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

     

     

07-10-2014 PRL there’s still a chance thru Congress, YOU MUST ACT NOW!

“…speak your mind to park officials and elected representatives.”

CONGRESS IS THE LANDLORD. IT COULD ISSUE A NEW PERMIT TOMORROW BUT ONLY IF WE, THE PEOPLE, PUSH HARD FOR IT.

 TIME HAS COME FOR YOU TO SPEAK TO YOUR CONGRESSMEN AND CONGRESSWOMEN.

 

Keep on shucking

07/10/2014

Our family almost didn’t buy the oyster farm. Like all the ranches on Point Reyes, the farm can’t succeed without the seashore’s support, so we called then-Superintendent Don Neubacher before buying it to ask him what he thought. He said it would be a “bad idea” to buy the farm. The problem wasn’t that Drakes Estero was a “potential wilderness” area; wilderness status, he had told Charlie Johnson’s lawyer, was “more symbolic than anything else.” The problem was that the farm was falling apart, and the National Park Service wouldn’t support an operation that was in shambles. After the call, we agreed to walk away.

But Don called us back the next day. “I’d feel like I’d died and gone to heaven if you bought the oyster farm,” he said. He understood that our family had a great relationship with the park, that we were good stewards of our ranch and that we would take care of Drakes Estero. The park service had long supported the continuation of agriculture in the seashore, and had routinely renewed ranchers’ leases. We thought that if we fixed up the farm, as Don wanted, that the park would renew that lease, too—and that an important part of the agricultural fabric of our community would be saved.

After the call, our family decided to go ahead with the purchase. We took over operations on January 1, 2005, and quickly invested close to a million dollars in borrowed money for cleanup and upgrades. We truly believed the park would be relieved.

Instead, things went downhill. A few months later, the park sent us a letter from their lawyers concluding that the wilderness laws prohibited the renewal of the lease. (The people who drafted the legislation, like Congressman John Burton and the Environmental Action Committee’s founder, Jerry Friedman, thought Congress always intended the farm to stay.) We quickly became the target of an ugly attempt by the park to paint our family as “environmental felons.” (In fact, the environment in Drakes Estero is thriving.) Then-Secretary Ken Salazar, in denying our renewal, relied on much of the same wrong reasons.

If the park service can rewrite history and make false accusations of environmental harm against our family and the oyster farm, it can do it to any of the ranching families. So we sued. The federal district court and two judges on the Ninth Circuit held that the courts don’t have jurisdiction over our main claims. The only judge to review our claims on the merits—Judge Paul Watford—agreed with us that the decision was an abuse of discretion.

Now that the U.S. Supreme Court has declined to review our case, we are out of legal options to keep the farm open while we continue litigation. The oyster shack and cannery will close at the end of this month. We look forward to seeing and greeting our cherished friends and supporters in the coming days.

The park’s decision to close us down will hurt our employees. Many of them have grown up and put their children through school here, and have specialized skills that will be tough to put to use elsewhere in West Marin. We are grateful that California Rural Legal Assistance and Marin Legal Aid will be meeting with our employees and their families to try to find ways to help.

The decision will also hurt our community. The park service says it supports the ranchers and that the oyster farm issue is unrelated. We’re skeptical. If the park truly supports agriculture in West Marin, it would have honored Congress’s intent and renewed our farm’s permit. It would not have put a bull’s eye on the ranchers’ backs by identifying them in the farm’s recent environmental impact statement as the primary source of nonpoint-source pollution in an oyster-free Drakes Estero. It would be removing elk from the pastoral zone and issuing long-term leases today. And it would be thinking creatively about reusing the oyster shack as a place to sell the ranchers’ wares, rather than gearing up to send in the bulldozers. The park’s actions, and inactions, speak louder than words.

Our family will get through this. And there’s still a chance for us to get a new permit, either through the courts or Congress. (Though we don’t think civil disobedience is a good idea here, those of you still looking for ways to help should speak your mind to park officials and elected representatives.)

We owe so many people our deep and abiding gratitude; to name them all would overflow the pages of this newspaper. Thank you Senator Feinstein and Supervisor Kinsey, who have each proven willing to fight for their constituents and for sustainable agriculture in West Marin. Thank you Corey Goodman, who spent thousands of hours debunking the false claims of environmental harm and standing up for scientific integrity in government. Thank you Phyllis Faber, the Alliance for Local Sustainable Agriculture, Laura Watt, Jeff Creque, Dave Weiman, Sarah Rolph, Barbara Garfien, Judy Teichman, Bill Bagley, Michael Greenberg and Donna Yamagata, Jane Gyorgy and our lawyers. Thanks to the Light and the Citizen, which have covered this issue courageously over the years. And thanks to the countless volunteers who contributed their time and talent to make those wonderful “Save Our Drakes Bay Oyster Farm” signs, which we hope will stay up as a reminder that 85 percent of this community has supported us in this fight. Keep on shucking and believing.

03-31-2014 Calif Coastal Commission says Lunnys have NO RIGHT TO DUE PROCESS

From http://www.SaveDrakesBay.com

Author: Sarah Rolph

 

“…. In a pattern very similar to the false narrative being conducted against the Lunny family by the Park Service, the Coastal Commission has made a cascading, confusing series of claims that play fast and loose with the facts. All indications are that these two agencies are working together against the oyster farm.  They use the same false claims, and neither will acknowledge the expert declarations that counter their anti-oyster farm assertions.

The Commission continues to claim in public that the oyster farm’s operations disturb seals.  If you read the fine print you’ll learn that the actual language is that oyster farm operations have “the potential to disturb harbor seals.” This is the same formulation used by the Park Service in its discredited Final Environmental Impact Statement (FEIS).

The much-vaunted “potential to disturb” seals is a shadow of the Park Service’s original claim that oyster operations were actually harming the seals, a notion that should have been dispelled once and for all by the recent seal-count data compiled by the Park Service showing that the harbor seal population in Drakes Estero is healthier than ever.

In a study commissioned by the Marine Mammal Commission in November 2011, marine mammal experts made it clear that there is no reason to be concerned about the seals in Drakes Estero.

Nevertheless the Park Service worked to keep the seal story alive, first by planting secret cameras that they hoped would catch oyster boats disturbing seals, then when those photos didn’t turn up any such evidence, by commissioning a report from the USGS that they apparently hoped would find evidence where there was none, and then finally in desperation changing the USGS report’s findings from “no evidence of disturbance” to evidence of “adverse impacts.” That falsification is the only support in the FEIS for the untrue charge that the oyster farm disturbs seals.

Falsifying a scientific report is of course scientific misconduct, and a formal complaint about this has been filed by Dr. Corey Goodman, as described in this press release and as reported here. It will not be surprising to those who have been following this story that Dr. Goodman’s scientific misconduct complaint is being stonewalled.

The Commission also continues to claim in public that the oyster farm operates its boats too close to seals, in violation of protocols imposed by other agencies.  But as Tom Moore  (a retired official the California Department of Fish and Wildlife who helped draft those protocols) wrote in a strongly worded letter to the Commission, Drakes Bay “has not violated” those protocols.  Even though the oyster farm is not in violation, it reached an agreement with the Commission in early 2012 that completely resolved the issue.  The Commission should not continue making accusations about an issue that’s long been resolved.

The Commission continues to claim in public that the oyster farm pollutes Drakes Estero with plastic.  Not true.  The farm operates under a “zero loss” policy.  It cleans up other people’s debris; it doesn’t discharge any of its own.

The Commission continues to claim in public that the Lunnys are violating the law because they do not have a permit.  But the Commission refuses to process the permit application that has been on file with the Commission since 2006.

The Commission continues to claim in public that it has fined Drakes Bay Oyster Company for improper placement of clams (the oyster farm grows a small number of clams in addition to oysters).  Yet so preposterous was that fine—the misplacement was the result of the Commission misreading the farm’s lease from Fish and Wildlife—that the Commission has quietly amended its complaint to withdraw it.

Neither the Park Service nor the Coastal Commission has any evidence of any of these claims against the oyster farm. When Drakes Bay Oyster Farm presented evidence disproving these claims, the Coastal Commission voted to exclude that evidence.

Now the Commission is arguing that it had the right to do so. It derisively refers to that exculpatory evidence as a “document dump,” and argues that the Lunnys don’t have the right to question the Commission’s orders.

The Commission is wrong.  The Commission does not have the right to railroad a family without due process.

On Tuesday, March 11, oral arguments on this case will be heard in Marin County Superior Court. If the oyster farm’s motion is granted, this will be the first time a Coastal Commission enforcement order has been successfully overturned. Let us hope that justice will be served.

Update:  The March 11 hearing was brief–a new judge has been assigned to the case….”

The judge will provide a tentative ruling on Tuesday, April 15 and will hear arguments from both sides the following morning, April 16, Marin County Superior Court, Department B, 8:30 AM. 

 

For more on this see

http://savedrakesbay.com/core/2014/03/05/coastal-commission-to-lunnys-yes-you-have-no-due-process-rights/

 

04-10-14 Addtl sites for information & contributions to Save Drakes Bay Oyster Farm

Additional sites provide even more information on Drakes Bay Oyster Farm and their efforts to prevent the National Park Service from removing them from Drakes Bay.

You can contribute to Save Drakes Bay Oyster Farm.

https://www.indiegogo.com/projects/save-drakes-bay-oyster-farm?show_todos=true

 

For more information about the cause, please visit the advocacy site:

http://savedrakesbay.com/core/

 

For more information about the oyster farm, including how to visit the farm and where to purchase their award-winning oysters, please visit their business site:

http://drakesbayoyster.com/

 

04-03-14 HUFFINGTON POST GOT IT WRONG, FILING IS ON APRIL 14, NOT THE DECISION TO HEAR THE CASE

SORRY TO ALL MY READERS. I TOOK THE INFORMATION DIRECTLY FROM THE HUFFINGTON POST ARTICLE.

I HAVE JUST HEARD FROM DBOC.

THEY WILL BE FILING THEIR PETITION ON APRIL 14, 2014 WITH THE US SUPREME COURT.

THE DECISION TO HEAR THE CASE COULD TAKE TWO MONTHS OR MANY MONTHS AFTER THE CASE IS FILED.

AGAIN, MY APOLOGIES.

04-02-14 Must Fed Agencies follow NEPA? Decisions based on Misinterpretation of Law appealable?

04-02-14
Journalist: Curtis Ellis

 

I can’t say much about conflict diamonds but I did have a personal encounter with conflict oysters. The conflict isn’t between armed factions in an African kleptocracy, but between a family farm north of San Francisco and the federal government that wants to shut it down. I ate conflict oysters at the end of a dirt road on a picnic table overlooking the placid waters of Drake’s Estero, a finger of the Pacific Ocean surrounded by low green hills in the Point Reyes National Seashore. The oysters were harvested by the Drake’s Bay Oyster Farm, a humble enterprise that consists of a few whitewashed sheds, some picnic tables, a couple of fiberglass tanks that serve as incubators for baby oysters and piles of shells that will be submerged and recycled as cradles for the next generation of slurpables-on-the-half-shell. Despite its unprepossessing appearance, the family-owned Drakes Bay Oyster Farm finds itself in an epic battle with Leviathan, a National Park Service bureaucracy intent on shutting it down. The fight pits the oyster farmers against the Department of Interior, neighbor against neighbor and environmentalist against environmentalist. It has also created odd alliances. Senator Dianne Feinstein, a stalwart supporter of the bivalve farm, finds herself on the oyster shell barricades alongside locavores, local descendants of Haight Ashbury hippies and a team of pro-bono attorneys including some inspired by Ronald Reagan. And the Lunny family, which owns and operates the oyster farm. The Lunny family has ranched land alongside Drake’s Estero for three generations — over a hundred years. They grow certified organic and grass-fed beef on the first organic certified pastures in Marin County, and are exemplars of the local sustainable agriculture movement. They took over the oyster operation when the family that previously owned and ran it, their neighbors, bowed out. Like the land around it, Drake’s Estero has been in commercial oyster production for nearly a century. Even before Europeans arrived, the native people harvested oysters from the waters. In the 1970s, when Point Reyes became part of the national park system, the National Parks Service issued a renewable permit allowing the oyster farm to continue operating. Decades later, the feds signaled they were inclined to pull the permit and create a look-but-don’t-touch wilderness area. Senator Feinstein pushed legislation through the Democratic-controlled Congress allowing the permit to be renewed, wilderness plans notwithstanding. That should have been the end of it, but instead it was just the beginning. It’s important to remember the context of this conflict. Point Reyes, and the West Marin region of which it is part, is the epicenter of sustainable local agriculture, providing grass-fed meats, cheeses and artisanal produce to homes and farm-to-table restaurants in the Bay Area and beyond. These are human scale operations, labor intensive and dedicated to sustainable practices. The Parks Service itself sings the praises of the area’s agricultural heritage,citing “the powerful linkage between these innovative, sustainable agricultural enterprises, market recognition, and the continued, careful stewardship of an important cultural landscape,” calling Point Reyes a place that can “reconnect people to the food they eat, the landscapes where it is grown, and the honorable labor of producing it.” The Drake’s Bay oyster war pits environmentalists aligned with the local food movement not just against the federal government, but against a faction of environmentalists who could be described as “wilderness fundamentalists.” At issue are two competing visions of the environment: one sees humans as part of the ecosystem; the other imagines an ideal ecosystem devoid of humans — a “look-but-don’t-touch” museum diorama. Michael Pollan, author, UC-Berkeley professor and a leading voice of the local food movement, sides with the Drake’s Bay Oyster Farm, saying it “actually contributes to the health of its ecosystem” and “is an important thread in the local sustainable food community.” He blasts the Park Service’s for “ideological rigidity and misuse of science” and says it would be an “outrage” if it shut down Drake’s Bay. The vision of the wilderness fundamentalists and its amen corner within the Park Service, while noble, is “rooted more in fantasy than fact,” Pollan writes. He calls out the “deep roots to the hostility of environmentalism toward agriculture, an antagonism that once was understandable” but is now outdated, with sustainable agriculture “showing people who care about nature that good farming contributes as much to the health of nature, sometimes even more, than simple land preservation. … An ‘all or nothing’ ethic that pits man against nature, wilderness against agriculture” is not useful in this landscape, Pollan says. The oyster farm supporters, including Pollan and Senator Feinstein, hope the Parks Service would seize the opportunity to teach an important ecology lesson at Drake’s Bay: “The relationship between humanity and the land need not be a zero sum one, but rather that, when properly managed, the two can nourish one another.” Instead, former Interior Secretary Ken Salazar denied the permit, citing a flawed environmental impact report while simultaneously claiming it didn’t rely on that same report. The oyster farm is seeking an emergency injunction staying their eviction while it sues for a new hearing on the permit, saying the prior decision was based on a misinterpretation of science and law. The Ninth Circuit denied the injunction in a 2 to 1 decision, asserting the court has no jurisdiction to overrule an agency’s decision, even if the decision is based on misinterpretation of law. Judge Watford, an Obama appointee, dissented. Drake’s Bay is taking their case to the Supreme Court. The U.S. Supreme Court will decide on April 14th if it will hear the case.* Along with the jobs of thirty oyster farm employees, what’s at stake is whether citizens can go to court to challenge a decision by a regulatory agency (the Ninth Circuit said no), and whether federal agencies must follow the National Environmental Protection Act in issuing its decisions (the Interior Department says ‘not always’). And whether Californians will be able to continue growing and harvesting some of the cleanest shellfish on earth as they have done for nearly a century.

* DBOC will submit their case to the US Supreme Court on 04-14-14. Once received, the court may take 2 months or longer, perhaps many months to decide whether to hear the case.

 

02-14-2014: Motion for PEREMPTORY WRIT OF MANDATE (Sup. Court Marin 9AM, 3-11-14)

Motion for Peremptory Writ of Mandate to be heard in the Superior Court of the County of Marin at

9 AM, March 11, 2014,

Department D-22, Honorable Mark A. Talamantes

EXCERPTS FROM THE INTRODUCTION as well as from THE CONCLUSION (Emphasis added)

Agency action must be invalidated when the accused does not receive a fair trial (or administrative hearing), or

when the agency’s decision is not supported by the evidence.

Drakes Bay did not get a fair trial for two reasons.

First, THE CALIFORNIA COASTAL COMMISSION REFUSED … TO CONSIDER … EXPERT OPINIONS, DECLARATIONS, AND DOCUMENTARY EVIDENCE SUBMITTED BY DRAKES BAY

DUE PROCESS REQUIRES AN AGENCY TO CONSIDER EVIDENCE offered in a quasi-judicial hearing

the COMMISSION VOTED TO EXCLUDE THE EVIDENCE FROM THE RECORD.

As a matter of law, an accused does not receive a fair trial when the agency refuses to consider any of the expert testimony submitted in support of the accused


    Second, …THE COMMISSION … DID NOT ALLOW …

CROSS-EXAMINATION OF COMMISSION WITNESSES

…the decision turned on complex factual questions about whether the farm is environmentally beneficial, as established by the expert testimony submitted by Drakes Bay,

OR environmentally harmful, as asserted by THE THREE LAWYERS who made the staff presentation.

THE THREE LAWYERS made many assertions …, but …hid the truly relevant facts:

which staff conducted the investigation, what qualifications they had, what methods they used, whether they were concealing exculpatory evidence, what evidence they collected, and how they bridged the analytical gap from the raw data to the ultimate conclusions.

“Cross-examination is the greatest legal engine ever invented

for the discovery of truth.”

…. Here, because THE THREE LAWYERS did not disclose the facts,

CROSS EXAMINATION WAS ESSENTIAL TO THE SEARCH FOR TRUTH


The Commission’s findings, which were drafted by one of

THE THREE LAWYERS, are not supported by the evidence, because 

THE THREE LAWYERS PROVIDED NO EVIDENCE.

What lawyers say is not evidence.

Although the Commission’s report occasionally cites to studies from elsewhere,

these citations say nothing about Drakes Estero, where the oyster farm is located.

DRAKES BAY … SUBMITTED EXPERT TESTIMONY THAT RELIED ON LOCAL DATA AND STUDIES FROM DRAKES ESTERO. THIS EVIDENCE ESTABLISHED THAT THE OYSTER FARM DOES NO HARM, AND THAT IT PROVIDES AN ENVIRONMENTAL BENEFIT. 

THERE IS NO EVIDENCE TO THE CONTRARY.

…the Commission’s decision should be invalidated.

FROM THE CONCLUSION, PAGE 19, LINES 12-21:

…the Commission’s war … is full of sound and fury, but signifies nothing. The Commission has no evidence to support any of its findings of environmental harm. In fact, the only real evidence points to exactly the opposite conclusion: the environment in Drakes Estero is thriving and Drakes Bay causes no adverse effects.

The commission’s reckless accusations … show … it cannot be trusted to regulate an 80-year old farm that the Commission plainly does not understand.

v.            CONCLUSION

This motion should be granted and the Court should issue a peremptory writ of mandate invalidating the Orders.

For the complete legal document click on the link below:

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

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

01-29-14 DBOC Sues Ca Coastal Commission for Coastal Act Violations

Drakes Bay Oyster Sues Coastal Commission for Coastal Act Violations

Coastal Act requires the protection of aquaculture

Complaint asks for injunctive relief, declaratory relief, and civil penalties


INVERNESS, CALIF. — Drakes Bay Oyster filed a cross-complaint today against the California Coastal Commission alleging that the Commission has violated its obligations under the Coastal Act to permit, protect, and promote aquaculture.
 
“The Coastal Commission has not acted in good faith and must be held accountable,” said Phyllis Faber, a Marin County environmental activist and biologist who was a founding member of the Commission. “Instead of working to protect the coast in keeping with its charter, the Commission has violated the law and abused its power. Drakes Bay Oyster is an environmentally-sound local business that is part of our local heritage—exactly the sort of coastal use that the Commission was formed to protect.”
 
The support of aquaculture is an important part of the Coastal Act, the law that established the Commission and governs its actions. The law recognizes that “existing developed uses” such as the 80-year old oyster farm are “essential to the economic and social well-being of the people of this state and especially to working persons employed within the coastal zone.”
 
The Commission has not only failed to fulfill its charter to protect and promote aquaculture, it has also  repudiated agreements it made with the oyster farm to process its permit once the Park Service made public its environmental review. That review was made public in November 2012, but the Commission has continued to withhold the permit.
 
Drakes Bay has submitted a complete permit application, paid all application fees, and submitted all information required by the Coastal Act. The operations Drakes Bay has proposed for permitting are consistent with all applicable Coastal Act policies.
 
The complaint sets out five counts on which the Commission is in violation of the Coastal Act, and asks for several types of relief, including a declaration that the Commission has violated the law, an injunction requiring the Commission to process the permit, and civil penalties.
 
The Coastal Commission case is separate from the oyster farm’s pursuit to appeal their eviction with the Supreme Court but is also ongoing and significant to their continuation as a local business and environmental partner to the area.
 
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.com.

 

1.29.14 DBOC’s Cross Complaint

01-27-2014 9th Circuit GRANTS DBOF right to remain open while appeal to US Supreme Court

Drakes Bay Oyster Will Remain Open Pending Supreme Court Petition

Ninth Circuit Grants Motion Based on Significant Possibility of Oyster Farm Win in High Court


INVERNESS, CALIF. — The Ninth Circuit has granted Drakes Bay Oyster’s motion to allow the historic oyster farm to remain open while its legal team petitions for the case to be heard in the U.S. Supreme Court.  The small, family-owned farm has been in a heated legal battle with federal regulators for its survival.

 

In granting the stay, the court had to find that there is a “reasonable probability” that the Supreme Court will take this case and a “significant possibility” that the oyster farm will win. 

 

“We are grateful for the opportunity to continue to serve our community while the high court considers our case,” said Kevin Lunny, owner of Drakes Bay Oyster Farm.

 

Observers of the closely watched case have expected the Supreme Court might want to hear the case in order to resolve three circuit splits—that is, issues on which two or more circuits in the U.S. court of appeals system have given different interpretations of federal law. The splits in this case are on important issues:  jurisdiction over agency actions, applicability of the National Environmental Policy Act (NEPA), and prejudicial error under the Administrative Procedure Act (APA).

 

The Ninth Circuit majority’s decision also presents a conflict with several decisions of the U.S. Supreme Court itself. In addition, Drakes Bay Oyster will suffer irreparable harm if the mandate is not stayed.

 

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.com.

 

order staying mandate

01-14-14 Drakes Bay Oyster Co to appeal to U.S. Supreme Court

Statement from Drakes Bay Oyster Company Regarding Denial of En Banc Rehearing


The following statement is attributed to Kevin Lunny, owner of Drakes Bay Oyster Company, in response to today’s Ninth Circuit denial of its request for an en banc rehearing.

 

“We believe the Court’s decision not to rehear our case is incorrect, and that the dissenting opinion from Judge Watford will prevail,” said Kevin Lunny, owner of Drakes Bay Oyster. “Because of that, we are requesting our case be heard by the U.S. Supreme Court. We are grateful for our thousands of supporters, partners, customers and patrons that have supported our small, family-owned farm for four generations. We remain committed to succeeding in our fight to remain open and serve our community,” Lunny said.

 

The small family owned farm has been fighting to remain open despite the National Park Service’s determination to close them down

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

12-07-13 PROF JOE FAILS TO STEP UP TO ON AIR DIALOGUE with DR. GOODMAN

CLICK THE LINK BELOW TO HEAR THE INTERVIEW

http://sedonadreams.com/?p=1027

12-07-13 Prof. Mueller Backs Out of Radio Opportunity to debate Dr. Goodman

——– Original Message ——–
Subject: RE: Fwd: East Bay Express: The Oyster Company That Wouldn’t
Leave
From: <george@sedonadreams.org>
Date: Sat, December 07, 2013 7:40 pm
To: “Joe Mueller” <joen8ture@gmail.com>

Joe – If at any time during tonight’s show you have the cojones to challenge any statement made by Dr. Goodman, please feel free to call 1-866-37-TRUTH.  George
Joe – For once, please act like a scientist. Count the number of minutes you were speaking in the 1 1/2 hours of our airtime together. Next, count the number of minutes that Dr. Corey Goodman spoke during our one hour show together. You will find that your total air time speaking is greater than Dr. Goodman’s total air time speaking. In addition, please act like an adult: What “bad names” have I called you? Name one. If I were to call you “unprofessional” as you just called me, would that be a “bad name”? As stated previously, the 2 scientists that have been on my shows are you and Dr. Corey Goodman. Were your students “in stitches” when they listened to Dr. Corey Goodman? Will you tell all your students to listen to tonight’s show? Don’t you want all your students to have a good laugh?  If you want separate air time for questions, come on the show tonight. You can have the first 40 minutes, & Corey will come on in the last 20 minutes.   George
——– Original Message ——–
Subject: Re: Fwd: East Bay Express: The Oyster Company That Wouldn’t
Leave
From: Joe Mueller <joen8ture@gmail.com>
Date: Sat, December 07, 2013 5:43 pm
To: george@sedonadreams.org

George,

Finals are next week and I have had classes all week and all day today. I do not have time nor the energy to “debate” on the air when you are so obviously bias (see Bill O’liely for methods you use) . You rarely give me time to finish the answers to questions you give me and you gave both Goodman and Lunny 3 or more minutes for their closing statements, you gave me less than 30 seconds and cut me off. I let my students listen and all they did was laugh at your methods, you don’t even try to appear to be impartial (just like fox news). Even they know Lunny and Goodman don’t know what they’re talking about.
Why would anybody be so stupid as to “debate” with such a bias host? You’ve called me many bad names (unprofessional just like O’liely)  on the air but not stupid. I guess you must believe that by the looks of your actions. If you would like to hold separate question/ answer forums I would be happy to answer any questions you have about what little Goodman and Lunny actually know or understand. Lunny’s answers had my students in stitches -great comedy for those not so ignorant (oysters as carbon sinks had them laughing in the isles). Great stuff for a critical thinking course.    Joe Mueller

On Sat, Dec 7, 2013 at 11:24 AM, <george@sedonadreams.org> wrote:

Hello, Joe. Please formulate your response to Corey’s statements & scientific data. In the previous email, I invited you to try to present any scientific data or evidence you have which contradicts anything Corey has said on my shows – & have not heard back from you. Remember, the Sedona Dreams show is tonight. Corey will be on the show, & you are invited once again to state your case & back it up with any scientific data you have. Please step up to the plate this time. If the Drake’s Bay oysters are harming – rather than helping – the environment, now is your chance to prove it.  George

12-07-13 Dr. Goodman & Prof. Joe Mueller debate DBOC on Sedona Dreams Radio TONIGHT

TUNE IN TO SEDONA DREAMS TONIGHT AT 9:00 PM

George Whitehurst Berry will host

  • ELECTED MEMBER, NAS Dr. Corey Goodman (who uncovered the scientific misconduct of the PRNS)

  • COLLEGE OF MARIN PROF. Joe Mueller (who disagrees with Dr. Goodman)

Both have been on Sedona Dreams Radio previously but separately.

Both are invited for tonight’s 9:00 PM hour to discuss / debate the science behind the DBOC situation (see emails between George and Joe below – NOTE: Dr. Goodman has already committed to being on the show tonight)

Listeners can simply go to truthfrequencyradio.com & click on the “listen live” link on the home page when my show comes on. Listeners can also click on the “schedule” link on the home page to see when the Sedona Dreams show begins. You may also call one of the numbers listed below.

  • Call In 1- 8 6 6 – 3 7 – T R U T H

  • More Ways To Listen Live
    Listen By Phone (main) 8 3 2 – 2 2 5 – 5 3 0 8
    Listen By Phone (back up) 7 1 2 – 4 3 2 – 6 9 8 3

From: george@sedonadreams.org [george@sedonadreams.org]
Sent: Saturday, December 07, 2013 11:28 AM
To: Jane Gyorgy
Subject: [FWD: RE: Fwd: East Bay Express: The Oyster Company That Wouldn’t Leave]

——– Original Message ——–
Subject: RE: Fwd: East Bay Express: The Oyster Company That Wouldn’t
Leave
From: <george@sedonadreams.org>
Date: Sat, December 07, 2013 12:24 pm
To: “Joe Mueller” <joen8ture@gmail.com>

Hello, Joe. Please formulate your response to Corey’s statements & scientific data. In the previous email, I invited you to try to present any scientific data or evidence you have which contradicts anything Corey has said on my shows – & have not heard back from you. Remember, the Sedona Dreams show is tonight. Corey will be on the show, & you are invited once again to state your case & back it up with any scientific data you have. Please step up to the plate this time. If the Drake’s Bay oysters are harming – rather than helping – the environment, now is your chance to prove it.  George

——– Original Message ——–
Subject: Re: Fwd: East Bay Express: The Oyster Company That Wouldn’t
Leave
From: Joe Mueller <joen8ture@gmail.com>
Date: Wed, November 27, 2013 4:28 pm
To: george@sedonadreams.org

George, thank you for your thoughtful response. I will be unavailable this holiday weekend. When I get a moment I will send you comments and a more complete response. Joe

On Wed, Nov 27, 2013 at 12:34 AM, <george@sedonadreams.org> wrote:

Joe, thank you for sending me the article. Actually, the entire mass media right-left paradigm is part of a false-choice divide & conquer strategy that derails the focus on facts – as presstitutes like O’Liely & pill-poppin’ Rush know very well. They are both highly paid presstitutes. I, however, have received no monetary compensation whatsoever for my air time on the network – so MY monetary PROFIT has been ZERO. The two scientists that have been on the shows about the Drake’s Bay issue are you & Corey Goodman. Corey has been on one hour-long show. You & I have had 1 1/2 hours together. I would like for you & Corey to be on one show together, so you can both express your viewpoints. This will give you the opportunity to challenge his findings with any facts or data you believe rebuts or disproves them. Will you come on this Saturday’s Sedona Dreams show from 9 to 10:00 PM Pacific Time to express your viewpoint in a point-counterpoint discussion with Corey? I will make sure that you have as much – if not more – air time than Corey does. Please let me know as soon as possible if you will step up to the plate & present your evidence so I can contact him. I have not spoken to him since the previous show. If he is unable to be on the show, you can have the whole hour to present your evidence that any of the statements he made on my show is inaccurate.   George

——– Original Message ——–
Subject: Fwd: East Bay Express: The Oyster Company That Wouldn’t Leave
From: Joe Mueller <joen8ture@gmail.com>
Date: Tue, November 26, 2013 8:53 pm
To: george@sedonadreams.org

George,

I thought you might be interested in this article. Amazing you call yourself “alternative” radio and support such a massively profitable operation. I’m guessing that you’re alternative but in the extreme right. You, Rush and Bill O’Reilly should be proud to support such destruction.

Joe Mueller

Professor of Biology

College of Marin

———- Forwarded message ———-
From: Amy Trainer <amy@eacmarin.org>
Date: Tue, Nov 26, 2013 at 7:10 PM
Subject: East Bay Express: The Oyster Company That Wouldn’t Leave
To: Amy Trainer <amy@eacmarin.org>

http://www.eastbayexpress.com/oakland/the-oyster-company-that-wouldnt-leave/Content?oid=3772631

12-05-13 PRL Opinion Final Paragraph from “Fear of Facts”

Seven years into this debate, the pattern is clear: I keep offering to discuss the data—a normal part of the scientific process—and people on the other side steadfastly refuse. This, to me, is evidence that they are advocates and not scientists. As the court case moves forward, expect more alarming claims. But don’t expect them to have any more merit than the many previous false, and retracted,claims. Science, after all, is about  debate and discourse, not twisting facts to fit a preconceived ideology. Scientists have three words for such behavior: fear of facts.  
 
Corey Goodman, a biologist, University of California, San Francisco faculty member and elected member of the National Academy of Sciences, lives in Marshall.
Above is the last paragraph of the article that appeared in the Point Reyes Light, see below for the full article:

Fear of facts

Opinion

by Corey Goodman

When I was a student at Stanford, one of the things I enjoyed most was the way scientists debated facts. No claim could be made without data to back it up, and all data were subject to robust scrutiny and examined for holes and errors. That was how we were taught to seek truth. We were encouraged to ask tough questions, and were taught that science is just as much about disproving old hypotheses as deriving new ones. It was the same culture of science I taught to my students throughout my career.

Thus it came as a shock when, nearly 40 years later, I first got involved in the oyster farm debate and discovered that none of the National Park Service scientists or their local supporters wanted to discuss the data. At Supervisor Steve Kinsey’s request, I examined that data. As I reported at the county hearing on May 8, 2007, the data did not support their accusations.

At that same hearing, Dr. Sarah Allen made her infamous 80 percent claim— that harbor seals were down 80 percent at one location due to the oyster farm. The next day I did what any scientist would do: I wrote and asked her to share the data and methods on which she had based the claim. She never replied.

By that point I had been a practicing scientist for more than 30 years and was an elected member of the National Academy of Sciences. Never in my career had I written such a request and not received an answer. As a result, I did something I had never before done: I submitted a Freedom of Information Act request. I didn’t know how to do it; my friend Mark Dowie taught me.

Then I got another surprise. Park Service Regional Director Jon Jarvis responded and refused to share the data. He even refused to reveal the location at which the 80 percent decline occurred. Later, in the summer of 2007, Senator Dianne Feinstein instructed Mr. Jarvis to give me the data. He did so, and my analysis was clear: the 80 percent decline took place in the wilderness area, far from the oyster farm. When park scientists continued to refuse to talk, I published my findings in this newspaper.

For several years afterward, park supporters publicly said I was wrong. Dr. Allen remained silent. Finally, in 2010, nearly three years after she made her claim, Dr. Allen retracted it.

Since 2007, the park and its supporters have continued to make erroneous claims of environmental harm by the oyster farm, and as each claim is debunked, they abandon it and move on to a new accusation.

At first their focus was harbor seal disturbances. Those claims were put to rest when Dr. Brent Stewart, the marine mammal expert hired by the park to analyze the hundreds of thousands of secret photographs taken of seals and oyster boats, found “no evidence of disturbance.”

One supporter, Dr. Sylvia Earle, evidently hasn’t read Dr. Stewart’s report. Earlier this year, she wrote to the federal court that “seals are being disturbed” by oyster boats. I wrote to her several times and asked to discuss the data. She never replied.

Park supporters have also focused on impacts to eelgrass, but according to the National Academy, eelgrass coverage has doubled in Drakes Estero in recent years. In the environmental impact statement, the focus was on soundscape, but that too was shown to be bogus.

Beginning in 2013, attention shifted to the colonial tunicate Didemnum vexillum, or Dvex. The first thing that should make you suspicious is that park supporters call the organism “marine vomit.” A Google Scholar search shows that serious scientists don’t use such words in their publications. A Google search shows that Amy Trainer of the Environmental Action Committee and her colleagues have used it. It also appears on a website called Street Carnage, under the headline “Marine vomit attacks British coast.” That website has a photo of Clint Eastwood with a rifle pointed at a poster of “Archie Bunker for President” on its home page.

Dvex is an invasive tunicate that colonizes bays and estuaries throughout the temperate waters of the world, from Venice Lagoon to the New Zealand coast. It was observed in Drakes Estero a decade ago, and has been found in San Francisco Bay, Half Moon Bay, Monterey Bay, Elkhorn Slough, Morro Bay, Tomales Bay, Humbolt Bay, Port San Luis and Bodega Bay.

According to the National Academy, Dvex and other “non-indigenous species” are present in Drakes Estero, their “avenue of introduction is mostly unknown” and they “appear to be much less conspicuous than in nearby San Francisco Bay.” (Dvex most likely first washed into Drakes Estero in the tides.) Thus, there is nothing surprising about Dvex in Drakes Estero, given its worldwide distribution and appearance up and down the California coast.

Dvex was also reported on eelgrass at both Martha’s Vineyard and Tomales Bay. In 2011, Dr. Ted Grosholz reported it on eelgrass in Drakes Estero.

But in 2013, as other claims of harm were disproven, park supporters sounded a note of alarm about Dvex. In January and October 2013, Jude Stalker, at the request of EAC, studied Dvex in Drakes Estero. She called it “marine vomit” in a letter to EAC, suggesting advocacy, not science. Ms. Stalker ended by writing “please do not hesitate to contact me with questions.” I did just that, contacting her four times, asking to discuss her data. She never replied.

Ms. Stalker found Dvex on some eelgrass in one arm of Drakes Estero, in essentially the same location where Dr. Grosholz found it in 2011. There is no reason to conclude that anything has changed, or that Drakes Estero is more imperiled by this tunicate than any other bay along the California coast or around the world.

Responding to these alarms, the California Coastal Commission now demands that the oyster farm douse Drakes Estero with bleach and vinegar and wrap the oyster racks with massive amounts of plastic, to try to kill the ubiquitous tunicate. Such impaired judgment is another good reason to openly discuss and debate the facts.

Seven years into this debate, the pattern is clear: I keep offering to discuss the data—a normal part of the scientific process—and people on the other side steadfastly refuse. This, to me, is evidence that they are advocates and not scientists. As the court case moves forward, expect more alarming claims. But don’t expect them to have any more merit than the many previous false, and retracted,claims. Science, after all, is about  debate and discourse, not twisting facts to fit a preconceived ideology. Scientists have three words for such behavior: fear of facts.  
Corey Goodman, a biologist, University of California, San Francisco faculty member and elected member of the National Academy of Sciences, lives in Marshall.

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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09-13-13 Marin Voice: Why DBOC Continues to Fight

As Judge Paul Watford (an Obama appointee) noted in his powerful dissent, nothing “in the text” of the wilderness laws, or in the contemporaneous debate over those laws, supports the government’s current interpretation.“All indications are,” Judge Paul Watford wrote, “that Congress viewed the oyster farm as a beneficial, pre-existing use whose continuation was fully compatible with wilderness status.” In his view, the government has been “bizarrely” misinterpreting the wilderness laws since 2004. All three legislators actively involved when the wilderness laws were enacted — former Rep. Pete McCloskey, former Assemblyman Bill Bagley and former Rep. John Burton — have been saying this all along.

Tellingly, the majority opinion never argues that the government’s current interpretation of the wilderness laws is correct. “Nor could it make that argument with a straight face,” wrote Judge Watford, given the “clear legislative history” supporting the oyster farm.

Weather: SAN RAFAEL, CA | Now: 68ºF | High: 76ºF | Low: 57ºF | 5-Day Forecast

Marin News

Marin Voice: Why Drakes Bay Oyster Co. continues to fight

By Peter Prows, Zachary Walton, and Ryan Waterman

Guest op-ed column

Posted:   09/13/2013 06:38:00 PM PDT

Drakes Bay Oyster Company on Drakes Estero in the Point Reyes National Seashore, Calif. on Nov. 21, 2012.(IJ archive/Jocelyn Knight) Jocelyn Knight

IMAGINE applying to renew a business permit for your family’s 80-year-old grocery store. Imagine also that the government denies your permit, giving a reason that is outrageous (“our policy prohibits issuing permits to people of your skin color”), bizarre (“we can’t give you a permit because the moon is made of green cheese”), or just plain wrong (“all grocery stores are now illegal”).

Shouldn’t you be able to challenge that decision in court?

According to last week’s majority opinion by the Ninth Circuit Court of Appeals in the Drakes Bay Oyster Co. case, the answer is “no.” So long as an agency does “not violate any statutory mandate,” the majority wrote, “it is not our province to intercede” in a government agency’s “discretionary decision.”

Put more bluntly, the majority is saying that agencies can make any decision they want, no matter how outrageous, bizarre or wrong, so long as they fill out the right forms in doing so.

We believe the majority’s opinion is wrong and dangerous to our system of judicial review.

That is why Drakes Bay will request a review of the opinion from the full Ninth Circuit Court of Appeals.

The oyster farm will remain open while that challenge is decided.

After the Lunny family invested hundreds of thousands of dollars in the oyster farm in 2004, the National Park Service told them that wilderness laws “mandated” that the farm be closed when its lease expired in 2012.

Former Secretary of the Interior Kenneth Salazar said much the same thing last November when he denied the farm a new permit: He thought issuing the permit would “violate” the wilderness laws, and that denying the permit would “effectuate” the congressional policy behind those laws.

The Lunnys concluded that this interpretation of those laws was wrong.

For one thing, the oyster farm’s lease from the government has a renewal clause. For another, the Lunnys knew the law supported continued oyster farming.

After all, the Point Reyes National Seashore was created to preserve agriculture in West Marin, not destroy it.

There is no longer any doubt that the Lunnys were right.

As Judge Paul Watford (an Obama appointee) noted in his powerful dissent, nothing “in the text” of the wilderness laws, or in the contemporaneous debate over those laws, supports the government’s current interpretation.

“All indications are,” Judge Paul Watford wrote, “that Congress viewed the oyster farm as a beneficial, pre-existing use whose continuation was fully compatible with wilderness status.”

In his view, the government has been “bizarrely” misinterpreting the wilderness laws since 2004. All three legislators actively involved when the wilderness laws were enacted — former Rep. Pete McCloskey, former Assemblyman Bill Bagley and former Rep. John Burton — have been saying this all along.

Tellingly, the majority opinion never argues that the government’s current interpretation of the wilderness laws is correct. “Nor could it make that argument with a straight face,” wrote Judge Watford, given the “clear legislative history” supporting the oyster farm.

The majority’s main disagreement with the dissent is whether courts have the power to second-guess Secretary Salazar’s decision based on his misinterpretation of law.

The majority asserted that the courts “lack jurisdiction” to correct an agency’s misinterpretation of law. The dissent reasoned that agency decisions driven by a misinterpretation of law must be overturned as “arbitrary and capricious”.

The full Ninth Circuit will soon have the chance to reconsider the issue.

At stake is whether courts can hold agencies accountable for their misguided decisions, or whether agencies can abuse their power with impunity.

Peter Prows is an attorney with Briscoe, Ivester and Bazel LLP in San Francisco. Zachary Walton is an attorney with SSL Law in San Francisco. Ryan Waterman is an attorney with Stoel Rives LLP in San Diego. They are members of the legal team representing the Drakes Bay Oyster Co.

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.

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