05-15-2013 FAQ’s About Drakes Bay Oyster Co.

Drakes Bay Oyster Company Answers Frequently Asked Questions:

Q: Do environmentalists support the oyster farm?

A: Yes. Many prominent environmentalists support DBOC, including West Marin environmental elder Phyllis Faber (who helped create Point Reyes National Seashore, as well as the Coastal Commission and the Marin Agricultural Land Trust, among other accomplishments); activist and Omnivore’s Dilemma author Michael Pollan; environmental scientist Dr. Peter Gleick; former board member of Greenpeace and EAC Mark Dowie; renowned conservation scientist Dr. Gary Paul Nabhan; and food and environment writer and Geography of Oysters author Rowan Jacobson. DBOC also has widespread support within the local food movement; an amicus brief in the Ninth Circuit supporting the oyster farm was filed by: Alice Waters, chef-owner of Chez Panisse; Patty Unterman, chef-owner of Hayes Street Grill; Food Democracy Now; the Alliance for Local Sustainable Agriculture, and others in the local, sustainable food movement. DBOC is also supported by the Tomales Bay Association.

Q: Does oyster farming provide positive ecological services that help the environment?

A: Yes. According to various Federal agencies, NOAA, the Army Corp of Engineers, and others, oysters provide valuable ecological services to a marine environment, such as improving water quality. Oysters help waterways by eating algae, filtering out particulates and excess nutrients, and creating habitat for other organisms to thrive. One oyster can filter more than 50 gallons of water in 24 hours. The National Oceanic and Atmospheric Administration (NOAA) is actively promoting oyster restoration, including restoring native oysters in the Chesapeake Bay; these efforts are accelerating, especially in Harris Creek, where 22 acres of reefs were built in 2012, and 34 acres are planned for 2013. Oyster restoration is also under way in Florida, California, and Massachusetts, among other places. Only in Drakes Estero is anyone trying to remove oysters from the water.

Q: NPS claims that DBOC harms birds, water, and wildlife—is that accurate?

A: No. NPS claims of environmental harm are not accurate. The eel grass in the Estero is very healthy, having doubled since the early 1990s. Allegations that the oyster farm causes harm to seals, to eelgrass, to birds, or to water quality have been shown to be false. The National Academy looked at NPS science on two occasions – and found it lacking both times.

Q: Under California and Federal Agreements, is DBOC allowed to farm past 2012?

A: Yes. The State of California renewed their permit to grow oysters in Drakes Estero in 2004 – and the new permit goes to 2029. The renewable permit with the National Park Service reached term in 2012. DBOC submitted a request for a new permit in 2010. All leases for agriculture and mariculture at Point Reyes were for a specified term and are renewable. After NPS incorrectly claimed they lacked the authority to extend the lease, Congress enacted legislation giving the Secretary of the Interior the authority to do so.

Q: Can DBOC stay without setting a bad precedent against wilderness?

A: Yes. The continuation of the oyster farm would not establish any precedent against wilderness. Congress, in 2009, gave the Secretary the right to extend the lease. The very same legislation has a specific provision which expressly states that the provision is not a precedent. Congress already addressed this issue and resolved it four years ago.

Q: Are the oyster farmers careful not to disturb the seals and other wildlife?

A: Yes. In 1992, long before the Lunnys purchased the oyster farm, a multi-agency protocol was established to protect harbor seals. The protocol requires the oyster farm boats, workers, and activities to remain 100 yards from seals during the March-May harbor seal pupping season. As a practical matter, DBOC oyster growing areas are approximately 600-700 yards away (or, six to seven football fields). The protocol has been adhered to. The Marine Mammal Commission has made no recommendation to change or modify it. The State Agency with jurisdiction for oversight at Drakes Estero—the California Department of Fish and Wildlife—has never received a report of a seal disturbance, or any other disturbance of wildlife, by the DBOC.

Q: What is the situation regarding the original agreement between NPS and DBOC?

A: A deal should be a deal. The Lunnys have a bona fide renewal clause in a legally binding agreement. The State, not the Park Service, retained the right to farm shellfish on the Drakes Estero bottoms – and they have extended that agreement until 2029. Congress enacted legislation to extend the lease, not end it. Those agreements should be honored.

As recently as 1998, the Park Service recommended that the oyster farm be fully rebuilt and upgraded. The NPS decision to shut down the farm is very recent, not grounded in law, and fully unjustified.

Q: Who is supporting DBOC in its lawsuits?

A: DBOC is honored to have the support of four different law firms, all of which are representing the oyster company pro bono. Our lawyers are Peter Prows and Lawrence Bazel of Briscoe, Ivester & Bazel LLP in San Francisco; Amber Abbasi of Cause of Action in Washington, D.C.; Ryan Waterman and S. Wayne Rosenbaum of Stoel Rives LLP in San Diego; and Zachary Walton of SSL Law Firm LLP also in San Francisco.

This is a case of abuse of power. If the National Park Service can do this to the Lunny family, then our nation’s system of law and policy is at risk. A team of pro bono lawyers have come together to support DBOC because of the serial violations of law and policy. Our legal team believes that as legal professionals they have a special obligation to help those who cannot afford the services of a lawyer, and their firms ask all of their lawyers to devote a portion of their practice to pro bono work.

Q: What is the current status of the federal lawsuit challenging Secretary Salazar’s denial of a new Special Use Permit to Drakes Bay Oyster Company?

A: On February 25, 2013, just three days before DBOC would have been forced to stop operating, the Ninth Circuit granted DBOC’s emergency motion for an injunction pending appeal. In granting this rare form of relief, the Ninth Circuit found that DBOC’s appeal presented “serious legal questions” and that DBOC had proved that the “balance of hardships tips sharply in [DBOC’s] favor.” Because the Ninth Circuit granted an injunction pending appeal, DBOC is allowed to continue to grow and sell oysters while the court considers the merits of its appeal.

On May 14, 2013, a three-judge panel of the Ninth Circuit Court of Appeals heard oral arguments on DBOC’s appeal of the district court’s denial of a preliminary injunction. A decision is expected within weeks.

Q: Who supports DBOC in Congress?

A: Many Congressional Representatives and Senators – and multiple committees – are following the DBOC story, demanding accountability, and conducting reviews. The Park Service has made false claims, abused its power, ignored contracts and legal agreements, and is threatening to eliminate jobs, shutter a small business, and do serious harm to the local shellfish market. These are not partisan issues. Senator Feinstein submitted her first set of questions about DBOC in the Fall of 2006. Senators in shellfish-growing regions are growing increasingly concerned. DBOC is deeply appreciative of the interest of all members.

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