Drakes Bay Oyster Company: 9th Circuit Appeals Court Rules In Favor of Wilderness

 

9th Circuit Court of Appeals Affirms Wilderness Designation for Drakes Estero

 

From the Environmental Action Committee:

 

Conservation Leaders Applaud Appeals Court Ruling Affirming Obama Administration’s 

Marine Wilderness Decision at Point Reyes National Seashore

 

Point Reyes, Calif. - Conservation leaders praised a 9th Circuit Appeals Court ruling today that affirmed the Obama Administration’s marine wilderness designation for Drakes Estero, the ecological heart of the Point Reyes National Seashore and only marine wilderness area on the West Coast. The appeals court  affirmed the lower court ruling that the Drakes Bay Oyster Company does not warrant an injunction to continue operating after its lease expired on its own terms last November. The company has none of the state or federal permits that are necessary to operate this commercial business in a national park or coastal estuary.

The panel affirmed the district court’s order denying a preliminary injunction challenging the Secretary of the Interior’s discretionary decision to let Drakes Bay Oyster Company’s permit for commercial oyster farming at Point Reyes National Seashore expire on its own terms. The panel held that it had jurisdiction to review whether the Secretary violated any legal mandate contained in Section 124 or elsewhere, but that it lacked jurisdiction to review the Secretary’s ultimate discretionary decision whether to issue a new permit. The panel held that Drakes Bay was not likely to succeed in proving that the Secretary violated constitutional, statutory, regulatory, or other legal mandates or restrictions. The panel further held that Drakes Bay was not entitled to a preliminary injunction not only because it failed to raise a serious question about the Secretary’s decision, but also because it had not shown that the balance of equities weighed in its favor. [pages 2-3]

“The court rightly decided that former Interior Secretary Ken Salazar had full discretion to let the oyster operation permit expire and to honor the 1976 wilderness designation for Drakes Estero. We are very grateful for this decision, which supports the Estero’s full wilderness protection,” said Amy Trainer, executive director of the Environmental Action Committee of West Marin.

“The court ruling affirms that our national parks will be safe from privatization schemes, and that special places like Drakes Estero will rise above attempts to hijack Americans’ wilderness. Taxpayers can rejoice that the land they bought and own in Point Reyes National Seashore will now be protected as planned after 40 years of waiting,” said Neal Desai, Associate Director of the Pacific Region for the National Parks Conservation Association.

Judge McKeown wrote that, "We have jurisdiction to consider whether the Secretary violated “constitutional, statutory, regulatory or other legal mandates or restrictions,” Ness Inv. Corp. v. U.S. Dep’t of Agr., Forest Serv., 512 F.2d 706, 715 (9th Cir. 1975), and we agree with the district court that Drakes Bay is not likely to succeed in proving any such violations here. Through Section 124, Congress authorized, but did not require, the Secretary to extend the permit. Congress left the decision to grant or deny an extension to the Secretary’s discretion, without imposing any mandatory considerations. The Secretary clearly understood he was authorized to issue the permit; he did not misinterpret the scope of his discretion under Section 124. In an effort to inform his decision, the Secretary undertook a NEPA review, although he believed he was not obligated to do so. Nonetheless, any asserted errors in the NEPA review were harmless."

Gordon Bennett, President of Save Our Seashore, said that, “we have long-stated and the Court has now confirmed that the expiration of the oyster operation permit was a well-established matter of contract and NPS policy that Mr. Lunny was fully aware of before he bought the last few years of operating rights. This decision facilitates the long-planned wind-down of company operations and we hope that the company provides strong financial support for the transition of its workers.”

Johanna Wald, Senior Counselor with the Natural Resources Defense Council, said that, “today’s decision is another affirmation of the principle that ‘a deal is a deal’. The preservation of Drakes Estero will be enjoyed by millions of Californians and lovers of wilderness and parks for generations to come. We’re grateful to the Appeals Court for their strong decision to protect our precious natural resources.” 

The court further noted, "In letting the permit lapse, the Secretary emphasized the importance of the long-term environmental impact of the decision on Drakes Estero, which is located in an area designated as potential wilderness. He also underscored that, when Drakes Bay purchased the property in 2005, it did so with eyes wide open to the fact that the permit acquired from its predecessor owner was set to expire just seven years later, in 2012. Drakes Bay’s disagreement with the value judgments made by the Secretary is not a legitimate basis on which to set aside the decision." [page 6] 

“We urge the company to fulfill its long-standing responsibility to its workers by assisting them during this time of transition,” Trainer said.  “The local community will work with Congressman Huffman and other leaders to ensure that the workers are taken care of," she said.

Amy Trainer

Executive Director

Environmental Action Committee of West Marin

P.O. Box 609 Point Reyes, CA 94956

amy@eacmarin.org

(415) 663-9312 office

(415) 306-6052 cell

Protecting West Marin for over 40 years!

www.eacmarin.org

www.savepointreyeswilderness.org

  1 Attached Images

Drakes Estero: A National Seashore Wilderness On the Verge of Completion

In 1999 the first steps of a long journey towards the completion of the only national seashore wilderness area on the West Coast outside of Alaska were taken. At that point in time the Muddy Hollow area, Abbots Lagoon and the Limatour Area of Point Reyes were moved to "wilderness" from "potential wilderness."

This left only 6,251 acres remaining before completion of the Point Reyes National Seashore wilderness, slated for November of 2012. At that time the then Johnson Oyster Company's use authorization would end, with the only remaining commercial operation in the seashore wilderness area ceasing. That step would complete the creation of the most dramatic wilderness seashore in the United States for all of its citizens to enjoy, a journey begun in 1962.

In November of 2012 the Special Use Permit and Reservation of Use and Occupancy were not renewed. With federal authorization ending so too did the lease from California for use of the  tidelands of Drakes Estero whose contract stated it was "contingent on a concurrent federal Reservation of Use and Occupancy for fee land in Point Reyes National Seashore."

Some attorneys may see the word "contingent" to mean "contingency fee" but contract law is a separate topic. While lawyers wait for the 9th Circuit Court of Appeals to decide on the fate of Drakes Bay Oyster Company, the lease from California may still be in force with rent due.

While California did reserve the right to fish, the Department of Fish and Game has also noted "it does not extend to aquaculture operations...fishing involves the take of public trust resources and is therefore distinct from aquaculture, which is an agricultural activity involving the cultivation and harvest of private property." In other words, the shellfish are private property which falls outside of the public trust.

President Kennedy had dreams, some of which resulted in the most monumental achievements this country has seen. Included was the initial step taken in the creation of the Point Reyes National Seashore in 1962. That step has lead down a path whose end is the creation of a national seashore wilderness which will be preserved for the future generations of all, not just a few.

President Kennedy's press

release from 1962.

Restoration of Drakes Estero will bring native Olympia oysters. Efforts to restore this native species are taking place throughout the west coast, including nearby San Francisco Bay. The addition of Drakes Estero to those efforts is the next logical step.

Imagine a child decades from now looking out over Drakes Estero and seeing the great reefs of native Olympia oysters which existed when Native Americans were the only ones visiting Drakes Estero. Imagine the gratitude the parents of that child will feel for those who took those final steps on the journey begun in 1962 when President Kennedy noted "...the necessity for prompt action to preserve our nation's great natural beauty areas to insure their existence and enjoyment by the public in the decades and centuries to come."

Comment on "Is West Marin Like the San Juans" By Peggy Day, Executive Producer of ‘Seriously Now’



Update, May 22, 2014: Island County Commissioner Kelly Emerson, 7 months before the end of her term, gave one week's notice and resigned from her position. She recently announced she would be running for the position of Auditor in Kitsap County.
Update, August 24: Bring in the children. Freedom Foundation's Scott Roberts' video using children to promote his philosophy of "business over regulations" shows what Marin County should expect as Robin Carpenter draws in Ed Kilduff to the county's politics. It is pitiful and one the children will ask their parents one day why they did not stop their exploitation to promote something they know nothing about, except to "sing this." The exploitation of their talents - and they are talented - are seen in the video uploaded by Freedom Foundation's Scott Roberts titled "Spies like us."

Update, August 4: Ed Kildfuff has apparently cloned his "Trojan Heron" blog and created a "Trojan Herring" blog specifically focused on Marin County and Drakes Bay Oyster Company. Using the same "elevated" discourse he professed a need for in his interview with Robin Carpenter he has now enlisted the help of cookbook author and "corporate story teller" Sarah Rolph to begin a new vein in Marin County politics. For a sense of what to expect from Mr. Kilduff and his associates, research Lee Atwater or read this short piece from the Daily Beast about Mr. Atwater. A sense of Mr. Kilduff's beliefs may also be gained in his interview with Ms. Carpenter when he discusses Charles Dalton, an organic farmer, as being "mixed race" and that he was unsure of his "sexual orientation." Really? Marin County is in for an experience.

 

"I read it in the SF Sentinel so it must be true."
Consider that its owner is Sam Singer
associate MediaWorksSF owner Phil Siegel.
Where is Dave Mitchell?

Robin Carpenter 

 Certified hypno therapist
 



In the July 18 to the July 24 edition of The West Marin Citizen is an article by Peggy Day, Executive Producer of  'Seriously Now' about what is best described as an "infomercial." In it Robin Carpenter interviews Ed Kilduff and Francine Shaw of Friday Harbor, WA, located in the San Juan Islands. The article states:

Major chasms have developed in San Juan communities, pitting friend against friend and environmentalist against environmentalist. Kilduff and Shaw describe tactics by a local non-profit called Friends of the San Juans that involve both an unwillingness to come to a collaborative “table” and frequent targeting of long-time liberal citizens, who are now being labeled as right-wingers or “Koch Brothers”.The pair offers some advice and some practical suggestions for West Marin in its effort to return to open, honest communication and an atmosphere of respectful civility.

The article and video are focused on Ms. Amy Trainer, previous staff attorney for Friends of the San Juans (FSJ) and now executive director of the West Marin Environmental Action Committee (EAC). Mr. Kilduff and Ms. Shaw claim FSJ has pitted "neighbor against neighbor" and "environmentalist against environmentalist." It would have been wise for the reporters to have broadened the scope of their research into who Mr. Kilduff and Ms. Shaw are.

Undisclosed issues.
Mr. Kilduff and Ms. Shaw no doubt have issues with Friends of the San Juans. In fact, they have issues with a number of people and agencies involved in regulatory oversight, whether environmental or otherwise. Friends of the San Juans are the least of their problems.

Francine Shaw

Ms. Shaw was fired from her position as Deputy Director of Community Development and Planning. She felt it was "retaliation" for not issuing permits. Or maybe that she was being made a "scapegoat" for the Public Works Director losing a $500,000 grant. Or maybe it was both. She's not sure.

Ed Kilduff

Mr. Kilduff feels the Department of Ecology is not capable of overseeing wetland delineations and that a licensed hydrogeologist (which he is) is the only one capable of performing a wetland determination. Others disagree with his skill set. In the article a county planner "questioned his understanding of the science" of wetland delineation and also notes that the Department of Ecology stated, “Understanding geology (specifically hydrogeology) is one piece of the puzzle, but does not replace knowledge of wetland vegetation or wetland soils. In 2009, the state Geologist Licensing Board determined that wetland delineation is not the practice of geology.”

Board Member Positions Not Disclosed
Also not disclosed is that Ms. Shaw and Mr. Kilduff are Board Members of the conservative land use group Common Sense Alliance. That group has issues with why Friends of San Juan,  neighbors, and the county are concerned with people such as Charles Dalton (who Mr. Kilduff describes in the Marin video at 15:20 as a "mixed raced Richard Simmons") building a barn/shed without a permit within a wetland area, and why the Department of Ecology did not agree with Mr. Kilduff's perception of what a wetland is. A video created for Scott Roberts with the conservative Freedom Foundation includes interviews with Mr. Kilduff and how he feels a wetland should be defined which differs from the Army Corps, Department of Ecology and other state agencies.

Mr. Kilduff's Trojan Heron blog
In addition to the above Mr. Kilduff also runs a blog called "The Trojan Heron" where his ideas of how to "get along with people" are seen in his "Central Casting" page. It is hardly the ideal Ms. Carpenter is looking for nor what Mr. Kilduff espouses to.

Charles Dalton

"I made a mistake."

Mr. Dalton May be a Nice Person
What Ms. Shaw and Mr. Kilduff perceive as the "right way to do things" exists in the reality that while people like Mr. Dalton may make questionable decisions (i.e., building structures in wetlands without permits) in their quest to get closer to a food source, there are many others who want to know how to skirt or ignore regulations in place and develop their land as they see fit. It is why people like Ms. Shaw are in demand as "consultants". Experience working within the county systems of regulations gives an insight into where the limitations of county enforcement lie and how hard an issue may be pressed, sometimes with success and sometimes without. At the very least she is able to say the county budget cannot afford to find all violators and must rely on citizens' help, if the regulations are to mean anything.

In part it is why Friends of the San Juans are looked on with such displeasure by them. FSJ and others understand that if people such as Mr. Dalton are allowed to develop wetland areas without permits because they "just made a mistake from ignorance," that 10 others will develop theirs from a position of greed. People don't like being caught ignoring regulations and permit requirements which all are supposed to abide by, whether they are individuals, County Commissioners, or developers, and whether in Marin or San Juan Island Counties.

Commissioner Emerson

Tea Party Republican



 

Update: The county and Emerson's have agreed to settle. The Emerson's will pay a $5,000 fine and are being required to have a DOE approved wetland determination made. While the county will not tell the Emerson's who to use the settlement does give the county the right to a third party review if the quality of work is in question as her first two submittals were. A continuance of their previously rejected building permit is also part of the settlement. It is unknown how Mr. Kilduff feels about his peer-review not being accepted. One resident questions what Ms. Emerson is being paid $78,000 as a commissioner for.

Ed Kilduff's "Peer Review" and Commissioner Emerson's Unpermitted Construction
One last example of Mr. Kilduff's views of permits and development, touched on above, is found in a wetland violation by Island County Commissioner Kelly Emerson and her husband.

(Note: July 12 Commissioner Emerson was removed from her position as chair due to her "lack of understanding" of commission procedures.)

In the Emerson case construction of a "sun room" was begun without permits in 2009. Despite being made aware of a wetland in 2008 under a separate permit process, they were found in violation of building within a wetland area and constructing the sun room without a permit. After a wetland report completed by the firm SNR was found to be deficient the Emerson's were given the option to have the report "peer reviewed". Ed Kilduff, a contractor for SNR, was the one asked to do the "peer review." As noted in a Whidbey New Times article, "He’s not exactly an independent peer." For a second time the Department of Ecology found Mr. Kilduff's understanding of a wetland was lacking. 

“The site-specific information required in the delineation manual to make a wetland determination is not provided in either the SNR report or in Mr. Kilduff’s letter to the Emersons,” the Department of Ecology review letter states. The letter gives several examples of omissions.

Mr. Kilduff's response was to state that the only professionals capable of determining where a wetland exists are hydrogeologists. However, as noted in the article, "In 2009, the state Geologist Licensing Board determined that wetland delineation is not the practice of geology."

Mr. Kilduff continues to disagree with the Board, going so far as to use "change.org" where he created a petition drive entitled "The Independent Campaign for Protection from Unlicensed Geological Practice." He notes his belief that the Department of Ecology's "wetland scientists regularly and openly practice hydrogeology and geomorphology without a license." Something he is entitled to believe, but something which should also be taken within the context of his being told his wetland determinations were faulty by both county and state agencies, and the licensing board which oversees his license has said wetland delineation is not the practice of geology.

Is Marin County the same as San Juan County?
In the sense that there are large economic forces at play who wish for commercial development with minimal regulatory oversight, yes, the counties are similar. Both Marin County and San Juan County have habitat areas which have remained protected through regulatory oversight which because of that oversight may be enjoyed by future generations. But both have big targets on them from developers and industries who see those undeveloped areas as being profit centers. Many of those are conservative individuals who see government as nothing but an impedance to their ability to make money. In the case of Marin County the Drakes Bay Oyster Company's operation in a wilderness area is seen as a means to expand other commercial operations into wilderness areas. Near to San Juan County the "Wild Olympics" campaign to create an additional 126,000 acres of wilderness is in process. Will commercial operations be allowed within those wilderness acres? Some hope so.

Corporate Environmentalism
Anonymous funding of non-profit conservative groups is a very real strategy being used, whether it be Cause of Action, the Freedom Foundation, or others. Those groups in turn fund many legal and public relation actions designed to weaken environmental regulations, in an attempt to create a new "corporate environmentalism", in both Marin and San Juan Counties.

Marin's Press and Press Releases
Marin County's press should consider stepping up a level and not simply accept press releases without vetting them. Just because it was printed in the San Francisco Sentinel doesn't mean it's true. Research into the ties between the Sentinel, MediaWorks and Singer Associates might be a good place to start. It was how Dave Mitchell and the Point Reyes Light won a Pulitzer Prize in 1979.

Drakes Bay Oyster Company - Superior Court Ruling Update

Update 7/19: (moved to 7/18 post on court ruling)

Superior Court Orders Drakes Bay Oyster Company to Comply with Coastal Commission's 2007 Cease and Desist Consent Order and 2013 Cease and Desist Order's Interim Use Provisions

Update 7/30: The Marin Indepent Journal has reported that Drakes Bay Oyster Company has asked Marin Superior Court Judge Duryee to reconsider her ruling that DBOC must comply with the California Coastal Commission's interim use provisions contained in the most recent Cease and Desist order. The interim environmental protection measures which Mr. Lunny had previously been willing to act on is something he no longer agrees with.
Update 7/19: Superior Court Judge Duryee's ruling that Drakes Bay Oyster Company must comply with the California Coastal Commission (CCC) 2013 Cease and Desist Order's interim use provisions has generated numerous articles, including the Los Angeles Times, the San Francisco Chronicle, KTVU News, and the Marin Independent Journal . All have noted DBOC must comply with the coastal regulations it has either violated or ignored. It was far from what attorneys representing Phyllis Faber and DBOC had asked for, which included "Issuance of a declaratory judgment that the Commissions Orders were unlawful". 

DBOC must act on, among other things, the removal of the non-native invasive manila clams; creation of a management plan to prevent the growth and spread of the non-native and invasive tunicate Didemnum vexillum; limit production of shellfish to 2007 levels; and, to develop an operational debris management plan. While DBOC implied the CCC was attempting to "shut them down", in fact what the CCC was trying to get DBOC to do was comply with the coastal regulations we all are supposed to work within. It was something DBOC agreed to in 2007 but simply ignored. 

They said what?
Unlike the others news outlets, the San Francisco Sentinel declares the ruling forcing DBOC to address the numerous coastal regulations it has been in violation of a "Major Victory" for DBOC. It goes on to devote a large portion of the "reporting" to what can only be described as a "Karl Rove" discourse on Amy Trainer, Executive Director of the West Marin Environmental Action Committee, the EAC and CCC with broad unsubstantiated statements. SFS might consider first vetting its news sources before simply publishing a press release, from whomever they received it from.

Update 7/18: Drakes Bay Oyster Company may no longer ignore the 2007 California Coastal Commission's Consent Order No. CCC-07-CD-04 (beginning on page 17) signed and agreed to by Mr. Lunny November 29, 2007. Further, DBOC must also comply with the 2013 Cease and Desist Order's interim use provisions CCC-13-CD-01 (a 42mb file - Section V, starting on page 132).

 

>>>
For Immediate Release                                                                                   

July 18, 2013

 

Contact:

Amy Trainer, Environmental Action Committee of West Marin, 415.306.6052

Gordon Bennett, Save Our Seashore, 415.663.1881 

Court Order Requires Drakes Bay Oyster Company to Comply With Coastal Act

Company Must Remove Invasive Clams, Clean up Marine Vomit, and End Plastic Pollution

 

Point Reyes, California.  The controversial Drakes Bay Oyster Company will be required to remove the invasive Manila clams it planted, manage its invasive “marine vomit” problem that coats its oysters, and finally address the significant amounts of the company’s plastic debris that has polluted beaches all over the Point Reyes National Seashore according to a court ruling yesterday afternoon. Marin County Superior Court Judge Lynn Duryee sided with the California Coastal Commission and ruled that the Drakes Bay Oyster Company must take immediate steps to comply with the 2007 and 2013 [2013 file is 42mb, a result of DBOC attorney's last minute "document dump"] Cease and Desist Orders, which mitigate some, but not all, of the company’s ongoing environmental harm to the national park wilderness area.

 

 “Since inception, the Drakes Bay Oyster Company has been operating illegally as if basic regulations that protect our spectacular coastline don’t apply to it,” said Amy Trainer, executive director of the Environmental Action Committee of West Marin. “The court’s ruling supports what the public has known for years: this unsustainable oyster company that pollutes beaches, fosters the spread of invasive species, and causes harbor seal disturbance has no place in a national park wilderness area.”

The court ruling is the latest to reprimand the oyster company for its lack of compliance with coastal protection laws, including its failure to: comply with the production cap established in 2007, remove all the invasive Manila clams and Didemnum vexillim “marine vomit,” clean up its plastic debris pollution, remove several pressure-treated wooden racks that are outside the permit area, and stay out of protected habitat for harbor seals.

The Drakes Bay Oyster Company, which was removed from the Monterey Bay Aquarium’s Seafood Watch Partner list more than 3 years ago, is being supported by the Koch brothers funded Pacific Legal Foundation and Americans For Prosperity in its quest to commercialize Drakes Estero Wilderness. Yesterday’s court ruling follows on the heels of this week’s news that California River Watch is preparing to sue the oyster company for violating the Clean Water Act.

California River Watch Notice to Drakes Bay Oyster

Press release from California River Watch on Clean Water Act violations and intent to sue.

 

For Immediate Release                                                          July 15, 2013
Contact: Sarah Danley, Esq.,  RiverWatch.press@gmail.com
Drakes Bay Oyster Company Facing New Lawsuit for Clean Water Act violations in Pt. Reyes

Point Reyes, Ca. - California River Watch, a Sebastopol-based organization devoted to protecting Northern California's water quality, today announced it is preparing a lawsuit against the Drakes Bay Oyster Company, saying the industrial operation operating in the Point Reyes National Seashore is polluting the ocean with waste water and other pollutants and has failed to obtain necessary permits for its operations.

In the 60-day notice to the oyster company that it intends to sue (attached below), which is required by the federal law, California River Watch alleges that the oyster company has been unlawfully discharging waste water from its shellfish operations into Drakes Estero in violation of the Clean Water Act. The 60-day notice demands immediate cessation of all unlawful discharges, and that Drakes Bay Oyster Company apply for the proper permit, something it has failed to do for over seven years.

"Drakes Bay Oyster Company, which has been repeatedly cited by state agencies for its pollution and violation of permits, is at it again," said Sarah Danley of California River Watch. "It contributes discharge waste water into the ocean, fouling our waters and degrading one of the most pristine wilderness areas established in the United States."

Drakes Bay Oyster Company was cited by the California Coastal Commission earlier this year for a host of violations of the California Coastal Act, and for failing to obtain the required coastal development permit.  Rather than complying, the oyster company sued the Commission. The Commission counter-sued the oyster company for ongoing violations of the Coastal Act and Cease and Desist Orders which could carry fines and penalties totaling tens of thousands of dollars.

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.