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."

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 Oyster Company Sues the California Coastal Commission

Trust us, this is the same as wilderness.

(picture from Coastal Commission hearing)

 



Willingly or not, in another sign of Drakes Bay Oyster Company believing they don't have to follow the same regulations as others who own coastal property, the Lunny family has chosen to sue the California Coastal Commission. As reported in February, "The California Coastal Commission voted unanimously on February 7th [2013] to issue a unilateral Cease and Desist Order against the Drakes Bay Oyster Company (DBOC). The Coastal Commission's Order states that, “DBOC violated multiple provisions of the 2007 Consent Order, through its actions and its failures to act,” including for ongoing unpermitted development, violations of harbor seal protection requirements, failure to control significant amounts of its plastic that has polluted the marine environment, failure to pay fines imposed in 2009 for illegal activities, and failure to correct ongoing violations of the California Coastal Act despite repeated notices from the Commission." Their reaction to the cease and desist order? File a lawsuit. [click here for press release]

DBOC: We don't

need permits. We're different.

(pictures from 2/7/13 Commission Hearing)

 

Oysters covered with invasive tunicates

which are spread throughout Drakes Estero

through DBOC shellfish harvesting,

harming native shellfish and habitat.

The Lunny family allows themselves to be used by well funded conservative groups such as Cause of Action. Their donors remain hidden behind a legal cloak which will eventually be pierced. Many of these donors are directly tied to corporations who believe regulatory oversight is good, as long as it isn't them being regulated. Footprints in the sand lead directly to the shellfish industry and the oil industry. What strange bedfellows, both preventing the only shoreline wilderness area on the west coast from being created as Congress intended it be.

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 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.