10-22-13 Bagley & McCloskey Amicus Brief

Bagley and McCloskey et al amici brief 10-22-13

From the Brief (excerpts) submitted by Judy Teichman on behalf of:

*          Former Assemblyman William T. Bagley

*          Former Rep. Pete McCloskey

*          Phyllis Faber, Biologist

*          Mark Dowie

*          Patricia Unterman, Hayes Street Grill

*          Tomales Bay Association

*          Alliance for Local Sustainable Agriculture (ALSA)

*          California Farm Bureau Federation

*          Marin County Farm Bureau Federation

*          Sonoma County Farm Bureau Federation

*          Food Democracy Now

*          Tomales Bay Oyster Company


On the Importance of Local, Sustainable Food

The Drakes Bay Oyster Company is a treasured part of California’s coastal zone in the Point Reyes National Seashore. Shellfish from Drakes Estero are an important part of the San Francisco Bay Area’s world famous local, sustainably raised food movement. Modern environmentalists hail Marin County and DBOC as a model for sustainable agriculture. Consistent with Federal policies supporting increasing the Nation’s supply of sustainably raised seafood, California, which leases Drakes Estero to DBOC, has declared shellfish cultivation there to be “in the public interest.”


On Federal Coast Zone Management Act and California Coastal Zone Policies Require DBOC Be Granted a Permit

“…the majority acknowledges that the court has jurisdiction to review agency action for an abuse of discretion when the alleged abuse “’involves violation by the agency of constitutional, statutory . . . or other legal mandates or restrictions.’”


Contrary to the majority decision, the Secretary’s Order does violate a statutory mandate. The PRNS and DBOC are located in California’s coastal zone. The CZMA requires that federal activities comply with the “enforceable policies” of the state coastal plan “to the extent practicable.”  The District Court found that the decision to deny the Oyster Farm a permit was “agency action.”  The California coastal plan defines aquaculture as agriculture.  With regard to agriculture, the “enforceable policies” of the coastal plan provide that: “. . . lands suitable for agricultural use shall not be converted to nonagricultural uses unless continued or renewed agricultural use is not feasible . . ..”


On (California) State’s Retained Fishing Rights

A. Secretary’s Order Conflicts With State’s Retained Fishing Rights.

The Secretary’s Order directing that DBOC cease cultivating shellfish contradicts the July 11, 2012 statement of intent of the California Fish and Game Commission [F&G Commission] to lease the water bottoms to DBOC at least through 2029, “The Commission, in the proper exercise of its jurisdiction, supports and continues to support the agricultural business of aquaculture, and to that end, has clearly authorized the shellfish cultivation in Drakes Estero through at least 2029 . . . in accordance with the Commission water bottom lease granted to [the Drakes Bay Oyster Company.”

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1 Comment

  1. Tom James

     /  October 26, 2013

    It seems so clear that Congress intended to allow existing activities like oyster farming and cattle and dairy ranches to continue to operate in the wilderness area I’m not sure why we are debating the issue. We have congressmen who were involved in writing the legislation testifying to that fact. End of argument, let the oysters grow! .


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