Our mission is to protect the habitat of Puget Sound tidelands from the underregulated expansion of new and intensive shellfish aquaculture methods. These methods were never anticipated when the Shoreline Management Act was passed. They are transforming the natural tideland ecosystems in Puget Sound and are resulting in a fractured shoreline habitat. In South Puget Sound much of this has been done with few if any meaningful shoreline permits, limited public input, and with minimal peer-reviewed science. It is exactly what the Shoreline Management Act was intended to prevent.

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Wednesday, November 20, 2013

9th Circuit Court of Appeals Asks DOI/NPS to Respond to Drakes Bay Oyster Company's En Banc Hearing Petition

The 9th Circuit Court of Appeals has asked the United States government through the Department of the Interior (DOI) and National Park Service (NPS) whether the denial of an appeal by Drakes Bay Oyster Company (DBOC) for an injunction should be reheard en banc. DBOC's attorneys filed a petition for a rehearing en banc in October. The DOI/NPS have until December 2 to respond.

Intentions of some don't change a clearly written law
At the crux of the issue is whether Congress "intended" to "force" the Secretary of the Interior to issue a special use permit to Drakes Bay Oyster Company or if they intended to simply give the Secretary the discretion to issue a permit, or not issue a permit. Two federal courts have ruled that it is clear that when Congress changed the language from "shall issue" to "may issue" its intention was plainly memorialized. The Secretary was not required to issue a new permit and Congress gave the Secretary absolutely no direction about how to make this discretionary decision. As trustee of America's public lands, if the Secretary felt the benefits to all Americans which flow from the Wilderness Act were more important than a single family's continued commercial operation in a national park wilderness area then he could say no or let the permit expire on its own terms.

Wilderness Act or a commercial operation
Then Interior Secretary Salazar determined that the public policies underlying the 1976 Point Reyes Wilderness Act, which designated Drakes Estero as a wilderness area, and the 1964 Wilderness Act were appropriate to guide his decision. As such, Salazar concluded that the promise of wilderness in Drakes Estero was the appropriate future of this ecological rich estuary. He also concluded that the private commercial operation, which prohibited full wilderness protections, was slated to terminate for 40 years on November 30, 2012, and which in its entirety spans hundreds of acres within the Phillip Burton Wilderness, should end. Pressure-treated wood racks being used in the marine environment to grow non-native oysters would be slated to be removed, allowing the area to revert to wilderness for the nation to enjoy. It is the equivalent of allowing a wilderness area which at one time had been logged to revert to forestland and wilderness.

The Public Trust and leases contingent on ...
DBOC advocates argue that California, in retaining the Constitutional "right to fish" intended for the private commercial aquaculture operations to continue. However, all relevant state agencies have concluded that the public's "right to fish" pertains to public trust resources like salmon or rockfish and not to privately cultivated aquaculture. Otherwise, the public could buy a fishing license and go harvest their own oysters in Drakes Estero! Additionally, the Department of Fish & Wildlife's Office of Legal Counsel concluded in 2007 that primary management authority over Drakes Estero lies with the National Park Service, not the State. In 2004, a clause was added to the state's lease containing the contingency that it was only good as long as "a concurrent federal Reservation of Use and Occupancy for fee land in the Point Reyes National Seashore." When Secretary Salazar declined to issue a new permit this necessary federal authority requirement went away. This all clearly points to what California's intention was - that when the upland federal Reservation of Use and Occupancy ended so too would the state lease, allowing reversion to wilderness. When then Secretary Salazar chose not to issue a new permit after the RUO ended so ended the lease from California.

Economics of thousands of tideland acres leased but not used
Others feel removal of Drakes Bay Oyster Company's would have severe economic impacts on the state of California's shellfish industry. There's no merit to these claims. California is part of the West Coast shellfish market, and because it imports so many oysters and clams from Washington, it cannot be viewed in a vacuum. Restoring the marine wilderness area at Drakes Estero is good public policy. The supply from DBOC will be more than covered by the significant oyster-production expansion occurring in Humboldt Bay, California's largest oyster producer.

Drakes Estero is not Chesapeake Bay
Finally, concerns expressed over environmental issues from removing the non-native oysters are unfounded. Drakes Estero is not San Francisco Bay nor is it Chesapeake Bay. Drakes Estero experiences two full tidal cycles per day which keeps the waters clean. More importantly, figures of how much water is "cleared" or "filtered" mean little when the oysters reaching any meaningful size are removed, and along with them any benefit they may provide. What matters to the health of bodies of water is controlling upland sources of pollution. When that is controlled then healthy shellfish may be grown. It does not go the other way.

Drakes Estero is our only opportunity for a marine wilderness on the West Coast. American taxpayers bought and paid for the land upon which Drakes Bay Oyster Company continues to operate - at considerable profit - without paying for any rent for almost one year. The DOI/NPS should emphatically tell the 9th Circuit Court of Appeals that the issues have been resolved, to look beyond the feckless allegations, and return Drakes Estero to all Americans.

[Update 11/21: The date on which the contingency clause was added to the state's lease was 2004, not 2009.]

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