MARIN’S long-stewing “Oyster War” just got a bit spicier. Now the issue is state sovereignty versus federal jurisdiction.
On Oct. 10, after a bureaucratic tug-of-war, the state’s appointed Fish and Game Commission, with a little push from the governor’s office, got its staff to reluctantly issue a letter supporting continuation of aquaculture in Drakes Estero.
The correspondence emphasized that California long-ago granted the oyster farm a water-bottom lease extending to 2029.
Notably, the letter was copied to U.S. Sen. Dianne Feinstein, an aquaculture supporter.
While oyster farm opponents cloud their arguments with a veneer of science, the dispute has little to do with technical details. It’s all about ideology.
There’s a segment of Interior Department and Fish and Game employees, supported by vocal elements in the environmental community, that perceives their duty is to convert much of federal parklands into wilderness status, untouched by human hands.
Counterclaims that historic agriculture or fishing uses are also valuable components of America’s natural and cultural heritage is blasphemy to pastoral purists.
An alternative philosophy is voiced by elected and appointed officials, such as Feinstein, who sympathize with small scale ranchers, fishermen or, in this case, oyster farmers.
After the staff issued the letter at the commissioners’ direction, ideologically motivated staffers backtracked, dismissing it as just another meaningless bureaucratic communication.
Not so fast. The appointed commissioners understood their duty to protect California’s interest in aquatic resources. Even with bureaucrats downplaying the letter’s significance, everyone understands it will be used by Feinstein and oyster farm supporters.
Their goal is to convince Interior Secretary Ken Salazar that since there are substantial state interests involved, he should override park service staff and grant the Lunnys an extension when their current use permit expires on Nov. 30.
If the extension is denied, an odd maneuver could follow.
As the letter points out, the Lunnys have a valid state-issued water bottom lease. They could continue harvesting oysters. But instead of using their current sheds on park land, they could transport their oysters by water to a new site on private land.
If Fish and Game staff resists enforcing the state’s public interest, a team of high-powered pro bono attorneys, including retired federal Judge Frank Damrell, former Marin-Sonoma Assemblyman Bill Bagley, retired congressman Pete McCloskey and, most significantly, litigation giant Joe Cotchett have prepared a draft writ of mandate compelling the state to assert its jurisdiction over Drakes Estero.
Of course the Feds will dispute any assertion of ongoing state jurisdiction. As the Interior Department isn’t an honest broker but a fierce advocate, a lawsuit is inevitable.
Conceivably, a court could grant the Lunnys a stay, allowing them to remain in business during the multi-year litigation process.
The prospect of such an ugly and interminable jurisdictional dispute could be one factor in motivating Salazar to grant a use permit extension or devise a compromise.
In that event, this allegedly meaningless bureaucratic missive might end up having significant impact.
Columnist Dick Spotswood of MillValley shares his views on local politics every Sunday in the IJ. His email address is spotswood@comcast.net. Read his musings at
http://blogs.marinij.com/spotswood/
Drakes Bay Oyster Company & the National Park Service. Watch the video, "THE FRAMING OF AN OYSTER FARM" at http://vimeo.com/52331881 
Jane Gyorgy
/ October 21, 2012Now there is an idea!