07-10-12 NAS Review of dEIS and Atkins Peer Review – Public Comment Period

I took the opportunity to travel to Irvine to have my 5 minutes in front of the new NAS NRC panel on Tuesday, July 10, 2012, University of California Irvine, Beckman Center.

Below is their statement of task with a link to the full document followed by my comments which have now become part of the public record. If you compare what I have written below with the document posted on their site, you will notice there have been a few additions.

Upon returning from Irvine, I was reminded that reports over the past seven years started out saying one thing in draft form and ended up stating something, if not everything, entirely different. I have taken time to reflect on that fact.

Prior to the  meeting we found the panel was not presented with the entire MMC report. All the appendices had been omitted.  As you know, Dr. Tim Regan re-wrote the entire MMC report coming to entirely different conclusions than the panel scientists who did the research. Furthermore, Dr. Regan relegated all of the scientists’ findings to  “Appendix F” . The NY Times wrote an article on it and called it “A Tale of Two Reports” .

If I had it to do over again I would caution the current panel, not to let them “Appendix F” their report. In other words, I would caution them, “Do not let them Appendix F you.”

“Statement of Task: (from http://dels.nas.edu/global/osb/DrakeEstero )

[The] … committee will assess the scientific information, analysis, and conclusions presented in the …(DEIS) … and evaluate whether the peer reviewby Atkinsis fundamentally sound and materially sufficient…. The committee … will restrict its findings to the strength of the scientific arguments in the DEIS

Emphasis added is mine.

Below, for the most part, is what I told the panel in my five minutes and is posted on their website. The video of the entire 4 hours, is now available on their website, and here on this blog under the heading “Video, Slides and NewsLinks”.

Questions of “Fundamentally Sound” and “Materially Sufficient” 

(Note: The above terms are not quantified, defined, nor are they used anywhere in the NEPA protocols or the NPS protocols. For the new review to have any substance, they must be objectively quantified and fully defined.)

1998: An Environmental Assessment (EA) and a NEPA process to look at tearing down all the buildings and rebuilding all of the facilities at DBOC resulted in a FONSI (Finding of No Significant Impact) rendering the current dEIS unnecessary in its entirety.

Why was that data withheld from the current panel?


I have 3 Sons in Law, 2 with PhDs, 1 is a world-renowned research scientist in Geophysics, currently at BostonUniversity, Uli Faul. Based on what has happened:

I Asked Uli: When reviewing another scientist’s work, is it typical to have to verify sources for information provided in tables, to have to verify actual quotes, or to have to verify footnotes?

Uli Responded: No, of course not. They are fellow scientists, we have no reason to think they wouldn’t provide the truth.

 Relevance: The current panel must verify sources, quotes, footnotes.

  1. Tables in the September 2011 dEIS for sounds produced by DBOC state specifically
    • the “source” is DBOC.
    • the decibel levels are Representative” of DBOC operations.
  2. The June 2011 draft copy of the dEIS identifies the sources as correctly as
    • 1995 police Jet Ski test
    • A Federal Highway Construction Report on Heavy Equipment.
    • The decibel levels are Estimates” of DBOC operations



WHY was this data withheld from the public?


Oct 2011: At an NPS Open House on the dEIS, I spoke with Tracy Hamm, an employee of VHB, the contractor hired to prepare the dEIS.

I ASKED: There is so little data yet so much “hypothetical potential future impacts”. Didn’t that concern you?

SHE RESPONDED: “That’s how “EIS’s are done; it is all about potential impacts since we don’t know what will happen in the future.”

I ASKED: “Really?” What about the science?”

SHE RESPONDED:  “Well that’s how they told us to interpret it.”

She is listed in the dEIS as the person responsible for wilderness, document production, and soundscape.



2007: Sen. Fein & NPS’s Mary Bomar instructed the NPS to have NAS review the NPS science 2009: The NAS produced their report drawing three conclusions:

  1. NPS misrepresented their own data (see quote A below)
  2. NAS found No MAJOR environmental impact
  1. In the Harbor Seal section of that report Dr. Thompson, on the July 2012 ad hoc committee, wrote, in essence, the controversy could be cleared up if we had time and date stamped photos of seals and oyster boats. (see quote B below)

A) May 5, 2009 — Report from the National Research

Council finds National Park Service “selectively

presented, over interpreted, or misrepresented

available scientific information on DBOC operations

by exaggerating the negative and overlooking

potentially beneficial effects” no significant impact

from oyster operations, recommends moving forward

with cooperative adaptive management approach. NPS agrees

B) “…the focus on these observations…would require a

data collection system that could be independently

verified, such as time and date stamped photographs.

This verification is especially important in

circumstances where there is an indication of a

source of disturbance that could lead to a regulatory

action, as was the case with disturbances attributed to DBOC.”


2010: Remarkably, a year after the original NAS report was published, Dr. Corey Goodman uncovered a three and one half year hidden camera program, instituted by the PRNS to provide time and date stamped photographs – just what Dr. Thompson stated would clear up the controversy.

Begun in May of 2007, continuing throughout the first NAS review, and concluding a year after the first NAS panel report was published,  they exactly the data Dr. Thompson requested.

A camera, strategically placed by Don Neubacher (then director of Point Reyes National Seashore) and Dr. Sarah Allen (one of the three authors of the original yet debunked report) captured activity by the Oyster Workers & Oyster Boats.

281,000 time and date stamped photos taken in one-minute intervals over a twelve-hour period every day each year during the three-month harbor seal pupping season.

Detailed logs and analyses of those photos had been compiled by park service volunteers.

Even after having been told it would clear up the controversy, why was this data withheld ?

When asked by field solicitor Gavin Frost, why the NPS withheld the data, the NPS explained that they “meant to but, forgot”.

Gavin Frost excused this oversight as “intended disclosure.”



2010: a senate appropriations bill, instructed the NPS to follow the conclusions of the 2009 NAS review but the NPS did not comply.

  • NPS dismissed the entire NAS review in one sentence stating: the NAS had not defined the word “MAJOR”.

Why didn’t they ask for a definition?

  • Additionally, the NPS summarily dismissed the photos in one sentence stating there were no protocols for taking photos.

  • If the photos showed disturbances by the oyster boats and oyster workers, would they have been included?

  • Does lack of protocols invalidate photographic evidence, logs, and analyses?

  • If protocols are a requirement for acceptable data, then

    • Where are the protocols for the soundscape and the use of a 1995 report on a 70 HP police Jet Ski as representative of 20 HP outboard motor oyster boat?

    • Where are the protocols for an oyster tumbler being equivalent to a rivet buster?

    • Where are the protocols for a hand held drill being equivalent to a concrete busting jackhammer?

In 2009, the first NAS committee concluded “no major impact” so one has to ask,

Is there data that exists today that the first NAS panel didn’t have in 2009?

a)     If so, then why wasn’t it previously disclosed?

b)    If so, why should we believe this new data given the kinds of data produced by the NPS?

There are three kinds of data the first panel did not have in 2009:

1)     Harbor Seals & Mind Bending Statistics

a)     Dr. Sarah Allen, one of three authors of the Drakes Estero Report (and many if not all of the subsequent versions)

i)        Published in 2007 her own 7-yr study of harbor seal haul-outs within 20 to 100 yards of heavy construction related to the earthquake retrofit of the Richmond San Rafael Bridge.

ii)      Her conclusion: “Harbor seals habituate to disturbances they deem non-threatening.”

iii)    Yet, she claimed disturbance of Harbor seals by DBOC workers and their boats who come no closer than 750 yds from the seal haul-outs.

Heavy construction within 20 – 100 yards 1/5 football field DOESN’T DISTURB HARBOR SEALS

HOWEVER, a 20 HP outboard motor boat 750 yds., 7.5 football fields DOES?

Others of her studies are cited in the Drakes Estero report(s). That study is not.

Why was that study withheld?

b)     Dr. Sarah Allen reported in her 2005 Annual Report on harbor seals at Drakes Estero no change in the harbor seal population and no trends were seen. The annual harbor seal monitoring reports are not cited in the Drakes Estero report(s).

Why were those reports  withheld?

c)      The Marine Mammal Commission report was reported by the New York Times as “A Tale of Two Reports”.

i)        They found the body of the report, written by Tim Regan, has little to do with the panelists’ findings.

ii)      The panelists findings were relegated to Appendix F.

iii)    When pointed out to the current panel, you were unaware of any appendices and asked for copies.

Why were these appendices  withheld from  the current NRC panel?

By the way, the MMC panelists, the actual scientists who did the actual investigation, stated :

  • Appendix F, page 2 “I don‘t think the mariculture operation is incompatible with an objective of having a healthy population of harbor seals in Drakes Estero.” Boveng
  • Appendix F, page 3 “The disturbance data set is likely to be suitable for assessing human and harbor seal interactions, but only over the very long term and perhaps only for disturbance in the aggregate, not for the rate, degree, and effect of disturbance by particular sources. The mode of collecting disturbance observations incidentally to the seal surveys seems rather susceptible to bias from confounding of patterns in the timing of the surveys, with patterns in timing of the various sources of disturbance (i.e., the surveys are non-random samples).
  • There is also reasonable doubt about whether the relation between harvest productivity and disturbance by mariculture activities has been similar under the two operators (Johnson and Lunny) of the oyster farm.” Boveng
  • Appendix F, page 12 “…harbor seals (Phoca vitulina) are hyper vigilant and exhibit disturbance behaviors on a regular basis, often without identifiable stimuli.” Hayes
  • Appendix F, page 25 “As far as effects of disturbance on harbor seals in general, we need to remember that harbor seals are marine mammals that spend the majority of their lives in the water where they forage and hunt the prey they need to catch to make a living and survive, so seals fleeing into the water in response to some type of environmental stimuli is not necessarily bad. Being in the water is actually a seal’s “safe” place where the source of a disturbance can be “evaluated” for its level of threat or risk.” Jeffries
  • Appendix F, page 26 “I would therefore conclude that there is really no reason why oyster farming and harbor seals cannot coexist in a healthy and productive Drake’s Estero ecosystem.” Jeffries
  • Appendix F, page 42 “…this data set cannot be used to either directly or indirectly demonstrate any effects of the oyster farm on harbour seals or to demonstrate the absence of potential threat as restated by Thompson in his presentation to the panel. “ The hypotheses tested by Becker et al are correlational at best and causality cannot be derived due to the limitations of the data as stated above.” – Kingzett

 Why were these findings withheld from the current panel?

2)     The Volpi report – The FAA instituted a two-month study of sound recordings taken at the estero by a strategically placed microphone that ran concurrent with the hidden camera program.

a)     The microphone and the camera within feet of each other – unobstructed line of site, unobstructed sound path – I showed you the photo of it and it is included in the Volpi report as well as in Dr. Goodman’s submissions to this panel.

b)     The NPS summarily dismissed the audio evidence of no impact by oyster boats and oyster workers claiming a bluff obstructed the sound.

Why was this report withheld?

3)     Soundscape – soundscape did not appear in the first panel review in 2009. Furthermore, soundscape was not presented to you or us the community, and there is nothing in the Academy report, nothing in the Frost report, nothing in the MMC report about soundscape. Suddenly in September of 2011, soundscape is the “major data” in the EIS.

a)     Without going to the estero (as required by NEPA and their own NPS protocols) to take sound measurements of the actual equipment and operations of the oyster farm, the NPS claims in the dEIS

i)        DBOC operates at decibel levels the likes of which, if true,  would travel miles

ii)      DBOC operates at decibel levels the levels at which, if true, normal conversation would not be possible.

Melanie Gunn, who spoke to you today on behalf of the NPS (along with many others from NPS) and Nancy Gates of the NPS,

    • were highly involved in the dEIS.
    • they have toured the estero with Kevin Lunny in the oyster boat.
    • Conversation was held during that tour.

Why was this data withheld?

b)     NPS has protocols for sound measurements HOWEVER, THE  NPS used a measurement they called “Lowest daily ambient level” in table  4-2,  table 4-3, and table 4-4.

i)        Lowest daily ambient level is not among the accepted NPS protocols.

ii)      Lowest daily ambient level is not a NEPA protocol.

iii)    Lowest daily ambient level is not used in the Volpi report.

iv)    Lowest daily ambient level does not exist, it was invented by the NPS for this dEIS only!

Where did this level of measurement come from?

 Why was it used if it is not  the normal protocol?

Why did they withhold this fact ?

Scientists  are data driven – scientists must ask

  • Why does the NPS hide the real data?

  • Why does the NPS keep  misrepresenting data?

  • Why does the NPS withhold data?

  • And of the data given, scientists and the public must ask

    • Is it complete?

    • Is it correct?

      Does it compute?

    • Does it make sense?

    • Does it have anything to do with the facts of the operation of DBOC?


    • Dr. Susan Roberts responded when Kevin Lunny asked her that very question with: “Environ was invited.”

    • Kevin Lunny said he asked the people at Environ if they had received an invitation. They said they had not.

    • Dr. Susan Roberts said, “I guess it must have gone to the wrong person.” (not unlike “intended disclosure” Dr. Roberts may now claim it to have been “intended invitation” .

From withheld data, to misrepresented data, to intended disclosure to having reports in this process start out as one thing and end up entirely different or having the relevant information relegated to an appendix, and now “intended invitation”, we  have seen so much. Haven’t wee seen enough?

I caution the current panel “Don’t let them “Appendix F” your report”.

In other words, don’t let them “Appendix F” you!

Jane Gyorgy


PO Box900

Point ReyesStation,CA94956-0900

415-663-8646 (home)

415-663-8280 (fax)

415-850-4722 (cell)


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