Tomales Bay Oyster Company Sues over Drake Bay Oyster Company Closing

Update 7/22: A 1 Acre perspective for Tomales Bay Oyster Company - In the papers filed by TBOC it notes they purchase between 6,000 and 15,000 oysters per week from DBOC. For perspective, this is equivalent to what one acre of tidelands produces. In a paper discussing the use of grow-out bags for oysters (Subtidal Cultivation of the American Oyster) a low end estimate of 2,600 bags per acre will produce 585,000 oysters, or an average of 11,250 oysters per week. How many acres are lying fallow in Tomales Bay? Of course it will take some time for oysters to grow, but then we fall back to what prior proper planning would have prevented.

 

 

 

One more attorney added to the mix

Tomales Bay Oyster Company's Tod Friend and others have filed another lawsuit over Drakes Bay Oyster Company's closure. TBOC and others claim the loss of DBOC oysters will cause them harm and the Philip Burton Wilderness is less important than their financial well being. Could a little bit of planning made a difference?

 

TBOC owner Tod Friend

removing derelict shellfish gear

on unused tideland lease holding.

(picture from Coastodian.org)

 

 

Purchasing a business with eyes wide open

In 2009 Tod Friend purchased Tomales Bay Oyster Company from Drew Alden. At the time, the fact that Drakes Bay Oyster Company would likely not have its lease renewed in November of 2012 was a well known fact. That Tomales Bay Oyster Company may likely lose one its primary suppliers in November of 2012, was a well known fact. Knowing these facts, Mr. Friend chose to go ahead and purchase this operation, with that risk well known, giving him three years to plan for that likelihood.

 

Wouldn't a bit of planning helped?

(picture from Coastodian.org)

 

How was I to know?

Now, in July of 2014, over five years after the fact, TBOC declares their business is now at risk of losing $250,000 to $400,000 and has decided to sue the government. Five years, during which any business owner should have been planning on alternative suppliers. Or expanding their own operations. 

 

3,000 poles removed, thousands more to go

(picture from Coastodian.org)

 

What about those unused tidelands? Better late than never.

It may be TBOC did in fact know the risk was real and had been planning on an alternative. Recently, the Coastodian.org published a series of articles on the abandoned shellfish gear in Tomales Bay. Included in those articles were pieces focused on areas leased by TBOC but apparently abandoned, lying fallow. Following the articles, TBOC has now begun removing the derelict gear, most probably to put the tidelands back into production.

 

Do I need a permit to remove this?

(picture from Coastodian.org)

 

No permits needed to remove shellfish racks - I guess

Forging ahead TBOC has begun the removal of the derelict racks and gear on their leased tidelands. While the recently filed lawsuit TBOC is party to expresses concern over what role the California Coastal Commission should be playing, in this case the belief is the oyster rack removal should be of no concern to the Coastal Commission.

 

The price of success

 

Now, about that parking - or maybe not.

At some point TBOC will have their supply back to normal levels, if not above. It will be without DBOC. Business will be better, and following a typical business model, that demand will allow for higher profit margins. With those profits TBOC may choose to expand their parking and retail outlet, increasing further their profits. It may be DBOC employees would even be interested in employment. Then again, the shellfish industry doesn't always do things the way a normal business might. It's an industry attorneys love.

 



Drakes Estero: Take Time to Thank Congress for Creating the Philip Burton Wilderness

Drakes Estero, the heart of the Philip Burton Wilderness

A contiguous marine wilderness - at last.

Send Congress a thank you for creating the Philip Burton Wilderness - for generations to come
After a long and at times contentious 19 months, the Supreme Court's decision will allow Drakes Estero, the final piece of the Philip Burton Wilderness area, to become part of the contiguous marine wilderness Congress created. You can copy the message below, or write in your own words the appreciation you, and future generations have. (see below how to contact your representative)

"Honorable XXXXXX: I want to say thank you for Congress creating the Philip Burton Wilderness in California. This marine wilderness, which Drakes Estero is the heart of, will live on for future generations to enjoy. Thank you. [xxx your name]"

How to contact your congressional representative to say "thanks"
You can find your congressional contact information here:
http://www.contactingthecongress.org/
There, you may either enter your address information or click on your state and the representative contact information will show up.

Especially those in California
For those in California, most impacted by this contiguous marine wilderness, should take the time to say "thank you" for creation of this incredible wilderness which will be enjoyed for generations to come. Listed below are the congressional districts and representatives from California. Take time to click on the name and fill out the form. You can copy the message below, or simply write your own.
(Click on the name, then "Contact", then "email". Note: You must live in the congressional district to email the congressman/woman.)

1	LaMalfa, Doug	R	506 CHOB	202-225-3076	Agriculture Natural Resources
2	Huffman, Jared	D	1630 LHOB	202-225-5161	Natural Resources the Budget
3	Garamendi, John	D	2438 RHOB	202-225-1880	Agriculture Armed Services Transportation
4	McClintock, Tom	R	434 CHOB	202-225-2511	Natural Resources the Budget
5	Thompson, Mike	D	231 CHOB	202-225-3311	Intelligence (Permanent) Ways and Means
6	Matsui, Doris O.	D	2434 RHOB	202-225-7163	Energy and Commerce
7	Bera, Ami	D	1408 LHOB	202-225-5716	Foreign Affairs Science, Space, and Technology
8	Cook, Paul	R	1222 LHOB	202-225-5861	Armed Services Foreign Affairs Veterans’ Affairs
9	McNerney, Jerry	D	1210 LHOB	202-225-1947	Energy and Commerce
10	Denham, Jeff	R	1730 LHOB	202-225-4540	Agriculture Transportation Veterans’ Affairs
11	Miller, George	D	2205 RHOB	202-225-2095	Education and the Workforce
12	Pelosi, Nancy	D	235 CHOB	202-225-4965
13	Lee, Barbara	D	2267 RHOB	202-225-2661	Appropriations the Budget
14	Speier, Jackie	D	211 CHOB	202-225-3531	Armed Services Oversight and Government
15	Swalwell, Eric	D	501 CHOB	202-225-5065	Homeland Security Science, Space, and Technology
16	Costa, Jim	D	1314 LHOB	202-225-3341	Agriculture Natural Resources
17	Honda, Mike	D	1713 LHOB	202-225-2631	Appropriations
18	Eshoo, Anna G.	D	241 CHOB	202-225-8104	Energy and Commerce
19	Lofgren, Zoe	D	1401 LHOB	202-225-3072	House Administration Joint Library Science, Space, and Technology the Judiciary
20	Farr, Sam	D	1126 LHOB	202-225-2861	Appropriations
21	Valadao, David	R	1004 LHOB	202-225-4695	Appropriations
22	Nunes, Devin	R	1013 LHOB	202-225-2523	Intelligence (Permanent) Ways and Means
23	McCarthy, Kevin	R	2421 RHOB	202-225-2915	Financial Services
24	Capps, Lois	D	2231 RHOB	202-225-3601	Energy and Commerce
25	McKeon, Buck	R	2310 RHOB	202-225-1956	Armed Services Education and the Workforce
26	Brownley, Julia	D	1019 LHOB	202-225-5811	Science, Space, and Technology Veterans’ Affairs
27	Chu, Judy	D	1520 LHOB	202-225-5464	Small Business the Judiciary
28	Schiff, Adam	D	2411 RHOB	202-225-4176	Appropriations Intelligence (Permanent)
29	Cárdenas, Tony	D	1508 LHOB	202-225-6131	Natural Resources Oversight and Government the Budget
30	Sherman, Brad	D	2242 RHOB	202-225-5911	Financial Services Foreign Affairs
31	Miller, Gary	R	2467 RHOB	202-225-3201	Financial Services Transportation
32	Napolitano, Grace	D	1610 LHOB	202-225-5256	Natural Resources Transportation
33	Waxman, Henry	D	2204 RHOB	202-225-3976	Energy and Commerce
34	Becerra, Xavier	D	1226 LHOB	202-225-6235	Ways and Means
35	Negrete McLeod, Gloria	D	1641 LHOB	202-225-6161	Agriculture Veterans’ Affairs
36	Ruiz, Raul	D	1319 LHOB	202-225-5330	Natural Resources Veterans’ Affairs
37	Bass, Karen	D	408 CHOB	202-225-7084	Foreign Affairs the Judiciary
38	Sanchez, Linda	D	2423 RHOB	202-225-6676	Ethics Ways and Means
39	Royce, Ed	R	2185 RHOB	202-225-4111	Financial Services Foreign Affairs
40	Roybal-Allard, Lucille	D	2330 RHOB	202-225-1766	Appropriations
41	Takano, Mark	D	1507 LHOB	202-225-2305	Education and the Workforce Veterans’ Affairs
42	Calvert, Ken	R	2269 RHOB	202-225-1986	Appropriations the Budget
43	Waters, Maxine	D	2221 RHOB	202-225-2201	Financial Services
44	Hahn, Janice	D	404 CHOB	202-225-8220	Small Business Transportation
45	Campbell, John	R	2331 RHOB	202-225-5611	Financial Services the Budget
46	Sanchez, Loretta	D	1114 LHOB	202-225-2965	Armed Services Homeland Security
47	Lowenthal, Alan	D	515 CHOB	202-225-7924	Foreign Affairs Natural Resources
48	Rohrabacher, Dana	R	2300 RHOB	202-225-2415	Foreign Affairs Science, Space, and Technology
49	Issa, Darrell	R	2347 RHOB	202-225-3906	Oversight and Government the Judiciary
50	Hunter, Duncan D.	R	223 CHOB	202-225-5672	Armed Services Education and the Workforce Transportation
51	Vargas, Juan	D	1605 LHOB	202-225-8045	Agriculture Foreign Affairs House Administration
52	Peters, Scott	D	2410 RHOB	202-225-0508	Armed Services Science, Space, and Technology
53	Davis, Susan	D	1526 LHOB	202-225-2040	Armed Services Education and the Workforce

Drakes Bay Oyster Company: Judge says to develop a plan to cease operations by August 11.

Drakes Bay Oyster Company update 7/8: Time to wind it down.

The clock's spring is winding down
July 7, Judge Gonzalez told the Department of the Interior and Drakes Bay Oyster Company to develop a plan to wind down and cease the commercial operation in Drakes Estero, part of the Philip Burton Wilderness area. Another meeting will take place August 11.

Humboldt Bay proposals (L, in blue)
and Drakes Estero (R)

(click to enlarge)

(Humboldt Bay image information taken from 

shellfish industry paper dated August 29, 2013.)

Look north young men and women

One suggestion has been that DBOC consider relocating the operation to other tideland areas in California, with Humboldt Bay being mentioned as a possible alternative. There, the shellfish industry has been working with state and local officials to open large tracts of the northern portion through the "California Shellfish Initiative." The image above shows for comparison the size of the two bodies of water. The red line is equal to one mile. These skilled workers, should they desire to start their own company, would most likely find money readily available, providing wealth far beyond that from being a DBOC employee, and set an example to their children of how adversity is overcome. Without the help of lawyers, lobbyists, and public relations firms.

Look to the past to temper optimism

While DBOC attorneys appear willing to negotiate the final actions necessary to complete the Philip Burton Wilderness area, past performance and recent statements should temper optimism. There have been numerous agreements to work out issues in the past, only to find attorneys recommending legal actions instead. Most recently, public relations attorney Peter Prows has stated: 

"...we will be evaluating over the next couple of weeks what new claims we might want to bring and how to proceed."

A horse cannot swim forever
Mr. Lunny has stated he believes he is fighting this because "it is right." He is entitled to his beliefs, but the simple fact is he made a bad business decision when he assumed he could somehow get the lease extended. 19 months of legal actions have resulted in the courts supporting, over and over, the Department of the Interior's position that the lease would end November 29, 2012; that Mr. Lunny was fully aware of that fact when he purchased the farm in 2005; and, that Congress legislated the creation of the Philip Burton Wilderness and did not exclude the oyster farm. This horse needs to be brought to shore and put out to pasture, for the benefit of all.

Agriculture and ranching in Marin County are not threatened
Claims of agriculture and ranching in Marin County being under siege and that this step is only the first in a long march to eliminate them is little more a public relations executive's pen put to paper. It is without foundation and to repeat it does not make it any more true. Agriculture and ranching have been, are, and will be a strong part of Marin County. A public relations executive in San Francisco won't change that.

The 6 p's of business: prior proper planning prevents poor performance
Asking for additional time to develop a plan which should have been developed in 2012 when the lease was slated to end is a simple example of the what happens when a business does not plan. Giving DBOC another month is generous. It is hoped they will use it wind things down, not wind up another legal plan in which only the attorneys benefit.

Drakes Bay Oyster Company: June 11 - NPR to Air Story on Drakes Estero Wilderness

Update 6/12: NPR's broadcast of their story on Drakes Bay Oyster Company preventing Drakes Estero from becoming part of the Philip Burton Wilderness Area is available on-line. Click here to listen to their story.

 

Amy Trainer,

Executive Director of the

West Marin Environmental Action Committee

 

June 11: National Public Radio will air a story on Drakes Estero becoming the wilderness Congress intended at ~6:40AM and 8:40AM. Amy Trainer with the West Marin Environmental Action Committee and strong supporter for the completion of the Philip Burton Wilderness Area, which Drakes Estero is part of, will be one of those interviewed.

Part 2: Bill Moyers Interviews Environmentalist David Suzuki

David Suzuki, interviewed

by Bill Moyers.

Part 2 of Bill Moyers' interview with David Suzuki explores further the influence of economics on environmental perceptions. As in part one, anyone paying attention to Drakes Bay Oyster Company's well paid public relations press will find insight into how to frame an environmental issue for the benefit of business at the expense of the environment. While focused on climate change, the means used to attack those who believe the climate has in fact changed as a result of human activities, are behind the reasoning used to justify a commercial operation in Drakes Estero, preventing the completion of the Philip Burton Wilderness Area.

In the case of DBOC, labels of "enviro Nazis" and "environmental zealots" are used to describe those who believe the Wilderness Act is clear in saying commercial operations are not compatible with wilderness. A permit's expiration date, well known when the current owners purchased the operation, is now described as "big government's overreaching" action. As noted in Bill Moyers' accompanying article:

In the second part of his conversation with Bill, Canadian scientist and environmental activist David Suzuki says killing the messenger is a 50-year-0ld strategy ripped straight from big tobacco’s playbook.
“This is a very effective thing that we know has been done by the tobacco industry [and] it’s being done by the fossil fuel industry… You attack a person on the basis of their trustworthiness, their ulterior motives, anything to get away from dealing with the issues”

As the Supreme Court's decision on whether to hear the case or not approaches, the arm waving increases. The conservative Pacific Legal Foundation puts out well buffered videos. Professors  complain that science isn't perfect when, in fact, this is an issue of a permit coming to an end not whether a class room experiment was designed correctly. "Friends" with nothing more than their own economic gain from book sales on the history of Drakes Estero feign deep concern. And cocktail party conspiracies of running agriculture out of Marin County, with Sonoma County next, are discussed on talk shows whose primary focus is on listening to speeches played backwards to hear the hidden meanings. It is arm waving which will not lift the idea out of the bridge club. 

Drakes Bay Oyster Comany: No More Floating Black Tubes

Now they are white and they sink.

 

(picture by Richard James, coastodian.org)

In a March 30 post on The Coastodian, Richard James writes about the continued plastic pollution created by the Drakes Bay Oyster Company in Drakes Estero, a commercial operation within the Philip Burton Wilderness Area which is preventing the final completion of that congressional act. In that post he describes having met with DBOC owner Kevin Lunny last year who noted the black tubes Mr. James and others continue to find along the shoreline are not his but instead are from the old operation he purchased. He assured Mr. James any tubes he found were not from the current operation which instead used longer white tubes.

My tubes are white.

(picture by Richard James, coastodian.org)

That sinking feeling
What Mr. Lunny neglected to tell Mr. James was that in addition to being white the current plastic tubes used also sink, preventing them from floating away to be discovered on the shorelines of the Philip Burton Wilderness Area. On the sediments they provide one more artificial surface on which the non-native tunicate Didemnum vexillum (Dv) is able to establish colonies on from which tailed larvae, buds, and portions of the colonies spread. Contrary to what the shellfish industry would have one believe, it in not a beneficial "structure" which enhances the habitat of Drakes Estero.

DBOC is not the only source.



April 12, Point Reyes beach cleanup day
April 12 will provide the public a focused opportunity to help clean up the plastic and trash - from a multitude of sources - which accumulates along the shorelines of Point Reyes. If you are interested in helping to ensure this form of pollution is minimized you may sign up here.

Drakes Bay Oyster Company: Far More than a Local Issue, Far Less than a PR Creation

"It's Not Just About the Oysters"

California Lawyer, March 2014

 

Drakes Estero: The final piece in creation of

the Philip Burton Wilderness area.

Drakes Estero: More than an oyster farm.



Philip Burton Wilderness - waiting to be completed
In the March 2014 publication of California Lawyer, Kelly O'Mara presents a detailed overview of what to date has prevented the completion of the Philip Burton Wilderness area, as defined by Congress in 1976. Within Drakes Estero and along its shoreline is a commercial shellfish operation whose reservation of use ended in November of 2012. Afterwards, the commercial operation was to have ceased, allowing for the congressionally created Philip Burton Wilderness to be completed, something which citizens across the United States, and in fact the world, could experience. Instead, as detailed in the article, attorneys representing the commercial shellfish operation have prevented the last step from being taken through appeal after appeal, now believing the Supreme Court will hear their arguments.

A contiguous marine wilderness area which benefits everyone, not just West Marin
Within the population of West Marin, an area known for its wealthy residents but which also includes ranchers and farmers of less well means, the question of whether this commercial shellfish operation should remain is a challenge for many of them. In Ms. O'Mara's piece she notes the possibility of mediation to bring the two disparate sides together. A healing of sorts, and something which at a local level is clearly needed. But it should be clear to everyone that experiencing the Philip Burton Wilderness, the only marine wilderness area on the west coast outside of Alaska, goes far beyond West Marin. Its creation/completion would be a national treasure.

Put it in perspective.

Economies of National Parks - put it in perspective
In the West Marin Independent Journal on March 3 is an article entitled "National parks in Marin bolster local economy, report says." In that article it is noted that visitors to the Point Reyes National Seashore, which the Philip Burton Wilderness is part of, generated over $97 million from 2.4 million visitors. There is no question that some number came to visit the small commercial shellfish stand. But as reported, this commercial shellfish operation only generated $1.5 million (3% of oysters on the west coast), with only a part actually generated from visitors, the rest being sold outside of the National Park. Despite a well organized public relations program, the commercial shellfish operation which is preventing the creation of the Philip Burton Wilderness is insignificant to the overall revenues generated. Would there be fewer visitors to Point Reyes were it to cease operation? Unlikely.

Department of the Interior Files Response to Drakes Bay Oyster Company's Request for En Banc Rehearing

Drakes Estero: A Wilderness for Everyone

The Department of the Interior (DOI) has filed its response to Drakes Bay Oyster Company's (DBOC) request for an en banc rehearing. It presents in clear logic why the 9th Circuit Court of Appeal's decision "...does not present any question of exceptional importance, nor does it identify any conflict between the panel opinion and existing precedent." It is clear the Court should reject DBOC's request for a rehearing and allow Drakes Estero to revert to wilderness, for the benefit everyone.



Amici Briefs Not Persuasive
In addition to addressing DBOC's request for an en banc hearing, the response also addresses briefs filed in support of DBOC. The DOI states clearly that "None of the amici [friends] present persuasive reasons for an en banc review." Half of those briefs were penned or filed by DBOC's own counsel, a clearly orchestrated event.

Most persuasively, the DOI response notes that Congress could have made "...an explicit allowance for private commercial shellfish cultivation, but it chose not to do so, instead opting for a transitional "potential wilderness" in which non-wilderness would be steadily removed."

At the state level, DOI emphasizes that "...DBOC's state leases are contingent on the Park Service's continued authorization of its activities." It goes further to note "...the adjacent Estero de Limantour.." has already been converted "...from "potential wilderness" to "wilderness," even though it is subject to the same retained rights as Drakes Estero."

Jobs and entrepreneurship
It is true there will be a loss of jobs handling shellfish from Drakes Estero. However, it is also true there are thousands of acres of tidelands in California currently permitted but not in production. Examples of entrepreneurs who were laid off or fired from corporations who then go on to start their own successful companies exist throughout the United States. Corey Goodman, one of DBOC's amici's, is one such example. After being let go from Pfizer, Dr Goodman went on to become a successful venture capitalist and cheese maker. There is no reason these skilled employees could not take their knowledge of operating a shellfish farm, which they have been doing successfully for decades, and create their own successful corporation, providing their children with far more independence than they currently have.

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.