4/30/15 LibertarianRepublic.com by Bastasch: Oyster Farmer: ‘We Are Terrified’ Of The Government

By Michael Bastasch

The National Park Service used falsified data to shut down an 80-year-0ld oyster company in Point Reyes, Calif, its owner claims.

Drakes Bay Oyster Company operated in Point Reyes for decades until National Park Service officials used falsified data to force Kevin Lunny’s family-run oyster farm to shut down. The experience has left its mark on Lunny: “We Are Terrified,” he told lawmakers during a hearing Thursday.

“Let me be clear, we did not fail as a business,” Lunny said in his prepared testimony. “This was not bad luck. Rather, the Park Service engaged in a taxpayer-funded enterprise of corruption to run our small business out of Point Reyes.”

Lunny made this statement in response to a question by Republican Rep. Raul Labrador asking whether or not Lunny felt like there could be consequences from his testimony against the National Parks Service.

Even Democratic California Rep. Jared Huffman admitted that in the rush to get rid of industry from Point Reyes, government officials and environmentalists “overstated” evidence that Lunny’s farm was harming the environment.

“No one has apologized,” Lunny said.

Drakes Bay Oyster Company is located in Northern California’s Point Reyes National Seashore, where it has been for decades. Point Reyes isn’t your typical national park because it was created to preserve the historic coastline where people have been settled since the Gold Rush. It was never intended to be a major tourist attraction like Yellowstone.

For decades the Park Service had a good relationship with the oyster company, but that all changed in the mid-2000s. All of the sudden, NPS officials started blaming the company for an 80 percent decline in the local harbor seal population. Officials also blamed Lunny’s farm for upsetting the ecological balance of Drakes Estero.

But all of these accusations against Drakes Bay Oyster Company turned out to be completely false. The National Parks Service lacked any scientific data to back up its claims that the company was killing seals and hurting the local environment. In fact, studies done by the U.S. Geological Survey and the California State Health Department showed the Parks Service was completely wrong.

NPS, however, didn’t stop there and kept making false claims against the oyster company.

“The Park Service misrepresented that study,” Lunny said. “They instead attempted to demonstrate harm by substituting data from a sixty-year-old study conducted at the Sea of Japan and attributing it to our farm.”

“For example, in assessing the noise impact of our small outboard motor boats, the Park Service, rather than measuring our boats on our soundscape (as required), instead used the measurements from a seventy-horsepower, 700cc Kawasaki jet ski in New Jersey,” Lunny added.

Lunny appealed to higher ups at the National Park Service for help in the matter and to correct the record on false statements made by the agency, but he got no help from the government.

“The local Park Service staff were not willing to correct the false claims, so we went to the Regional Director,” Lunny said. “No help there. Then we went to the Park Service Director, and finally the Secretary of Interior. No one, at any level, was willing to admit that false science was being used against us, or to at least correct the record and stop the false accusations.”

The Interior Department’s own inspector general even found misconduct by agency officials and that they misrepresented facts. But even so, the inspector general was powerless to stop Parks Service officials from attacking Lunny’s business.

Eventually, Drakes Bay Oyster Farm closed its doors because of the litigation and regulatory actions taken by the federal government.

“What the Park Service did to our family was unconscionable,” Lunny said. “This polluted legacy of false science has tainted our dealings with state and federal agencies, and has resulted in unnecessary regulatory and legal action against our family and our farm.”

07/28/14 Injunction hearing set for September, Shack & canning closes Thursday, 7-31-14

Shack and canning closes Thursday, 4:30PM, 7-31-14

Harvesting continues at least 30 more days

Both lawsuits ARE STILL PENDING

Injunction hearing (TBOC et al v DOI et al) set for September.

10-18-13 EXCERPTS FROM PETITION FOR REHEARING EN BANC

EXCERPTS FROM THE DBOC BRIEF TO THE NINTH CIRCUIT (Rehearing Petition)

 

First Paragraph of DBOC Brief

“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. The oyster farm and the surrounding cattle ranches provide the agricultural heritage the Seashore was created to protect. When Congress was considering legislation that became the 1976 Point Reyes Wilderness Act (“1976 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.” (Op. 40 (Watford, J., dissenting).) To this day, modern environmentalists and proponents of sustainable agriculture praise Drakes Bay as a superb example of how people can produce high-quality food in harmony with the environment.”

 

Park Service Sustained Vendetta Against Drakes Bay

Since 2005, for reasons that remain a mystery, the Park Service has changed position and sustained a vendetta against the oyster farm. The Park Service has been reprimanded by the National Academy of Sciences, which in 2009 found that the Park Service had “selectively presented, over-interpreted, and misrepresented the available scientific information”, and by the Solicitor’s Office of the Department of the Interior, which in 2011 found “bias” and “misconduct” in the evaluation of harbor-seal data.”

 

Footnote # 6 (Excerpt) – Secretary Salazar Admitted – DBOC Not Told Farm to Shut Down, Renewal Clause Not to be Honored

Although, as the Secretary recognized, Drakes Bay received the Park Service’s legal analysis only after it purchased the oyster farm (ER 120, see ER 180, ¶64), the majority mistakenly asserted that “Drakes Bay purchased the oyster farm with full disclosure” and that “the only reasonable expectation Drakes Bay could have had at the outset was that such a closure was very likely”. (Op. 36-37.) This mistake controlled the majority’s review of the equities.”

 

Park Service Reprimanded by the National Academy of Sciences and the Department of the Interior’s Office of the Solicitor

Here a federal agency has behaved so badly that it has been reprimanded by the National Academy of Sciences and the Solicitor’s Office for misconduct, and by Congress for misinterpreting the law. Despite these reprimands, the agency continued to make false scientific statements and insist on the very misinterpretation Congress overrode. Courts should provide a remedy whenever an agency bases its action on false statements and acts in disobedience of a Congressional directive. And yet the majority held that courts lack jurisdiction to determine whether this type of agency action was arbitrary, capricious, or an abuse of discretion. This holding is wrong. Congress could not have intended to allow an agency to disobey a statute, or to base permit decisions on false statements, and yet be immune from judicial review. Nor could Congress have intended that a court would have jurisdiction to review an agency’s discretionary decision for everything except abuse of discretion. En banc rehearing is needed.”

 

Park Service Misconduct Raises Significant Legal Principle – Is the Park Service Above the Law and Beyond Accountability

“The decision could potentially prohibit courts from considering whether agencies were arbitrary and capricious or abused their discretion in countless decisions granting or denying ordinary permits.”

 

10-18-13 Petition for Rehearing en banc

For Immediate Release

October 18, 2013
Media Contact: Tina Walker
Office: 415.227.9700
Cell: 650.248.1037
Email: tina@singersf.com

Drakes Bay Oyster Company Files Petition for Rehearing by Ninth Circuit

Oyster Company remains open for business while petition is reviewed

INVERNESS, CALIF. — Drakes Bay Oyster Company filed a petition today requesting an En Banc hearing of its case in the Ninth Circuit (that is, a request that the case be reheard in front of the Ninth Circuit’s full panel). The historic oyster farm is fighting to remain open in the face of Park Service wrongdoing. Its case in the Ninth Circuit is about the request for an injunction to remain in business while its lawsuit against the agency proceeds.
If the petition is accepted by the Ninth Circuit, both parties will have the opportunity to re-argue their case to the entire 11 judge panel over the next several months. In the meantime, the popular
oyster farm remains in operation.
The petition argues that En Banc review should be granted because the panel decision conflicts with several decisions of the United States Supreme Court, and of the Ninth Circuit, on questions of exceptional importance. “The majority decision, if allowed to stand, would set some alarming precedents,” said Peter Prows, a member of the Drakes Bay legal team and partner with Briscoe Ivester & Bazel LLP. “The majority has created new rules that would allow government agencies to disobey Congress, prohibit courts from considering whether the actions of government agencies were arbitrary and capricious, and seriously undermine environmental law.”

In September, the Ninth Circuit’s three-judge panel issued a split decision against the oyster operation, with Judge Paul J. Watford (an Obama appointee) dissenting. Judge Watford forcefully
argued that the injunction should be granted because “Drakes Bay is likely to prevail on the merits.”
In his dissent, Judge Watford wrote: “continued operation of the oyster farm is fully consistent with the Wilderness Act” and that the Park Service had been “bizarrely” misinterpreting the law since
2005. Tellingly, Judge Watford noted that the majority “never attempts to argue” that the government’s interpretation “was correct.”
Judge Watford concluded that former Secretary Salazar’s decision not to renew the permit was based on a “legally erroneous interpretation of the controlling statute.” The petition filed today argues that the majority has jurisdiction to consider this issue and should have considered it.
Drakes Bay Oyster is supported by thousands of environmentalists and community members and by a growing number of concerned elected officials. “We are grateful to have so much support from
the community and across the nation,” said Kevin Lunny, owner of Drakes Bay Oyster. “We remain committed to succeeding in our fight to remain open and serve our community,” Lunny said.

About Drakes Bay Oyster Company
The historic oyster farm in Drakes Estero, located in Point Reyes, Marin County, has been part of the community for nearly 100 years. The Lunnys, a fourth-generation Point Reyes ranching family, purchased Drakes Bay in 2004. Modern environmentalists and proponents of sustainable agriculture praise Drakes Bay Oyster as a superb example of how people can produce  high-quality food in harmony with the environment.

The firm produces approximately one third of all oysters grown in
California, and employs 30 members of the community. The Lunnys also contribute the oyster shells that make possible the restoration of native oysters in San Francisco Bay and the oyster shells used to create habitat for the Snowy Plover and Least Tern. As the last oyster cannery in California,
Drakes Bay is the only local (and thus the only safe and affordable) source of these shells. The Lunny family is proud of its contributions to a sustainable food model that conserves and maintains the productivity of the local landscapes and the health of its inhabitants. For more information, please visit http://www.drakesbayoyster.com.

10-18-13 Petition for Rehearing En Banc

Attached is the actual filing of the Petition for rehearing en banc

Petition for Rehearing En Banc (Filed) 10-18-13

 

06-12-2013 Dr. Goodman on Huffman’s 4 mistakes on Oyster Farm Science

Marin Voice: Huffman’s four mistakes on oyster farm science

By Corey Goodman
Guest op-ed column

Posted:   06/12/2013 04:00:00 AM PDT

“Huffman’s district is ground zero for scientific misconduct.”

THE Sonoma City Council last week voted unanimously in support of Drakes Bay Oyster Co. and asked Rep. Jared Huffman, D-San Rafael, to support a bipartisan congressional investigation into the “questionable science” that misinformed Interior Secretary Salazar’s decision not to renew the farm’s permit.

Huffman immediately rejected the council’s request. In so doing, he made four substantive mistakes.

First, Huffman said the investigation of scientific misconduct was a “Republican-inspired effort.” Not so.

Democrat Sen. Dianne Feinstein has long been concerned about scientific misconduct by the National Park Service. Last year, Feinstein wrote that the Park Service repeatedly “falsified and misrepresented data,” “stained its reputation” and has been “deceptive and potentially fraudulent.”

Second, Huffman said the secretary’s decision was not informed by the false science. Not so again.

Salazar wrote that this science had “informed me” and “been helpful to me in making my decision.” What’s more, Justice Department lawyers representing the Interior Department and other farm opponents continue to use the false science in the Ninth Circuit Court of Appeals to justify why the “public good” favors removing the farm.

Third, Huffman questioned whether there is, in the council’s words, a “clear-cut case of scientific misconduct,” implying there was not.

Here are the facts. For seven years, the Park Service claimed to have evidence showing the oyster farm disturbs the harbor seals in Drakes Estero. Yet, it had none.

When challenged, the Park Service set up secret cameras, and over three years took 300,000 photographs of oyster boats and seals. It looked for seal disturbances, but found none.

The Environmental Impact Statement released last November further promoted false science. To support its claim of seal disturbances, the Park Service cited the analysis of the secret photographs by an independent research scientist, Brent Stewart, claiming he found seal disturbances caused by the oyster farm. But Stewart actually concluded just the opposite — “no evidence of disturbance.”

Fourth, and most troubling, Huffman remained quiet after he received unequivocal evidence of scientific misconduct.

After I questioned the park’s claims about seal disturbances last December, Interior officials secretly asked Stewart to re-review the set of photographs.

Stewart held firm, and wrote a Supplemental Report in which he again found no evidence of disturbance by the oyster farm.

The Interior department tried to keep Stewart’s Supplemental Report a secret, but it got out. Huffman was the first to receive the report in April, but thus far he too remained silent about it.

Huffman’s district is ground zero for scientific misconduct.

The great majority of his constituents, according to every poll, want the oyster farm to stay, and are concerned about the false science used to argue in favor of removing the farm.

Just this week, the North Bay Leadership Council passed a resolution supporting the oyster farm and asking Huffman to support a bipartisan congressional investigation.

When asked about Park Service science while running for election, Huffman said the “science must have integrity.” After his election, he joined the “Problem Solvers,” a congressional group dedicated to finding bipartisan solutions. But on the issue of scientific integrity, even though he possesses evidence of misconduct, he has remained silent, and refused to join a bipartisan investigation.

I urge Congressman Huffman to rethink his decision, disclose what he found in Stewart’s report and support a bipartisan congressional investigation.

Throughout his career, Huffman has stood for integrity and reaching across the aisle.

His constituents expect no less.

We ask that he stay the course and pick the path of scientific integrity. If he does so, I pledge to work with him for an open and fair investigation.

Corey Goodman is an elected member of the National Academy of Sciences, West Marin organic rancher, environmentalist and the scientist who began investigating National Park Service’s handling of the Point Reyes oyster farm in 2007 at the request of Marin County Supervisor Steve Kinsey.

1976 GGNRA Citizen’s Advisory Comm. Chairman, Frank C. Boerger statement recommended keeping Oyster Farm

Statement of Frank C. Boerger,

Chairman, Golden Gate National Recreation Area Citizen’s Advisory Commission

(HIGHLIGHTS FROM THE STATEMENT)

15 person Commission appointed in January 1975 by Secretary of Interior in accordance with the law establishing the Recreation Area.

…met regularly since establishment of commission to “discuss the planning for the development and the preservation of the Park Service Areas in the San Francisco Bay region, including the Point Reyes National Seashore.”

“…completed a position paper on the subject which I have attached to this testimony; it is requested that this statement be made a part of the record of this hearing.”

“….The balancing of the various interests represented by our recommendations was derived from a series of public hearings and subcommittee task force meetings. The compromises presented have won acceptance from representatives of each sector of the public that expressed concern….”

INTRODUCTION

“….The intrinsic values of the natural, historic and scenic resources of both the Golden Gate National Recreation Area and point Reyes National Seashore are remarkable. These values offer opportunities to people everywhere, but their importance is multiplied many times by the unusual proximity of the parklands to the five million people of the San Francisco Bay region.”

DESCRIPTION OF THE RECOMMENDED WILDERNESS AREA

“….An important factor in considering wilderness for the seashore was the intent of the commission that desirable existing uses be allowed to continue…..”

“….Two wilderness units are recommended for the northern half of the Seashore. They are separated by an area that includes the “pastoral zone” (designated in the enabling legislation to continue to accommodate ranching activities) and the access roads that serve most of the Seashore’s popular beaches. The first unit includes…Drakes and Limantour Esteros, and the lands that connect those features.”

NONCONFORMING USES

“Two activities presently carried on within the seashore existed prior to its establishment as a park and have since been considered desirable by both the public and park managers. Because they both entail use of motorized equipment, specific provision should be made in wilderness legislation to allow the following uses to continue unrestrained by wilderness designation:

1 Ranching operations on that portion of the “pastoral zone” that falls within the proposed wilderness…..

2 Operation of Johnson’s Oyster Farm including the use of motorboats and the repair and construction of oyster racks and other activities in conformance with the terms of the existing 1,000 acre lease from the State of California.”

For the pages from the hearing pertaining to the above statements click on the link below:

Pages from PRNS wilderness hearings senate 1976

NOTE:

The final bill designated Drakes Estero as only “potential wilderness”.

The Interior Department told Congress that Drakes Estero could not be full wilderness until California gave up its rights there–which it has NOT done.

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