04-02-14 Must Fed Agencies follow NEPA? Decisions based on Misinterpretation of Law appealable?

Journalist: Curtis Ellis


I can’t say much about conflict diamonds but I did have a personal encounter with conflict oysters. The conflict isn’t between armed factions in an African kleptocracy, but between a family farm north of San Francisco and the federal government that wants to shut it down. I ate conflict oysters at the end of a dirt road on a picnic table overlooking the placid waters of Drake’s Estero, a finger of the Pacific Ocean surrounded by low green hills in the Point Reyes National Seashore. The oysters were harvested by the Drake’s Bay Oyster Farm, a humble enterprise that consists of a few whitewashed sheds, some picnic tables, a couple of fiberglass tanks that serve as incubators for baby oysters and piles of shells that will be submerged and recycled as cradles for the next generation of slurpables-on-the-half-shell. Despite its unprepossessing appearance, the family-owned Drakes Bay Oyster Farm finds itself in an epic battle with Leviathan, a National Park Service bureaucracy intent on shutting it down. The fight pits the oyster farmers against the Department of Interior, neighbor against neighbor and environmentalist against environmentalist. It has also created odd alliances. Senator Dianne Feinstein, a stalwart supporter of the bivalve farm, finds herself on the oyster shell barricades alongside locavores, local descendants of Haight Ashbury hippies and a team of pro-bono attorneys including some inspired by Ronald Reagan. And the Lunny family, which owns and operates the oyster farm. The Lunny family has ranched land alongside Drake’s Estero for three generations — over a hundred years. They grow certified organic and grass-fed beef on the first organic certified pastures in Marin County, and are exemplars of the local sustainable agriculture movement. They took over the oyster operation when the family that previously owned and ran it, their neighbors, bowed out. Like the land around it, Drake’s Estero has been in commercial oyster production for nearly a century. Even before Europeans arrived, the native people harvested oysters from the waters. In the 1970s, when Point Reyes became part of the national park system, the National Parks Service issued a renewable permit allowing the oyster farm to continue operating. Decades later, the feds signaled they were inclined to pull the permit and create a look-but-don’t-touch wilderness area. Senator Feinstein pushed legislation through the Democratic-controlled Congress allowing the permit to be renewed, wilderness plans notwithstanding. That should have been the end of it, but instead it was just the beginning. It’s important to remember the context of this conflict. Point Reyes, and the West Marin region of which it is part, is the epicenter of sustainable local agriculture, providing grass-fed meats, cheeses and artisanal produce to homes and farm-to-table restaurants in the Bay Area and beyond. These are human scale operations, labor intensive and dedicated to sustainable practices. The Parks Service itself sings the praises of the area’s agricultural heritage,citing “the powerful linkage between these innovative, sustainable agricultural enterprises, market recognition, and the continued, careful stewardship of an important cultural landscape,” calling Point Reyes a place that can “reconnect people to the food they eat, the landscapes where it is grown, and the honorable labor of producing it.” The Drake’s Bay oyster war pits environmentalists aligned with the local food movement not just against the federal government, but against a faction of environmentalists who could be described as “wilderness fundamentalists.” At issue are two competing visions of the environment: one sees humans as part of the ecosystem; the other imagines an ideal ecosystem devoid of humans — a “look-but-don’t-touch” museum diorama. Michael Pollan, author, UC-Berkeley professor and a leading voice of the local food movement, sides with the Drake’s Bay Oyster Farm, saying it “actually contributes to the health of its ecosystem” and “is an important thread in the local sustainable food community.” He blasts the Park Service’s for “ideological rigidity and misuse of science” and says it would be an “outrage” if it shut down Drake’s Bay. The vision of the wilderness fundamentalists and its amen corner within the Park Service, while noble, is “rooted more in fantasy than fact,” Pollan writes. He calls out the “deep roots to the hostility of environmentalism toward agriculture, an antagonism that once was understandable” but is now outdated, with sustainable agriculture “showing people who care about nature that good farming contributes as much to the health of nature, sometimes even more, than simple land preservation. … An ‘all or nothing’ ethic that pits man against nature, wilderness against agriculture” is not useful in this landscape, Pollan says. The oyster farm supporters, including Pollan and Senator Feinstein, hope the Parks Service would seize the opportunity to teach an important ecology lesson at Drake’s Bay: “The relationship between humanity and the land need not be a zero sum one, but rather that, when properly managed, the two can nourish one another.” Instead, former Interior Secretary Ken Salazar denied the permit, citing a flawed environmental impact report while simultaneously claiming it didn’t rely on that same report. The oyster farm is seeking an emergency injunction staying their eviction while it sues for a new hearing on the permit, saying the prior decision was based on a misinterpretation of science and law. The Ninth Circuit denied the injunction in a 2 to 1 decision, asserting the court has no jurisdiction to overrule an agency’s decision, even if the decision is based on misinterpretation of law. Judge Watford, an Obama appointee, dissented. Drake’s Bay is taking their case to the Supreme Court. The U.S. Supreme Court will decide on April 14th if it will hear the case.* Along with the jobs of thirty oyster farm employees, what’s at stake is whether citizens can go to court to challenge a decision by a regulatory agency (the Ninth Circuit said no), and whether federal agencies must follow the National Environmental Protection Act in issuing its decisions (the Interior Department says ‘not always’). And whether Californians will be able to continue growing and harvesting some of the cleanest shellfish on earth as they have done for nearly a century.

* DBOC will submit their case to the US Supreme Court on 04-14-14. Once received, the court may take 2 months or longer, perhaps many months to decide whether to hear the case.


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1 Comment

  1. Milly Biller

     /  April 3, 2014

    Fingers and toes crossed…

    On Thu, Apr 3, 2014 at 4:04 PM, Drakes Bay Oyster Company & the National Park Service. Watch the video, THE FRAMING OF AN OYSTER FARM


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