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Thursday, June 13, 2013

Drakes Estero Wilderness: A Contract is not a Scientific Study

A Contract is Not Made of Straw
The Point Reyes Light newspaper, owned by Marin Media Institute which Dr. Corey Goodman co-founded, has published another Op-Ed piece which he authored. In that piece he attempts, once again, to breath life into his straw man  concerns over "perfect science" and claims Representative Huffman's reasons for not supporting a poorly written resolution passed by the Sonoma City Council are "mistakes." In Dr. Goodman's attempt to bait Representative Huffman into engaging him over something which is a side show he has created and tries to breath life into over and over, he wades further into the swamp where integrity is easily lost.
At issue with the Drakes Bay Oyster Company is not whether the science is perfect or not. It is a black and white contract which Drakes Bay Oyster Company entered into. They believed they could overcome the Wilderness Act and continue their commercial operation in Drakes Estero, thereby preventing the completion of the only shoreline wilderness on the West Coast. It was a false belief and a gamble which they lost. It was a contract they signed and need to honor.
Dr. Goodman, as Chairman of Labrys Biologics, Second Genome, Oligasis, Ossianix, Limerick BioPharma, Executive Chairman of Solstice Biologics, and Partner in VenBio, along with his past experience knows anyone's "science" can be easily pulled apart. No doubt many of his studies did not stand up to the scrutiny of peer review. You do the best with what you have. 
But in his various roles of the companies listed, Dr. Goodman also knows the value of a contract. After it is written and agreed to, signed and dated, it is not something which is as gooey as a conclusion based on imprecise data. It is sacrosanct and is one of the primary foundations for successful businesses, such as those Dr. Goodman has started and which he seeks capital for.
Dr. Goodman no doubt believes the conclusions drawn should be questioned. What nobody has justification in believing is that an agreement created 40 years ago is something which should simply be cast aside. It is time for Drakes Bay Oyster Company to realize the steps taken are creating a template for the dismantling of the Wilderness Act. As Dr. Goodman knows from past business failures, sometimes a business needs to close so you can move on to more successful things.


  1. [Submitted by Drakes Bay Oyster Company's attorney Peter Prows, with Briscoe, Ivester and Bazel]

    Indeed a deal is a deal. When a contract (like this one) has a renewal clause, it means it can be renewed. When the Sierra Club and all the citizens groups say a farm (like this one) can stay in perpetuity, we assume they mean what they say. And when the President says that science will no longer take back seat to ideology, the American people take him at his word.

  2. [Submitted by Gordon Bennett with Save our Seashore, in 2 parts]

    Part 1:
    Mr. Prows, the shellfish industry’s attorney, misquotes and misrepresents the NPS “oyster contract” with Drakes Bay Oyster Company when he claims, “Indeed a deal is a deal. When a contract (like this one) has a renewal clause, it means it can be renewed.” Mr. Prows’ argument has three strikes against it:

    Strike One: Those of us who have ever been tenants have a common-sense understanding that a lease that may be issued at the discretion of the landlord is not an “option to renew” required to be issued at the request of the tenant. The words “renew” and “renewal” exist only in Mr. Prows’ imagination. The contract does not contain either word, nor does the contract contain an “option to renew” or a “renewal clause.” Instead, the contract simply states that a “permit may be issued.” Thus the authority to issue (or decline) a new permit is wholly at the discretion of the National Park Service, not the oyster company. That NPS discretion is made even clearer by the opening clause that describes the oyster contract as “a terminable right.” A “right” that can be terminated by NPS has no “right” to be renewed by the oyster company. Thus by the terms of the oyster contract and contrary to Mr. Prows’ imagination, NPS has the discretion to issue (or decline) a permit for continued oyster operations.

    Strike Two: The oyster contract referenced by Mr. Prows covers only the 5+ acres land occupied by the processing facility and states that any permit for continued operations “will run currently with and shall terminate upon the expiration of the state water bottom [lease] allotments.” However, those leases have indeed expired, as made clear by the 1/25/13 email from the California Department of Justice to the Fish and Game Commission: “The leases no longer are valid and cannot be relied upon by the Company as authority to operate their aquaculture endeavor in the Estero.” Further the Fish and Game Commission has repeatedly declined to renew the expired leases because it lacks the authority, as made clear by the 5/15/07 Fish and Game General Counsel’s letter to Point Reyes National Seashore: “The mariculture operation in Drakes Estero is properly within the primary management authority of the PRNS, not the Department.” Any NPS permit for continued oyster operations on NPS land cannot logically run concurrently with terminated state water bottom leases that cannot be renewed. Thus by the terms of the expired “state water bottom leases” and contrary to Mr. Prows’ imagination, NPS cannot issue a permit for continued oyster operations on NPS land.

  3. [Part 2 of Gordon Bennett's response to Mr. Prows]

    Part 2:
    Strike Three: The oyster contract referenced by Mr. Prows states: “Any permit for continued use will be issued in accordance with National Park Service regulations in effect the reservation expires.” However, those NPS regulations have indeed changed after the 1972 oyster contract was signed and they eliminated NPS authority to issue any permit for continued commercial use of the Estero, as made clear by the 2/6/04 letter from the NPS Attorney: “The Park Service is mandated by…the [1976] Point Reyes Wilderness Act and its Management Policies to convert potential wilderness, i.e., [Drakes] Estero, to wilderness status as soon as the non-conforming use [the oyster operation] can be eliminated.” Any NPS permit for continued oyster operations on NPS land cannot logically run concurrently with related oyster operations on NPS waters that the intervening Wilderness Act prohibits NPS from continuing. Thus by the terms of the Wilderness Act and contrary to Mr. Prows’ imagination, NPS cannot issue a permit for continued oyster operations on either NPS land or NPS water.

    After three strikes, Mr. Prows should retire to the dugout. However, it seems that Mr. Prows’ imagination is working overtime when he claims that “the Sierra Club…say(s) a farm (like this one) can stay in perpetuity…” This is a total fabrication, as made clear by the 8/16/11 letter from the Sierra Club’s Deputy Director to Secretary Salazar: “The Sierra Club has always supported Drakes Estero becoming a fully protected marine wilderness in 2012, when the non-renewable 40 year operating rights expire for the existing oyster company. For nearly 40 years, the Sierra Club…has respected the oyster company’s right to continue operating in this sensitive estuary, but we have always believed that the highest and best purpose for Drakes Estero is a fully protected wilderness, free from the oyster operations.”

    After three strikes and a blatant fabrication on the way to the dugout, Mr. Prows should be thrown out of the game and fined.

    Gordon Bennett, President, Save Our Seashore

  4. [Submitted by Peter Prows]
    The first two points raised by Mr. Bennett are being disputed in the courts.

    As for the third point, here's what the Sierra Club's Rob Rutemoeller (Chairman, San Francisco Bay Chapter) and Sonya Thompson (Sierra Club Point Reyes) wrote to Howard Chapman of the National Park Service on May 30, 1973:

    "[Drakes Estero] can be put under the Wilderness Act even while the oyster culture is continued---it will be a prior existing, non-conforming use"

    The Sierra Club is entitled to change its mind in 2011, but Mr. Bennett can't change the historical facts.

  5. [Response submitted by Gordon Bennett]
    Mr. Prows formerly claimed, "When the Sierra Club...say[s] a farm (like this one) can stay in perpetuity, we assume they mean what they say." But when Mr. Prows' former claim was exposed as false by a 2011 letter from the Club, he now has a new claim about 1973 letter from the Club. But his new claim is as fabricated as his former claim.

    The Sierra Club's 1973 letter quoted by Mr. Prows actually refers to respecting the pre-existing "oyster contract" only until its term expired (in 2012, not "in perpetuity"). The word "perpetuity" exists only in Mr. Prows imagination, not in the Sierra Club comment. The Club's anticipated expiration of the oyster contract would have been more clear if Mr. Prows had not omitted from his quote the very next sentence in that letter: "The Reed memo previously cited seems to be speaking to such uses as this."

    That referenced "Reed Memo" (http://wilderness.nps.gov/document/I-8.pdf) states: Lands... which have been excluded from previous wilderness recommendations because of conflicting private uses or interests therein, may now be recommended as Wilderness Reserves when such lands "within in a determinable time qualify and be available Federal land" ..."a special provision should be included in the legislative proposal giving the Secretary of the Interior the authority to designate such lands as wilderness at such time he determines it qualifies." Normally, this would be a time subsequent to the elimination of the private uses and necessary restoration work ...

    Thus the Sierra Club 1973 reference to the Reed Memo and its language of "determinable time" and "elimination of private uses" (all carefully omitted by Mr. Prows) makes clear that the Sierra Club in 1973 (and in 2011) was anticipating the expiration of the oyster contract (in 2012, not "in perpetuity"). The Sierra Club did not "change its mind." Instead, Mr Prows changed his fabrication.

    Gordon Bennett, President, Save Our Seashore