Drakes Bay Oyster Company: NPS Rejects Pacific Coast Shellfish Grower's Association Data Quality Complaint

"...your May 30, 2013, letter is without merit..."

3 strikes and you are out -
The National Park Service (NPS) has written to the Pacific Coast Shellfish Growers' Association and informed them its 2013 Information Quality (IQ) complaint is without merit. PCSGA's 2007 IQ complaint was also rejected by the NPS. As was Cause of Action's 2012 complaint (submitted on behalf of Corey Goodman and Kevin Lunny) and their appeal. In baseball, after 3 strikes you are out.

Complaint is mooted - commercial activities are not compatible in a wilderness area
As with PCSGA's 2007 complaint the most recent complaint from PCSGA was mooted. In this most recent case it was when the Secretary of the Interior allowed Drakes Bay Oyster Company's "authorizations to expire by their own terms." NPS notes that the decision was "based on the incompatibility of commercial activities in wilderness and not on the data that was asserted to be flawed." Despite Jeff Creque's attempt to redefine "wilderness" in his recent Op-ed piece, wilderness is not a "sort of" concept.

Phantom allegations, repeated comments, not an affected person
PCSGA's allegations of harm was rejected as being "an unsubstantiated quotation of an aquaculture advocate in a report written by DBOC's former counsel [Cause of Action]."  They note further that their letter is nothing more than a repetition of comments raised in a December 9, 2011, comment letter. NPS notes it responded then to all substantive comments received. It notes: "The Information Quality Act is not to be used as a means of circumventing the NEPA public comment process." NPS notes PCSGA had the opportunity to comment, it did comment, and "...NPS responded to those comments in the FEIS. Your IQA Complaint essentially resubmits comments, and does not present any significant new information." Finally, NPS questions whether PCSGA is even an affected person, noting they argue "members might be harmed at some point in the future by some hypothetical arguments that could be raised by unnamed opponents" and "alleged harm offered in your Complaint concerns decisions made in states where your client has no members, and that example is based on an unsubstantiated quotation in a report by DBOC's former counsel."

Without merit
"In conclusion, we find that your May 30, 2013, letter is without merit..."

What now? Redefining the public trust doctrine
Already seen have been attempts to create a "corporate wilderness definition" using the glasses of "agroecologist" Jeff Creque. His false vision of Drakes Estero producing "unlimited biomass" created by "unlimited carbon and nutrients" solving the world's food problem will continue. On the horizon will be attempts to redefine what the "public trust" retained by California was when it transferred ownership to the Federal government. In that attempt to redefine the public trust retained by California, a claim will be made that the corporate profits generated by DBOC should somehow trump the contractual agreement to create a wilderness area to be shared by everyone. It should be rejected, as was the IQ complaint by PCSGA.

The Public Trust Doctrine: "By the law of nature these things are common to mankind – the air, running water, the sea, and consequently the shores of the sea….. All rivers and ports are public: hence the right of fishing in a port, or in rivers, is common to all men." --- Institutes of Emperer Justinian, Book 2, Div. 1 (535 A.C.E)

The public trust doctrine does not include the inalienable right of one shellfish farmer's profits to prevent the creation of a wilderness area for everyone. 

Drakes Bay: Integrity in Information Quality Complaints

Saying something happened
does not mean that it happened.

No matter how many times you say it.
 

[Note: In November of 2012, then Secretary Salazar used his agency discretion granted to him and determined Drakes Estero should be allowed to revert to the wilderness congress intended. Drakes Bay Oyster Company's Special Use Permit expired, bringing to an end the right for the only commercial operation in that wilderness area to continue. Since that time, numerous parties have attempted to deflect the attention away from a contractual issue to one of differing opinions on whether data shows a commercial shellfish farm has impacts on the environment. Part of the latter is the focus of this piece.]

Industry Complaints about Information Quality
When complaints about information quality are made by an industry under the "Information Quality Act" it is a good idea for that industry doing the complaining to be sure the information provided is not lacking in foundation.

A house of cards will fall.



Recently, the Pacific Coast Shellfish Grower's Association (PCSGA) filed an "information quality complaint" about information used and conclusions reached on the adverse impacts from a commercial shellfish farm operating in Drakes Estero (see below for more information on the Information Quality Act - IQA). In explaining why the complaint is not "moot" as those previously filed by Cause of Action/Corey Goodman and another in 2007 by PCSGA were found to be, they state these conclusions "may still have significant adverse impacts for the shellfish industry and PCSGA members."

Drakes Estero



"...another red flag in a debate where civility and truth have been casualties to strong opinions." Congressman Huffman (D-CA) 6/19/13 MarinIJ

Where does the truth lie?
In their IQA complaint PCSGA states that "PCSGA members will be harmed" because "there have been at least two cases where the issues raised in the DEIS were used to deny oyster lease applications in Alabama and South Carolina." It is one reason, if not the primary reason PCSGA claims it and the entire shellfish industry is "affected" and why NPS should not consider the complaint moot.

This statement on permit denial is based on a "report" written by the conservative group Cause of Action which notes, on page 30, a letter by Bob Rheault, Executive Director of the East Coast Shellfish Growers Association (ECSGA), written to Kevin and Nancy Lunny, dated January 7, 2013. [Note: Kevin Lunny, owner of DBOC, is also the cousin of Tom Kehoe, ECSGA Vice President.] In that letter, Cause of Action notes Bob Rheault writing, "the issues raised in the DEIS [were] used to quash oyster lease applications-one in Alabama and one in South Carolina."  [That letter is within this body of Exhibits, a 45Mb pdf file]

Life of Its Own?
In response to a question from South Carolina, asking where this rumor may have started, Bob Rheault responded on June 24: "No one ever suggested the permits were denied - simply that new concerns were raised - unique concerns that as far as I recall had never been raised in previous applications. ...it has taken a life of its own."

Fabricated statements - intentional or not - that permits have been denied puts the entire complaint in question. On that alone NPS should reject the complaint.

The Information Quality Act:
Passed as a rider.



The Information Quality Act (IQA)? (aka the "Data Quality Act" or "Section 515")
The IQA is described in an article written in the Naval Law Review (beginning on page 91) which notes it "was most likely enacted at the behest of industry in an attempt to hinder environmental rulemaking."

Passed as a rider in 2000, the IQA was introduced by Congresswoman Jo Ann Emerson and made part of the Treasury and General Government Appropriations Act of 2001. [Note: Ironically, it was also a rider created by Senator Feinstein which gave the Secretary of the Interior the discretion to decide whether a commercial shellfish operation should continue in a wilderness area based on contractual terms, not on whether science is perfect.] The end result was its requiring agencies to develop policies based on guidelines issued by the Office of Management and Budget to deal with questions about information quality. As with all riders, very little public input was given and little attention was paid to the 227 words which made up Section 515 by those who allowed it to be included.

Section 515 - the IQA - may be found on page 100 and 101 here.
The National Park Service's implementation of Section 515 may be found here.

Politics at its best, law not at its best.
Section 515 (aka the IQA) was the result of Lobbyist James Tozzi and was described in the Washington Post as the "Nemesis of Regulation."

James Tozzi - mastermind of

the Information Quality Act

 

In the Washington Post article it is noted: "By demanding that government use only data that have achieved a rare level of certainty, these critics maintain, the act dismisses scientific information that in the past would have triggered tighter regulation."

 

In an earlier post it was noted that "perfect science" does not exist. Unless you are a professor teaching a class within a university's walls, where the world's realities are filtered out, you do the best with what you have. It will never be "perfect". As a result, with enough money and time anyone may question any scientific conclusion, even in a field in which you have no education.

 

As noted in the Naval Law Review: "Many commentators believe the true purpose of the Act is to impede rule making by providing industry with a venue to attack the science on which environmental regulations are based." Especially if that industry doesn't like the conclusions and feels its economic interests may be threatened, whether based in fact or not.

 

"Is Affected" is not the same as "May be affected"

In order for an IQA to be accepted and acted on at the National Park Service, one of the requirements is to include, "A description of how the person submitting the complaint is affected by the informational error." It does not say "may be affected".

 

In this case, PCSGA misses the mark. They have provided no proof that PCSGA "is affected". They state only that they "may" be. PCSGA has not been affected by anything, no matter how many times it is said they are. The complaint is moot.

 

Job Creation for the Wealthy

As for the role of the Information Quality Act, in this case Robert Gellman put it best in 2001 in a piece titled "What? You haven't heard about Section 515?"

"Rumor has it that a lobbyist dreamed up the original idea and sold it to a paying client and a gullible member of Congress. The chief beneficiaries of the new rule will be lobbyists. They will now have a new device for sucking money from clients who don't like the latest bit of data from an agency and who are stupid enough to think that filing a complaint will accomplish something other than enriching the lobbyist."

Insert "attorneys" or "public relations firms" for "lobbyists" and his statement is as true today as it was prescient then.