08-14-14 DBOC’s Opposition to Ca Coastal Commission Motion for New Trial

Please find attached the following documents filed in Marin Superior Court today:
 
–          Drakes Bay Oyster Company’s Opposition to Motion for New Trial; 8.14.14+Final+Opposition+to+Motion+for+New+Trial+120pm
 
–          Declaration of Phyllis Faber ISO Drakes Bay Opposition to Motion for A New Trial; 8.14.14+Faber+decl+ISO+opp+to+new+trial+motion
 
–          Declaration of Larry Giambastiani ISO Drakes Bay; 8.14.14+Decl+of+Larry+Giambastiani
 
–          Declaration of Peter Prows ISO Drakes Bay’s Opposition to Commission’s Motion for New Trial; 8.14.14+Prows+decl+ISO+opp+to+new+trial+motion

06-27-14 Marin Co Sup Court DBOC WINS OVER CCC, CCC ABUSED DISCRETION & VIOLATED the LAW

“DRAKES BAY OYSTER WAS VINDICATED TODAY

in its fight against unjust enforcement orders imposed last year

BY THE CALIFORNIA COASTAL COMMISSION.

The Marin County Superior Court 

OVERTURNED THOSE ORDERS IN EVERY SIGNIFICANT EFFECT,

finding that the

COMMISSION’S

UNFAIR PROCESS

WAS AN

ABUSE OF DISCRETION

AND A

VIOLATION OF ENVIRONMENTAL LAW.”

 

June 27, 2014  Media Contact: Tina Walker Office: 415.227.9700 Cell: 650.248.1037 Email: tina@singersf.com    

 

Drakes Bay Wins: Court Overturns California Coastal Commission Orders Against Oyster Farm Commission abused its discretion and violated environmental law

INVERNESS, CALIF. — Drakes Bay Oyster was vindicated today in its fight against unjust enforcement orders imposed last year by the California Coastal Commission. The Marin County Superior Court overturned those orders in every significant respect, finding that the Commission’s unfair process was an abuse of discretion and a violation of environmental law.

 

The enforcement orders were based on false allegations for which there was no evidence. Before a hearing last February, expert evidence disproving the allegations was provided by the Lunnys, but the Commission voted to exclude all the evidence the Lunnys presented in their own defense.

 

“This is a good day for California,” said Phyllis Faber, a Marin County environmental activist and biologist who was a founding member of the Commission. “The Coastal Commission had seriously abused its power. It was necessary to hold them accountable.”

 

Now that the Commission’s unfair enforcement orders have been overturned, the oyster farm and the Commission can get back to working on a permit for the farm.

 

Drakes Bay’s lawsuit against the Coastal Commission is separate from its suit against the National Park Service, which is currently pending at the U.S. Supreme Court.  The Supreme Court could decide as soon as Monday whether to take Drakes Bay’s case.

 

About Drakes Bay Oyster Company

The historic oyster farm in Drakes Estero, located in Point Reyes, Marin County, has been part of the community for nearly 100 years. The Lunnys, a fourth-generation Point Reyes ranching family, purchased the oyster farm in 2004. Modern environmentalists and proponents of sustainable agriculture praise Drakes Bay Oyster as a superb example of how people can produce high-quality food in harmony with the environment. The farm produces approximately one third of all oysters grown in California, and employs 30 members of the community. The Lunnys also contribute the oyster shells that make possible the restoration of native oysters in San Francisco Bay and the oyster shells used to create habitat for the endangered Snowy Plover and Least Tern. As the last oyster cannery in California, Drakes Bay is the only local (and thus the only safe and affordable) source of these shells. The Lunny family is proud of its contributions to a sustainable food model that conserves and maintains the productivity of the local landscapes and the health of its inhabitants. For more information, please visit www.drakesbayoyster.comand www.savedrakesbay.com

04-16-14 Marin Superior Court Judge Chernus says “will take it under advisement” at end of hearing

04-16-14 Judge Chernus listened attentively to arguments from both sides, took notes, and at the end of the hearing stated “You’ve given us a lot to think about. I will take it under advisement and get back to you.”

His honor did not specify a date by which he will let us know his decision. Nevertheless, the attorneys are speculating the final ruling may be out within the next three weeks. The ruling could come as early as tomorrow yet on the other hand, it doesn’t have to be out for months from now.

04-15-14 Judge Ruled Ca. Coastal Comm. Violated Environmental Law & Abused its Discretion

04-15-14

Marin Superior Court, Judge Chernus,

issued his temporary ruling today stating the

California Coastal Commission violated environmental law

by not conducting an environmental review, and

abused its discretion by excluding Drakes Bay Oyster Farm evidence.

 

Racks and buildings need not be removed.

Didemnum measures struck down.

Existing Manila clams can stay.

 

To read the ruling, please click on the link below.

tentative 15 apr 2014

This is a tentative ruling.

All parties will appear in Marin County Superior Court, Department B, tomorrow morning, 04-16-14 at 8:30 AM to present arguments.

 

03-11-14 Faber, ALSA, and DBOC vs. California Coastal Commission, Marin Sup Court 3-11-14 9AM

MEMORANDUM IN SUPPORT OF DRAKES BAY OYSTER COMPANY’S MOTION FOR PEREMPTORY WRIT OF MANDATE

HEARING DATE:      March 11, 2014

TIME:                           9:00 a.m.

DEPARTMENT:         D22

JUDGE:                        Honorable Mark A. Talamantes

EXCERPTS FROM THE BRIEF: (regarding the actions of the CALIFORNIA COASTAL COMMISSION against DRAKES BAY OYSTER COMPANY)

…. the “wholesale disqualification” of a party’s experts violates due process as a matter of law, ….

the exclusion of a “credible and substantial” expert report violates due process.

the Commission violated due process by not allowing for cross-examination, and that the Commission’s decision was not supported by competent evidence.

This due-process violation, alone, is enough to invalidate the Orders.

The Commission thereby concedes the issue, and the motion. 

In the quasi-judicial proceeding at issue, the Commission

  • did not act as an impartial judge
  • was too happy to embrace criticisms of the oyster farm,
  • was too hostile to any evidence that favored the farm,
  • was too quick to dismiss evidence that rebutted the staff report.
  • Its behavior demonstrated a desire to win at any cost, and no respect for the truth.

                             VII.     CONCLUSION

This Court should issue an order declaring the Orders invalid, and issue a writ of mandate.

For the full reply to the CCC brief, click on or copy and paste the link below into your web browser:

03-04-14 Reply Brief ISO DBOC’s Motion for Peremptory Writ of Mandate

For the original Brief:

2014-14-02Memorandum in Support of Motion for Peremptory Writ of Mandate

 

 

05-20-2013 NPS Supporters Misrepresent Scientific Facts in Letter to DOI Jewell

NPS Supporters Misrepresent Scientific Facts in Letter to Interior Secretary

Science and Environmental Impacts Come to Fore at Ninth Circuit Court of Appeals Hearing

Inverness, California, May 20, 2013 — A rebuttal was filed today with Interior Secretary Jewell in response to a letter to the Secretary on May 16 from Environmental Action Committee of West Marin (EAC) Executive Director Amy Trainer.

“In her letter to the Secretary, Amy Trainer misrepresented every report she cited,” said Dr. Goodman, who filed the rebuttal. “This is not a case about a difference of opinions. Rather, this is a case about the fabrication of facts and a cover-up.”

These misrepresentations were intended to blunt a scientific misconduct complaint filed with Interior Secretary Jewell on May 13 alleging that both the National Park Service (NPS) and U.S. Geological Service (USGS) knowingly fabricated harbor seal data in their reports. In the Final Environmental Impact Statement (FEIS), NPS claimed evidence of harbor seal disturbances by Drakes Bay Oyster Company (DBOC).

“The EAC continues to try to deceive the public and elected officials with misinformation,” said Dr. Goodman. “It is difficult for our community to have an informed and thoughtful discussion when EAC continues to put out statements that they know are incorrect and misleading.”

The so-called evidence of harbor seal disturbances by DBOC, as presented in the FEIS, was falsified. NPS based its claim upon analysis by an independent harbor seal behavior expert, Dr. Brent Stewart of Hubbs-SeaWorld Research Institute. But in contrast to what the NPS stated in the FEIS, Dr. Stewart twice found just the opposite, namely, no evidence of disturbances by DBOC skiffs.

This revelation has profound implications for Secretary Salazar’s decision to not renew the oyster farm permit, showing that USGS and NPS apparently misinformed Secretary Salazar using scientific claims

1

they knew were incorrect, and that the Department of Justice continues to use the same false science to misinform the federal court.

NPS and their supporters keep saying that the science isn’t important in the federal court case, but that just isn’t true. Last Tuesday, in the hearing in front of the Ninth Circuit Court of Appeals, the judges questioned both sides about whether the Secretary did or did not properly follow the National Environmental Policy Act (NEPA) in producing the Final EIS, and was properly informed by it for his decision concerning the DBOC permit.

“The FEIS claimed evidence for harbor seal disturbances by DBOC based upon the analysis of an independent expert, but only after the Secretary made his decision, did we realize that the expert – Dr. Stewart – found just the opposite,” said Dr. Goodman. “Just recently we learned that USGS went back to the expert a second time, asked him if he changed his mind, and again he came back with the same finding. USGS and NPS covered it up.”

The lawyers defending Interior tried to argue that the Secretary did not violate NEPA, but their arguments, as many in the courtroom knew, were inconsistent with the facts. After two years of insisting the he would follow NEPA, in the final days, the Secretary abandoned NEPA. Nevertheless, in his decision memo, the Secretary wrote that the DEIS and FEIS “have informed me … and have been helpful to me in making my decision.”

Dr. Goodman once again requested that Interior Secretary Jewell convene a blue-ribbon panel of independent scientists to investigate the allegations that USGS and NPS personnel intentionally misrepresented the findings of the independent expert concerning the oyster farm at Point Reyes.

Contacts:
Barbara Garfien Barbara.garfien@gmail.com 415-717-0970

Dr. Corey Goodman

corey.goodman@me.com

415-663-9495
mobile 650-922-1431

DBOC%20press%20release%205_20_13-1

05-20-2013 Dr. Goodman files rebuttal with DOI Jewell in response to EAC letter

Dr. Corey Filed filed a rebuttal today with Interior Secretary Jewell in response to a letter to the Secretary on May 16 from Environmental Action Committee of West Marin (EAC) Executive Director Amy Trainer.  In her letter to the Secretary, Amy Trainer misrepresented every report she cited.  This is not a case about a difference of opinions.  Rather, this is a case about the fabrication of facts and a cover-up.
These misrepresentations were intended to blunt a scientific misconduct complaint filed with Interior Secretary Jewell on May 13 alleging that both the National Park Service (NPS) and U.S. Geological Service (USGS) knowingly fabricated harbor seal data in their reports.  In the Final Environmental Impact Statement (FEIS), NPS claimed evidence of harbor seal disturbances by Drakes Bay Oyster Company (DBOC).
EAC continues to try to deceive the public and elected officials with misinformation.  It is difficult for our community to have an informed and thoughtful discussion when EAC continues to put out statements that they know are incorrect and misleading.

The so-called evidence of harbor seal disturbances by DBOC, as presented in the FEIS, was falsified.  NPS based its claim upon analysis by an independent harbor seal behavior expert, Dr. Brent Stewart of Hubbs-SeaWorld Research Institute.  But in contrast to what the NPS stated in the FEIS, Dr. Stewart twice found just the opposite, namely, no evidence of disturbances by DBOC skiffs.

This revelation has profound implications for Secretary Salazar’s decision to not renew the oyster farm permit, showing that USGS and NPS apparently misinformed Secretary Salazar using scientific claims they knew were incorrect, and that the Department of Justice continues to use the same false science to misinform the federal court.

NPS and their supporters keep saying that the science isn’t important in the federal court case, but that just isn’t true.  Last Tuesday, in the hearing in front of the Ninth Circuit Court of Appeals, the judges questioned both sides about whether the Secretary did or did not properly follow the National Environmental Policy Act (NEPA) in producing the Final EIS, and was properly informed by it for his decision concerning the DBOC permit. 

The FEIS claimed evidence for harbor seal disturbances by DBOC based upon the analysis of an independent expert, but only after the Secretary made his decision, did we realize that the expert – Dr. Stewart – found just the opposite.  Just recently we learned that USGS went back to the expert a second time, asked him if he changed his mind, and again he came back with the same finding.  USGS and NPS covered it up.  

The lawyers defending Interior tried to argue that the Secretary did not violate NEPA, but their arguments, as many in the courtroom knew, were inconsistent with the facts.  After two years of insisting the he would follow NEPA, in the final days, the Secretary abandoned NEPA.  Nevertheless, in his decision memo, the Secretary wrote that the DEIS and FEIS “have informed me … and have been helpful to me in making my decision.” 

I once again requested that Interior Secretary Jewell convene a blue-ribbon panel of independent scientists to investigate the allegations that USGS and NPS personnel intentionally misrepresented the findings of the independent expert concerning the oyster farm at Point Reyes.  

For your records, I am enclosed the original complaint filed with Secretary Jewell on May 13, Amy Trainer’s letter to Secretary Jewell on May 16, and my rebuttal letter sent to Secretary Jewell today.

To access those documents click on or copy and paste the links below into your web browser:

CSG to Jewell 05_20_13

EAC to DOI re Goodman complaint May 16 2013

CSG to Jewell 05_13_13

DBOC press release 5_20_13

04-09-13 Phyllis Faber letter to Gov Brown regarding Ca Coastal Comm & lawsuit filed

 

Phyllis M Faber

765 Miller Ave

Mill Valley, CA 94941

 

April 9, 2013

The Honorable Edmund G. “Jerry” Brown

State Capitol

Sacramento, CA 95

 

Dear Governor Brown,

 

Today ALSA (Alliance for Local Sustainable Agriculture) and I have filed a lawsuit against the California Coastal Commission on behalf of Drakes Bay Oyster Company for actions that do not conform to provisions of the Coastal Act of 1976 nor to its spirit. This is an extraordinarily painful step for me to take as I was co-chair of the Marin County effort to support Proposition 20 that created the California Coastal Commission in 1972 and served on the North Central Regional Commission for eight years, as chair for two years. I have been a strong supporter since the Commission was formed forty years ago. The Coast of California is clearly better off with the coastal management the Commission has provided.

 

I am an 85 years old, white haired biologist. Professionally, I am an editor for Natural History Books for UC Press. In Marin County, I was included in a small group on whom was bestowed the title of “Environmental Elder.” I wear it with pride. For more than 40 years – I remain an unabashed supporter of the California Coastal Act.

Today, however, in West Marin in their recent action against the Drakes Bay Oyster Company, the Commission has “lost its way.” It has engaged in an inexplicable campaign – exceeding its charter – to bureaucratically smother – to drive out of business — a working family farm, the Drakes Bay Oyster Company.

 

This is more than a case against an agency for failing to adhere to its CEQA rules and requirements. It’s more than usurping power from the Department of Fish and Game. It’s about the “abuse of power.”

 

When the Coastal Commission staff tells the Lunny family that it will not process its Coastal Development Permit (CDP) until the Park Service completes its environmental impact statement (a two-year, $ 2 million, 1,000 page document), and then accuses the Lunny’s of failing to have a CDP (delayed at CCC insistence), that’s abuse of power.

 

When the Coastal Commission staff presentation to the Commissioners includes a photo – dated 2013 — with the farm depicted as a physical mess with beach litter, but fails to disclose that the photo is more than seven years old taken of the beach under prior ownership and that under the Lunnys, it has been cleaned up, that’s abuse of power.

 

When the Coastal Commission staff found out about an administrative error by the Fish and Game Commission – twenty years ago, (a minor typographical error that was discovered by the Lunnys who asked that it be administratively corrected), they demanded actions and imposed a massive $60,000 fine while knowing that the Commission had docketed its correction – that’s abuse of power.

 

When the Coastal Commission becomes preoccupied with the Lunny purchase of replacement picnic tables for public enjoyment (and considers new ones development), that’s abuse of power.

 

When the Coastal Commission imposes a restoration order that is biologically impossible to achieve, and will clearly bankrupt a third generation ranching family, that’s abuse of power.

 

Above the Law – Beyond Accountability.

 

In enacting a Cease and Desist and a Restoration order against the Drakes Bay Oyster Company on February 7, 2013, we believe the California Coastal Commission made a mistake in judgment based on a flawed staff presentation and by ignoring their own policies, policies that support mariculture, that support agriculture, and that support visitor serving enterprises. And they ignored the Local Coastal Plan of Marin County (LCP) that strongly supports the oyster farm. This action will result in the Coastal Commission bankrupting one of the ranching families in the Point Reyes Seashore who have been on their farm for several generations and who operate the first organic beef operation in Marin County as well as the oyster farm. This is not what many of us deem to be good coastal zone management! It may also cause unknown and unconsidered harm to the productive Estero by the removal of millions of oysters, and all the clams and all the oyster racks. I firmly believe that the Cease and Desist Order and the Restoration order are in error and need to be rectified by the Coastal Commission.

 

The National Park Service determined that NEPA (environmental review) was required for the removal of the oyster farm. After more than 800 days, Secretary Salazar said, in effect, never mind – I don’t need NEPA to guide me and dismissed the report. The Coastal Commission didn’t even bother with CEQA either. Environmental reviews apparently are not necessary. The Coastal Commission, usually required by its own rules, simply unilaterally waived them. Excluding a public process that discloses, analyzes and explains means only one thing: the Commission’s actions cannot be reviewed. The Commission will not be accountable – to anyone. At the outset of the Commission hearing, the Commission staff instructed the Commissioners – to omit from the record the information submitted by the Lunny lawyers. This is wrong. This is not how Commission business was or should be conducted.

 

The recently re-adopted Commission Cease and Desist order covers three items: the emergency repair of a broken electric line for which the Lunny family had a county permit; for purchasing six picnic tables that needed replacement and six new ones to benefit the increased number of visitors every weekend (considered development by the Commission); and for the removal of an unsafe porch from a mobile home that had become a hazard (also considered development). Is this appropriate coastal management or is it perhaps a vindictive action on the part of Commission staff?

 

Because the oyster farm is so important as a source of high quality food (they grow about 30% of California’s oysters) and to supplying other oyster growers, the decision to remove the oyster farm is both controversial and ecologically significant for the region to consider. Oysters provide an important source of high quality food and a significant benefit to the ocean ecosystem.

 

The Commission’s Restoration order requires the oyster farm, if closed, to remove all the oyster racks that belong to the Park, to remove all the clams from the Estero floor, and to remove a non-native tunicate, a slimy marine organism that grows on the oyster shells and is today found all along the California coast. Removing the racks is a huge but a doable operation that will take two or three years and will include the removal of two or three million oysters that currently are filtering the waters of the Estero; removing all the clams on the Estero floor and will require raking the bottom of the Estero with unknown harm to all the flora and fauna in the Estero; and removing all the tunicates will certainly be impossible and attempting it will only spread this organism more widely.

 

Governor, something is terribly wrong in California when the Staff of a State Agency – the Coastal Commission – expend precious tax dollars waging a bureaucratic war against an ecologically beneficial food producer. Please give us your support.

 

Phyllis M Faber

765 Miller Avenue

Mill Valley, CA 94941

415 388-6002

04-05-2013 Alliance for Local Sustainable Agriculture files lawsuit against CA Coastal Commission

On April 5, 2013, the Alliance for Local Sustainable Agriculture (ALSA) filed a Petition For Alternative Writ of Mandate with Marin Superior Court against the California Coastal Commission (CCC).

 

ALSA has joined with Phyllis Faber, a long-time Marin County environmental activist and member of the first California Coastal Commission, to challenge Cease and Desist and Restoration orders (Orders) the CCC recently adopted that will effectively shut down the Drakes Bay Oyster Farm (DBOF), the single most important sustainable shellfish aquaculture operation in the state, located within the Point Reyes National Seashore.

 

ALSA views the CCC action as violating both the California Environmental Quality Act (CEQA) and the Coastal Act. The Petition notes that CCC staff affirmatively excluded from the record substantial evidence that the Orders would cause significant negative environmental impacts. This exclusion constitutes an egregious violation of CEQA. Further, while the Coastal Act declares that the Commission may not adopt regulatory controls over aquaculture that duplicate or exceed those of the California Fish and Game Commission (CFGC) and California Department of Fish and Wildlife (CDFW), the Orders effectively trample CFGC authority over shellfish cultivation in Drakes Estero as regulated by CDFW.

 

Both the Coastal Act and the Local Coastal Plan (LCP) support sustainable aquaculture as a coastal dependent use; both are disrespected by CCC orders that regard picnic tables as coastal development and require DBOF to undertake the physically impossible task of removing a non-native species from the Estero for which it bears no responsibility and which occurs along the entire Pacific coast. The Coastal Act requires the CCC to support agriculture and specifically, aquaculture, but CCC staff has misused the Coastal Act to undermine working landscapes of the California coast, threatening the viability of Marin’s entire agricultural infrastructure.

ALSA strongly supports both the California Coastal Act and the LCP. This lawsuit is, regrettably, necessary to remind the Commission of its statutory obligation to comply with CEQA, respect CFGC Constitutionally delegated authority, and to support aquaculture, agriculture and other coastal dependent uses and visitor services in California.

 

ALSA is represented pro bono by Zachary Walton of the SSL Lawfirm, with his colleagues Chris Wade, Liz Bridges, and Corie Calfee.

 

For more info contact: Donna Yamagata, at 415-669-9691, or at alsamarininfo@gmail.com.

 

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