4/30/15 E&E Daily INTERIOR: ‘We’re terrified,’ rancher tells lawmakers about Park Service

Kevin Lunny, co-owner of Drakes Bay Oyster Co., described his dispute with the National Park Service in harrowing detail. The rancher and business owner claimed that the agency had undertaken a “taxpayer-funded enterprise of corruption to run a small business out of” Point Reyes, Calif.
“Let me be clear: We did not fail as a business. This was not bad luck,” Lunny said. “Our family experienced the worst of what a motivated federal agency can do to a small business.”
E&E Daily
INTERIOR:
‘We’re terrified,’ rancher tells lawmakers about Park Service
Kevin Bogardus, E&E reporter
Published: Thursday, April 30, 2015
House lawmakers yesterday chewed on the years-long battle over the fate of a former California oyster farm as they delved into the alleged abuse of government-funded science.
Kevin Lunny, co-owner of Drakes Bay Oyster Co., described his dispute with the National Park Service in harrowing detail. The rancher and business owner claimed that the agency had undertaken a “taxpayer-funded enterprise of corruption to run a small business out of” Point Reyes, Calif.
“Let me be clear: We did not fail as a business. This was not bad luck,” Lunny said. “Our family experienced the worst of what a motivated federal agency can do to a small business.”
Lunny was testifying before the House Natural Resources Subcommittee on Oversight and Investigations. The hearing was called to examine allegations of federal agencies using “politically driven science,” according to the subpanel’s notice.
Under a settlement agreement announced last year with the Interior Department, Lunny had to close down his oyster farm after losing a protracted legal fight over its operation in a potential wilderness area (E&ENews PM, Oct. 6, 2014). The farm had harvested oysters for decades in Drakes Bay. Lunny bought the farm in 2005.
At yesterday’s hearing, Lunny said he was subject to misrepresentations and attacks by the Park Service during his fight to renew his oyster farm lease, which had expired in 2012. He described a federal environmental impact statement on the oyster farm as “weaponized.”
Lunny still operates a ranch in the area and claimed that the Park Service now has been isolating ranchers. Rep. Raúl Labrador (R-Idaho) asked Lunny if there would be “negative consequences” for him from testifying before the subcommittee.
“We’re terrified. Ranchers that are sitting behind me are terrified because we are challenging the Park Service very seriously. They did lie. They did falsify science,” Lunny said.
The Park Service has tried to repair its ties with ranchers in the area after the bitter fight over the oyster farm (Greenwire, June 4, 2014).
The Interior inspector general in 2008 found that a scientist employed by Point Reyes National Seashore misstated data on the environmental impacts of mariculture to hurt the oyster farm (Greenwire, July 23, 2008).
Rep. Jared Huffman (D-Calif.) said he has known Lunny for years and that he is “a good and decent guy.” The congressman noted that the battle over Drakes Bay, which is based in his congressional district, has “strained relationships that we are still working very hard to put back together.”
“Re-litigating these old accusations from a matter that has been closed at a time when this community is really trying to move on is not helpful or productive,” Huffman said.  [the case was never litigated, the Lunny’s asked for an injunction to remain open while a lawsuit could be pursued]
Rep. Louie Gohmert (R-Texas), chairman of the subcommittee, said the hearing was an examination of science manipulated by agencies for their own purposes.
“This will be an honest assessment of how the system has failed,” Gohmert said.
Lawmakers also heard from witnesses on how the Fish and Wildlife Service’s faulty counting of whooping cranes led to drawn-out litigation for the Texas Commission on Environmental Quality. In addition, the panel heard that recovery efforts in Bastrop County, Texas, from a wildfire were delayed because of protections for the Houston toad, an endangered species.
Democrats sought to pivot the hearing toward discussion of attacks on science, including on those researching climate change.
“In a hearing about politically driven science, climate denial is the ultimate case study,” said Rep. Raúl Grijalva (D-Ariz.), ranking member of the House Natural Resources Committee.
At one point, Gohmert responded forcefully to suggestions that the hearing was unfairly going after science.
“The purpose of the hearing was to hear from real people, mammals called human beings that have been harmed by the federal government,” said the subcommittee chairman.
Toward the close of yesterday’s hearing, Gohmert said his subpanel would continue to look into alleged wrongdoing by federal agencies.
“You can expect more hearings to get to the bottom of what our government has been doing to our people,” Gohmert said.

4/29/15 Daily Caller: NATIONAL PARK SERVICE EMPLOYEES LIED TO PUT HISTORIC OYSTER COMPANY OUT OF BUSINESS

CLICK THIS LINK  http://naturalresources.house.gov/calendar/eventsingle.aspx?EventID=398357

AND THEN CLICK ON THE “WATCH THE ARCHIVED HEARING WEBCAST ” LINK ON THAT PAGE.

Oversight Hearing on “Zero Accountability: The Consequences of Politically Driven Science.”

The House Subcommittee on Oversight & Investigations held a hearing yesterday, 4/29/15 at 2 PM and one of the issues they looked at is the misuse of science by the NPS in Drakes Estero.  Kevin Lunny was called to testify as a witness.

 

NATIONAL PARK SERVICE EMPLOYEES LIED TO PUT HISTORIC OYSTER COMPANY OUT OF BUSINESS
04-29-2015 5:42 pm – Michael Bastasch – Daily Caller
The National Park Service used falsified data to shut down an 80-year-old oyster company in Point Reyes, Calif, its owner claims.

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

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

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

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

“No one has apologized,” Lunny said.

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

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

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

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

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

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

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

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

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

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

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

————————-
SOURCE: http://dailycaller.com/2015/04/29/oyster-farmer-we-are-terrified-of-the-govt/

08/04/2014 Oyster Farming is the “Wilderness”

AN EMAIL FROM A COLLEAGUE IN CONNECTICUT TODAY.

(Click on the link and then click to watch the video):

 

Oyster farming is the “Wilderness”………

Check this out – http://www.rhodyoysters.com/

Went there last weekend – “Farm to Table (his own Oyster Farm and his own Vegetable Farm)”. Now the Number 1 Restaurant in Rhode Island.

Get the message…………………… its sustainability.

Bruce McGown

CEO InterWeave.biz

 

 

 

 

10-02-14 PRL: EAC Loses Only Agricultural Representative – felt ineffective in communicating needs of farmers and ranchers

Peter Martinelli, (board member from ’99 – ’07), …said there was a shift away from collaboration with agriculturalists  “… from agriculture and environmentalism working together and more towards a preservationist agenda…”

Environmental Action Committee loses agricultural representative

10/02/2014

The only board member of the Environmental Action Committee of West Marin who works in agriculture resigned this month, believing she wasn’t filling the role in the way she set out to. “I felt that I wasn’t effective in communicating the needs of the farmers and the ranchers out here,” said Mimi Luebberman, who runs Windush Farm, where she raises sheep for wool on 26 acres in Chileno Valley. “I wasn’t meeting my own goals in communicating with people.”

Ms. Luebberman sat on the board for about three years. She declined to elaborate further on the reason for her resignation, simply saying, “I really respected my board members. It was an experience I’ll never forget, that’s for sure.”

The E.A.C., founded in 1971, has long had an agriculturalist on its board, including Tomales dairyman Al Poncia and rancher Sonny Grossi in the 1990s. Peter Martinelli, who grows row crops on his 22-acre Fresh Run Farm in Bolinas, sat on the board from about 1999 to 2007. But he said there was a shift away from collaboration with agriculturalists during his tenure. “It tended to drift away from agriculture and environmentalism working together and more towards a preservationist agenda… I think I was decreasingly useful to that organization,” he said.

The E.A.C., has been involved in hot-button issues at the intersection of agriculture and conservation for decades. Recently it has sustained criticism by some members and former members for its position on Drakes Estero and Drakes Bay Oyster Company. The nonprofit has stridently opposed aquaculture in the waters, where oysters have been cultivated commercially since the 1930s but which was designated a marine wilderness in 2012 at the termination of the farm’s reservation of use.

At a public hearing in May, the nonprofit’s executive director, Amy Trainer, opposed provisions in an update to the county’s Local Coastal Program that excluded some agricultural housing from being appealable by the public to the California Coastal Commission, though ranchers and groups like the Marin County Farm Bureau said greater leeway for housing would help multiple generations live on the land.

Bridger Mitchell, the board president, said in an email that Ms. Luebberman “has been an articulate voice for matters concerning agriculture and education and a stalwart supporter of EAC events and I thank her for her service and dedication. EAC looks forward to continuing to engage with West Marin farmers and ranchers on agricultural and environmental issues of mutual concern.”

08-21-14 GreenBiz wants examples of govt leaders actions to protect natural resources & my response

In a post today in Green Biz, Lizzie Needham, Associate Community Manager at GreenBiz Group, Top Contributor wrote

 

Dear GreenBiz Group Member,

According to the Union of Concerned Scientists, deforestation accounts for 10 percent of global emissions—a big number when you consider that this equates to around 3.0 billion tons of CO2 per year. Tensie Whelan, President of the Rainforest Alliance, fights to reduce deforestation by advocating for biodiversity protection and sustainable agricultural systems.

In her recent GreenBiz interview, Whelan claims that we are seeing exponential progress, particularly within the business world, but crucial action still lags. Whelan’s interview also reminds us that while business cooperation makes a difference, impactful natural resource protection transformations rely on government support. You can read Whelan’s full interview here: http://grn.bz/1uYujYX

Do any members have unique or impressive examples of government leaders taking significant action to protect natural resources?

I responded:

  • I have an example of government doing exactly the opposite in removing Drakes Bay Oyster Farm from the Point Reyes National Seashore in California. The DOI, the NPS, and the CCC have committed their own style of deforestation by misinterpreting the law, re-writing history, and trampling California State’s Rights in so doing. Worse, the beacons of environmental preservation cannot see the forest for the trees in that they are now stating the opposite of their position in the establishment of the Point Reyes National Seashore in 1962, the opposite of their position in the passing of the Wilderness Act in 1976. Even the then PRNS Superintendent, Don Neubacher has done a 180 on his position in his letter Oakland Bank in 1998 where he stated he had every intention of continuing the oyster farm after it’s lease expired in 2012. It is as if they cannot see the forest for the trees! DBOC is a locally produced, sustainable, renewable source of protein production – 40% of CA oysters are produced there and they were the LAST oyster cannery in CA. Oyster Bay Wildlife Refuge on Long Island has a commercial oyster farm that produces 90% of New York’s oysters

    If then why not now?
    If there why not here in CA?

    There is still hope with the lawsuit filed by the other oyster companies and businesses in the area who depend on Drakes Bay Oysters to stay in business.

    For the legal documents, legitimate scientific reports and more go to http://www.OysterZone.org or http://savedrakesbay.com/core/

  • Oyster farming and wilderness are not mutually exclusive.

11-22-96 The Letter from Neubacher to the Bank of Oakland, attesting to the NPS’s intention to renew the lease.

If then, why not now?

 

“….As stated previously, the NPS would like the planned improvements to occur at Johnsons. In fact, the NPS has worked with Marin County planners to insure the facilities attain county approval. Moreover, the Park’s General Management Plan also approved the continued use of the oyster company operation at Johnson on Drakes Estero….”

Click on the link below to see a copy of the actual letter from then Superintendent Don Neubacher to the Bank of Oakland

 

1996-11-22 Neubacher ltr to Bank of Oakland

07-31-14 The Absurdity of the Removal of DBOC from the earth, or the dillema of feeding 7 Billion today, 9 Billion by 2050

On the last day for retail sales a ceremony was held at DBOC at which a number of people were asked to speak. I was honored to be one of the speakers. Below is the transcript of the speech I gave after introducing myself, informing all of how I came to be involved, and a little about my involvement through this “blog”.

 

New York State’s only remaining commercial oyster farm operates on the OYSTER BAY NATIONAL WILDLIFE REFUGE, producing 90% of the State’s oyster harvest. The State of New York has designated the Oyster Bay area as a Significant Coastal Fish and Wildlife Habitat. …. If there, WHY NOT HERE?!

http://oysterbaytown.com/places-to-go-things-to-do/

cover of Nat’l Geographic, May 2014

THE NEW FOOD REVOLUTION –

To feed our hungry planet, we must change the way we farm – and the way we think.

By Jonathan Foley

DIRECTOR OF the Institute on the Environment, University of Minnesota.

“When we think about threats to the environment, we tend to picture cars and smokestacks, not dinner. But the truth is, our need for food poses one of the biggest dangers to the planet.”  from pg 35 of the hard copy

·        Agriculture is among the greatest contributors to global warming, emitting more greenhouse gases than all our cars, trucks, trains, and airplanes combined—largely from
o   methane released by cattle and rice farms,
o   nitrous oxide from fertilized fields, and
o   carbon dioxide from the cutting of rain forests to grow crops or raise livestock.
o   Farming is the thirstiest user of our precious water supplies
o   Runoff from fertilizers and manure makes Farming a major polluter
o   The spread of prosperity across the world, especially in China and India, is driving an increased demand for meat, eggs, and dairy, boosting pressure to grow more corn and soybeans to feed more cattle, pigs, and chickens.
o   As we’ve cleared areas of grassland and forest for farms, we’ve lost crucial habitat, making agriculture a major driver of wildlife extinction.
·
·        If these trends continue, the double whammy of population growth and richer diets will require us to roughly double the amount of crops we grow by 2050.
The author and his team proposed 5 steps to solve the world’s food dilemma.” I have taken his steps and included the validity of the argument to keep DBOC

1.    Freeze Agriculture’s Footprint…. Avoiding further deforestation must be a top priority.

o   OYSTER FARMING REQUIRES NO DEFORESTATION

2.   Grow More on Farms We’ve Got…. high-tech, precision farming systems, and borrowing from organic farming, could boost yields in several times over.

o   LEAVE DRAKES BAY OYSTER FARM RIGHT WHERE IT IS,

o   It doesn’t require high tech farming systems,

o   It is already 100% organic,

3.   Use Resources More Efficiently….. Organic farming can also greatly reduce the use of water and chemicals

       o   Oyster Farming requires neither fertilizers nor chemicals, and uses no added fresh water!

4.   Shift Diets…. Finding more efficient ways to grow meat and shifting to less meat-intensive diets…could free up substantial amounts of food  Curtailing the use of food crops for biofuels could also enhance food availability.

      o   Retaining a sustainable, renewable, ecologically and environmentally beneficial source of food production – OYSTER FARMING – will do that.  AND No one’s using oysters for bio-fuels!

5.  Reduce Waste.  25 % of the world’s food calories … are lost or wasted before they can be consumed. Tackling waste would be one of THE most effective options for boosting food availability.

o   Oysters come in individually, nature wrapped packages,

o   buy what you need, eat what you bought!

o   Even the shells are useful

§  whole they provide habitat restoration 

§  crushed they can be used

§  organic fertilizer

§  ground cover

Oyster production is the winner in solving the world food shortage dilema.

George Washington is purported to have said “Our country is an experiment” and he gave it 20 years.

I give this Wilderness Without Oysters experiment 20 years. It will be put back for both reasons environmental and necessity. We’ll have 9 Billion mouths to feed.

It will be too late for the Lunnys, their workers and families as well as all the ranchers and dairies on this peninsula – for the water filtration system provided by the oysters having been removed will leave them as the major polluter of the estero, and soon, they too, will HAVE to go, unless CONGRESS INTERVENES.

 

CONGRESS: YOU HAVE ALREADY REQUESTED INSTALLATION OF MORE OYSTER FARMS ON ALL OUR COASTS

CONGRESS: Don’t let this Empty Environmental Experiment ruin the lives of all these people AND EXTINGUISH THE AGRICULTURAL CHARACTER OF WEST MARIN.

CONGRESS, you have the power and the authority to reverse this decision.

CONGRESS ACT TO REVERSE THIS DECISION TODAY.

 

Write your congress person today, let them know you want this farm to stay!

 

07/31/14 Epoch Times, #1 Chinese Media Group, Sabrina Chang, Reporter, Coverage of DBOC last retail day

Sabrina Chang, Reporter for Epoch Times, the No. 1 Chinese Media Group was at the oyster farm on Thursday with a film crew.

Below is a link to her video that evening  in which Kevin Lunny, and others are recorded making short statements about the situation.

// // //

Ms Change also stated: We also have this piece of news on today’s Epoch Times newspaper.

08/03/14 Travel Channel video on Long Island, NY Oyster Farm in a Wildlife Refuge

TO SEE THE VIDEO, CLICK ON THE LINK BELOW

 

08-03-14 Commercial Oyster Farm in Nat’l Wildlife Refuge – 90% NY oysters produced there, if there WHY NOT HERE?

Wildlife & Habitat – Oyster Bay – U.S. Fish and Wildlife Service

  • Oyster Bay National Wildlife Refuge consists of 3,204 acres of bay bottom, salt marsh, and a small freshwater wetland. It is managed principally for use by migratory waterfowl and other waterbirds. It is also one of the few bay-bottom refuges owned and managed by the U.S. Fish and Wildlife Service. The refuge is located off Long Island Sound, and the sheltered nature of the bay makes it extremely attractive as winter habitat for a variety of waterfowl species, especially diving ducks.

    The State of New York has designated the Oyster Bay area as a Significant Coastal Fish and Wildlife Habitat. Marine wildlife common to the refuge includes harbor seals, diamondback terrapins, and several species of sea turtles. Shellfish and finfish are abundant at Oyster Bay. The bay supports the only commercial oyster farm aquaculture operation remaining on Long Island, and an estimated 90 percent of the commercial oysters in New York originate from areas associated with the refuge.

     

    YOU WILL FIND THIS AT THE BOTTOM OF THE PAGE IF YOU GO TO THE LINK BELOW

    http://www.fws.gov/refuge/Oyster_Bay/wildlife_and_habitat/index.html

     

    ALSO, CHECK OUT THE TRAVEL CHANNEL VIDEO ON LONG ISLAND OYSTERS

     

     

01-30-2014 Pt Reyes Light: Miracle Stay Keeps DBOC Afloat

Miracle stay keeps Drakes afloat

By Samantha Kimmey

01/30/2014

Point Reyes Light

 

The fate of Drakes Bay Oyster Company rests in the hands of the justices of the United States Supreme Court.

 

The historic Point Reyes shellfish farm’s owners, employees and supporters might have thought a miracle occurred on Monday, when the Ninth Circuit Court of Appeals granted the farm’s plea for a 90-day stay so it might continue selling and canning shellfish while a team of lawyers submits an appeal to the high court.

 

The stay followed two distressing rulings for Drakes Bay from the same circuit court. A 2-1 ruling in September denied the farm an injunction so that it could remain open as it battled the Interior Department and National Park Service over a decision in Nov. 2012 to shutter the farm. (The same three judges this week signed the order for the stay.) A subsequent request for an en banc rehearing was denied earlier this month.

 

Farm owner Kevin Lunny said that despite those recent decisions, he was not surprised by this week’s news. “Nothing surprises me anymore because I don’t know what to expect. It’s all uncharted territory,” he said.

 

Stays are issued if all three of the following conditions are present: there is a reasonable chance that four Supreme Court justices would consider tackling the case, there is a significant possibility that the high court would reverse the lower court’s decision, and if “irreparable harm” would follow the denial of a stay.

 

The government filed a brief in opposition to the stay half an hour before the circuit court granted it. Federal lawyers wrote that not a single judge voted to rehear the case en banc, and argued that the petition to the high court was not likely to succeed because the circuit court’s decision was not a broad holding but a narrow decision about a single permit. Drakes Bay lawyer Peter Prows said the court must not have found those arguments persuasive.

 

Despite significant controversy and evidence that farm operations do not harm harbor seals residing in Drakes Estero, the government’s rebuttal also singled out the pinnipied’s pupping season as “an equitable factor that the court should consider” because of the farm’s motorboats.

 

Mr. Prows said the harbor seal reference riled him. “Here the feds go again saying the farm should be shut down to protect harbor seals from harm that wasn’t occurring. I thought that was kind of outrageous.”

 

Drakes Bay lawyers have until April 14 to submit their appeal.

01-30-2014 Marin Voice: “9th Circuit … Puts a Thumb on the Scale” (of Justice)

Marin Voice: Oyster ruling deserves another look

By Jim Linford
Guest op-ed column

Posted:   01/30/2014 06:11:32 PM PST

THE Ninth Circuit has refused to rehear the oyster farm case with only one judge an Obama appointee and the dissent’s authorvoting to rehear it. The case will now go to the United States Supreme Court who may agree to hear it.

But the Ninth Circuit decision is very odd because, again and again, it puts a thumb on the scale.

First, it needlessly disparages — or at least trivializes — one side in the dispute. The opinion begins:

“This appeal, which pits an oyster farm, oyster lovers and well-known “foodies” against environmentalists aligned with the federal government, has generated considerable attention in the San Francisco Bay Area.”

While the court appears to take judicial notice of the public debate, it apparently does not acknowledge that sustainable agriculture is an environmentalist concern, and, most importantly, that there are environmentalists on both sides of the dispute. The court puts a thumb on the scale.

Second, the court disregards a universal legal maxim, general rules are understood broadly while exceptions, narrowly. In administrative law, the general rule is that courts have jurisdiction to review all governmental action. There are some exceptions to that general rule, but the exceptions should be narrowly applied. However, in the oyster farm case, the court oddly gives a very broad application to an exception — Article 124 — the court thus prevents itself from looking into irregularity in the Secretary of the Interior’s oyster farm decision. The court puts a thumb on the scale.

Third, the court muddles the geography of the oyster farm by failing to distinguish clearly between those parts of the farm that are within the wilderness zone and those parts that, like the farm buildings of the neighboring dairy ranches, are within the pastoral zone.

Only the oyster beds are within the wilderness. But by confuting the pastoral and wilderness zones, the buildings and the beds, the court leaves the impression of far greater impact on the wilderness. The court puts a thumb on the scale.

Fourth, the court treats the legislative intent at the creation of the seashore and the wilderness as something that can be lightly brushed aside by some sort of (in this case, merely tacit) indication of changed intent. However, the initial legislative intent that the agriculturalists — including the oyster farm — would continue to have their use permits renewed was part of the historic bargain between environmentalists and agriculturalists that created the seashore. As anyone who has seen the film “Rebels With a Cause” knows, without that bargain, the lands would have been lost to the urbanization of commercial real estate development. By ignoring the reality of the seashore’s origins, the court puts a thumb on the scale.

Given the historic bargain that preserved the seashore, it is absolutely outrageous to argue that the agriculturalists somehow gave up their traditional use of the land when they were in fact protecting it by transferring ownership to the Park Service.

Sustainable agricultural use has been an inextricable part of the texture of the seashore since its creation.

The Ninth Circuit’s unfair decision ignores that primordial reality and should now be taken up by the U.S. Supreme Court.

Jim Linford of Marinwood is a semi-retired appellate attorney who has filed a pro bono amicus brief in support of the oyster farm on behalf of an historic resource foundation

11-21-13 WMC Goodman Brief Details History of NPS False Science

Goodman Brief Details History of NPS False Science

By Sarah Rolph

Those who have closely followed the Drakes Bay Oyster Company (DBOC) controversy know that local scientist Dr. Corey Goodman became involved in April 2007 when Marin County Supervisor Steve Kinsey contacted Dr. Goodman, based upon his scientific credentials and experience in science and public policy, and asked him to analyze the National Park Service (NPS) science on Drakes Estero.

Kinsey then invited Dr. Goodman to testify as an independent scientist at the May 8, 2007 County hearing as to whether NPS data supported NPS claims. At the time, Dr. Goodman did not know Kevin Lunny, owner of Drakes Bay Oyster Company. Dr. Goodman’s analysis showed that NPS data did not support NPS claims, and he testified that NPS officials misrepresented their own data.

Goodman is passionate on the topic of scientific integrity. At the May 2007 meeting, he stated:

“I believe that public policy decisions can and should be informed by quality science. But this must be science conducted rigorously, without agendas or conflicts-of interest. The political process can be dangerously misled by bad or misused science. One of my greatest concerns when I see science being invoked in public policy debates is to make sure that it is good science and not pseudo-science or — even worse — a blatant misuse of science.”

The history of the DBOC controversy has shown these comments to be prescient. What has happened since 2007 has, sadly, been a blatant misuse of science.

Dr. Goodman’s Amicus brief supporting DBOC’s petition for en banc rehearing in the Ninth Circuit provides an excellent summary of this blatant misuse.

There is no scientific basis for the view—promulgated by the National Park Service (NPS) Final Environmental Impact Statement (EIS)—that the oyster farm causes significant environmental harm to Drakes Estero.

“To this day,” the brief argues, “NPS and their supporters continue to recite a fictional narrative that they have evidence of environmental harm, when they have no such evidence.”

Goodman’s brief details the shocking history of false NPS claims. As the brief explains:

“The EIS is the latest chapter in a seven-year effort by NPS to claim the oyster farm causes environmental harm. Again and again, NPS issued papers, reports and testimony claiming the oyster farm harms the environment. Each time, NPS had to correct, revise, or retract its claims after being sharply criticized by the National Academy of Sciences (NAS), the Department of the Interior’s Inspector General and Office of the Solicitor, or Congress. But each correction has proven to be a new opportunity for NPS to misrepresent the science on some new issue—be it eelgrass, sediments, fish, harbor seals, soundscape, and, most recently, a tunicate.

In the end, NPS spent millions of dollars searching for adverse environmental impacts that do not exist. It is difficult not to conclude that this pattern was intentional. It certainly was not harmless.”

The NPS EIS even claims that the oyster farm is bad for water quality.

In fact, the opposite is true: oysters, being filter-feeders, provide environmental benefits to the waters in which they live, which is why oyster restoration projects are under way globally. Just last week, on November 15, the San Francisco Chronicle featured on its front page an exciting update about the oyster restoration effort in San Francisco Bay (an effort made possible by the donation of DBOC oyster shells). (In case you missed it, that article is here: http://www.sfgate.com/science/article/2-million-oysters-in-bay-begin-restoration-effort-4984300.php)

The Ninth Circuit majority, having been misled by the NPS EIS, called removal of the oyster farm an “environmental conservation effort.” Unless NPS intends to remove the surrounding cattle ranches (which they publicly promise not to do), the prudent “environmental conservation effort” would be to allow the oysters to continue to filter and clarify the water, not to eliminate the oyster farm.

The false claims in the EIS were so outlandish that Congress expressed concern about “the validity of the science underlying the [Draft EIS]” and directed the National Academy of Sciences (NAS) to review it.

The NAS review pointed out that the EIS had it backwards—that the oysters are “beneficial” for the environment:  “… the committee determined that an alternate conclusion on the overall impact of DBOC operations could be reached, with the beneficial effects of shellfish filtration outweighing the adverse impacts from sediment disturbance and the low levels of contaminants generated by DBOC activities.”

The EIS review is not the first time the Academy was asked by Congress to review NPS science. The NAS was also asked to get involved in 2009. They convened a scientific panel, held a series of public meetings, and ultimately released its review on NPS’s claims on May 5, 2009. That NAS panel came to two major conclusions:

  • “[NPS] selectively presented, overinterpreted, or misrepresented the available scientific information on DBOC operations …”
  • “… there is a lack of strong scientific evidence that shellfish farming has major adverse ecological effects on Drakes Estero.”

Nevertheless, the NPS continued to press its false narrative.

The details are incredible. For example, a secret camera program was put in place to monitor oyster workers without their knowledge. Apparently NPS was hoping to find evidence for its claims that oyster boats disturb seals—the three years of data from the secret cameras instead proved the opposite. The Park Service had those photos analyzed by outside experts, and the seal expert who reviewed them found the same result. The Park Service had no other evidence for its claims about seals, so it took the astounding step of changing the report, claiming in the EIS that the review found disturbance to seals—the opposite of what was actually found.

Please read the brief to learn the full story of the Park Service’s malfeasance. You can find it here: http://cdn.ca9.uscourts.gov/datastore/general/2013/10/25/13-15227_Amicus_brief_by_Dr_Corey_Goodman.pdf

The Citizen welcomes your letters and essays on this brief, and on all the briefs profiled in this series. Send your comments to editor@westmarincitizen.com

10-10-13 OpEd: “Judges Agreed, Congress’ intent oyster farm to remain indefinitely”

 

“… it is not well understood that the judges did all agree on a very important fact: When Congress designated the wilderness in the Point Reyes National Seashore in 1976, it thought the oyster farm to be compatible with wilderness and expected the farm to remain indefinitely.”

 

Marin News

     

Marin Voice: Oysters in the wilderness

By Jim Linford
Guest op-ed column

Posted:   10/10/2013 08:00:00 PM PDT

 

 

Jim Linford

THOSE OF US who have followed the Drakes Bay Oyster Co. case understand that the three-judge decision handed down at the beginning of September went against the oyster farm by 2-1.

But it is not well understood that the judges did all agree on a very important fact: When Congress designated the wilderness in the Point Reyes National Seashore in 1976, it thought the oyster farm to be compatible with wilderness and expected the farm to remain indefinitely.

The dissent fully develops this understanding of the original congressional intent, and the majority acknowledges “the accuracy of the dissent’s recitation of the legislative history of the 1976 Act.”

Here is the puzzle: All three judges agreed that Congress intended the oyster farm to be compatible with wilderness. And yet two of them upheld the secretary’s decision to close down the oyster farm based on his misunderstanding that Congress supposedly thought the oyster farm to be incompatible with wilderness.

How could that happen?

First, the majority thought that the secretary’s decision did not have to pay attention to congressional intent because of recent special legislation regarding the Drakes Bay oyster case. And second, since (former) counsel for the oyster farm shared the secretary’s misunderstanding, the oysters-in-the-wilderness approach was never properly presented and did not really need to be considered.

The dissent disagreed and attributed the misunderstanding to the secretary’s legal counsel.

How pristine does wilderness need to be?

In the 2010 Wilderness Watch case, the Ninth Circuit rejected a narrow understanding of the Wilderness Act, one that would preserve the wilderness in a museum diorama, one that we might observe only from a safe distance, behind a brass railing and a thick glass window.

Rather, it is the act’s intent to assure that the wilderness be preserved as wilderness and made accessible to people, “devoted to the public purposes of recreational, scenic, scientific, educational, conservation and historical use.”

Although the Wilderness Act generally precludes commercial activities, it specifically allows for the continuation of animal grazing rights that pre-existed the wilderness designation (and, I would argue, for bivalve as well as bovine grazing).

Given this provision and the continuation of grazing within the Point Reyes National Seashore, it is no surprise that in 1976 Congress expected the oyster farm to remain in operation.

The Drakes Bay oyster farm case was not fully developed when presented to the district court and court of appeals. I hope that the Court of Appeals allows it to develop properly by granting the request for an en banc rehearing.

On a more personal level, a rehearing could also permit the correction of an odd misunderstanding at the beginning of the opinion:

“This appeal … pits an oyster farm, oyster lovers and well-known ‘foodies’ against environmentalists aligned with the federal government.”

If we have learned anything at all from the public debate over this matter, it is that there are “environmentalists” on both sides.

Certainly those of us who support sustainable agriculture (a “conservation use” of the seashore) see it as an environmentalist cause.

It would be helpful for the court to acknowledge that fact.

Jim Linford of Marinwood is a semi-retired appellate attorney and an active member of the California Bar.

 

 

 

10-03-13 Washington Post: NPS FAILED TO FOLLOW ITS OWN POLICIES & PROCEDURES

 

10-03-2013 WASHINGTON POST

Whistleblower in Snyder tree case moves on to a new job, wins settlement with park service

By Miranda S. Spivack, Published: October 3

The federal government has settled whistleblower retaliation complaints from a former C & O Canal chief ranger who said he suffered years of reprisals after revealing that the National Park Service had allowed Washington Redskins owner Daniel M. Snyder to cut down 130 mature trees in a federally protected area.

The settlement with Robert M. Danno comes after he complained to the Interior Department’s inspector general and to other officials about the tree-cutting arrangement, and then experienced what he says were eight years of reprisals. The Park Service, he said, removed him from his position as chief ranger for the C & O Canal park; stripped him of the authority to carry a gun; accused him of theft, leading to criminal charges (he was acquitted); reassigned him to issue picnic permits in a park in Northern Virginia with four picnic tables; and for the past three years, threatened him with termination.

Government officials confirmed the existence of the settlement after an inquiry from The Washington Post but said they were barred by the agreement from discussing the terms.

A spokeswoman for the Park Service declined to comment other than to point to a written statement noting that an agreement had been reached and that Danno has a new job with the agency.

Danno also said he could not comment on the agreement.

In a brief interview, he said, “I hope that my experience helps the National Park Service get back on course.”

Jeff Ruch, executive director of Public Employees for Environmental Responsibility (PEER), who aided Danno and his attorney, Peter Noone, said the reprisals against the decorated 30-year ranger were the “most vicious” he has seen.

“We have seen all the types of retaliation he experienced,” Ruch said. “We just have not seen it all in one case.”

PEER also represented U.S. Park Police Chief Teresa Chambers in her seven-year fight to win back her job. Chambers was fired in 2003 after she spoke with a Washington Post reporter about budget cuts and staffing reductions.

The settlement with Danno, 54, comes after the federal Office of Special Counsel spent seven months mediating the complaints. As part of the settlement, Danno soon will report to work as a division chief for wilderness planning at the Park Service’s wilderness training center in Missoula, Mont. Danno, who lives in West Virginia, has been working for the past three years as a boundary manager at Antietam National Battlefield in Maryland while under threat of termination.

Danno, who detailed his experiences in a self-published book, wrote that his problems began in 2005 after he advised his boss, C & O Canal park Superintendent Kevin Brandt, to reject a request from Snyder to cut trees in an area where tree-cutting and brush removal are generally prohibited by federal law.

The prohibitions extend to private property abutting the park, such as the Snyder estate in Potomac, to ensure that scenic vistas are maintained and natural resources are protected.

Interior’s inspector general found in a 2006 report that the Park Service violated its own policies when it allowed Snyder to clear 50,000 square feet of mature trees and replace them with saplings. The report did not find any misconduct by Snyder.

Despite the findings, the Park Service continued to marginalize Danno, he says in his book, and eventually threatened to fire him.

The inspector general’s report said that the tree-cutting plan was approved at the highest levels of the agency and that the office of then-Park Service Director Fran Mainella had given Snyder a green light to cut the trees. The report said that the approval disregarded federal environmental laws, harmed the Chesapeake & Ohio Canal National Historical Park and left the agency vulnerable to charges of favoritism.

The inspector general said that P. Daniel Smith, then special assistant to Mainella, pressured lower-level officials to approve the deal.

Mainella and Smith, the report said, gave federal investigators contradictory accounts about how the decision to allow the tree-cutting was reached and about discussions at a Redskins game that Mainella attended as Snyder’s guest.

The inspector general’s report said that Brandt gave investigators contradictory statements about his conversations with the Park Service director’s office. This left unclear whether he had received direction from that office or had acted on his own.

“Our investigation determined that NPS failed to follow any of its established policies and procedures . . . and even disregarded the recommendations of their own Horticulture and Advisory Review Committee,” the inspector general’s report said. The report also said that Snyder had previously offered to pay the Park Service $25,000 “as mitigation for scenic easement variance requests.”

Smith said in a 2006 Washington Post interview that he had received a letter of reprimand for “overstepping his discretion” but did “nothing tawdry.”

He also said investigators in their report misconstrued his statements about Mainella’s role. He said Mainella “was not involved about the trees.”

Mainella had declined comment at the time of the Post article, but her office released a statement saying that there would be no comment about Smith because it was a personnel matter.

Mainella is no longer with the Park Service. Smith is superintendent of Colonial National Historic Park in Yorktown, Va. Brandt is superintendent of the C & O Canal National Historical Park.

The inspector general’s report did not accuse Snyder of doing anything improper but suggested that he had access to top Park Service officials that other residents might not have. Montgomery County, which also had jurisdiction, later penalized Snyder for the tree cutting, requiring him to pay $37,000 and replant.

© The Washington Post Company

 

 

For Immediate Release: Oct 04, 2013
Contact: Kirsten Stade (202) 265-7337

REDSKIN OWNER TREE-CUTTING WHISTLEBLOWER CASE RESOLVED

Special Counsel Mediation Brings Happy Ending for Park Service Ranger Danno

Posted on Oct 04, 2013  | Tags: NPS, District of Columbia


Washington, DC — The long ordeal of Chief Ranger Robert Danno, who blew the whistle on illegal tree cutting by Washington Redskins owner Dan Snyder, is over, as indicated in the following joint statement:

“Ranger Danno and the National Park Service resolved his complaint filed under the Whistleblower Protection Act through the Office of Special Counsel’s Alternative Dispute Resolution Program to the mutual satisfaction and the best interest of both parties. While the terms of the settlement are confidential, Ranger Danno has begun a new assignment at the Arthur Carhart National Wilderness Training Center in Missoula, Montana.”

Although we may not say more, Public Employees for Environmental Responsibility (PEER) could not be more pleased at the outcome and are proud to have been of assistance.

###

Find out more about the Danno saga 

 

 

10-03-13 PRL Letter to Ed: THE EAC HAS BECOME UNRECOGNIZABLE

 Letters

 

The EAC has become unrecognizable

 

Dear Editor,

 

The Environmental Action Committee in recent years has morphed into to an organization unrecognizable from when I was a member, beginning in the late 70’s. At that time we worked hand in hand with the ranching community and I have fond memories of the partnership  to steward the land that was struck between our local farmers and us new arrivals from a more urban background.

 

We often had very different political views, but we treated each other for the most part with respect and politeness. After all, the ranching community was here before we were; most importantly, they were active partners in establishing the park and were a major contributor to the unique character of the West Marin we moved to.

 

The park would not have come into existence without the support of the ranchers when it was just a dream. It is outrageous for the EAC, led by Ms. Trainer, to turn around and bite the hand that feeds us all. What’s next? No renewal of dairy ranch leases?

 

 

Hobart Wright

Inverness Park

09-26-13 WMC Guest Column DBOC CORE of Sustainable Food, Champion Health/Diversity Estero

When I first learned about this conflict, I expected to be on the side of the Park Service. After learning more about the facts of the situation, I’m not. Despite my emotional attraction to the idea of “protecting” this beautiful area, I believe the Park Service has become locked into an outdated and overly rigid notion of wilderness. Worse still, in pursuit of its goals the agency has become a political bully and intentional purveyor of junk science, distorting regulatory requirements and ignoring the ongoing value of the oyster farm  to both the estero and the community. DBOC, in contrast, has emerged as a core player in the Bay Area sustainable food movement, and a champion of the diversity and health of the estero.

 

Guest column

Environmental Stewardship at Drakes Bay

 

By Sandor Schoichet

 

Growing up hiking and camping as a Boy Scout, I had the ethic of leaving campsites cleaner than you found them instilled in me at an early age. Attending college in the early 1970’s among the misty redwoods of UC Santa Cruz inspired my love of natural environments. Now I’ve become an a vid sailor, enjoying the San Francisco Bay and supporting conservation and restoration groups like BayKeepers.  I respond immediately and emotionally to calls for wilderness protection.

 

But I’m also a student of environmental thinkers like Stuart Brand, Bill McKibben, and Emma Marris, who from quite distinct perspectives all advocate a more active and nuanced engagement in environmental stewardship. I appreciate the chaos, change, interdependence, and serendipity behind the multi-layered beauty of nature, which includes us too.  The conventional preservationist strategy, trying to “save” small patches of “pristine wilderness” by putting fences around them, just isn’t always appropriate.

 

Nowhere is this clearer than in the long-running battle by the Park Service and its supporters to shut down Drakes Bay Oyster Company (DBOC) and return the estero to its “natural” state. Their vision of an estero frozen in time seems badly misguided, given that it’s surrounded by working cattle ranches, which the Park Service supports, and given that the National Seashore will continue to provide access for millions of visitors each year.

 

DBOC and its supporters point out that the original purpose of the 1970 Environmental Policy Act, under which the National Seashore was created, was “to create and maintain conditions under which man and nature can exist in productive harmony.”  They argue for the appropriateness of a working landscape in which the filterfeeding  oysters have an active role maintaining  the environmental quality of the estero.

 

When I first learned about this conflict, I expected to be on the side of the Park Service. After learning more about the facts of the situation, I’m not. Despite my emotional attraction to the idea of “protecting” this beautiful area, I believe the Park Service has become locked into an outdated and overly rigid notion of wilderness. Worse still, in pursuit of its goals the agency has become a political bully and intentional purveyor of junk science, distorting regulatory requirements and ignoring the ongoing value of the oyster farm  to both the estero and the community. DBOC, in contrast, has emerged as a core player in the Bay Area sustainable food movement, and a champion of the diversity and health of the estero.

 

The Ninth Circuit ruled against DBOC on September 3. The Lunnys will appeal, citing the split decision. In a blistering dissent, Judge Watford wrote “all indications are that Congress viewed the oyster farm as a beneficial, pre-existing use, whose continuation was fully compatible with wilderness status.”

 

The visionaries who created Point Reyes Seashore realized that humans are part of our ever-changing world, and that we have an unavoidable responsibility to be effective stewards of the ecosystems we care about. Let’s hope the appeal is successful and the vision is upheld.

 

Sandor Schoichet is a management consultant working with biopharma and sustainability clients. He lives in San Rafael.

 

09-30-13 Natl Parks Traveller: POINT REYES has a BUMPER CROP OF SEALS!

Point Reyes National Seashore has had a bumper crop of seals this year.

Seal Production At Point Reyes

While the National Park Service has in the past claimed that the operations of an oyster farm at Point Reyes National Seashore were impacting harbor seals that use Drakes Estero, recent seal production numbers from the estero seem to indicate those impacts have been very, very good.

“The 2013 harbor seal monitoring season has now ended and it was a great year for the seals. During the pupping season, we recorded approximately 1,400 pups, which is one of the highest counts for Point Reyes,” the San Francisco Bay Area National Parks Science and Learning staff noted in their Harbor Seal Monitoring Update for August. “…Drakes Estero had the highest count with 1,122 seals, followed closely by Double Point with 1,012 seals.”

Perhaps because the Park Service is in the middle of a legal battle with Drakes Bay Oyster Co. over the company’s use of Drakes Estero for farming oysters, a disclaimer to that report stresses that “(T)hese data and related graphics are not legal documents and are not intended to be used as such.”

 

Around The Parks: Wine Sales, Park Fees, Point Reyes Seals

Submitted by Kurt Repanshek on September 30, 2013 – 1:35am

 

A glance around the National Park System seems to show wine sales can benefit the parks, more and more user fees are being approved despite a five-year-old “moratorium” against them, and Point Reyes National Seashore has had a bumper crop of seals this year.

Wining in the Parks

We recently told you about the waiver National Park Service Director Jon Jarvis OKed for the National Park Foundation to work with the Adler Fells Winery to produce some national park-branded wines.

Well, whether you approve of the Park Service working with distillers to promote the parks or not, this agreement seems to be generating a nice tidy sum of money for the National Park Foundation. Through the first three months of the campaign, the Foundation has taken in about $25,000. Extrapolate that to four quarters, and you’ve got about $100,000 for the Foundation to invest back into the National Park System.

More And More Fee Increases

Some parks, however, are in such financial binds that they are seeking waivers to a five-year-old moratorium on higher user fees in the parks. Former Park Service Director Mary Bomar instituted the ban back in 2008 when the economy was really sour.

Since then, however, parks have felt the need to seek higher user fees to keep various programs running. At Great Smoky Mountains National Park there’s been a highly controversial move to require backcountry travelers to pay $4 per night, up to $20, for their treks.

More recently, Timpanogos Cave National Monument in Utah announced intentions to seek higher fees for cave tours, as is Wind Cave National Park, Pinnacles National Park in California wants to double its entrance fee, to $10, to expand its shuttle bus operations, and Voyageurs National Park in Minnesota has instituted a reservation and fee system for its backcountry campsites.

According to managers in the Park Service’s Recreation Fee Program, between 2008 and 2013 “38 parks increased expanded amenity fees and 10 parks increased entrance fees.”

Looking ahead to next year, 21 more units of the park system have gained the green light to at least discuss proposed fee increases with their stakeholders.

“Once civic engagement activities are completed the parks will forward the results and requests to the regional director,” Jane Anderson, the program’s deputy fee manager, said in an email. “If the regional director concurs those requests will be forwarded to the Washington Office for final approval by the (Park Service) Director.”

One possible justification for higher fees, she said, is that park user fees for such things as campgrounds and boat launches “undercut or compete negatively with local businesses.”

Seal Production At Point Reyes

While the National Park Service has in the past claimed that the operations of an oyster farm at Point Reyes National Seashore were impacting harbor seals that use Drakes Estero, recent seal production numbers from the estero seem to indicate those impacts have been very, very good.

“The 2013 harbor seal monitoring season has now ended and it was a great year for the seals. During the pupping season, we recorded approximately 1,400 pups, which is one of the highest counts for Point Reyes,” the San Francisco Bay Area National Parks Science and Learning staff noted in their Harbor Seal Monitoring Update for August. “…Drakes Estero had the highest count with 1,122 seals, followed closely by Double Point with 1,012 seals.”

Perhaps because the Park Service is in the middle of a legal battle with Drakes Bay Oyster Co. over the company’s use of Drakes Estero for farming oysters, a disclaimer to that report stresses that “(T)hese data and related graphics are not legal documents and are not intended to be used as such.”

09-26-13 PRL Letter to Editor EAC must…find new…Executive Director, Trainer mocks EAC goals

From my reading of the Environmental Action Committee’s mission statement, posted on their website, the conduct of Executive Director Amy Trainer toward the Lunny family and Drakes Bay Oyster Company is clearly in conflict with the goals and objectives of the organization.

 

Ms. Trainer’s take-no-prisoners approach to problem solving in this long-standing debate has made an absolute mockery of these goals. Even now that the fate of DBOC is squarely in the hands of courts, her attempt to smear the Lunnys is stark evidence of how she has allowed her role to degenerate, without apology, into a personal vendetta.

 

If this is the kind of reprehensible conduct the EAC is proud to support, then the gaping wounds that have been opened in the hearts and minds of so many people in this community and beyond will only continue to fester. If it is not, then the EAC must take quick and decisive action to find new leadership for its executive position.

 

Point Reyes Light 09-26-13

Trainer mocks EAC goals

Dear Editor,

From my reading of the Environmental Action Committee’s mission statement, posted on their website, the conduct of Executive Director Amy Trainer toward the Lunny family and Drakes Bay Oyster Company is clearly in conflict with the goals and objectives of the organization.

Here are some examples: “EAC works for… the preservation of a rural, community spirit. EAC uses law, policy, science and education to: create a common ground of understanding and promote informed debate  and encourage and facilitate productive resolutions to land-use conflicts by working closely with those who own, manage and use West Marin lands.” Ms. Trainer’s take-no-prisoners approach to problem solving in this long-standing debate has made an absolute mockery of these goals. Even now that the fate of DBOC is squarely in the hands of courts, her attempt to smear the Lunnys is stark evidence of how she has allowed her role to degenerate, without apology, into a personal vendetta.

If this is the kind of reprehensible conduct the EAC is proud to support, then the gaping wounds that have been opened in the hearts and minds of so many people in this community and beyond will only continue to fester. If it is not, then the EAC must take quick and decisive action to find new leadership for its executive position.

Having gone all-in with Ms. Trainer in its wilderness-at-any-cost campaign, the EAC does not have an enviable task before it. This will be especially difficult in a small organization in which everyone knows each other; the bonds of association and friendship can cause a board of directors to put off making such a crucial but necessary decision. Even so, the longer they wait, the worse it will get for them and the greater community they are obliged to serve.

If the EAC has any hope of reclaiming its birthright as an organization dedicated to truth, scientific integrity and personal accountability in the pursuit of the goals and objectives as proclaimed by its founders, there is only one choice they can make.  And only when they find the courage to do  so can any real healing begin.

Bruce Mitchell

Inverness

09-26-13 PRL Letter to Editor: EAC must…find new…Executive Director, Trainer mocks EAC goals

CORRECTION: THIS LETTER IS FROM THE POINT REYES LIGHT, NOT THE WEST MARIN CITIZEN

 

From my reading of the Environmental Action Committee’s mission statement, posted on their website, the conduct of Executive Director Amy Trainer toward the Lunny family and Drakes Bay Oyster Company is clearly in conflict with the goals and objectives of the organization.

 

Ms. Trainer’s take-no-prisoners approach to problem solving in this long-standing debate has made an absolute mockery of these goals. Even now that the fate of DBOC is squarely in the hands of courts, her attempt to smear the Lunnys is stark evidence of how she has allowed her role to degenerate, without apology, into a personal vendetta.

 

If this is the kind of reprehensible conduct the EAC is proud to support, then the gaping wounds that have been opened in the hearts and minds of so many people in this community and beyond will only continue to fester. If it is not, then the EAC must take quick and decisive action to find new leadership for its executive position.

Trainer mocks EAC goals

Dear Editor,

From my reading of the Environmental Action Committee’s mission statement, posted on their website, the conduct of Executive Director Amy Trainer toward the Lunny family and Drakes Bay Oyster Company is clearly in conflict with the goals and objectives of the organization.

Here are some examples: “EAC works for… the preservation of a rural, community spirit. EAC uses law, policy, science and education to: create a common ground of understanding and promote informed debate  and encourage and facilitate productive resolutions to land-use conflicts by working closely with those who own, manage and use West Marin lands.” Ms. Trainer’s take-no-prisoners approach to problem solving in this long-standing debate has made an absolute mockery of these goals. Even now that the fate of DBOC is squarely in the hands of courts, her attempt to smear the Lunnys is stark evidence of how she has allowed her role to degenerate, without apology, into a personal vendetta.

If this is the kind of reprehensible conduct the EAC is proud to support, then the gaping wounds that have been opened in the hearts and minds of so many people in this community and beyond will only continue to fester. If it is not, then the EAC must take quick and decisive action to find new leadership for its executive position.

Having gone all-in with Ms. Trainer in its wilderness-at-any-cost campaign, the EAC does not have an enviable task before it. This will be especially difficult in a small organization in which everyone knows each other; the bonds of association and friendship can cause a board of directors to put off making such a crucial but necessary decision. Even so, the longer they wait, the worse it will get for them and the greater community they are obliged to serve.

If the EAC has any hope of reclaiming its birthright as an organization dedicated to truth, scientific integrity and personal accountability in the pursuit of the goals and objectives as proclaimed by its founders, there is only one choice they can make.  And only when they find the courage to do  so can any real healing begin.

Bruce Mitchell

Inverness

09-19-13: WMC: DUPLICITY – NPS gives no warranty … as to accuracy, reliability, completeness of data”

 

What a ray of sunshine the new NPS seal-count data provides. The latest report tells us that 2013 has been a great year for seals, with one of the highest counts ever for seal pups, and more seals in Drakes Estero than anywhere else in Point Reyes. That should alleviate the fears of anyone who might have gotten the impression that seals could be in danger from Drakes Bay Oyster Company.

 

…the Park Service’s seal-count report includes a disclaimer, saying that the data and related graphics “are not legal documents and are not intended to be used as such” and “The National Park Service gives no warranty, expressed or  implied, as to the accuracy, reliability, or completeness of these data.” 

 

This disclaimer isn’t found on any previous science reports from the Park Service at Point Reyes.

 

 

 

 

Guest Column

Duplicity

 

By Sarah Rolph

 

What a ray of sunshine the new NPS seal-count data provides. The latest report tells us that 2013 has been a great year for seals, with one of the highest counts ever for seal pups, and more seals in Drakes Estero than anywhere else in Point Reyes. That should alleviate the fears of anyone who might have gotten the impression that seals could be in danger from Drakes Bay Oyster Company.

 

I was fascinated to see that the Park Service’s seal-count report includes a disclaimer, saying that the data and related graphics “are not legal documents and are not intended to be used as such” and “The National Park Service gives no warranty, expressed or  implied, as to the accuracy, reliability, or completeness of these data.”

 

This disclaimer isn’t found on any previous science reports from the Park Service at Point Reyes. I find it ironic that they would offer it now, given the clear deficiencies of many of their scientific efforts.

 

For example, the one paper the Park Service clings to as purported evidence claims that the oyster farm disturbs seals. The paper by Park Service scientist Ben Becker doesn’t even claim to find anything more than a correlation.

 

If there’s one thing most of us learn about science, it’s that correlation does not imply causation. Seems like the Park Service ought to have put a disclaimer on the Becker paper.

 

They should probably put a disclaimer on the Park Service’s Environmental Impact Statement (EIS), too, since its claims about oyster-farm disturbance to seals are based largely on Becker. The EIS downplays that, pretending it has been sources by saying “the impact analysis in the EIS places emphasis on the data review, analysis, and interpretation of scientists in NAS (2009) and MMC (2011b).”

 

NAS (2009)? Isn’t that the report by the National Academy of Sciences that found fault with the Park Service data? Indeed it is. Checking the EIS to see what data review, analysis, or interpretation they included from that NAS review, I found exactly one sentence, and it’s very misleading: “Factors influencing the behavior of harbor seals within Drakes Estero have been reviewed by NAS (2009).”

 

NAS did indeed review those factors.  Here’s what they found:

 

“NPS selectively presents harbor seal survey data in Drakes Estero and over-interprets the disturbance data which are incomplete and non-representative of the full spectrum of disturbance activities in the Estero.” And: “…research that has been conducted within Drakes Estero cannot be used either to directly demonstrate any effects of the oyster farm on harbor seals or to demonstrate the absence of potential effects.”

 

So given that the Becker paper casts no light on the situation, and that NAS (2009) simply points out the scientific errors of the NPS, on what basis could the EIS possibly have found “long-term moderate adverse impacts on harbor seals due to the continuation of commercial shellfish operations”?

 

The only other thing cited in the EIS is the MMC report. Does it contain the evidence?

 

Seven independent seal scientists conducted the scientific analysis for the MMC study. One can read their full verbatim reports in Appendix F of the report.

 

It’s eye opening to do so, none of the scientists found the Becker paper convincing. Instead they point out that the design of the Becker study is entirely inappropriate for the issues it attempts to explore, and that everything that is known about harbor seals suggests that the concerns expressed by NPS about mariculture disturbing seals in Drakes Estero are unfounded. (Somehow, the executive summary of the MMC report manages to suggest otherwise, though just barely. It also suggests the Park Service continue funding MMC studies of the issue.)

 

The scientists on both the Academy panel and the MMC panel pointed out that the best way to learn whether the oyster farm operations disturbed seals would be with time-and-date-stamped photographs.  It must have been a shock to later learn that the Park Service had been capturing exactly that data since May of 2007, but chose not to disclose it.

 

It certainly bothered Brian Kingzett. Kingzett is Deep Bay Marine Field Station Manager at the Center for Shellfish Research, Vancouver Island University, and one of the seven scientists who served on the MMC panel. Kingzett reports, “The panel even suggested to the Parks Staff while on site above the Estero how easy it would be to put wildlife cameras on the Estero to resolve some of the questions. Staff looked at us and agreed that maybe it was an option worth considering. And they had cameras up the whole time. We then spent the rest of the week discussing the lack of any good data.”

 

NPS has falsified the record to further its own agenda. The duplicity extends further:  Interior is talking out of both sides of its mouth, claiming Secretary Salazar’s decision against the oyster farm was not based on the fraudulent EIS. And NPS is using that same EIS to argue in court against the oyster farm.

 

If left unchecked, this out-of-control Federal agency will destroy the livelihoods of dozens of people and eliminate a popular, historic, successful, and benign oyster farm.

 

And it will damage the California economy. The EIS itself clearly states that eliminating the oyster farm “could result in long-term, major, adverse impacts on California’s shellfish market.”  That is a feature of the Park Service’s “preferred alternative.”

 

The scientific credibility of the Park Service at Point Reyes is in shreds. No disclaimer can save it.

 

 

 

HERE IS THE NPS DISCLAIMER FROM THEIR HARBOR SEAL MONITORING UPDATE(S) 2013 AT http://www.sfnps.org/download_product/4301/0

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09-12-13 West Marin Citizen: DBOC case may rise to Supreme Court

As reprinted in today’s West Marin Citizen:

DBOC case may rise to Supreme Court
Transcribed and edited by Peggy Day

Last Monday afternoon the Farm and Foodshed Report, the KWMR radio program, provided some straight answers to very complicated questions about the Drakes Bay Oyster Company’s federal legal case. During the show, host Robin Carpenter interviewed DBOC attorney Peter S. Prows of Briscoe, Ivester and Bazel about the decision to request another hearing at the Ninth Circuit Court. Mr. Prows, who is experienced with the California Environmental Quality Act and Endangered Species Act, among other qualifications, explained why he believes that the oyster company may prevail in federal court.

Robin Carpenter:We invited representatives of the National Park Service and Department of the Interior to speak but unfortunately, the United States Government and Department of Justice do not speak about ongoing legal actions. Peter, can you give us an overview of the situation?

Peter Prows: By a two-to-one margin, the Ninth Circuit Court of Appeals issued a decision affirming the District Court’s denial of a preliminary injunction to the oyster company. Judge Margaret McKeown, in agreement with a visiting judge from Ohio, wrote the majority opinion that the court essentially lacked jurisdiction to review the reasons given in an agency’s decision on a permit like this.

Carpenter: This is just one piece of the legal puzzle. The oyster company has asked for an injunction to stay in operation until the complete legal proceedings play out, correct?

Prows: It’s an important piece because, if the farm is forced to shut down while the lawsuit proceeds, that’s going to cause some real damage to the business, even if we’re ultimately successful. Legally it’s also important because to get a preliminary injunction, one of the things you have to show is that you are likely to prevail on the merits of the case. The majority didn’t think we were able to show that but Judge Paul Watford wrote the dissent and he was very strong. He thought we were likely to prevail on the merits of the case and former Secretary Salazar’s decision was “arbitrary and capricious.”
Carpenter: It’s not often that you see a dissent that’s so extremely strong.

Prows: It’s one of the strongest dissenting opinions I’ve ever read. What’s really remarkable is, going back to 2004, after the Lunnys spent a couple hundred thousand dollars to invest and fix up the oyster farm, they got a letter and a memo from the Park Service saying that the wilderness laws, in particular the 1976 Point Reyes Wilderness Act, mandated that the Park Service not issue a new permit to the oyster farm when the existing permit expired in November of 2012. This is a legal position that the Park Service has now taken over the last 8 to 10 years. It always struck the Lunnys as strange. They thought the Point Reyes National Seashore was set up to promote and preserve agriculture and aquaculture in West Marin, not to destroy it.

What’s remarkable about the dissent is that Judge Watford actually agrees with the Oyster company about the interpretation of the wilderness legislation for Point Reyes. He wrote: “All indications are that Congress viewed the oyster farm as a beneficial preexisting use whose continuation was fully compatible with wilderness status.” And, the most remarkable thing about this whole opinion is that the majority, the two judges who voted against the oyster farm, never actually disagreed with the dissent on the interpretation of the wilderness legislation. So, there’s really no question anymore that the Park Service has had the law wrong all along.

Carpenter: I was surprised that the majority was very vague. Watford’s interpretation agreed with what Bill Bagley and others who were there said.

Prows: That’s exactly right. Quite frankly, for 30 years before the Park Service’s memo to the Lunnys, that’s what everybody thought that legislation meant. The Department of Interior told Congress in the 1970’s that the oyster farm was a beneficial use there and should continue notwithstanding whatever wilderness legislation was passed. The Environmental Action Committee of West Marin told Congress essentially the same thing. The Wilderness Society and the Sierra Club had the same view. Everybody had the same view of what the law should accomplish and what the law meant. It wasn’t until 30 years later that the Park Service and some of these groups changed positions. Judge Watford called that a “bizarre” change of position.

We are planning to file for a rehearing. So, this case is not over.

Carpenter: What is happening, is that you guys are going a step above to the Ninth Circuit to say, we think the District Court wasn’t correct.

Prows: That’s right. There’s no longer any dispute that the Park Service has been misinterpreting the law for the last 10 years. As Watford says, “you can’t really argue otherwise with a straight face when you actually look at legislative history.” What the Park Service has put the Lunnys through for the last ten years is really a struggle against the Park Service’s misinterpretation of the law. So the question we are going to be presenting to the full en banc court is whether courts should stand aside even when they know agencies have the law wrong, even when an agency makes a decision based upon a fundamental misinterpretation of the law. Whether the courts have jurisdiction to step in or not. I think that’s a pretty important question.

Carpenter: People say, it’s very difficult to appeal with a governmental or administrative decision and Salazar’s decision is an administrative decision.

Prows: There’s what’s called the Administrative Procedures Act which requires agencies to make decisions in generally a rational way and prohibits agencies from making decisions that are quote “arbitrary, capricious, and an abuse of discretion or are otherwise not in accordance with the law.” That usually should, at least in my view, prohibit an agency from denying you a permit for a reason that’s kind of absurd or just plain wrong in the law. When an agency tells you that it can’t give you a permit because the law and congress’s intent behind that law was that you shouldn’t get your permit, there’s a fundamental misunderstanding of the law and of your decision-making authority. If you read what Secretary Salazar wrote, he makes it very clear that he was trying to effectuate what he thought congressional intent was, what he thought the law meant. He thought the oyster farm had to go and that was wrong.

Carpenter: Is there another step beyond the en banc review?

Prows: If we don’t get the injunction from the en banc panel, we could petition for a Writ of Certiorari from the U.S. Supreme Court asking it to decide to take the case for review. We have issues that could very well interest the Supreme Court.

08-25-13 Marin Voice: Up-to-date Eco Theory by Dr. J. Creque

Yet efforts now underway to restore oysters to San Francisco Bay, and estuaries around the world, offer pertinent examples of how shellfish, as ecosystem engineers, can improve water quality, add to structural diversity in the estuarine system, and play a critical role in enhancing ecosystem biodiversity, productivity, and resilience.

 

Aldo Leopold once argued that the first rule of intelligent tinkering was to save all the pieces. Saving the Drakes Bay Oyster Co. is one simple, sane step in that direction.

 

 

Marin News

 

Marin Voice: Up-to-date ecological theory

By Jeff Creque
Guest op-ed column

Posted:   08/25/2013 06:00:00 PM PDT

IN HIS July 31 Marin Voice column in favor of elimination of the Drakes Bay oyster farm, Joe Mueller nicely articulates the fundamental misunderstanding of ecosystem dynamics underlying his argument.

With all due respect for the linear dynamics assumed and espoused by Mr. Mueller (after all, most of us who received our early ecological training in the ’60s and ’70s were taught within that framework), that view of ecosystem dynamics is both outdated and, quite frankly, wrong.

Mueller evokes closed system dynamics to support his argument that carbon and nutrients are limited, and limiting, within the estero. But modern ecosystem theory recognizes entirely different dynamics in open systems, of which Drakes Estero is an archetypical example.

Indeed, open to inputs from both sky and sea, the estero, rather than being limited by a fixed quantity of energy and nutrients, has essentially an unlimited capacity for self-organized complexity, including enormous biomass production and biodiversity potential.

That same misunderstanding of ecosystem dynamics underlies the 19th-century “human-free wilderness” convictions of those opposing Drakes Bay Oyster Co.’s longstanding lease on the premise of “protecting pristine wilderness.”

Under that archaic paradigm, any human involvement with the imagined “wild” is necessarily negative.

It is impossible, within that outmoded framework, to conceive of ecosystem complexity and productivity increasing under enlightened management.

Yet efforts now underway to restore oysters to San Francisco Bay, and estuaries around the world, offer pertinent examples of how shellfish, as ecosystem engineers, can improve water quality, add to structural diversity in the estuarine system, and play a critical role in enhancing ecosystem biodiversity, productivity, and resilience.

No one is arguing against protecting the ecology of Drakes Estero. But the estero does not, contrary to Mueller’s argument, exist in isolation.

Titular designation as “wilderness” will not “protect” it from rising sea levels, acidifying ocean waters, climate destabilization or the broader global catastrophe unfolding around us.

With over seven billion (and counting) human mouths to be fed, the oyster farm, by offering a truly sustainable alternative to non-sustainable sources of marine protein, is an essential part of the solution to the over-exploitation of global resources that Mueller so properly laments.

Once upon a time, the heroics of wilderness protectionism served to bring awareness of the fundamental importance of the environment to a culture divorced from the dynamics of life on our small planet.

It drove the formation of the National Park System and helped stay the avarice and ignorance of human chauvinism.

But in the end, it is not enough. In fact, it is lousy ecology and cannot serve necessity in a time of unprecedented global change.

If Mueller and others opposing sustainable shellfish aquaculture in Drakes Estero would make the effort to understand the complex, self-organizing dynamics of this living, open system — and, indeed, of the Earth herself — we could begin to move beyond the dangerously constrained limits of the current debate toward the realization of a truly dynamic, productive and sustainable future for our community and our beleaguered planet.

Aldo Leopold once argued that the first rule of intelligent tinkering was to save all the pieces. Saving the Drakes Bay Oyster Co. is one simple, sane step in that direction.

Jeff Creque of Petaluma is a specialist in agroecology and for many years worked on a ranch at Point Reyes National Seashore.

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Updated: August 25, 2013

 

Copyright © 2013 Marin Independent Journal

08-17-13 Marin IJ, Bill Bagley, author ’65 Assembly Bill 1024 CA reserved right to fish

“…there are two leases …. the now cancelled but litigated federal dry land lease used for processing and, separately, the existing and possibly controlling [CA] State Fish and Game Commission oyster lease authorizing the actual planting and harvesting of this seafood in the waters of Drakes Estero….

 

In 1965, I authored Assembly Bill 1024 to transfer the state-owned Point Reyes tidelands to the Park Service but, pursuant to state constitutional authority, we “reserved to the state the right to fish.

 

By statute, oysters are fish.”

 

 

Letters to the Editor

 
 

 

   
 
Marin Readers’ Forum for Aug. 17

From Marin Independent Journal readers

Posted:   08/16/2013 06:12:00 PM PDT

environment

State holds lease, too

Let me try to clarify the confusion and frustration which some readers suffer when noting the contentious articles and letters regarding the National Park Service lease with the Point Reyes oyster farm.

In fact, there are two leases and a seeming conflict between them. There is the now cancelled but litigated federal dry land lease used for processing and, separately, the existing and possibly controlling state Fish and Game Commission oyster lease authorizing the actual planting and harvesting of this seafood in the waters of Drakes Estero.

In 1965, I authored Assembly Bill 1024 to transfer the state-owned Point Reyes tidelands to the Park Service but, pursuant to state constitutional authority, we “reserved to the state the right to fish.”

By statute, oysters are fish.

Since 1965 the Park Service recognized that right as it was continuously exercised by the Fish and Game Commission for these almost 50 years. After appearing at a commission meeting, this authoritative letter was written, dated July 11, 2012, to then-Interior Secretary Kenneth Salazar.

Letter states: “Let it be known that: The Commission, in the proper exercise of its jurisdiction, supports and continues to support the agricultural business of aquaculture, and to that end, has clearly authorized the shellfish cultivation in Drakes Estero through at least 2029 through the lease granted Drakes Bay Oyster Company.”

The state continues to receive its set fee from the Lunny family for this authorized and state-controlled oyster propagation.

There are five lawyers from separate law firms now providing various pro bono legal services to obtain court clarification and thus to help this small local oyster company continue to produce a pure, natural and sustainable food product for all to enjoy.

About that, there is no confusion.

William T. Bagley, San Rafael

 

08-18-13 AMY TRAINER / EAC linked to ATTEMPT TO SMEAR DBOC WITH FALSE STORY

Last Tuesday, a seven-paragraph “article” was published by a New York internet-based group called Food World News (see below), declaring that the CA State Health Department ordered a recall of  DBOC oysters

 

After it appeared on the internet (and to find out what was going on), Kevin Lunny was immediately contacted and so was Sarah Rolph, and he immediately contacted Ginny Cummings, the oyster farm manager, who in turn, then immediately contacted the State Health Department. 

 

All were stunnedThere was no recallThere was no shut-downNo one got ill.  Health Department officials knew nothing about it. No warning against was issuedDBOC does not sell oysters to the Wegmans chain (on East Coast).

 The Reporter at Food World News claimed the story was triggered by a “Google Alert” which no one at DBOC received and so far, notwithstanding daily requests, the editor and reporter at Food World News have refused to provide.

 

Within a short time, EAC Executive Director, Amy Trainer, “tweeted” (under the name “ProtectPtReyes” that DBOC oysters “ma(k)ing us sick.”  After a demand from DBOC representatives, Trainer’s reckless statement was taken down.

 

There is no nice way to say or explain this:  Whatever the explanation, THIS WAS A SMEAR.  This was an attempt to undermine DBOC’s ability to conduct business.  This was an effort to drag the Lunny name through the gutter.  To declare it “disgusting” is a polite description

 

The highly respected Food Safety News (not to be confused with Food World News), as soon as they learned of the bogus story, conducted their own review and this am, published an editorial on-line repudiating the Food World News report. 

 

Below – the Food Safety News Editorial, the Food World News (False) Story and the Amy Trainer Tweet.

 

 

 

 

From the Food Safety News Editorial.

The Food World News story was entirely false.

The California Department of Public Health did not issue a warning, there was no recall of Drakes Bay oysters, nobody was sickened by Drakes Bay oysters, and Drakes Bay has never sold an oyster directly or through any broker to Wegman’s.  

Any company wrongly named in such a story can be expected to push back, but Drakes Bay is involved in a life and death struggle with the U.S. Department of Interior and California Coastal Commission, which is apparently in cahoots with some of the largest environmental groups who want it shut down. Former Interior Secretary Ken Salazar, who has an anger management problem,  refused to renew its lease just before he resigned.

However, many conservationists and environmentalists from the region, including those who originally called for protection of the estuary, see a place for the oyster business and support another long-term lease for Drakes Bay.

 

Food Safety News

http://www.foodsafetynews.com/2013/08/letter-from-the-editor-14/#.UhBuZeCABSU

Letter From The Editor: False Story Was NOT Ours!

By Dan Flynn | August 18, 2013

Opinion

Food Safety News is often named as a trusted source by other media, which adds to our credibility as a valued asset. Anything that devalues our credibility concerns us greatly. We experienced one of those devaluing events this week.

Two Food Safety News stories which were published almost one year apart — and had nothing to do with one another except that both dealt with oysters — were mangled together with others by a news website previously unknown to us called “Food World News.”

In their story, written by a newly minted reporter, the New York-based news site reported on Aug. 13, 2013  that: “The state Department of Public Health issued a warning against the largest oyster producer in California on Friday, after three people’s illnesses was linked back to oysters, according to Food Safety News.

It went on to say the oysters were from the Drakes Bay Oyster Company and included information from both the Huffington Post and the Oakland Tribune, before again citing Food Safety News for reporting the Drakes Bay oysters were sold in Wegmans stores between July 13 and Aug. 5, 2013.

The Food World News story was entirely false.

The California Department of Public Health did not issue a warning, there was no recall of Drakes Bay oysters, nobody was sickened by Drakes Bay oysters, and Drakes Bay has never sold an oyster directly or through any broker to Wegman’s.  “Oyster Recall: Drakes Bay Oyster Linked to Bacteria Illnesses; Shellfish Sold from Wegmans,” by Food World News was entirely taken down by the website after folks working for Drakes Bay filed their objections.

Any company wrongly named in such a story can be expected to push back, but Drakes Bay is involved in a life and death struggle with the U.S. Department of Interior and California Coastal Commission, which is apparently in cahoots with some of the largest environmental groups who want it shut down. Former Interior Secretary Ken Salazar, who has an anger management problem,  refused to renew its lease just before he resigned.

However, many conservationists and environmentalists from the region, including those who originally called for protection of the estuary, see a place for the oyster business and support another long-term lease for Drakes Bay. The struggle has gone on for a long time and with the government side, especially the National Park Service, being charged by Drakes Bay with running what amounts to  disinformation campaign. They have not said this is part of that, but Drakes Bay is trying to get to the bottom of this one.

When you drop a false story into this sort of mix and it is immediately tweeted by the opposition, you can at least understand why the Drakes Bay folks might be a little paranoid. Big forces really are out to get them.

Still, in trying to piece this together on my own, I’ve come to the conclusion that the most likely explanation for what happened was a few missteps by the newbie reporter.

First, last Saturday (Aug 10), Food Safety News did report on the recall of Cape Neddick/Blue Point oysters by the Connecticut Department of Agriculture for possible Vibrio contamination. The oysters were sold at Wegmans stores, between July 13 and Aug 5, 2013.

Second, the trigger for doing their story, according to what little the Drakes Bay people have been able to get out of Food World News, was a Google alert. Nobody else has seen it, but it’s possible.  Every once in a while, old stories show up as new on Google alerts, usually due to some change, even very minor ones. As a result, we always check dates and time stamps, but it’s possible to be fooled.

And, third, there was a warning about a few lots of Drakes Bay oysters sent out by the CDPH last year at the very time in question (Aug. 13, 2012). If one those reports was recycled on its anniversary date, and an inexperienced reporter then went looking for what else was available on the same subject, a mess of a story could be the result.

And a mess it was. Just not ours.

© Food Safety News

 

 

THE FALSE STORY

 

Aug 13, 2013 Last Updated: 15:37 PM EDT

Oyster Recall: Drakes Bay Oyster Linked to Bacteria Illness; Shellfish Sold From Wegmans

Aug 13, 2013 03:12 PM EDT | By Dina Exil

The state Department of Public Health issued a warning against the largest oyster producer in California. (Photo : Flickr / ganesha.isis)

The state Department of Public Health issued a warning against the largest oyster producer in California on Friday, after three people’s illness was linked back to oysters, according to Food Safety News. 

The oysters are from Drakes Bay Oyster Company, which has shut down all operations after being notified by the Health Department that its oysters may be contaminated with Vibrio parahaemolyticus, a naturally occurring bacterium that can cause serious illness, the company’s manager Ginny Cummings told the Oakland Tribune.

After eating in separate San Francisco restaurants last month, three people reportedly began feeling ill and one reportedly had to be hospitalized. When consumed raw, the oysters pose a health threat, particularly to individuals with compromised immune systems.

The Centers for Disease Control and Prevention reports more than 4,000 cases of Vibrio parahaemolyticus infection occur in the United States every year. Symptoms of infection include watery diarrhea, often with abdominal cramping, nausea, vomiting, fever and chills. Usually these symptoms occur within 24 hours of ingestion. Illness is usually self-limited and lasts three days. 

According to the Huffington Post, medical officials have not reported any other illness. Oysters supply almost 40 percent of California’s shellfish. 

“As a family business, we’re doing the best we can do under the circumstances, which is a waiting game at this point,” Cummings said, according to the Tribune. “We’re working hand-in-hand with the health department on this. Our biggest concern is that people are healthy.”

According to Food Safety News, the recalled oysters were sold in Wegmans seafood departments between July 13, 2013 and August 5, 2013. They may also have been sold in Wegmans restaurants, Food Bars and Pubs. 

A complete list of the recalled products and photos of the shellfish tags and labeling is on the department of public health website

 

THE AMY TRAINER, ENVIRONMENTAL ACTION COMMITTEE, “DRAKESBAYOYSTER MA(K)ING US SICK” & CaPublicHealth “SHUTS DBOC DOWN” TWEET

 

Amy, On Tuesday August 13, 2013, on twitter saying CDPH has shut DBOC down:

 

“Oysters from @drakesbayoyster ma(k)ing us sick @CaPublicHealth shuts DBOC down”. 

 

Trainer “Tweets” under the handle “ProtectPTReyes”.

 

 

 

08-07-13 DBOC Files to have court affirm decision denying intervention by EAC

DBOC vs EAC filing 08-07-13

Some excerpts from the introduction in the filing:

“Environmental Action Committee of West Marin et al. (the “Proposed Intervenors”) cannot meet the applicable standard for intervention….”

“They cannot make a “very compelling showing” that their interests are not adequately represented by the Federal Defendants, because for the past forty years they have marched in lock step with the Federal Defendants. In the 1970s both took the position that the oyster farm should continue in operation despite the passage of the Wilderness Act. Recently they both changed positions together, and today both insist that the oyster farm must go.”

 

“The Proposed Intervenors now say that DBOC’s commercial operations during the wind-down period are prohibited by the 1964 Wilderness Act, 16 U.S.C. §§ 1131-1136. But the Proposed Intervenors said exactly the opposite in the district court when DBOC argued that its commercial activities prevented Drakes Estero from being converted from “potential wilderness” to “designated wilderness.” In the briefing on that issue, the Proposed Intervenors stood shoulder to shoulder with the Federal Defendants: both asserted that DBOC’s continuing operations are not “commercial” operations prohibited by the 1964 Wilderness Act.”

“The Federal Defendants and Proposed Intervenors have coordinated their briefing in opposition to DBOC. In briefs filed the same day, the Federal Defendants cited to declarations filed by the Proposed Intervenors, and the Proposed Intervenors cited to declarations filed by the Federal Defendants.”

“The Proposed Intervenors are now even more closely linked to the Federal Defendants, because defendant Secretary of the Interior Jewell was, until she became Secretary, a member of the Board of Trustees of one of the Proposed Intervenors.”

“The requirement that proposed intervenors make a “very compelling showing” was plainly designed for situations exactly like this, in which private organizations want to cheer on a federal agency that has been sued over an administrative decision those organizations support. Here, the Proposed Intervenors undoubtedly want to cheer the Federal Defendants on, but they are unable to make a showing, much less a “very compelling showing,” that they have significantly different interests.”

“If the Proposed Intervenors do not need to make a “very compelling showing,” what standard applies? According to the Proposed Intervenors, this Court should evaluate their compliance with three sub-factors, of which the first is the likelihood that a proposed intervenor will make arguments not made by the parties. But the Proposed Intervenors fail to meet that standard as well because they have not identified a single argument that they would make in the litigation that the Federal Defendants will not make.”
“If there is any difference between the Proposed Intervenors and the Federal Defendants, it is a mere difference in litigation tactics, and that is certainly not a “very compelling showing” that the Federal Defendants do not adequately represent the interests of the Proposed Intervenors.”
“The trial court’s decision denying intervention should be affirmed.”

1976 Senate Hearings on the Point Reyes Wilderness legislation 1975 & 1976

PRNS wilderness hearings senate 1976

Above, is the link to the Senate Hearings on the Point Reyes Wilderness Legislation in 1975 and 1976.

In it you will find letters of support for continuation of the oyster farm from the following:

page 356

  •  Jerry Friedman

    • Representative of :

      • ENVIRONMENTAL ACTION COMMITTEE OF WEST MARIN

      • Marin Conservation League

      • Tomales Bay Association

      • Inverness Association

      • League of Women Voters

      • Bay Area Organizations:

        • Environmental Forum, Marin & Sonoma branches

        • Assemblyman Michael Wornum

    • Chairman of the Marin County Planning Commission

    • Representative of Congressman John Burton on all matters relevant to the House counterpart of S. 2472 H.R. 8003

    • Resident of West Marin

(continued at the top of page 357:)

” These organizations not only support S. 2472, but they wholeheartedly endorse the wilderness recommendations of the GGNRA Citizens Advisory Commission….”

“3. All the organizations have deep and serious concerns over the lack of protection presently afforded to the tidal zone at Point Reyes. Such areas as Drake’s and Limantour Estero along with the seal rookery at Double Point deserve wilderness status. The State’s interests in these areas has been minimal with the exception of Limantour Estero which is a Research Natural Area, and we note little activity by the State in the area of patrol or marine resource monitoring during the past years. We accordingly hope that the tidal zone will be managed as wilderness area and we find this approach consistent with the State’s reservation of fishing and mineral rights. We wish to note the following points in this regard:

A.  S.  2472 would allow the continued use and operation of Johnson’s Oyster Company in Drake’s Estero.”

E.  We note nothing in the law which precludes the Congress from designating the tidal zone as wilderness despite the reservation of fishing and mineral rights….”

Page 358:

“….It is rare that so many organizations have agreed upon wilderness legislation for a given area. It is also unusual that such wilderness status DOES NOT IN ANY WAY INTERFERE WITH THE MANNER IN WHICH THE PUBLIC PRESENTLY USES THAT PARK….”

This is followed in the record on page 358 – 361 by the following:

 

 

“STATEMENT OF JOHN MITCHELL, SUBCOMMITTEE ON WILDERNESS, [GGNRA] CITIZENS ADVISORY COMMISSION….

 

Statement of Frank C. Boerger,

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

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

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

DESCRIPTION OF THE RECOMMENDED WILDERNESS AREA

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

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

NONCONFORMING USES

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

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

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

NOTE:

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

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

08-07-13 Marinscope Drakes Requests Reconsideration of Misrepresentations by CCC

“Drakes Bay Oyster Company filed a motion last week in Marin County Superior Court requesting alleged misrepresentations made by the California Coastal Commission are reconsidered before the court makes its final ruling.

‘Those allegations have been repeatedly proven false by the nation’s top scientists, and many are refuted by the Commission’s own reports,” Lunny said. “We respectfully request that the court consider all of the evidence before making its final decision.’”

 

Drakes requests reconsideration

Posted: Wednesday, August 7, 2013 5:33 pm

By Marinscope staff | 0 comments

Drakes Bay Oyster Company filed a motion last week in Marin County Superior Court requesting alleged misrepresentations made by the California Coastal Commission are reconsidered before the court makes its final ruling.

The motion aims to correct four false assertions about the environmental harm of the oyster farm made by the CCC in February 2013. The motion claims the CCC has presented no data to back up its assertions.

 “These misrepresentations by the Coastal Commission are the same false charges that have been leveled for years by the Park Service,” Drakes owner Kevin Lunny said.

First, the motion refutes a claim that Drakes has exceeded the shellfish-production limits of a consent order issued in 2007.

Second, it refutes a claim that Drakes’ boats operate too close to neighboring harbor seals.

Third, the motion refutes a claim that the oyster farm is “throwing garbage” into the Estero, clarifying that the plastic materials that wash up on shore are from the open ocean and a previous owner. Lastly, it challenges the assertion made by the CCC that Drakes is damaging the ecology of Drakes Estero.

“Those allegations have been repeatedly proven false by the nation’s top scientists, and many are refuted by the Commission’s own reports,” Lunny said. “We respectfully request that the court consider all of the evidence before making its final decision.”

11-06-75 Document shows EAC founder Jerry Friedman Supported Oyster Farm

EAC on wilderness

(Above is the link to the pages referred to below)

This quote is taken from the letter submitted to “Senator J. Bennett Johnston, Chairman of the Senate Parks and Recreation Subcommittee”

made a part of the record for “Hearings on Point Reyes Wilderness Legislation, Before the Subcommittee on Parks and Recreation of the Committee on Interior and Insular Affairs, United States Senate, Ninety-Fourth Congress, 2d Session”

letter addressed to Hon. J. Bennett Johnston, Chairman, Parks and Recreation Subcommittee, Washington, D.C.

found on page 356, in his opening paragraph (emphasis added for clarity):

Mr. Chariman: My name is Jerry Friedman. I am a resident of West Marin and am

  • serving my second term as Chairman of the Marin County Planning Commission
  • During the past four months I have been representing Congressman John Burton on all matters relevant to the House counterpart of S. 2472 H.R. 8003.
  • Today I am here representing the following:
    • Marin Conservation League
    • Tomales Bay Association
    • Inverness Association
    • ENVIRONMENTAL ACTION COMMITTEE OF WEST MARIN
    • League of Women Voters
    • Bay Area:
      • Environmental Forum, Marin & Sonoma branches
      • Assemblyman Michael Wornum

(continued at the top of page 357:)

” These organizations not only support S. 2472, but they wholeheartedly endorse the wilderness recommendations of the GGNRA Citizens Advisory Commission….”

“3. All the organizations have deep and serious concerns over the lack of protection presently afforded to the tidal zone at Point Reyes. Such areas as Drake’s and Limantour Estero along with the seal rookery at Double Point deserve wilderness status. The State’s interests in these areas has been minimal with the exception of Limantour Estero which is a Research Natural Area, and we note little activity by the State in the area of patrol or marine resource monitoring during the past years. We accordingly hope that the tidal zone will be managed as wilderness area and we find this approach consistent with the State’s reservation of fishing and mineral rights. We wish to note the following points in this regard:

A.  S.  2472 would allow the continued use and operation of Johnson’s Oyster Company in Drake’s Estero.”

E.  We note nothing in the law which precludes the Congress from designating the tidal zone as wilderness despite the reservation of fishing and mineral rights….”

Page 358:

“….It is rare that so many organizations have agreed upon wilderness legislation for a given area. It is also unusual that such wilderness status DOES NOT IN ANY WAY INTERFERE WITH THE MANNER IN WHICH THE PUBLIC PRESENTLY USES THAT PARK….”

This is followed in the record on page 358 – 361 by the following:

“STATEMENT OF JOHN MITCHELL, SUBCOMMITTEE ON WILDERNESS, [GGNRA] CITIZENS ADVISORY COMMISSION….a fifteen-person Commission appointed in January 1975 by the Secretary of the Interior in accordance with the law establishing the Recreation Area….”

“….The balancing of the various interests represented by our recommendations was derived from a series of public hearings and subcommittee task force meetings. The compromises presented have won acceptance from representatives of each sector of the public that expressed concern. It is therefore hoped that the entire recommendation can be included in the legislation and the Committee report, so that the special provisions necessary at Point Reyes are firmly established. In that way, future administrative decisions can be assured of being in consonance with the principles and the details recommended.

07-25-13 Point Reyes Light, Why I am Resigning from EAC & Sierra Club by Wigert

Why I Am Resigning from EAC and the Sierra Club

By Bill Wigert

I have been a member of the Sierra Club since 1970. As an attorney, I represented the organization pro bono in two environmental lawsuits. I joined the Environmental Action Committee of West Marin soon after it was formed. As an ardent environmentalist, I venerated both groups: their policies were fact and science-based, and the EAC achieved a unique cooperation between agricultural and environmental communities. Sadly, both organizations have strayed from their principles, and I am not going to renew my membership to either.

The Sierra Club and EAC have knowingly sided with flawed science in the debate over the future of Drakes Bay Oyster Company. Both have misrepresented applicable legal principles; worse yet, they have resorted to “the means justifies the ends” tactics. As just one example, both repeatedly make the false legal assertion that the Point Reyes Wilderness Act specifies that in 2012 the oyster farm must be shut down and Drakes Estero declared a wilderness. It says no such thing. In an op-ed published in this newspaper, co-authored by Corey Goodman and Mark Dowie, I explained why. My analysis is still valid today, yet the Sierra Club and EAC have pumped out thousands upon thousands of communications misrepresenting this fact.

The drafters of the Wilderness Act correctly decided that Drakes Estero could not be designated a wilderness. The reasons for this determination are still applicable today. To be sure, Drakes Estero was and is a magnificent treasure, but it wasn’t wilderness then and it isn’t wilderness today. A two-lane black-top road will continue to transport millions of cars, motorcycles, RV’s, trucks and people around the fringes of much of the estero. Wilderness?  You have to be kidding.

The EAC was created to represent the interests of West Marin. With the vast majority of those living here supporting the continued operation of the oyster farm, the group has aborted its purpose. Furthermore, it has adopted tactics meant to vilify and punish one of our most respected families, whose members have in so many ways demonstrated for generations their good stewardship of the water and land. This is a family that cares deeply about West Marin.

The cost of this campaign to shutter the oyster farm, which in so many ways blends in perfectly with its surroundings, could be enormous. We may lose a valuable source of sustainable agriculture on which our community prides itself. We may lose a large part of our heritage. So long as EAC continues with its present leadership, it will not represent our interests. There are other environmental organizations in our community that could better serve our interests. I hope one of them will step forward.

 

 

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