Drakes Estero: Public Lands and Entitlements

"The ability to use public land for private profit

is a privilege, not an entitlement."

Drakes Estero National Seashore 

 

In all of the articles written on Drakes Bay Oyster Company's (DBOC) press to continue using Point Reyes National Seashore for their commercial shellfish operation, no better sentence encapsulates DBOC's reasoning behind why a nonconforming commercial operation in Drakes Estero should continue. It brings forward the primary issue faced at the court hearing on January 25: Should a nonconforming commercial operation on public lands, purchased with full and clear knowledge the use had an explicit end date for an explicit reason, be allowed to challenge the terms of that agreement and prevent the creation of the only marine wilderness area on the West Coast of the United States? [see the Wilderness Act here]

 

Arguments about the science behind the Environmental Impact Study provide a convenient smoke screen to hide the fundamental question at hand: Is the Lunny family owned DBOC entitled to continue using areas of Drakes Estero for a commercial shellfish operation at the expense of its diminished value as a wilderness area for all the public to enjoy?

 

it is hereby declared to be the policy of the Congress

 to secure for the American people

of present and future generations

 the benefits of an enduring

 resource of wilderness.

The Wilderness Act

 

This is not about the Lunny family, nor is it about shellfish farming or displaced employees. It is not an attempt remove all public lands from commercial use. At the foundation of this case is whether a nonconforming use by corporations, owned by a family or publicly traded, is entitled to continue on public lands designated by Congress to become wilderness after a specific date. Relying on a legislative rider to extend the agreement will set a precedent for other legislatures to create their own riders to extend agreements for other nonconforming commercial operations in other designated wilderness areas, ad infinitum.

In this case, that the nonconforming commercial operation was to end in November of 2012 was clear in the agreement between DBOC and the National Parks Service, signed in 2005. That Drakes Estero was designated to become wilderness was known for decades. That the commercial shellfish operation was considered "nonconforming" was clear. That the commercial shellfish operation was given a more than reasonable amount of time, 40 years (November 2012), to end their operation was accepted as reasonable by the Johnson family's Johnson Oyster Company (JOC), who chose to cease operations earlier, in 2003.

For DBOC to arrive in 2004, purchase the assets and take over the agreement, and now claim their attorneys said it could be extended is nothing more than bad business and bad legal advice. Lobbying to have Senator Feinstein add a rider giving the Secretary of the Interior discretion - not the requirement - to extend the agreement is only an example of corporate lobbying efforts. DBOC's continuing to place shellfish in the designated wilderness area and now claim they will have to be "destroyed" is nothing more than a reflection of their belief in the entitlement they have to continue profiting from the only nonconforming commercial operation preventing the creation of the only National Seashore wilderness area on the West Coast outside of Alaska. An operation they knew full well was intended to end in November of 2012.

It is time for DBOC to cease operations, remove the structures and nonnative shellfish, and allow the Point Reyes National Seashore to become the wilderness Congress intended 40 years ago, for the benefit of present and future generations of all Americans. To do otherwise strikes at the integrity of the Wilderness Act, clearly why Cause of Action has chosen to become involved.

For further detailed legal analysis of this issue see the following:
1. "Will the Wilderness Act Be Diluted in Drakes Estero?"
2. "Congressionally Designated Potential Wilderness Areas"
3. "Contextualizing Secretary Salazar’s Recent Decision on Oyster Farming at Point Reyes"4. "Passions Run High in Bivalve Battle"