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It’s Time for Drakes Estero to Run Wild

We should honor the 1976 public interest agreement and affirm “America’s greatest idea”

Last November, then-Interior Secretary Ken Salazar made an historic decision for America’s national parks and wilderness legacy by honoring a decades-old agreement the government made to the people of the United States regarding Point Reyes National Seashore. Salazar decided to let the lease of a commercial oyster company operating within a congressionally designated wilderness area expire on its own terms, ushering in the protection of our first marine wilderness on the West Coast.

Drakes BayPhoto by Marsha KirschbaumPoint Reyes National Seashore’s ecological heart – Drakes Estero – is a remarkable estuary that is home to one of the largest harbor seal colonies in California, tens of thousands of migrating birds, and prized underwater eelgrass meadows.

Salazar’s decision symbolized government at its best: acting in the interest of all Americans and ensuring that public trust resources such as national parks and wilderness are protected for future generations. Some Members of Congress who have a long history of working on public lands issues stated: “We applaud the decision to follow the clear intent of Congress, as well as an agreement signed almost four decades ago to establish the nation's first marine wilderness on the west coast at Point Reyes National Seashore. This decision will protect the ecological heart of the National Seashore.” In short: a deal is a deal.

But the owners of Drakes Bay Oyster Company believe they are entitled to continue operating on publicly owned land and in publicly owned waters that were long-planned to be protected from commercial uses. After Salazar issued his decision the company immediately filed a lawsuit against the Interior Department.

On May 14 the Ninth Circuit Court of Appeals heard oral arguments as the company seeks to continue its commercial operations far beyond its lease expiration in this sensitive marine environment. In February, the federal District Court ruled that the company did not deserve an injunction as it pursues its lawsuit. The judge found that the Court did not have jurisdiction and, even if it did, the company’s lawsuit lacked merit and failed to demonstrate that it is in the public interest. The judge also found that an injunction is not equitable for the American public, who own the land and waters where the company operates and who were long promised its protection and enjoyment free of motorized and commercial uses.

The National Seashore’s ecological heart – Drakes Estero – is a remarkable estuary that is home to one of the largest harbor seal colonies in California, tens of thousands of migrating birds, and prized underwater eelgrass meadows. As famed oceanographer and former chief scientist at the National Oceanic and Atmospheric Administration Dr. Sylvia Earle wrote in the Sacramento Bee: “Drakes Estero is a crown jewel in a California treasury of coastal natural assets that includes marine reserves and four National Marine Sanctuaries such as Cordell Bank and Gulf of the Farallones. Its estuarine environment is uniquely significant for achieving the long-term vision set forth by state and federal governments to leave a healthy ocean for future generations.”

Now, as a result of Salazar’s decision, the seven million residents of the greater Bay Area and the more than two million annual visitors to the Seashore will finally have access to a rare, protected marine wilderness environment for their enjoyment, such as wildlife viewing, kayaking, hiking, or simply marveling at the majestic views stretching from this estuary to the ocean.

But this conservation achievement is still not safe. The company and its ultra-conservative special interest friends are trying to hijack Salazar’s order and subvert the public interest and the agreement Congress made with the American people in 1976. If successful, the ramifications would be sweeping. As Stanford history professor Richard White wrote in the Los Angeles Times last year: “What might seem like a local dispute has far-reaching consequences for the ability of the National Park Service to stop resource grabs and allow policy and science, rather than well-placed political donors, to inform decision-making.”

Drakes Bay Oyester FarmPhoto by Wayne HsiehDrakes Bay Oyster Company boats and nets. The company believes it is entitled to continue
operating on publicly owned land and in publicly owned waters that were long-planned
to be protected from commercial uses.

Point Reyes National Seashore was established in 1962 “to save and preserve, for purposes of public recreation, benefit, and inspiration, a portion of the diminishing seashore of the United States that remains undeveloped." The Seashore was created with the support of the dairy ranchers and other landowners on the Point Reyes peninsula who, over time, sold their land to the government for permanent inclusion in the park. In return, the dairy ranchers were provided renewable leases for continuing their operations. In 1972, the owners of what was then called Johnson Oyster Company sold their five acres of land to the Park Service and as part of the deal received a non-renewable 40-year lease to continue their operation in Drakes Estero. (The waters of the Estero have always been publicly owned, unlike the lands in the Seashore.)

Around that same time, planning for wilderness designation at the Seashore was occurring. After significant public input and urging, Congress passed the 1976 Point Reyes Wilderness Act. The Act designated more than 33,000 acres of the Seashore as “wilderness,” a place intended to be free from commercial activity, where wildlife and natural processes could occur uninterrupted by humans. The 20,000 acres of pastoral lands used for ranching and dairying were excluded from the wilderness designation. Drakes Estero was included in the wilderness designation as “potential” wilderness because Congress determined that, except for the commercial operation, Drakes Estero possessed all the requisite characteristics worthy of protection as wilderness. Congress decided to honor the 1972 purchase agreement with Johnson Oyster Company and allow the commercial lease that terminated on November 30, 2012 to play out.

In the decades since, government and the public continued to support the grand bargain that balanced agriculture interests and wilderness preservation. While the dairy and ranching industry struggled outside the Seashore, the ranches inside the Seashore succeeded, thanks in part to generous government subsidies including low-cost leases. At Drakes Estero, meanwhile, the Johnson’s Oyster Company decided to call it quits in 2005 and sold the remaining seven years of its lease to new proprietors. With full knowledge of the 2012 lease expiration date, local rancher Kevin Lunny purchased the company at a discounted rate and formed the Drakes Bay Oyster Company. Immediately after purchasing the remaining seven-year lease, Lunny convened a team of special interest lobbyists and lawyers who mounted a full-blown campaign to secure a lease extension. This campaign has sought a multi-million dollar entitlement at the expense of the public interest.

Lynn Scarlett, former Deputy Secretary and Chief Operating Officer at the Interior Department under President George W. Bush, supported Salazar’s decision to end the oyster company operations. In an article published earlier this year on The Huffington Post, she eloquently summarized the matter: “This case involved a contract and commitment made to taxpayers decades ago. … The attempts to upend the contract and rewrite the law create uncertainty for private enterprises that have operated inside and next door to national parks for generations – and undermine expectations of taxpayers who foot the bill for creating and now protecting this national seashore.”

She continued: “There are nearly 400 parks within the National Park System. Many of them have concessionaires, private businesses, and even family ranches as permitees. These private business owners count on the Interior Department to keep the terms of its agreements, and taxpayers, who own and fund our national parks, count on these business owners in turn to sustain their agreements. As in the private sector, upholding contractual agreements in the public sector is a fundamental tenet of good government.”

In the time between taking over the lease in 2005 and today, the oyster company has never been in compliance with the California Coastal Act and regulations intended to protect our coastal resource that support a billion-dollar coastal tourism industry. The operation – which is a far cry from “sustainable” – was removed as a Seafood Watch Partner by the Monterey Bay Aquarium more three years ago and has been cited repeatedly and even fined over $61,000 by the State of California.

In February, the California Coastal Commission voted unanimously to issue a Cease and Desist Order against the oyster company for ongoing unpermitted development; violations of harbor seal protection requirements; failure to control significant amounts of its plastic that has polluted the marine environment; failure to pay fines imposed in 2009 for illegal activities; and failure to correct ongoing violations of the California Coastal Act despite repeated notices from the commission.

For its part, the company has found allies in a little-known but well-funded “government accountability” group called Cause of Action and the anti-regulatory Pacific Legal Foundation. Cause of Action, the lead legal counsel for the oyster company, has deep ties to the ultra-conservative Koch brothers and has invested more than $200,000 of pro-bono legal support into the case.

Concerned about the public lands agenda associated with the financial backers and partners of the oyster company and its lawsuit, the non-profit California Common Cause released a report that looked at efforts to privatize America's public lands and raised questions on who is funding these efforts.

The investigation confirmed what we at Environmental Action Committee of West Marin have been saying for years: the company’s efforts, backed by its industry lobbyists and lawyers, were directed to set precedent on protected public lands and waters by opening them up to commercial development. This became reality when the oyster company recently teamed up with Big Oil interests.

Helen Greico at California Common Cause described this oil-oyster team in a recent column: “Oil and water? We know they don't mix. As for oil and oysters, apparently they do. In February, Senator David Vitter (R-LA) introduced the Energy Production and Project Delivery Act of 2013, which would expedite permitting for the Keystone XL pipeline, open the Arctic National Wildlife Refuge for gas and oil development, allow for offshore drilling along the California coast and the rest of the country, and provide the oyster company with a new operating permit even though its lease expired months ago.

“Soon after, as Congress was working on must-pass legislation to avert a government shutdown and present a budget, Senator Vitter filed a legislative amendment (known as a "rider") to the Senate Budget Resolution that would reverse Secretary Salazar's decision and provide the oyster company with a cozy, annually-recurring multi-million dollar entitlement in the form of a new permit. Alhough the oyster company petitioned senators from all around the country to support Senator Vitter's rider, the amendment failed to receive a vote.”

The company also has teamed up with another anti-regulatory elected official, Congressman Doc Hastings (R-WA), and offered a classic industry scare tactic: intimidating the Interior Department by making specious allegations and requesting a document dump. Representative Hastings, the chairman of the House Natural Resources Committee, wrote a letter to Interior parroting allegations by the oyster company and its discredited scientist that Secretary Salazar abused science in his decision. Not satisfied with the Inspector General’s report that determined those allegations were without merit, Representative Hastings also demanded a series of documents from the Inspector General.

The problem with Representative Hastings’ letter is that he unabashedly admits that Salazar’s decision was based, not on environmental impacts, but instead rightly on policy.

Chris Coursey, a columnist at the Santa Rosa Press Democrat, had this to say:

"So why would Rep. Doc Hastings, a Washington Republican who is chairman of the House Natural Resources Committee, demand a document dump from Salazar, saying 'serious questions have been raised about the science used by the National Park Service to justify the closure,' while also acknowledging that he knows Salazar's decision 'was not based on scientific data'?

Well, because that's the way politics works these days. And believe me, the closure of Drakes Bay Oyster Co. is no longer about oysters, or the terms of the lease, or jobs, or science. It's about politics."

Congressman Jared Huffman (D-CA), whose district includes the Seashore, said Rep. Hasting's inquiry "reflected a Republican Party agenda to make public lands 'available to oil and mining interests to exploit.'"

If stripping marine wilderness protection wasn’t enough of an affront, recent court documents reveal the company’s financial reporting has deceived the State of California and the public. Neal Desai of the National Parks Conservation Association described a huge financial discrepancy in documents filed by the company and that identify the State and/or taxpayers as being liable to pick up the tab for more than $600,000 worth of unreported clean-up costs.

Desai wrote: “For years, Californians have expressed outrage over the Company’s repeated violations of regulations that protect our fragile coastline at this national park. While the Company has evaded its responsibility to protect this sensitive marine habitat, its reporting and financial discrepancies have deceived the public and Fish and Game Commission. Taxpayers should be outraged that they may have to foot the bill for cleaning up the significant mess that could be left behind by this unsustainable oyster operation.”

And most recently, the Santa Rosa Press Democrat issued an editorial in strong support of Salazar’s decision to honor the public interest agreement and return Drakes Estero to wilderness.

Now this matter is up to the judicial system to decide. Before the court is the record that contains a contract that expired on its own terms; legislation passed by Congress to protect the ecological heart of the West Coast’s only National Seashore; multiple expert declarations that the oyster company’s operations are negatively impacting the estuary’s natural resources; and the company’s egregious track record of violations to the California Coastal Act. These facts and the clear law and policy supporting them all point to the conclusion that Salazar’s decision to protect Drakes Estero and restore it as marine wilderness was fair and correct. The facts also indicate that the company’s lawsuit to block wilderness protections lacks merit, is not in the public interest, and is not equitable. If we really believe that our national parks are America’s greatest idea, we need to stop this assault on our public trust resources. On the 50th anniversary of the Point Reyes National Seashore, this magnificent national park, and the accomplishment it represents, deserves nothing less.

Amy Trainer
Amy Trainer is Executive Director of Environmental Action Committee of West Marin.

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