Drakes Bay Oyster Company: Tomales Bay Oyster Company Court Transcript of Denial

The transcript of the court hearing in which Tomales Bay Oyster Company's attorney, Stuart Gross, was told his case was "frivolous" is now available. It can be found by clicking here.

Seattle Shellfish/Taylor Shellfish Haley Geoduck Farm: Coalition Files Post Hearing Brief With Hearing Examiner

 

The Shoreline Management Act

is supposed to protect

Puget Sound's marine habitat,

not just "the water."

 

Good for Puget Sound's intertidal habitat?

Diane Cooper with Taylor Shellfish believes so.

"It's structure." Until it's ripped out or

destroyed by a waterlogged log.

 

Post hearing brief filed with Pierce County Hearing Examiner on Haley Geoduck farm
In clear unambiguous language the Coalition to Protect Puget Sound Habitat and neighbors to the proposed "Haley" geoduck farm have explained in a post hearing brief why Pierce County erred in issuing a Mitigated Determination of Non-significance (MDNS) SEPA decision and they explain why the proposed geoduck farm should not be issued a Shoreline Substantial Development permit (SSDP). The SEPA decision was being appealed at the hearing. The permit decision will be made based on information presented at the hearing and on whether the county's SEPA decision was incorrect.

 

It's not just about "the water."

Tideland habitat transformed.

 

It's not the water, it's the habitat, and it should not be made up of plastic.

For decades the shellfish industry has believed they play an important part in improving the waters of Puget Sound. They have played a role in making people aware of the importance of clean water, and have benefited economically from it, but they have played a far greater role in transforming the intertidal habitat. It has been transformed into something made up of artificial structures including PVC pipes, oyster grow out bags, and where dredging loosens sediments 3 feet deep to remove geoduck. None of it is permanent. In fact, aquaculture creates a constant cycle of habitat modification and destruction.  It is exactly what the Shoreline Management Act is supposed to protect Puget Sound's marine habitat from.

 

What good is a beach cleanup which only takes place

when geoduck farms are underwater?

Lowest tide was +2.8.

 

Mitigation is ineffective and not feasible

One of the arguments put forth in the brief on why the SEPA decision was incorrect involves a mitigation proposal to "patrol" the beaches for loose tubes. The brief points out that the shellfish operator and employees would not only be trespassing on private tidelands but the very fact that PVC pipes do get loose, and end up on others private property, is in itself trespass and pollution.

 

Waterlogged log has ripped up netting and dislodged tubes.

Loose tubes were found over 2,000 feet away.

 

Puget Sound is a dynamic body of water

To present an example of what happens (not what "may" happen), the last daylight minus tide of the year (-.9) revealed that a waterlogged log had destroyed a portion of a south Puget Sound geoduck farm. Netting was ripped up and hundreds of tubes were dislodged. Tubes were carried by the current over 2,000 feet to the mouth of Hammersley Inlet where an unknown number were carried by Hammersley Inlet's >3 knot current into Hammersley Inlet or out into Pickering Passage. "Patrolling" did not discover this.

Governor Inslee and Bill Dewey with

Taylor Shellfish. It's not just about "the water."

Governor, you're standing on what's important.

 

 



Get involved - the shellfish industry is. Far more than you know.

Get involved in protecting Puget Sound's intertidal habitat area. The shellfish industry's focus on "clean water" deflects where the focus should be: the intertidal habitat which is being transformed by their plastic structures, an artificial "habitat" which is destroyed multiple times. Call/write Governor Inslee and tell him Puget Sound's habitat not the shellfish industry's to do with as they please. He may be contacted at 360-902-4111 or by mail at PO Box 40002, Olympia, WA 98504-0002. His shellfish coordinator is Julie Horowitz whose email address is Julie.horowitz@gov.wa.gov

 

Tell Pierce County they are responsible to all citizens, not just shellfish companies. Ty Booth in planning may be contacted here: tbooth@co.pierce.wa.us

Council members here: http://www.co.pierce.wa.us/index.aspx?nid=99



Drakes Bay Oyster Company: Tomales Bay Oyster Files Appeal

Is suing one agency while having been found

in violation of regulations by another

really a smart thing to do? 

As expected, Tomales Bay Oyster Company's attorney has appealed the ruling against a preliminary injunction to the 9th Circuit Court of Appeals. [see MarinIJ for article] Despite attorney Stuart Gross, having been told his suit bordered on "frivolous" with claims having "no merit," he still chose to appeal. (see earlier post here) And in spite of Tomales Bay Oyster Company being in violation of California Coastal Act regulations, they agreed.

Tomales Bay Oyster's abandoned tidelands.

Why clean up and grow when you can just buy?

(from The Coastodian.org)

Despite and in spite of
He chose to appeal, despite Tomales Bay Oyster Company having tidelands it could have been growing oysters on but did not; despite Tomales Bay Oyster Company having told the California Department of Fish and Wildlife that it expected to harvest an additional 3 million oysters in 2015, having planted extra in anticipation of Drakes Bay Oyster's closing; despite Dixon Marine (a party to the suit) not disclosing the Living Shorelines Project reported "the different “baycrete” [artificial] elements appear to be performing more or less equally well [as DBOC shell]"; despite restaurants' claiming "harm" without providing any proof. And, in spite of Tomales Bay Oyster Company's having an open violation with the California Coastal Commission, they agreed.

Free to choose
Tomales Bay Oyster Company's choice to pursue a frivolous lawsuit is one they are free to do. But to do so while they are in the middle of trying to resolve violations of county and coastal regulations carries a business risk.

(From August 20, 2014 CCC letter referencing

violation file number V-7-14-001)

Pierce County SMP Update: Shellfish Politics At Its Best - Taylor Shellfish is "Troubled"

It is Washington citizens who should be "troubled"

at how Taylor Shellfish views its "rights" to

the intertidal areas of Puget Sound.

Get involved - the shellfish industry is and has the money and motivation.

Tell Governor Inslee Puget Sound's tidelands are not the shellfish industry's playground. The Shoreline Management Act was created in order to protect Puget Sound's habitat from industries like what the shellfish industry has become. He may be contacted by phone at 360-902-4111 or mail at PO Box 40002, Olympia, WA 98504-0002. His shellfish coordinator is Julie Horowitz whose email address is Julie.horowitz@gov.wa.gov

Tell Pierce County they have a responsibility to protect Puget Sound's intertidal habitat for everyone, not just Taylor Shellfish. Pierce County's council member contact information is found here.

"Governor, imagine PVC tubes

as far as the eye can see."

Governor Inslee and Bill Dewey with Taylor Shellfish.

What money can buy: Plauche and Carr - a law firm created by and for the shellfish industry - writes to Pierce County

A 156 page letter dated September 15 (11mb file), sent to Pierce County from shellfish industry law firm Plauche and Carr notes that Taylor Shellfish is "troubled" over the county's Shoreline Master Program update. It "...suggests that the County revise or withdraw several of the proposed Community Development Committee amendments..." which have recently been accepted. Of those amendments, 8, 9, 10 and 23 are addressed as being "troubling" to Taylor Shellfish. What should be "troubling" is the ongoing press by the shellfish industry to claim rights to all tidelands of Puget Sound for their development through the Shoreline Management Act.

“When the SMA was written in 1971, aquaculture meant oysters and clams and one salmon raising operation. This activity was recognized and protected as water-dependent. I do not read the original intent or the original guidelines to promote the industry as we know it today." Joan Thomas, 1991 (one of the original drafters of the Shoreline Management Act)

The political process at its best
This "troubling" letter should leave little doubt about the political efforts being put forth by the shellfish industry to twist the Shoreline Management Act into something it was never meant to be when it was created in 1971. Protecting Puget Sound's intertidal area from becoming fragmented through modern aquaculture is why the SMA was created - "to prevent the inherent harm in an uncoordinated and piecemeal development of the state’s shorelines."

Taylor Shellfish lobbyist talking about

"structure" and "habitat" which PVC

tubes create on tideland habitat.

Below, structure and habitat on the move

throughout Puget Sound.

A loose PVC pipe, one of many,

taking the barnacles and limpets

on an unintended vacation.

"The public has no idea how rapidly technology is reshaping aquaculture in the U.S." April 2010 email from paid shellfish consultant Jack Rensel, shellfish industry paid scientist, to NOAA.



What troubles Taylor Shellfish?

Special time category of "non-use" for non-conforming aquaculture use and structures
One of the changes asked for is that aquaculture be granted "multiple years" for a non-conforming aquaculture operation to remain "dormant" and still retain its nonconforming use category (i.e., not be required to be brought up to current code). The industry is fine with all other nonconforming uses only having 2 years. Were the attorney's logic to be accepted by Pierce County, virtually any abandoned nonconforming use could have arbitrary "reasons" applied to extend forever the time period during which an abandoned non-conforming structure could be allowed to exist. (e.g., "I was on vacation and just couldn't get around to it.")

Looks "Natural" to Taylor Shellfish.

Is it "natural" to anyone else?

Prohibition of "aquaculture" from Natural Shoreline Environmental Designation is "overly restrictive"

"Shellfish beds should be protected

from upland development."

(proposed Taylor/Seattle Shellfish

"Haley" geoduck farm location)

So this can happen to them.

The industry claims that Natural SED's ("undisturbed portions of shoreline areas" or "ecologically intact shorelines") are perfectly suited for today's modern aquaculture. Whether it be PVC pipes, nets, or mesh bags, the industry sees no problem with these structures fragmenting the areas designated as "Natural". Why? Again, they claim it is a "preferred" use and can result in "long term benefits and protect the shoreline..."

Long term benefit for who?

Protected from what?

Chelsea Farms geoduck harvest aftermath.

Good for the "Natural" SED?

Freshwater stream outlets aren't really that important are they? Their delta areas do make for great geoduck farms - flat and sandy.
Another restriction Taylor finds "troubling" is Pierce County's proposal to prohibit aquaculture in estuaries within 300 feet of freshwater streams. The importance of these rare and unique habitat areas in Puget Sound seems lost on Taylor's quest for use of all tidelands. The importance of these areas being used by migrating salmon, steelhead, or cut throat, whether it be their smolt leaving or the adults returning, to transition from fresh to salt water or salt to fresh water cannot be understated. Yet Taylor believes these area are better suited for acres of PVC pipes, netting and grow-out bags.

Conservancy SED designations do not "permit applicants to streamline applications for multiple sites within a growing area"
Taylor touches on the ultimate goal it is seeking - a "streamlined" application process which requires little effort on their part or oversight of actions by the county. They complain that an Administrative Conditional Use Permit should not be required for farms abutting Conservancy SEDs.  Taylor believes their acres of PVC pipes, nets and other structures used to grow non-native species somehow "protect and restore ecological functions" of these most fragile shoreline areas.

Monitoring of modern shellfish practices not needed, nor is concern over cumulative impacts.
Also found "troubling" to Taylor Shellfish is the county's requiring aquaculture operations be monitored. Again lost on Taylor is the reality that thousands of PVC pipes per acre or tidelands covered with grow-out bags do change the habitat they are in. Claims that it would "burden applicants" and "County staff" only hide the concern of what monitoring will show about the impacts of "modern" aquaculture on the shoreline habitat areas the county is supposed to protect. The same may also be said for the "trouble" Taylor finds in cumulative impact considerations being included, that being many small discrete actions taken as a whole do, in fact, have a significant adverse impact on the intertidal habitat area the county - and the Department of Ecology - are supposed to protect.

And so on - to the shellfish initiatives.
Other "troubles" exist within the 156 page letter but what is also focused on as justification to allow for more "streamlined" permitting and allowing for more tideland area to be developed with structures are the shellfish initiatives, both national and state. Copied below is an earlier post, showing these being nothing more than the results of a marketing strategy which began in 2010. As noted, they should not be used for consideration in SMP updates any more than Taylor Shellfish's web site or advertisements should.

[Note - the following is February 13, 2013 post on the role the shellfish initiatives should play in SMP updates. As pointed out, they are little more than marketing efforts created by shellfish lobbyists.]

Shellfish Initiatives do not have a role in the Shoreline Master Program Updates.
Recent comments from attorneys representing the shellfish industry have claimed many times that NOAA's "National Shellfish Initiative" and the "Washington Shellfish Initiative" are clearly an indication of the importance of the shellfish industry. It adds that Washington's Shellfish Initiative clearly indicates shellfish aquaculture should be prioritized in any Shoreline Master Program update, no matter what the method, no matter where the location. In a letter to the Olympia City Council it states "revisions are also necessary to ensure the SMP Update is consistent with" the National and Washington Shellfish Intiatives. This is fundametally wrong and not what Shoreline Master Programs are supposed to consider.

Look a little deeper.

Oops, didn't I mention that?
What the shellfish industry's attorneys neglect to point out is that beginning in 2010 it was those very same attorneys and industry representatives who began lobbying NOAA to promote their industry through a "National Shellfish Initiative." It is nothing more than the successful result of a well planned lobbying effort.

It is most certainly not an affirmation that shellfish aquaculture should be prioritized in order to dilute the intent of the Shoreline Management Act which says, in part, "...the interests of all the people shall be paramount in the management of shorelines of statewide significance." (Shoreline Management Act)

2010: Shellfish politics create a "swimmable, fishable, and diggable" policy, for their benefit.
A May 28, 2010 letter to NOAA from attorneys at Plauche and Stock (now Plauche and Carr), representing the West, East and Gulf Coast shellfish industries states: "We the Pacific Coast Shellfish Growers Association, the East Coast Shellfish Growers Association and the Gulf Oyster Industry Council are writing to encourage NOAA to develop and launch a national shellfish aquaculture and restoration initiative as a component of, and in conjunction with, the new Aquaculture Policy." Further on, it notes: "A national initiative intended to advance shellfish aquaculture and restoration activities could be a model program that would implement this goal by promoting shellfish culture activities..." Towards the end it notes again: "The national shellfish aquaculture and restoration initiative we propose..."

Prior to this time NOAA had no intention of creating a "Shellfish Initiative," prioritizing shellfish in any manner.

How to create something out of nothing

and make it sound important.

2011: Refining a crafted lobbying effort.
In June, 2011, results of this lobbying effort began further refinement with the shellfish industry sending out "surveys" to growers to help guide NOAA in their creation of the "National Shellfish Initiative." Leading into that survey was:  "In the recently released NOAA Aquaculture Policy you may have noticed reference to a Shellfish Initiative. The Shellfish Initiative was the product of a year-long tri-coastal [East, Gulf and West] effort to get NOAA to recognize that shellfish composes the lion's share of marine aquaculture and we hold great potential for further expansion." In July those results were compiled and forwarded to NOAA who dutifully complied and created a separate "National Shellfish Initiative."

Bill Dewey with Taylor Shellfish
explaining to then Governor Gregoire

why a Washington Shellfish Initiative

would be so helpful to the industry.



2011: Wouldn't a Washington Shellfish Initiative be wonderful? An Executive Order is created.
With continued lobbying, Governor Gregoire was convinced that if NOAA could have a "National Shellfish Initiative" then Washington should have one as well. Fitting with the Governor's attempt to leave a legacy of a "swimmable, fishable, and [now] diggable Puget Sound" she obliged the shellfish lobbyists, and through an executiver order with no legislative oversight, created the Washington Shellfish Initiatve. Funding, direction, policies, and purpose would be left to somebody else to figure out. Lobbyists for the shellfish industry were more than willing to provide that role.

Should initiatives created by lobbying efforts from the shellfish industry be allowed to override the intent of the Shoreline Management Act?
When overwhelmingly passed by Washington's citizens in 1972, the Shoreline Management Act was the culmination of a monumental effort to prevent Puget Sound's shorelines from becoming fragmented through  piecemeal development. At the time, shellfish aquaculture was far different than what we see today. As Jack Rensel said in 2010, ""The public has no idea how rapidly technology is reshaping aquaculture in the U.S." He can add to that, "The public has no idea how rapidly lobbying efforts are reshaping the regulations controlling developments in the tidelands."

Joan Thomas

1931-2011

One of the original drafters of

the Shoreline Management Act.



In 1991, Joan Thomas, one of the original drafters of the Shoreline Management Act stated: “When the SMA was written in 1971, aquaculture meant oysters and clams and one salmon raising operation. This activity was recognized and protected as water-dependent. I do not read the original intent or the original guidelines to promote the industry as we know it today." Ms. Thomas passed away in 2011. What would she say today?

Bainbridge Island: On-line Powerpoint Presentation of "Modern" Aquaculture Plasticizing Puget Sound's Tidelands

On-line PowerPoint presentation found here

Plasticizing Puget Sound's tidelands

in the name of "eco services" and money.

 

This is no longer a "preferred use",

and the Governor needs to understand

there is more to Puget Sound

than what Taylor Shellfish wants.

Taylor Shellfish lobbyist discussing "structure"

and "habitat" created by geoduck farms.

 

Plasticizing and paving the intertidal tidelands in the name of jobs and "eco services"

An on-line power point presentation has been made available to show those on Bainbridge Island - and elsewhere - what "aquaculture" in Puget Sound has become. It is no longer simply throwing oyster shell out and hand harvesting them when market size. The techniques used today are plasticizing and paving the tidelands in the name of "eco services", destroying the natural intertidal habitat which the Shoreline Management Act was meant to protect and prevent from becoming fractured.

"Structure" and "habitat"

after a storm event.

 

Click here to begin the presentation of what Bainbridge Island has coming to its intertidal areas, has already come to south Puget Sound and is expanding. Then let Governor Inslee know shellfish farming should no longer be considered a "preferred use" of Puget Sound's shorelines.

Fractured tideland habitat - oyster bags scour the sediment,

tubes and netting are ripped out after 2 years,

and geoduck are harvested by liquefying the sediment.



Then it starts all over again.

Let Governor Inslee know this is not what the SMA had in mind when it described aquaculture as a "preferred use." He may be contacted by phone at 360-902-4111 or mail at PO Box 40002, Olympia, WA 98504-0002. His shellfish coordinator is Julie Horowitz whose email address is Julie.horowitz@gov.wa.gov Make a difference. Get involved. The shellfish industry and its lobbyists are.

Bainbridge Island: Welcome to South Puget Sound Aquaculture

Plasticizing Puget Sound's tideland habitat for China.

 

Coming to Bainbridge Island: A "preferred use".

PVC tubes for geoduck, exported to China.

 

Inside Bainbridge has posted an article by Sarah Lane (click here) on what south Puget Sound has been fighting against for years and which can now be expected on Bainbridge Island now that its Shoreline Master Plan has been accepted by the Department of Ecology. The same agency who required this paragraph on aquaculture to be removed:

Prohibit aquaculture where it would result in a net loss of shoreline ecological functions; adversely affect the quality or extent of habitat for native species including eelgrass, kelp, and other macroalgae; adversely impact City and state critical habitat areas and other habitat conservation areas.

It's not your grandfather's oyster farm,

nor what aquaculture was when the

Shoreline Management Act was passed in 1971

and ratified by voters in 1972.

"It's habitat," until it's ripped up.

When DOE was asked by Ms Lane why the paragraph had to be deleted from the SMP, they responded:

“We can’t prohibit it. It is a water-dependent preferred use according to the Shoreline Management Act.”

Not explained by DOE is why they consider the methods used today by shellfish farmers a "preferred use". Were 40,000 PVC tubes per acre a method used when the Shoreline Management Act was passed?

 

Trust us, we know what's good for you.

We paid for it.

Governor Inslee and Taylor Shellfish

employee Bill Dewey. Standing on the best

science money can buy.



Governor Inslee, having made the choice to use the shellfish industry as a primary fund raising vehicle for both his upcoming election and for those running in the Senate, was naturally supportive of DOE's removal of the paragraph. Not clear was how removing what Bainbridge Island wanted to have included meshed with their additional comment:

 “Each shoreline program is tailored to a town, city, or county’s needs. The governor supports an approach that takes into account those individual needs and differences.”

"It's just a storm." Chelsea Farms

on harvesting impacts to the tidelands. 

Except this also occurs underwater

when divers perform harvest activities.

Make a difference for the future and tell Governor Inslee the shellfish industry's methods are no longer a "preferred use" of Puget Sound's tidelands. He may be contacted by phone at 360-902-4111 or mail at PO Box 40002, Olympia, WA 98504-0002. His shellfish coordinator is Julie Horowitz whose email address is Julie.horowitz@gov.wa.gov

 

Drakes Bay Oyster Company: Tomales Bay Oyster Company Injunction Denied

[Update 9/23: As expected, Attorney Stuart Gross has filed an appeal.]

"I have wondered whether rule 11 [frivolous lawsuit] sanctions aren’t appropriate given the complete lack of merit of your claims." Judge Gonzales Rogers to Tomales Bay Oyster Company et al's attorney.

Sometimes the law is fuzzy.

Or at least that's what some

attorneys would like us to believe.

Stuart Gross, Attorney for Tomales Bay Oyster Company



A Gross interpretation of the law
A suit filed for Tomales Bay Oyster Company and other Drakes Bay Oyster Company supporters by San Francisco attorney Stuart Gross which asked for an injunction to allow DBOC to continue operations in the Phillip Burton Wilderness area has been denied. Judge Gonzales Rogers left little doubt of how the court viewed this last second attempt by DBOC supporters and their attorney to force the National Park Service to allow this commercial operation within a wilderness area to continue operating. It should not.

Oops. The impression was it's mine.

Sorry. It's not.



Surveys help bring the reality of what TBOC needs to deal with into focus

The Tomales Bay Oyster Company has far greater problems to deal with than where their oysters come from, whether they be Drakes Estero, Washington State, or their own tidelands. In a letter from the California Coastal Commission dated August 20, 2014, it was pointed out that a survey showed Tomales Bay Oyster Company's parking lot was not theirs but in fact was owned by the National Park Service. TBOC's owner indicated to the CCC that he was under the impression is was his. Unfortunately he was wrong.  

Let's see if these help bring some focus

to the problem TBOC needs to deal with.

Things do look a bit different don't they

Also appearing in the August 20, 2014 letter was the CCC pointing out that 80 acres of shellfish production is far larger than 3 acres originally permitted. In addition, restrooms, parking and retail facilities appear to be unpermitted. In fact, it appears that TBOC has been operating without authorization from the CCC for years now.

Deadlines are like leases - there is a fixed point in time to act by

Like DBOC, TBOC is now on notice that there is a fixed date in time which they need to act by. In CCC's August 20 letter, they have extended the deadline for information and action to October 1 of this year. How their attorney interprets that demand is open to speculation, but most likely another lawsuit will be filed, one of many in the ongoing saga of the Drakes Bay Oyster Company.

Geoduck Farming and Waterlogged Logs

Geoduck farm damaged by

waterlogged log. Netting removed

and tubes displaced.

Loose tubes seen just below

the water line were collected (~70).

 

Remaining dislodged tubes were 

carried away by the current,

some over 2,000 feet.

 

11 found and returned to the owner.

Missing lost tubes not collected from the farm

are located somewhere else, most likely

in the subtidal area.

 

 

 

Vibriosis: Reported Illnesses Close Eld Inlet - Vibrion vulnificus found in Washington oysters

[Update 9/14: Vibriosis traced to oysters from Henderson Inlet has resulted in closure to commercial harvesting of oysters from that bay. Henderson Bay and Burley Lagoon have been closed to harvesting of all shellfish due to paralytic shellfish poisoning.]

[Update 9/7: Vibriosis traced to oysters from Peale Passage have resulted in additional cooling restrictions to be put in place for oysters harvested from that growing area. In 2013 it was closed September 19.]

 

Reported Cases of Vibriosis Close Eld Inlet

Eld Inlet has been closed to the commercial harvesting of oysters due to reported cases of vibriosis contracted from oysters harvested from that body of water. Warming water temperatures and increased consumption both play a role in the contraction of vibriosis from Washington State oysters.

Vibrio vulnificus detected in Washington State oysters
Of greatest concern is the warmer water temperatures will begin to create an environment in which the more deadly - and natural - bacterium Vibrio vulnificus becomes as common as it has in the Gulf of Mexico and now in Chesapeake Bay. Florida alone has reported 3 deaths in 2014 from the more deadly form of Vibrio. Last year Vibrio vulnificus was detected in Washington oysters, elevating the level of concern over consumption of oysters harvested from Puget Sound waters.

Tip if the iceberg
As noted last year when vibriosis from oysters harvested from Washington State spiked during the summer:

Dr. Jeff Duchin, Chief of Communicable Disease for Public Health said in a statement, “this is probably the tip of the iceberg. For every case that is reported, an estimated 142 additional cases go unreported.” The bacteria occur naturally in ocean waters and grow more rapidly during the summer months.

Life has risks
Life has risks. Consuming oysters is only one. Being educated of what those risks are and how to avoid them will help ensure those risks are minimized.

Drakes Bay Oyster Company: Is Tomales Bay et al Suit Against DOI Perjurious?

It takes little for a

house of cards to fall.

Where were the local papers?

Save Our Seashore has written a piece on the Tomales Bay Oyster Company's lawsuit which points out numerous areas in which information was withheld or misrepresented. It is copied below.

North Bay / Marin | Environment & Forest Defense

Perjury Abounds in Tomales Bay Oyster Company Lawsuit

by Save Our Seashore
Thursday Sep 4th, 2014 9:42 AM

In a new lawsuit, Drakes Bay Oyster Company's industry allies, including Tomales Bay Oyster Company, have committed numerous instances of perjury by withholding relevant information and materially misinforming the Court in order to manufacture their bogus claims of economic harm due to the closure DBOC. Additionally, numerous restaurants joining the TBOC lawsuit withheld relevant, self-produced information that directly undercuts their manufactured claims of economic harm.

PERJURY ABOUNDS IN TOMALES BAY OYSTER COMPANY LAWSUIT Tomales Bay Oyster Company filed a new lawsuit in the ongoing attempt to prevent the long-planned closure of Drakes Bay Oyster Company (DBOC) rather than allow the restoration of Drakes Estero Wilderness. DBOC, which has made millions of dollars rent-free off public lands since its lease expired in 2012, lost its last attempt to continue operating on June 30th when the U.S. Supreme Court rejected its appeal.
In the new lawsuit, Drakes Bay’s industry allies, including Tomales Bay Oyster Company (TBOC), have committed numerous instances of perjury by withholding relevant information and materially misinforming the Court in order to manufacture their bogus claims of economic harm due to the closure DBOC. Additionally, numerous restaurants joining the TBOC lawsuit withheld relevant, self-produced information that directly undercuts their manufactured claims of economic harm.
"Conservative groups have attempted to portray this as a David and Goliath story— that of a small-time business owner struggling to stay alive amid the punishing and capricious dictates of a federal bureaucracy. Baloney. This is becoming a parody of modern politics.” "Truth on the Half Shell,” Santa Rosa Press-Democrat editorial, May 13, 2013
1. DBOC’s industry ally, Tomales Bay Oyster Company, withheld information from the Court that it has substantially increased production to far more than replace DBOC’s “irreplaceable” oysters. (see HERE for details)
     A. Tomales Bay Oyster Company plans to increase production by as much as nearly 1,000% and more than replace DBOC oysters.
     B. DBOC’s closure and new suppliers will increase oyster seeds available to Tomales Bay Oyster Company and more than replace DBOC oysters.
     C. Tomales Bay Oyster Company has more than enough inventory to cover temporary closures and replace DBOC oysters.
2. Tomales Bay Oyster Company withheld information from the Court that its claimed “lost sales” are actually unauthorized sales only made possible by TBOC’s multiple permit violations. (see HERE for details)
     A. Tomales Bay Oyster Company violates its rural hours of operation, illegally inflating sales that create a false “need” to buy extra DBOC oysters.
     B. Tomales Bay Oyster Company’s life-threatening parking illegally inflates sales that create a false “need” to buy DBOC oysters.
     C. Tomales Bay Oyster Company violates its rural farmstand permit that allows it to sell only its own oysters and thus there is no “need” to buy DBOC oysters.
3. Dixon Marine withheld information from the Court that Drakes Bay’s “irreplaceable” oyster shells are actually not “needed” for the Living Shoreline Project. (see HERE for details)
     A. Dixon fails to disclose that there are alternative suppliers for oyster shells.
     B. Dixon fails to disclose that the cost of DBOC’s donated non-native oyster shell is trivial.
     C. Dixon fails to disclose that native oyster shell is preferred.
     D. Dixon fails to disclose that the same species of oysters that DBOC grows is considered a threat to SF Bay.
4. The Alliance for Local Sustainable Agriculture in Marin (ALSA) has materially misinformed the Court, including exaggerating Drakes Bay’s importance and withholding information about Drakes Bay’s impacts on surrounding ranches. (see HERE for details)
     A. ALSA fails to disclose that its claims to be an “environmental” organization are based on false and misleading information.
     B. ALSA fails to disclose that its statistical claims about the Drakes Bay Oyster Company are consistently false based on public records.
     C. ALSA fails to disclose that its claims about impact to ranches surrounding Drakes Bay are the reverse of what ALSA claims.
5. Various restaurants all claim harm from the closure of DBOC, yet fail to disclose to the Court that their menus are broad and flexible. (see HERE for details)
     A. Sir and Star restaurant prides itself on menu that “change[s] with the season and what is available,” so the claimed dependence on Drakes Bay oysters is an exaggeration.
     B. Other restaurants fail to disclose that their menus include shellfish from thousands of miles away, so their claimed dependence on local Drakes Bay oysters is an exaggeration.



The full document can be viewed by clicking HERE

Drakes Bay Oyster Company: West Marin Environmental Action Committee Update on Tomales Bay Oyster Company Suit

EAC News and Upcoming Events

Interior Department Files Opposition Brief Against Tomales Bay Oyster Company Preliminary Injunction Motion

Late last week, the U.S. Department of the Interior filed its brief in federal district court opposing the Tomales Bay Oyster Company's motion for preliminary injunction to stop the closure of the Drakes Bay Oyster Company. Reasons cited the Interior Department's opposition brief include:

 

- "The TBOC Plaintiffs’ moving papers contain no evidence of any true emergency, no evidence of irreparable harm, and no likelihood of success on the merits of their claims."

- "Further, in its 2012 and 2013 annual proof-of-use reports, TBOC identified the principal constraint on its ability to expand shellfish production in Tomales Bay not on the loss of supply of mature oysters it purchased from DBOC, but instead on the limited availability of oyster seed. Because Plaintiffs can only speculate about the effect of DBOC’s impending closure on the market for local oysters, Plaintiffs’ injury is not irreparable."

- "The public has a powerful interest in achieving and enjoying full wilderness status for the waters of Drakes Estero, as Congress originally intended in enacting the Point Reyes Wilderness Act in 1976."

- "The injury that Plaintiffs assert—that NOAA allowed too much coordination with the State of California during the CZMA process—is simply outside the zone of interests that the CZMA seeks to protect. Plaintiffs have no statutory standing, and their CZMA claim against NOAA must also be dismissed."

You can read the Interior Department's opposition brief here.

Federal District Court Denies Amicus Brief By Judy Teichman for Phyllis Faber, Robin Carpenter, Laura Watt

In a somewhat unusual move, the Interior Department opposed the filing of an amicus "friend of the court" brief by Judy Teichman on behalf of Phyllis Faber, Robin Carpenter, Laura Watt and others. Reasons for the opposition, with which the federal court agreed, include:

- the Teichman/Faber proposed amicus brief made "the same arguments as Plaintiffs and use similar authorities to support their identical interests," and did not "provide unique information or perspective to the Court."

- the Teichman/Faber proposed amicus brief applicants "are "friends of the plaintiffs" and not "friends of the court,"" resulting in "a highly partisan attempt to influence the Court to find in favor or Plaintiffs by repeating the same arguments advanced in Plaintiffs' motion for preliminary injunction."

You can read the Interior Department's opposition brief here.  Read the court order denying the amicus brief here.

Drakes Bay Oyster Company's Operations Cause Ongoing Harm to Drakes Estero

http://coastodian.org/sustainable-oyster-farming-west-marin-style-part-5-dboc-trash-in-drakes-estero-directors-cut/

Please take three minutes, if you haven't already, to view the underwater video shot by Richard James of the trash in Drakes Estero from the Drakes Bay Oyster Company's operation.

Trash, Invasive Species Left Behind as Controversial Oyster Farm Closes

"But running what amounts to an industrial facility in a designated wilderness has an impact on the land, and that impact is still visible in the piles of plastic and metal oyster growing racks occupying the site. What's more, the farm seems to have introduced highly troublesome invasive species to the protected estuary."

http://www.kcet.org/news/redefine/rewild/aquatic/trash-invasive-species-left-behind-as-controversial-oyster-farm-closes.html

Upcoming EAC Events - Please Join Us!

50th Anniversary of the Wilderness Act:  Tomorrow, September 3rd, marks the historic 50th Anniversary of the Wilderness Act! EAC encourages you to get out into the wild and reconnect with the beauty and biodiversity and renews and sustains us all. And, please remember to support the Environmental Action Committee of West Marin, the leader in protecting West Marin's Wilderness! No one does more than EAC to protect the Point Reyes National Seashore and wild places in West Marin!!

Piper on the Ridge: Sunday, September 7th. Bring your friends and a picnic to this time-honored tradition to celebrate the changing seasons atop Mount Vision in Point Reyes National Seashore while bagpiper Dan McNear plays to the setting sun and rising full moon. We will begin gathering at 5:30pm – follow the signs to the parking area atop Mt. Vision Road. Bring a little cash to pay the piper!

Coastal Cleanup Day: Saturday, September 20th, 11am-2pm.  Drakes Beach, Point Reyes National Seashore. Come celebrate the 30th Annual Statewide Coastal Cleanup Day with EAC and friends! This is a great family-friendly event to give back a little to the beaches we all love, learn about our Marine Protected Areas, and enjoy some time on beautiful Drakes Beach.

Litter Bugs Me Roadside Cleanup: Saturday, October 4th, 8am-12pm. Meet at White House Pool County Park. EAC will have bags, gloves, safety vests, and coffee and doughnuts. Help us keep our watersheds trash-free!

Pelagic Bird & Marine Mammal Watching Trip from Bodega Bay to Cordell Bank: Sunday, October 12th, 7:30am-4:30pm. Join EAC aboard the New Sea Angler out of Bodega Bay for an all-day extravaganza of seabird and marine mammal watching to Cordell Bank and back. We will have three all-star birding guides, you won’t want to miss this adventure! Email:  admin@eacmarin.org to reserve your spot today. Cost is $150/person or $135/person for EAC members.

Coming soon:  Marin MPA Watch, a citizen-science collaborative among EAC, the California Academy of Sciences, and the Point Reyes National Seashore, will be hosting volunteer information meetings and trainings this fall. Stay tuned for upcoming information.

For the wild,

Amy

Amy Trainer, JD

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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Those who contemplate the beauty of the Earth
find reserves of strength that will endure
as long as life lasts. ~ Rachel Carson

KING 5's Story on Burley Lagoon Geoduck Farm to Air Monday, 9/1 During 6:30 News

[9/1 update - corrected date]
KING 5's Janet Kim will air a piece on a proposed geoduck farm in Burley Lagoon on Monday, 9/1 during the 6:30PM news.

Right to farm?
Does Taylor Shellfish have "the right to farm" wherever, whenever, and however, in what the Shoreline Management Act has defined as the most fragile resource of the state, its tidelands? Does agriculture have the "right to farm" in a wetland? Does a timber company have "the right to farm" in a riparian zone?

Plasticizing Puget Sound tidelands will not save native species.
Should any tideland area in Puget Sound be allowed to be "plasticized" in the name of "aquaculture"? The shellfish industry believes so.

Is spraying herbicides and pesticides onto Puget Sound's tidelands a constitutional right?
Should tideland areas have herbicides and pesticides applied with helicopters because native species are an inconvenience to growing shellfish? The shellfish industry believes so.

Expanding the shellfish industry will only make ocean acidification's impact on native species worse.
If ocean acidification is, in fact, as severe a problem as the shellfish industry believes - and it may very well be - expanding the industry will only make it worse. Those millions of additional shellfish added to the waters will only make the dropping the levels of carbonate ions worse, putting additional stress on native species. Governor Inslee may have found a political gold mine for election purposes but as with all things driven by money it is taking him down the wrong road.