07-16-13 Marin Court Grants a “Motion to stay” pending actions by CCC against DBOC

The Marin Superior Court posted their decision on a ‘motion to stay’ the pending Coastal Commission actions against DBOC on July 16, essentially stating that further actions in the case will be held in abeyance until after the federal court decision on motions in the case brought by Drakes Bay Oyster Company against the National Park Service.  NPS has been trying to eliminate the oyster farm for almost a decade, using false science, fabricated claims and falsified data, which the Times has covered extensively since the beginning of the controversy in 2007.

[Phyllis] Faber* pointed out in the transcript of the recent Marin Superior Court hearing, that statement-after-statement s made by the California Attorney-General’s office, representing the Coastal Commission, were patently false, and were contradicted by the CCC’s own record, well-known to them at the time.  The most egregious of these is already the subject of a complaint of false information made by Faber’s attorneys relating to claims that DBOC had exceeded the harvest levels specified in the 2007 Consent Decree.

According to the Court Transcript of the July 2 hearing, the Coastal Commission falsely claimed that DBOC has increased oyster presence in the Estero from 71,000 oysters to 19 million, telling the Court that this massive so-called “expansion” was a threat to the Estero.  This claim does not stand up to even the most cursory examination.  Deputy Attorney General, Joel Jacobs, presented wildly incorrect harvest figures hopelessly scrambles the units of measurement, and seems totally unaware of facts relating to the 2007 Consent Decree.  Either he has been deceived by his client, does not care that he is misrepresenting facts to the court or has simply failed to conduct even the most basic review of the mariculture and environmental issues and information relevant to the case, including the CCC’s own documents, before making inflammatory allegations before Judge Duryee.

DBOC is mandated to report oyster harvest levels to the agency that regulates the resource, California Fish and Wildlife (formerly called CA Department of Fish and Game) in gallons and pounds.  A simple phone call to CDFW would have given him the correct information.  As for the distorted claim that DBOC grew 19 million oysters, Jacobs revealed that he and the CCC either knew nothing about the resource and how oysters were grown or deliberately misled the Court.   The 19 million refers to microscopic spat, which are induced to grow on oyster shells before being placed in the estero and, industry wide, have a very low survival rate.  To illustrate the physical difference one only needs to understand that 19 million microscopic spat mentioned could easily fit in several large 7-11 ‘Big Gulp’ cups.

More telling, the Coastal Commission had information in their own Record that directly contradicted the very assertions presented to Judge Duryee at the hearing.  At the Commission’s request, harvest data was submitted to the Commission by DBOC back in 2007 and all subsequently reports have been made available to CCC.  The information, data and supporting materials previously submitted to the Commission revealed that DBOC has complied with all harvest levels and reporting. When Jacobs and CCC made claims of massive increase in oyster activity, they should have also told the Court that DBOC operates under boat route maps approved by CCC under the 2007 consent decree, and logs all boat trips with GPS and show no significant change in activity.  Thus, the CCC chain of hypothesis of harm disintegrates completely not only at the first link, but every segment of the chain.

The Times spoke with Zack Walton, one of the attorneys representing Phyllis Faber and ALSA in the case against the Coastal Commission.  In a July 6 letter, Walton asked the Coastal Commission to correct their misstatements, as he had provided all of the shellfish harvest figures as reported to the CDFW and additional requested by the Coastal Commission in the negotiations of the consent decree.  The record shows that CCC inexplicably ignored their own findings and the 2007 Consent Decree in their latest complaint of Coastal Act violations.

The amount of shellfish harvest is regulated by CDFW under the DBOC lease, which states that the maximum oyster harvest is 850,000 lbs. and the records provided to the Coastal Commission show that DBOC harvest levels since 2007 are consistent with the 2007 Decree, with the most recent annual 2012 harvest level of 531,182 pounds.  As Walton pointed out, “They totally contradict the position they took when we negotiated the 2007 Consent Decree”.  More importantly, the California Coastal Commission is barred from regulating mariculture by CDFG, which is the lead State agency not only for oyster harvest but marine mammal protection as specified in Section 30411(a) of the Coastal Act, which clearly states that CCC may not duplicate or exceed CDFW actions.

Faber points out that the Coastal Commission is on the wrong side of science in this issue, and had made conclusionary statements that fly in the face of their previous action, and directly contradict findings by the scientific panels of the Marine Mammal Commission and the National Academy of Sciences.  The reports of the individual scientists on the MMC board who are leading experts in their field, found no incompatibility with the oyster operations and the health of the estero and its seal population.

The CCC conclusionary claims of immediate ongoing environmental harm are merely unsubstantiated opinions, many in direct conflict with their own documents and trip reports.  A CCC Trip Report from 2007 concluded that “servicing the oyster bags located several hundred yards away from the haul-out sites probably would not result in disturbance to the seals”.  This CCC finding was ignored by the CCC today.  The same Trip Report also raised claims of harm to eelgrass, yet fails to note, as did the National Academy Report, that eel grass coverage benefits from the filtering effects of the oyster cultivation and doubled in coverage in the estero since 1991.

Faber’s stand for scientific and ethical integrity and preserving California’s coastline continues today.  She brought the lawsuit against the CCC with great reluctance, as the Coastal Commission has, in the past, been essential to the preservation of the coastline, but in the Drake’s Estero case, they failed to behave in a fair and equitable manner, becoming a law unto themselves, increasingly arbitrary, litigious and capricious. As she states,  “If they continue to lose the trust of all Californians in their ability to fairly protect the public interest, we all lose.”


*Phyllis Faber, one of the founding members of the California Coastal Commission board, who, along with the Alliance for Locally Sustainable Agriculture, has now sued her former organization for their actions against Drakes Bay Oyster Company DBOC and the Lunny family, who operate the historic oyster farm in Drake’s Estero at Point Reyes National Seashore.  Faber is a well-respected scientist for her work in marshland ecology, as well as an environmental icon, responsible for the development of Marin Agricultural Land Trust which has preserved in perpetuity over 30,000 acres of farmland Marin and has served as a model for land trust preservation everywhere.

Speaking of her vital work in the creation of the Coastal Commission, the late Peter Douglas, the first executive director of the Commission, praised Faber for her service. “Throughout the heat of political struggle, Phyllis maintained high standards of integrity and scientific honesty. Her compassion for other creatures with whom we share this planet was matched by her sensitivity to the needs of people and individuals with whom she came in contact. Whenever volunteers were needed in the course of the seven year campaign to enact California’s pioneering and bitterly fought over coastal protection program in the 1970’s, Phyllis was there ready, willing and able to do all she could to help the cause….”

Faber continues to fight for science and integrity and coastal preservation.


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