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.

Why Does Drakes Estero Matter to the East Coast Shellfish Growers Association?

And why should you care?

click here if you do: http://www.change.org/petitions/protect-drakes-estero-with-the-wilderness-act

and here: https://secure.sierraclub.org/site/Advocacy?cmd=display&page=UserAction&id=9781 

 

Drakes Estero, Part of

Point Reyes National Seashore

Recently the East Coast Shellfish Growers Association (ECSGA) Director Bob Rheault sent out an email to members describing the National Park Services as being on a "crusade" to eliminate a commercial shellfish operation and having "fabricated evidence and harassed good, hard-working people in their effort to eliminate 60 jobs and half of California's oyster production."

"used against our industry for decades to come."
His real concern wasn't about jobs or the operation. It was about the EIS showing the very real adverse impacts the shellfish operation was having, and would continue to have, on the wilderness shoreline area of Drakes Estero. More important to Mr. Rheault was that information would be "used against our industry for decades to come."  [click here for the EIS]

Invasive Tunicates on Drakes Bay Oysters

Wilderness and the Lunny Family
When the Lunny family purchased the commercial operation they made a tactical business decision which included trying to convince the National Park Service they should renew a lease which they knew expired in 2012. They were aware the National Park Service did not consider the commercial shellfish operation fitting within the definition of "wilderness" and operations would cease.

Debris from the Commercial Operation

Established by Congress in 1964, the National Wilderness Preservation System was created to ensure some areas would be preserved and protected in their natural condition for the permanent good of the people. These areas would be designated wilderness areas, further defined as "an area of undeveloped Federal land retaining its primeval character and influence, without permanent improvements or human habitation which is protected and managed so as to preserve its natural conditions." In 1976 it was decided that an area on Point Reyes, making up over 33,000 acres, would be designated "wilderness" or "potential wilderness", including Drakes Estero. Part of that decision included "efforts to steadily continue to remove all obstacles to the eventual conversion of these lands and waters to wilderness status." A major obstacle in achieving this goal was the shellfish operation whose lease expired in 2012.

Drakes Bay Oyster Company

"Wilderness"

In business there is risk. Sometimes it is out of our control. Sometimes it is within our control. When the Lunny Family purchased the commercial shellfish operation they were fully aware of the risk, including the fact that the lease expired in 2012. Their hope was they would be able to muster allies, including members of the shellfish industry, to help convince the Federal Government that somehow their commercial operation did, in fact, fit the definition of "wilderness." It does not.

Why the Shellfish Industry Cares so Much
As part of the decision process which the National Park Service used, an Environmental Impact Statement was required. In that EIS the NPS analyzed the various alternatives and what impacts those alternatives contained. Included in that analysis were impacts from the non-native Pacific Oyster and Manila Clam encroaching into native species' habitat; spreading of the non-native tunicate Didemnum vexillum from the shellfish farm operation; noise; visual; and erosion/accretion from the various structures used by the operation. The EIS was clear in its conclusions about the continued operation:

• It would result in long-term unavoidable adverse impacts on eelgrass, wetlands, wildlife and wildlife habitat (benthic fauna, fish, and birds) due to continued disturbance of sediments in Drakes Estero by another 10 years of DBOC (Drakes Bay Oyster Company)  motorboat use.
• Long-term unavoidable adverse impacts to the benthic fauna would result from the continued cultivation of nonnative species (Pacific oysters and Manila clams...) in Drakes Estero. [adverse impacts included were the establishment of nonnative breeding populations; substrate for the establishment and spread of the nonnative invasive tunicate Didemnum vexillum; and, adverse impacts on eelgrass]
• Noise would disrupt the bilogical activity of birds, such as foraging and resting behavior, potentially leading to a reduction in fitness and reproductive success. 
• The NPS would be unable to create the congressionally designated wilderness area.

Why does it matter to Puget Sound?
NOAA and Governor Gregoire, through lobbying from the shellfish industry at a national and state level, have created the National and State Shellfish Initiatives. Through these programs, immense pressure is being put on agencies to allow for the significant expansion of the shellfish industry along the shorelines and in the waters of Puget Sound. Primary species supported by the programs include the nonnative Pacific oysters and Manila clams, noted in the EIS as having a long-term and significant adverse impact, as well as the nonnative Gallo mussel. In addition, geoduck are being planted in densities and in areas they do not naturally grow, higher in the tidelands, through the use of PVC structures and "nurseries."

"The Wild Olympics are our common ground.

But the tidelands are mine."

 

At the same time, there is a major effort being put forth to create a "Wild Olympics" which would expand the wilderness on the Olympic Peninsula. Not yet included in that effort is the recognition that tidelands play as important a role, if not more so, than the rivers and forests being proposed for inclusion. Instead, these tidelands are being looked at as "shellfish factories" which the proposed wilderness areas will protect. In that function they are being smothered with grow-out bags; filled with PVC pipes, placed every square foot; and covered with netting. All altering the habitat supporting native species.

The nearshore environment is being impacted by far more than upland development. It is now the shellfish industry which is being brought under scrutiny, as it should be. The tone and attitude are reflected in the following email sent to the East Coast Shellfish Growers Association. Will this attitude and tone be what guides the decision on Drakes Estero and the future of Puget Sound's tidelands?

(From Bob Rheault, Executive Director of the East Coast Shellfish Growers Association to its members)

Folks
for the past five years I have periodically shared with you the tawdry details of the crusade by the National Park service to eliminate the oyster farm in Drakes Estero outside San Francisco. The NPS has falsified data, hidden exculpatory evidence, fabricated evidence and harassed good, hard-working people in their effort to eliminate 60 jobs and half of California's oyster production.

In what should beheld up as a sterling example of sustainable food production in harmony with nature, we see instead a farm being vilified by misguided government scientists and administrators.

What is worse is that the shoddy, misleading "science" being used to vilify these good people will be used against our industry for decades to come. We must stand up and defend these guys. We have evidence of fraud, data manipulation, incompetence, violations of national scientific integrity policies. Yet the NPS refuses to pull any of their discredited publications down.

Drakes Bay: Industrial Shellfish Farming in Wilderness Areas Should Stop

In 2005 a non-conforming shellfish farm located within Drakes Estero, California was purchased with full knowledge the right-of-use-and-occupancy authorization expired in 2012.  Drakes Estero would then be returned to a wilderness area as Congress had intended when it passed the Point Reyes National Seashore Wilderness Act of 1976.  Plastic bags and artificial structures with associated harvesting equipment and upland buildings would no longer be part of the designated wilderness area. In their place would be natural oyster reefs filtering the waters, providing permanent habitat for other species.  An area used for centuries by the Coast Miwok Indians and discovered by Sir Francis Drake in the 1500's would return to its natural state.

(photo by Robert Campbell)

This is wilderness?

When the Lunny family asked the Point Reyes National Seashore (PRNS) superintendent what he thought about their purchasing the farm, his answer was quite clear:   "I really don’t think that’s a very good idea. You know they have permit and environmental problems."  Despite this sage advice the Lunny's purchased the farm in 2005 based on their belief a profit could be made by 2012 when the permit expired.  It was a bad business decision.

The Lunny family and public relations friend Sam Singer (click here), with help from the Pacific Coast Shellfish Growers Association and the East Coast Shellfish Growers Association, are trying to frame the issue as the Lunny's being picked on by the National Park Service with catastrophic results if shellfish are no longer present to filter water.  It is a classic attempt to deflect the focus from the real issues, which are the Lunny's made a bad business decision and that natural shellfish reefs provide more habitat and filtering functions than an industrial farm does. (Read the US Fish and Wildlife's Bilogical Opinion on shellfish farming here. Searching for "Dumbauld" will provide ample evidence of the negatives of industrial farming vs. natural reefs.)

Why should this matter? If the Lunny's farm is allowed to continue beyond the expiration date other designated wilderness areas will be put at risk of being converted to industrial shellfish operations or other industrial activities (e.g., clear cutting in a wilderness area or placer mining in a wilderness river).  These operations do alter the habitat and species makeup of the natural ecosystems they impact and replace.  Harvesting destroys whatever habitat may have been created.  It is not what Congress intended the definition of "wilderness" to become.

A wilderness area is not meant to be a factory or an aquarium.  It is meant to preserve, or provide nature the opportunity to recreate, what once was for our future.  It is the difference in philosophy between John Muir and Gifford Pinchot.