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 and with limited public input. It is exactly what the Shoreline Management Act was intended to prevent.

Get involved and contact your elected officials to let them you do not support aquaculture's industrial transformation of Puget Sound's tidelands.

Governor Inslee:

Friday, September 27, 2013

Drakes Bay Oyster Company: NPS Commerce Policies Do Not Apply to Wilderness Areas

Commerce Policies on National Parks
Do Not Apply to Wilderness Areas

On 9/27, Corey Goodman's The Point Reyes Light newspaper published a piece authored by the paper's co-owner, Mark Dowie, titled "Commerce is a central purpose in parks." In Mr Dowie's piece he writes on "...business operations in America's 388 national parks, many of them chains with multiple outlets scattered about park lands." He notes "...many produce carbon footprints far larger than that of an oyster farm."

A National Park is not Wilderness (see here for a brief article)
Mr Dowie confuses national parks with lands set aside by the Wilderness Act. Further, he misses the spatial and temporal impact which Drakes Bay Oyster Company has on Drakes Estero, now part of the Phillip Burton Wilderness, created in 1976. DBOC is not a concession stand selling "souvenir teddy bears" in a national park. Its activities are impacting over 150 acres within a wilderness area, protected by the Wilderness Act, for everyone to experience. Not one to profit from.

Part of the Phillip Burton Wilderness 
impacted spatially by DBOC.
Structures of racks and bags.
Would this even be allowed 
under NPS commerce policies?
 DBOC Operation

A Compelling Story, But it Misses The Point
In Mr Dowie's piece he creates a compelling story about national parks having "...cruise lines, hotels, bath houses, marinas, outfitters, parking facilities, service stations and - perhaps the most ecologically destructive of them all - golf courses." Alarmingly, he notes that due to human activities, "Grizzly bear deaths from vehicle collisions in Yellowstone National Park alone have doubled since 2000."*
*While Mr Dowie fails to point to what this number is, information on Grizzly deaths in the Greater Yellowstone Ecosystem is available from the USGS (this area is larger than the park).  In 2010, out of 50 deaths, 2 were "road kill." In 2011, of 44 deaths, 2 were "road kill." In 2012, of 56 deaths, 2 were related to vehicle strikes. To date, in 2013, out of 21 deaths, 2 were related to vehicles. How many cows or Tule Elk have been killed by cars on Point Reyes is unknown, and how many more may be killed by cars if DBOC ceases operation is anyone's guess.  

 Wilderness Areas Are Unique
Mr Dowie correctly writes, "It has become quite difficult for humans or wildlife to find true peace or a semblance of wilderness in an American national park." Mr Dowie, however, incorrectly links policy statements on commerce which apply to national parks to how lands set aside under the Wilderness Act are to be managed. Mr Dowie's attempt to reframe the picture to one of Drakes Estero being only part a National Park is regrettable.

Thursday, September 26, 2013

Johanna Wald w/Natural Resource Defense Council On Drakes Estero

Johanna Wald with the Natural Resource Defense Council narrates a short video clip on the significance of the 9th Circuit Court of Appeals decision, allowing for the completion of the first shoreline wilderness area on the west coast of the contiguous United States. NRDC, along with others across the United States have helped to ensure that this wilderness area will exist for generations to come, for everyone to enjoy. [click here for video]

Drakes Estero, Point Reyes, CA
A wilderness for all to enjoy.

State Noxious Weed Board To Consider Limiting Japanese Eelgrass Control to Commercial Shellfish Beds

What: State Weed Board Meeting to Limit Control of Japanese Eelgrass to Commercial Shellfish Beds
When: November 5, 1 to 3
Where: 285 Technology Center Way, Wenatchee

The State Weed Board is holding a public hearing prior to voting on proposed changes to the noxious weed list, including a proposal to reinstate 2012 language to the Japanese eelgrass, Zostera japonica, which would change its recognition from a Class C noxious weed to a Class C noxious weed on commercially managed shellfish beds only. The Board is soliciting public comment. You can attend the hearing on Tuesday, November 5 at the Confluence Technology Center (285 Technology Center Way) in Wenatchee from 1 – 3 pm, where you can provide written or oral (up to 3 minutes) testimony. Or you can submit written testimony in advance of the hearing via email (ahalpern@agr.wa.gov) or mail (WSNWCB, PO Box 42560, Olympia, WA 98504-2560) through close of business November 4
Note: A request to remove Japanese Eelgrass from the noxious weed list was denied.


September 26, 2013
Contact Alison Halpern, Executive Secretary 360 902-2053, ahalpern@agr.wa.gov for more information or photos of proposed noxious weeds

For immediate release

State Noxious Weed Control Board sets public hearing to consider changes to the 2014 noxious weed list
OLYMPIA – The Washington State Noxious Weed Control Board (WSNWCB) will hold a public hearing on Nov. 5 in Wenatchee to take comments on proposed rule-making changes to the 2014 state noxious weed list.  

When: 1 p.m. to 3 p.m. on Tuesday, Nov. 5
Where: The Confluence Technology Center, 285 Technology Center Way, Wenatchee, WA 98801. 

How to comment:

·         Mail written testimony to: WSNWCB; PO Box 42560; Olympia, WA 98504-2560.

·         Send comments by email to noxiousweeds@agr.wa.gov.

·         Attend the public hearing to provide written or verbal testimony in person.  

Written testimony should be submitted by 5 p.m. Monday, Nov. 4, 2013. Oral testimony at the hearing will be limited to three minutes per person, with an additional opportunity to speak, if time allows. 
The WSNWCB will vote on the proposed rule changes during its regular meeting, at 9 a.m. , Wednesday. Nov. 6, in the same location as the hearing. This meeting is also open to the public.  

The WSNWCB has several proposed changes for 2014, including four additions to the noxious weed list. These include:

o   Lesser celandine (Ficaria verna, also known as Ranunculus ficaria) a small, low-growing plant of moist areas. Emerging early in the growing season, often before native ephemerals, it can form dense patches that outcompete native plants. Its vegetative reproduction through bulbets and tubers makes it very difficult to control once established. Lesser celandine has been proposed as a Class B noxious weed, which would be designated for control in Snohomish, Skamania, Stevens, and Pend Oreille counties.  

o   Giant reed (Arundo donax) is a bamboo-like grass considered highly invasive in many southern states, where it can rapidly colonize and form massive, monotypic stands in riparian (river bank) habitat. However, there is a great deal of interest in this fast-growing plant as a biofuel, and as a sustainable substitute for tree-based paper, flooring and other construction building material, and as reeds for wind instruments. The WSNWCB is considering listing it as a Class B noxious weed, to be designated for control in areas susceptible to invasion such as rivers, wetlands, and open irrigation waterways. The intent is to support the careful and responsible cultivation of this potential crop while being prepared to control it should it escape into these aquatic systems.  

o   The WSNWCB is also considering grouping all nonnative cattails (Typha species) and their hybrids into one Class C listing. These nonnative wetland plants are considered invasive because they can dominate marshes more aggressively and tolerate deeper water and more flooding than our native cattail (Typha latifolia). Because the nonnative cattails and their hybrids look similar to each other, and our native cattail is more easily distinguishable, it is simpler to group the nonnatives together as one noxious weed listing. As a Class C noxious weed, control would not be required by the WSNWCB, though county weed boards may require landowners to control it where it is becoming problematic. 

o   Russian olive (Elaeagnus angustifolia) is common in Eastern Washington and is regarded by many as a nasty tree with thorny branches. Sometimes sold as an ornamental and for use as wind breaks, Russian olive is quite invasive, particularly in riparian habitats, and literally a real pain to work around and/or control. It has been proposed as a Class C noxious weed for 2014, which means that control would not be required by the WSNWCB, though county weed boards may require landowners to control it where it is becoming problematic. 

o   Japanese eelgrass (Zostera japonica) has returned for a third year of deliberation, as it still poses a complicated dilemma in Washington. The WSNWCB had listed Japanese eelgrass as a Class C noxious weed on commercially managed shellfish beds only in 2012 and then adopted a proposal to remove the modification and list it as a Class C noxious weed in 2013. For 2014, the WSNWCB is considering a proposal to reinstate the original listing language of 2012. 

o   The WSNWCB will also be considering the reclassification of velvetleaf from a Class A noxious weed to a Class B noxious weed and buffalobur from a Class A to a Class C noxious weed, along with several Class B designation changes.  

o   Finally, the board is proposing to simplify yellow-flowered hawkweed listings. Nonnative hawkweed (Hieracium) species can be hard to identify down to species and tell apart, so the board is considering taking its 11 hawkweed noxious weed listings and grouping them into two easier-to-tell-apart subgenus groups.  

Visit www.nwcb.wa.gov/whatsNew.html for more information about the listing proposals and how to testify at the hearing. 

Tuesday, September 24, 2013

Pierce County Gives Up On Protection of Eelgrass - Do Politics Matter?

Pierce County attorney Jill Guernsey has agreed to dropping protection of Japanese eelgrass as a condition of the Detienne intertidal/subtidal geoduck farm permit. In spite of the county's Environmental Biologist writing that both Japanese and Native eelgrass should be protected, the desire by Detienne and his legal firm, Plauche and Carr, to override the protection was agreed to by the county's attorney, Jill Guernsey. In the April 2 letter to attorneys for Mr. Detienne, the county's biologist wrote:
We do not support qualifying "eelgrass" by adding the word "native".
For two principal reasons, we oppose this. First, the two species can be quite similar in appearance and we want to avoid unintended harm to Z. marina through mis-identification as Z. japonica. Second, County code does not distinguish between the two species. Both provide similar habitat functions, both serve as a substrate for herring, and both merit protection.
We appreciate the concern that failing to distinguish between the two species places the applicant in a position contrary to State law. However, this is not really a concern as a Class C designation: 1) does not obligate control efforts and 2) allows local jurisdictions to regulate this species as they see fit under. At this point, Pierce County chooses to protect both species.
I also think it is important that we put some context into the listing of japonica as a noxious weed to distinguish it from the image that comes to mind by the phrase "..highly destructive, competitive, or difficult to control". Z. japonica has been present in Puget Sound for decades, having been introduced in the ‘30s (a decade or two after the Pacific oyster was introduced and about the same time as Manila clams, two other "invasive" species). It is also important to note that the initial listing of japonica as a Class-C was very limited, being specific to commercially managed shellfish beds in Pacific County. The expansion of its listing into greater Puget Sound took place with the opposition (or at least with the expressed concern) of quite a few individuals and resource agencies including the State Departments of Natural Resources and Fish and Wildlife.
Does Politics Matter?
Whether political donations from Detienne's law firm Plauche and Carr to Ms. Guernsey's campaign for the Mayor of Gig Harbor should have caused her to recuse herself from this process is something the county and others might want to consider. They may also want to consider whether Pierce County employee donations to Ms. Guernsey's campaign matter in these decisions.

Donation Report from the Public Disclosure Commission
for Ms. Guernsey's Gig Harbor Mayor Campaign

Monday, September 23, 2013

New Information Website on Drakes Bay Oyster Company


A new informational web site has been created about Drakes Bay Oyster Company which presents another view and counters many of the false or misleading claims being presented as "fact" by those who wish this commercial operation to continue within a wilderness area. Included are comments on legislative history, economic claims, and why some view this as setting a precedent leading to the commercial exploitation of wilderness. Three are copied below. Many other comments are on the site. It is a strong counter to the false narrative created by Drakes Bay Oyster Company's lobbyists and public relations firms.

1. FALSE LEGISLATIVE HISTORY CLAIMS: Those involved with the 1976 Wilderness Act saw the oyster farm as compatible with wilderness and never intended that it be shut at the end of its lease.

CLAIM: [L]egislators…say they never intended to get rid of the oyster farm. "…there was no contention…," former Congressman John Burton said. .
“Battle over local oyster farms heats up,” ABC 7, August 27, 2011, http://abclocal.go.com/kgo/story?section=news/assignment_7&id=8325489
FACT: The former congressman fails to recall that two of the most influential organizations involved in the legislation (The Sierra Club and People for a Golden Gate National Recreation Area) both submitted comments to the Environmental Impact Statement that explicitly link the oyster farm with the Reed Memo (http://wilderness.nps.gov/document/I-8.pdf). That Memo’s references to "determinable time" and "elimination of private uses" make clear these organizations proposed that when the oyster lease expired, the Estero would become Wilderness.   Further a 7/14/09 Marin Independent Journal article notes Burton said he doesn't remember exactly why the oyster farm had a shorter lease. The shorter lease, he said, meant the oyster farm could continue, but not forever.” This is precisely what occurred, with the oyster company operations continuing for its full 40 year lease while wilderness protection was on hold pending the expiration of the lease.

CLAIM: The NPS supported the continuation of oyster operations beyond its 2012 lease expiration
FACT: At a hearing on wilderness designations in 1976, Gary Everhardt, Director of the NPS, explained that the NPS’ wilderness recommendations contained areas termed “potential wilderness” because they involve “lands [that] are presently unqualified but will within a determinable time qualify [for full wilderness designation], [and] a special provision is included in the legislative proposal giving the Secretary of the Interior the authority to designate the land as wilderness when he determines it qualifies.” (emphasis added)
CLAIM: Sierra Club...1973: "[the Estero] can be put under the Wilderness Act even while the oyster culture is continued---it will be a prior existing, non-conforming use"
Peter Prows (Company attorney)  6/16/13 "A Contract is not a Scie...":
FACT: The false claim that in 1973 the Sierra Club supported the oyster farm as compatible with wilderness in perpetuity is based on a willful omission. The next sentence in the Club’s letter mentions the oyster farm in reference to the Reed Memo (http://wilderness.nps.gov/document/I-8.pdf), which makes clear that the Sierra Club proposed that when the oyster lease expired, the Estero would become Wilderness.

2. FALSE ECONOMIC CLAIMS: Closing the Company would have immediate negative impacts on the economy, sustainable agriculture and food industry.

CLAIM: Almost 40% of the oysters grown in California…are grown in Drakes Estero….[ They] play an important role in the local, regional and statewide economy…Importing shellfish to replace… will…further worsen the US trade balance.
Amici Curiae Brief of Alice Waters, et al, March 14, 2013 http://oysterzone.files.wordpress.com/2013/03/amicus-drakes-bay-oyster-v-salazar-final.pdf
FACT: These production claims are false. According to industry data, the Company produces only 8% to 13% of the State’s oysters and less than 2% of the West Coast’s oysters. Humboldt Bay already produces 70% of the State’s oysters and operations there are expected to increase significantly in 2014, resulting in a net increase in California’s oyster supply even with the closing of Drakes Bay Oyster Company. The Company’s grossly exaggerated contribution to the local economy is dwarfed by Point Reyes National Seashore, which welcomes more than two million visitors every year who generate almost $85 million in benefits to local economies and support nearly 1,000 jobs in surrounding communities, and local businesses such as Fireman’s Fund and AutoDesk. In 2012, the Company was shut for six weeks due to pathogens, and from 2000-2005 few oysters were produced in Drakes Estero, yet oysters were easily supplied by the region’s largest producers in Washington State. The trade imbalance is in canned oysters, which the Company does not produce.
CLAIM: The Drakes Bay Oyster Farm epitomizes the sustainable farming we need in these times of growing food insecurity and global environmental crisis.

Alliance for Local Sustainable Agriculture, www.alsamarin.org/dbocletters.htm
FACT: The Company does not grow a native species for local consumption and cannot produce oyster larvae itself. Instead it imports larvae of non-native species from out of state and then raises them to marketable size in Drakes Estero. Nor are oysters an important source of nutrition for Americans, rather they are an expensive luxury.

3. Setting Dangerous Precedents for Exploiting Public Lands

East Bay Express columnist Robert Gammon wrote:
Many environmentalists… warn that allowing the oyster farm to remain open — and thus delaying the creation of the first marine wilderness on the West Coast — could set a dangerous precedent. And during the past few weeks more evidence has emerged that environmentalists have good reason to be concerned, as Republican lawmakers increasingly view the oyster farm as a poster child for the rights of corporations operating on public land.
East Bay Express, March 27, 2013

Ultra-Conservative State Lawmakers in seek to open up wilderness to mining and drilling
In its effort to overturn the protection of Drakes Estero marine wilderness, the Drakes Bay Oyster Company has partnered with Koch-funded lawmakers and organizations that have long-waged anti-environmental campaigns. California Common Cause’s report, From Point Reyes to the Grand Canyon, notes that fights similar to Drakes Bay in California are happening in several western states. The
conservative American Legislative Exchange Council (ALEC) and William Koch (brother of Charles and David Koch) are working with state legislators throughout the west to open up public lands by explicitly challenging federal control and which they claim has “put too much land off-limits to commercial activities, such as energy development.”

In Arizona, Rep. Jeff Flake (R-AZ) voiced support for mining the Grand Canyon. Flake received $12,500 from Koch Industries in 2008 according to the Center for Responsive Politics.
Some members of Congress have attempted to intercede on behalf of private interests in the Grand Canyon dispute. In last fall’s election campaign, Rep. Jeff Flake, R-AZ, voiced his support for mining the Grand Canyon; Flake has been supported by Koch Industries and earlier attempted to include language in the national parks’ annual funding bill to oppose the Grand Canyon mining ban.
California Common Cause, January 24, 2013

In Utah, The Common Cause Report notes:
The Republican governor of Utah signed a bill that demands “roughly 30 million acres of public land in Utah” be taken out of public ownership and handed over to the state by 2015 ”or face a state lawsuit challenging its continued control of that property.”The Utah bill sponsor, ALEC member and state Rep. Ken Ivory (R), told Fox News that public land is “worth trillions of dollars in oil and mineral resources.”
California Common Cause, January 24, 2013

In Colorado,
The New York Times has reported that William Koch, who owns coal and gas companies, is embroiled in a bitter debate about public access to public lands in Colorado. He wants Congress to authorize him to trade two parcels of land he owns, including one inside the boundaries of Dinosaur National Monument, in exchange for 1,690 acres of public land in Colorado popular with hunters and hikers. He plans to close off the land to the public to ensure visitors cannot access the Old West-style town he’s building nearby.
California Common Cause, January 24, 2013

Ultra-Conservative Lawmakers in Congress seek to open wilderness to oil exploration.

In January 2012, Sen. David Vitter (R-La) co-wrote a letter to President Obama urging him to lift
restrictions on the development of oil and gas on federal lands including wilderness areas:

Wilderness areas…which are rich in resources, prevent the responsible development of natural resources.
Office of Sen. David Vitter, January 25, 2012

In 2011, Vitter introduced a bill promoting oil drilling that would strip reimbursement of legal fees to environmental groups who successfully sue to protect federal lands:

Prohibits the award or federal payment of legal fees to an environmental nongovernmental organization in connection with any action…preventing, terminating, or reducing access to production of energy, mineral resources, water by agricultural producers, a resource by commercial or recreational fishermen, or grazing or timber production on federal land.
S. 706 (112th): 3-D, Domestic Jobs, Domestic Energy, and Deficit Reduction Act of 2011, http://www.gpo.gov/fdsys/search/pagedetails.action?packageId=BILLS-112s706pcs

The Ultra-Conservative Pacific Legal Foundation, which is assisting the Oyster Company, has historic ties to the oil, mining and waste industries.
The Pacific Legal Foundation has a long history of undermining protections of wilderness:
Oil and tobacco corporations, chamber of commerce groups, and rightwing billionaires such as Joseph Coors (a Colorado beer baron), Richard Mellon Scaife (a Pittsburgh heir to the Mellon banking, oil and aluminum empire), and John Simon Fluor (a California mining, nuclear and oil baron) poured millions of dollars into launching Pacific Legal Foundation and similar nonprofit lawfirms across the country.
High Country News, December 10, 2007

In 1981, the Pacific Legal Foundation sued then-Interior Secretary James Watt for not
allowing oil and mineral exploration in the Bob Marshall Wilderness area.
Headline: Wilderness System Is Under Siege By Oil, Gas, Mineral and Timber Interests[In 1981], the House Interior and Insular Affairs Committee, chaired by Morris K. Udall, D-Ariz., withdrew the entire 1.5-million acre Bob Marshall Wilderness Area in Montana from possible mineral leasing for three years…. Some 340 lease applications had been filed covering most of the wilderness…. Although [then Reagan-appointed Interior Secretary James G.] Watt complied, he wrote Udall saying he thought the withdrawal was unconstitutional. A few days later, Watt's old employer, the Mountain States Legal Foundation, joined the Pacific Legal Foundation, to sue Watt in the U.S. District Court for the District of Montana to keep Bob Marshall open to mineral leasing.
The National Journal, November 21, 1981
In 1986, the Pacific Legal Foundation represented miners who were mining in Denali National Park, fighting a temporary ban on mining in three Alaska national parks, placed by the 9th U.S. Circuit Court of Appeals, while the government assessed potential damage to land and water.
Until the suit was filed in May 1985, mining was "a disaster in the parks," said Philip Barnett of the Sierra Club Legal Defense Fund, which represented the three environmental organizations that filed suit... In Denali National Park, he said, mining had polluted over 150 miles of streams. […] But James Burling of the Pacific Legal Foundation, which represented the Alaska Miners Association, said the order upheld by the court was "much too harsh…"
Associated Press, October 23, 1986

In 1987, then-U.S. Sen. Alan Cranston of California sought to protect 82 wilderness areas in Southern California. The Pacific Legal Foundation called the bill “preservation run amok.”
Cranston's measure would create three national parks and 82 wilderness areas in the 25-million-acre California Desert Conservation Area now administered by federal and state agencies. These areas are scattered across the southeastern corner of the state, from Inyo County south 240 miles to the Mexican border, and include some of the most spectacular desert scenery in the world. […] "Preservationism run amok," is how the influential Pacific Legal Foundation's James S. Burling described the Cranston bill in the California Mining Journal. The Sacramento-based foundation is a nonprofit, industry-oriented group of legal activists...
Los Angeles Times, April 19, 1987

In 2002, then-PLF vice president M. David Stirling called the 328,000 acres of sequoia redwoods that President Clinton designated a national monument in central California of “marginal significance” and “truly unnecessary”
On April 15, President Clinton held a ceremony in the Sequoia National Forest in central California, and 'proclaimed' 328,000 acres a national monument. […] Rather than confine monuments to small areas of special concern, the president has appropriated millions of acres of marginal significance….Giant sequoias have not been logged for nearly a decade….Consequently, this monument of 328,000 acres is truly unnecessary.
David Stirling, PLF, Orange County Register, Op-Ed, May 11, 2000
In 2009, PLF filed an amicus brief on behalf of Kaiser Ventures, a California company attempting convert a former mine in Eagle Mountain, California – surrounded on three sides by Joshua Tree National Park -- into a landfill. The project was opposed by environmentalists and community members for nearly twenty years, and in 2013 the company backed away from the project. http://blog.pacificlegal.org/2010/plf-asks-9th-circuit-to-reconsider-controversial-landfill-decision/
The above examples demonstrate how the Oyster Company and its Ultra-Conservative Allies Seek Dangerous Precedents for Exploiting Public Land.

[Updated] National Park Service Disclaimer on Seal Monitoring Updates and Drakes Bay Oyster Company Supporter Sarah Rolph

[Update: In response to Chris Miller, Sarah Rolph has acknowledged that it is an overstatement to say the disclaimer “isn’t found on any previous science reports from the Park Service at Point Reyes.” In fact, it is simply false. People might consider investigating further who Sarah Rolph is and the political foundation on which she stands. For one example, consider this story on the The Daily Kos site about how she and her husband/companion Michael Hutchins, with other Ayn Rand supporters of the Ayn Rand Institute, manipulated reviews on a book unfavorable about Ms Rand, Ayn Rand Nation: The Hidden Struggle for America's Soul. Ironic is this sort of manipulation makes up the body of Ms Rolph's amicus brief submitted to the 9th Circuit Court of Appeals. Further, West Marin Citizen, and citizens of Marin County should question just who they are allowing into their network of "reporters."]

Sarah Rolph and Oysterzone Grossly Misstate The Facts
On Park Service Monitoring Update Report

Sarah Rolph, a resident of Carlisle, MA and corporate "story teller" who has provided misleading articles for West Marin Citizen and Jane Gyorgy's "Oysterzone" blog site recently commented on the National Park Service' Harbor Seal Monitoring Updates. That interim update, with others issued throughout the year, is used in part to develop a final annual report on the status of Harbor seal populations in Point Reyes National Seashore area, of which Drakes Estero is part and within which the Drakes Bay Oyster Company is operating, thereby preventing the completion of the only shoreline wilderness area on the west coast (excluding Alaska).

Ms. Rolph's Statement
I was fascinated to see that the Park Service’s seal-count report includes a disclaimer, saying that the data and related graphics “are not legal documents and are not intended to be used as such” and “The National Park Service gives no warranty, expressed or  implied, as to the accuracy, reliability, or completeness of these data.”
This disclaimer isn’t found on any previous science reports from the Park Service at Point Reyes. I find it ironic that they would offer it now, given the clear deficiencies of many of their scientific efforts.
[Refers to: http://www.sfnps.org/download_product/4301/0]

The Facts
The disclaimer which Ms. Rolph declares "isn't found on any previous science reports from the Park Service" is in fact spread throughout the years on numerous Monitoring Updates, exactly as this one. Had Ms. Rolph and Ms. Gyorgy spent a modicum of time researching these reports, their purpose, and what they represent, instead of attempting to smear the National Park Service and others who support the creation of the shoreline wilderness with unfounded claims and vague assertions this would not have occurred. But Ms. Rolph chose to simply write without researching, similar to the reporter she wrote so belittlingly about in the West Marin Citizen who inaccurately reported a 2012 outbreak of vibriosis traced to Drakes Bay Oyster Company oyster was in 2013. It comes around.

Ms. Rolph is little more than a mouthpiece for conservative groups who care little for the employees of Drakes Bay Oyster Company, and whose "articles" are repeated and re-printed with little to no vetting. It is hardly Pulizter Prize material and a recipe for a flat soufflé.

As the resident from Massachusetts, Ms. Rolph wrote in a recent article in West Marin Citizen:  "These people want control of your community.   Are you going to let them take it?" Good question Sarah. West Marin citizens would do well to ask just what "people" you're referring to.

A few NPS reports with disclaimers Ms. Rolph has failed to "report" on.
Fiscal Year 2009 in Review, http://www.sfnps.org/download_product/1728/0 (p.16)

July http://www.sfnps.org/download_product/1498/0 (p.5)
August http://www.sfnps.org/download_product/1499/0 (p.6)

June http://www.sfnps.org/download_product/2559/0 (p.6)
April http://www.sfnps.org/download_product/2455/0 (p.6)

August http://www.sfnps.org/download_product/2954/0 (p.7)

Friday, September 20, 2013

Vibriosis Illness Traced to Washington's Peale Passage Oysters

Vibriosis contracted from Washington Oysters
will address how to minimize the risk.

Vibriosis Contracted from Washington Oysters
The Washington Department of Health has reported that vibriosis has been contracted from oysters harvested from Peale Passage in Washington state. As a result, the Department has closed this growing area to the commercial harvest of oysters until September 30.
Contact: Cari Franz-West at 360-236-3330, Cari.Franz-West@DOH.WA.GOV.
Recreational harvesting information is available at www.doh.wa.gov/shellfishsafety.htm.

Peale Passage, Washington
Between Squaxin and Harstine Islands

This follows on the heels of Burley Lagoon having also been closed, along with a large area of southern Puget Sound which has commercial harvesting of oysters closed for over a month now. Oysters grown in this area include names such as the Totten Virginica, Shelton Kumamoto and Pickering Sweets, distributed throughout the country.

Growing Areas in South Puget Sound
Closed to the Commercial Harvest of Oysters

Consuming any food has risks. Consuming raw oysters during the summer months ("no R") increases that risk. As noted in the Huffington Post, increasing that risk is rising water temperatures which enhances the environment in which the naturally occurring bacteria Vibrio parahaemolyticus grows. Based on the past and current harvest and handling methods it can be guaranteed vibriosis will be contracted from Washington state oysters harvested during the summer.

ISSC Meeting To Address Risks with FDA and Growers
October 26-November 1 the ISSC (International Shellfish Sanitation Conference) will be held where the FDA and shellfish industry representatives will be meeting again to try and determine the risk and develop methods to minimize that risk. It is something which the industry has been working on but FDA proposed controls over harvesting and processing have been met with resistance from the industry for years due to the economic impact it may have on the growers and restaurants. The FDA's viewpoint is one of how to best protect the consumer.

Thursday, September 19, 2013

Marty Griffinn on Assemblyman Levine's Abstaining from Voting on AB 976

Marty Griffin writes in the Marin IJ of his disappointment in Assemblyman Levine abstaining from voting on AB 976 which would have given the California Coastal Commission the ability to fine violators of the Coastal Act. He was not alone.

However people feel about AB 976, elected officials wherever they are from have a fiduciary duty to vote so their constituents know whether they are performing the job they were elected to do. To see who voted how, or not, California's Legislative Information site provides a record.

Wednesday, September 18, 2013

Vibriosis Traced to Burley Lagoon Oysters, DOH Closes Burley Lagoon to Commercial Harvesting of Oysters

Vibriois has been traced to oysters harvested from Burley Lagoon, resulting in the Department of Health closing the Burley Lagoon area to commercial harvesting of oysters. Recreational harvesting information is found on the Department of Health's web site.

Monday, September 16, 2013

Friends of Burley Lagoon Comments for Pierce County Shoreline Master Program Update

Correction: Email to tfairba@co.pierce.wa.us

Shouldn't this structure have required a permit?

What: Pierce County Shoreline Master Program update study session
When: September 18
Action: Email individual comments or support for comments below to the Pierce County Planning Commission, c/o Toni Fairbanks - tfairba@co.pierce.wa.us


Friends of Burley Lagoon Request

Friends of Burley Lagoon's President Heather McFarlane has prepared the following comments on Pierce County's Shoreline Master Program Update. They reflect concerns of many in Pierce County and other Puget Sound counties that the protection of Puget Sound's shorelines should not stop at the high tide line. A passive shellfish industry in 1972 being considered a "preferred use" by the Shoreline Management Act when it was passed should not now give that industry carte blanche to develop the tidelands as it sees fit. (See Coalition to Protect Puget Sound Habitat for general information.)

The Friends of Burley Lagoon have asked people to consider becoming involved in the Pierce County update process by sending in their own comments to the "study session" by September 17, or email the following message to:
Pierce County Planning Commission c/o Clerk, Toni Fairbanks

"Ms. McFarlane's comments of 9/16/13 to the Planning Commission re the SMP,  represent my views as well and I wish my name noted in the record. I would also appreciate an email acknowledgment."   

Comments follow:

(click on image to enlarge)
 (click to enlarge)
 (click to enlarge)
 (click to enlarge)

CO2 and Ocean Acidification : The Problem Explained and Why Proposed Intensive Commercial Shellfish Operations Add to the Problem

Expanding intensive commercial shellfish operations
will not solve the problems of Ocean Acidification,
only make them worse.
"We're scared to death," Jim Stone, co-owner
of the Bering Sea crab boat Arctic Hunter

September 12 the Seattle Times published two articles on Ocean Acidification. Part 1 presented an overview of the problem with Part 2 focusing on the impacts which lower levels of calcium carbonate will have on the crabbing industry. One animated video contained within Part 1 distilled down the science to show the core problem increased levels of CO2 in the marine waters creates: a lack of calcium carbonate. This fundamental building block is needed by many marine species for calcification. Plans in place to dramatically expand commercial shellfish farms will rob the water of this diminishing building block, resulting in an even bigger problem for native marine species already under stress. Impacts have not been considered in any proposals and only show again why cumulative impacts from intensive commercial shellfish farming matter, whether mussels, oysters or geoduck.

The Problem Explained in Words and Pictures

When CO2 mixes with water it takes on a corrosive power that erodes some animals’ shells or skeletons. It lowers the pH, making oceans more acidic and sour, and robs the water of ingredients animals use to grow shells in the first place.

Saturday, September 14, 2013

Drakes Bay Oyster Company Legal Strategy: Move Over Twinkie Defense

You Get What You Pay For

In the tragic murders of San Francisco Mayor George Mascone and San Francisco Supervisor Harvey Milk, defense attorneys argued defendant Dan White  suffered diminished capacity, indicated in part by a change in diet from healthy food to sugary food. The term "Twinkie Defense" became the label given to the failed legal strategy. Attorneys for Drakes Bay Oyster Company are now pushing to move "diminished capacity" onto their legal strategy, memorialized by their saying "we can't give you a permit because the moon is made of green cheese." You get what you pay for.

A Poke in the Eye of the Legal Profession

The Moon is Made of Green Cheese So Your Permit Will Not be Renewed. Excuse me?
In an Op-ed written by Drakes Bay Oyster Company attorneys Peter Prows, Zachary Walton and Ryan Waterman is laid out the legal strategy they intend to pursue in their petition for reconsideration of the 9th Circuit Court of Appeal's majority decision which denied an injunction which would have allowed DBOC to continue operating. In their Op-ed, references to the moon being made of cheese, race, and a class of commercial activity being made illegal are thrown out as analogies to the reasoning behind why the majority's decision was wrong. You get what you pay for.

Congress and the Oyster Farm
The majority noted that Congress had given the Secretary of the Interior absolute discretion to determine whether the lease which ended in 2012 should be renewed. In their decision it was clearly noted that Senator Feinstein's original wording in her rider was changed from forcing a renewal to giving the Secretary the choice. Congress had also passed on many other opportunities to directly address whether the commercial shellfish farm should be allowed to continue operating after 2012. At every turn of the road, when given the opportunity to allow the commercial oyster farm to continue operating after 2012 they did not. This absence is as glaring as is the grasping-at-straws legal strategy being put forth by these unpaid attorneys. You get what you pay for.

Ignore the law as written, what we really meant to say was....
Current attempts to rummage through testimony, letters and hearings to find anything to support the position that "what we really meant to write was" will not stand before the court. It is not what people felt and the Congressional grand-standing which occurred in the always messy creation of law which matters. The law as written and passed, and signed by the President is what matters. Congress could have written into any bill creating the wilderness area which Drakes Estero is part of that the commercial operation should be allowed to remain in the wilderness area. They did not and dredging through the flotsam left in the wake of creating a bill is a waste of time, and were the attorneys being paid, a waste of money. You get what you pay for.

Calling something powerful does not make it so, nor does pretending the moon is made of cheese make for a powerful argument.
References to the "powerful dissent" being one of the most strongly written Mr. Prows has ever seen only shows the influence of public relations and the inexperience of a young lawyer. The dissenting opinion is built on assumptions whose weakness is found when the judge writes:

"If you accept what I have said so far..."
We do not, nor will others. You get what you pay for.

Friday, September 13, 2013

Drakes Estero Seal Count 38% Below Peak Count: Drakes Bay Oyster Company Implies "Great News"

Update 9/14: Playing with numbers and graphs. Graph of 1998 - 2013 seal counts with notes added.

Regressive Correlations Between
Commercial Operations and Wildlife in Wilderness Areas
"This is Public Relations?"

The 2013 maximum molt count of Harbor Seals in Drakes Estero just released indicates a level almost 40% below its peak count in 2003. In 2002 the Johnson Oyster Company reported its lowest planting in history and near record low harvest of 78,064 pounds. The following year, 2003, the peak molt count of seals was ~1,800. In 2004 Drakes Bay Oyster Company began operations. Except for two years (2006 and 2008) the seal count fell steadily to a low of ~550 in 2011, from where it climbed to ~700 in 2012. The 2013 annual count showed a peak of 1,122 seals. Why?

Positive Correlation Between
California Coastal Commission Actions
and Rising Harbor Seal Counts?

California Coastal Commission Actions Precede Rise in Drakes Estero Seal Count
In 2007 the first cease and desist order was issued, after which seal counts rose, then dropped to a low in 2011.

In November of 2011 a "letter of concern" was mailed to Drakes Bay Oyster Company telling them of compliance issues, including protection of Harbor seals, followed by a rise in the seal count of 2012.

In February of 2013, the California Coastal Commission issued a second Cease and Desist Order to Drakes Bay Oyster Company which included Section 5.2, further addressing Harbor seal protection (see below). In July, Peter Prows, attorney for Drakes Bay Oyster Company stated in the July 18th MarinIJ:
Peter Prows, ... said the oyster operation is already complying with the commission's order. "We want to comply and have been complying," Prows said, noting the oyster company has developed several plans to address the commission's concerns. "We are happy to keep working with the commission."
Positive Correlation?
Clearly there is a positive correlation between complying with the California Coastal Commission's Cease and Desist Order addressing Harbor Seal Protection Measures, and an increased seal count. Merely complying, however, is not enough to bring the seal count back to its historic peak which occurred at a time when harvest levels and planting levels were at  or near their historic lows (2002/2003). It is simply one more example of why commercial operations are not compatible with wilderness. Public relations firms, their clients and supporters touting a number almost 40% below the peak seal count (1,800 vs. 1,100) as a great example of compatibility do their profession and themselves a disservice.

Or we see what we want to see?
As Corey Goodman knows so well, statistics is a funny class of math. Depending on data points and variables chosen, you can prove just about anything. Does the above mean that every time the California Coastal Commission acts against Drakes Bay Oyster Company a rise in the seal count will result? You decide.
Interim Use Provision from February 2013 Cease and Desist Order:
5.2 Harbor Seal Protection Measures.

(A) Permanent Closure. Respondents’ personnel, boats, equipment and structures shall not enter harbor seal protection areas identified in Attachment 4.
(B) Seasonal Closure. Respondents’ personnel, boats, structures and their equipment not enter the Lateral Channel, as defined in Section 3.7, above, during the Harbor Seal Breeding Season, as

defined in Section 4.9, above.
(C) Haul-Out Buffers. Respondents shall maintain a distance of a minimum of 100 meters from any hauled out harbor seals.
(1) Should the Executive Director determine that operations are causing flushing or disruption of behavioral patterns of seals, the Executive Director may increase this minimum approach-distance to not more than 200 meters by providing written notice to Respondents.

Wednesday, September 11, 2013

Taylor Shellfish Files Petition for Review, Objecting to SHB Monitoring Condition

Update 3/16/14: Corrected instructions to grant details
1. Go here for the Grants online search page:
2. Enter award number NA16RG1591 in the "award number box"
Developing this study to benefit Taylor Shellfish and the EIS is found in this letter to Thurston County from Vicki Morris:

Taylor Shellfish Files Petition for Review with Superior Court
Taylor Shellfish has filed a Petition for Review with the Superior Court in Thurston County, objecting to the Shoreline Hearings Board (SHB) decision which reversed Thurston County's denial of its Shoreline Substantial Development Permit (SSDP). In that decision the SHB required Taylor Shellfish to develop and implement, with Thurston County, a monitoring plan to ensure dissolved oxygen in the water column, benthic organisms, and native species of mussel were not adversely impacted from the mussel operation.

Precedent for Monitoring Set by Seattle Shellfish and Mason County
The Shoreline Hearings Board has a precedent to rely on for its action in SHB No. 10-009. When Seattle Shellfish wished to install a 300 yard long geoduck nursery facility, as part of the settlement to an appeal by Case Inlet Shoreline Association, they agreed to allow a 3rd party (not a contract scientist) to develop a monitoring plan. Seattle Shellfish and Mason County became responsible for implementing that plan and providing reports as they became available. The first annual report has been posted on Mason County's site. The Shoreline Hearings Board noted in their letter: "Thank you for your efforts in settling this matter."

Petition to the Shoreline Hearing Board by Taylor Shellfish Requesting their Monitoring Plan Be Accepted
When the SHB reversed Thurston County's permit denial it also required Taylor Shellfish and Thurston County develop a monitoring plant to address areas the Examiner had concerns on. In an attempt to overstep Thurston County's role, Taylor Shellfish requested the SHB accept its monitoring plan which it developed without input from the County. The "plan" consisted of a 12 page Petition; their contract scientist's 12 page Declaration; their contract scientist's 3 page monitoring plan; and, American Gold Seafood's 30 page Waste Discharge Permit for their salmon net pen operation. The SHB denied the Petition.

Taylor Shellfish Rejects their Own Monitoring Plan?
Oddly similar to Taylor Shellfish telling the Thurston County Hearing Examiner to deny their permit, Taylor Shellfish's Petition for Review to the Superior Court has rejected its own monitoring plan. In their Petition they do not suggest the Court accept the monitoring plan developed by their contract scientist. Now they reject the SHB condition which required Taylor Shellfish and the County to develop a monitoring plan claiming this process has cost them "millions*" and the SHB has no authority to require the monitoring, despite the SHB accepting the monitoring resolution to the appeal of Seattle Shellfish's permit by Case Inlet Shoreline Association.
*Last year Taylor claimed to have only spent over a million dollars. It is unclear what has happened between then and now to balloon their perceived expense to multiple millions. Of interest would be whether a $368,000 NOAA grant to study carrying capacity in Totten Inlet is included as an expense. Or perhaps they only refer to lost revenues. Whatever the case, it is not the amount of money spent or pages produced which are important. It is whether studies adequately addressed the environmental impacts of a project. In this case, everyone agrees (excluding Taylor Shellfish) they did not.
Separately, APHETI and Thurston County File Petition for Review Requesting Reversal of SHB Decision
APHETI and Thurston County have joined in filing a separate Petition for Review to Superior Court asking them to reverse entirely the SHB decision and reinstate the decision of Thurston County's Hearing Examiner which denied Taylor Shellfish's permit. That denial was based on a lack of sufficient information. Taylor Shellfish, rather than providing the requested information, asked the permit be denied.





California AB 976: Strong Majority in Assembly Vote for Reconsideration

Update: Capital Weekly has reported for the 3rd time in 5 years lawmakers in California have decided against giving the Coastal Commission the ability to levy fines without having to go to court. The lack of failure was largely due to 15 Assembly members who simply chose not to vote. They include: Achadjian, Alejo, Bocanegra, Bonilla, Buchanan, Eggman, Fox, Frazier, Garcia, Gordon, Roger Hernández, Levine, Perea, V. Manuel Pére. (Note: Assemblyman Levine chose to vote for reconsideration, then chose - again - not to vote.)

Update: The Assembly's most recent vote on AB 976 did not receive the 41 necessary for passing. It may be brought up for vote once more. The Pacific Legal Foundation declared the most recent vote a "major victory."

A strong majority in the Assembly has voted in favor of reconsideration of AB 976 with 48 in favor. The bill needs 41 votes to pass. The following Assembly members did not cast a vote:  Achadjian, Eggman, Fox, Frazier, /Garcia, Quirk-Silva, and Salas.

The bill would allow the California Coastal Commission to levy fines on egregious violators of the California Coastal Act. Currently the Coastal Commission must first issue a “cease-and-desist” order when a violation is identified. If the order goes ignored, the Commission has the option of pursuing enforcement against the alleged violator through county superior courts.

Contrary to opposition statements made, minor violations are specifically excluded, with the bill clearly stating:

(f) In enacting this section, it is the intent of the Legislature to ensure that unintentional, minor violations of this division that only cause de minimis harm will not lead to the imposition of civil penalties if the violator has acted expeditiously to correct the violation.
AB 976 is found here.

Monday, September 9, 2013

AB 976 California Coastal Commission: Bill Allowing CCC to Fine Violators

Update: 9/10 - The Assembly failed to concur with amendments added by the Senate. Despite a majority voting for the bill, it failed by 6 votes. Assemblywoman Toni Atkins has requested reconsideration of the bill which would allow for one additional vote. Information and history of the bill is found here. The bill as proposed is found here. How the Assembly members voted is found below. (Note: 10 members did not vote, also listed below.)


Ammiano Atkins Bloom Bonilla
Bonta Bradford Ian Calderon Campos
Chau Chesbro Dickinson Fong
Gatto Gomez Gonzalez Gordon
Hall Holden Jones-Sawyer Lowenthal
Medina Mitchell Mullin Muratsuchi
Nazarian Pan Quirk Rendon
Skinner Stone Ting Weber
Wieckowski Williams Yamada John A. Pérez


Allen Bigelow Chávez Conway
Cooley Dahle Daly Donnelly
Beth Gaines Gorell Gray Grove
Hagman Harkey Roger Hernández Jones
Linder Logue Maienschein Mansoor
Melendez Morrell Nestande Olsen
Patterson Perea V. Manuel Pérez Quirk-Silva
Salas Wagner Waldron Wilk


Achadjian Alejo Bocanegra Brown
Buchanan Eggman Fox Frazier
Garcia Levine Vacancy Vacancy


The Los Angeles Business Journal has reported that the California Senate has passed a bill which will give the California Coastal Commission the authority to impose administrative civil penalties on companies who intentionally violate the Coastal Act, the law that was passed in 1976 to protect the state's 1,100-mile coast, regulate development along it and ensure public access to it.

Drakes Bay Oyster Company is a classic example of a company found to be in violation of regulations, who despite having agreed to past Cease and Desist orders and not acting on them, has been able to simply draw out the process and continue to profit without resolving the violations.

The passage of this bill may be why they have, once again, agreed to pursue negotiating a settlement with the CCC instead of continuing their costly court battle. Then again, it may simply be a tactic to try and stall further their having to act. At least with passage of the bill the CCC will be able to fine them.

Thursday, September 5, 2013

What's Wrong with Legislative Intent? Why Drakes Bay Oyster Company's Petition for a Rehearing will Not be Granted

    Committee Reports and Floor Statements are Not Law
    Drakes Bay Oyster Company Needs to Cease Operations
Over the last 40+ years Congress had ample opportunity to write into law that commercial aquaculture activities within Drakes Estero were compatible with the Wilderness Act and should be allowed to continue in perpetuity. It did not. When given the opportunity to force the Department of the Interior to renew the lease, it did not. Politics is messy and the creation of law leaves a wake of refuse which anyone can pick and choose from to support an "intention." In order to keep law from becoming garbage, Judges look to the words of the law. Not selective crumpled pieces of paper left on the floors of the House and Senate after passage.

Supreme Court Justice Antonin Scalia:
"You will see recited in opinions all the way back that the object of interpretation is to determine the intent of the drafter.  I don't believe that.  We're not governed by the drafter's intent. We're governed by laws" August 22, 2012 
Judge Alex Kozinski, Should Reading Legislative History Be an Impeachable Offense?
  1. The two Houses and the President agree on the text of statutes, not on committee reports or floor statements. To give substantive effect to this flotsam and jetsam of the legislative process is to short-circuit the constitutional scheme for making law.
  2. Collective intent is an oxymoron. Congress is not a thinking entity; it is a group of individuals, each of whom may or may not have an "intent" as to any particular provision of the statute. But to look for congressional intent is to engage in anthropomorphism--to search for something that cannot be found because it does not exist.
  3. Even if there were such a thing as congressional intent, and even if it could be divined, it wouldn't matter. What matters is what Congress does, not what it intends to do.
  4. Even if the other obstacles could be overcome, reliance on legislative history actually makes statutes more difficult to interpret by casting doubt on otherwise clear language. This makes it much more difficult for people to conform their conduct to the law, as no one can tell what the law is until a court has weighed the language, the legislative history, the policy considerations, and other relevant information. This increases litigation costs and undermines the rule of law.
  5. Legislative history is often contradictory, giving courts a chance to pick and choose those bits which support the result the judges want to reach. In Judge Leventhal's immortal phrase, consulting legislative history is like "looking over a crowd of people and picking out your friends." n24 This shifts power from the Congress and the President--who, after all, are charged with writing the laws--to unelected judges. The more sources a court can consult in deciding how to interpret a statute, the more likely the interpretation will reflect the policy judgments of the judges and not that of the political branches.
  6. Allowing legislative history to do work that should be done by statutory language leads to political unaccountability. Members of Congress who reach an impasse can agree on murky language, then salt the legislative record with clues and hints hoping to shift the process of interpretation their way. Elected officials can thus achieve substantive results without having to take the political responsibility that would come from passing clear-cut statutory language.
  7. Shifting important policy judgments to the courts brings the judiciary into disrepute and undermines the notion that judges apply the law objectively. When the public comes to understand that judges are simply unelected, life-tenured bureaucrats dressed in black, making policy decisions just like other government officials, the moral authority of the courts will be seriously undermined and popular obeisance to the courts' constitutional judgments will be jeopardized.