Drakes Bay Oyster Company: No Longer Willing to Cooperate with Coastal Commission - Files Suit, Again

To Delay Coastal Act Compliance, Drakes Bay Oyster Co. Sues Commission Again

(see announcement below)

 

Likes to litigate

Peter Prows

Public Relations Attorney

for Drakes Bay Oyster Company

 

July 19: The Contra Costa Times reported attorney Prows as saying: "We want to comply and have been complying," Prows said, noting the oyster company has developed several plans to address the commission's concerns. "We are happy to keep working with the commission."

January 30: Never mind, it's your fault, and because we are aquaculture we get a pass. Plus, you are supposed to promote and protect us.
Following a well established pattern of claiming to be willing to cooperate then filing suit to delay actions, Drakes Bay Oyster Company has sued the California Coastal Commission to delay their dealing with violations, some existing seven years. But this time they claim their violations are not violations because they are aquaculture. In fact, DBOC goes one step further, claiming that aquaculture trumps all, including the Wilderness Act.

Like a cancer spreading

adversely impacting eelgrass

 

Didemnum vexillum continues to be spread through DBOC action
In the mean time, like a tumor shedding cells which metastasize elsewhere in the body, Drakes Estero continues to feel the impact from Drakes Bay Oyster Company's operations. Their artificial structures and planted shellfish create a surface area for Dv which, when harvested, result in matured colonies of Dv breaking lose and spreading throughout Drakes Estero. As a result, eelgrass, one of the critical habitats in shallow marine waters for numerous marine species, is now being adversely impacted. This is the very Dv which Mr. Prows professed to be willing to work with the commission about. It is one of the few areas where eelgrass is being overtaken.

"I don't understand why...."

Really? It's not complicated.

Mrs. Lunny in front of a disarray of

plastic grow out bags used by

DBOC in the marine wilderness area.

 

We're a shellfish farm, we should be able to do what we want to. Even if it's a wilderness area.

In the cross-complaint Drakes Bay Oyster Company's public relations attorney Peter Prows claims that because DBOC is aquaculture they should not be regulated by the Coastal Act but instead be protected and promoted. That Drakes Estero is a designated wilderness area seems lost on he, the Lunny family, and their supporters. Artificial structures made of pressure treated wood from which metal and plastic are used for non-naitive shellfish to be grown should be promoted. Artificial grow-out bags which scour the sediments they sit on should be allowed in a wilderness area because of an attorney's odd perception that aquaculture trumps the Wilderness Act. Any activity along the coastline, if promoted in the name of aquaculture, should be given a pass, no matter what the impact on native species or the habitat supporting them. Any activity perceived as a threat to aquaculture should be banned - including cattle ranching if it pollutes the water.

 

Part of the "plan" to eliminate cattle ranching in all of Marin County

What is most ironic of all is Ms. Faber's involvement. Contained within the body of the complaint is the clear threat to any activity which threatens a body of water in which shellfish might be able to grow. Whether a development or cattle ranching, if it is perceived as a threat to aquaculture DBOC says it must go. Included is cattle ranching because it threatens the quality of water their shellfish grow in.

 

Aquaculture is not restoration

 

Aquaculture is not restoration - it is a commercial activity and Drakes Estero is a designated wilderness area

Aquaculture is not restoration. It is a commercial activity using structures, motorized vehicles, and in the case of DBOC, growing non-native species. Harvesting activities disrupt an ecosystem, destroying the artificial habitat at harvest time, over and over. Unlike San Francisco Bay where shellfish reefs are being restored, in Drakes Estero shellfish reefs are being destroyed. In a wilderness area. It's not complicated.

 

Press Release

For Immediate Release

Contact:  Amy Trainer, (415) 306-6052 

To Delay Coastal Act Compliance Drakes Bay Oyster Co. Sues Coastal Commission Again

Company’s operations continue to threaten ecological health of Drakes Estero Marine Wilderness area 

Point Reyes, California –  Almost one year after the California Coastal Commission unanimously issued a unilateral Cease and Desist Order against the controversial Drakes Bay Oyster Company (Company) for egregious violations of the California Coastal Act, the Company remains in substantial non-compliance with the Act and yesterday sued the Commission again to continue avoiding legal compliance.  The Company, whose federal lease expired on November 30, 2012 and will not be renewed, demands that the Commission grant it a coastal development permit despite the fact that it does not have approval from the property owner – the National Park Service - for ongoing operations.

“It’s outrageous that since its inception the Drakes Bay Oyster Company has refused to get an operating permit and has ignored all of the most basic coastal protection regulations, yet now sues the Commission for what the Company failed to do for seven years,” said Amy Trainer, executive director of the Environmental Action Committee of West Marin. “This unsustainable Company that pollutes our beaches, causes the spread of invasive species, and disturbs harbor seal has no place in a national park wilderness area. The Drakes Bay Oyster Company needs to stop wasting taxpayer resources on frivolous lawsuits and instead use its apparently considerable financial resources to protect the Estero’s ecology and make some meaningful progress on its shameful Coastal Act noncompliance record,” said Trainer.

As a result of its refusal to get a coastal development permit since 2005, the controversial Company has violated harbor seal protection requirements, failed to control significant amounts of its plastic that has polluted the marine environment and beaches all over the Point Reyes National Seashore, failed to pay fines of $61,250 imposed in 2009 for illegal activities, failed to get permission to grow invasive Manila clams, and failed to address the increasing amount of the invasive sea squirt Didemnum vexillum (Dvex) or “marine vomit” that its oyster operations and practices perpetuate. A scientific report released last October revealed that the controversial Company’s production of millions of non-native Japanese oysters is perpetuating “alarming” amounts of the highly aggressive and invasive “marine vomit” and threatens the ecological health of Drakes Estero marine wilderness area.

The study, prepared by Jude Stalker, an experienced Bay Area invasive species removal specialist, documented that  the marine vomit has infested the non-native oysters and oyster infrastructure. Shockingly the marine vomit has invaded both dead and live eelgrass that exists next to the marine vomit-coated oysters and racks on the floor of Drakes Estero. Dvex is considered to be a significant threat to the health of marine ecosystems because of its documented ability to spread rapidly, smother native flora and habitats, and thereby reduce the biodiversity of natural areas. Eelgrass dominates the bottom habitat of Drakes Estero, thus the potential adverse impact from the ongoing Dvex infestation by the Company is substantial.

 “Despite awareness of the increasing marine vomit infestation on its non-native oysters, the Company has failed to take responsibility for or take any steps to remediate this serious ecological mess,” Trainer said. Research has shown that a rapid response to a Dvex infestation is essential to successfully manage and ensure its removal from a natural area. The report recommended the immediate removal of Dvex from all infested sources in the Estero, including infested oysters, infested oyster cultivation infrastructure, infested live and dead eelgrass, and any other infested natural substrate.

The Drakes Bay Oyster Company was denied for the second time a preliminary injunction to keep operating by the 9^th Circuit Court of Appeals on September 3^rd and was denied its request for review of that decision by an 11-judge panel of the 9th Circuit on January 14^th.  Drakes Bay Oyster Company was removed from the Monterey Bay Aquarium’s Seafood Watch Partner list 4 years ago and is being supported by the Koch brothers funded Pacific Legal Foundation and Americans For Prosperity in its quest to commercialize Drakes Estero Wilderness.

 

# # # 

http://www.indybay.org/newsitems/2014/01/30/18750022.php

Amy Trainer

Executive Director

Environmental Action Committee of West Marin

Box 609 Point Reyes, CA 94956

amy@eacmarin.org

(415) 663-9312 office

(415) 306-6052 cell

Protecting West Marin Since 1971!

www.eacmarin.org

www.savepointreyeswilderness.org

www.pointreyesbirdingfestival.org

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Those who contemplate the beauty of the Earth

find reserves of strength that will endure

as long as life lasts.  ~ Rachel Carson

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.

Drakes Bay Oyster Company: Castles Made of Sand

"Castles made of sand ..."

 



Shellfish growers from the East Coast Shellfish Growers Association and Pacific Coast Shellfish Growers Association lobbying groups are upset about Secretary Salazar's decision to allow a lease for a commercial shellfish farm in the Point Reyes wilderness area to expire. They claim "accepted environmental science" shows commercial shellfish farms, as operated today, benefit the environment and they are "going to sue." More importantly, they are at the same time lobbying for Governor Gregoire to replace Secretary Salazar. Unlike the Governor, Secretary Salazar placed the definition of "Wilderness" above the commercial needs of the shellfish industry.

Look a Little Deeper



Why are they bringing "forces to bear?" It is not over concern of the Lunny family who purchased the farm, knowing its lease was set to expire in 2012. The Lunny family is very well off and will continue to be well off from the profits made while operating the shellfish farm and from their upland dairy/cattle farm operated nearby. Nor are they concerned about their employees. Workers will be displaced, but if we are to believe Taylor Shellfish and the PCSGA, their skills are in high demand and will be easily absorbed by the shellfish industry. They lobbied in Washington D.C. this February for immigration reform, distributing an "issues paper" stating: "In a healthy economy, the domestic workforce does not provide sufficient numbers of qualified workers for the shellfish industry."

Why are they so upset they are going to spend the money to sue? It is because they are worried the Environmental Impact Statement (EIS), which clearly shows adverse impacts from current methods used in commercial shellfish farming, establishes a precedent which will be used to regulate the industry and constrict the growth and tideland development they have lobbied so hard for.

Existing and Proposed Geoduck Farms in Henderson Inlet

From a November 26 permit hearing, courtesy of Sierra Club

Commercial shellfish farms, as operated today, are transforming the aquatic habitat of all areas they operate in, and even those far from where they are located. Gone are the days when Justin Taylor, as a boy, used to spread shell on the tidelands for oyster clusters grow on, to be harvested three years later. Now, genetically modified non-native Pacific oysters are "hatched" in a waterside factory and placed into growout bags, smothering and scouring the tidelands they are placed on. Other growers tie "oyster cages" together with floats which rise off of and fall back onto the tidelands with each cycle of the tides, scouring the sediments. A natural habitat is completely altered.

Grow Out Bags

Shellfish growers justify this by saying bags create "structure" and oysters provide "filtering". Were oysters left in place, and natural reefs allowed to develop as they had in the past, this may have merit. But they are not. Every two years, or sooner, this "structure" and any filtering provided are removed, leaving in its place scoured tidelands, soon covered by new growout bags and oysters hatched from as far away as Hawaii. This is not "wilderness" nor is it even natural. Nor is it the only impact from commercial shellfish operations which is occurring.

 

Penn Cove Processing Barge

In addition to the adverse tideland impacts the shellfish industry is so concerned about are the in water facilities which exist. Totten Inlet and Penn Cove are two areas where large mussel farms are operated. In Penn Cove, an in-water processing facility is used to clean and process mussels harvested from the near 50 rafts located in Penn Cove.

A recent permit for 58 mussel rafts in Thurston County was denied due to the EIS not adequately considering cumulative impacts. Among other things, dissolved oxygen levels below the rafts were significantly decreased. Shells dropping off from mussel die-off smothered the sediments below the rafts. Deposition of feces and pseudo-feces concentrated nutrients below the rafts. Spreading of non-native Gallo mussels into habitat of native mussels was occurring. All were issues not adequately addressed in the EIS and, in part, why the Hearing Examiner denied the permit.

CO2 and Ocean Acidification

Most recently, the Blue Ribbon Panel on Ocean Acidification described how CO2 is lowering the pH level in ocean waters and lessening the molecules necessary for calcification, resulting in hatcheries being unable to produce adequate amounts of seed. It also results in native species having fewer molecules to use for calcifying. The recommendation? Expand shellfish farming. The problem? The increase in densities of shellfish grown will use up even more of the diminished supply of molecules necessary for life by native species.

Their recommendation on limiting the primary source of CO2 exported to China, coal? "We are silent on that issue." Involvement of the farming/dairy/cattle industries on recommendations? Nothing because, as Bill Dewey reported to the PCSGA in January: "Ocean Acidification – Sustainable Fisheries Partnership will help identify participants for the Governor’s Blue Ribbon Panel." (January 2012 minutes of PCSGA meeting.) It seems Mr. Warren forgot to include them when he helped create the panel, even knowing they would be one of the primary targets of recommended actions.

Castles built of sand slip into the sea. The shellfish industry is finding their own "scientific" foundation slipping into the sea.

Get involved. Let President Obama and your congressional representatives know Governor Gregoire is not the best choice to replace Secretary Salazar, should he decide to leave.
http://www.usa.gov/Contact/Elected.shtml