Drakes Bay Oyster Company: Petition Filed with Supreme Court Riddled with Mis-information

Environmental Action Committee of West Marin responds to the Pacific Legal Foundation's petition filed with the Supreme Court.

 

4/14/2014

 

Don’t Be Fooled by Drakes Bay Oyster Company’s Supreme Court Petition

By Amy Trainer

The Drakes Bay Oyster Company’s relentless push to overturn the congressional wilderness designation for Drakes Estero got closer to the end of the road today when the company’s army of corporate lawyers filed a petition for review to the U.S. Supreme Court. The millions of advocates for our national parks, wilderness, and coastal protection refuse to let the Koch Brothers-funded Pacific Legal Foundation – the Company’s main proponent - and their public lands exploitation interests destroy Drakes Estero, the ecological heart of the Point Reyes National Seashore.

The Company’s petition is full of false statements of fact and exaggerations. For example, the Company's hyperbole likens restoring Drakes Estero wilderness to blowing up the Hoover Dam. Closing down the Company’s non-native oyster operations in Drakes Estero as long planned will not have an impact on California’s oyster market, as the petition asserts, because the Company only produces 3.5% of the West Coast oysters. Humboldt Bay, the state’s largest oyster growing area produces over 70% of California’s oysters, and is in the process of expanding by 50%. Native oysters were never abundant in Drakes Estero, and the Company’s stubbornly ignoring peer-reviewed science on this issue doesn’t change the facts.

The Company’s petition to the Supreme Court is a last-ditch move full of desperate arguments.  The 9^th Circuit Appeals Court found the company unlikely to show that former Interior Secretary Ken Salazar abused his discretion in letting the 40-year oyster lease expire on its own terms. As readers may recall, the Company’s owner, Kevin Lunny, admitted in his federal court declarations that he was given written notice by the Interior Department in 2005 that after November 2012 Drakes Estero would be transitioned to wilderness. This transition follows the clear direction from Congress in 1976 under the Point Reyes Wilderness Act. Mr. Lunny knew the deal when he signed a contract with the Park Service yet now claims otherwise in his Supreme Court petition.

The Company’s petition misrepresents former Interior Secretary Salazar’s decision to let the oyster lease expire as long planned. Salazar’s Nov. 29^th 2012 decision memorandum laid out the reasons why he relied on the public policy underlying the 1976 congressional wilderness designation for Drakes Estero. The 9^th Circuit Appeals Court correctly noted that a 2009 bill authored by Senator Dianne Feinstein  [Sec. 124] “left him free to consider wilderness values and the competing interests underlying a commercial operation in an area set aside as a natural seashore.” The Company’s petition ignores the clear language of Salazar’s decision memo that indicates the care and thoughtfulness he exercised in weighing these competing values. As Interior Secretary, Salazar was the trustee of America’s public lands and this decision was clearly within his sphere of expertise. To claim Salazar’s decision was “arbitrary and capricious” because the Company disagrees with his discretionary decision shows the arbitrary nature of the Company’s petition.

Further, the Company’s petition misrepresents the strong 9^th Circuit Appeals Court ruling and En Banc Rehearing Denial. The 9^th Circuit rejected the Company’s “wishful thinking” that the Sec. 124 rider was intended to “make it easy” for Salazar to issue the permit.  The 9^th Circuit decision noted that “the Secretary’s incorporation of the policies underlying wilderness legislation, and of Congressional intent as expressed in the House committee report, was a matter of his discretion." The majority opinion found that the dissent’s position was “not supported by the record,” and that the Secretary, “drawing on the agency expertise amassed in the decades since the 1970s, concluded that continued oyster farming was inconsistent with wilderness criteria and the Department’s policies.” 

The inconsistency is readily apparent in the Company’s green-washed “stewardship” of Drakes Estero. The Company conveniently omits any mention of its egregious 8-years-and-counting violations of the California Coastal Act, one of the worst offenders in the Act’s history. Instead of complying with the Coastal Commission’s second enforcement action to reverse environmental damage to the Estero during the Company’s short tenure – a unanimous Cease and Desist Order from February 2013 - the Company instead sued the Commission and has taken no steps toward meaningful compliance. The Company continues to grow invasive Manila clams and foster the spread of a nasty invasive species Didemnum vexillum, known as “marine vomit” which are causing increasing harm to this biologically rich area. Thousands of pieces of the Company’s plastic have polluted beaches all over the National Seashore.

 

The Company’s petition for review continues to push junk science by its loudest advocate, Dr. Corey Goodman who is a neurobiologist with no experience in marine ecosystems whose complaint attacking the analysis of noise from the Company’s operations was rejected by the Office of the Inspector General. The 2012 IG report concluded that, “We found no evidence, documents, DEIS revisions, or witnesses that supported the complainant's allegations."

 

The Company’s false claims denying impacts to harbor seals from its operations are similarly specious. An investigation by the federal Marine Mammal Commission concluded “mariculture activities in the estuary do disturb harbor seals.” The Company and its advocates attacked this report.

 

Then executive director of the U.S. Marine Mammal Commission found that the “majority of analyses” made by the Company’s advocate in attacking the National Park Service’s peer-reviewed research and the Marine Mammal Commission’s report, were based on “fundamental flaws in [Goodman’s] application of the multiple regression model and they invalidate” the results.” This was nothing new, as the Interior Department Solicitor’s March 2011 report noted that the Company's advocate “immediately attached labels of ‘false,’ and ‘misrepresentation’ and ‘misleading’ to every scientific assertion with which [he] disagreed.”

 

The 2012 National Academy of Sciences Report on the Draft EIS for the oyster operation found that the pro-wilderness “Alternative A” [removing the oyster operation] was by far the environmentally preferable alternative based on the best available peer-reviewed science as compared to Alternatives B, C, and D [the “action” alternatives representing varying levels of oyster production]. The Company’s inexorable attacks using questionable science to challenge the conclusions of the Draft and Final Environmental Impact Statements regarding the appropriate management for Drakes Estero fly in the face of the well-supported conclusion that the “environmentally preferable” alternative is to restore Drakes Estero to wilderness.

Point Reyes National Seashore draws 2.5 million visitors a year and is the major economic engine of western Marin County. This popularity of this human haven is not dependent in the least on the Drakes Bay Oyster Company. The Company bizarrely claims that the Interior Secretary's discretionary decision — authorized by one specific law — to let expire on its own terms one permit, for one company, in one area of one National Seashore somehow constitutes a matter of "exceptional importance.” The Supreme Court would serve the American people well by rejecting this specious petition and returning our only West Coast marine wilderness to all of us and future generations to enjoy.

This op-ed will appear in the East Bay Express this week.

Amy Trainer

Executive Director

Environmental Action Committee of West Marin

Box 609 Point Reyes, CA 94956

amy@eacmarin.org

(415) 663-9312 office

(415) 306-6052 cell

Protecting West Marin Since 1971!

www.eacmarin.org

www.savepointreyeswilderness.org

www.pointreyesbirdingfestival.org

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[4/16 comment update: Jane Gyorgy provided a number of extremely lengthy comments to this post. Those interested in reading what her point of view is may find her blog site here. She also provided 2 identical copies of the NOAA article on oysters and the Potomac River. See the 4/16 post for a response to that article.]