10-31-13 WMC – Number of Briefs on behalf of DBOC, by Sarah Rolph

The historic oyster farm in Drakes Estero is one of the resources Point Reyes National Seashore was formed to protect. Indeed, the desire to preserve the farming and ranching here is a major reason Point Reyes is a National Seashore and not a National Park.

 

This is one of the key facts being clarified in the tremendous outpouring of support on behalf of Drakes Bay Oyster Company’s petition requesting a re-hearing of its case in the Ninth Circuit. Eight separate Amicus Curiae, or friend-of-the-court, briefs have been filed, shedding light on legal, scientific, historic, economic, and cultural aspects of the case.

 

Judge Watford pointed out that when Congress was considering the legislation that became the 1976 Point Reyes Wilderness Act, wilderness proponents “stressed a common theme: that the oyster farm was a beneficial pre-existing use that should be allowed to continue notwithstanding the area’s designation as wilderness.”

 

 

Number of briefs now filed on behalf of DBOC totals eight

By Sarah Rolph

 

The historic oyster farm in Drakes Estero is one of the resources Point Reyes National Seashore was formed to protect. Indeed, the desire to preserve the farming and ranching here is a major reason Point Reyes is a National Seashore and not a National Park.

 

This is one of the key facts being clarified in the tremendous outpouring of support on behalf of Drakes Bay Oyster Company’s petition requesting a re-hearing of its case in the Ninth Circuit. Eight separate Amicus Curiae, or friend-of-the-court, briefs have been filed, shedding light on legal, scientific, historic, economic, and cultural aspects of the case.

 

The case is about the oyster farm’s request for an injunction to remain open in the face of Park Service wrongdoing while its lawsuit against the agency proceeds. In September, the Ninth Circuit ruled against the oyster farm in a 2-1 split decision, with dissenting Judge Paul Watford writing a blistering opinion that most observers find extremely compelling. Judge Watford pointed out that when Congress was considering the legislation that became the 1976 Point Reyes Wilderness Act, wilderness proponents “stressed a common theme: that the oyster farm was a beneficial pre-existing use that should be allowed to continue notwithstanding the area’s designation as wilderness.”

 

On Oct. 18, the oyster company filed its petition for a re-hearing by the full panel of inth Circuit judges; known as an “en banc” hearing, the re-hearing is essentially  an appeal of the decision. In its petition, the oyster farm’s legal team points out: “Before it became obsessed with destroying the only oyster farm in Point Reyes National Seashore, the National Park Service had for many decades supported the oyster farm, as did local environmental groups and the community at large.”

 

Farm can continue

That point is underlined in an Amicus brief written by Dr. Laura Watt, a historian and professor of environmental studies at Sonoma State University who is an authority on the legislative history of Point Reyes. Dr. Watt’s interest in the case stems from her doctoral research at the University of California, Berkeley, which examined the evolution of the working pastoral landscape at Point Reyes, after becoming a National Seashore in 1962. She is currently extending this research into a book.

 

The brief signed by Dr. Watt acknowledges Judge Watford’s dissenting opinion and argues Point Reyes National Seashore was established to include aquaculture in its explicit protection of local agriculture – not to erode or remove it. Her brief explains that the wilderness laws would still allow the oyster farm to continue operation.

 

“Nowhere in the legislative history does anyone make a specific objection to the oyster farm or discuss an end to its operation in the future nor did Congress or the public give any indication that wilderness designation would be hindered by the farm’s continued presence,” Dr. Watt writes.

 

Oysters a wilderness experience

In a brief filed Monday, Oct. 28, James Talcott Linford, a San Rafael attorney for the Monte Wolfe Foundation (a California non-profit whose core mission is the preservation of the Monte Wolfe Cabin, a structure located within the Mokelumne Wilderness Area) argues that “Savoring a Drakes Estero oyster is a wilderness experience.”

 

Linford points out that the Ninth Circuit has, in another case, “rejected an understanding of the Wilderness Act that would preserve the wilderness in a museum diorama, one that we might observe only from a safe distance, behind a brass railing and a thick glass window,” holding, rather, that it is the Act’s intent to assure that the wilderness be made accessible to people, “devoted to the public purposes of recreational, scenic, scientific, educational, conservation and historical use.” The brief shows that the historic oyster farm in Drakes Estero is a historical use and can easily be considered a conservation use “given the context of the National Seashore and the historic bargain between ranchers and environmentalists that created it.”

 

Positive impacts

The Pacific Coast Shellfish Growers Association (PCSGA) filed a supporting brief arguing that both the Secretary’s Order of Nov. 29, 2012, denying DBOC a permit to continue to operate in the National Seashore, and the FEIS that informed his decision, ignored the adverse impacts – to the environment, oyster industry, and neighboring community – associated with ordering DBOC to cease its operations. The brief also claims the decision and the FEIS also failed to properly evaluate the positive environmental impacts associated with shellfish cultivation.

 

The PCSGA brief argues:

“Oysters are one of the world’s oldest food sources and provide a healthy, sustainable, and ‘green’ food source for California and consumers worldwide. Oysters provide significant sociological, economic, and environmental benefits to the surrounding environment and community. These benefits include job production, tourism, improving water quality through nitrogen and phosphorus filtration, just to name a few. As the owners and operators of a historic shellfish farm that operates on land that has cultivated shellfish for over 80 years, DBOC plays a significant role in providing these benefits to Drakes Estero, Marin County, and the State of California.”

 

The Pacific Legal Foundation filed a brief on behalf of the California Cattlemen’s Association (CCA) detailing significant legal issues raised by the case. CCA has several members who ranch within the boundaries of the National Seashore under reservations of use and occupancy and/or special use permits from the Park Service, and these members have a strong interest in ensuring that the Park Service complies with applicable laws when acting on future renewals of their permits.

 

I filed a brief myself, taking issue with the process by which some national activist groups jerry-rigged the public comment process on the environmental impact statement to give the false impression to the court and the public that most people support getting rid of the oyster farm. In fact, a poll of local residents shows 84% support for keeping the oyster farm.

 

As reported elsewhere in these pages: Legal Aid of Marin has filed a brief on behalf of two longtime employees of the oyster farm, Jorge Mata and Isela Meza, arguing that “closing the oyster farm will hurt real working people and their families.” Dr. Corey Goodman filed a brief detailing the false scientific narrative created and promulgated by NPS in its quest to eliminate the oyster farm. And on Tuesday, Oct. 22, a supporting brief was filed by San Francisco attorney Judith Teichman and a coalition of former legisla-tors, environmentalists, and proponents of the sustainable agriculture practices of DBOC, including Earth Day co-founder and Sierra Club “environmental hero” Pete McCloskey.

 

“The breadth and number of Amicus briefs in this case is extraordinary,” said Peter Prows, a member of the DBOC’s legal team and a partner at Briscoe Ivester Bazel LLC. “The wide variety of perspectives represented is impressive,” he said. “Briefs have been filed by legislators, scientists, environmentalists, historians, legal experts, and farmers, and by conservatives and liberals alike. That’s not surprising given what’s at stake here – the question of whether government agencies can abuse their power with impunity.”

Leave a comment

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: