10-25-2012 State Retains Right to Drakes Estero

10-25-2012 Point Reyes Light

State retains right to Drakes Estero


by Judy Teichman

As the pressure mounts and last-minute claims are hurled to destroy Drakes Bay Oyster Farm (DBOF), I urge readers to consider whether the question of what Congress intended when it designated a portion of Drakes Estero “potential wilderness” in 1976 is a red herring that diverts attention from some inconvenient truths. These truths include:

(1) At the request of the Superintendent of the Point Reyes National Seashore, former California Assemblyman Bill Bagley authored a 1965 bill transferring the tidelands within the seashore to the United States. The bill specifically reserved the state’s fishing rights. The Johnson Oyster Company (JOC) was leasing the bottomlands in Drakes Estero at the time. State Director of Finance Hale Champion advised Governor Edmund Brown that the “bill has no financial effect on the State of California.” Citing Fish and Game Code Section 45 in a September 30, 1965 opinion regarding “allotment of State water bottoms for shellfish  cultivation…” the California Attorney General said “[o]ysters and shellfish are fish…”

(2) DBOF’s Reservation of Use and Occupancy (RUO) that expires on November 30, 2012 is for land and facilities located on the shore of Drakes Estero, within the same pastoral zone as the ranches that surround the estero. The reserved land and facilities do not include any portion of Drakes Estero itself. Furthermore, the portion of Drakes Estero designated “potential wilderness” begins some distance out from the shoreline, toward the open sea. Maps are available on the seashore website.

(3) At the time the Point Reyes Wilderness Act was adopted, the National Park Service (NPS), the California Department of Fish and Game (DFG) and JOC all accepted as a fact that the fishing rights retained by the state in 1965 include the right to continue to lease the seashore tidelands for shellfish cultivation. Documentation from the early 1970s establishes that  federal officials at all levels, including the United States Attorney General, also accepted this fact. In effect, the right is an easement on the estero, a property right.

(4) The deed for the land and facilities purchased by the United States in 1972 incorporates the JOC “offer to sell.” Paragraph 11 in the offer contains the 40-year RUO. Paragraph 11 also provides that “a special use permit may be issued for the continued occupancy of the property [after 2012]… provided however, that such permit will run concurrently with and will terminate upon the expiration of the State water bottom allotments assigned to the [oyster

farm].” DBOF’s leases, authorized by the constitutionally established California Fish and Game Commission, extend to 2029.

(5) In a December 12, 1973 letter Acting United States Attorney General Robert Bork approved the JOC deed for the land and facilities on the shore of Drakes Estero noting that the Department of the Interior (DOI) had advised that the retained rights and easements would not “interfere with the proposed use of the land.” The deed and this correspondence are available on the seashore’s website.

(6) The April 1974 Environmental Impact Statement (EIS) for the DOI proposed Point Reyes Wilderness Area specifically reconfirms the contemporaneous interpretation of the fishing rights retained by the state in 1965 described above. It provides that “ . . . control of the lease from the [DFG] with presumed renewal indefinitely, is within the rights reserved by the state on these submerged lands.”

(7) The state’s 1965 grant of seashore tidelands was conditioned on the United States recording the deed for the lands. The DOI recorded the deed in the Marin County Recorder’s Office in September 1974, nine years after the 1965 Act, seven months after the Attorney General approved the deed for the onshore land and facilities, and three months after the EIS on the proposed seashore wilderness area confirmed the federal government’s understanding that the state’s retained fishing rights include the right to lease the submerged lands for shellfish cultivation.

(8) While the proposals for establishing the seashore wilderness area were pending in Congress, DOI Assistant Secretary John Kyl in a September 8, 1976 letter recommended against Congress designating the seashore’s tidelands “wilderness” because of the state’s retained rights hence their designation as “potential wilderness.”

(9) Congress does not have the power to terminate the state’s property right to lease the Drakes Estero bottomlands simply by adopting legislation. If Congress could take ownership of state property simply by adopting legislation claiming it, why did the NPS ask Assemblyman Bagley to sponsor the 1965 bill granting the seashore tidelands to the United States?

(10) For the first time, in oft-cited 2007 and 2008 letters the DFG Director asserts that the retained fishing rights do not include shellfish cultivation because “aquaculture” is defined as “agriculture.” However, the statute cited was adopted in 1982, long after the California legislature reserved what all affected agreed included the state’s right to continue to lease the bottom lands in Drakes Estero for shellfish cultivation.

These “inconvenient truths” establish that the NPS cannot terminate shellfish cultivation in Drakes Estero by refusing to grant DBOF a special use permit to replace the expiring RUO for the land and facilities in the pastoral zone on the shores of Drakes Estero. Regardless of what happens with the onshore facilities, the state retains its reserved right to lease the Drakes Estero bottomlands for shellfish cultivation.

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