Drakes Bay Oyster Company: Changing Tides Changing Attorneys

Updated 5/30:

Link to May 17 COA letter to PBS added. 

Link to Steven Maglivio's piece on COA being dropped, which ends with this succinctly written paragraph:

But it's too little, too late for the oyster corporation, which produces just 3 percent of the oysters on the west coast. The move to cozy up to the right-wing clearly has hurt the company's efforts to portray itself as the little guy vs. big government. And that's something -- like the agreement the Lunny family made to shut down -- it simply just can't walk away from and pretend didn't happen.

 

And so castles made of sand ...

Drakes Bay Oyster Company (DBOC) has severed its relationship with the conservative group Cause of Action (COA) over the latter's request to PBS for video tapes of interviews used for a recent report on PBS Newshour. (Note: COA has removed their post on the FOIA request. Their May 17 letter to PBS may be viewed here: May 17 COA Letter to PBS.)

As written about earlier, Cause of Action felt it had been portrayed unfairly when executive director Dan Epstein was described by PBS as being “an attorney who once worked for a foundation run by one of the conservative activist Koch brothers" and those opposed to the continued commercial operation were not labeled as COA felt they should be (e.g.,  Amy Trainer is only "described as the head of an environmental group.").

Cause of Action also felt it had been somehow portrayed inaccurately to Phyllis Faber, participant in a lawsuit against the California Coastal Commission's action on DBOC's inaction of violations, noting, "Environmental activist Phyllis Faber is described as 'not happy to be on the same side as Cause of Action.'  In the May 1, 2013 NewsHour broadcast, Ms. Faber is quoted as stating, 'I am very disturbed by that and I don't agree with it at all.'" (Note: The California Coastal Commission has asked the court to dismiss Ms. Faber's lawsuit and for it to fine DBOC for its “'intentional and knowing' violation of state law and the agency’s orders.")

Beware of pro-bono legal representation

DBOC chose to allow Cause of Action and conservative friends into its house with offers of free legal support. The reasons for and consequences of that action could be seen by anyone with an objective eye. Now DBOC has tied itself directly to those who see this as the opportunity to break the Wilderness Act and extract the minimal resources which exist in those few areas Congress intended be set aside for all citizens, not just an exclusive few. How would Marin County feel if they looked in their rear view mirror and saw Cause of Action - or the Pacific Legal Foundation - representing developers from San Francisco pointing to millionaires developing parcels set aside as farm easements and saying "The Marin Agricultural Land Trust (MALT) should be dismantled so we may put up condominiums."

Instead of smoothly winding down a commercial operation DBOC knew was destined to cease in 2012, they instead chose to gamble in hopes they could prevent the completion of the wilderness Congress intended for all citizens to enjoy. Instead of helping their employees start a new operation in Tomales Bay or elsewhere they bussed them from location to location for photo-ops to be used for the benefit of conservative groups. Instead of suggesting to those caught up in the "gift" of the Trojan Horse from COA that they help fund employee training and/or relocation, attorneys from San Francisco and Washington DC are instead made more wealthy.

Stepping back and rethinking what to do in order to avoid another train wreck is something which a group such as Gallatin Public Affairs makes fortunes off of. Whether they, or someone similar is brought into the picture, a broader perspective and solution which is inclusive of all citizens, and not for an exclusive few, needs to be presented.

Drakes Bay Oyster Company: Attorney Who Worked for Koch Brothers Upset with PBS Report, Files Freedom of Information Request

Update: 5/23 - Cause of Action has withdrawn its FOIA request to PBS.
Updated 5/18: From a local Marin County resident - "my they are touchy, aren't they!"
5/17: from Cause of Action web site: "Today, Cause of Action submitted a FOIA request to PBS for the footage of interviews that went into this piece to determine if PBS misled viewers." 




What a tangled web ...

Cause of Action's executive director Dan Epstein, past attorney for a foundation run by one of the conservative Koch brothers, is apparently upset he was described as such by PBS ( “an attorney who once worked for a foundation run by one of the conservative activist Koch brothers”). In reaction Cause of Action has filed a request under the Freedom of Information Act (FOIA) for footage of interviews, presumably under his direction as executive director. He is trying to understand why others mentioned (e.g., Tom Strickland and Amy Trainer) were not described with adjectives he sees fit.

Dan Epstein, past attorney

 for conservative Koch Brothers





(Prior to his current position at Cause of Action, and after working for the conservative Koch Brothers foundation, Mr. Epstein became a "Republican counsel for the House Oversight and Government Reform Committee, which is chaired by Obama administration critic Rep. Darrell Issa (R-Calif.)" (from Cause of Action web site). Representative Issa's reputation stands on its own conservative platform.)

Ms. Phyllis Faber

"Environmental activist" (per Mr. Epstein) is upset

she is now tied to Mr. Epstein's group.

One of the directors of Marin Media Institute

which owns Point Reyes Light newspaper.

MMI was co-founded by Dr. Goodman.

In addition to his being upset with his past job description Mr. Epstein is also upset that Phyllis Faber is not happy with her now being tied to groups such as his Cause of Action who clearly view the Drakes Bay Oyster Company as a means to obtain resource extraction rights from other wilderness areas. In the PBS interview, Ms. Faber states she is:

“not happy to be on the same side as Cause of Action.”  In the May 1, 2013 NewsHour broadcast, Ms. Faber is quoted as stating, “I am very disturbed by that and I don’t agree with it at all. I think what they’re headed for is trying to use a commercial operation in a park – they want to establish that in other public, on other public lands and I think that’s terribly unfortunate.” [regrettably it was something she might have considered before filing a lawsuit against the California Coastal Commission for taking action against Drakes Bay Oyster's "egregious" ignoring of violations]  

Note: The CCC has filed suit against Drakes Bay Oyster Company. DBOC's reaction? It's "in retaliation" for all of the law suits filed on our behalf. A "how to respond" lesson learned from Mr. Epstein. (click here for article) 

Like Mr. Epstein being upset with the description of he and his past employers, he also feels Cause of Action was not described to Ms. Faber as it should have been. He claims the only reason Cause of Action became involved was over concerns about the quality of information developed, brought to his attention by Drakes Bay Oyster Company's Kevin Lunny and Dr. Corey Goodman. Apparently he was unaware it was something which shellfish attorney Billy Plauche wrote to the National Park Service about in August of 2007, as requested by the Pacific Coast Shellfish Growers Association. (click here for 2007 letter)

Shellfish attorney Billy Plauche

who wrote to NPS about "information quality"

in 2007 for the PCSGA.

Mr. Epstein is certainly free to describe the reason for his actions however he wishes, but the fact is if this private commercial operation is allowed to operate in the designated wilderness it will set a precedent for how to dismantle the wilderness act and create a new "corporate wilderness" which benefits only private corporations or individuals, such as Mr. Epstein's past employer, the Koch Brothers.

 

Dr. Goodman (r) and Mark Dowie (l)



As an end note, if Mr. Epstein is truly concerned about unbiased press and government transparency he might consider exploring whether the local Point Reyes Light newspaper (owned by the Marin Media Institute which Dr. Goodman co-founded and which Phyllis Faber was also a director of) may be using unbiased adjectives in their reporting on Drakes Bay Oyster Company's problem, or how much money has been spent on water quality testing in Marin County using technology Dr. Goodman helped privatize (click here). More likely Mr. Epstein will continue to complain about the press and government overreach.

Drakes Estero Shoreline Wilderness: The Straw Man Gets Beat Up

Update: Secretary Salazar - “Very simply, a deal is a deal,” Salazar said during an editorial board meeting here[at the San Francisco Chronicle]. "You can debate the science… but at the end of the day, this is a property rights issue.” [click here for article]

If I only had a brain, I too could

argue about things unrelated to the question.

In the ongoing attempt to create a straw man argument to justify preventing Drakes Estero from becoming the wilderness shoreline congress intended 40 years ago, Dr. Corey Goodman continues to expend time and energy on something irrelevant to the decision not to extend Drakes Bay Oyster Company's lease. As co-founder of a number of pharmaceutical companies, Dr. Goodman understands well the importance of science as it applies to the creation and production of therapeutic pharmaceuticals and in the success of companies. No doubt he also understands that when a lease ends the property owner also has the option to not renew that lease. They are two separate and distinct issues.

Dr. Corey Goodman

Scientist and Entrepreneur

PhyloChip>PhyloTech>Second Genome
This focus on the scientific method and Dr. Goodman's later entrepreneurial drive is found in one of the companies Dr. Goodman helped fund and found, PhyloTech (now called Second Genome, whose Board Chair is Dr. Goodman). In November of 2007, Marin County Supervisor Kinsey and others authorized the acceptance of an $848,000 grant from the State Water Resources Control Board which would use a technology incorporated in "PhyloChip" for water quality testing in Marin County. Included was to determine its ability to detect pathogens which impact shellfish farming and to determine the source of those pathogens at a genetic level. At that November 2007 meeting John Hulls spoke of the unique capabilities this chip and product possessed.
[click here for a video of that meeting] *click on #10, "Beach Monitoring PhyloChip Project"
[click here for the first annual update]
[click here for the final report]
[click here for a brief discussion]

Berkeley Lab’s DNA Microarray

for Rapid Profiling of Microbial Populations,

also called PhyloChip.



It's not cattle and it's not septics.
John Hulls became acquainted with Dr. Goodman years earlier over concerns about what the sources of pollution in Tomales Bay were. [click here for a 2006 email from Mr. Hulls] Dr. Goodman had "been appalled by the antiquated state of bacteria testing." [click here for their history] As the owner of a ranch, or perhaps through an opportunity to use his ranch for the East Shore community septic system, it would be important to know what the sources of fecal coliform are. It is an ongoing issue in many bodies of water.

In 2009, Mr. Hulls, having experienced first hand the capabilities of the PhyloChip technology, phoned Dr. Goodman. Shortly thereafter Dr. Goodman had arranged funding and PhyloTech was started with Dr. Goodman as the Chairman. Since that time PhyloTech has changed its name to Second Genome [click here for company information] It is unclear what happened to the PhyloChip product and in a recent note, CEO Peter DiLaura told BioArray News, Second Genome "is focused more on opportunities in the pharmaceutical arena and conducting human health studies than on environmental monitoring as part of public health initiatives."

The Hulls/Goodman Tag Team Beat Up the Straw Man
In addition to John Hull's involvement with Marin County through the $848,000 grant, and over concerns of what pathogen sources really were, Mr. Hulls also became involved in the Drakes Estero shoreline wilderness issue. In September of 2008, Mr. Hulls wrote a letter to the National Academy of Sciences hypothesizing that there was "some other effect" impacting the seal pup population, not Drakes Bay Oyster Company's commercial operations. [click here for Mr. Hulls letter] About the same time, Dr. Goodman also began expressing concerns over the quality of science. To that end, both have devoted a great deal of time and effort in discussing just what it all means, or doesn't. So too has the shellfish industry through attorneys and environmental firms.

I've been renting this house for 5 years. I don't care if you own it, it's mine.
Unfortunately, their concerns are nothing more than beating up on a straw man which means little. The conclusions reached had nothing to do with deciding whether the lease signed 40 years ago should be renewed or not. The conclusions reached have nothing to do with whether the owners of Drakes Estero - the public - should be allowed to enjoy the Estero as Congress intended, 40 years ago. The issue is whether a commercial operation should be allowed to operate in a designated wilderness area. It should not.

Dr. Goodman's opinion on what is good science is irrelevant to whether a minuscule percentage of land in the United States should become wilderness or not. The shellfish industry may not like the conclusions. The oil industry may not like the conclusions. Cause of Action may not like the conclusions. Whether they choose to fund a legal challenge to that decision is their choice, but they will, in the end, lose.

Drakes Bay Oyster Company is not Natural
Drakes Bay Oyster Company's commercial operation is not "natural" in any sense of the word. Shellfish grown are not native. Structures used are not natural. Upland buildings used are unpermitted. This commercial operation is the only thing preventing the creation of a wilderness shoreline, the only one proposed which will be the only one on the West Coast.

California Fair Political Practices Commission Investigates Koch Brothers

Politico has reported that the California Fair Political Practices Commission is investigating the Koch Brothers. While not specifically related to Cause of Action's legal support for the Drakes Bay Oyster Company it does shine a brighter light on where the funding for Cause of Action is coming from. [click here for complete article]

Charles and David Koch



In the article, "Koch World reboots", Politico notes:

The California investigation is trying to unmask the original source of a mysterious $11 million donation that was funneled through a key Koch conduit in the weeks before Election Day to a California political committee boosting a 2012 ballot measure to restrict union political activity and opposing a separate ballot proposition to raise taxes.

In the larger picture it describes the Koch brothers having called for an audit after having "spent hundreds of millions to win the White House and the Senate — and came up empty." Demonstrating the severity of concern, most likely from large donors who didn't get what they wanted and whose anonymity is now threatened with exposure, "they’re not waiting for the final report for heads to roll."

Dan Epstein



Specific to Drakes Bay Oyster Company, Cause of Action has refused to disclose who its donors are. Headed by Dan Epstein, a former staffer of the "Charles G. Koch Charitable Foundation", COA is leading the legal fight in support of DBOC being allowed to continue its commercial operation in the only wilderness shoreline area on the Pacific West Coast.  [click here for East Bay Express article on the Koch connection] 

It may very well be the Koch Brothers are not supporting Cause of Action who is paying the legal fees incurred in the support of Drakes Bay Oyster Company, begging the question, if they are not, who is? The East Coast Shellfish Growers Association's Vice-President is DBOC owner Kevin Lunny's cousin. The Pacific Coast Shellfish Growers Association has previously allocated funds to pay for legal fees from their attorney and lobbyist. Shellfish growers who are members of PCSGA certainly have the money, generated from geoduck farming.

Perhaps the California Fair Political Practices Commission should be sure to include the mysterious Cause of Action, Dan Epstein, and its support for Drakes Bay Oyster Company in its investigation.

California Coastal Commission Has Acted Appropriately Against Drakes Bay Oyster Company

(Editors Note: Sometimes a response to an Op-ed piece is better made by commenting directly within the article.)

 

Background: In the February 16, 2012 issue of the Marine Independent Journal is a "Guest op-ed" by Phyllis Faber, a co-founder of the Marin Agricultural Land Trust and a creator/former commissioner of the California Coastal Commission. It is copied below with comments on her thoughts. Ms. Faber is respected and has devoted most of her life to the preservation of open spaces through conservation easements, and through the California Coastal Commission (CCC), helped control developments on shorelines. That said, Ms. Faber does the CCC and the Wilderness Act a disservice in her well intentioned but misplaced support for the continued operation of the commercial shellfish farm in Drakes Estero.

 

Ms. Faber

Photo, Marine Independent Journal

 

California Coastal Commission uses distorted information to condemn oyster farm, 2/16/13, Marin Independent Journal

Comment: Drakes Bay Oyster Company was not condemned by the California Coastal Commission (CCC). It was brought before the commission to address past violations it did not act on 

Drakes Bay Oyster Company Told Science Showing Adverse Impacts is Sound and Appeal of Decision is Denied

It's Time for DBOC to Cease Operations

An internal watchdog government agency has said the science showing that Drakes Bay Oyster Company's commercial shellfish operation is having an adverse impact on Drakes Estero is sound. They found no fraud, waste, abuse or misrepresentation of data by researchers showing operations were having impacts on Harbor Seals. [click here for article]

Judge Rules Against Drakes Bay Oyster Company

Update: [click here for the Judge's decision]

 

Will the tidelands of Puget Sound's Olympic Penninsula now be made part of the Wild Olympics proposal? 

 

U.S. District Judge Yvonne Gonzalez Rogers on Monday denied owner Kevin Lunny's motion to void Interior Secretary Ken Salazar's order to evict the historic facility from the park, and also declined to allow the farm to continue operating while its legal case proceeds. [abc news]

 

"The court rightly decided that Secretary Salazar had full discretion to let the oyster operation permit expire on its own terms and honor the 1976 wilderness designation for Drakes Estero," stated Amy Trainer, executive director, Environmental Action Committee of West Marin. "We are very grateful for this decision, which supports the Estero's full wilderness protection, and we urge the company to fulfill its long-standing responsibility to its workers by assisting them during this time of transition." [East Bay Express]

 

U.S. District Judge Yvonne Gonzalez Rogers wrote in her decision that she did not believe she had authority to overturn Salazar, and that even if she did, "plaintiffs have not demonstrated a likelihood of success on the merits of the claims." [WRAL]

 

High Tide at the Oyster Shack

December 14, 2012

photo by D. Boyer

 

Castles made of sand...

Judicial Action on Drakes Bay Oyster Company Questioned by Judge

" The judge was a tough audience." (The Recorder)

At the judicial hearing in Oakland California Judge Yvonne Gonzalez Rogers questioned whether she had any authority to intervene on the decision of Drakes Bay Oyster Company's (DBOC) lease being allowed to lapse and not be renewed. The San Francisco Chronicle  reported the question as being put this way: "It seems to me it's much more in the realm of executive, political or legislative functions, as opposed to a judicial function," Gonzalez Rogers said. "... Where's the role of the federal judiciary on that policy decision?" [click here for article] 

DBOC's attorneys continued to focus on their disagreement over the Environmental Impact Statement's showing adverse impacts from the commercial shellfish operation. It is immaterial to the decision of whether the lease should have been allowed to lapse in November.

Additional arguments from DBOC attorneys included loss of jobs. Not mentioned was the Pacific Coast Shellfish Growers Association lobbying in Washington DC last February where they stated unequivocally: "In a healthy economy, the domestic workforce does not provide sufficient numbers of qualified workers for the shellfish industry."  Jobs for the displaced workers exist and they no doubt pay more than what Mr. Lunny offered them for their time spent sitting in the court room being portrayed as victims. In fact, with minimal organization, the skilled workers providing the labor for all shellfish growers could most likely make substantially more than they do now.

Mr. Lunny's continued resistance to admitting he made a bad business decision is all that stands in the way of creating the only marine wilderness area on the Pacific Coast outside of Alaska. It is time for Mr. Lunny to be grateful for the true privilege he had to make the amount of money he did under the agreements with the National Park Service and the California Department of Fish and Game, both affording minimal fees to operate on the tidelands and nearshore area of Drakes Estero.

Drakes Estero: Public Lands and Entitlements

"The ability to use public land for private profit

is a privilege, not an entitlement."

Drakes Estero National Seashore 

 

In all of the articles written on Drakes Bay Oyster Company's (DBOC) press to continue using Point Reyes National Seashore for their commercial shellfish operation, no better sentence encapsulates DBOC's reasoning behind why a nonconforming commercial operation in Drakes Estero should continue. It brings forward the primary issue faced at the court hearing on January 25: Should a nonconforming commercial operation on public lands, purchased with full and clear knowledge the use had an explicit end date for an explicit reason, be allowed to challenge the terms of that agreement and prevent the creation of the only marine wilderness area on the West Coast of the United States? [see the Wilderness Act here]

 

Arguments about the science behind the Environmental Impact Study provide a convenient smoke screen to hide the fundamental question at hand: Is the Lunny family owned DBOC entitled to continue using areas of Drakes Estero for a commercial shellfish operation at the expense of its diminished value as a wilderness area for all the public to enjoy?

 

it is hereby declared to be the policy of the Congress

 to secure for the American people

of present and future generations

 the benefits of an enduring

 resource of wilderness.

The Wilderness Act

 

This is not about the Lunny family, nor is it about shellfish farming or displaced employees. It is not an attempt remove all public lands from commercial use. At the foundation of this case is whether a nonconforming use by corporations, owned by a family or publicly traded, is entitled to continue on public lands designated by Congress to become wilderness after a specific date. Relying on a legislative rider to extend the agreement will set a precedent for other legislatures to create their own riders to extend agreements for other nonconforming commercial operations in other designated wilderness areas, ad infinitum.

In this case, that the nonconforming commercial operation was to end in November of 2012 was clear in the agreement between DBOC and the National Parks Service, signed in 2005. That Drakes Estero was designated to become wilderness was known for decades. That the commercial shellfish operation was considered "nonconforming" was clear. That the commercial shellfish operation was given a more than reasonable amount of time, 40 years (November 2012), to end their operation was accepted as reasonable by the Johnson family's Johnson Oyster Company (JOC), who chose to cease operations earlier, in 2003.

For DBOC to arrive in 2004, purchase the assets and take over the agreement, and now claim their attorneys said it could be extended is nothing more than bad business and bad legal advice. Lobbying to have Senator Feinstein add a rider giving the Secretary of the Interior discretion - not the requirement - to extend the agreement is only an example of corporate lobbying efforts. DBOC's continuing to place shellfish in the designated wilderness area and now claim they will have to be "destroyed" is nothing more than a reflection of their belief in the entitlement they have to continue profiting from the only nonconforming commercial operation preventing the creation of the only National Seashore wilderness area on the West Coast outside of Alaska. An operation they knew full well was intended to end in November of 2012.

It is time for DBOC to cease operations, remove the structures and nonnative shellfish, and allow the Point Reyes National Seashore to become the wilderness Congress intended 40 years ago, for the benefit of present and future generations of all Americans. To do otherwise strikes at the integrity of the Wilderness Act, clearly why Cause of Action has chosen to become involved.

For further detailed legal analysis of this issue see the following:
1. "Will the Wilderness Act Be Diluted in Drakes Estero?"
2. "Congressionally Designated Potential Wilderness Areas"
3. "Contextualizing Secretary Salazar’s Recent Decision on Oyster Farming at Point Reyes"4. "Passions Run High in Bivalve Battle" 

 

Drakes Bay Oyster Company Court Hearing January 25

 

"Will you be having Tea with your oysters?"

January 25, lawyers supported by Washington D.C.'s Cause of Action, an advocacy group with ties to the Koch Brothers, Darrell Issa, and Tea Party politics, will argue in U.S. District Court before Judge Yvonne Gonzalez Rogers in Oakland that Drakes Bay Oyster Company should be allowed to stay in operation until a court challenge to their lease expiration may be decided. [click here for article on Cause of Action] In addition to free legal support, Cause of Action has also created a well polished public relations campaign to help build public sympathy for the Lunny family whose lease for their commercial shellfish farm, purchased in 2004, was not renewed in December. The issue goes far beyond the Lunny family and their oysters.

Drakes Estero Shoreline Wilderness

Background - Cousin in the East Coast Shellfish Growers Association
In 2004 the Johnson family sold their commercial shellfish operation located in the designated wilderness area of Drakes Estero to the Lunny family. The Lunny's purchased the operation fully aware of the government's long-term goal of creating the only wilderness shoreline in the United States. The Lunny's apparent hope was they would be able to convince the government the lease should be extended and not end in 2012, a calculated gamble. Combined no doubt with encouragement found in Mr. Lunny being a cousin of the then President of the East Coast Shellfish Growers Association, Tom Kehoe, he stepped up and purchased the operation. In 2012, Interior Secretary Salazar confirmed the commercial shellfish operation did not fit within the definition of "wilderness" and allowed the lease to expire. Mr. Lunny lost the card game, but there is a bigger game being played.

Scientific Disagreements
Entwined within the argument of whether the lease should have been extended or not was an Environmental Impact Statement performed by the Nationnal Park Service. After a multi-year process the EIS showed there were significant adverse impacts from the commercial shellfish operation, ranging from the introduction of non-native shellfish species (Pacific oysters and Manila clams) to the spread of the non-native invasive tunicate, Didemnum vexillum. The conclusion was that these adverse impacts would continue and get worse, a conclusion the shellfish industry became alarmed about. [click here for EIS]

Non-native Invasive Tunicates from

Taylor Shellfish's Mussel Raft in Totten Inlet

Also found in Drakes Estero on shellfish from DPOC.

Shellfish Lobbying Groups Mobilize
In 2005, the Pacific Coast Shellfish Growers Association (PCSGA) became engaged in the process, and, in 2006, brought in their Washington DC lobbyist, David Weiman, to lobby for the renewal. In 2007, becoming aware of the growing body of scientific evidence showing the commercial operation's adverse impacts, PCSGA had their attorney (Mr. Plauche) become involved and filed a complaint under the "Data Quality Act", rejected by the National Park Service. [click here for an article on the Data Quality Act from The National Law Journal]

In 2010, concerns within the shellfish industry continued to grow, extending to the East Coast Shellfish Growers Association (ECSGA). Then President Tom Kehoe, the cousin of Kevin Lunny, asked members to engage in the process. Requests for support of Mr. Kehoe's cousin from the ECSGA continued with requests to sign petitions; requests to contact representatives; and general pleas for support, finally reaching a climax with Executive Director Bob Rheault telling members the more it went on, "...the more libertarian I become."

December 2012: The Water Boils - Dan Epstein, Darrell Issa, and the Koch Brothers
Late 2012, Secretary Salazar did not renew the lease, "...based on the incompatibility of commercial activities in wilderness ...." As put in the East Bay Express:  "In short, Salazar essentially decided that it would be a mistake to set a national precedent, and thus open the door for other commercial enterprises on potential wilderness land around the country to request lease extensions, too. If the secretary's reason for closing the oyster farm sounds familiar to Express readers, it's because this newspaper noted back in June that the intense controversy over whether Drakes Bay Oyster Company was harming the environment was irrelevant, and that the real issue at stake in Point Reyes was the precedent it would set if Salazar decided to re-up the oyster farm's lease." (December 5, 2012).

 

An invitation distributed last year by the shellfish lobbying

groups, noting Shell Oil as a co-sponsor. Shell Oil

 has currently grounded one of its drilling rigs used in the Arctic.

The decision was well thought out and avoided the shellfish industry's Data Quality questions, something which the industry would have dragged on for years. But when larger players began to realize what it meant for other industries seeking opportunities in designated wilderness areas, the game became bigger and Lunny was encouraged to sue. Enter Dan Epstein, described by Mother Jones as:  "a former GOP counsel on the House's Committee on Oversight and Government Reform under California Republican Darrell Issa. Epstein is also a veteran employee of billionaires Charles and David Koch; he used to work at the Charles G. Koch Charitable Foundation and for a Koch Industries lawyer." [click here for article]

The ironic part of what Cause of Action professes to be upset about and defending - "public accountability" - is that the leases which Mr. Lunny and his shellfish operation operates under collect virtually nothing for his million dollar plus operation (the National Park Service was paid $2,800 per year [click here for NPS Permit]). Were Cause of Action truly following their "public accountability" belief, they would have instead been pursuing a suit demanding compensation for the use of public lands the Lunny's were using for virtually nothing. (Note: A separate lease was also in effect with California.) But that was not their concern. Instead, they have attempted to frame the issue as one of "an illegal taking", despite the operation occurring on public lands, let alone on now designated wilderness.



Precedence -
At issue, and why the Cause of Action is so involved, is that if it can be shown a commercial operation such as the Lunny's commercial shellfish operation may operate in designated wilderness areas, the door is opened to any commercial operations operating in designated wilderness areas. Not just shellfish farms and not just existing operations whose leases are set to expire. The Koch brothers and their allies in the energy field do not care about the Lunny's nor their oysters. They are nothing more than a pawn. What they care about is the precedence set in allowing the lease for a commercial operation in a designated wilderness area to continue, including access to energy sources which may lie in designated wilderness areas such as those found in the shale formations below Theodore Roosevelt National Park. [read National Park Advocate article here]

Reality, not PR: T-Shirts Saying "Drakes Bay Oyster" at Court are Not Relevant
(from a recent press release on the upcoming court hearing: "It would also be helpful if you have a DBOC sweatshirt or T-shirt to wear it.")
Well polished public relations campaigns and T Shirts paid for by those who put their own self interests above those of the general public and future generations (perhaps even those they profess to support) should not be allowed to influence any decision about Drakes Estero, whether in court or otherwise. The Lunny's, most likely encouraged by their cousin who was then President of the East Coast Shellfish Growers Association, made a bad business decision. Gamblers should not be rewarded nor rescued when they make a bad bet, which is exactly what the Lunny family did.

"We have millions of dollars of oysters which will go to waste." The West Coast shellfish industry is crying for more oysters to grow. The Lunny's have a ready market at the grower level where these oysters may be sold. Saying "millions of dollars will be lost" is simply not true.

"30 employees will be out of a job." Using the skilled workers being displaced is deplorable. The shellfish industry has said for years they cannot get the skilled labor of the very kind the Lunny's are so concerned about. These skilled workers are the backbone of the shellfish industry and can find jobs in one of a number of locations, ranging from Humboldt Bay to Puget Sound. Whether they are paid what they are worth is a separate subject, but well worth delving into at some point.

"Removing shellfish will result in increased nutrient loads and low dissolved oxygen." The amount of nitrogen and sediment removed from Drakes Bay Estero by the "filtering" and "harvesting" of shellfish is a fractional amount of nutrients which enter the waters. If, in fact, the Lunny's and the shellfish industry are truly concerned about the health of Drakes Estero waters, they should instead focus on their own cattle.

"Getting rid of the oyster farms is just part one." The greater risk to cattle farms on Point Reyes are shellfish operations in the waters around Point Reyes. Shellfish operations may easily bring focus to the perceived threat of runoff from cattle and dairy farms, putting in question whether they should continue. It is not the National Park Service they need to be concerned about, it is the very people supporting the Lunny's continued shellfish operation they should be concerned about - the shellfish industry.

What will the Lunny Family Do?
The Lunny's have been operating a cattle ranch on public lands in the same location on Point Reyse for generations now. Their cattle are able to feed on those public lands for very little and people pay a premium price for the meat from those cattle. The Lunny's, and their children, will continue to live far more comfortably than many people in the United States. They will also have the Drakes Estero Shoreline Wilderness area to enjoy, along with everyone else. Their finally agreeing to the the lease expiration will also help ensure other designated wilderness areas will not come under threat. As Mr. Epstein says on his Cause of Action web site: "...the clients we select are secondary to our educational mission." It's something the Lunny's should consider over morning coffee, or tea.