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

     

     

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

“DRAKES BAY OYSTER WAS VINDICATED TODAY

in its fight against unjust enforcement orders imposed last year

BY THE CALIFORNIA COASTAL COMMISSION.

The Marin County Superior Court 

OVERTURNED THOSE ORDERS IN EVERY SIGNIFICANT EFFECT,

finding that the

COMMISSION’S

UNFAIR PROCESS

WAS AN

ABUSE OF DISCRETION

AND A

VIOLATION OF ENVIRONMENTAL LAW.”

 

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

 

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

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

 

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

 

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

 

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

 

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

 

About Drakes Bay Oyster Company

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

09-03-2013 Judge Watford’s Dissenting Opinion on the Appeal to the 9th Circuit

“The government will suffer only modest harm if oyster
farming’s eighty-year history in the Estero continues a bit
longer.

But if a preliminary injunction is erroneously denied,
Drakes Bay’s business will be destroyed.

That is all Drakes Bay must show to demonstrate that the balance of equities
tips in its favor here.”

 

Appeal from the United States District Court
for the Northern District of California
Yvonne Gonzalez Rogers, District Judge, Presiding
Argued and Submitted
May 14, 2013—San Francisco, California
Filed September 3, 2013
Amended January 14, 2014

 

page 38 CO. V. JEWELL
WATFORD, Circuit Judge, dissenting:
The majority states that, by enacting § 124, “Congress did
nothing more than let the Secretary know his hands were not
tied.” Maj. op. at 24. I think Congress, by including the
“notwithstanding” clause in § 124, intended to do more than
that. In particular, it sought to override the Department of the
Interior’s misinterpretation of the Point Reyes Wilderness
Act, Pub. L. No. 94-544, 90 Stat. 2515 (1976).
The Department had concluded, in 2005, that the Act
barred issuance of a special use permit authorizing continued
operation of Drakes Bay Oyster Company’s oyster farm. The
Department thought Congress had “mandated” that result by
designating Drakes Estero, where the oyster farm is located,
as a “potential wilderness addition” in the Point Reyes
Wilderness Act. The Act’s legislative history makes clear,
however, that by divining such a mandate, the Department
simply misinterpreted the Act’s provisions and misconstrued
Congress’s intent. The Department’s misinterpretation of the
Point Reyes Wilderness Act prompted Congress to enact
§ 124 in 2009. In my view, by including a notwithstanding
clause in § 124, Congress attempted to supersede the
Department’s erroneous interpretation of the Act.
In the 2012 decision challenged here, the Secretary
nonetheless denied Drakes Bay’s permit request based
primarily on the very same misinterpretation of the Point
Reyes Wilderness Act that Congress thought it had
overridden. As a result, I think Drakes Bay is likely to
prevail on its claim that the Secretary’s decision is arbitrary,
capricious, or otherwise not in accordance with law. See
5 U.S.C. § 706(2)(A). Because the other preliminary
injunction factors also weigh in Drakes Bay’s favor,
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DRAKES BAY OYSTER CO. V. JEWELL 39
injunctive relief preserving the status quo should have been
granted here.
I
To explain why I think the Interior Department (and later
the Secretary) misinterpreted the Point Reyes Wilderness Act,
a fairly detailed discussion of the Act’s legislative history is
necessary.
The events leading up to passage of the Point Reyes
Wilderness Act begin in 1962, when Congress authorized
creation of the Point Reyes National Seashore and
appropriated funds for land acquisition within the Seashore’s
designated boundaries. Act of Sept. 13, 1962, Pub. L. No.
87-657, 76 Stat. 538 (1962). As part of that process, in 1965,
the State of California conveyed ownership of the submerged
lands and coastal tidelands within the Seashore’s boundaries
to the federal government. See Act of July 9, 1965, ch. 983,
§ 1, 1965 Cal. Stat. 2604, 2604. Those lands included Drakes
Estero. The conveyance reserved certain mineral and fishing
rights, which allowed the State to “prospect for, mine, and
remove [mineral] deposits from the lands,” and “reserved to
the people of the state the right to fish in the waters
underlying the lands.” Id. §§ 2–3, 1965 Cal. Stat. at 2605. At
the time of the State’s conveyance, oyster farming was
already a well-established fixture in Drakes Estero, with roots
dating back to the 1930s.
In 1973, the President recommended that Congress
preserve 10,600 acres within the Point Reyes National
Seashore as “wilderness,” under the terms of the Wilderness
Act of 1964, Pub. L. No. 88-577, § 3(c), 78 Stat. 890, 892
(1964). Members of California’s congressional delegation
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DRAKES BAY OYSTER 40 CO. V. JEWELL
found that recommendation woefully inadequate, and soon
thereafter introduced identical bills in the House and Senate
designating far larger areas of the Seashore as wilderness. In
the House, Congressman John Burton introduced H.R. 8002,
94th Cong. (1975); in the Senate, Senator John Tunney
introduced S. 2472, 94th Cong. (1975). H.R. 8002 is the bill
that eventually became the Point Reyes Wilderness Act.
As originally proposed, H.R. 8002 and S. 2472 would
have designated more than thirty-eight thousand acres as
wilderness. Included within that designation was Drakes
Estero, as well as most of the other submerged lands and
coastal tidelands conveyed by California in 1965. The
sponsors of H.R. 8002 and S. 2472 were well aware of the
oyster farm in Drakes Estero. They nonetheless included
Drakes Estero within the wilderness designation because they
did not view the farm’s operations as incompatible with the
area’s wilderness status. Commenting on the Senate bill,
Senator Tunney left no doubt on that score, declaring,
“Established private rights of landowners and leaseholders
will continue to be respected and protected. The existing
agricultural and aquacultural uses can continue.” Wilderness
Additions—National Park System: Hearings Before the
Subcomm. on Parks and Recreation of the S. Comm. on
Interior and Insular Affairs, 94th Cong. 271 (1976)
[hereinafter Senate Hearing].
During hearings on H.R. 8002 and S. 2472, various civic,
environmental, and conservation groups supported Drakes
Estero’s designation as wilderness. They explained in detail
why neither the State’s reserved mineral and fishing rights
nor the oyster farm precluded such a designation. No one
advocating Drakes Estero’s designation as wilderness
suggested that the oyster farm needed to be removed before
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DRAKES BAY OYSTER CO. V. JEWELL 41
the area could become wilderness. See id. at 324–33,
344–61; H.R. 7198, H.R. 8002, et al., To Designate Certain
Lands in the Point Reyes National Seashore, California as
Wilderness: Hearing Before Subcomm. on Nat’l Parks and
Recreation of the H. Comm. on Interior and Insular Affairs,
94th Cong. (1976) [hereinafter House Hearing], prepared
statements of Jim Eaton, William J. Duddleson, Ms. Raye-
Page, and Frank C. Boerger.
The comments Congress received from those who were
advocating Drakes Estero’s designation as wilderness stressed
a common theme: that the oyster farm was a beneficial preexisting
use that should be allowed to continue
notwithstanding the area’s designation as wilderness. For
example, a representative from the Wilderness Society stated:
“Within Drakes Estero the oyster culture activity, which is
under lease, has a minimal environmental and visual
intrusion. Its continuation is permissible as a pre-existing
non-conforming use and is not a deterrent for inclusion of the
federally owned submerged lands of the Estero in
wilderness.” House Hearing, prepared statement of Ms.
Raye-Page, at 6. The Chairman of the Golden Gate National
Recreation Area Citizens’ Advisory Commission noted that
the oyster-farming operations “presently carried on within the
seashore existed prior to its establishment as a park and have
since been considered desirable by both the public and park
managers.” Senate Hearing, at 361. He therefore
recommended that specific provision be made to allow such
operations “to continue unrestrained by wilderness
designation.” Id. Others observed, echoing the comments of
Senator Tunney, that the proposed House and Senate bills
already provided for that. See House Hearing, prepared
statement of William J. Duddleson, at 3–4 (“H.R. 8002 would
allow continued use and operation of Johnson’s Oyster
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DRAKES BAY OYSTER 42 CO. V. JEWELL
Company at Drakes Estero, as a pre-existing non-conforming
use.”); Senate Hearing, at 357 (“S. 2472 would allow the
continued use and operation of Johnson’s Oyster Company in
Drakes Estero.”). A local state assemblyman succinctly
summed it up this way: “Finally, I believe everyone
concerned supports the continued operation of oyster farming
in Drakes Estero as a non-conforming use.” Senate Hearing,
at 356.
The view expressed by these speakers—that continued
operation of the oyster farm was fully compatible with
Drakes Estero’s designation as wilderness —was not some
wild-eyed notion. It was firmly grounded in the text of the
Wilderness Act itself. The Act generally bans commercial
enterprise within wilderness areas, but does so “subject to
existing private rights.” 16 U.S.C. § 1133(c). Drakes Bay’s
predecessor, the Johnson Oyster Company, had existing
private rights in the form of water-bottom leases issued by
California that pre-dated both the passage of the Wilderness
Act and creation of the Point Reyes National Seashore. The
Act also generally prohibits the use of motorboats within
wilderness areas, see id., but the Secretary of Agriculture may
permit continued use of motorboats when, as here, such use
has “already become established.” Id. § 1133(d)(1). To the
extent there is any ambiguity in these provisions, the Act’s
legislative history makes clear that Congress believed the new
wilderness-preservation system would not affect the
economic arrangements of business enterprises “because
existing private rights and established uses are permitted to
continue.” S. Rep. No. 88-109, at 2 (1963).
The only party opposed to designating Drakes Estero as
wilderness was the Department of the Interior. At first, the
Department took the position that none of the submerged
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DRAKES BAY OYSTER CO. V. JEWELL 43
lands and coastal tidelands conveyed by California in 1965
could be designated as wilderness, because the State’s
reserved mineral and fishing rights were “inconsistent with
wilderness.” House Hearing, letter from John Kyl, Assistant
Secretary of the Interior, at 3. When the Department’s view
came under attack by those who argued that the State’s
reserved rights were not in any way inconsistent with
wilderness, see, e.g., Senate Hearing, at 327–28, the
Department backpedaled. It proposed placing most of the
lands subject to the State’s reserved rights into a new
legislative classification—“potential wilderness addition”—
which it had developed in connection with similar wilderness
proposals. See House Hearing, at 11–12; id., letter from John
Kyl, Assistant Secretary of the Interior, at 1. That
designation was intended to encompass “lands which are
essentially of wilderness character, but retain sufficient nonconforming
structures, activities, uses or private rights so as
to preclude immediate wilderness classification.” S. Rep. No.
94-1357, at 3 (1976).
Four areas subject to the State’s reserved rights were at
issue: the coastal tidelands, Limantour Estero, Abbotts
Lagoon, and Drakes Estero. The original version of H.R.
8002 designated all four areas as wilderness, not just potential
wilderness additions. But in the spirit of compromise,
Congressman Burton, the sponsor of H.R. 8002, agreed to
amend the bill by designating those areas as potential
wilderness additions, rather than as wilderness. See House
Hearing, prepared statement of Rep. John Burton, at 2. In
doing so, he made clear that all four areas were being
designated as potential wilderness additions due to
California’s reserved mineral and fishing rights. See id. He
noted that, “[a]s ‘potential wilderness,’ these areas would be
designated as wilderness effective when the State ceeds [sic]
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DRAKES BAY OYSTER 44 CO. V. JEWELL
these rights to the United States.” Id. (emphasis added). As
so amended, H.R. 8002 was enacted as the Point Reyes
Wilderness Act in 1976.
Fast forward now to 2005. Shortly before Drakes Bay’s
purchase of the oyster farm closed, the Park Service reiterated
its view that, based on a legal analysis performed by the
Interior Department, no new permits authorizing oyster
farming in Drakes Estero could be issued. The Department’s
legal analysis concluded—bizarrely, given the legislative
history recounted above—that by designating Drakes Estero
as a potential wilderness addition in the Point Reyes
Wilderness Act, Congress had “mandated” elimination of the
oyster farm. The Department never identified anything in the
text of the Act to support that view; it cited only a passage
from the House Report accompanying H.R. 8002. But that
passage “is in no way anchored in the text of the statute,”
Shannon v. United States, 512 U.S. 573, 583–84 (1994), and
thus provides no support for the Department’s interpretation
of the Act.
Even taken on its own terms, however, the passage from
the House Report does not support the Department’s
interpretation. The passage states in full: “As is well
established, it is the intention that those lands and waters
designated as potential wilderness additions will be
essentially managed as wilderness, to the extent possible, with
efforts to steadily continue to remove all obstacles to the
eventual conversion of these lands and waters to wilderness
status.” H.R. Rep. No. 94-1680, at 3 (1976) (emphasis
added). But the oyster farm was not an “obstacle” to Drakes
Estero’s conversion to wilderness status, and no one in
Congress ever expressed that view. To the contrary, as
discussed above, all indications are that Congress viewed the
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DRAKES BAY OYSTER CO. V. JEWELL 45
oyster farm as a beneficial, pre-existing use whose
continuation was fully compatible with wilderness status.
II
With that background in mind, we can now turn to the
legal issue at the heart of this appeal, which is how to
construe § 124.
Everyone appears to agree that the Park Service’s
conclusion in 2005 that it was legally prohibited from
granting Drakes Bay a special use permit prompted Congress
to enact § 124. If all Congress had wanted to do was “let the
Secretary know his hands were not tied,” as the majority
asserts, § 124 could simply have stated, as it does, that “the
Secretary of the Interior is authorized to issue a special use
permit . . . .” Act of Oct. 30, 2009, Pub. L. No. 111-88,
§ 124, 123 Stat. 2904, 2932. But Congress went further and
added a notwithstanding clause, so that the statute as enacted
reads, “notwithstanding any other provision of law, the
Secretary of the Interior is authorized to issue a special use
permit . . . .” Id. (emphasis added). Our task is to determine
what effect Congress intended the notwithstanding clause to
have.
Given the historical backdrop against which § 124 was
enacted, I think Congress intended the clause to override the
Interior Department’s misinterpretation of the Point Reyes
Wilderness Act. Reading the clause in that fashion is
consistent with the way courts have typically construed
notwithstanding clauses. The Supreme Court has held that
the use of such a clause “clearly signals the drafter’s intention
that the provisions of the ‘notwithstanding’ section override
conflicting provisions of any other section.” Cisneros v.
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DRAKES BAY OYSTER 46 CO. V. JEWELL
Alpine Ridge Grp., 508 U.S. 10, 18 (1993). And we have said
that the basic function of such clauses is to “sweep aside” and
“supersede” any potentially conflicting laws. United States
v. Novak, 476 F.3d 1041, 1046 (9th Cir. 2007) (en banc);
Student Loan Fund of Idaho, Inc. v. U.S. Dep’t of Educ.,
272 F.3d 1155, 1166 (9th Cir. 2001). A notwithstanding
clause often targets those laws that were the “legal sticking
point” for the action Congress intends to authorize.
Miccosukee Tribe of Indians of Fla. v. U.S. Army Corps of
Eng’rs, 619 F.3d 1289, 1301 n.19 (11th Cir. 2010).
In this case, no conflicting laws actually prevented the
Secretary from issuing a permit to Drakes Bay. Continued
operation of the oyster farm is fully consistent with the
Wilderness Act, and the farm’s existence is therefore not an
“obstacle” to converting Drakes Estero to wilderness status as
directed by the Point Reyes Wilderness Act. Instead, it was
the Interior Department’s misinterpretation of the Point
Reyes Wilderness Act that proved to be the “legal sticking
point” here. I think the best reading of the notwithstanding
clause is that Congress meant to “override” (“sweep aside,”
“supersede”) that misinterpretation of the law when it enacted
§ 124. Alpine Ridge Grp., 508 U.S. at 18; Novak, 476 F.3d at
1046; Student Loan Fund, 272 F.3d at 1166.
If you accept what I have said so far, only two questions
remain. The first is whether Congress, having overridden the
Department’s misinterpretation of the Point Reyes
Wilderness Act, nonetheless authorized the Secretary to rely
on that misinterpretation as a basis for denying Drakes Bay a
permit. I cannot see any reason why we would construe
§ 124 in that fashion. Under the Administrative Procedure
Act (APA), if an agency bases its decision on a legally
erroneous interpretation of the controlling statute, its decision
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DRAKES BAY OYSTER CO. V. JEWELL 47
will be deemed arbitrary, capricious, or otherwise not in
accordance with law. See Safe Air for Everyone v. EPA,
488 F.3d 1088, 1091, 1101 (9th Cir. 2007) (involving an
erroneous interpretation of a state implementation plan that
had the force and effect of federal law). Thus, even without
the notwithstanding clause, it would make no sense to assume
that Congress authorized the Secretary to base his decision on
a misinterpretation of the Point Reyes Wilderness Act. With
the clause, adopting any such construction of § 124 would be
entirely indefensible.
The second (and admittedly closer) question is whether
the Secretary in fact based his decision on the
misinterpretation of the Act that Congress intended to
override by enacting § 124. The majority suggests that the
Secretary based his decision instead on the Interior
Department’s own policies, see Maj. op. at 20 & n.5, 27–28
n.8, but I do not think the Secretary’s written decision
denying the permit supports that view. The Secretary’s
decision states that he gave “great weight” to what he called
“the public policy inherent in the 1976 act of Congress that
identified Drakes Estero as potential wilderness.” The
Secretary read that Act as expressing Congress’s intention
that all “obstacles” to converting Drakes Estero to wilderness
status should be removed. But he erroneously deemed the
oyster farm to be such an obstacle (“DBOC’s commercial
operations are the only use preventing the conversion of
Drakes Estero to designated wilderness”), because he
erroneously assumed that the oyster farm’s continued
operation was “prohibited by the Wilderness Act.” That in
turn led him to conclude— again erroneously—that his
decision to eliminate the oyster farm “effectuate[d]”
Congress’s intent as expressed in the Point Reyes Wilderness
Act.
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DRAKES BAY OYSTER 48 CO. V. JEWELL
These are precisely the same errors of statutory
interpretation the Interior Department made back in 2005.
They are precisely the same errors that prompted Congress to
enact § 124 in the first place. And, in my view, they are
precisely the same errors Congress attempted to supersede by
inserting the notwithstanding clause. Contrary to the
majority’s assertion, the Secretary had no authority to rely on
this misinterpretation of “Congress’s earlier expressed goal”
because the notwithstanding clause eliminated any such
authority. See Maj. op. at 27–28 n.8.
What does the majority offer in response to this analysis?
Some hand waving, to be sure, but nothing of any substance.
Most tellingly, the majority never attempts to argue that the
Interior Department’s interpretation of the Point Reyes
Wilderness Act was correct. Nor could it make that
argument with a straight face given the Act’s clear legislative
history, which the majority never attempts to address, much
less refute. The majority thus has no explanation for
Congress’s inclusion of the notwithstanding clause in § 124
other than the one I have offered: that it was included to
override the Department’s misinterpretation of the Point
Reyes Wilderness Act. The majority claims that the clause
“has a clear function—to convey that prior legislation should
not be deemed a legal barrier” to permit issuance. See Maj.
op. at 20. But that reading of the clause supports my position
because the Secretary did treat “prior legislation”—namely,
the Point Reyes Wilderness Act—as a “legal barrier” to
permit issuance. As I have argued, that is exactly what the
notwithstanding clause was intended to prohibit.
The majority also claims that I have not accorded the
Secretary’s decision the deference it is owed under the
arbitrary and capricious standard, which requires us to give
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DRAKES BAY OYSTER CO. V. JEWELL 49
due regard to an agency’s exercise of discretion within its
sphere of expertise. See Maj. op. at 27–28 n.8. But I am not
arguing here that the Secretary’s decision must be set aside
because it reflects faulty weighing of permissible policy
factors. We would have no authority to second guess a
decision of that order. What I am saying, instead, is that
§ 124’s notwithstanding clause precluded the Secretary from
basing his decision on the very misinterpretation of the Point
Reyes Wilderness Act that Congress intended to override. A
decision will normally be deemed arbitrary and capricious if
an agency “has relied on factors which Congress has not
intended it to consider.” Motor Vehicle Mfrs. Ass’n v. State
Farm Mut. Auto. Ins. Co., 463 U.S. 29, 43 (1983). That,
unfortunately, is just what the Secretary did.
In short, I would hold that Drakes Bay is likely to prevail
on the merits of its APA claim. The Secretary’s
misinterpretation of the Point Reyes Wilderness Act, and his
mistaken view that denying the permit request effectuated
Congress’s intent, were “fundamental” to his decision,
rendering the decision “arbitrary, capricious, or otherwise not
in accordance with law.” Safe Air for Everyone, 488 F.3d at
1101 (internal quotation marks omitted).
III
Like the majority, I will not spend much time addressing
the remaining preliminary injunction factors—irreparable
harm, balance of the equities, and the public interest. See
Winter v. Natural Res. Def. Council, Inc., 555 U.S. 7, 20
(2008). Considered together, those factors tip in Drakes
Bay’s favor.
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DRAKES BAY OYSTER 50 CO. V. JEWELL
Drakes Bay will suffer irreparable injury to its business
and real-property rights if a preliminary injunction is
erroneously denied. See, e.g., Sundance Land Corp. v. Cmty.
First Fed. Sav. & Loan Ass’n, 840 F.2d 653, 661 (9th Cir.
1988); Am. Passage Media Corp. v. Cass Commc’ns, Inc.,
750 F.2d 1470, 1474 (9th Cir. 1985). The loss of “an ongoing
business representing many years of effort and the livelihood
of its [owners] constitutes irreparable harm.” Roso-Lino
Beverage Distribs., Inc. v. Coca-Cola Bottling Co., 749 F.2d
124, 125–26 (2d Cir. 1984) (per curiam).
The balance of equities favors Drakes Bay. The majority
concludes otherwise by noting that Drakes Bay knew when it
acquired the oyster farm that its permit would expire in 2012.
Maj. op. at 37. But that is not the relevant consideration.
Rather, the controlling consideration is that the harm Drakes
Bay will suffer from the erroneous denial of a preliminary
injunction far outweighs the harm the government will suffer
from an erroneous grant of such relief. See Alliance for the
Wild Rockies v. Cottrell, 632 F.3d 1127, 1137–38 (9th Cir.
2011); Scotts Co. v. United Indus. Corp., 315 F.3d 264, 284
(4th Cir. 2002); Am. Hosp. Supply Corp. v. Hosp. Prods. Ltd.,
780 F.2d 589, 593 (7th Cir. 1986); Roso-Lino, 749 F.2d at
126. The government will suffer only modest harm if oyster
farming’s eighty-year history in the Estero continues a bit
longer. But if a preliminary injunction is erroneously denied,
Drakes Bay’s business will be destroyed. That is all Drakes
Bay must show to demonstrate that the balance of equities
tips in its favor here.
Finally, the public interest favors neither side. As the
district court observed, federal judges are ill equipped to
weigh the adverse environmental consequences of denying a
preliminary injunction against the consequences of granting
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DRAKES BAY OYSTER CO. V. JEWELL 51
such relief, or the relative interests in access to Drakes Bay’s
oysters as opposed to unencumbered wilderness. It is the
equities that carry the day in this case, see Nken v. Holder,
556 U.S. 418, 435 (2009) (when the United States is a party,
equities and the public interest merge), and the equities
strongly favor Drakes Bay.

 

For the entire amended opinion 13-15227_order_amended_opinion

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

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

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

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

04-15-14

Marin Superior Court, Judge Chernus,

issued his temporary ruling today stating the

California Coastal Commission violated environmental law

by not conducting an environmental review, and

abused its discretion by excluding Drakes Bay Oyster Farm evidence.

 

Racks and buildings need not be removed.

Didemnum measures struck down.

Existing Manila clams can stay.

 

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

tentative 15 apr 2014

This is a tentative ruling.

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

 

03-31-2014 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.

 

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

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

HEARING DATE:      March 11, 2014

TIME:                           9:00 a.m.

DEPARTMENT:         D22

JUDGE:                        Honorable Mark A. Talamantes

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

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

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

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

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

The Commission thereby concedes the issue, and the motion. 

In the quasi-judicial proceeding at issue, the Commission

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

                             VII.     CONCLUSION

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

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

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

For the original Brief:

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

 

 

02-2011 Vol 61 #2 BioScience: Oysters identified as Threatened or Imperiled Species

… oyster reefs once dominated many estuaries… ecologically and economically… oyster reefs [are at] the brink of functional extinction worldwide….

Oysters have been identified as a threatened or imperiled species and as a threatened and declining habitat by a number of countries in Northern Europe, around the Black Sea, in the United Kingdom, and elsewhere….  Similar listings are appropriate in many regions and countries, including in the United States….

  • Oyster reefs and beds were once a dominant  structural  and  ecological  component  of estuaries around the globe, fueling coastal economies for centuries.
  • Oysters are ecosystem engineers;… produc[ing] reef habitat for entire ecosystems…
  • [Oysters] have supported civilizations for millenia, from Romans to California railroad workers….
  • In 1864, 700 million European flat oysters… were consumed in London, and nearly 120,000 workers were employed as oyster dredgers in Britain.
  • Shell piles from historical harvests in the southwest of France contain more than 1 trillion shells apiece, underscoring both the productivity of the species and the scale of harvest ….
  • In the 1870s, intertidal reefs of the eastern oyster  extended for miles along the main axis of the James River in the Chesapeake Bay; by the 1940s, these reefs had largely disappeared ….
  • In many coastal areas, including the Texas coast, roads were paved with oyster shells….
  • Oyster reefs are one of the few marine ecosystems for which direct estimates of condition can be calculated

Some significant findings presented in the February 2011 / Vol. 61 No. 2 • issue of BioScience article titled:

Oyster Reefs at Risk and Recommendations for Conservation, Restoration, and Management

BY: Michael W. Beck, Robert D. Brumbaugh, Laura Airoldi, Alvar Carranza, Loren D. Coen, Christine Crawford, Omar Defeo, Graham J. Edgar, Boze Hancock, Matthew C. Kay, Hunter S. Lenihan, Mark W. Luckenbach, Caitlyn L. Toropova, Guofan Zhang, and Ximing Guo
Assessing condition
Ultimately, reef size is a function of the number of living oysters…

Water quality also affects oysters but is less reliable….

We looked at records from between 20 and 130 years before present to estimate historical abundances and extents…. Interestingly, surveys from a century ago were frequently better than records from decades ago or even the present.

Oyster reefs … are  functionally  extinct

in that they  lack  any  significant  ecosystem  role  and  remain at less than 1% of prior abundances in many bays (37%) and ecoregions (28%)—particularly in North America, Australia, and Europe.  we estimate an 85% loss of oyster reef ecosys- tems globally (figure 1). We calculated this by using the midpoint value for each condition category of oyster reefs lost in ecoregions (e.g., 95% of habitat lost for ecoregions in poor condition), and then averaged the loss among all ecoregions.

Prior records from many bays indicated that  oyster reefs were abundant and supported large fisheries—up to hundreds of thousands of metric tons of recorded catch— but those reefs and fisheries are now greatly reduced or gone (MacKenzie et al. 1997a, 1997b, Kirby 2004, NRC… harvests continued until oysters could no longer be fished commercially.

The decline of oyster fisheries follows a common sequence of events… extensive harvest of wild oyster populations results in the loss of reef structure. … There are few if any bays where only one stressor has affected oyster reefs.

Wild fisheries and remaining reefs

Most of the world’s remaining wild capture of native oysters comes from just five eco-regions on the East and Gulf coasts of North America, which together account for more than 75% of the global catch .

Only 10 eco-regions in the world reported wild oyster capture rates of more than 1000 metric tons per year from 1995 to 2004;

Only 6 eco-regions have average captures above 5500 metric tons, 5 of these are in eastern North America (Virginian to Southern Gulf of Mexico ecoregions).

  • Although there is catch remaining in these six eco-regions,  in some cases the loss has been more than 99%.

Regional data gaps

We could not identify the condition of oyster reefs for several ecoregions, including parts of South Africa, China, Japan, and the Korea. There is no indication that the patterns of loss in data-poor areas are different from those in data-rich regions, or that filling the gaps in data would significantly change the global estimates of decline. However, there is not enough information for firm estimates of condition in these ecoregions.

The temperate areas of Asia pose special challenges for characterizing the status of oyster reefs…. These regions, with about 20 recorded species (Guo et al. 1999), are at the epicenter of oyster diversity. Ancient reefs were widespread in these areas several thousand years ago. There have been significant losses of natural reefs, even in the past few decades, primarily from overfishing and habitat destruction.

Overfishing was a major issue from the 1960s to 1980s as oysters were collected for food and lime. Direct habitat loss was also a significant problem as nearby cities expanded and reefs were demolished to provide access for commercial ships. Pollution from the chemical industries in the area caused further deterioration (Deng and Jin 2000), as did higher salinity as a result of reduced discharge from the Yellow and Liaohe rivers (Lin et al. 2001). Recently, the aquaculture of Crassostrea gigas has also caused major changes on the remaining Dajiawa oyster reefs.

The cultivation of oysters has been practiced for at least 2000 years in temperate Asia and has increased dramatically in recent decades (Guo et al. 1999).

Oyster reefs and ecosystem services

Native oyster reefs provide many ecosystem services including

  • water filtration,
  • food and habitat for many animals (e.g., fish, crabs, birds),
  • shoreline stabilization and coastal defense,
  • fisheries (reviewed in Grabowski and Peterson 2007, NRC 2010).

Shelfish remove suspended solids from surrounding waters, thereby

  • increasing water clarity (reviewed in Newell 2004)
  • enable seagrass growth
  • reduce the likelihood of harmful algal blooms, which have important impacts ecologically and economically (Cerrato et al. 2004, Newell and Koch 2004).

Shellfish can also

  • help to remove excess nutrients from coastal bays
  • facilitat[e] de-nitrification in surrounding sediments,  which has tremendous economic value in areas where nutrient removal is a high priority for coastal policymakers (Newell et al. 2005).

Shellfish also serve as natural coastal buffers,

  • absorbing wave energy directed at shorelines
  • reducing erosion caused by
    • boat wakes,
    • sea-level rise,
    • storms (Meyer 1997, Piazza et al. 2005).

In addition, shellfish reefs play an important role as habitat for other species; fishes produced on oyster reefs have significant value to coastal economies (Grabowski and Peterson 2007).

Lost habitat caused by declines in oyster reefs is also linked to broader drops in coastal biodiversity, which has both intrinsic and economic value (Lotze et al. 2006, Airoldi et al. 2008).

Reef functions such as fish habitat and water filtration can

  • enhance tourism and recreation by improving adjacent water quality and sport fisheries (e.g., Lipton 2004).
  • Although there is increasing recognition that shellfish provide multiple eco- system services, management for objectives beyond harvest has not yet become widespread.

Services from oyster reefs and oyster aquaculture have been examined extensively recently (Coen et al. 2007, NRC 2010). These services are well quantified compared with many other marine ecosystems and thus provide a real basis for estimating value lost to degradation and recovered through restoration.

New decision-support models are being developed to help design restoration efforts that maximize ecosystem service benefits (North et al. 2010).

A further step is to develop markets for these services; for example,

  • credits for water filtration and de-nitrification from restored reefs could be bought and sold.

  • Some nascent markets are being developed, but their expansion will require better quantification of ecosystem services (NRC 2010).

  • In addition to ecosystem service markets, better valuations overall would allow managers and others to assess the true costs associated with the deterioration of natural oyster ecosystem services (NRC 2010).

  • Such costs might then be recovered from those who degrade reefs intentionally.

Toward improving condition

Despite the continued decline of oyster reefs, their condition may be improved through conservation, restoration, and management of fisheries and nonnative species. Our analy- ses of reef condition help identify opportunities for improv- ing reef abundance and condition. Many of the countries in which oyster reefs were most abundant have comparatively strong marine management regimes (Mora  et  al. 2009); this suggests a real, albeit unrealized, opportunity for reef recovery and conservation.

New thinking and approaches are needed to ensure that oyster reefs are managed not only for fisheries production but also as fundamental ecological components of bays and coasts and for the return of other associated critical ecosystem services.

Shellfish reefs once dominated many of the temperate and subtropical estuaries on Earth. Recorded accounts indicate the existence of vast reefs with significant structural complexity in bays around the world.

In many ways they were the temperate-climate equivalents of coral reefs, with large calcareous formations critical for creating habitat and maintaining biodiversity (Lenihan and Peterson 1998,  Grabowski  and  Peterson  2007).

Estimates  of  the loss of mangrove and salt marsh (30%–50%), sea grass (approximately 30%), and coral reef (approximately 20%) ecosystems have been influential in developing science and policy actions (Valiela et al. 2001, Wilkinson 2002, Zedler and Kercher 2005, Waycott et al. 2009, Spalding et al. 2010). Given the severity of oyster reef loss (85%), the need for action is clearly urgent.

The devastation of shellfish reefs has been decades and centuries in the making, but this loss is not just a problem of the past. Oysters still are managed without regard for the structure or function of reefs.

Reef conservation.

Native oyster reefs should be recognized as an important habitat and ecosystem and a priority for habitat management and conservation.

We have identified several areas with remaining reefs that are critical for conservation, including those bays with reefs in fair to good condition, particularly if these bays are in ecoregions with more than 90% reef loss overall. The need for action is pressing for flat oysters (Ostrea spp.) in Europe, Australia, and Pacific North America.

Protected areas have been used effectively for the conservation of coral reefs and other ecosystems. A few small, protected areas for oyster reef ecosystems have been established recently and are showing signs of success. For example, newly protected areas can be found in China (Jiangsu Prov- ince), the United States (North Carolina and Virginia), and Chile (Region X) (Peterson et al. 2003, Powers et al. 2009). These examples indicate that protected areas are useful tools for oyster reef conservation and should be expanded.

The extent of oyster reef habitat loss justifies more explicit recognition in protected areas policies. The European Union identifies biogenic reefs as a habitat for protection under Natura 2000. Although such recognition is encouraging, native oyster reefs of O. edulis should be clearly identified and elevated to a priority habitat type given their functional extinction throughout much of Europe. Oyster reefs should be specifically identified for protection under the Ramsar Convention; furthermore, they should be regarded  with other similar wetlands (e.g., seagrasses, coral reefs, man- groves, kelp forests) as an “under-represented wetland type.” International agencies and environmental organizations could bolster local efforts by adding temperate reefs to their conservation programs.

Oysters have been identified as a threatened or imperiled species and as a threatened and declining habitat by a number of countries in Northern Europe, around the Black Sea, in the United Kingdom, and elsewhere.  Similar listings are appropriate in many regions and countries, including in the United States and Australia.

Fisheries  management.

For many other fisheries, rebuilding plans are being developed, and there have been some important successes (Worm et al. 2009). However, plans for rebuilding oysters are rare.  While scientists and managers focus attention on relatively few well-known estuaries with oysters, such as the Chesapeake Bay (e.g., Jack- son et al. 2001, Lotze et al. 2006), needs are not being met elsewhere and opportunities are being missed.

Oysters have many of the elements that underpin successful efforts to sustainably manage other fisheries…

Sustainable shellfish harvests have been achieved elsewhere through a mixture of

  • protected areas for important populations,
  • cooperative fishery management,
  • user rights,
  • use of aquaculture to reduce harvests of wild stocks.
  • institutional arrangements that provide for the co-management of exploited oyster populations and the allocation of territorial user rights in fisheries help link sustainability and economic growth.

These approaches include local fishers in land-use policy and management decisions and give them rights to manage biological resources.

These catch share–based management approaches are being applied with success in artisanal benthic shellfisheries, including oyster and mussel fisheries, in South America (Castilla et al. 2007, Carranza et al. 2008, 2009).Reef recovery and restoration.There have been some small- to medium-scale efforts to restore oyster habitats. Given the scale of losses, reef recovery and restoration efforts will need to be enhanced.It is possible to achieve better returns on existing restoration investments, and new funding streams to rebuild services from reefs should become available (Coen et al. 2007).Present funding for native oyster restoration is directed mainly at fishery enhancement and harm mitigation.In the United States, tens of millions of dollars have been spent in the past decade to recover fisheries (e.g., North Carolina, Chesapeake Bay, Delaware Bay) and to regain fishery production following hurricanes in the Gulf of Mexico.

Often billed as restoration, the outcomes of these investments are measured mainly in near-term harvests; the other services provided by reefs are rarely measured.

Indeed, if just the landings of other fish that use restored and protected reefs are considered, the habitat value of reefs can be greater than the oyster harvest value (Peterson et al. 2003, Grabowski and Peterson 2007).

Assisting oyster fishers to overcome the effects of natural and human disasters and the legacy of poor management are important goals, but investment outcomes should be measured over the longer term (e.g., not just the put-and-take of oysters). Desired investment outcomes should include rebuilding the natural capital of reefs for long-term sustainable harvests and greater resilience to storms.

Oyster managers and industry could play a central role in new restoration efforts. The recent British Petroleum Deepwater Horizon oil spill and the actions in response to it have already had major impacts on fisheries and oyster reefs, and there will be significant investments in response and restoration. These impacts and investments underscore the importance of re-envisioning our management and restoration approaches to support a sustainable future for both reefs and fishermen.

Improved recognition and measurement of the socio-economic benefits from native reefs can create opportunities for new funding sources for restoration (Laing et al. 2006).

As sea-levels rise and the economic impacts of storms worsen, new funding should be generated for climate adaptation to restore oyster reefs for shoreline protection (Piazza et al. 2005).

Markets are emerging for the trade of nitrogen pollution credits in coastal watersheds, and this approach has been used to fund the restoration of riverine buffers. Such markets might fund reef restoration if the nitrogen removal capacity of oyster reefs were harnessed appropriately.

As this field of ecosystem services develops, we must take care to ensure that ecosystems and services are restored.

There are real opportunities for conservation and restoration in areas where oyster harvest is limited by closures caused by poor water quality. Enhanced filtration by larger populations of native bivalves may even improve degraded waters. Leadership from the US Interstate Shellfish Sanitation Conference, among others, could help to identify solutions… and thus support enhancing shellfish abundance. Other disincentives to restoration should also be addressed,  including  the  notion that… planting shells in the water is sometimes regulated as ocean dumping or “fill.”

Although there have been only a few concerted efforts at oyster habitat restoration beyond small-scale projects, the groundwork for success has been laid. Some of the places where there have been initial successes in recovery and restoration include key areas within the Chesapeake Bay, Pamlico Sound (North Carolina), Strangford Lough (Northern Ireland), and Limfjord (Denmark), among others (Lenihan 1999, Brumbaugh et al. 2000, Laing et al. 2006, Brumbaugh and Coen 2009, Powers et al. 2009, Schulte et al. 2009, Smyth et al. 2009). Returns should accelerate greatly as reefs rebuild and become self-sustaining.

Nonnative species.

The International Council for the Exploration of the Sea (ICES) has developed codes of practice for marine introductions and transfers that should be followed in aquaculture to reduce the likelihood that new invaders are released into the wild (ICES 2004).

Shellfish aquaculture has provided pressure to spread nonnatives, but aquaculture has also been a part of the solution in restoring native oyster reefs (Dumbauld et al. 2009). Shellfish aquaculture is more sustainable than most other forms of aquaculture (Naylor et al. 2000). Aquaculture can also reduce harvest pressure on wild shellfish populations when it is coupled with other capture fishery management tools (Castilla et al. 2007, Carranza et al. 2009). Aquaculture companies can play an even greater role in restoration given their expertise in oyster growing and oyster seed production. The aquaculture industry, public agencies, and environmental nongovernmental organizations are natural partners for promoting the restoration of native oysters and their services. Together, these groups could promote businesses to help produce native oyster species that can be sold for market while generating funds and seed oysters for habitat and population restoration.

There is also common ground among the aquaculture industry, environmental groups, and managers in conserving and restoring coastal water quality. Oysters are useful bio-indicators for coastal condition and can be used to help target and monitor needed remediation actions in watershed management (Volety et al. 2009). Indeed, watershed management will prove to be one of the biggest challenges to conserving shellfish and other coastal ecosystems. The fate of oysters is tied to overall estuarine condition. Improving estuaries will require significant effort, especially because such efforts must be watershed based.

Conclusions

  • The condition of oyster reef ecosystems is poor
  • The challenge in revitalizing native oyster reefs is great,
  • We have identified many reasonable actions that can be expanded across local to regional to global scales.
  • Actions recommended to reverse this decline and enhance oyster reef condition include
    • improving protection;
    • restoring eco-systems and ecosystem services;
    • fishing sustainably;
    • stopping the spread of nonnatives;
    • capitalizing on joint interests in conservation, management, and business to improve estuaries that support oysters.

Estimates of oyster reef abundance and condition across many bays and ecoregions provide a baseline for setting much-needed and realistic goals for restoration and conservation and for evaluating the progress in meeting them.Many obstacles hinder successful management of oyster reefs;

  • one of the most  pervasive  is  simply  the  perception among managers and stakeholders that no major problems exist (Laing et al. 2006).
  • the common misperceptions that shellfish habitats cannot be successfully recovered and that nonnative shellfish in aquaculture can replace natives. Put simply, native oysters must be recognized for the reef habitat that they provide. A growing number of examples demonstrate that recovery is feasible.
  • We need new approaches within the regulatory and management communities to lead to shellfish habitat conservation and restoration designed not just for fisheries production but specifically to recover these critical ecosystems and their services.

Acknowledgments

This work was funded by the Kabcenell Family Foundation, NOAA Restoration Center, AdriaBio (University of Bologna), and the Santa Barbara Coastal Long-Term Ecological Research program (NSF OCE-0620276). The authors thank Christine Shepard, Zach Ferdaña, Jeff Vincent, Antonella Fatone, and Bill Arnold for help with the data and Peter Kareiva, Lynne Hale, and David Strayer for thoughtful reviews of the manuscript.

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Michael W. Beck (mbeck@tnc.org) is lead marine scientist with the Global Marine Team of The Nature Conservancy at the Institute of Marine Sciences, University of California, Santa Cruz. Robert D. Brumbaugh is a senior scien- tist with the Global Marine Team of The Nature Conservancy, in Summerland Key, Florida. Laura Airoldi is a researcher at Dipartimento di Biologia Evo- luzionistica Sperimentale and Centro Interdipartimentale di Ricerca per le Scienze Ambientali, Università di Bologna, in Ravenna, Italy. Alvar Carranza is a graduate student and Omar Defeo is a professor at the Marine Science Unit, Ecology Department, Faculty of Sciences, in Montevideo, Uruguay. Loren

D. Coen is director of the Sanibel-Captiva Conservation Foundation Marine Laboratory, in Sanibel, Florida. Christine Crawford is senior research fellow and Graham J. Edgar is associate professor at the Tasmanian Aquaculture and Fisheries Institute, at the University of Tasmania, in Hobart. Boze Hancock is a scientist with the Global Marine Team of The Nature Conservancy at the University of Rhode Island, in Narragansett. Matthew C. Kay is graduate student, and Hunter S. Lenihan is an associate professor, at the Bren School of Environmental Science and Management, at the University of California, Santa Barbara. Mark W. Luckenbach is a professor at the Virginia Institute of Marine Science, College of William and Mary, in Wachapreague, Virginia. Caitlyn L. Toropova is a program coordinator with the International Union for the Conservation of Nature, in Washington, DC. Guofan Zhang is a professor at the Institute of Oceanology, Chinese Academy of Sciences, in Qingdao, Shandong. Ximing Guo is a professor at the Haskin Shellfish Research Labora- tory, at the Institute of Marine and Coastal Sciences, Rutgers University, in Port Norris, New Jersey.

the original document can be accessed through this link:

Beck-et-al.-2011-Oyster-Reefs

02-22-2014 NYTimes.com: Loss Leaders on the Half Shell

Some excerpts from the article:

The joint is jumpin’: Three mixologists in striped dress shirts, dark slacks and suspenders pour drinks almost as fast as three shuckers send platter after platter of raw oysters to their fate. A bluesy soundtrack wafts over the standing-room-only din as patrons sip and slurp, oblivious to the crowd that has gathered outside for what can be a 90-minute wait.

It feels like 9 o’clock on a Saturday night. It is 4:30 on a dank weekday afternoon.

The cheap late-afternoon oyster is to a restaurant what a liter bottle of Coca-Cola is to a supermarket: the loss leader that gets customers in the door, at which point they buy something else at full price. It’s a nationwide binge, attributable in great part to the rapid growth of oyster farms on the East and West Coasts. East Coast production alone has doubled in the last five years, even as wild oyster reefs approach extinction.

Oysters acquire their distinctive flavor based on the water in which they grow, so they give people a lot to talk about. “They’re coming from great growers who are developing their own terroir, like wine growers,” said Jeffrey Hubbeling, general manager of Shaw’s Crab House in Chicago.

But Mark Kurlansky, author of “The Big Oyster,” says something bigger than demographics is at work here: it’s destiny. In the early 1900s, both rich and poor New Yorkers ate oysters, whether at elegant dinners or bought from street carts. He believes that the people lined up outside Maison Premiere are hard-wired to love this particular bivalve; they simply needed the opportunity.

He doesn’t see himself as part of a trend, which implies a temporary infatuation, but as a standard-bearer for a revived tradition.

“People order one of each, which is the poorest way to eat them,” he said. “You’re never going to get a true taste. Twelve different oysters is like 12 sips of different wine. Each one impacts the next, so there’s no true flavor.”

If it were up to him, he’d counsel people to try six oysters at a time, three each of two different varieties, to gain a better sense of the difference between a Barnstable oyster from Massachusetts (“briny, sweet, butter”) and a Totten Inlet oyster from Washington State (“medium brine with watermelon accents, beach grown”). But it’s out of his control; people seem to prefer the sampler approach….

for the full article: Loss Leaders on the Half Shell – NYTimes.com.

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

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