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Monday, February 18, 2013

California Coastal Commission Has Acted Appropriately Against Drakes Bay Oyster Company

(Editors Note: Sometimes a response to an Op-ed piece is better made by commenting directly within the article.)
Background: In the February 16, 2012 issue of the Marine Independent Journal is a "Guest op-ed" by Phyllis Faber, a co-founder of the Marin Agricultural Land Trust and a creator/former commissioner of the California Coastal Commission. It is copied below with comments on her thoughts. Ms. Faber is respected and has devoted most of her life to the preservation of open spaces through conservation easements, and through the California Coastal Commission (CCC), helped control developments on shorelines. That said, Ms. Faber does the CCC and the Wilderness Act a disservice in her well intentioned but misplaced support for the continued operation of the commercial shellfish farm in Drakes Estero.
Ms. Faber
Photo, Marine Independent Journal
California Coastal Commission uses distorted information to condemn oyster farm, 2/16/13, Marin Independent Journal
Comment: Drakes Bay Oyster Company was not condemned by the California Coastal Commission (CCC). It was brought before the commission to address past violations it did not act on 
and new violations since the 2007 agreement. Further, should legal steps to keep DBOC open fail, CCC also needed to ensure restoration would occur.
THE GHOSTS of Don Neubacher, former superintendent of Point Reyes National Seashore, and Peter Douglas, deceased executive director of the California Coastal Commission, were alive and well Feb. 6 at the commission's meeting in Redondo Beach where staff made a 45-minute presentation on the Drakes Bay Oyster Co. designed to horrify commissioners. The commission responded with actions that will almost certainly drive the Lunny family into bankruptcy.
Comment: In the very unlikely case the Lunny family enters into bankruptcy, the blame will  not be on the CCC nor their staff. It will be Mr. Lunny's choice to "bet the farm" on being able to convince the National Park Service a lease he knew would expire in 2012 should be extended. CCC's presentation described factually and calmly how Mr. Lunny was able to put off acting on resolving past violations and how he continued to create new ones. If "spirits" helped to convey that message then so be it. It was conveyed well.
[To see a video of the hearing, copy and past this link: mms://media.cal-span.org/calspan/Video_Files/CCC/CCC_13-02-07/CCC_13-02-07.wmv beginning at 2:09:38]
There is a need for a coastal permit (both sides agree to this) and negotiations have been underway since the Lunnys purchased the farm in 2005. The commission at the outset imposed demands the Lunnys could not agree to. This was followed by three years of delays while the commission waited for the seashore's environmental impact statement (that in the end was so flawed it was never legally completed). Now the commission hastily pursues the matter while the court appeal process is ongoing.
Comment: Mr. Lunny's not being willing to agree to conditions at the outset set him down a path which he is now at the end of , facing the consequences. As was clearly noted in the hearing, CCC rarely gives people more than a few months to resolve permit problems. In this case, over 5 years passed with minimal effort to resolve the problems. In the interim, additional violations were created. In addition CCC acted because as there is currently no federal or state lease, Drakes Bay Oyster Company (DBOC) is acting with virtually no government oversight. In order to ensure violations are resolved action needed to be taken, including creation of a framework for removal of all shellfish gear and for restoration to take place.
The staff report sealed the Lunny's fate. Photos of extensive beach litter dating from the previous owner's time and a photo of a channel off limits during seal pupping times cropped to mislead were presented as truth. Not one commissioner other than the acting chair, Marin Supervisor Steve Kinsey representing the North Central Coast counties, has ever visited the farm. Only two staff members have ever visited it. One, the head of enforcement, came to the buildings and the other came to investigate what was under the oyster racks.
Comment: Mr. Lunny provided more than enough of his own operational problems to dismiss the argument of whose plastic is being found. As was noted, unpermitted development continued to evolve. Is visiting by everyone really necessary when aerial photos and reports clearly show evolving violations and violations from 2007 not being resolved?
Never included in the discussion was the fact that the Lunnys grow more than 40 percent of California's oysters, employ 30 local Hispanic workers and are important members of the agricultural community (third generation Marin ranchers). Never was it mentioned that commission staff had penalized the Lunnys for providing picnic tables for the public (it defined such tables as "development").

Comment: The issue is one of past CCC violations and new CCC violations, not economics. Violations went far beyond picnic tables and stairs, including non-permitted structures, trenches and placement of shellfish in areas not permitted. Saying now "we're going to take care of it" is not the answer. They should have been resolved long ago.
While staff implied oyster boats cause great damage to eel grass, never were the huge increases in eel grass cover during the Lunny years acknowledged. Never mentioned were the studies being conducted by the Lunnys showing how eel grass beds, thriving in oyster-clarified waters, raise the pH of the esteros in increasingly acidic ocean waters. Never was there a mention that oyster beds are being intentionally restored and established all over America to build marine ecosystem resilience against the negative impacts of ocean acidification caused by climate change. Even the Nature Conservancy is working on supporting oyster installations as they are so important for maintaining water quality for juvenile life stages of fish and many invertebrates.
Comment: There is no evidence "oyster-clarified waters" are why eelgrass beds may have increased in the Estero, nor whether in fact they have. It is supposition that eelgrass may raise pH levels. Decaying eelgrass may also decrease pH levels. Most importantly, what DBOC is doing is not restoration, it is aquaculture. Any structure provided is destroyed when shellfish are harvested, and in fact, it is this very harvesting which is threatening the Estero with invasive tunicates as they are broken off and spread throughout the Estero.
Never did the commission recognize that this family of exceptional land stewards had dared to take a chance to rebuild this oyster farm in their own community and build a sustainable business.
Comment:  What is recognized is that business has risk and business is regulated by government. Risk may be minimized but regulations may not be ignored.
Never did the commission or staff consider that the Coastal Act has strong policies supporting mariculture and visitor serving access to the coast and conforms to Marin's own Local Coastal Plan. These policies were not mentioned at last week's meeting by staff or commissioners.
Comment: The overarching issue is the declaration by Congress that Drakes Estero will become a wilderness when the lease for the only commercial operation in those waters ends.
Though never having seen the operation itself, commissioners used language following the staff presentation that included "an ecological nightmare" and harmful to harbor seals (though the National Academy and the inspector general both stated that was not so); one wanted heavy administrative fines added. The executive director stated he had spoken to staff of the Department of Fish and Wildlife and had obtained permission for the Coastal Commission to ignore a letter written by the Fish and Wildlife Commission asking the Coastal Commission to delay this cease and desist order until jurisdictional matters were cleared up.
Comment: Stipulated fines serve a purpose, that being to motivate the offender to act. In this case, the original fine was not paid which brought out discussion of additional fines.
The commission voted 8-0 to remove from the record materials sent by the Lunny lawyer as being "too many and too late," 8-0 to implement the cease and desist order, and 8-0 to require the Lunnys to restore the estuary that has been farmed for oysters for 75 years to a pristine state. The requirement to remove all the racks that the Johnsons built, remove all clams from the estuary floor and remove an invasive tunicate that has invaded the whole coast of California is neither physically nor biologically possible and would take years and many millions of dollars if it were. Where was acting Commission Chair Kinsey in all these votes?
Comment: "Record dumps" of irrellavent information by Mr. Lunny's attorney at the last hour, after the date it was to have been provided, is not the CCC's problem. It is simply poor legal representation and a waste of time and money. Growing non-native clams where they should not be should be stopped. Tunicates are spread throughout the Estero by harvesting and no plan has been submitted on how to prevent that from  happening. Racks which DBOC purchased and used to profit from are the responsibility of DBOC.
The Coastal Commission accepted as true all the distorted information provided by staff, asked no questions and voted accordingly. Bureaucracy and the ghosts of Neubacher and Douglas, both reckless with science and facts, won the day.
Comment: No credible evidence was provided to question.
And what about the 1972 Proposition 20 dream for good coastal management to preserve California's coast and its rich resources? A dream submerged into bureaucracy and lost with the ebbing tide.
Comment: What about the Wilderness Act? Should it be submerged in a sea of emotion and pity for someone who chose to work outside of the regulations we all have to deal with and who gambled on lobbyists convincing the Secretary of the Interior to extend the lease, but lost? No. It is time for DBOC to resolve the violations, clear out, and clean up its operation.

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