the farm operation was consistent with the wilderness act.
The Wilderness Act never addressed "potential wilderness additions". My understanding is that the Point Reyes Wilderness Act of 1976 was the first time it was described, and if you read the law there is no guidance for what that means or how to convert to full wilderness.

I bring up the High Sierra Camps in Yosemite as a precedent for how potential wilderness remains so as a policy matter. As long as the policy is to maintain the "nonconforming uses" it remains potential wilderness. I know some have suggested that it's a recreational use that's specifically allowed under the Wilderness Act, but my reading is that the permanent structures and helicopter landings wouldn't be allowed in full wilderness unless they were specifically exempted in the enabling legislation or helicopters for emergencies. These "nonconforming uses" are allowed to exist there because it is "potential wilderness". And the Wilderness Act specifically says that "commercial enterprises" are allowed if they serve a recreational purpose, but I've always interpreted this as meaning guiding or packing services, where there is no permanent presence like a building.

I don't believe the Wilderness Act necessarily addresses this case, save management that attempts to be as close to operation as a full wilderness as possible.

y_p_w, are the High Sierra Camps in "potential wilderness," or officially designated wilderness?

Regardless, they have a very, very long history with the park, in some cases predating the National Park Service.

You likely have read the history of the camps, but for those who haven't, they are listed on the National Register of Historic Places and "have been significant as an innovative interpretive concept luring more people into the Yosemite backcountry and representing a successful joint effort by the National Park Service and the Yosemite concessionaire to encourage travel beyond the roads and thus enhance visitor appreciation of wilderness areas as part of our national parks. Their establishment also marked an early implementation of the Interior Department’s policy of making remote areas of parks more accessible to the visiting public."

Furthermore....


Another aspect of the 1923 reopening of the camps involved Park Service Director Stephen Mather’s strong desire to carry out what he believed were the agency’s interpretive responsibilities in the high country. The park established a new pattern of interpretive service there, comprising backcountry Nature Guide trips to the camps, which was unique within the National Park System and set precedents for similar programs in other units.

None, however, developed along exactly the same lines as this one. Despite the initially small number of visitors exposed to this service, Mather and park officials strongly believed that a naturalist talking to the same people day after day, amidst the magnificent peaks and meadows of the backcountry, could probably exert a stronger and longer-lasting influence on the formation of positive visitor attitudes toward national parks and conservation in general than could result from guided short walks on the valley floor, daily lectures at the museum, or single-day hikes to the valley rim. The High Sierra Loop is considered the highlight of the park’s interpretive services to this day.

Kurt - wasn't the Oyster farm also in "potential wilderness" and didn't it predate the park?

I think there are some differences, ec, subtle as they may be. One being that when the Point Reyes Wilderness Act was passed, it designated Drakes Estero as potential wilderness and said once all the non-conforming uses were removed that the "potential" would be dropped.

Another is that the oyster company was given a lease with an end date. True, the Park Service/Interior Department had an option to renew the lease, but they chose not to, citing congressional intent.

In the case of the High Sierra Camps, the Park Service long has recognized them as a vital interpretive tool and means for getting travelers into the backcountry. Now, what I haven't had time to investigate, and which y_p_w might have done, is look at the park's wilderness legislation and see whether it specifically grandfathered in the camps. That would no doubt be an interesting part of the puzzle as to why they are still operating in wilderness.


citing congressional intent.


And the Congressmen that sponsored the bill said that wasn't his intent.

"when the Point Reyes Wilderness Act was passed, it designated Drakes Estero as potential wilderness and said once all the non-conforming uses were removed that the "potential" would be dropped."

I don't believe that's true, Kurt. Do you have a citation for that?

Truth is that the high Sierra camps just show that this Wilderness policy business is all politics. On one hand, we got overzealous employees removing sign posts (to keep with the spirit of the land untrammeled...) but we keep camps in the high Sierra. Fact is that everybody loves the high Sierra camps, so nobody is going to remove them, regardless of how much in line it is with the spirit of Wilderness. Reality is that the 64 Act should be reviewed and brought in line with modern times. As it stands, and more importantly how it is currently interpreted, it makes less and less sense every day.

Sarah, haven't we been through this before a time or three?

There are a variety of citations. If you disagree, perhaps you can demonstrate otherwise.

From a 2004 Solicitor's opinion (http://www.nap.edu/openbook.php?record_id=12667&page=108):


... the Park Service is mandated by the Wilderness Act, the Point Reyes Wilderness Act and its Management Policies to convert potential wilderness, i.e., the Johnson Oyster Company tract and the adjoining Estero, to wilderness status as soon as the non coiiforming use can be eliminated.


According to park documents (http://www.mmc.gov/drakes_estero/pdfs/nps_swilderness_51107.pdf) House Report 94-1680 specified the intent to designate the estero as wilderness:


"it is the intention that those lands and waters designated as potential 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 according to a Federal Register listing (https://www.federalregister.gov/articles/2012/12/04/2012-29381/designation-of-potential-wilderness-as-wilderness-point-reyes-national-seashore):


94, approved October 20, 1976, designated 25,370 acres in Point Reyes National Seashore as wilderness and further identified 8,003 acres as potential wilderness additions in maps entitled “Wilderness Plan, Point Reyes National Seashore”, numbered 612-90,000-B and dated September 1976. The maps showing the wilderness area and potential wilderness additions are on file at the headquarters of Point Reyes National Seashore, Point Reyes Station, CA 94956. Although Section 1 of 94 identified the number of acres of wilderness and potential wilderness, the maps filed with the committee as required under Section 2 of the legislation confirms that the actual acreage of the lands and waters was 24,200 acres of wilderness and 8,530 acres of potential wilderness.

Section 3 of 94 provided a process whereby potential wilderness additions within the Point Reyes National Seashore would convert to designated wilderness upon publication in the Federal Register of a notice that all uses of the land prohibited by the Wilderness Act (88) have ceased. On November 18, 1999, a notice was published in the Federal Register that 1,752 acres of potential wilderness had converted to designated wilderness as a result of the cessation of prohibited uses. 64 FR 63057.

94 identified much of Drakes Estero as potential wilderness, and not as designated wilderness, due to the presence of a commercial shellfish operation in the estero. The authorizations for the commercial shellfish business operating in Drakes Estero expire on November 30, 2012.Accordingly, all uses prohibited under the Wilderness Act within Drakes Estero have ceased as of 11:59 p.m. on November 30, 2012. Drakes Estero is entirely in federal ownership. Pursuant to Section 3 of 94, publication of this notice hereby effects the change in status of 1,363 acres of Drakes Estero, more or less, from potential wilderness to designated wilderness. A map showing this change is on file at the headquarters of Point Reyes National Seashore, Point Reyes Station, CA 94956.

I don't disagree that the authors of the Point Reyes Wilderness Act maintain they didn't intend for the oyster company to cease operations. But the House report and interpretations of it seem to disagree.

Letter from Salazar. The bottom of page 2 and top of page 3 mentions the pertinent part of the Wilderness act with regard to potential wilderness.

Zeb, you raise some valid points. Question: How would you bring the '64 Act "in line with modern times"?

Zeb and Kurt--With the current make up of the Congress, I would not open any previous environmental laws to "mondernization." What you are likely to get is the same kind of legislation that the House has passed to gut the Antiquities Act. The best way to do this would be to review and modify agency policies.

Rick

Rick,

That may be true. Most of the rules guiding Wilderness policies are based on agency interpretations, including the banning of bicycles. I'm pretty sure that the 64 Act sponsors would be appalled by how the Act has been interpreted.

We have indeed been through this a few times, and as I recall you always cite only Park Service documents. Given the clear record of inappropriate behavior by the Park Service at Point Reyes with respect to the oyster farm, it seems wise to seek other sources. It seems especially important not to assume that Park Service sources from 2004 onward are correct, given that 2004 is when the switch took place at PORE, from backing the oyster farm to working against it.

The 2004 Field Solicitor's opinion was most likely written at the request of Neubacher. He needed something, since the GMP supports the oyster farm. (The GMP says, about Natural Resources Management: “to manage seashore activities in the pastoral and estuarine areas in a manner compatible with resource carrying capacity,” and specifies “To monitor and improve mariculture operations, in particular the oyster farm operation in Drakes Estero, in cooperation with the California Department of Fish and Game.” It says, under Cultural Resources Management, "to monitor and support productive land uses and activities which are consistent with historic patterns," and specifies “to ensure that agricultural and maricultural activities are consistent with the historical evolution of land and water use in Point Reyes.”)

Judge Watford’s dissent includes an excellent, detailed review of the legislative history, which he underlines with: “The view expressed by these speakers—that continued operation of the oyster farm was fully compatible with Drakes Estero’s designation as wilderness —was not some wild-eyed notion. It was firmly grounded in the text of the Wilderness Act itself. The Act generally bans commercial enterprise within wilderness areas, but does so “subject to existing private rights.”

Judge Watford has this to say about the Solicitor’s opinion (“a legal analysis performed by the Interior Department”):

“Shortly before Drakes Bay’s purchase of the oyster farm closed, the Park Service reiterated its view that, based on a legal analysis performed by the Interior Department, no new permits authorizing oyster farming in Drakes Estero could be issued. The Department’s legal analysis concluded—bizarrely, given the legislative history recounted above—that by designating Drakes Estero as a potential wilderness addition in the Point Reyes Wilderness Act, Congress had “mandated” elimination of the oyster farm. The Department never identified anything in the text of the Act to support that view; it cited only a passage from the House Report accompanying H.R. 8002. But that passage “is in no way anchored in the text of the statute,” Shannon v. United States, 512 U.S. 573, 583–84 (1994), and thus provides no support for the Department’s interpretation of the Act.”

So much for the excerpt from the House Report. Judge Watford comments further on that excerpt:

“Even taken on its own terms, however, the passage from the House Report does not support the Department’s interpretation. The passage states in full: “As is well established, it is the intention that those lands and waters designated as potential wilderness additions will 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.” H.R. Rep. No. 94-1680, at 3 (1976) (emphasis added). But the oyster farm was not an “obstacle” to Drakes Estero’s conversion to wilderness status, and no one in Congress ever expressed that view. To the contrary, as discussed above, all indications are that Congress viewed the oyster farm as a beneficial, pre-existing use whose continuation was fully compatible with wilderness status.”

Watford also says:

“What does the majority offer in response to this analysis? Some hand waving, to be sure, but nothing of any substance. Most tellingly, the majority never attempts to argue that the Interior Department’s interpretation of the Point Reyes Wilderness Act was correct. Nor could it make that argument with a straight face given the Act’s clear legislative history, which the majority never attempts to address, much less refute.”

There is much more detail in the dissent, which begins on page 37 of the decision. Thanks for providing a link to the decision so people can read it for themselves.

Sigh.

The Solicitor's report was not NPS, House Report 94-1680 is not an NPS report, the 9th Circuit's ruling was not engineered by the NPS (unless you can prove it was, as you imply the Solicitor's 2004 opinion was).

As for Judge Watford's thoughts, he was in the minority, no? The two other judges disagreed with him, no? In fact, in the majority opinion, Judge McKeown wrote:


Regardless of the accuracy of the dissent’s recitation of the legislative history of the 1976 Act, the dissent’s citation to congressional statements in support of designating Drakes Estero as wilderness in 1976 do not reliably reflect that the Congress that enacted Section 124 was of the dissent’s view that Drakes Bay’s operations were “not an ‘obstacle’ to converting Drakes Estero to wilderness status.” The dissent’s position would rewrite the clause to something like “notwithstanding the Department’s policy view that oyster farming can be incompatible with wilderness designation.” The dissent cites nothing from the text, or even the legislative history, of Section 124 to support this interpretation.


And in a footnote to that comment, she wrote:


The dissent’s conclusion that “[c]ontinued operation of the oyster farm is fully consistent with the Wilderness Act” is particularly puzzling given that Drakes Bay itself argued that wilderness designation of Drakes Estero was not possible while the oyster farm’s commercial activities continued. Moreover, there are a variety of Park Service management criteria that inform the question of what kinds of activities are “consistent” with wilderness designation under the Wilderness Act. The dissent’s reliance on decades-old legislative pronouncements about the Johnson oyster farm for the proposition that Section124 was intended to foreclose the Secretary from considering his department’s own policies with regard to Drakes Bay stretches even the most liberal use of legislative history to the breaking point.


Bottom line, I have no horse in this race. Just following the record.

Sarah--In my 30+ years with the NPS, I never heard that a Solicitor wrote something that the Superintendent wanted. They work for the Department, not the NPS, and write opinions based on law, not personal relationships. Do you suppose Watford wrote on behalf of Lunny? That is just as absurd.

Rick

Kurt Repanshek:
y_p_w, are the High Sierra Camps in "potential wilderness," or officially designated wilderness?
Potential. I'm sure of it.

http://www.nps.gov/yose/parkmgmt/volgelsanghsha.htm

Operation and maintenance of the utility systems that serve Vogelsang High Sierra Camp and the adjacent Backpacker’s Camp have proven challenging. These facilities are subject to many increasingly stringent public health, water quality, and safety regulations. Compliance with these regulations is complicated by the remoteness of the facilities and designation of the High Sierra Camp as a potential wilderness addition. Projects must be in compliance with the regulations and policies established to protect Wilderness values including meeting the minimum requirements for the administration of the area.

From A Sense of Place: Design Guidelines for Yosemite National Park published by NPS:

http://books.google.com/books?id=jnYtkPFPQDYC&lpg=PA206&ots=BDZcoHc7gr&dq=high%20sierra%20camp%20merced%20%20potential%20wilderness&pg=PA206#v=onepage&q=high%20sierra%20camp%20merced%20%20potential%20wilderness&f=false

All of the backcountry High Sierra Camps are in officially designated "Potential Wilderness Additions" that are tightly and permanently confined by the surrounding Yosemite Wilderness boundaries - and therefore can't spread beyond the current footprints.

I could look up the scoping documents on the repairs to the HSCs. If you check the Wilderness.net map of Yosemite, there are tiny spots where the designated wilderness boundary ends that would seem to correspond to the HSC locations.

As for the California Wilderness Act (1984):

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

NATIONAL PARK WILDERNESSS

SEC . 106. The following lands are hereby designated as wilderness in accordance with section 3(c) of the Wilderness Act (78 Stat. 890; 16 U.S.C. 1132(c)) and shall be administered by the Secretary of the Interior in accordance with the applicable provisions of the Wilderness Act.

(1) Yosemite National Park Wilderness, comprising approximately six hundred and seventy-seven thousand six hundred acres, and potential wilderness additions comprising approximately three thousand five hundred and fifty acres, as generally depicted on a map entitled "Wilderness Plan, Yosemite National Park, California", numbered 104-20, 003-E dated July 1980, and shall be known as the Yosemite
Wilderness;

(2) Sequoia and Kings Canyon National Parks Wilderness, comprising approximately seven hundred and thirty-six thousand nine hundred and eighty acres; and potential wilderness additions comprising approximately one hundred acres, as generally depicted on a map entitled "Wilderness Plan—Sequoia-Kings Canyon National Parks—California", numbered 102-20, 003-E and dated July 1980, and shall be known as the Sequoia Kings Canyon Wilderness.

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.


There's no guidance in the text of the law. You can check the Point Reyes Wilderness Act or the omnibus wilderness bill that amended it a few weeks later. It's pretty short. If there's anything that instructs what to do about potential wilderness, I haven't seen it. All it says is that potential wilderness will exist.

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

Page 12 has a map of the Merced River from Nevada Fall to the Merced Lake Ranger Station. It clearly marks the Merced HSC as a "potential wilderness addition".

http://www.nps.gov/yose/parkmgmt/upload/Merced-Wkbk-web.pdf

I haven't read the Ninth Circuit opinion, but here is the view of a legal commentator who has:

http://calapp.blogspot.com/

You'll have to scroll down a bit.

All along I've felt that the government has been right on the law but wrong on policy. I.e., both the Wilderness Act of 1964 and the more recent bill specifically regarding the Drake's Bay Oyster Company allow the Interior Secretary to do what she did. It's just too bad that she wanted to do it.

Hi, Rick — I agree with you that modifying agency policies would go a long way to correcting the overreaching interpretations of the Wilderness Act of 1964, which began in the mid-1970s and soon caused even Morris K. Udall and Frank Church to sternly criticize the direction in which the agencies were taking the Act. Today one might fairly apply the adjective "Talibanic" to some of the more draconian agency rules regarding Wilderness. Let's put it this way: no other country in the world has chosen to follow us in the way we manage our wildlands. Quite the opposite situation of our national parks model.

But as I'm sure you know, no bureaucracy ever wanted to create trouble for itself by tinkering with such an emotionally charged issue as Wilderness management. I've communicated with the Forest Service's employee in charge of all Wilderness about internal FS documents from circa 1981-1983 that showed the agency at times wanted to allow bicycles in Wilderness but went back and forth, eventually landing on the chessboard square of "no," seemingly almost at random, given that there was no meaningful public input and only a rather cryptic internal dialogue. And it is on the "no" square that the king has been sitting ever since. Placing the king in check and forcing it to move has proved to be impossible, although some have tried, including me.

Eventually the Act will lead to such mammoth contradictions that a critical mass to reform it will sweep over Congress and it will be reformed. But I understand why you and others do not want that to happen in our lifetimes.

The ACLU website, somewhat to my surprise, has an unexpectedly interesting blog commentary on the nature of bureaucracies. Though it talks about the national security state, it applies quite well to the land management state too, in my opinion:

https://www.aclu.org/blog/technology-and-liberty-national-security-criminal-law-reform/how-think-about-national-security

My issue is that Section 124 specifically noted that a specific NAS study was to be considered in making the decision, and I haven't seen anything that suggests that Salazar considered it. In his memo he only referred to NPS studies.

Also - Ken Salazar is a "he". The current Secretary of the Interior is a "she" though.

Didn't Sally Jewell adhere to Ken Salazar's decision? I assume she could have overturned it once she assumed office.

Even if it's all about him and not her, appellate decisions usually refer to the current secretary, so that's why I said "she." But if he decided and she had no say in it on assuming the post, maybe "he" would be better.

Jewell has recused herself.

Kurt, you don't seem to be responding to the substance of my point. Perhaps I was unclear.

I stand corrected on the "Solicitor's report" (which is not a report but a short letter from field solicitor Mihan) being from Interior and not NPS, but that's hardly a crucial distinction. The point is that it's very thin gruel when debating the legislative history. It was written in 2004 for dubious reasons, and relies solely on the one sentence from the House Report that is your second example.

As Judge Watford explains, that sentence from the House Report has been misinterpreted by the Park Service (most likely intentionally). Judge Watford provides a legal citation in support of his point that the sentence from House report and thus the Mihan letter "is in no way anchored in the text of the statute."

The link you provided for the House Report is a link to a Park Service document that contains that same sentence, not to the House Report itself.

I made no claim that the 9th Circuit decision was engineered by NPS and I can't imagine how you got that impression.

When it comes to the legislative history, it is absolutely appropriate to pay attention to "decades-old legislative pronouncements." That IS the record. The Park Service is trying to rewrite that historical record, as Judge Watford has, appropriately, pointed out.

Judge McKeown's quote above does nothing to dispute Judge Watford's analysis, and in fact it fits his characterization of "hand-waving" quite nicely.

Whether or not Judge Watford's analysis is correct is entirely separate from the fact that his was the minority opinion. I'm not arguing from authority here, I used Judge Watford's quotes because I think they provide an excellent summary of the relevant facts.

I am not challenging your objectivity, Kurt. I am challenging your facts. The House Report, the Mihan letter, and the blather Salazar left in his wake, do not make up "the record." There is a real legislative history here, and every serious analysis of that history supports the reading that the oyster farm was always intended to stay.

Rick, with all due respect, the fact that you haven't heard of something happening before doesn't mean it has never happened. I don't imagine you have previously heard of the Park Service falsifying scientific data in an EIS, yet that has happened at Point Reyes.

As Judge Watford explained, the Mihan letter was not written based on a correct interpretation of the law. That alone could be simply the result of a poor analysis.

But the timing and the source are highly suspicious. Why would this letter all of sudden be written by the local field solicitor next door? A letter that just happens to support a brand new position taken by the superintendent, a position entirely at odds with previous actions and contrary to the policies in the Seashore's GMP? The Neubacher theory is the only one that makes sense.

Sarah--You seem to place an inordinate amount of weight on Judge Watford's dissent, which, after all, was the minority opinion in this decision. But, maybe that's because you agree with it and not the majority opinion.

Rick

On the topic of the High Sierra Camps in Yosemite, historian Laura Watt, an environmental studies professor at Sonoma State, has researched those very questions. She found that they do not have a specific clause grandfathering in that commercial use, which is indeed in an area designated potential wilderness.

Does anyone have a good recipe for oysters?

Well, they're going to cost more. It's been reported that closing Drake's Bay is forecast to raise the price of oysters in California something like 30% or 40%. This is all in service of a dreadful mistake in crafting and writing the Wilderness Act of 1964, namely the ahistorical idea that wildlands had been left "untrammeled" by humankind and needed to stay that way. Of course they were "trammeled," to use the scriptural verb, by native Americans, hunters, miners, trappers, more miners, prospectors, oilmen, more prospectors, cattlemen, etc., etc. Their activities may or may not have been environmentally benign by modern standards, but that is beside the point about the nature of Wilderness; it is relevant only to what ought to be allowed today. From all evidence, the oyster farming at Point Reyes has a minimal environmental impact.

Had it been written better, the Wilderness Act would not only have allowed but encouraged traditional cottage industries to continue in Wilderness, so as to preserve the true nature of humans' interaction with the land. Which is what Cape Verde does in its Fogo National Park, which is wild indeed (it's an incredible moonscape) but in which a small wine-making village continues to produce good-quality wines from the harsh volcanic soil.

http://revistaadega.uol.com.br/artigo/vinhos-cabo-verdianos-serao-exportados-a-portugal-e-eua_3256.html

(You can run the URL through Google Translate to get a rendition in passable English.)

Just a devil's advocate's response, imtnbke, but aren't there already plenty of examples showcasing "humans' interaction with the land"? Wasn't the intent of the Wilderness Act to preserve..wilderness?

But it's not to showcase anything—that's just the point. Showcasing is part and parcel of our inadvisable treating of wildlands like museums. That is what we mistakenly do in both Wilderness and the national parks. One should allow an organic and holistic interaction between people and the land under much less straitened circumstances than the severe Wilderness Act of 1964 allows for. If people were fur-trapping in northern Michigan in 1650, then let them continue (subject to reasonable regulation, which would certainly mean no roads and quite likely no motors either) if it's economically viable, even if the land is designated a Wilderness and/or a national park. This might even interest the non-museum-going public in the National Park System and Wilderness areas, the absence of which interest is most worrying to the National Park Service these days.

Is there anything more holistic that humans in wilderness without today's modern mechanical trappings? What can be more organic than that?

Are you saying if Native Americans were oystering in Drakes Estero in 1650 that we should continue the practice -- in the same exact way it was done then? Not sure that would resolve the matter at hand.

Just curious.

30-40% increase in oyster cost state-wide. According to "it has been reported".

Do we have a better source?

Rick - If he does - would it make a difference? Unlikely, you would still be against it. The "facts" really don't matter to you.

Kurt, interesting discussion, on the Yosemite High Sierra Camps, I think they are "proposed wilderness additions". The thinking was that if the camps were closed (highly unlikely at this time), the language of the act allowed these areas to revert to wilderness status. Probably emotion on my part, but I do support the closing of the Oyster Farm. this will be the first "marine wilderness" on the California coast. I do see the arguments against the closing, however when I was born in 1940, California had a population of 6 million,now it is 37 million and growing. I do think it is important to set these areas aside. for wild places, so to speak. could be wrong, but the history of the conservation movement is a tremendous legacy for all of us.

Rick B., here are a couple of articles, alhough they mention a 40% loss in California oyster production, not the precise price increase figure I recalled hearing:

http://www.mercurynews.com/ci_22620185/drakes-bay-closure-could-increase-oyster-prices

http://www.sfgate.com/bayarea/article/Farm-sold-40-percent-of-state-s-oysters-4079245.php

Kurt, I'd say people working on the land in harmony with it is easily as holistic as the idea of "humans in wilderness without today's modern mechanical trappings," who, if any exist, would be there to appreciate the sights and leave after a few days. But I don't know of many humans in wilderness operating that way. Most I've seen, if not all, are loaded down with the same gear I and/or my backpacking partner were in the Wind River Mountains of Wyoming three weeks ago. Ultralight stove with isobutane gas, personal locator beacon, ultralight tent, Steripen for water sterilization, Swiss army knife, highly engineered boots, freeze-dried food, hiking poles with shocks (arguably a form of prohibited mechanical transport), etc. It seems to me that Wilderness travel these days means either backpacking with products that represent the acme of engineering or being carted around on someone else's horse or mule and paying a lot of money for that privilege. John Muir and his wool blankets disappeared long ago.

Thanks, imtnbike. That's why I asked. "It has been reported" isn't very precise, and as you state, the two articles you cite don't back up the original comment.

Personally, I have no horse in this race, other than being a fan of the NPS in general. I just hate logical fallicies in rhetorical back-and-forths.

Imtnbke, good point, you are right, much very hi-tech equipment on the wilderness trails these days. On a recent backpack I met a gentleman doing the Pacific Crest Trail that had a mini solar panel on his ballcap. Interesting guy, he told me he was able to keep his smart phone charged and it allowed him to use all the features, google maps, etc. He also found it useful as he was able to call ahead for room reservations, etc, when he sidetracked for resupply. His pack, without any equipment loaded, weighed only 13 ozs. Pretty amazing.

imtnbike, those items you mention, interestingly, are so we can have an even lighter impact on the wilderness landscape. Stoves so we don't chop down trees and leave fire rings full of charred wood, ultralight tents that take up a lighter footprint than the old canvas wall tents, freeze-dried foods that don't require a lot of cooking with its inherent scraps and morsels of food that gets scraped from pots and pans and dumped in the woods, etc.

So yes, in one hand it's not just you and a wool blanket, but those items make our travels lighter on the landscape, no? And sleeping on the ground is still sleeping on the ground, whether you have a wool blanket or a sleeping bag;-)

Hi, Kurt — I know that. I just hope people don't unduly romanticize themselves while they're out there comforted by some of the most advanced equipment civilization has to offer. While I was in the Wind River Mountains, I discovered I had cell phone reception at a high point, and by making a couple of brief phone calls rather delighted in reminding myself and anyone who might happen to wander by that we are all of us tightly tethered to civilization while out in the wild.

Rick, thanks for your reply. Even I had managed to relocate the 30% price increase reference I recalled, I wouldn't put too much stock in it, because the laws of economics dictate that increased profit potential would draw other producers and the price would drop over time. I put more reliance on the 40% production drop reports, since California's coast is so heavily regulated that I would question where another oyster farm could open between Oregon and Mexico. By the way, I haven't seen anything in this thread that strikes me as containing a logical fallacy. Disagreements, yes, but bad reasoning, no.

I'm not necessarily alarmed that there will be a huge price spike, but there will be issues. I believe most of the oysters consumed in California come from Washington state or Oregon. Their operations are huge with Puget Sound the center of the oyster growing. Still - there have been recent closures.

However, you'd think that the other oyster farms along the West Coast would be OK with a competitor being eliminated, but they're not. The nearby oyster farms with retail operations contract with DBOC to supply them when they can't harvest after heavy rains. Hog Island has oyster bars in Napa and San Francisco. Both Hog Island and Tomales Bay Oyster operate even if they don't harvest their own oysters. I've heard of several oyster farms issuing statements of support for DBOC, including in Washington. It's not a huge community, and they apparently don't like the precedent that an oyster farm can be shut down in what's really a policy decision.

In all the proceedings, the other farms are watching closely at all of the regulatory actions. The California Coastal Commission issued a cease and desist order declaring non-triploid Manila clams to be an invasive species as well as requirements to remove Didemnum vexillum, even though there appears to be no authority for them to do so under the Fish and Game Code. That's the authority of the California Fish and Game Commission.

And there's really no way that the area is going to recoup the loss of these leases. The oyster farms in Tomales Bay have been trying to get new leases for decades. Hog Island decided to try in Humboldt Bay to build their hatchery since they couldn't get new leases in Tomales Bay.

Just an article that shows the groups supporting the closing of Drakes Bay Oyster Company aren't always pure as the wind driven snow. Significant overreach, really. Wilderness advocates (including myself) should discover the basic acceptability of this very symbiotic relationship with the environment.

Drakes Bay Oyster Company deserves to stay in operation and adds to Point Reyes NS on many levels.

http://harpers.org/blog/2013/07/the-west-coast-oyster-war/

Enjoy them while you can; looks like all the oyster farms will be going out of business:

http://apps.seattletimes.com/reports/sea-change/2013/sep/11/pacific-ocean-perilous-turn-overview/

Eh, not really. The rehearing request isn't going so well. One of the lawyers for DBOC is venting. Though why he is venting against NPCA instead of NPS or DOI I'm not sure, except they filed an amicus brief in favor of shutting DBOC down.

Here are all the court documents if you are interested.