12-07-2012 National Review: A Shucking Shame!

The examples of bad science are abundant. In another report, Goodman discovered that the Park Service had claimed the oyster farm had an adverse effect on red-legged frogs, an endangered species. One problem: Red-legged frogs live in fresh water, not the salt water of the oyster farm. Goodman dug further and found that the Park Service was claiming that the presence of Drake’s Bay Oyster Co. put the red-legged frog at “increased risk for vehicle strikes.” In other words, the government was claiming that an endangered frog might somehow trek toward the seashore, cross a road, and get hit by a car on the half-mile path leading to the oyster farm.

Meanwhile, the Lunnys, working with lawyers from Cause of Action, have launched one final attempt to keep their farm. They say they were not afforded due process and have lost their property through arbitrary action of the government — both claims are constitutional. Furthermore, they allege that Interior violated the National Environmental Policy Act and that the Park Service violated its own rules. On Monday, the Lunnys filed for injunctive relief, which would allow them to continue to operate the farm until a court rules on the case.

To be sure, it’s an uphill battle. The Interior Department has millions of taxpayer dollars at its disposal. Meanwhile, the Lunnys are on the brink of bankruptcy.

 

 

NATIONAL REVIEW ONLINE          www.nationalreview.com

A Shucking Shame

By Jillian Kay Melchior

December 7, 2012 8:10 P.M.

 

Brigid and Sean knew from their father’s face that the news was not good. Over a short phone call, the Lunny family learned that a decision from the federal government would cost them their livelihood, their family home, and their retirement plan.

“I was standing in our little oyster shack, the retail store where people gather,” says Kevin Lunny, the patriarch and owner of Drakes Bay Oyster Co. “The phone rang, and my daughter answered it. She said, ‘It’s Secretary Salazar, for you.’ We all knew, and we were all waiting. None of us could sleep, none of us could physically eat as we were awaiting the decision. Sean’s looking at me. Brigid’s looking at me. About a minute into the conversation, I hadn’t said anything, and they were both in tears because they could see my face. This was not the decision we’d hoped for and prayed for. Walking out of that room and onto the dock where our 30 employees were waiting — you had all 30 of us in tears because it’s a tragedy.”

On November 29, Ken Salazar, secretary of the Department of the Interior, announced his decision not to renew Drakes Bay Oyster Co.’s lease on National Park Service land in Marin County, about 30 miles north of San Francisco. Citing the 1976 Point Reyes Wilderness Act, the National Park Service intends to establish a federally designated wilderness area, the first on the West Coast, on the land where the oyster farm has long operated.

The Lunnys and their 31 full-time employees, many of whom have worked for decades on the family farm, will lose their jobs. Fifteen, who lived on the premises, will also lose their homes. And the company, which has functioned on the property for decades, has only three months to vacate.

One would hope the Interior Department would do everything in its power to preserve a small business unless it had a good reason to do otherwise. As it was, recent legislation explicitly allowed the Interior Department to extend the oyster farm’s lease for ten years. But it looks like the National Park Service wanted the land as wilderness, then set about to obtain it at all costs. Salazar largely avoided mentioning science in his decision — probably because the Interior Department and National Park Service studies measuring the environmental impact of the oyster farm have been riddled with errors.

* * *

Corey Goodman, a 61-year-old professor emeritus at Stanford and Berkeley, is an animated man. When he explains a concept, he gestures often. Though he can explain complicated scientific studies simply, he’s brilliant, a lauded scientist with an impressive résumé that spans the academic, private, and public sectors. Elected in the 1990s to the National Academy of Sciences, the most respected scientific organization in the United States, Goodman became interested in science and public policy, chairing the Board of Life Sciences. He has long expressed his commitment to science before politics.

A California resident, Goodman received a phone call from the Marin County supervisor, Steve Kinsey, in 2007. Kinsey recounted the Park Service’s recent allegations of environmental damage from a small oyster farm with an otherwise impeccable reputation, then asked Goodman to fact-check the government’s claims. Goodman agreed, reviewed the data, and attended a public hearing on Drakes Bay Oyster Co. He had never met the Lunnys, but he was appalled at what he heard from the Park Service officials: Their statements completely conflicted with what Goodman had found.

“I sat and listened to the Park Service that day make the most incredible claims,” he tells National Review Online. “We hadn’t heard exaggeration,” Goodman recalls. “We’d heard things that were simply not true.”

His interest piqued, Goodman embarked on what became a five-year examination of the Interior Department and National Park Service studies of the oyster farm.

“I’ve never seen anything like it,” Goodman says. “It’s a stunning misuse of science by our federal government. . . . They have spent a huge amount of money trying to find harm when it doesn’t exist. . . . The Park Service was determined to get rid of the oyster farm, and they simply made [the environmental damage] up. . . . These people aren’t following the data. They’re following a predetermined agenda.”

At one point, the Park Service issued a glossy brochure claiming that oyster feces were causing significant damage to the eelgrass and fish. Skeptical, Goodman investigated, examining previous data from the California Department of Fish and Game, as well as reports from none other than the National Park Service. Based on those government studies, Goodman discovered that the oyster farm actually had some of the healthiest eelgrass in California, a turf that had doubled in size in the past decade. Goodman also chased down a UC Davis report that showed the fish populations were thriving.

Reviewing the Park Service’s sourcing, he found very specific numbers about tons of oyster feces’ being produced, all referenced to a 1991 study. Diligently, Goodman tracked that report down. He found that while the paper cited by the Park Service did examine the sediments surrounding the oyster farm, it concluded that there was no problem with oyster feces there. The 1991 paper, in turn, cited another study measuring oyster feces, one from 1955 that examined a totally different type of oyster off the coast of Japan. The Park Service had taken these old numbers from a foreign land and claimed they were data from present-day Drake’s Bay Oyster Co.

Finally, Goodman found a 2005 study examining the ecosystem in the water surrounding the oyster farm — funded, oddly enough, with National Park Service money. That report concluded that, near Drakes Bay Oyster Co., the dominant organic sediment was from the lush, abundant eelgrass. In other words, the National Park Service’s claim about damage to the eelgrass and fish was not only poorly researched; it was flagrantly wrong.

“Either it’s just really sloppy science,” Goodman says, “or it’s deliberate. But when you see the same people do the same thing over and over and over again, it’s hard not to conclude intent.”

The examples of bad science are abundant. In another report, Goodman discovered that the Park Service had claimed the oyster farm had an adverse effect on red-legged frogs, an endangered species. One problem: Red-legged frogs live in fresh water, not the salt water of the oyster farm. Goodman dug further and found that the Park Service was claiming that the presence of Drake’s Bay Oyster Co. put the red-legged frog at “increased risk for vehicle strikes.” In other words, the government was claiming that an endangered frog might somehow trek toward the seashore, cross a road, and get hit by a car on the half-mile path leading to the oyster farm.

And recently, the Park Service complained that one of the “major impacts” of the farm was on the soundscape of the surrounding parklands. The Park Service was talking about noise from Lunny’s plastic oyster tumbler, a machine used to sort oysters by size, powered by a tiny, one-quarter-horsepower electric motor. But rather than measuring the sound from the oyster tumbler itself, Goodman discovered the Park Service had used as a stand-in some noise-disruption data from a 400-horsepower cement truck, and later from a portable metal army cement mixer filled with gravel and stone. And — here’s the kicker — the Park Service also assumed an ambient silence level roughly comparable to that of the Vatican library. It was an imaginative report, but it had nothing to do with the sound situation near the oyster farm.

Those are just some of the examples. After examining years of data about the oyster farm, Goodman has reported that the federal government’s reports were repeatedly inaccurate. He has also concluded that “Kevin Lunny is an environmental icon,” “a great steward of the environment,” and “one of the pioneers for organic and sustainable agriculture that also protects the environment.”

Nevertheless, the federal government’s data maligning the Lunnys’ farm was disseminated to environmental groups and immediately publicized. The faulty data were frequently cited by these organizations, even after the National Park Service was forced to admit errors. The Save Drakes Bay Coalition, a group of more than 40 local, regional, and national environmental organizations, all took up the cause of evicting Drakes Bay Oyster Co. from the Park Service land. The Lunnys say that they usually agree with such environmental groups and that the groundless attack caught them off guard.

* * *

Meanwhile, instead of apologizing for its scientific errors and dropping its case, the federal government has resorted to personal attacks when its data were proven faulty, Goodman says. He has also been careful about ensuring that there are no conflicts of interest, receiving no compensation from the Lunny family, Drakes Bay Oyster Co., or any of the other parties involved. He told me that his involvement was initially at the request of the Marin County supervisor, and later at the request of Senator Dianne Feinstein (D., Calif.).

Nevertheless, Goodman says, if he were 25 and a scientific neophyte, “they would have destroyed me by now. . . . They would have just rolled me over.” It’s been hard, though, for the federal government to dismiss a scientist with Goodman’s credentials. But he says he worries about the precedent this case sets.

“I’ve been outraged by the way my government, in the National Park Service and with the seeming approval of the Department of the Interior, has misused science over and over,” he says. “This sends a terrible example throughout the federal government. If they get away with this — which so far they have — it sends the signal to every young scientist throughout the federal government to forget about science, forget about data, find out what your boss wants.”

These botched pseudo-scientific studies should be a central consideration in the battle over Drakes Bay Oyster Co. But the Interior Department has attempted to relegate science to the sideline in this decision. If Secretary Salazar prevails, it will be thanks to a grossly flawed interpretation not only of science but of law.

Back in 2004, the National Park Service had issued an opinion stating that the 1976 Point Reyes Wilderness Act, which designates the surrounding Drakes Estero as a potential wilderness area, did not allow the oyster farm’s leasing permits to be extended.

Senator Feinstein decided to champion the cause of the small oyster farm, crafting a rider to an appropriations bill that explicitly allowed the Interior Department to extend the oyster farm’s lease for ten years, “notwithstanding any other provision of law.” She also directed Salazar to “take into consideration recommendations of the National Academy of Sciences Report.”

What happened then is suspicious, to say the least. At first, the Interior Department began following the procedures outlined in the National Environmental Policy Act: Before it made a decision on the lease, the law required Interior to complete a draft environmental-impact statement, analyze the results, allow for public involvement and comment, issue a final environmental-impact statement, invite public comment again, and then issue the final decision.

However, Goodman and others at the National Academy of Sciences found numerous problems with Interior’s environmental-impact statements, some of which were just described. Furthermore, the Interior Department was running behind schedule. It issued its final environmental-impact statement the Wednesday before Thanksgiving, just days before the final decision on the lease permit for Drakes Bay Oyster Co. was due. That didn’t allow enough time for the period of public comment mandated by the National Environmental Policy Act.

So Salazar simply reinterpreted the law. He claimed that because Feinstein’s rider had given him authority to extend the lease “notwithstanding any other provisions of law,” he was free to deny the lease and disregard the National Environmental Policy Act, too. That would also allow him to make a decision without considering the findings — and many errors — within the environmental-impact statements. It essentially took the science out of the decision.

“That’s a fairly broad grant of authority that [Salazar] is embracing there,” says Amber Abbasi, chief counsel for Cause of Action, a government-accountability group representing the Lunnys. She adds that the history of Feinstein’s rider legislation “clearly indicates that Section 124 was passed to rebut the National Park Service Interpretation of the 1976 Wilderness Act.”

The Lunnys’ interpretation of Feinstein’s rider seems spot-on. After all, Feinstein wrote that she “authored legislation to give the Interior Secretary the option to extend the oyster company’s lease by ten years.” The senator also wrote that “the Park Service has repeatedly misrepresented the scientific record since 2006 to portray the farm as environmentally harmful, and it is my belief that the Park Service is doing everything it can to justify ending the oyster farm’s operations.”

The Lunny family bought Drakes Bay Oyster Co. in 2004, but their history with the land goes back even further. Kevin Lunny was born and raised on a cow-and-dairy farm that overlooked the oyster farm, a child of the Point Reyes National Seashore. When Drakes Bay Oyster Co. went for sale, Lunny was thrilled. “It’s such a beautiful, sustainable food system,” he tells National Review Online.

“It’s extremely healthy for the environment. There’s no feeds, no fertilizers, no chemicals. . . . [We] got very involved and passionate about the local-food movement, organic production, sustainability, and local marketing.”

A committed environmentalist, Lunny wanted to farm oysters in a responsible way. He took out a $300,000 loan to clean the farm and restore the property, using the old Lunny family cow ranch as collateral. As the Lunnys’ reputation for good oysters and responsible, sustainable agriculture grew, the farm became more and more popular. The Lunnys were able to make payments on their loan, maintain their employees, and stabilize their inventory. The farm was holding its own.

The Interior Department’s decision not only kills the farm but also financially ruins the Lunny family. The farm is home to an inventory of baby oysters worth nearly $5 million, all too young to be harvested and sold. Furthermore, with their business shuttered, the Lunnys will have no way to repay the loan they took out to improve the farmland, so they’ll probably also lose the cattle ranch they used as collateral.

“This is not a store where we can have a fire sale, sell everything off the shelves, and go away,” Lunny says. “The Park Service is asking us to kill all these oysters, destroy all this food, get out before they can even be harvested. There’s no way for us to recover our investment.”

* * *

The National Park Service would not take questions from National Review Online, referring reporters instead to the Interior Department. Blake Androff, the Interior Department’s spokesman, would not respond to questions about the numerous scientific errors in the National Park Service and Interior Department reports. He also wouldn’t comment on why the Lunnys were given only 30 days to vacate the premises.

Instead, Androff responded with an e-mailed statement: “The Secretary made his decision after careful consideration of the applicable law and policy. The Department will carefully review the complaint and any related materials that may be filed. The Department does not comment on litigation.”

The Sierra Club, the Environmental Action Committee of West Marin, and the Marin Conservation League — all of whom have made the environmental case against the oyster farm — did not return phone calls by the time this story was filed.

And Gordon Bennett, spokesman for Save Our Seashore, said that, “with all due respect, we’re not opposing the oyster farm. We’re supporting wilderness.” He said that, regarding the oyster farm, “it doesn’t matter if they’re doing good or bad. It’s irrelevant.” He added that it was the Lunnys’ responsibility to prepare for job losses and provide retraining opportunities and severance to the employees who were out of work when the farm was evicted.

Meanwhile, the Lunnys, working with lawyers from Cause of Action, have launched one final attempt to keep their farm. They say they were not afforded due process and have lost their property through arbitrary action of the government — both claims are constitutional. Furthermore, they allege that Interior violated the National Environmental Policy Act and that the Park Service violated its own rules. On Monday, the Lunnys filed for injunctive relief, which would allow them to continue to operate the farm until a court rules on the case.

To be sure, it’s an uphill battle. The Interior Department has millions of taxpayer dollars at its disposal. Meanwhile, the Lunnys are on the brink of bankruptcy.

“We’re saying now, ‘We are dead,’” Lunny says. “It’s a really insensitive and harsh way to throw us out. [It] will completely destroy us.”

Jillian Kay Melchior is a Thomas L. Rhodes Fellow for the Franklin Center for Government and Public Integrity. 

 

© National Review Online 2012. All Rights Reserved.

 

Leave a comment

3 Comments

  1. Pat Forbes

     /  December 9, 2012

    There are too many nuts in he Park service.

    On Sat, Dec 8, 2012 at 7:08 AM, Drakes Bay Oyster Company & the National

    Reply
    • I would suggest there are too many nuts IN POSITIONS OF POWER not only in the park service but also, in organizations such as the NPCA, EAC, Sierra Club, Audubon Society, AND OUR GOVERNMENT! How can these people not see the forest for the trees? Furthermore, how can so few people wield so much power over so many people to the utter disregard of the majority of the people? I thought this was a nation of the people, by the people and for the people. I guess it only applies if “the people” in question are the people with the power. If we ever were a democracy, we no longer are. Time to reread George Orwell’s Animal Farm and you will see who the pigs are this go-around!

      Reply
  2. Dean and Kathie Hart

     /  December 10, 2012

    Salazar is controlled by the extreme environmentalists who want to run small business out of West Marin including the dairy businesses.

    Reply

Leave a Reply

Fill in your details below or click an icon to log in:

WordPress.com Logo

You are commenting using your WordPress.com account. Log Out / Change )

Twitter picture

You are commenting using your Twitter account. Log Out / Change )

Facebook photo

You are commenting using your Facebook account. Log Out / Change )

Google+ photo

You are commenting using your Google+ account. Log Out / Change )

Connecting to %s

%d bloggers like this: