Kevin Lunny has owned and operated the Drakes Bay Oyster Company in a Pacific inlet north of San Francisco since 2005. This winter, an 80-year tradition of shellfish farming in the estuary came to an end when the National Park Service shut Drakes Bay down, claiming the company was a “heavy industry that imperiled the park’s wildlife.” While some environmentalists say “good government prevailed,” an investigation by Newsweek found that the science-as-evidence used to close down Lunny’s farm was either altered or bad. — Newseek via @CivilEats
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All posts tagged Administrative Misconduct
01-24-15 ProPublica: Bad science from the Park Service
Posted by Jane Gyorgy on January 24, 2015
https://oysterzone.wordpress.com/2015/01/24/01-24-15-propublica-bad-science-from-the-park-service/
1-23-15 U.S. Department of the Interior And Environmental Lobbyists Conspire To Suppress Science
“Salazar instead ignored science completely and manipulated reports and definitions to suit an environmental agenda.”
U.S. Department of the Interior And Environmental Lobbyists Conspire To Suppress Science
By Hank Campbell | January 23rd 2015 11:44 AM
Though we once got a promise to restore science to its rightful place, instead it looks more and more of the same anti-science mentality we got from President Clinton in the 1990s: Catering to environmental fringe groups – even going to far as declaring a small oyster farm “heavy industry” in order to shut them down.Senator Dianne Feinstein of California, as staunch a liberal as we can get, tried to take a stand for science and small business but was unable to prevent the Department of the Interior from “using scientifically unsound, and at times bizarre, tactics to prove the oyster farm had to go.”Feinstein pulled no punches in her assessment. “The Park Service has falsified and misrepresented data, hidden science and even promoted employees who knew about the falsehoods, all in an effort to advance a predetermined outcome against the oyster farm,” she wrote to then-Secretary of the Interior Ken Salazar in March 2012. “It is my belief that the case against Drakes Bay Oyster Company is deceptive and potentially fraudulent.”That is a Cabinet post. It is impossible that the president was not aware of it, especially after Senator Feinstein leveled that charge.
Salazar instead ignored science completely and manipulated reports and definitions to suit an environmental agenda. To add an outside voice, Feinstein asked for a National Academy of Sciences report and they concluded that Park Service scientists, in setting out to prove the farm was causing environmental harm, had “selectively presented, over-interpreted, or misrepresented the available scientific information” and “exaggerated the negative and overlooked potentially beneficial effects of the oyster culture operation.”
An internal Interior Department investigation also found that Park Service scientists had “intentionally omitted the photographic research, in an effort to manipulate the outcome of [the NAS] report,” and were “blurring the line between exploration and advocacy.”
Yet that was dismissed as “administrative” misconduct. Three of the Park Service employees that engaged in the fraud even got promoted.
What happened to the scientific results? The U.S. Geological Survey (USGS) hand-edited the reports to be completely different in their conclusion. We may never know what the science community would do if a Republican administration did that.
Wait, we do know. In 2004, the left-wing environmental advocacy group Union of Concerned Scientists put out a petition demanding that science not be manipulated when the Bush administration did something far less egregious.
They called it “the Bush administration’s unprecedented censorship, manipulation, and misrepresentation” when they were trying to get Democratic Senator John Kerry elected to replace Bush but about this insult to scientific integrity they have not had a single complaint.
Nor have they complained any other time. It isn’t the first time the Obama administration has ignored science – with Keystone XL he keeps telling government scientists to do more studies until they create one that agrees with his personal belief (but promising to fast-track an extension over tribal burial grounds) and on Yucca Mountain he has even defied a federal court order to make a decision regarding the application. What has he done with the Nuclear Regulatory Commission in response? He placed an anti-Yucca Mountain activist with no knowledge of nuclear energy in charge of it and one of the staffers is…the former head of Union of Concerned Scientists.
So it is understandable why Union of Concerned Scientists is not critical of the Obama administration. They are all hoping to get jobs working for him too. Left-wing sites like Huffington Post have been critical, though.
The BP oil spill report that was edited by the Obama administration got howls from the scientists who wrote it but from the broad science community there has been no outrage. There should have been, and should be, if science media wants to be regarded as trusted guides for the public on complex issues.
On the positive side, it is nice to know that the President doesn’t just ignore Republicans in Congress, he is equally opportunity dismissive of female Democrats in the Senate.
The Oyster Shell Game By Michael Ames, Newsweek. H/T Real Clear Science
for the original article, go to:
Posted by Jane Gyorgy on January 23, 2015
https://oysterzone.wordpress.com/2015/01/23/1-23-15-u-s-department-of-the-interior-and-environmental-lobbyists-conspire-to-suppress-science/
01-22-15 Pt Reyes Light: Seal Expert Says Federal Agency Ignored His Findings, by Samantha Kimmey
“A scientist told a national magazine that a federal agency changed his analysis of photographs of Drakes Estero to justify a claim of environmental harm against Drakes Bay Oyster Company, which ceased operations last month….
In a Newsweek story published online last Sunday, Mr. Stewart said, “It’s clear that what I provided to them and what they produced were different conclusions and different values.” He added, “In science, you shouldn’t do that.”
Seal expert says agency ignored his findings
By Samantha Kimmey
01/22/2015
A scientist told a national magazine that a federal agency changed his analysis of photographs of Drakes Estero to justify a claim of environmental harm against Drakes Bay Oyster Company, which ceased operations last month.
Brent Stewart, who has been a senior research scientist at Hubbs-SeaWorld Research Institute for decades, analyzed a selection of time-lapse photographs taken by a Point Reyes National Seashore camera for a 2012 United States Geological Survey report on harbor seals, a report later cited in the environmental impact statement on the oyster farm.
He found no correlation with oyster boats, but the report said otherwise.
In a Newsweek story published online last Sunday, Mr. Stewart said, “It’s clear that what I provided to them and what they produced were different conclusions and different values.” He added, “In science, you shouldn’t do that.”
In response to a query from the Light, Mr. Stewart emailed that he was traveling and could not answer questions by press time. Allegations that oyster boats disturbed harbor seals—federally protected under the 1972 Marine Mammal Protection Act—were for years made by the National Park Service and environmentalists championing the Drakes Bay’s removal. Others vociferously refuted those claims. After the park service was found to be in possession of hundreds of thousands of time-stamped photographs and then criticized for not taking advantage of them to assess the potential impacts of the farm, the park service asked the geological survey to undertake a report.
The final version of the environmental impact statement on the farm, published in late 2012, cited that report, saying its analysis “attributed” two disturbance events to farm boats.
Mr. Stewart’s public allegations come two months after the geological survey dismissed a 2013 scientific misconduct complaint over the representation of Dr. Stewart’s study. The complaint was the seventh filed by Corey Goodman, a scientist and Marshall resident who became an outspoken critic of science produced and used by the park to oust the oyster company.
A U.S.G.S. spokeswoman, Anne-Berry Wade, said the lead author of the agency’s seal report, William Lellis, could not speak to the press because of ongoing litigation over the complaint.
An earlier allegation of scientific misconduct over the suppression the photographs was investigated by Gavin Frost, a solicitor for the Department of the
Interior.
Interior.
In his 2011 report, Mr. Frost described what he called “administrative misconduct.” Seashore scientists didn’t meet the bar of scientific misconduct, he wrote, because they did not fabricate or misrepresent data with the intent to deceive; however, they might have violated the park service’s scientific research policy and they “blurred the line between exploration and advocacy through research,” he said. Seashore scientists also erroneously believed that, because the camera project followed no stringent protocols, the photos were not actually research or data, Mr. Frost wrote.
Because the park service didn’t undertake a thorough assessment of the images, the report said “potentially powerful evidence remains unknown.”
Seal controversy
Drakes Bay Oyster Company was first accused of threatening harbor seal populations in 2007. Assertions that the farm had spurred an 80 percent decrease in seals in one area was removed from a park service report and later publicly retracted by the report’s author, but continued controversy over the impact of the farm’s two small boats led the National Academy of Sciences to examine the existing body of research on the impacts and the Marine Mammal Commission to consider the impacts to seals specifically.
The academy’s 2009 report said that there was a “lack of strong scientific evidence that shellfish farming has major adverse ecological effects on Drakes Estero.” But it also said that independently verifiable data, “such as time and date stamped photographs,” could help determine whether boat activity affected the seals.
The committee was not aware that such photographs existed.
In 2010, Mr. Goodman discovered—in a footnote of a park service document meant to rebut Mr. Goodman’s claims about other disturbance events—that that the park service had a cache of hundreds of thousands of photographs taken between 2007 and 2010 from wildlife cameras placed on the bluffs overlooking Drakes Estero.
Park scientists denied that the camera’s existence was intentionally withheld, but they did not mention it during the Marine Mammal Commission meetings in early 2010 when a panel member noted how useful one might be. Sarah Allen, the scientist in charge of the camera project, denied hearing the suggestion, according to Mr. Frost.
The commission’s report said that the photos, in combination with a separate video made by a park volunteer, provided “convincing evidence” of one instance of oyster boat disturbance, on May 15, 2008, but that all the photos should be examined more closely. Park data that was used to establish a correlative relationship between seal populations and oyster harvests was “scant and stretched to its limit,” the report said.
A draft of the environmental impact statement on the oyster farm, released in 2011, was criticized for not taking advantage of the photos.
In response to that critique and the commission’s suggestion, the National Park Service enlisted the geological survey to assess the pictures.
Mr. Lellis, the deputy associate director of the survey’s ecosystems research department, said in a 2012 email to a colleague that the report was critically
important.
important.
“The NPS needs this analysis done by the end of March to brief Secretary Salazar who needs to make a decision on the Wilderness Status for the park…This is a high profile project. Very high profile, so we need to put our best people on it,” Mr. Lellis wrote to a colleague.
Citing the volume of photos, their mediocre quality and the difficulty of evaluating individual photos for meaningful data, the geological survey created 191 time-lapse videos from over 3,000
photographs.
photographs.
The U.S.G.S. hired Mr. Stewart to assess a selection of these videos in which it thought there might be human-caused disturbances; Mr. Stewart was told to classify each video based on whether he found a disturbance and whether he could identify causation or just correlation.
The geological survey’s final report said that photos taken on two separate days—May 15 and June 11, 2008—showed flushing events correlated with boats. “[B]oat traffic at nearby sandbars… could be directly connected, or at least associated with a flushing level of disturbance,” it asserted. (Of the 10 total disturbances the report documented, it said two came from kayakers, two from birds and four from unknown sources.)
But in data and a two-page report Mr. Stewart submitted, boats were not responsible for disturbing the seals. In the video sequences he analyzed, he said he found seven disturbance events—meaning that he could see seals flushing—potentially related to human presence. In one, he writes that the seals seem to clearly flush because of a nearby kayak. But he couldn’t link the presence of oyster skiffs to the three other events when boats were present in the frames. (For the other three videos, he could find no apparent human cause.)
The U.S.G.S. later asked Mr. Stewart to take another look at videos from two days: May 15 and June 11, the dates of the two incidents cited in the final U.S.G.S. report.
Mr. Stewart again said there was no correlation between seal movements and the appearance of a boat. He wrote that on May 15, a boat appeared in the frame at 1:55 p.m. and left nine minutes later. A small number seals then flushed into the water and some others moved toward the water, but he wrote there was no obvious stimulus. The June 11 photographs showed a “minor startle” of seals about 10 minutes after a boat leaves the area, but he didn’t believe they had been flushed.Mr. Stewart told Newsweek that he asked the geological survey if he could fix the report after it was published. He was told that it was too late, a response Mr. Stewart described as “shocking.”
This November, well over a year after Mr. Goodman filed his last complaint, the U.S.G.S. closed the case, finding no misconduct. On a website detailing closed scientific complaint cases, the agency asserted that its report “made no claim” correlating disturbances of harbor seals with boat activity from the oyster farm. The rebuttal also cites sections of the final report that discuss the difficulty and limitations of analyzing the photographs.
But the report itself said “two [flushing events] were associated with boat activity”—a finding the park service turned into “Two flushing disturbance events were attributed to boat traffic at nearby sand bars” in the oyster farm’s 2012 impact statement.
The park service ultimately concluded that continued operations would lead to long-term moderate adverse impacts to harbor seals. The environmental impact statement also cites other reports in the section on harbor seals—including the one by park service scientists correlating oyster harvest with harbor seal populations, and the Marine Mammal Commission report, both heavily criticized.
When then-Secretary of the Interior Ken Salazar decided to close the farm, he acknowledged that the park, advocates of wilderness and farm supporters had vigorously debated the science around the farm. He said he based his decision on law and policy, not environmental impacts. Yet although they were “not material to the legal and policy factors that provide the central basis for my decision, they have informed me with respect to the complexities, subtleties and uncertainties of this matter and have been helpful to me in making my decision.”
Melanie Gunn, the outreach coordinator for the seashore, echoed that sentiment this week. “There may always be debate about the science of Drakes Estero, which I am sure you have heard from all sides, but ultimately, the Secretary of the Interior made his decision based on law and policy, a decision that has been upheld in federal court. This has been a challenging issue for the park [and] community. We are pleased to have reached a joint settlement agreement with Drakes Bay Oyster Company that allows all parties to move forward,” she wrote to the Light.
The oyster farm closed its cannery last summer, and December saw that last harvest. Within days the buildings were torn down, and the park service is working to remove remaining shellfish because the state health department is no longer testing them.
But Mr. Goodman says what happened between Mr. Stewart’s report and the farm’s impact statement still matters. “As scientists, we believe that when the government publishes a report…it should be accurate and should have integrity,” he said.
Posted by Jane Gyorgy on January 22, 2015
https://oysterzone.wordpress.com/2015/01/22/01-22-15-pt-reyes-light-seal-expert-says-federal-agency-ignored-his-findings-by-samantha-kimmey/
01-20-15 Marin IJ: Oyster farm’s demise sets stage for next park battle, by Dick Spotswood
“Just 20 days after the Lunny family operation closed on New Year’s Eve, the farm and all of its facilities are gone. Not just closed, but almost any evidence that it ever existed has disappeared.
When senior bureaucrats have a personal stake in doing something, miracles occur. Oddly, the usual cast of activists that habitually demands studies, scoping sessions and public hearings ad nauseum before any action is taken were missing in action.
It’s difficult to conceive that the oyster farm’s speedy demolition was a federal government project.
Perhaps the National Park Service’s whiz kids who masterminded Lunny’s speedy exit next need new tasks. They might aim their previously undisclosed expediting talents on the never-ending Ross Valley flood control plan or restoration of the third traffic lane on the Richmond-San Rafael Bridge.”
Dick Spotswood: Oyster farm’s demise sets stage for next park battle
Marin Independent Journal
POSTED: 01/20/2015 04:14:30 PM PST
Given the glacial progress involved in any government endeavor, it’s startling to see any agency moving at warp speed. That just happened with the Point Reyes National Seashore’s almost instant eradication of the Drakes Bay oyster farm.
Just 20 days after the Lunny family operation closed on New Year’s Eve, the farm and all of its facilities are gone.
Not just closed, but almost any evidence that it ever existed has disappeared.
When senior bureaucrats have a personal stake in doing something, miracles occur. Oddly, the usual cast of activists that habitually demands studies, scoping sessions and public hearings ad nauseum before any action is taken were missing in action.
It’s difficult to conceive that the oyster farm’s speedy demolition was a federal government project.
Perhaps the National Park Service’s whiz kids who masterminded Lunny’s speedy exit next need new tasks. They might aim their previously undisclosed expediting talents on the never-ending Ross Valley flood control plan or restoration of the third traffic lane on the Richmond-San Rafael Bridge.
It appears the motivation behind the frenetic effort to demo the oyster harvesting sheds was to remove even the slightest possibility that some action could halt the yearslong effort to convert Drakes Estero into a wilderness area. The park’s hierarchy was never the honest broker in the oyster battles. In part, that’s due to a long-standing park service culture that regards “inholdings,” any non-public use of park lands, as inimical to the agency’s mission.
The Great Marin Oyster War is over. The Lunny family has left the estero, remaining fresh oysters are destroyed, their mostly Hispanic workers dispersed and the site cleared.
Now longtime Point Reyes peninsula residents await the next big threat to their existence.
The soon-to-be-released National Seashore Ranch Comprehensive Plan will determine the fate of two dozen or so ranches and 26,000 acres of pastoral land long used for grazing. To most Marinites they represent the heart of sustainable agriculture in West Marin. To others, who would expand the wilderness zone, they are intrusive “inholdings.”
Even the coterie of environmental activists that pine for the ranches’ demise don’t envision that the plan’s environmental assessment will literally call for their closure.
That would be political suicide, even in dark-green liberal Marin.
The agriculture community’s concern is that some seemingly innocuous policy will be inserted in the plan as a poison pill that indirectly causes the ranches to become economically untenable. The likeliest point of conflict will involve the interface between cattle and tule elk that the park service encourages to proliferate on Point Reyes.
Posted by Jane Gyorgy on January 20, 2015
https://oysterzone.wordpress.com/2015/01/20/01-20-15-marin-ij-oyster-farms-demise-sets-stage-for-next-park-battle-by-dick-spotswood/
01-18-15 NEWSWEEK, Tech & Science: The Oyster Shell Game – “YOU’VE BEEN SHUCKED”, by Michael Ames,
Newsweek TECH & SCIENCE
The Oyster Shell Game
BY MICHAEL AMES / JANUARY 18, 2015 11:49 AM EST
Some SIGNIFICANT EXCERPTS from the article (with emphasis added)
The idea that Lunny’s farm was a heavy industry that imperiled the park’s wildlife was, for a while at least, the core reason for evicting him. But for the U.S. Department of the Interior (DOI), the only agency with the power to enforce full wilderness protection, there was one problem with this argument: PROVING IT!!!
After Lunny accepted some legal aid from a libertarian group in Washington, D.C., the rhetoric from environmentalists turned apocalyptic. Amid howls of Koch brothers lurking and baby seals dying, the oyster farm’s request for a 10-year lease extension was described as “a precedent-setting land-grab effort” and a step toward privatizing the entire National Park System. In the face of this escalation, Feinstein’s coalition drew in Republican congressmen, former California lawmakers and dissenting Bay Area progressives, including the chef Alice Waters and the writer Michael Pollan.
“I firmly believe that renewal of the permit is the only way for the Park Service to send an unmistakable signal that the [Obama] administration’s commitment to scientific integrity is real,” Feinstein told Salazar.
Findings Altered
“I’m not interested in being a whistle-blower,” Brent Stewart said. But documents he recently shared with Newsweek reveal how a federal science agency ignored norms of academic research in an apparent effort to justify policy and shut down a private business.
Stewart is a marine biologist and seal behavior expert with the Hubbs-SeaWorld Research Institute in San Diego. In May 2012, the U.S. Geological Survey (USGS) recruited him to evaluate photos taken by “remotely operated wildlife monitoring cameras” that a Park Service scientist had secretly installed around the estero in May 2007, and that over the years became the focal point of the controversy.
When the conflict between the Park Service and the Lunny family first erupted in 2007, the Marin County Board of Supervisors reached out to two people: Feinstein and Corey Goodman, a National Academy of Sciences (NAS) member and a former University of California, Berkeley, and Stanford biology professor who lives near Point Reyes. They discovered a Park Service outpost whose scientists had published dubious environmental reports that, for example, erroneously attributed one seal colony’s 80 percent decline to the oyster farm. The disappearing seals, Goodman later learned, had merely relocated closer to the farm.
Feinstein called on the NAS to conduct an external review of the Park Service’s environmental studies. The resulting report concluded that Park Service scientists, in setting out to prove the farm was causing environmental harm, had “selectively presented, over-interpreted, or misrepresented the available scientific information” and “exaggerated the negative and overlooked potentially beneficial effects of the oyster culture operation.”
Throughout the battle, environmental groups had labeled the farm, as one brochure put it, “an ecological disaster.” But after THE NAS REPORT DIFFUSED THE URGENCY over issues like eelgrass (coverage had actually doubled from 1991 to 2007), fish (healthy) and invasive tunicates (problematic, but also epidemic worldwide), attention once again turned to the estero’s marquee wildlife: those seals.
…the NAS called for more and better research on them in Drakes Estero and SPECIFICALLY SUGGESTED “a data collection system that could be independently verified, such as TIME- AND DATE-STAMPED PHOTOGRAPHS.” What the NAS did not know, because Park Service scientists had not told it, was that such a trove of evidence ALREADY EXISTED—roughly 250,000 archived photographs, snapped once a minute by an automatic Reconyx Silent Image game camera, every day from sunup to sundown during the seals’ spring pupping season, FOR MORE THAN THREE YEARS. The photos documented oyster boats passing the seals at a distance of about 700 yards, or a little under a half-mile, with a large noise-buffering sandbar between them AND NO CLEAR EVIDENCE THAT EITHER MAN OR BEAST HAD EVER NOTICED THE OTHER.
When Feinstein learned that the Park Service had concealed these photos, she went into full boil. Park Service scientists, she said, “acted as if they were advocates with no responsibility to fairly evaluate the scientific data.” She told Salazar the integrity of his agency was on the line.
Goodman filed a formal scientific-misconduct complaint, which in turn triggered an internal investigation by a DOI field solicitor named Gavin Frost, who was no more charitable in his assessment. Park Service scientists, Frost wrote, had “intentionally omitted the photographic research, in an effort to manipulate the outcome of [the NAS] report,” and were “blurring the line between exploration and advocacy.” Frost’s report ultimately charged Park Service employees with the lesser crimes of “scholarly” and “administrative” misconduct and let them carry on with their seal studies undeterred.
In 2012, with the end of the farm’s lease approaching, the DOI ordered the USGS to complete a definitive study of the seal photographs. Stewart, … was called in … to determine whether the photos were sufficient for scientific research and whether, … Lunny’s boats had disturbed the creatures.
…Stewart … reports, determined there were no disturbances attributable to the oyster farm’s boats. …But when the USGS published its final report that November, Stewart discovered that his findings had been altered and that the study reached conclusions his research directly contradicted. “It’s clear that what I provided to them and what they produced were different conclusions and different values,” says Stewart. “In science, you shouldn’t do that.”
….the USGS went back to Stewart months later and asked him to double-check his work ON TWO DATES IN PARTICULAR. He did as requested and reiterated his findings, but even this did not alter the final report’s inaccuracies. In its Final Environmental Impact Statement, the Park Service took this alteration one step further by implying causation between the boats and the seals, something Stewart had explicitly ruled out. Eventually, this Impact Statement would beused by Department of Justice lawyers in their arguments against Lunny before the 9th U.S. Circuit Court of Appeals.
Stewart told his contacts at the USGS that their report had errors and asked if he could correct them. “The response I got was, ‘No, it’s done. It can’t be changed.’ That was a bit shocking.”
This wasn’t the first time a DOI agency was caught making fraudulent claims. Two years ago, Feinstein and Goodman uncovered an attempt to by the Park Service to use sound measurements from a 1995 study on New Jersey jet skis in order to show that Lunny’s boats were distressing the seals. “I am frankly stunned,” by the patterns of abuse, Feinstein wrote in her final letter on the matter to Salazar.
Goodman, a professor who peppers his conversations with sayings like “facts are our friends,” emerged as a fierce advocate for the farm and against what he sees as the misuse of science. In May 2013, he filed another scientific misconduct complaint against the USGS where he reiterated how the agency had twisted Stewart’s facts. “[It] is so absurd,” he told Newsweek, “you could show it to grammar school students and they would immediately understand it was ridiculous.”
This past November, the USGS dismissed Goodman’s 160-page complaint with a one-page letter. The agency’s Scientific Integrity Office did not address the specifics of Goodman’s report in either their letter or in a brief overview published on the DOI website. In the latter, the USGS stated that “no evidence was provided by the complainant, nor found during the inquiry of any significant departure from accepted practices…nor was there any evidence of intent to deceive or misrepresent work.” WHEN PRESSED FOR EXPLANATION OF THEIR DECISION, THE USGS DID NOT RESPOND.
Since 2007, three Park Service employees that Frost charged with scholarly or administrative misconduct have been promoted within the agency. The USGS and DOI declined to comment on this story. U.S. Representative Jared Huffman, whose 2nd congressional district includes Point Reyes (and whose office has had copies of Stewart’s reports since May 2013), also declined comment on this story, as did Marcia McNutt, who served as USGS director from 2009 to 2013 and is now editor-in-chief of the journal Science. NONE OF STEWART’S CO-AUTHORS ON THE 23012 USGS REPORT RESPONDED TO REQUESTS FOR COMMENT.
An ‘All or Nothing’ Ethic
“There are deep roots to the hostility of environmentalism toward agriculture,” Michael Pollan wrote to Feinstein in 2012. “An ‘all or nothing’ ethic that pits man against nature, wilderness against agriculture, may be useful in some places, under some circumstances, but surely not in this place at this time.” Lunny’s oyster farm, he wrote, “stands as a model for how we might heal these divisions.”
You’ve Been Shucked
Goodman hasn’t given up the fight for good science, but he is discouraged by the politics. “The environmental movement has lost its way,” he said. “And I say that as an environmentalist and a lifelong Democrat.”
Two weeks before Christmas, in a serene Pacific inlet north of San Francisco, a small mountain of fresh oysters sat rotting in the rain. Kevin Lunny, the owner of the Drakes Bay Oyster Company, watched a yellow mini-dozer chug back from the waterfront, tip its shovel and, in a great clattering of shells, dump hundreds more onto the heap.
After seven years of political and legal battles that have grown into one of the ugliest environmental fights in the country, this was the end of the line for Lunny’s oyster farm. “It’s been a terrible time,” said Lunny, who still lives on the nearby cattle ranch where he grew up and where his grandfather started a dairy farm in 1947. The forced closure of the oyster company marks the end, after almost 80 years, of modern shellfish farming in Drakes Estero, the tidal estuary that lies at the center of the dispute.
In 1935, an oyster farm was established in the estuary’s innermost harbor, run for a few decades by a rotating crop of shellfish farmers, and from 1961 on it was called the Johnson Oyster Company. The estero was a generous sea garden, eventually becoming a source of about 500,000 pounds of oyster meat a year, all grown with nothing more than seawater and sunshine. “It was a resource for a lot of people,” Lunny said.
But Drakes Estero is also an environmental sanctuary. It’s home to one of the state’s largest harbor seal colonies and significant numbers of shorebirds, and is prized by naturalists as the ecological heart of the Point Reyes National Seashore, public land managed by the National Park Service. In November 1972, the Johnson family sold their five acres of shoreline to the federal government for $79,200 and signed a 40-year lease that permitted a narrow range of business options, such as “the interpretation of oyster cultivation to the visiting public,” and was renewable as long as any future permit was “in accordance with National Park Service Regulations in effect at the time the reservation expires.” In 2005, Johnson sold that permit to Lunny, who cleaned up and rebranded the old farm and dubbed it the Drakes Bay Oyster Company.
Shutting down the farm this winter was a harsh blow for Lunny and his employees, some of whom worked here for over 25 years, but a critical victory for environmental lobbying groups. For the past few years, advocacy organizations coordinated by two leads, the local Environmental Action Committee of West Marin (EAC) and the National Parks Conservation Association, fought to have the estuary converted to “full wilderness,” a sacrosanct designation that prohibits oystering, along with any other mechanized or motorized interference with the subtler designs of nature.
“At last, we get to restore Drakes Estero to its native splendor,” wrote Amy Trainer, executive director of the EAC, in a late-December column. “The harbor seals that come to Drakes Estero to give birth and raise their young will finally be free from disturbance.”
The idea that Lunny’s farm was a heavy industry that imperiled the park’s wildlife was, for a while at least, the core reason for evicting him. But for the U.S. Department of the Interior (DOI), the only agency with the power to enforce full wilderness protection, there was one problem with this argument: proving it.
To the bewilderment and eventual outrage of Lunny’s advocates in California and Washington, D.C.—U.S. Senator Dianne Feinstein chief among them—the DOI and its National Park Service spent much of the past decade using scientifically unsound, and at times bizarre, tactics to prove the oyster farm had to go. “The Park Service has falsified and misrepresented data, hidden science and even promoted employees who knew about the falsehoods, all in an effort to advance a predetermined outcome against the oyster farm,” Feinstein wrote to then-secretary of the interior Ken Salazar in March 2012. “It is my belief that the case against Drakes Bay Oyster Company is deceptive and potentially fraudulent.”
After Lunny accepted some legal aid from a libertarian group in Washington, D.C., the rhetoric from environmentalists turned apocalyptic. Amid howls of Koch brothers lurking and baby seals dying, the oyster farm’s request for a 10-year lease extension was described as “a precedent-setting land-grab effort” and a step toward privatizing the entire National Park System. In the face of this escalation, Feinstein’s coalition drew in Republican congressmen, former California lawmakers and dissenting Bay Area progressives, including the chef Alice Waters and the writer Michael Pollan.
“I firmly believe that renewal of the permit is the only way for the Park Service to send an unmistakable signal that the [Obama] administration’s commitment to scientific integrity is real,” Feinstein told Salazar.
In November 2012, Salazar ruled against the farm, citing simple reasons: The lease was up; he had no obligation to renew it; and, he argued, the farm violated park policies for commercial activities within the National Park System.
Findings Altered
“I’m not interested in being a whistle-blower,” Brent Stewart said. But documents he recently shared with Newsweek reveal how a federal science agency ignored norms of academic research in an apparent effort to justify policy and shut down a private business.
Stewart is a marine biologist and seal behavior expert with the Hubbs-SeaWorld Research Institute in San Diego. In May 2012, the U.S. Geological Survey (USGS) recruited him to evaluate photos taken by “remotely operated wildlife monitoring cameras” that a Park Service scientist had secretly installed around the estero in May 2007, and that over the years became the focal point of the controversy.
When the conflict between the Park Service and the Lunny family first erupted in 2007, the Marin County Board of Supervisors reached out to two people: Feinstein and Corey Goodman, a National Academy of Sciences (NAS) member and a former University of California, Berkeley, and Stanford biology professor who lives near Point Reyes. They discovered a Park Service outpost whose scientists had published dubious environmental reports that, for example, erroneously attributed one seal colony’s 80 percent decline to the oyster farm. The disappearing seals, Goodman later learned, had merely relocated closer to the farm.
Feinstein called on the NAS to conduct an external review of the Park Service’s environmental studies. The resulting report concluded that Park Service scientists, in setting out to prove the farm was causing environmental harm, had “selectively presented, over-interpreted, or misrepresented the available scientific information” and “exaggerated the negative and overlooked potentially beneficial effects of the oyster culture operation.”
For example, when they saw seal numbers dropping, scientists made targeted assumptions about the oyster farm that ignored critical variables, such as nosy kayakers and shifting sandbars. Such limited data, the NAS said, “cannot be used to infer cause and effect.” Ultimately, the NAS “conclude[d] that there is a lack of strong scientific evidence that shellfish farming has major adverse ecological effects on Drakes Estero.”
Throughout the battle, environmental groups had labeled the farm, as one brochure put it, “an ecological disaster.” But after the NAS report diffused the urgency over issues like eelgrass (coverage had actually doubled from 1991 to 2007), fish (healthy) and invasive tunicates (problematic, but also epidemic worldwide), attention once again turned to the estero’s marquee wildlife: those seals.
Harbor seals are prevalent along the California coast, and according to the National Oceanic and Atmospheric Administration, populations are stabilizing. But with the seals a protected species under the 1972 Marine Mammal Protection Act, the NAS called for more and better research on them in Drakes Estero and specifically suggested “a data collection system that could be independently verified, such as time- and date-stamped photographs.” What the NAS did not know, because Park Service scientists had not told it, was that such a trove of evidence already existed—roughly 250,000 archived photographs, snapped once a minute by an automatic Reconyx Silent Image game camera, every day from sunup to sundown during the seals’ spring pupping season, for more than three years. The photos documented oyster boats passing the seals at a distance of about 700 yards, or a little under a half-mile, with a large noise-buffering sandbar between them and no clear evidence that either man or beast had ever noticed the other.
When Feinstein learned that the Park Service had concealed these photos, she went into full boil. Park Service scientists, she said, “acted as if they were advocates with no responsibility to fairly evaluate the scientific data.” She told Salazar the integrity of his agency was on the line. “Whether it was intentional or because of personal bias, these practices must not be tolerated nor allowed to continue,” the senator said.
Goodman filed a formal scientific-misconduct complaint, which in turn triggered an internal investigation by a DOI field solicitor named Gavin Frost, who was no more charitable in his assessment. Park Service scientists, Frost wrote, had “intentionally omitted the photographic research, in an effort to manipulate the outcome of [the NAS] report,” and were “blurring the line between exploration and advocacy.” Frost’s report ultimately charged Park Service employees with the lesser crimes of “scholarly” and “administrative” misconduct and let them carry on with their seal studies undeterred.
In 2012, with the end of the farm’s lease approaching, the DOI ordered the USGS to complete a definitive study of the seal photographs. Stewart, a respected 37-year veteran in the field, was called in as an independent authority to determine whether the photos were sufficient for scientific research and whether, after years of internal recrimination at DOI and the Park Service over the issue, Lunny’s boats had disturbed the creatures.
On May 3, 2012, Stewart filed his reports, determining there were no disturbances attributable to the oyster farm’s boats. (There was one case, however, where a curious kayaker caused several seals to flush into the water.) But when the USGS published its final report that November, Stewart discovered that his findings had been altered and that the study reached conclusions his research directly contradicted. “It’s clear that what I provided to them and what they produced were different conclusions and different values,” says Stewart. “In science, you shouldn’t do that.”
For example, the USGS had deleted his words “no evidence of disturbance” for one date, and in its analysis stated that two disturbances “were associated with boat activity”—despite Stewart’s study that showed otherwise. Strangely, USGS went back to Stewart months later and asked him to double-check his work on two dates in particular. He did as requested and reiterated his findings, but even this did not alter the final report’s inaccuracies. In its Final Environmental Impact Statement, the Park Service took this alteration one step further by implying causation between the boats and the seals, something Stewart had explicitly ruled out. Eventually, this Impact Statement would beused by Department of Justice lawyers in their arguments against Lunny before the 9th U.S. Circuit Court of Appeals.
Stewart told his contacts at the USGS that their report had errors and asked if he could correct them. “The response I got was, ‘No, it’s done. It can’t be changed.’ That was a bit shocking.”
This wasn’t the first time a DOI agency was caught making fraudulent claims. Two years ago, Feinstein and Goodman uncovered an attempt to by the Park Service to use sound measurements from a 1995 study on New Jersey jet skis in order to show that Lunny’s boats were distressing the seals. “I am frankly stunned,” by the patterns of abuse, Feinstein wrote in her final letter on the matter to Salazar.
Goodman, a professor who peppers his conversations with sayings like “facts are our friends,” emerged as a fierce advocate for the farm and against what he sees as the misuse of science. In May 2013, he filed another scientific misconduct complaint against the USGS where he reiterated how the agency had twisted Stewart’s facts. “[It] is so absurd,” he told Newsweek, “you could show it to grammar school students and they would immediately understand it was ridiculous.”
This past November, the USGS dismissed Goodman’s 160-page complaint with a one-page letter. The agency’s Scientific Integrity Office did not address the specifics of Goodman’s report in either their letter or in a brief overview published on the DOI website. In the latter, the USGS stated that “no evidence was provided by the complainant, nor found during the inquiry of any significant departure from accepted practices…nor was there any evidence of intent to deceive or misrepresent work.” When pressed for explanation of their decision, the USGS did not respond.
Since 2007, three Park Service employees that Frost charged with scholarly or administrative misconduct have been promoted within the agency. The USGS and DOI declined to comment on this story. U.S. Representative Jared Huffman, whose 2nd congressional district includes Point Reyes (and whose office has had copies of Stewart’s reports since May 2013), also declined comment on this story, as did Marcia McNutt, who served as USGS director from 2009 to 2013 and is now editor-in-chief of the journal Science. None of Stewart’s co-authors on the 2012 USGS report responded to requests for comment.
An ‘All or Nothing’ Ethic
Since it was designated as a national seashore by President John F. Kennedy in 1962, Point Reyes has been an ambitious social and environmental experiment. Historic working farms coexist with the park’s protected elk, egrets and elephant seals, and Western ranchers live in close and peaceful proximity to environmentalists. The two communities united in their shared wariness of development and suburbanization, and they collaborated on visionary legislative compromises that made Point Reyes an exceptional preserve close to a major metropolis. But the honeymoon was short-lived.
“There are deep roots to the hostility of environmentalism toward agriculture,” Michael Pollan wrote to Feinstein in 2012. “An ‘all or nothing’ ethic that pits man against nature, wilderness against agriculture, may be useful in some places, under some circumstances, but surely not in this place at this time.” Lunny’s oyster farm, he wrote, “stands as a model for how we might heal these divisions.”
In Northern California, where local food borders on an obsession for many, the agricultural community supported the farm, in both spirit and in court. Alice Waters filed a joint brief in the farm’s defense with the 9th U.S. Circuit Court of Appeals, joining the California Farm Bureau, Food Democracy Now and several restaurateurs and retailers. Along the winding roads that carry weekenders north from the city to graze on grass-fed burgers and aged goat gouda, dozens of hand-painted signs went up on barns, gas stations and storefront windows, pleading, “Save Our Drakes Bay Oysters.”
But to wilderness advocates, the state’s only oyster cannery, with its salt-crusted boats and front-end loaders and plastic oyster bags, was a dirty business in a sacred place. Jerry Meral, a respected conservationist who served as deputy secretary of California’s Natural Resources Agency from 2011 to 2013 and sits on the board of the EAC, which led the fight against the farm, isn’t persuaded by the sustainable seafood argument. “It’s not the only oyster farm,” he told Newsweek. “If there’s a big demand for oysters, it will probably be filled, even if we have to bring them in from China…. I’m not sure you make a decision on the use of a national park on that kind of basis.”
You’ve Been Shucked
The Park Service and wilderness advocates now say that the issue in Drakes Estero was environmental policy, not environmental science. “Science will always be debated, like climate change,” said Melanie Gunn, outreach coordinator for Point Reyes National Seashore. “But the law and policy of the Wilderness Act is very clear,” she said in defense of Salazar’s decision to shut down the farm.
Lunny lost in his circuit court appeal, and this past June, when the Supreme Court declined to hear the case, he ran out of legal options.
To Meral and his EAC, the controversy over bad science is overblown. “I think [Lunny] was treated fairly,” he says. The Park Service, he said, “intended to close him down, they did everything they could to close him down, and eventually they did close him down.” Trainer, who heads the West Marin EAC,wrote that “good government prevailed.”
Goodman hasn’t given up the fight for good science, but he is discouraged by the politics. “The environmental movement has lost its way,” he said. “And I say that as an environmentalist and a lifelong Democrat.” After seven years, Lunny is no longer surprised. The changes to Stewart’s science “is not the first fraud,” he said.
Before Christmas at Drakes Estero, as gulls stalked the perimeter of the rising oyster pile and the farm’s workers hauled out about $2.5 million in unsold oysters, Lunny reached into an exposed dirt hillside about 100 feet from the water and pulled out a small, white shell. “This is a confirmed Oly,” he said, using the nickname for the native Olympia oysters that once filled every bay and estuary on the Pacific Coast. The hillside was part of a midden, an ancient shell pile left behind by earlier seafood-eating peoples, in this case California’s indigenous coastal Miwok tribe, and carbon-dated to over 1,000 years old. Behind Lunny, the yellow mini-dozer coughed black smoke into the air, lifted its shovel and dumped more fresh oysters onto the rotting heap.
“This thing,” Lunny said without turning to look, “could drive me crazy if I let it.”
The link to the article is: http://www.newsweek.com/2015/01/30/oyster-shell-game-300225.html
Posted by Jane Gyorgy on January 18, 2015
https://oysterzone.wordpress.com/2015/01/18/01-18-15-newsweek-tech-science-the-oyster-shell-game-youve-been-shucked-by-michael-ames/
08-23-14 Marin IJ Hard-working oyster farm workers lost their jobs
Hard-working oyster farm workers lost their jobs
When I got back from Korea in the 1950s, I went to work for the previous owner of what is now Drakes Bay Oyster Co. I know my share of oyster farming, from seeding to sending oysters to market.
Watch out dairy ranchers and others out there, the transplant West Marin enviros now have you in their sights. They would rather look at tule elk, which are useless, than look at milk cows.
It’s pretty sad when your neighbors and locals write letters to the Marin IJ stating they are glad the Drakes Bay Oyster Co. is being closed and 30-plus hard-working people are now without a job when they desparately need every penny they earn.
Our economy, that we all wish to would get better, is being kick backward due to too much governmental control.
Former Interior Secretary Kenneth Salazar and enviros could not care less who they step on.
Most of the Washinton puppets and enviros don’t know an oysters from a chicken.
I am a born and raised West Marin native. I grew up in Inverness during the Depression.
The closing of the Drakes Bay Oyster Co. should never have happened.
— Larry “Cheech” Giambastiani, San Rafael
Posted by Jane Gyorgy on August 25, 2014
https://oysterzone.wordpress.com/2014/08/25/08-23-14-marin-ij-hard-working-oyster-farm-workers-lost-their-jobs/
06-04-2013 2,424 Companies & Individuals who already endorse DBOC
BELOW IS THE LIST OF 2,287 PEOPLE AND 137 COMPANIES ALREADY ENDORSING DRAKES BAY OYSTER COMPANY AS OF 4:55 PM, JUNE 4, 2013
PLEASE GO TO THE LINK BELOW TO ADD YOUR ENDORSEMENT and to see who else has joined since this posting. You may make a donation to the cause while there.
http://drakesbayoyster.com/
Thank you for endorsing Drakes Bay Oyster Farm! We are so very grateful for your support. Please see below for a full list of 137 organizations and 2287 individuals that you have added your name to.
If you have not done so already, please consider donating to the litigation fund. Every bit counts!
Organizations
- A & K Shellfish
- Add Garlic!
- Alliance for Local Sustainable Agriculture (ALSA)
- Acuacultura Integral de Baja Californi
- American Grassfed Association
- Blue Waters Kayaking
- Brown Bag Farms
- California Aquaculture Association
- CHEFnews.com
- Chessie Seafood and Aquafarms
- Community Alliance with Family Farmers
- Coonamessett Farm
- Crazy Flower Wines
- Custom Farming
- Defend Rural America
- Dover Point Oyster Co
- Edible Marin and Wine Country Magazine
- Jerry Wyman Photography
- Farm-to-Consumer Legal Defense Fund
- Farm Food Freedom KY
- The Granary Feed and Pet Supply Store
- Intensive Nutrition Inc.
- K&B Seafood
- Marin Grange
- McEvoy Ranch
- National Grange
- Native Sons of the Golden West
- Newport River Management
- North Bay Patriots
- Ocean Song Retreate
- Oyster Company of Virginia
- REESE Water & Land Surveying
- Sonoma Valley Grange [Click here to read their resolution of support]
- Straus Family Creamery
- Wine Country Chocolates”
Individuals
b kronenberg from CA
Greg Frichtl from IL
Ken Longo from CA
Susan Kilian from CA
A. Andersen from CA
Aaron Elmone from CA
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Posted by Jane Gyorgy on June 4, 2013
https://oysterzone.wordpress.com/2013/06/04/06-04-2013-137-companies-and-2287-individuals-who-already-endorse-dboc/
06-03-2013 City of Sonoma Unanimously Passes Resolution in Support of Drakes Bay Oyster Farm
06-03-2013 The City of Sonoma unanimously passed a resolution in support of Drakes Bay Oyster Farm today. In conclusion, the resolution reads:
NOW, THEREFORE, BE IT RESOLVED, that the City Council of the City of Sonoma
1 Requesting Assembly Member Marc Levine, Chair of the Select Agriculture and Environment Committee, to urge the State of California to assert its rights to continue to lease the water bottoms in Drakes Estero for shellfish cultivation which would include giving support to the Fish and Game Commission in its full jurisdiction; and
2 Request Congressman Jared Huffman to support the bi-partisan Congressional investigation by the appropriate House Committee of Natural Resources which he is a member of, into the questionable science that informed Secretary Salazar’s decision not to grant the Oyster Farm a permit for the facilities onshore Drakes Estero; and
3 Commends and lends its support of Drakes Bay Oyster Farm in its heroic efforts to seek a permit to continue to utilize the onshore facilities and thus to preserve the last oyster cannery in California and the many jobs it provides for women, in particular, maintaining the environmental and agricultural stewardship which presents an expemplary template of harmonious co-existence of sustainable agriculture and wilderness.
ADOPTED this 3rd day of June, 2013 by the following vote:
AYES: Barbose, Rouse, Brown, Gallian, Cook
NOES: None
ABSENT: None
and was signed by Ken Brown, Mayor and attested to by Gay Johann, City Clerk
For the complete text of the resolution click on, or copy and paste, the link below
Posted by Jane Gyorgy on June 3, 2013
https://oysterzone.wordpress.com/2013/06/03/06-03-2013-city-of-sonoma-unanimously-passes-resolution-in-support-of-drakes-bay-oyster-farm/
04-22-13 Drakes Bay Oyster Company Submits Brief, argues “injunction to be maintained, Secy’s action to be overturned.”
“Although nearly fifty years have passed since California conveyed Drakes Estero to Defendants (NPS), they only recently became obsessed with eliminating the oyster farm, which resulted in illegitimate science, misrepresentations of data, incorrect interpretations of law, and violations of NEPA and their own regulations. DBOC has shown that it is likely to prevail on its claims calling these errors to account.”
“In their obsession to eliminate the oyster farm, Defendants have abused the law, the facts, the science—and especially the oyster farm, its employees, and their families. This Court should reverse the district court’s order and maintain the injunction.”
(From DBOC Brief to Ninth Circuit – Filed on Earth Day 2013)
The following is the introduction to the Brief filed by DBOC to the Ninth Circuit Court of Appeals arguing that the injunction be maintained – and the Secretary’s actions be overturned):
No. 13-15227
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
DRAKES BAY OYSTER COMPANY and KEVIN LUNNY,
Plaintiff-Appellants,
v.
SALLY JEWELL, in her official capacity as Secretary,
U.S. Department of the Interior; U.S. DEPARTMENT OF THE INTERIOR;
U.S. NATIONAL PARK SERVICE; and JONATHAN JARVIS, in his official capacity as Director, U.S. National Park Service,
Defendant-Appellees.
———————————————–
On Appeal from the United States District Court
for the Northern District of California
(Hon. Yvonne Gonzales Rogers, Presiding)
District Court Case No. 12-cv-06134-YGR
———————————————–
APPELLANTS’ REPLY BRIEF
ON PRELIMINARY INJUNCTION APPEAL
INTRODUCTION
By its plain language, Section 124 authorized the Secretary to issue a special use permit (SUP) “notwithstanding” any laws that would bar Defendants from doing so. Defendants argue that Section 124 precluded judicial review of the Secretary’s decision to deny the SUP. But Defendants have provided no evidence, much less the required clear and convincing evidence, that Congress intended this result. Instead, Defendants advance a construction of Section 124’s notwithstanding clause that ignores both the text and the context of the law. Congress intended Section 124 to be an asymmetrical, limited-purpose statute that would benefit DBOC, override any legal impediment to continued oyster farming, and result in an extension of the SUP—the statute was not intended to harm DBOC or to insulate a permit denial from judicial review. The district court was wrong to conclude that it lacked jurisdiction.
The district court and Defendants are also wrong on the merits of this case. For example, the Secretary asserted that he could not issue the permit because doing so would “violate” the 1976 Acts, and that “[Section] 124 …in no way overrides the intent of Congress as expressed in the 1976 act” (original emphasis deleted). These statements confirm that Defendants got the law backwards: They thought that the 1976 Acts trumped Section 124, when in fact Section 124 was passed to override any restrictions to permit issuance that might have been imposed by the 1976 Acts.
When the Secretary asserted that the intent of Congress, as expressed in 1976, was “to establish wilderness at the estero,” that too was wrong. Congress designated Drakes Estero as potential wilderness (rather than actual wilderness) because Defendants told Congress that the State of California’s reserved rights were inconsistent with a wilderness designation. Following the 1976 Acts, Defendants maintained their position that the estero could not be designated as wilderness, and they endorsed oyster farming in the estero. Although nearly fifty years have passed since California conveyed Drakes Estero to Defendants, they only recently became obsessed with eliminating the oyster farm, which resulted in illegitimate science, misrepresentations of data, incorrect interpretations of law, and violations of NEPA and their own regulations. DBOC has shown that it is likely to prevail on its claims calling these errors to account.
Finally, Defendants are wrong when they argue that “the central equitable issue in this case” is a “bargain,” struck between the United States and the oyster farm in 1972, in which “[t]he shellfish business could remain in Drake’s Estero for forty years, and then the Estero would return to the American people.” Defendants’
Response Brief (RB) 17, 49. The 40-year “bargain” could apply only to the onshore area—not the estero—because only the onshore area was covered by the
40-year Reservation of Use and Occupancy (RUO). And the RUO specifically provided for a renewable lease that could be extended beyond 40 years by a SUP.
The real “bargain,” which was struck when California transferred the land to the United States in 1965, allowed the State to continue leasing the estero for oyster
farming in perpetuity. DBOC does not lease the estero itself from Defendants, but rather from California, whose most recent lease was issued in 2004 and runs until
2029.
In their obsession to eliminate the oyster farm, Defendants have abused the law, the facts, the science—and especially the oyster farm, its employees, and their
families. This Court should reverse the district court’s order and maintain the injunction.
For the full text of the filing, click on the documents below:
04-22-13 Docket No 49-1_Reply Brief
04-22-13 Docket No 49-2_Appellants’ Further Excerpts of Record
Posted by Jane Gyorgy on April 22, 2013
https://oysterzone.wordpress.com/2013/04/22/04-22-13-drakes-bay-oyster-company-submits-brief-argues-injunction-to-be-maintained-secys-action-to-be-overturned/
03/23/2013 Federal Budget vote
Following a marathon session yesterday, the US Senate passed on a 50-49 vote, a Federal budget that
- revised the budget for 2013; and,
- established budget levels for federal spending through 2023.
More than 400 amendments were filed (formally submitted), and of that, about one in five (around 80 – don’t have exact number) were actually debated, considered and then subject to a voice or recorded vote. The Senate adjourned at 5:23 am (Eastern time).
One of those 400 amendments — Senators Vitter (R-LA) and Feinstein (D-CA) co-sponsored a bi-partisan amendment to extend the DBOC lease for 10 years (consistent with the previously enacted statutory authority in 2009). Along with more than 300 other amendments, this amendment, in the rush and crush to complete action on the budget, did not get considered.
Like Senator Feinstein, NPS false science and the Interior Department’s failed (corrupt) IG investigations compelled Senator Vitter’s initial involvement in Drakes Estero issues in 2011. Senator Vitter also represents one of the largest shellfish growing states and regions (Gulf Coast).
The Vitter-Feinstein effort signals a new bi-partisan effort to correct Secretary Salazar’s agenda-driven decision to shut down the nearly 100-year old iconic oyster farm in Drakes Estero. Both Senators, working together, will have other opportunities to correct this injustice.
Late yesterday afternoon, Cause of Action issued the following statement:
Today, Senators David Vitter (R-LA) and Dianne Feinstein (D-CA) co-sponsored an amendment to the Senate Concurrent Resolution on the Budget for Fiscal Year 2014, which, if passed, would allow Drakes Bay Oyster Company to remain open for 10 more years. The amendment would “establish a deficit-neutral reserve fund to reinstate the reservation of use and occupancy and special use permits to conduct certain commercial operations.”
Dan Epstein, Cause of Action’s executive director commented on the proposal:
“Government accountability is not a partisan issue—neither is saving jobs. This amendment would save 30 jobs at Drakes Bay Oyster Company and 40 percent of California’s oyster market. It would also send the message to the Department of Interior that transparency and scientific integrity cannot be casually dismissed for political purposes.”
Cause of Action, Briscoe Ivester & Bazel LLP, Stoel Rives LLP, and SSL Law represent Drakes Bay Oyster Company in their current federal lawsuit against the Department of the Interior, National Park Service and Secretary Ken Salazar.
SF Chronicle
The amendment, by Sen. David Vitter, R-Louisiana, and Feinstein, D-Calif., was added to the Senate Concurrent Resolution for the 2014 federal budget. It would “establish a deficit-neutral reserve fund to reinstate the reservation of use and occupancy and special use permits to conduct certain commercial operations.”
Feinstein, who has accused the National Park Service of launching an unfair, scientifically flawed campaign against the oyster farm, also sponsored legislation in 2009 authorizing a lease extension, which Salazar eventually chose not to do. That decision prompted the company to sue.
“This amendment would save 30 jobs at Drakes Bay Oyster Co. and 40 percent of California’s oyster market,” said Dan Epstein, the executive director of Cause of Action, which is part of the oyster company’s legal team. “It would also send the message to the Department of Interior that transparency and scientific integrity cannot be casually dismissed for political purposes.”
Friday Mar 22, 2013 8:53 PM PT
Feinstein goes feet first into oyster farm fray
Sen. Dianne Feinstein re-entered the seemingly never-ending battle over the ouster of an oyster farm from Drakes Bay Friday by co-sponsoring an amendment to a budget resolution that would help the shellfish operation remain open.
Secretary of the Interior Ken Salazar chose not to extend the 40-year lease, known as a reservation of use and occupancy, for the Drakes Bay Oyster Company, late last year. But the Ninth U.S. Circuit Court of Appeals in San Francisco ruled in February that the company could stay open until mid-May, when a hearing will be held to hash out “serious legal questions” about the decision.
The amendment, by Sen. David Vitter, R-Louisiana, and Feinstein, D-Calif., was added to the Senate Concurrent Resolution for the 2014 federal budget. It would “establish a deficit-neutral reserve fund to reinstate the reservation of use and occupancy and special use permits to conduct certain commercial operations.”
If passed, the amendment would essentially make a statement of support for allowing the oyster operation to remain open at least 10 more years. Budget resolutions, however, do not carry the force of law and are not signed by the president.
The oyster company, which runs a cannery and harvests about a third of the state’s oysters, is the only business on the 2,500-acre estero in Point Reyes National Seashore that Congress designated in 1976 as a future marine wilderness.
Feinstein, who has accused the National Park Service of launching an unfair, scientifically flawed campaign against the oyster farm, also sponsored legislation in 2009 authorizing a lease extension, which Salazar eventually chose not to do. That decision prompted the company to sue.
“This amendment would save 30 jobs at Drakes Bay Oyster Co. and 40 percent of California’s oyster market,” said Dan Epstein, the executive director of Cause of Action, which is part of the oyster company’s legal team. “It would also send the message to the Department of Interior that transparency and scientific integrity cannot be casually dismissed for political purposes.”
Posted By: Peter Fimrite ( Email ) | Mar 22 at 8:01 pm
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https://oysterzone.wordpress.com/2013/03/23/03232013-federal-budget-vote/
03-22-13 About tonight’s proceedings, responses to your questions
I’VE RECEIVED SOME QUESTIONS REGARDING TONIGHT’S PROCEEDINGS.
HERE IS WHAT I FOUND OUT:
* The Vitter amendment, this afternoon, was filed to the Senate version of the budget (presently on the floor, the pending order of business).
* The House already adopted (Ryan) budget.
* Once Senate acts (passes the bill), the House and Senate must reconcile their bills.
* Whether or not they can – unknown.
* The Vitter amendment may or may not be considered (there were some 400 amendments filed – probably 15-20, maybe 30 will actually be considered).
* What’s significant, regardless what happens, there is now a bi-partisan Senate effort to override the Secretary’s decision.
* Vitter comes from one of the largest shellfish producing states. He is aware that the false science manufactured by NPS has ALREADY migrated to Southern states – and is now showing up in regulatory proceedings.
We should know something by dawn – Senate’s supposed to be nearly all night.
Posted by Jane Gyorgy on March 22, 2013
https://oysterzone.wordpress.com/2013/03/22/03-22-13-about-tonights-proceedings-responses-to-your-questions/
03-22-12 CONTACT SENATOR BOXER (OR YOUR STATE SENATORS) TONIGHT
YOUR IMMEDIATE ACTION REQUIRED, COULD AFFECT TONIGHT’S DECISION
A BI-PARTISAN VITTER-FEINSTEIN AMENDMENT WAS FILED A SHORT TIME AGO.
THE SESSION WILL GO VERY LATE TONIGHT (03/22/13) AND PERHAPS INTO TOMORROW.
WE DO NOT KNOW WHEN IT WILL COME UP.
IT IS AMENDMENT # 545, CLICK ON THIS LINK TO READ IT:
See below and the attached amendment.
Please help us get the word out to supporters of DBOF across the State to
call Boxer’s offices and voice your support of amendment #545.
If you have friends and family outside of California they should
call their respective senators with the same request:
“We support the bi-partisan Senate amendment #545.”
Here is how to contact Boxer:
BoxerBay Area 510-286-8537
Los Angeles 213-894-5000
Sacramento 916-448-2787
Inland Empire 951-684-4849 (Riverside, etc.)
Fresno 559-497-5109
San Diego 619-239-3884
___________________________________________________________________________________________________
All.
REQUEST YOU CONTACT SENATOR BOXER IN CA OR YOUR SENATOR.
URGE SUPPORT FOR AMENDMENT # 545 – Vitter-Feinstein.
THE SENATE IS DEBATING THE FEDERAL BUDGET.
A BI-PARTISAN VITTER-FEINSTEIN AMENDMENT WAS FILED A SHORT TIME AGO.
THE SESSION WILL GO VERY LATE TONIGHT AND PERHAPS INTO TOMORROW.
WE DO NOT KNOW WHEN IT WILL COME UP.
IT IS AMENDMENT # 545.
Posted by Jane Gyorgy on March 22, 2013
https://oysterzone.wordpress.com/2013/03/22/03-22-12-contact-senator-boxer-or-your-state-senators-tonight/
03-20-2013 Ca. Farm Bureau Federation President’s Message: Why the DBOC Case Matters.
For Farm Bureau, the case has implications beyond Drakes Estero.
Half of the land in California is owned by the federal or state government. Rural communities, where many Farm Bureau members live and work, depend on multiple use of these lands. National parks and wilderness areas operate under land-management rules that allow for human presence and use, even when the primary mandate is for preservation and environmental protection.
To ban an operation such as Drakes Bay Oyster Co. on the ideological belief that it should not exist in a national park or wilderness area—despite evidence that the farm provides important economic, cultural and social benefits—sets an awful precedent for everyone who believes that humans and nature can and must co-exist sustainably.
President’s message: Why the Drakes Bay Oyster case matters
Issue Date: March 20, 2013
Paul Wenger. President, CFBF
Last week, the California Farm Bureau Federation, the Marin County Farm Bureau and the Sonoma County Farm Bureau joined in a petition to a federal appeals court, urging the court to give the Drakes Bay Oyster Co. a new hearing—and a new chance to continue its sustainable aquaculture operation.
The company and its owners, Kevin and Nancy Lunny, carry on a decades-long tradition of mariculture in Drakes Estero. The oyster farming operation has been there since the 1930s—so long that few people remember the estero before the farm existed. It was there long before the Point Reyes National Seashore was established in 1960.
Despite a record as excellent stewards of the land and of the estero, the Lunnys and their farm face eviction.
The National Park Service determined that the oyster farm had to go and pulled out all the stops in its efforts to evict the farm, even though its presence adds to the overall character of the area. The Lunnys, Sen. Dianne Feinstein, Farm Bureau and other advocates have pointed out a long history of shoddy, slanted pseudo-science used by the Park Service in an effort to justify removing the oyster farm.
Despite protests from the West Marin community, Interior Secretary Ken Salazar decided last November that the farm would have to leave when its lease expired. Only a last-minute stay from a federal court last month allowed the Lunnys to remain in business, while the court considers their appeal.
If you’ve been following the case like I have, you know that Drakes Bay Oyster Co. is a prime example of the local, sustainable agriculture that many Bay Area residents prize. If you haven’t been following the case, you might be surprised by the range of individuals, groups and organizations that joined together in the petition last week on behalf of the Lunnys.
Along with CFBF and the two county Farm Bureaus, the petitioners included famed Berkeley chef Alice Waters; the Hayes Street Grill, a fish restaurant in San Francisco; the Tomales Bay Oyster Co.; the Marin County agricultural commissioner; Food Democracy Now; Marin Organic; and the Alliance for Local Sustainable Agriculture.
These folks may all come at this issue from different angles, but we end up at the same place: What’s happening to the Drakes Bay Oyster Co. is wrong.
The petition was written by Judith Teichman, a San Francisco attorney who assembled the coalition favoring the farm’s continued operation. It notes that closing down Drakes Estero as a source of fresh, sustainably raised shellfish would wreak havoc with the world-famous local, sustainable food and agriculture of the Bay Area. It would also disrupt shellfish cultivation on Tomales Bay. It would put 31 people out of work, some of whom have worked for the oyster farm for 30 years.
Closing the oyster company would also be a serious setback for modern environmental thinking, the petition says. Leading voices in the environmental movement have called for 21st century conservationists to embrace a more people-friendly ethic that supports working landscapes—just the sort of operation that Drakes Bay Oyster Co. represents.
Old-fashioned environmental activists want to force people off the land, to return it to some sort of pre-human condition. That thinking leads to confrontation instead of collaboration, and to situations where progressive, thoughtful farmers and ranchers like the Lunnys get pushed aside because of someone’s interpretation of the purity of nature.
For Farm Bureau, the case has implications beyond Drakes Estero.
Half of the land in California is owned by the federal or state government. Rural communities, where many Farm Bureau members live and work, depend on multiple use of these lands. National parks and wilderness areas operate under land-management rules that allow for human presence and use, even when the primary mandate is for preservation and environmental protection.
To ban an operation such as Drakes Bay Oyster Co. on the ideological belief that it should not exist in a national park or wilderness area—despite evidence that the farm provides important economic, cultural and social benefits—sets an awful precedent for everyone who believes that humans and nature can and must co-exist sustainably.
That’s why Farm Bureau supports the Lunnys and Drakes Bay Oyster Co. If the bureaucrats and the kick-the-humans-out branch of environmentalism can run the Lunnys out, you can bet they’ll keep trying to throttle more wise uses of taxpayer-owned lands.
That narrow, preservationist vision never worked and doesn’t now. The appeals court will hear the oyster farm’s case in May, and we hope it will restore common sense to the management of the Point Reyes National Seashore.
Permission for use is granted, however, credit must be made to the California Farm Bureau Federation when reprinting this item.
Posted by Jane Gyorgy on March 20, 2013
https://oysterzone.wordpress.com/2013/03/20/03202013-ca-farm-bureau-federation-presidents-message-why-the-dboc-case-matters/
03-15-13 DBOC Attracts Support from Restauranteurs (Chez Panisse’s Alice Waters)
“Interior is making its best effort to flat out kill this oyster farm and its jobs by using misleading science and ignoring economic impacts,” Sen. David Vitter, R-La., one of the lead sponsors — 22 other Republicans have signed onto the bill — wrote in a statement to the Independent Journal. “My bill would implement a good first step to letting the Drakes Bay workers continue working.”
|
Posted by Jane Gyorgy on March 15, 2013
https://oysterzone.wordpress.com/2013/03/15/031513-dboc-attracts-support-from-restauranteurs-chez-panisses-alice-waters/
03-14-13 Amicus Brief filed by Alice Waters (Chez Panisse), Hayes St Grille, Tomales Bay Oyster Co, Multiple Farm Bureaus & Others
03-14-13
The Amicus (Friend of the Court) brief was submitted on behalf of:
* Alice Waters, Owner, Chez Panisse Restaurant, Berkeley, CA and world famous food author
* Hayes Street Grill, Restaurant in San Francisco
* Tomales Bay Oyster Company
* Stacey Carlsen, Agricultural Commissioner, County of Marin
* Marin County Farm Bureau
* Sonoma County Farm Bureau
* California Farm Bureau Federation
* Food Democracy Now
* Alliance for Local Sustainable Agriculture
* Marin Organic
“Closing the Oyster Farm would have a broad, negative and immediate impact, on the local economy and the sustainable agriculture and food industry in the San Francisco Bay Area, on the school children of the workers who live in the housing units onsite, and, in the longer term, on food security and the U.S. balance of trade. Closing down the oyster farm in Drakes Estero, which has existed since the early 1930s, would be inconsistent with the best thinking of the modern environmental movement and further tear at the fabric of an historic rural community that the Point Reyes National Seashore [Seashore] was created to help preserve.”
These words opened a “Friend of the Court Brief” (attached, PDF) just submitted to the Ninth Circuit Court of Appeals in support of Drakes Bay Oyster Farm prepared by Judy Teichman on behalf Alice Waters, Chez Panisse Restaurant (Berkeley), the Marin and Sonoma County County Farm Bureaus, California Farm Bureau Federation, Marin Organic, Food Democracy Now, ALSA, the Hayes Street Grill (restaurant) and Stacy Carlsen, Ag Commissioner, County of Marin.
Excerpts from the Brief on Key Issues
Shellfish as a Food Source in California
“Today California is second only to the State of Washington in shellfish production on the West Coast. Almost 40% of the oysters grown in California and 50% of the Marin-County produced oysters are grown in Drakes Estero. The Drakes Estero water bottoms are 55% of the water bottoms in the State of California that are leased for shellfish cultivation and 85% of the shellfish growing area in Marin County and the San Francisco Bay Area.5 Shellfish produced in Drakes Estero play an important role in the local, regional and statewide economy, and there are no options for relocating these oyster beds in California.”
Shellfish in Drakes Estero
“Importing shellfish to replace those now grown in Drakes Estero will defeat the principle of local sustainable farm production and food security and further worsen the US trade balance.”
Impact on Shellfish Production in Tomales Bay
“The Tomales Bay Oyster Compay [TBOC] and the Hog Island Oyster Company are Marin County oyster growers with retail outlets located on Tomales Bay. Their companies cannot meet the local demand for shellfish. They already buy shellfish from DBOC and in some instances out of area. “Closing DBOC will cause a loss of local shellfish production that cannot be replaced.” The Tomales Bay growers were not contacted during the environmental impact process about the economic or other impacts that would flow from closing down DBOC.”
Impact on West Marin Schools and Children Living at the Oyster Farm Quoting Jim Patterson’s Letter to the President (Principal, West Marin School), “This is probably what made the workers feel most disrespected. They were hopeful when they heard of his visit, but it turned out to be what they described as a 20-minute photo op, without any real discussion, listening, questions or understanding (he didn’t even go out on the water to see the condition of “the pristine jewel” he is trying to save). I wish I could remember the Spanish word for mockery, because that is how the workers felt – mocked . . .”
Further Quoting from Patterson’s letter, “This decision seems to go against everything . . . this current administration stands for. Does it create jobs? No. Does it address affordable housing? No. Does it help with immigration? No. Does it support sustainable farming? No. Does it help the economy? No. Does it help the environment? No. Consider this: Drakes Bay Oyster Company supplies oysters to a multi-million if not billion-dollar food industry in California. Will that industry stop consuming oysters? No. Oysters will be imported from Washington, Mexico, China. The impact of our carbon footprint on the whole region and world will far outweigh any good that might be gained from turning this estuary [into] a wilderness.”
Environmentalism: Evolving Conservation
“Closer to home, in a September 12, 2012, guest column in the West Marin Citizen, Sonoma State University Associate Professor of Environmental Studies and Planning, Laura Watt, commented that what makes the controversy over the future of DBOC “somewhat unique is that both ‘sides’ are environmentalists:””
“In closing Prof. Watt returns to a discussion of a new book on national parks, Uncertain Path: A Search for the Future of National Parks, by William Tweed, a long time NPS employee, who articulates a “strong need for a shift in NPS management,” and argues “that the old idea of park preservation as ‘keeping things the same forever’ no longer applies in today’s evolving circumstances.””
Scientists and Other Shellfish Growers Speak Out
“Writing that an “anti-science mania is sweeping parts of the United States,” water and climate scientist Peter Gleick of the Pacific Institute says, “bad science leads to bad policy, no matter your political beliefs.” Using the controversy over the future of DBOC as his example, Gleick points out that good science could play a key role in the dispute over wilderness versus local sustainable agriculture, but “we’re not getting good science:””
Quoting Dr. Gleick in the Brief, “Science is not democratic or republican. Scientific integrity, logic, reason, and the scientific method are core to the strength of our nation. We may disagree among ourselves about matters of opinion and policy, but we (and our elected representatives) must not misuse, hide, or misrepresent science and fact in service of our political wars.”
Cynical Use of NEPA Undermines Support for Environmental Review and Respect for Government
“The failure of NPS staff to contact the kayak companies for feedback on their experience, and the failure to reveal in the Final EIS visitors section the kayak companies’ support for the Oyster Farm experience, are brazen examples of NPS avoiding information or ignoring comments inconsistent with the decision to convert Drakes Estero to wilderness status by any means necessary.”
In her extensive comment on the “Visitor Experience and Recreation” section of Chapter 3 in the EIS, Oyster Farm Manager Ginny Lunny Cummings commented in detail on the opportunities for personal growth and education that DBOC already provides. By way of credentials to provide the interpretive services offered by DBOC seven days a week, she cites her early experience as a NPS Interpretive Ranger at the Seashore, and her degree in education and prior teaching experience. She challenges the Seashore’s authority to say in the EIS that the “primary focus of DBOC is the commercial operation for the sale of shellfish to restaurants and the wholesale shellfish market outside the park.” She describes the ways in which DBOC reaches out to groups and individuals with invitations for educational tours. She urges NPS to “fully consider the adverse impact to 50,000 seashore visitors per year if NPS chooses to evict DBOC,” and asks that a “more informed study be made” of DBOC’s contribution to “visitor services:”
(Quoting Ginny Lunny Cummings) “. . . Drakes Bay Oyster Farm is an interpretive goldmine that the NPS should embrace, not eradicate. Our entire nation is beginning to understand the social, environmental and health benefits of supporting local farms, local farmers markets and local sustainable foods. NPS/PRNS have one of the finest examples right in the heart of the Seashore, in Drakes Estero, where the wildlife, mammals, a pristine estuary and healthy local food production coexist in harmony in Point Reyes National Seashore. Let the citizens of our United States not lose this “pearl” of an example of coexistence and harmony with Drakes Estero. The Final EIS dismisses DBOC’s interpretive services as “not a visitor service.””
To produce the Final Environmental Impact Statement (FEIS) the National Park Service, spent more than $ 2 million taxpayer dollars, produced a 1,000 page document, took 800+ days to prepare it and then dismissed it without informing the Lunny family, owners of DBOC once the NPS realized their EIS became wholly discredited. NPS was required to submit the FEIS to EPA, post a notice in the Federal Register, prepare a Record of Decision and allow a 30-day comment period – none of which was done at the time, or since – all in violation of Federal Regulations.
To read the full article click on the link below or copy and paste it into your web browser:
Posted by Jane Gyorgy on March 14, 2013
https://oysterzone.wordpress.com/2013/03/14/03-14-13-amicus-brief-filed-by-alice-waters-chez-panisse-hayes-st-grille-tomales-bay-oyster-co-multiple-farm-bureaus-others/
03-14-13 E&E News PM: Farm Groups, Businesses, Back DBOC
03/14/13 E&ENews PM
Farm groups, businesses back Calif. oyster farm’s bid to stay at national seashore
5. INTERIOR:
Jessica Estepa, E&E reporter
Published: Thursday, March 14, 2013
A coalition of local businesses and agriculture interests yesterday came out in support of a California oyster farm slated for closure in Point Reyes National Seashore.
In the first of what is likely to be many legal briefs on both sides to be filed ahead of a May hearing with the 9th U.S. Circuit Court of Appeals, the coalition said it supports the Drakes Bay Oyster Co.’s case for an injunction that would allow it to remain open while a lawsuit against the Interior Department is settled.
“Closing the Oyster Farm would have a broad, negative and immediate impact, on the local economy and the sustainable agriculture and food industry in the San Francisco Bay Area, on the school children of the workers who live in the housing units onsite, and, in the longer term, on food security and the U.S. balance of trade,” the group said in its brief.
At issue is a dispute over the oyster farm in an area that has been designated as potential federal wilderness. Interior Secretary Ken Salazar last year decided not to renew the farm’s lease, which expired last year. Farm owner Kevin Lunny has sued Interior, saying Salazar did not adequately follow the National Environmental Policy Act before making his decision.
The 9th Circuit will hear the injunction case in May and granted an emergency stay for the farm to remain open until then (E&E Daily, Feb. 26).
Those that filed the brief: Hayes Street Grill, Tomales Bay Oyster Co., the California Farm Bureau Federation, the Marin County Farm Bureau, the Sonoma County Farm Bureau, Food Democracy Now, Marin Organic, the Alliance for Local Sustainable Agriculture, chef Alice Waters and Marin County Agricultural Commissioner Stacy Carlsen.
In the brief, the groups argue that the oysters produced by Drakes Bay provide a local, sustainable food source. Additionally, they criticize the National Park Service for its role in the Drakes Bay case and say public comments on the draft environmental impact were not taken into consideration.
“This Court can best serve the public interest in this case by issuing the preliminary injunction requested and returning the case to the District Court along with instructions in which misstatement of both pertinent facts and applicable law are corrected,” the brief says.
Environmentalists dismissed the brief, saying it “offered nothing new” in the case. They noted that Drakes Bay had recently received a cease-and-desist order from a state agency.
“It is a shame that these groups and individuals represent Drakes Bay Oyster Co.’s egregious record of violations with the California Coastal Act as ‘sustainable’ agricultural practices,” said Amy Trainer, executive director of the Environmental Action Committee of West Marin.
She added, “Is this really the type of practice they want more of on our coastal and public lands?”
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Posted by Jane Gyorgy on March 14, 2013
https://oysterzone.wordpress.com/2013/03/14/031413-ee-news-pm-farm-groups-businesses-back-dboc/
03-14-13 Nat’l Pks Traveler: Renowned Chef, Farm Bureau Support DBOC
3/14/13 National Parks Traveler
Alice Waters, a chef renowned for her insistence on the freshest organically grown and locally produced ingredients, has signed on to a “friend of the court” brief in support of an oyster company trying to hold on to its operations at Point Reyes National Seashore on California.
The brief (attached below) filed Thursday in the 9th U.S. Circuit Court of Appeals also was supported by the Hayes Street Grill in San Francisco, the Tomales Bay Oyster Company, Stacey Carlsen, Agricultural Commissioner, County of Marin, the Marin County Farm Bureau, the Sonoma County Farm Bureau, the California Farm Bureau Federation, Food Democracy Now, the Alliance for Local Sustainable Agriculture, and Marin Organic.
Renowned Chef, Farm Bureau Support Oyster Company’s Bid To Remain At Point Reyes National Seashore
Submitted by NPT Staff on March 14, 2013 – 12:57pm
Alice Waters, a chef renowned for her insistence on the freshest organically grown and locally produced ingredients, has signed on to a “friend of the court” brief in support of an oyster company trying to hold on to its operations at Point Reyes National Seashore on California.
The brief (attached below) filed Thursday in the 9th U.S. Circuit Court of Appeals also was supported by the Hayes Street Grill in San Francisco, the Tomales Bay Oyster Company, Stacey Carlsen, Agricultural Commissioner, County of Marin, the Marin County Farm Bureau, the Sonoma County Farm Bureau, the California Farm Bureau Federation, Food Democracy Now, the Alliance for Local Sustainable Agriculture, and Marin Organic.
The appellate court late last month granted Drakes Bay Oyster Co. an injunction to block the National Park Service from ending its lease at the national seashore until a hearing in May on the matter. The company’s lease expired at the end of November, and Congress had directed the Park Service to officially declare Drakes Estero a wilderness area once all non-conforming uses were removed.
In seeking the temporary restraining order, Drakes Bay’s lawyers argued that Interior Secretary Ken Salazar broke the Administrative Procedures Act and violated the National Environmental Policy Act when he decided last November not to extend the lease for 10 years. In denying the lease extension, the Interior secretary cited the value of wilderness and congressional intent. On the very next day, Park Service Director Jon Jarvis declared the estero part of the Philip Burton Wilderness at the Seashore, effective December 4.
The amicus brief said Ms. Waters, the owner of Chez Panisse restaurant in Berkeley, California, has over the course of nearly 40 years “helped create a community of scores of local farmers and ranchers, such as the Lunnys (owners of DBOC), whose dedication to sustainable aquaculture and agriculture assures the restaurant a steady supply of fresh and pure ingredients.”
The 37-page filing also argued that “closing the oyster farm would have a broad, negative and immediate impact, on the local economy and the sustainable agriculture and food industry in the San Francisco Bay Area, on the school children of the workers who live in the housing units onsite, and, in the longer term, on food security and the U.S. balance of trade. Closing down the oyster farm in Drakes Estero, which has existed since the early 1930s, would be inconsistent with the best thinking of the modern environmental movement and further tear at the fabric of an historic rural community that the Point Reyes National Seashore [Seashore] was created to help preserve.”
The brief, along with voicing the signatories’ support for the oyster company, also argued that there’s an ongoing evolution in how society views nature.
“Chief Scientist for The Nature Conservancy, Peter Kareiva, is a leading advocate for the need for 21st century conservationists to become more ‘people friendly’ and to deal with ‘working landscapes,’ including fisheries,” the brief notes.
The filing also cites an article in Slate that quoted Emma Marris, described as a leader of the “modernist environmental movement,” as saying, “we must temper our romantic notion of untrammeled wilderness’ and embrace the jumbled bits and pieces of nature that are all around us – in our backyards, in city parks, and farms.”
Amicus-Drakes Bay Oyster v Salazar-FINAL
Posted by Jane Gyorgy on March 14, 2013
https://oysterzone.wordpress.com/2013/03/14/031413-natl-pks-traveler-renowned-chef-farm-bureau-support-dboc/
03-14-13 Press Democrat: Chef Alice Waters, Sonoma Farm Bureau, & others Back DBOC
Famed Berkeley chef Alice Waters and the Sonoma County Farm Bureau filed a federal court brief Thursday supporting Drakes Bay Oyster Company’s battle to stay in business in Point Reyes National Seashore.
Their 29-page “friend of the court” brief opposed the National Park Service’s order to shut the oyster farm on Drakes Estero, asserting the move is “inconsistent with the best thinking of the modern environmental movement.”
Chef Alice Waters, Sonoma County Farm Bureau back Drakes Bay Oyster Co.
By GUY KOVNER
THE PRESS DEMOCRAT
Published: Thursday, March 14, 2013 at 3:00 a.m.
Famed Berkeley chef Alice Waters and the Sonoma County Farm Bureau filed a federal court brief Thursday supporting Drakes Bay Oyster Company’s battle to stay in business in Point Reyes National Seashore.
Their 29-page “friend of the court” brief opposed the National Park Service’s order to shut the oyster farm on Drakes Estero, asserting the move is “inconsistent with the best thinking of the modern environmental movement.”
The park service and “other traditional conservationists” seeking the closure are “stuck in an archaic and discredited preservationist paradigm,” the brief said.
Eight other parties, including Hayes Street Grill in San Francisco, Marin County Agriculture Commissioner Stacy Carlsen, the California Farm Bureau Federation and Marin County Farm Bureau, joined in the brief.
The shutdown order came last fall in the wake of Interior Secretary Ken Salazar’s decision not to renew a permit for the oyster company, which harvests 8 million oysters a year from the estero’s federally protected waters.
Farm operator Kevin Lunny, with free legal services from a Washington, D.C.-based nonprofit, is fighting the order, alleging that Salazar’s decision was “arbitrary and capricious and an abuse of discretion.”
The San Francisco-based 9th U.S. Circuit Court of Appeals has agreed to hear the oyster farm’s case the week of May 13.
Waters, a pioneer of the organic food movement, developed a community of local ranchers, “such as the Lunnys, whose dedication to sustainable aquaculture and agriculture assures the restaurant a steady supply of fresh and pure ingredients,” the brief said.
Lex McCorvey, Sonoma County Farm Bureau executive director, could not be reached for immediate comment Thursday.
Posted on the bureau’s website is an undated letter from its president, grape grower Tito Sasaki, urging President Barack Obama to rescind Salazar’s decision.
“This nation, blessed with the natural, economic and human resources, must lead the world by showing how to integrate environmental, agricultural, social and economic objectives – just as Drakes Bay Oyster Company has been doing, albeit on a very modest scale,” the letter said.
You can reach Staff Writer Guy Kovner at 521-5457 or guy.kovner@pressdemocrat.com.
Copyright © 2013 PressDemocrat.com — All rights reserved. Restricted use only.
Posted by Jane Gyorgy on March 14, 2013
https://oysterzone.wordpress.com/2013/03/14/31413-press-democrat-chef-alice-waters-sonoma-farm-bureau-others-back-dboc/
03-11-13 Dr. Goodman’s Response to EAC’s complaint to White House Science Advisor
The Environmental Action Committee of West Marin (EAC), on March 6, 2013, submitted a letter to the White House Science Advisor, Dr. John Holdren (OSTP), objecting to Dr. Goodman’s recently submitted Scientific Misconduct Complaint.
Earlier today, Dr. Goodman submitted a comprehensive rebuttal to the EAC’s letter (submitted to OSTP by NPCA’s Neal Desai).
From the introduction to Dr. Goodman’s letter:
On March 4, 2013, I asked OSTP to establish and oversee a high-level investigation of scientific misconduct involving three federal agencies (NPS, USGS, and MMC), all linked to misconduct by NPS. I wrote that scientific misconduct emanating from NPS threatens to undermine one of the hallmarks of your tenure as OSTP Director: the establishment and implementation of President Obama’s Policy on Scientific Integrity.
My submission has come under attack by the Environmental Action Committee of West Marin (EAC) and others who do not share our view that the scientific method is core to the strength of our nation. Rather, they have an ideology and pre-determined agenda for which the ends justify the means. What we as scientists rely on as facts and data, they see as simply fungible inconveniences. If the real data get in the way, they can be changed as they wish. To them, data are a means to an end.
For NPS and their supporters, this is ideology, not science. Their goal is to get rid of the oyster farm from Drakes Estero by any means necessary. They are oblivious or are unconcerned that their false science also threatens the shellfish industry nationally and internationally, in contrast to a large body of good science showing that shellfish aquaculture is environmentally beneficial. Their agenda is to turn Drakes Estero into ‘wilderness’ – whatever the cost or collateral damage.
From the conclusion of Dr. Goodman’s letter:
This issue before OSTP is not about an oyster farm, and it is not about oysters or harbor seals. It is also, in contrast to what EAC wrote to you, neither about the Secretary’s decision, nor the Federal Court rulings. Rather, it is about whether we as a nation are truly committed to returning science to its rightful place in the federal government.
For the complete text of Dr. Goodman’s letter click the link below.
CSG letter to Holdren 03_11_13
Posted by Jane Gyorgy on March 11, 2013
https://oysterzone.wordpress.com/2013/03/11/03-11-13-dr-goodmans-response-to-eacs-complaint-to-white-house-science-advisor/
03-08-13 Bias in Journalism, How to Skew, Slant and Distort a Story
Want to see journalistic bias at work? Want to see how to skew, slant and distort a DBOC story?
Read on.
During this saga, has the Press Democrat:
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Written a profile of Kevin, Nancy or the Lunny family? No.
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Written a history of DBOC? No.
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Interviewed Corey Goodman? No.
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Profiled DBOC’s workers – and the loss of jobs/homes and livelihood? No.
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Covered the formal complaint just filed (last week) by Dr. Goodman revealing that three federal agencies, two Inspector Generals and three Scientific Integrity Officers engaged in a massive case of scientific misconduct involving NPS science at Drakes Estero? No.
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Covered the formal misconduct complaint filed last November detailing the EOMs (Errors, Omissions and Misrepresentations) committed by the Marine Mammal Commission? No.
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Reported on the Cause of Action 70+-page Data Quality Act Complaint filed with the National Park Service last August (or the NPS rejection of it last October)? No.
In The Press Democrat story of 03/08/2012 “Oyster farm flap reverberates far beyond Drake’s Bay” ,
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did the Press Democrat explain to its readers that Cause of Action was part of a consortium of law firms – four actually – that represent DBOC and the Lunny family? No.
But, the Press Democrat profiled the Koch Brothers, at least in part, but neither they nor their money are involved in any aspect of the NPS-DBOC-Drakes Estero suite of issues.
NPS routinely “cherry-picked” the science to distort the record.
NPS regularly “omitted” salient facts (be it “science” OR the existence of a “renewal clause”) time and time again.
The Press Democrat, in this and previous stories, did both.
The Press Democrat
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“cherry-picked” the story AND
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“omitted” a large bucketful of critical facts,
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excluded a super-sized basket of important information and
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in so doing, skewed, slanted and distorted the story published for their readers.
Oyster farm flap reverberates far beyond Drake’s Bay
By GUY KOVNER
THE PRESS DEMOCRAT
Published: Friday, March 8, 2013 at 6:30 p.m.
Drakes Bay Oyster Company’s legal bid to continue operating in federally protected waters has broader implications than simply the fate of the Marin County family-owed business that sells $1.5 million worth of shellfish a year.
To Cause of Action, a little-known Washington, D.C.-based nonprofit group that has provided the oyster company about $200,000 worth of free legal services, the case is about curbing government regulatory overreach.
To critics — including another nonprofit organization, California Common Cause — the oyster farm’s challenge to Interior Secretary Ken Salazar’s authority fits into a national effort to promote for-profit use of national parks and wilderness areas.
Amid the controversy stand Charles and David Koch, the billionaire brothers who own the nation’s second-largest privately held corporation and are well-known for supporting conservative political causes, such as the tea party.
[The Press Democrat failed to mention in the above statement that neither they – the Koch brothers – nor their money are involved in ANY aspect of the NPS-DBOC-Drakes Estero suite of issues.]
“It’s pretty clear there’s an overriding interest in this case,” said William Robertson, dean of the Empire College School of Law in Santa Rosa.
[The Press Democrat’s Guy Kovner, got his legal quotes from Dean of Empire College of Santa Rosa – an unaccredited college similar to the old Bryman schools. Remember them? Hastings Law School is a quick 50 miles to the South and only a phone call away if he wanted real legal opinions.
Furthermore, Empire’s website says it is ‘accredited’ by the Committee of Bar Examiners of the State Bar of California. Law schools are accredited by the California Bar Association or the American Bar Association.]
The San Francisco-based 9th U.S. Circuit Court of Appeals has agreed to hear the oyster farm’s case, rejected by a district court last month, the week of May 13.
Robertson said there is reason to believe the appellate court’s three-judge panel may issue a ruling that could “expand, contract or eliminate” commercial uses, including cattle and sheep ranches, timber and mining operations, on some federal lands.
“Every word (in the decision) will be worth a lot of money,” Robertson said, calling the case “a big deal for the American West as we know it.”
The appellate ruling would apply throughout the 9th Circuit, which covers California, Oregon, Washington, Nevada, Idaho, Montana, Arizona, Alaska and Hawaii, a region that includes several signature national parks: Yosemite, Yellowstone and the Grand Canyon.
To Kevin Lunny, whose family purchased the oyster farm business in the Point Reyes National Seashore for $260,000 in 2004, the appeal temporarily rescinded a Feb. 28 deadline to shutter the business that harvests 8 million oysters a year from the cold, clear waters of Drakes Estero.
The deadline was based on Salazar’s decision last fall not to extend a permit that had allowed oyster farming to continue for 40 years in the estero, a 2,500-acre waterway with extensive eelgrass beds and a harbor seal colony in the midst of a designated wilderness area.
Barring a reversal by the courts, Salazar’s decision would ultimately require Lunny to remove and destroy $4.5 million worth of oysters, terminating mariculture that dates back to the 1930s in the Pacific Ocean estuary.
Lunny’s lawsuit, filed in December by Cause of Action, describes the oyster farm has “environmentally sustainable” and alleges that Salazar’s decision was “arbitrary and capricious and an abuse of discretion.”
Cause of Action, founded in 2011, is a nonpartisan, tax-exempt organization dedicated to “government accountability and transparency,” according to its website.
“Any time government is overstepping its bounds, our interest is coming in to protect taxpayers’ interests,” said Mary Beth Hutchins, the organization’s spokeswoman.
Critics say that’s not the whole story, pointing to Cause of Action’s refusal to disclose its funding sources and ties between its executive director, Dan Epstein, and the Koch brothers, whose global corporation has annual revenues of $115 billion.
Epstein, a lawyer, worked for the Charles G. Koch Charitable Foundation from June 2008 to January 2009, then went to work as counsel for the House Committee on Oversight and Government Reform, chaired by Rep. Darrell Issa, a San Diego County Republican.
Issa, a self-made millionaire, is among the wealthiest members of Congress. He and 19 of the 22 other Republican members of the oversight committee received nearly $150,000 from Koch Industries in the 2012 election cycle, according to the Center for Responsive Politics.
Koch Industries, labeled a “heavy hitter” by the center, spent $10.5 million on lobbying and made political donations of $5.2 million in the 2012 election cycle.
Epstein left the House committee staff to head Cause of Action as it started up in August 2011. A year later, the organization filed a formal complaint alleging the National Park Service used faulty science to assess the oyster farm’s environmental impact.
In December, Cause of Action filed suit on behalf of the oyster farm, devoting 24 pages to a critique of the Park Service’s science. It also asked for immediate permission to continue oyster-farming operations until the case was decided.
District Court Judge Yvonne Gonzalez Rogers rejected the lawsuit in February, ruling that she lacked jurisdiction to review Salazar’s decision and dismissing the claims of bad science.
“At best, the record before the court is mixed with competing expert declarations … and cannot be resolved at this stage,” Rogers said.
Robertson, the law school dean, said the wording of the 9th Circuit’s terse decision to hear an appeal suggests the three judges have “serious reservations” about Rogers’ ruling.
Amy Trainer, executive director of the Environmental Action Committee of West Marin, said the case could set a “dangerous precedent” for the national parks and wilderness system.
Drakes Estero was supposed to be “on a one-way path to becoming wilderness,” which could be reversed by the oyster farm’s challenge. “That is very troubling,” said Trainer, whose organization wants the farm closed.
Meanwhile, California Common Cause is questioning how the case fits into what it calls a conservative-inspired movement to “privatize public lands for profit,” said Helen Grieco, the organization’s Northern California organizer.
That campaign, Grieco said in a Common Cause report, includes recent efforts to permit uranium mining near Grand Canyon National Park.
“Is it just this little oyster farm?” she said of the Drakes Bay lawsuit. “Somebody’s investing a chunk of change in this case. Who benefits?”
Grieco, a Petaluma resident, said it’s clear that Epstein “has a connection to the Koch brothers.” But there is no “smoking gun,” she said, connecting the Kochs with Cause of Action.
“We do not receive any money from the Koch brothers,” Hutchins said in a telephone interview. The organization, like other nonprofits, does not disclose the names of its donors, she said.
Cause of Action has filed a dozen lawsuits on a wide range of issues, including a Chinese-owned company’s interest in setting up wind farms in Oregon and an Oakland lesbian’s attempt to get pregnant using free sperm from a man she knows — both thwarted by government agencies.
Its legal services are provided without charge, and Epstein, in an interview with Greenwire, an environmental news organization, said that Cause of Action’s clients are secondary to the group’s educational mission.
Americans tend to think that “regulation is good in all circumstances,” Epstein said. “And we’re trying to fight that.”
Neal Desai, Pacific region associate director of the National Parks Conservation Association, a party to the oyster farm lawsuit, challenged Cause of Action’s claim that it serves the public interest.
“Taxpayers bought the (Drakes Estero) property, paid to protect it, and finally stand to benefit after waiting 40 years,” Desai said.
The oyster farm’s lawsuit “demands taxpayers accept a ‘heads I win; tails you lose’ proposal where Americans get nothing. It’s a raw deal.”
You can reach Staff Writer Guy Kovner at 521-5457 or guy.kovner@pressdemocrat.com.
Copyright © 2013 PressDemocrat.com — All rights reserved. Restricted use only.
Posted by Jane Gyorgy on March 8, 2013
https://oysterzone.wordpress.com/2013/03/08/030813-bias-in-journalism-how-to-skew-slant-and-distort-a-story/
03-04-13 Scientific Misconduct Submittal to White House OSTP
From: Corey Goodman <corey.goodman@me.com>
Subject: scientific misconduct submittal to OSTP
Date: March 4, 2013 8:05:48 AM PST
To: John Holdren <John_P._Holdren@ostp.eop.gov>
Dear Dr. Holdren,
I write to ask the White House Office of Science and Technology Policy (OSTP) to establish and oversee a high-level investigation of scientific misconduct involving three federal agencies (NPS, USGS, and MMC), all linked to misconduct by NPS.
Over the past seven years, the NPS, under the direction of Jon Jarvis as Regional Director and as Director, has engaged in serial scientific misconduct concerning the oyster farm at Drakes Estero, Point Reyes National Seashore. This issue, first brought to your attention in spring 2009, has lingered too long. It is no longer a local issue in West Marin, California. It involves three federal agencies, two Inspector Generals, and three Scientific Integrity Officers.
The misrepresentation of NPS data influenced a Cabinet member’s decisions, and recently was quoted in a Department of Justice filing in the U.S. Court of Appeals for the Ninth Circuit. Moreover, the false science claiming environmental harm threatens the shellfish industry nationally and internationally, in contrast to a large body of good science showing that shellfish aquaculture is environmentally beneficial.
This misconduct threatens to undermine one of the hallmarks of your tenure as Director of OSTP: the establishment and implementation of the President’s 2009 Policy on Scientific Integrity. It requires your immediate attention.
Why OSTP? There are two separate answers to this question. First, in response to a scientific misconduct complaint concerning the MMC Executive Director, the MMC General Counsel recommended that the complaint should be submitted to OSTP. The Department of Commerce OIG later made the same recommendation after they claimed that their office lacked jurisdiction to investigate MMC misconduct.
Second, as described in the enclosed letter, no other federal agency is empowered, capable, or willing to address scientific misconduct at NPS. In his speech to the National Academy of Sciences on April 27, 2009, President Obama stated “… the days of science taking a back seat to ideology are over.” But that is exactly what has happened. Science has taken a back seat to a pre-determined agenda. You created a Policy, and both Interior and MMC endorsed it, but that Policy has been violated – and has no proper oversight – at both Interior and MMC. Serious allegations of scientific misconduct need to be properly adjudicated.
Please note: some of the supporting documents are too large to send by email, and will instead be sent by TransferBigFiles.
I look forward to discussing these issues with you as soon as possible.
Sincerely yours,
Dr. Corey S. Goodman
Fwd__scientific_misconduct_submittal_to_OSTP
CSG letter to Holdren.03_04_13
CSG to Holdren.appendix 1.03_04_13
CSG to Holdren.appendix 2.03_04_13
Posted by Jane Gyorgy on March 4, 2013
https://oysterzone.wordpress.com/2013/03/04/03-04-13-scientific-misconduct-submittal-to-white-house-ostp/
03-04-13 Report Reveals Scientific Misconduct at Department of the Interior
03-04-2013 Advocates for Government Accountability, Cause of Action, sent to members of Congress and released to the public a 36 page investigative report:
Cause of Action Report Reveals Scientific Misconduct at
Department of the Interior
How the Department of the Interior Use Flawed Science to Foreclose the American Dream
WASHINGTON – Cause of Action (CoA), a government accountability organization, today released “Keeping Entrepreneurship at Bay: How the Department of the Interior Uses Flawed Science to Foreclose the American Dream,” an investigative report on the systemic manipulation of scientific data within the Marine Mammal Commission (MMC), the National Park Service (NPS), the U.S. Geological Survey (USGS), and the Department of the Interior (DOI). The misrepresentation of data influenced a Cabinet member’s decisions, was quoted in a Department of Justice filing in the U.S. Court of Appeals for the Ninth Circuit, and is negatively affecting multiple businesses in the United States.
Cause of Action’s Executive Director Dan Epstein explained the consequences of the scientific misconduct:
Cause of Action has exposed a culture of corruption and disregard for scientific integrity perpetrated by the government on the taxpayers’ dime. The Interior Department’s opaque reliance on misrepresented data demands immediate reform of the Agency, its departments, and its Office of Inspector General as well as a complete revision of NPS environmental impact statements.
Secretary of the Interior Kenneth Salazar’s November 29, 2012 decision to deny a Special Use Permit (SUP) for land belonging to NPS to Drakes Bay Oyster Company (DBOC), a small, family-run, environmentally sustainable farm located inside the Point Reyes National Seashore, was largely affected by misrepresented data, a perpetuation of false information, a disregard for the law by multiple federal government offices, and political taint. This business is now embroiled in a legal battle that has produced temporary relief from the Ninth Circuit that will allow DBOC to remain open until another hearing in May 2013, but does not guarantee that the business will escape a full shut down.
“How the Department of the Interior Uses Flawed Science to Foreclose the American Dream,” reveals that the data used by multiple agencies within the federal government were out of date, inapplicable, and brazenly false in their representation of the impact of DBOC on the environment:
- The Department of Interior (DOI) Office of Inspector General’s (OIG) February 2013 Report Ignored Data and Used a Flawed Methodology.
- The Investigation by DOI Solicitor Gavin Frost Lacked Objectivity and Independence. It Improperly Dismissed Scientific Misconduct by Labeling It “Administrative Misconduct.”
- Federal Agencies Misrepresented Scientific Findings to Support a False Narrative.
- The National Park Service (NPS) Prioritizes Politics Over Scientific Integrity by Refusing to Withdraw and Correct Flawed Science, Impacting Businesses Both Nationally and Worldwide.
- DOI OIG Misled the Senate Committee on Energy and Natural Resources (Energy Committee) During the Confirmation of NPS Director Jonathan Jarvis.
- The Marine Mammal Commission (MMC) Cannot Effectively Function Without an Independent Inspector General (IG).
Click here to read a copy of the full report.
Click here to ready a copy of Cause of Action’s Data Quality Act complaint against NPS.
About Cause of Action:
Cause of Action is a nonprofit, nonpartisan organization that uses investigative, legal, and communications tools to educate the public on how government accountability and transparency protects taxpayer interests and economic opportunity. For more information, visit www.causeofaction.org.
To schedule an interview with Cause of Action’s Executive Director Dan Epstein, contact Mary Beth Hutchins, mary.beth.hutchins@causeofaction.org or Jamie Morris, jamie.morris@causeofaction.org.
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Posted by Communications Staff in Press, Press Releases & Statements on March 4, 2013 11:09 am / no comments
FOR IMMEDIATE RELEASE CONTACT:
MARCH 4, 2013 Mary Beth Hutchins, 202-400-2721
Jamie Morris, 202-499-2425
Posted by Jane Gyorgy on March 4, 2013
https://oysterzone.wordpress.com/2013/03/04/03-04-13-report-reveals-scientific-misconduct-at-department-of-the-interior/
03-04-13 Cause of Action 36 page Report on DOI use of Flawed Science
Keeping Entrepreneurship at Bay How the Department of the Interior Uses Flawed Science to Foreclose the American Dream
Advocates for Government Accountability, Cause of Action on March 4, 2013, sent to members of Congress and released to the public a 36 page investigative report:
“The findings in this report demonstrate the substantial misrepresentation and manipulation of scientific facts by NPS, MMS, USGS, and DOI and highlight the need for intense review and scrutiny. The corruption, lack of transparency, and void of accountability among these agancies are occurring on the dime of American taxpayers and demand serious and thorough review.”
“….In accordance with the National Environmental PolicyAct (NEPA), NPS was required to prepare a draft environmental impact statement (DEIS) and an ensuing final environmental impact statement (FEIS), intended to allow the Secretary to make an informed, reasoned decision concerning the renewal of DBOC’s lease.
In conjunction with an investigation conducted by Dr. Corey Goodman, Ph.D., Cause of Action found that the data used by multiple agencies within the federal government were out of date, inapplicable, and brazenly false in their representation of the impact of DBOC [Drakes Bay Oyster Co.] on the environment.
First, the Department of Interior (DOI) Office of Inspector General’s (OIG February 2013 Report ignored data and used a flawed methodology.
Second, the investigation by DOI Solicitor Gavin Frost lacked objectivity and independence. It improperly dismissed scientific misconduct by labeling it ‘administrative misconduct.’
Third, Federal agencies misrepresented scientific findings to support a false narrative.
Fourth, NPS prioritizes politics over scientific integrity by refusing to withdraw and correct flawed science, impacting businesses both nationally and worldwide.
Cause of Action, is a nonprofit, nonpartisan government accountability organization, who’s mission is to “expose the ways our government is playing politics in its use of taxpayer dollars, and who seeks to prevent the federal government from politicizing agencies, rules, and spending by bringing transparency to the federal grant and rule-making processes… and helps to educate the public about government overreach, waste, and cronyism.
To read the full article click on the link below or copy and paste it into your web browser:
Posted by Jane Gyorgy on March 4, 2013
https://oysterzone.wordpress.com/2013/03/04/03-04-13-cause-of-action-36-page-report-on-doi-use-of-flawed-science/
03-04-13 Conference Call on FOIA requests that led to Scientific Misconduct Findings
CONTACT:
March 4, 2013 Jamie Morris: 202-499-2425
(LINK TO RECORDING OF CALL AT BOTTOM OF THIS PAGE)
*MEDIA ADVISORY*
CONFERENCE CALL TO DISCUSS REPORT ON SCIENTIFIC MISCONDUCT AT DEPARTMENT OF INTERIOR
Cause of Action Launches “Keeping Entrepreneurship at Bay:
How the Department of the Interior Uses Flawed Science to Foreclose the American Dream”
WHAT: A conference call to discuss the pattern of scientific misconduct at the Department of the Interior outlined in an investigative report from Cause of Action (CoA). Launched today, CoA’s investigative report, “Keeping Entrepreneurship at Bay: How the Department of the Interior Uses Flawed Science to Foreclose the American Dream” explains the systemic manipulation of scientific data within the Marine Mammal Commission (MMC), the National Park Service (NPS), the U.S. Geological Survey (USGS), and the Department of the Interior (DOI). The misrepresentation of data influenced a Cabinet member’s decisions, was quoted in a Department of Justice filing in the U.S. Court of Appeals for the Ninth Circuit, and is negatively affecting multiple businesses in the United States.
Among the highlights to be discussed on today’s call:
- The Department of Interior (DOI) Office of Inspector General’s (OIG) February 2013 Report Ignored Data and Used a Flawed Methodology.
- The Investigation by DOI Solicitor Gavin Frost Lacked Objectivity and Independence. It Improperly Dismissed Scientific Misconduct by Labeling It “Administrative Misconduct.”
- Federal Agencies Misrepresented Scientific Findings to Support a False Narrative.
- The National Park Service (NPS) Prioritizes Politics Over Scientific Integrity by Refusing to Withdraw and Correct Flawed Science, Impacting Businesses Both Nationally and Worldwide.
- DOI OIG Misled the Senate Committee on Energy and Natural Resources (Energy Committee) During the Confirmation of NPS Director Jonathan Jarvis.
- The Marine Mammal Commission (MMC) Cannot Effectively Function Without an Independent Inspector General (IG).
WHEN: Monday, March 4, 2013
2:00pm ET/11:00am PT
WHO: Dan Epstein, executive director, Cause of Action will discuss how Freedom of Information Requests led to key findings of scientific misconduct that raise concerns about oversight and accountability at DOI.
Dr. Corey Goodman, Ph.D., is a member of the National Academy of Sciences and has spent years researching scientific misconduct in relation to Drakes Bay Oyster Company.
RSVP: For dial-in information and a copy of the report, contact Jamie Morris at Jamie.Morris@causeofaction.org.
To hear a recording of the conference call click on or copy and paste this link into your web browser
(NOTE: THE LINK IS ONLY AVAILABLE UNTIL MARCH 31, 2013):
Posted by Jane Gyorgy on March 4, 2013
https://oysterzone.wordpress.com/2013/03/04/03-04-13-conference-call-on-foia-requests-that-led-to-scientific-misconduct-findings/
03-02-13 RRT: DRAKES ESTERO IG REPORT: Either incompetent or omits info damaging to NPS & DOI
03-02-2013 Russian River Times
“…the [Russian River] Times is left with two options to explain the IG’s failure to uncover any of the damning evidence found by the Times. Either (1) the IG investigation is incompetent, and they merely took the NPS responses on their face with no proper investigation, or (2) the final IG report simply omits information that would be damaging to the NPS and the Department of the Interior, and that Interim IG Mary Kendall, as the committee implies, has essentially abandoned her watchdog responsibility.”
“…the IG report will stand as just another in a long line of NPS and DOI investigations of themselves, costing the taxpayers literally millions of dollars, that are nothing more than whitewash and cover-up.”
Drake’s Estero IG Report: Investigating the Investigators
Posted on March 2, 2013 by russianrivertimes
The Interim Director of the Interior Inspector General, Mary Kendall, recently issued a report seemingly exonerating the National Park Service of scientific misconduct during their recently abandoned Environmental Impact Survey (EIS) on Drakes Estero. The original complaint to the IG centered around the NPS’ ‘importation’ of data. NPS used data from a 75 hp. 2 stroke Kawasaki Jet Ski measured in 1995 rather than actually measuring the Drakes Bay Oyster Company’s (DBOC) late model 20 HP 4 stroke outboards, as required by NPS policy. The reports finding of no misconduct, validating NPS and its consultant’s ‘science’, has played a key role in NPS court actions regarding DBOC, who were seeking injunctive relief against the closure of the oyster farm, which was granted on appeal to the Federal 9th Circuit Court of Appeals on 25 February. The court found that “there are serious legal questions and the balance of hardships tips sharply” in the farm’s favor.
This earlier Russian River Times graphic shows the effect of the use of the imported data vs. measured data, which the IG failed to investigate. It expands the sound footprint to cover virtually all of the seal haul out sites in the entire Estero. The values in this graphic are corroborated by the recordings from the FAA/NPS Volpe microphone, cited in the NPS DEIS, which did not pick up the sounds which would have been produced had the imported data been correct, but did pick up the actual sounds when the DBOC boat passed by in the channel immediately to the left of the microphone, substantiating the data analysis in Dr. Goodman’s complaint. [NOTE: The red circle is the alleged sound effect of the DBOC boat. The tiny green circle in the center is the actual effect.]
The Russian River Times examined this most recent investigation by looking at a key claim of the source of the data, which can be found on page 10 of the IG report. The IG Report states: “VHB’s acoustics representative and director of Air Quality and Noise Services spoke with us regarding the sound-level data used in the DEIS. He informed us that he possessed more than 40 years of sound and acoustics experience and that he was the project technical advisor for the DEIS and reviewed its soundscape sections for accuracy. He stated that during his research for this project, he personally located the NU 1995 report on the Internet and subsequently selected the watercraft measurements from the NU report to represent Company boats, which was based on information collected by VHB staff members during Company site tours.”
It would seem that, given the claims about the Internet being the source of the data, the IG would have at least done its own confirmatory web search and published the web link for the data. However, there is no such website accessible to a public search, though this does not preclude that the data may have been blocked against public search engines, a tactic the NPS has used in the past in reports on Drake’s Estero. In fact, DBOC itself found the data after requesting the information from both Noise Unlimited and the New Jersey State Police, who no longer had the report. It was eventually provided by the Personal Watercraft Association, who played a key role in NPS activities on boat and jet ski or Personal Water Craft (PWC) noises, dating back to as early as 1994.
One of the key factors in most investigations would be to determine the chain of command in the matter, something on which the IG report is silent. However, the Russian River Times had no problem in locating the appropriate document, the Department of the Interior Department Manual, Chapter 12 , which clearly identifies the NPS Environmental Compliance Division as the source of and focal point for all matters relating to National Environmental Policy Act, and provides guidelines on EIS and Environmental Assessment (EA) actions. This point is significant, as Jake Hoogland, formerly in charge of the NPS Environmental Compliance Division, and now in charge of NPS matters for VHB, was part of the team that visited Drakes Estero, and was therefore aware of all matters relating to NEPA.
It appears from the report that the IG made no attempt to investigate the sources or rational case for selection of the PWC data, as protested by Dr. Goodman (the source of the complaint in the IG report) which would have lead them to the Personal Watercraft Association, whose director was interviewed by the Russian River Times for an earlier column in which the director stated that his organization had worked extensively on sound issues with the NPS and “there is no controversy over the methods used to test for boat sound, which are well known to state and federal regulators,” and went on to state that they are used for law enforcement and follow established sound standards. Once again, the IG report makes no reference to the actual standards of measurement, but unquestioningly accepts the NPS claims at face value.
If the IG had done meaningful investigation, it would then have lead them to the Bluewater v. Kempthorne (now v. Salazar) case, leading back to the original April 2000 NPS rulemaking on PWCs. Equally significant, if the IG had then examined NPS involvement, they would have found that Hoogland, both in his role as chief of NPS ECD and as a representative of VHB, had written extensively on the matters of such lawsuits and their impact on policy, including a presentation to the George Wright Society in 2011, clearly demonstrating NPS and Hoogland’s long involvement with boat sound matters. (Abstract attached at end of article.)
The court action lead the Russian River Times investigation to the 2004 Gulf Islands EA, Personal Watercraft Use Environmental Assessmentreport examined by the Court in Bluewater v. Salazar and, on p253, located the reference to the Noise Unlimited report, but with no web link. (The bibliography also lists numerous data sources for boat and PWC noise including links to the Personal Watercraft Association) However, the Court dealt with the NPS EA document harshly, stating in its 2010 ruling that NPS’ EA was: “conclusory, internally inconsistent and failed to adequately explain the connection between objective facts and the conclusion reached” and the determination of the level of impacts considered in the various options are “profoundly flawed” and that “While the Court will defer to an agency’s exercise of expertise, the `Court will not defer to the agency’s conclusory or unsupported assertions.’
What is particularly interesting is to compare the 2004 Gulf Islands EA with the Drakes Estero EIS. In the Gulf case, NPS argues that the modern advances in PWC sound and pollution justified allowing them to operate in areas of pristine beaches which is also the home to many threatened, endangered and special interest species, (see US Fish and Wildlife comments p230,) whereas in the Drake’s Estero case, NPS argues the exact opposite, make conclusory statements that the low horsepower DBOC boats are causing harm.
More importantly, the Gulf EA clearly shows that NPS knew it had no credible scientific basis for importing the 1995 PWC data (two stroke 75 h.p. at full throttle) and presenting it in the Drakes Estero EA as if it were representative of the current much quieter current DBOC boat data (four stroke at 20 h.p.). The IG utterly failed to address the dramatically misleading effects caused by this exaggeration even after they cited a report where the previous IG found, in an almost identical level of exaggeration, that a Point Reyes National Seashore scientist had deliberately misquoting a USGS report on sediment from oysters in Drakes Estero and importing old data from a Japanese oyster farm and presenting it as if the data had been collected in Drake’s Estero.
The nature of the Court’s conclusions in Bluewater, that it failed “to explain the connection between objective facts and the conclusion reached”, generally mirror the nature of the complaints made by Dr. Goodman to the IG. In light of the recent 21 February 2013 House Resource Committee report ‘Holding Interior Watchdog Accountable’, which claims failure to properly investigate complaints and to fulfill it’s watchdog role, the Times is left with two options to explain the IG’s failure to uncover any of the damning evidence found by the Times. Either (1) the IG investigation is incompetent, and they merely took the NPS responses on their face with no proper investigation, or (2) the final IG report simply omits information that would be damaging to the NPS and the Department of the Interior, and that Interim IG Mary Kendall, as the committee implies, has essentially abandoned her watchdog responsibility.
The recent Public Employees for Environmental Responsibility (PEER) survey, ‘Rising Doubts on Independence of Interior Inspector General’, which indicated that 40% of IG employees do not believe the IG to be fulfilling its investigative role, would indicate the latter. As one respondent to the survey put so clearly, “Wake up and quit trying to ‘get approval’ from DOI [Interior]…we have a job to do.“ Otherwise, the IG report will stand as just another in a long line of NPS and DOI investigations of themselves, costing the taxpayers literally millions of dollars, that are nothing more than whitewash and cover-up.
Footnote: Jeff Hoogland/VHB 2011 George Wright presentation abstract
Potato Chips or Pornography: Defining Impairment for the National Parks
Jacob J. Hoogland, NPS Market Leader, Vanasse Hangen Brustlin, Inc (VHB), Williamsburg, VA
While the “no impairment” mandate of the National Park Service Organic Act has been in effect since its enactment in 1916, it is only recently that Federal Courts have turned their attention to the interpretation of what that phrase means. Recent cases dealing with both snowmobile operation and personal watercraft use within units of the National Park System have added to the case law on this topic. This paper examines the relationship between the roles of law, policy and science in determining when impairment occurs. The roles of science and regulation in interpretation and applying the standard are compared and evaluated.” (emphasis added)
John Hulls can be reached at: john.hulls@me.com
Posted by Jane Gyorgy on March 2, 2013
https://oysterzone.wordpress.com/2013/03/02/03-02-13-rrt-drakes-estero-ig-report-either-incompetent-or-omits-info-damaging-to-nps-doi/
02-26-13 Press Release “…serious legal questions & balance of hardships tips sharply in appellants’ favor”
Said the court, “Appellants’ emergency motion for an injunction pending appeal is granted, because there are serious legal questions and the balance of hardships tips sharply in appellants’ favor.”
Emergency Injunction Granted for Drakes Bay Oyster Company
Posted by Communications Staff in Feature, Press, Press Releases & Statements on February 25, 2013 4:34 pm /
FOR IMMEDIATE RELEASE
FEBRUARY 25, 2013
DRAKES BAY OYSTER COMPANY AND LEGAL TEAM RESPOND TO NINTH CIRCUIT DECISION TO GRANT EMERGENCY INJUNCTION PENDING APPEAL
WASHINGTON – Cause of Action (COA), a government accountability group working on behalf of Drakes Bay Oyster Company (DBOC) and owner Kevin Lunny, responded to the Ninth Circuit’s decision to grant the motion for emergency injunction pending appeal for Drakes Bay Oyster Company, which allows the company to remain open while the Ninth Circuit considers the appeal in Drakes Bay Oyster Company v. Salazar, et al. Earlier this month, U.S. District Judge Yvonne Gonzalez Rogers denied an injunction, but DBOC appealed her decision, requesting injunctive relief to avoid the shutdown of the oyster farm on February 28.
“We are grateful that the Ninth Circuit has chosen to allow Drakes Bay Oyster Company to continue operating and recognized the hardships that would have resulted from shutting down the farm before its case could be heard,” said Amber Abbasi, chief counsel for regulatory affairs at Cause of Action. “We will continue to move forward with the lawsuit and fight the blatant overreach and abuse of power inflicted upon the Lunnys and taxpayers by Secretary Salazar’s decision.”
Kevin Lunny, owner of Drakes Bay Oyster Company offered this statement on behalf of the farm:
“We are beyond thrilled that our business will now remain open while we continue to fight the decisions from the court and Secretary Salazar that have put our business at risk. We are so grateful for the support we continue to receive from the community and our legal team and we now will press on in our fight as the lawsuit proceeds. Our fight has always been about more than just our business. Our fight is, and will continue to be, about the great service Drakes Bay Oyster Farm provides to the community as an innovative sustainable farm, an educational resource, and part of the economic fiber of Marin County.”
Cause of Action and Briscoe Ivester & Bazel LLP, Stoel Rives LLP, and SSL Law represent Drakes Bay Oyster Company.
The court’s decision can be found here.
About Cause of Action:
Cause of Action is a nonprofit, nonpartisan organization that uses investigative, legal, and communications tools to educate the public on how government accountability and transparency protects taxpayer interests and economic opportunity. For more information, visit www.causeofaction.org.
Tags: Drakes Bay Oyster Company
Posted by Jane Gyorgy on February 26, 2013
https://oysterzone.wordpress.com/2013/02/26/02-26-13-press-release-serious-legal-questions-balance-of-hardships-tips-sharply-in-appellants-favor/
02-25-13 PRAYERS ANSWERED – INJUNCTION GRANTED – HUNGER STRIKE ENDED!!!
I JUST RECEIVED WORD
THE 9TH CIRCUIT COURT OF APPEALS HAS
GRANTED DRAKES BAY OYSTER COMPANY
THE INJUNCTION!!!
THEY CAN REMAIN IN BUSINESS
UNTIL THE LAWSUIT IS SETTLED!!!
MAYBE THAT SHOULD READ LAWSUITS!
NOW, NOT ONLY WILL THE NPS BE SUED
BUT ALSO, I BELIEVE, THERE ARE OTHERS
TO BE SUED!!!
Posted by Jane Gyorgy on February 25, 2013
https://oysterzone.wordpress.com/2013/02/25/02-25-13-prayers-answered-injunction-granted-hunger-strike-ended/
Drakes Bay Oyster Company & the National Park Service. Watch the video, "THE FRAMING OF AN OYSTER FARM" at http://vimeo.com/52331881 
03-21-13 The case of the missing publication, Stewardship Begins With People
NPSG_999_D1963_full
Above is a scanned copy of the full publication
For years, we have been told the publication Stewardship Begins With People has been “OUT OF PRINT” (Point Reyes National Seashore Visitor Center gift shop personnel, as well as others) and that there were NO MORE COPIES TO BE HAD. I went on line and found the 22 publications in the series and that all the others were available as PDF downloads except for this one. There was an email address to request a paper version. My email requests for copies went unanswered. I phoned, and was told someone would get back to me about getting me a copy, but no one ever did. When I phoned again, I asked why I could no longer find one at the Point Reyes National Seashore Visitor Center. I was informed that the visitor center gift shops are independently owned and/or operated and they had no control over what the owners/operators choose to stock for sale.
This is the 2007 publication that extolled the virtues of
COEXISTENCE of PARKS AND THE PEOPLE WHO WORK THE LANDS and
HAILED KEVIN LUNNY as an ENVIRONMENTAL STEWARD
It even has Lunny in a photo with Dave Evans on page 45 and, on that page, it states:
“…both have been recognized for their environmental stewardship and innovation….
Lunny’s Drakes Bay Family Farms now operates an oyster farm on Drakes Estero.”
Yet Don Neubacher (see the Acknowledgements on page 58 column two, first line), the then superintendent of the Point Reyes National Seashore in May of 2007 at a presentation to the Marin County Board of Supervisors, accused Lunny of being an environmental criminal!
– SAME YEAR, not even five months after the copyright date of the publication –
From fourth-generation environmental steward to environmental criminal in less than 5 months?
You think this might be the reason one cannot get a copy at the very same visitor center gift shop of the park FEATURED IN THE PUBLICATION?
On Monday (03-18-13), I took yet another chance, and contacted the Conservation Studies Institute using the phone number on the inside cover, again. This time I got a live person on the other end of the line.
I explained to the person what I wanted and she put me through directly to Leslie Shahi of the Conservation Studies Institute.
(Ms Shahi is the second person mentioned on the same acknowledgements page as Don Neubacher but she is in the first column fourth line as the second person acknowledged for her contribution to Stewardship Begins with People.)
When I asked how much they were and how much for shipping and handling, she said they were FREE and there was NO CHARGE for shipping and handling.
I said I would like 10 copies and asked if that would change it. No, it was still FREE and there would be NO CHARGE for shipping and handling even for 10 copies.
After I hung up, I realized that the PDF problem might have also been resolved so I called back. She seemed a little cooler this time. I was told that the document was “too graphic intensive, the file size was too big to send as a PDF”. (Funny, friends who had scanned the full version and created a PDF out of it had no problem sending it to me by email – and it wasn’t even necessary to zip the file or use a large document sending service). As you know, I have already uploaded the publication to www.oysterzone.org – my blog!).
Yesterday, 10 copies of the original publication arrived by FedEx! Our tax dollars at work, isn’t it marvelous!
Please, request a copy, any number of copies, for yourself today.
Your effort will let them know we are still here, we are still watching, and we are still actively pursuing the matter.
Contact:
stewardship@NPS.gov
leslie_shahi@nps.gov
OR
Call 802-457-3368, ext 16 (Leslie Shahi)
Fax 802-457-3405
ASK FOR YOUR OWN COPY of
STEWARDSHIP BEGINS WITH PEOPLE
CONSERVATION AND STEWARDSHIP PUBLICATION No. 14 / 2007
Keep a record of the date and time you called, faxed, or emailed your request, the response, if any, and the date you received your copy(s) if you receive a copy(s), and let me know.
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Posted by Jane Gyorgy on March 21, 2013
https://oysterzone.wordpress.com/2013/03/21/03-21-13-the-case-of-the-missing-publication-stewardship-begins-with-people/