12-19-13 WMC Linford Brief Supports Agriculture in Point Reyes Nat’l Seashore

Linford Amicus Brief Supports Agriculture in Point Reyes National Seashore

By Sarah Rolph

This story is the seventh 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.

This story summarizes the Amicus brief from the Monte Wolfe Foundation, written by San Rafael attorney Jim Linford. The Foundation’s core mission is the preservation of the Monte Wolfe Cabin, a structure located within the Mokelumne Wilderness Area. The Cabin is eligible for listing on the National Register of Historic Places and is under the aegis of the National Historic Preservation Act.

Linford’s brief argues that the Ninth Circuit should grant Drakes Bay Oyster’s request for an en banc rehearing for three reasons:  to reaffirm a pragmatic approach to the Wilderness Act, to reassure that agriculture has its place in Point Reyes National Seashore, and to restore confidence in the National Park Service.

Discussing the need for a pragmatic approach to the Wilderness Act, Linford points out that the environmental community is divided over the use of the Point Reyes National Seashore and over the term “wilderness.” Linford writes: “Purists take ‘wilderness’ to mean ‘pristine wildness.’ Pragmatists see ‘wilderness’ as a nuanced legal framework where the pristine ideal can coexist with a wider range of use and purpose, although always shaped by overarching preservationist values.”

Linford writes, “this fault-line appears and reappears throughout this matter, in the division between the majority and dissenting opinions,  in what may be a division within the Park Service itself, and in what is definitely a division in public opinion, not just about the oyster farm, but about agricultural activity in general within the National Seashore.”

“The issue of agricultural uses in the Seashore inevitably evokes the historic bargain between preservationists and ranchers that created the Seashore,” writes Linford, pointing out that “the attempt to remove the oyster farm is suspected by many in the Marin environmental community as a first step toward removal of all agriculture in the Seashore. Allowing the oyster farm to remain would assuage those suspicions.”

On the topic of restoring confidence in the National Park Service, Linford writes: “There is a public perception is that wilderness purists within the National Park Service have ignored both Congressional intent and abused scientific impartiality. Allowing the panel decision to stand would very likely be seen by those with this perception as rewarding the unethical actions of a particular faction of Park Service employees, thus bringing discredit on the Park Service as a whole.”

The brief also argues that the legislative intent for the Seashore clearly included a role for the historic oyster farm: “The dissent has convincingly demonstrated that there was substantial and unambiguous legislative intent that the oyster farm should remain indefinitely and was compatible with wilderness designation. The majority opinion does appear to acknowledge ‘the accuracy of the dissent’s recitation of the legislative history’ of the Point Reyes wilderness designation.”

The brief discusses several other cases that center on the division between purists and pragmatists and provides a relevant discussion of the Wilderness Act.

In his summary, Linford argues that “The controlling Wilderness Act provisions include the ‘grazing” exception to the prohibition of commercial activity [because oysters graze plankton] and the ‘historic use’ exception to both commercial and structure prohibitions.”

Linford also points out that, although the legal argument has not been sufficiently developed to allow legal review, “given the context of the National Seashore and the historic bargain between ranchers and environmentalists that created it, sustainable agriculture might be shown to be a ‘conservation use.’”

Read the brief here: https://oysterzone.files.wordpress.com/2013/10/amicus-curiae-of-attorney-james-linford-10-28-13.pdf

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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