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

Professor of Marine Biology Writes on Why Drakes Estero Should Become Wilderness

 

Suggests those who claim benefits from the farm's continued

operation should "review a college-level ecology textbook"

 

Placement of grow-out bags in Drakes Estero

Wilderness?

 

On July 31, the Marin Independent Journal published an editorial by Professor Joe Mueller, a local professor of marine ecology and environmental science, and winner of the prestigious T Award in 2008. In that editorial he writes why it is misguided to believe a commercial shellfish operation growing 20 million* non-native oysters benefits the marine ecosystem of a designated marine wilderness area.

(*Note: The figure of 20 million non-native oysters referred to is Kevin Lunny's estimate of how many non-native oysters, along with 2 million non-native Manila clams, would have to be removed if he were forced to close. It is part of his sworn rebuttal, signed on January 16, 2013. Some ardent supporters, such as east coast writer and corporate story teller Sarah Roph, claim the number of 19 million presented by the Coastal Commission to Superior Court is somehow distorted.)

 Professor Mueller's editorial from MarinIJ.com is copied below.

 

Marin Voice: Doing what's right for the ecology

 

I COMMEND the level of public engagement in the debate over whether to protect Drakes Estero marine wilderness or continue commercial oyster operations in our local national park. While the decision did not rest on scientific matters, fundamental ecological principles have always supported protecting this estuary.

 

As a local professor of marine ecology and environmental science for the past 25 years, I would be remiss if I didn't voice strong disagreement with those that feel growing and extracting 20 million non-native oysters from the Drakes Bay Ecosystem is in any way commendable as an environmentally healthy practice.

 

Proponents of maintaining this substantial cultivation and harvest fail to realize many fundamentals of ecological science. In fact, from what I can gather, advocates believe that maintaining this operation is somehow beneficial to the Drakes Bay ecosystem.

At its foundations, the Drakes Bay tidal estuarine ecosystem functions when both phytoplankton and salt marsh plants package sunlight and materials into carbohydrate. The tides then scour the embayment and surrounding coastal area with nutrients.

When we come along and funnel many of those nutrients into oysters for tourists then the system is not able to provide adequately for all the other components of the system (marine invertebrates, fish, birds, marine mammals etc.). This may be somewhat sustainable from a human-use point of view, but it clearly short-changes the non-human aspects of the system.

Of course this is the same fundamental havoc the human species is causing world wide, with 20 percent of the world population using 80 percent of the resources, the very ecosystems we all depend on are suffering, and we've exceeded our footprint.

This provides a unique conundrum for some people in West Marin. How do they maintain their well-earned reputation of environmental sustainability and still extract 700,000 pounds of oysters per year from an ecosystem slated for wilderness 40 years ago? In fact, the wilderness designation allows humans to be visitors to revel in the natural wonder that ultimately provides the attraction for tourists in the first place.

National park and wilderness advocates are asking to save one (yes, just one) estuary on the entire western coast of the United States. This would honor an agreement that Congress made and fulfill the vision to protect Drakes Estero after the oyster lease expired, as planned and paid for. Protecting this estuary for wilderness would spare wildlife from human disruption by thousands of roaring motorboat trips, water pollution, artificial modification through invasive species and nutrient extraction.

There are a few scientists who claim oysters are needed for the Drakes Bay ecosystem to function, essentially stating that the ecosystem wouldn't or couldn't function in a pristine state without human intervention. I would respectfully recommend that these individuals review a college-level ecology textbook to see the flaws in their claims.

I think most agree that nitrogen has been cycling in tidal estuaries for eons without the help of human intervention.

There are a host of other reasons I believe that the pro-oyster company side of the argument is not compliant with healthy ecosystem science. This includes, but is not limited to, five miles of toxic creosote treated wooden racks that continuously add toxins to the water that are spread throughout the embayment with every tide, thousands of plastic tubes that have littered the embayment and surrounding coastal area, impacts from invasive species on eel grass communities, impacts from invasive Manila clams, marine mammal disturbances, and the regular din of motorboat traffic.
This leads me to believe that some sustainably minded Marin residents mean well, but don't fully understand the science behind the controversy.

Joe Mueller of Fairfax is a professor of marine biology at the College of Marin.