12-12-13 WMC Rolph Brief Argues Mishandling of Comments = Abuse of NEPA

Rolph Brief Argues Mishandling of Non-Substantive Comments was Abuse of NEPA Process

By Sarah Rolph


This story is the sixth in a series of reports about the Amicus Curiae (“friend of the court”) briefs filed in support of Drakes Bay Oyster Company’s petition to the Ninth Circuit requesting an en banc hearing of its case. The historic oyster farm is fighting for an injunction to remain open in the face of Park Service wrongdoing while its lawsuit against the agency proceeds. Citizen readers are invited to read the briefs and to respond to these stories with letters to the editor, or with essays of their own.

The National Environmental Policy Act (NEPA) process requires that agencies “make efforts to provide meaningful public involvement in their NEPA processes.”

When the Park Service at Point Reyes took public comments on its Draft Environmental Impact Statement (Draft EIS) about Drakes Bay Oyster Company, the voice of meaningful public involvement—in the form of thoughtful, considered responses—was drowned out by a huge number of form letters driven by four well-funded activist organizations using an automated direct-mail process.

These form letters constituted the vast majority of public comments—roughly 90% of the total.

The four organizations—the Sierra Club, the Natural Resources Defense Council (NRDC), the National Wildlife Federation Action Fund (NWF Action Fund), and the National Parks Conservation Association (NPCA)—fed their huge mailing lists into sophisticated direct-mail engines from a firm called Convio, which supports mass-mailings for fundraising and advocacy.

Members of these groups received an email solicitation asking them to take action. None of these emails mentioned NEPA, nor did they suggest that the recipient read and consider the Draft EIS, nor did they indicate where the recipient could do so. Instead, the emails used the sort of language standard to direct-mail efforts, emphasizing the request for action in simple, general terms. In many cases the information provided was not accurate.

Each solicitation included a pre-written form letter, which the Convio system electronically submitted as a comment on the Draft EIS when the recipient clicked the “send” button.

Thus the opportunity for a recipient—now a commenter on the Draft EIS—to actually read the Draft EIS he or she was supposedly commenting on was intentionally eliminated from the process.

In the final analysis, these form letters were deemed “non-substantive,” as the NEPA rules require for exact-match form letters; they did not officially count. Yet that analysis was not made public until the very end of the process, in November 2012.

At the height of public awareness, in March 2012, these non-substantive comments were released to the public, publicized, and included in an official-looking Park Service tally.

These actions created a false impression, for months, that public opinion was substantially in favor of not renewing DBOC’s lease, deceiving the public and deceiving decision-makers.

The manufactured 90% claim was quoted in news stories, and counsel for the government repeated that same misleading 90% claim at oral argument to the Ninth Circuit. This is an abuse of the NEPA process.

Read my brief here:


Send your letters and essays about this brief (and/or the others in this series) to the Citizen editor at editor@westmarincitizen.com

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