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.

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.

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

“DRAKES BAY OYSTER WAS VINDICATED TODAY

in its fight against unjust enforcement orders imposed last year

BY THE CALIFORNIA COASTAL COMMISSION.

The Marin County Superior Court 

OVERTURNED THOSE ORDERS IN EVERY SIGNIFICANT EFFECT,

finding that the

COMMISSION’S

UNFAIR PROCESS

WAS AN

ABUSE OF DISCRETION

AND A

VIOLATION OF ENVIRONMENTAL LAW.”

 

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

 

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

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

 

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

 

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

 

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

 

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

 

About Drakes Bay Oyster Company

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

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

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

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

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

04-15-14

Marin Superior Court, Judge Chernus,

issued his temporary ruling today stating the

California Coastal Commission violated environmental law

by not conducting an environmental review, and

abused its discretion by excluding Drakes Bay Oyster Farm evidence.

 

Racks and buildings need not be removed.

Didemnum measures struck down.

Existing Manila clams can stay.

 

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

tentative 15 apr 2014

This is a tentative ruling.

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

 

04-14-14 Videos originally aired on Marin TV RE: DBOC, by Peggy Day of “Seriously Now”

Peggy Day, Producer of Seriously Now on Marin TV has posted to Vimeo 8 programs on aired on the DBOC story.

Please click on or copy and paste into your web browser the link below to watch them. You will need to scroll down the page and / or click next to view all the videos posted to the YouTube channel.

http://vimeo.com/channels/723685

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

02-06-13 Drakes Bay Oyster Company Appeals Judge’s Decision

Drakes Bay Oyster Company Appeals Judge’s Decision to Deny Injunction

Posted by  in HighlightsPressPress Releases & Statements on February 6, 2013 4:18 pm / no comments

FOR IMMEDIATE RELEASE                                                                                                      

FEBRUARY 6, 2013

DRAKES BAY OYSTER COMPANY APPEALS JUDGE’S DECISION TO DENY INJUNCTION

The Lunny Family Continues the Fight to Keep the Farm in Business

 

SAN FRANCISCO – Cause of Action (CoA), a government accountability organization, Briscoe Ivester & Bazel LLP, and SSL Law today appealed Judge Gonzalez Rogers’s decision to deny an injunction for Drakes Bay Oyster Company, which would have allowed the company to remain open for the duration of the trial, Drakes Bay Oyster Company v. Salazar, et al.  Without an injunction, the family farm will be required to cease all operations, destroy millions of un-harvested oysters, and force several families living on the farm to move elsewhere by February 28.

“We are committed to fighting against government abuse and overreach to keep the Lunny family in business,” said Amber Abbasi, Chief Counsel for Regulatory Affairs at Cause of Action, “and are taking all the necessary legal steps to appeal this ruling.”

Kevin Lunny, owner of Drakes Bay Oyster Company offered this brief statement on behalf of the farm:

“We continue to be grateful for the outpouring of support from our community.  We have had time to weigh our options carefully, and have decided to appeal the judge’s decision.”

Cause of Action and Briscoe Ivester & Bazel LLP, and SSL Law represent Drakes Bay Oyster Company.

 

The judge’s decision can be found here.

 Our Appeal and Exhibits can be found here.

About Cause of Action:

Cause of Action is a nonprofit, nonpartisan organization that uses investigative, legal, and communications tools to educate the public on how government accountability and transparency protects taxpayer interests and economic opportunity. For more information, visit www.causeofaction.org.

01-23-13 Dispelling the Myths about the DBOC Conflict with the NPS

Posted by Communications Staff in Blog on January 23, 2013 12:30 pm / no comments

The decision last November by Interior Secretary Ken Salazar not to renew The Drakes Bay Oyster Company’s lease was based on a number of inaccurate and misleading claims. Here are five myths that the Secretary, his supporters, and the National Park Service use to justify the oyster farm’s eviction from Drakes Estero:

 

Myth #1:

The Secretary’s decision was based on sound science.

National Park Service researchers claimed that oyster farming operations in Drakes Estero damaged eelgrass beds and upset seal breeding patterns.  Yet other NPS reports contradicted these claims, and the National Academy of Sciences stated that the Park Service had “exaggerated the negative and overlooked the potentially beneficial aspects of the oyster culture operation.” Marine biologist Corey Goodman, who independently studied the farm’s impact on the region’s ecology, called the Park Service research “a stunning misuse of science by our federal government.”  Secretary Salazar ultimately decided that the Park Service’s inaccurate Environmental Impact Study was “not material” to his final decision, ignoring federal law that requires such a study be taken into account.

Myth #2:

Renewing the lease would set a precedent.

Some people were concerned that allowing the oyster company to remain in Drakes Estero would create a model of privatization that other leaseholders in national parks could follow.  However, the 2009 law granting Salazar the right to extend the lease another ten years expressly states that the provision would not be viewed as precedent.  In fact, Salazar’s removal of the oyster company is likely to set a standard in the opposite direction, with more working farms and orchards expelled from national park lands.

Myth #3:

Removing the oyster farm would improve the region’s environmental health.

When owner Kevin Lunny first bought The Drakes Bay Oyster Company in 2004, he took out a $300,000 loan to clean and restore the farm.  Because his family’s livelihood depended on the productivity of Drakes Estero, he was careful to keep the waters clean and productive by clearing the bay of debris and trash left by hikers and kayakers.  The oysters themselves actually improved the bay’s water quality byfiltering out algae that inhibits eelgrass growth.

Myth #4:

The disagreement is between environmentalists and the agriculture industry.

As a committed environmentalist, Kevin Lunny turned The Drakes Bay Oyster Company into a model of sustainable agriculture.  “It’s extremely healthy for the environment,” Mr. Lunny said. “There are no feeds, no fertilizers, no chemicals.”  Biologist Corey Goodman called Mr. Lunny “one of the pioneers for organic and sustainable agriculture that also protects the environment.” Advocates for the consumption of locally-produced food to reduce its environmental footprint have long supported the oyster farm, which sells nearly all its product to tourists and local restaurants. With Drakes Bay accounting for 40 percent of the state’s oyster production, California restaurants will have to fly oysters in from the Pacific Northwest or East Coast, increasing greenhouse gases and other harmful emissions.

Myth #5:

The Drakes Bay fight is only about politics: It’s Democrats versus Republicans

Some contend that the fight over Drakes Bay is politically split along ideological fault lines. This too is untrue. First, there has been an outpouring of support from a community where most bi-partisan races were easily won in 75/25 percent split (Democrats/Republicans). Further, Democratic Senator Dianne Feinstein has been a staunch defender of Drakes Bay Oyster Company, as well as a fierce critic of the National Park Service and Department of the Interior. In addition to crafting legislation, Feinstein has been outspoken in her support, even writing a letter to Secretary Salazar last March that called on him to renew the lease. With demonstrated partisan support, this issue isn’t split along party lines.

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