11-01-2012 NPS misses critical deadline re dEIS which is legally inadequate per NAS

NPS missed a critical NEPA deadline last week. 

DBOC has not been informed why or what NPS now plans to do.  NPS has not communicated with Kevin and Nancy Lunny regarding how they will now proceed.

DBOC’s attorney, Ryan Waterman, wrote Secretary Salazar on November 1, 2012:

 “The National Park Service (NPS) has failed to meet a critical National Environmental Policy Act (NEPA) public review deadline.  As a result, the NPS cannot publish a Final Environmental Impact Statement (FEIS) for the Drakes Bay Oyster Company Special Use Permit (DBOC SUP) that provides even the minimum period of public review prior to November 30, 2012.”

Secretary Salazar, in that letter, was also told that:

 “By letter on September 17, 2012, we also documented legal inadequacies identified by the National Research Council of the National Academies of Sciences in the Draft EIS (DEIS) for the DBOC SUP, which make the DEIS so inadequate as to preclude meaningful analysis pursuant to NEPA regulations.  These inadequacies also prohibit NPS from proceeding to finalize the DEIS into a FEIS, but instead, require revision and republication of the DEIS (an exercise that also cannot be completed prior to November 30, 2012).”

In April 2008, NPS and DBOC executed a special agreement – a Memorandum of Understanding –  signed by then-NPS Regional Director, Jon Jarvis, that gave DBOC a “seat at the table” in any ensuing NEPA process.  However, NPS unilaterally ignored that commitment throughout this process.  Now, in light of the NPS to meet its own deadlines, DBOC is in the dark as to what is happening and the letter just sent provides Secretary Salazar with a proposal for approving our pending permit application.

For the full text of the The DBOC letter to the Secretary, from their attorney, Click the link below:

2012-11-01 Correspondence to Hon Secretary Ken Salazar

09-14-12: Lawyers find DEIS errors so pervasive as to preclude meaningful analysis, entire dEIS must be rewritten.

09-14-12: Counsel for the Lunnys, Ryan Waterman, submitted a letter to NPS which concluded, “Based on the (National Academy of Sciences) NRC Report’s findings, NEPA regulations (Federal) prohibit the National Park Service (NPS) from finalizing the Drakes Bay Oyster Company Special Use Permit Draft Environmental Impact Statement (DEIS) because the NRC Report shows that the DEIS is so inadequate as preclude meaningful analysis pursuant to 40 C.F.R., Section 1502.9(a).  Instead, NPS must now revise the entire DEIS, and recirculate and seek public comment on the revised DEIS.”


The Waterman letter to NPS then states, “Yet it is simple to apply the NRC Report’s highly critical structural and substantive critique of the DEIS’s scientific information, analyses, and conclusions to NEPA regulations to reach the inescapable conclusion that the entire DEIS must be revised and recirculated.  This is so because the errors identified by the NRC Report are pervasive and effect the DEIS as a whole.”


Counsel then says, “The errors identified by the NRC Report go to the very heart of the DEIS.”


The Waterman letter concludes stating, “NEPA regulations are clear that a federal agency may not finalize a draft EIS that precludes meaningful analysis under 40 C.F.R. Section 1502.9(a).  The NRC Report demonstrates unequivocally that the DEIS fails to pass this basic test in a number of important ways.  Accordingly, NPS will commit NEPA error if it finalizes the DEIS before preparing and re-circulating a Revised DEIS because the findings made in the NRC Report demonstrate that the DEIS is so inadequate as to preclude meaningful analysis….Instead NPS must now revise the DEIS, and re-circulate and seek public comment on the Revised DEIS.”


The 12-page letter, part of a 100-page detailed submission, identifies one DEIS failure after another based on the National Academy’s review.  This is the second highly critical Report from the National Academy of Sciences.  In 2009, the NAS severely criticized the NPS for manipulating and misrepresenting data.  The new NAS (NRC) report concludes that little changed. 

Click here for the entire document

2012-09-14-Corresp to National Park Service

(12 page letter and “Pre-Publication of  ‘Scientific Review of the Draft Environmental Impact Statement, Drakes Bay Oyster Company Special Use Permit, Committee on the Evaluation of the Drakes Bay Oyster Company Special Use Permit DEIS and [Atkins] Peer Review, Ocean Studies Board, Division on Earth and Life Studies, National Research Council of the National Academies’ “)

Something odd of note: From the NRC report page 11, last three lines; and page 12, first two lines: 

“Time was also set aside for public comment. The agenda and list of participants in the pubic
session is available in Appendix D. Organizations and members of the public were also encouraged to
submit information for the committee’s consideration in writing. These documents are part of the pubic 

record for this study, available through the National Academies’ Public Access Records Office,14 and also
were posted on the internet.”

As of the publication of this posting to this blog you may find it curious that, according to Appendix D (which is the very last page of the link provided above) a “Participant List” is provided which states:


Participant List

(Limited to those who participated in person)

Gordon Bennett, SOS

Julie Cart, LA Times

Jeffrey Creque, Alliance for Sustainable Agriculture

Melanie Gunn, National Park Service

Brannon Ketcham, National Park Service

Kevin Lunny, Drakes Bay Oyster Company

Cicely Muldoon, National Park Service

Dominique Richard

Amy Trainer, EAC


I have posted both Video 1 and 2 of the “public meeting” on this blog under the heading “Videos, Slides & News Links”.

Video 1, is the panel questioning of the NPS and some questioning of Kevin Lunny.

Video 2, is the “Public Comment” section.


Here is the list of the ACTUAL PARTICIPANTS of the Public Comment, Video 2

Gordon Bennett – 0:01:42 to 0:05:49

Amy Trainer – 0:05:57 to 0:12:09

Dominique Richard – 0:12:32 to 0:18:31

Jane Gyorgy – 0:19:02 to 0:27:44

Jeff Crecque – 0:28:17 to 0:32:35

Phyllis Faber (letter read) – 0:33:16 to 0:38:15

Kevin Lunny – 0:39:30 to 0:42:12

Neal Desai (by phone) follows


  1. Their list is not in order of presenters, nor alphabetical, nor even accurate. Either they provided an incomplete list of both video’s participants or an inaccurate list of Video 2 participants.
  2. Their list Includes someone who did NOT participate in either Video 1 or 2  – Julie Cart of LA Times
  3. Their list does not include one who DID participate in Video 2 – me, Jane Gyorgy of WOW (www.oysterzone.wordpress.com)

Odd, don’t you think?


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