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: Desperation on the Farm

The end-days of agriculture

in Marin and Somona Counties are near.

Phyllis Faber

 

Don Neubacher whispers to Ms. Faber at a party...

Drakes Bay Oyster Company: Conservative Tar is Sticky

[Update 8/18: In an article from PRWatch on the Koch Brothers' funded Franklin Center for Government and Public Integrity setting up "news websites" in 40 states, it notes the Franklin Center also donated $994,000 to Cause of Action in 2011. As noted, it was Cause of Action's "agenda" which suddenly made Phyllis Faber aware of there being more than an oyster farm's continued operation in a designated wilderness area driving their legal support of Drakes Bay Oyster  Company's continued operation. Found on the Franklin website are the various "news outlets" in each state, with Washington's being the "Freedom Foundation" where Scott Roberts operates out of. Mr. Roberts has helped Ed Kilduff promote his perceptions on wetlands, not accepted by the Department of Ecology nor San Juan County. Ed Kilduff was recently interviewed by Robin Carpenter in an "infomercial" on whether Marin County is the same as San Juan County in Washington. Tar is sticky.] 

 

Plausible Deniability

(Dilbert)

Recent public relations strategies executed by firms representing Drakes Bay Oyster Company have attempted to distance themselves from what has been termed "right wing conservative" groups who support commercial operations within wilderness areas. Most prominent of those groups supporting legal work for DBOC was Cause of Action whose efforts brought the case currently being considered by the 9th Circuit Court of Appeals to this state. The relationship between DBOC and COA was severed in large part when Phyllis Faber realized the agenda of COA and donors to that group were not aligned with her philosophy.

How was I to know?

Phyllis Faber

Since that time press releases, blogs, and radio interviews have all attempted to distance DBOC from any ties to conservative groups, attempting to align themselves with perceived "liberal" entities. Included in this have been alignment with San Francisco restaurant groups whose only stated concern is to continue providing local $3 oysters to their patrons. Another attempt to swing the narrative was public relations "expert" Sam Singer with Singer Associates submitting a statement for conservative radio talk show host "WZ" to read explaining his relationship with DBOC proclaiming that he was "democrat". One other example has been use of the conservative land use group Common Sense Alliance's board member Ed Kilduff's blog, Trojan Herron, to create Trojan Herring, publishing pieces authored by east coast resident, cook book author and fervent DBOC supporter Sarah Rolph (the former was interviewed by Robin Carpenter, lamenting the name calling which was going on but which side stepped Mr. Kilduff's very focused "name calling" of those in Washington who disagree with him).

In the Marin County fog created by public relations firms an attempt to deny past relationships relies heavily on "plausible deniability." Phyllis Faber and Corey Goodman's "how were we to know" letter cutting the ties with Cause of Action on the surface was admirable (an unfavorable News Hour report on public radio resulted in COA demand all interview tapes). Follow-up interviews on conservative radio shows did nothing to distance themselves from those who wish this commercial operation in a designated wilderness area to continue. The Freedom Foundation's use of Ed Kilduff in their videos only served to layer more tar onto the affair.

Citizens in Marin County are fortunate to be able to live in a bucolic landscape, adjacent to one of the most densely populated urban areas in the United States. It is that way because people such as Ms. Faber saw the pressures from development flowing into the county fracturing the landscape. She and other stepped in to implement land use regulations and create groups to acquire farms to prevent development at a local level. Citizens, and Ms. Faber, need to elevate themselves above the fray of Marin County and consider the national impact which the continued operation of this commercial operation in a designated wilderness area is going to result in.

A "cannery" and "local family run business" sound very romantic but they do not hide the reality of this being looked on by those whose agendas are far different than what is being portrayed by the public relations firms enlisted. Plausible deniability has been used in politics for decades. Public relations firms are "gifted" in their ability to create the fog in which this exists. Marin County citizens need to be able to see through this fog.

Point Reyes National Seashore Wilderness: Part of the "Grand Plan" to eliminate farming in Marin and Sonoma Counties?

Update: It should be noted that Robin Carpenter only hosts a program on KWMR, but is not an employee of the station. The views and opinions expressed on her program are not necessarily those of the radio station, its funders or members.

Robin Carpenter

 

On June 17th, Amy Trainer, Executive Director of Environmental Action Committee of West Marin (EAC), was interviewed by Robin Carpenter on Marin County's independent non-profit radio station KWMR (scroll to June 17, click on play button, interview begins at 28 minutes), located at Point Reyes Station. Ms. Carpenter, a supporter of Drakes Bay Oyster Company's (DBOC) continued commercial operation in the Drakes Estero wilderness area, expressed concerns about whether EAC still represented the knot tying environmentalism to farming or if it was instead trying to eliminate farming on all of Point Reyes. [Note: If Ms. Carpenter is truly concerned about "discourse," collegial conversations and building relationships between farmers and others she may want to consider dropping her lead in song which implies the "city kids" are somehow "going to pay" because they don't have "fluffy dogs that smell like hogs."]

Amy Trainer

EAC Executive Director

 

In that interview Ms. Trainer was asked to address the belief by West Marin County farmers that allowing Drakes Estero to revert to the Congressionally designated wilderness was only part of what Phyllis Faber has described as a "Grand Plan" whose end goal was to eliminate farming in all of Marin and Sonoma Counties (see below).

Local Coastal Program Update
The interview began with a brief discussion about concerns expressed by EAC over amendments proposed to the Marin County Local Coastal Program. Ms. Carpenter expressed that the Farm Bureau felt EAC's letter was a surprise to which Ms. Trainer replied that it had only expressed a summary of concerns previously known. Among other points in that letter were concerns over the Farm Bureau's advocating for increased housing density:

Additionally, the Farm Bureau advocates that C-APZ-60 owners, in addition to one farm house, an agricultural home-stay or a bed-and-breakfast, and farm worker housing, should be allowed guest housing and second units as a Permitted Use, and two inter-generational homes for family members not engaged in agriculture on the property as a Principal Permitted Use.

Is a "Right Wing Agenda" causing a divorce in the family?
After addressing the Coastal Plan issue Ms. Carpenter then moved to the question of whether supporting DBOC's continued commercial operation in Drakes Estero was supporting a "right wing agenda" of expanding commercial operations within wilderness areas and whether that was causing a "divorce" between EAC and the Farm Bureau. At 44 minutes Ms. Trainer explained that EAC, most of its local members, and many others throughout the nation believe very strongly that preventing commercial operations within Drakes Estero is critical to the future integrity of other wilderness areas. If DBOC's commercial operation is allowed to continue it will open the door to other wilderness areas becoming developed. Following a discussion on whether oysters provide any filtering of significance and who will be responsible for overseeing the removal of oysters and associated gear, the interview ended with how EAC saw itself, with Ms. Trainer noting that EAC has always taken on what she describes as "the tough challenges." Included is strong support of the creation of the only shoreline wilderness area on the west coast.

Phyllis Faber

Part of the Grand Plan?

 

Response to the Trainer Interview - Part of a "Grand Plan"
In response to the 30 minute interview with Ms. Trainer, KWMR provided DBOC attorney Peter Prows, MALT co-founder Phyllis Faber, and Farm Bureau President Sam Dolcini 60 minutes to discuss DBOC and their perceived threat to agriculture its closure represented. In that interview, Ms. Faber, at 25:30 minutes, describes what she sees as the "Grand Plan" which starts with eliminating cattle on Point Reyes. In that "plan" she sees first, DBOC's commercial operation ending, followed by the Center for Biological Diversity coming along the shoreline to sample waters for pollution. There they will find nitrogen traced to cows which will result in the farmers being told "the cattle must go." She states that environmentalists "do not understand" what support for the Drakes Estero wilderness means. In her eyes it is that first the oyster farm will cease operation, then farming on Point Reyes will cease, followed by farming ending in all of Marin County, after which Sonoma County's farming will cease (28:34).

[Is this what the opening song for the 6/17 interview, "City Kids" refers to? In that song those "city kids" with TV's and "fluffy dogs which didn't smell like hogs" have seen the tables turn and "now they're gonna pay". As noted above, Ms. Carpenter should consider whether that really improves the dialogue she professes to believe in.]

Ideals should not diminish with time.
At 28:59 she states her fatalistic view: wilderness will never exist, and at 46:00 states people should just "be happy with the wildness the park does provide them" and to focus on something else, like climate change. How would she have felt if, when she was younger, she was told by developers in San Francisco that her idea of forming the Marin Agricultural Land Trust was a waste of time and she should instead focus on the ozone hole. Wilderness can still exist and ideals still drive actions.

Sam Dolcini, President

of the Marin County Farm Bureau

"continued pressure"

DBOC: Canary in a Coal Mine or an Egg about to Hatch?
Sam Dolcini, President of the Marin County Farm Bureau, at 35:50 uses a metaphor to describe what he sees as growing pressure on the agricultural community. In his eyes, the shifting views on agriculture represented by the closure of DBOC is an egg in the nest which is about to hatch, becoming a canary in a coal mine which will "go onto life support," something he sees as being "very scary." He feels the agricultural community is being given advice from a community (represented by EAC) who doesn't understand them.

Can't we all just get along? It's just a little oyster farm.
After DBOC accepted support from Cause of Action, David Vitter and Doc Hastings, the link to larger agendas was found to be harming efforts to continue operations in the shoreline wilderness area. Now a new shift scripted by others is attempting to create the current frame for the DBOC issue. Now it is  one of "can't we all just get along" and that there are more important things in the world than a wilderness area in Marin County for people to focus their energies on.

Statements by DBOC attorney Mr. Prows that support for the wilderness area Congress created is an "attack on this little oyster farm" and to go elsewhere only demonstrates a lack in understanding the larger picture of the importance wilderness plays in people's lives now, and more importantly, the role it will play for future generations. It is most certainly not an attempt to eliminate farming in Marin and Sonoma Counties. It can exist and it is worth fighting for.

Drakes Bay Oyster Company: Attorney Who Worked for Koch Brothers Upset with PBS Report, Files Freedom of Information Request

Update: 5/23 - Cause of Action has withdrawn its FOIA request to PBS.
Updated 5/18: From a local Marin County resident - "my they are touchy, aren't they!"
5/17: from Cause of Action web site: "Today, Cause of Action submitted a FOIA request to PBS for the footage of interviews that went into this piece to determine if PBS misled viewers." 




What a tangled web ...

Cause of Action's executive director Dan Epstein, past attorney for a foundation run by one of the conservative Koch brothers, is apparently upset he was described as such by PBS ( “an attorney who once worked for a foundation run by one of the conservative activist Koch brothers”). In reaction Cause of Action has filed a request under the Freedom of Information Act (FOIA) for footage of interviews, presumably under his direction as executive director. He is trying to understand why others mentioned (e.g., Tom Strickland and Amy Trainer) were not described with adjectives he sees fit.

Dan Epstein, past attorney

 for conservative Koch Brothers





(Prior to his current position at Cause of Action, and after working for the conservative Koch Brothers foundation, Mr. Epstein became a "Republican counsel for the House Oversight and Government Reform Committee, which is chaired by Obama administration critic Rep. Darrell Issa (R-Calif.)" (from Cause of Action web site). Representative Issa's reputation stands on its own conservative platform.)

Ms. Phyllis Faber

"Environmental activist" (per Mr. Epstein) is upset

she is now tied to Mr. Epstein's group.

One of the directors of Marin Media Institute

which owns Point Reyes Light newspaper.

MMI was co-founded by Dr. Goodman.

In addition to his being upset with his past job description Mr. Epstein is also upset that Phyllis Faber is not happy with her now being tied to groups such as his Cause of Action who clearly view the Drakes Bay Oyster Company as a means to obtain resource extraction rights from other wilderness areas. In the PBS interview, Ms. Faber states she is:

“not happy to be on the same side as Cause of Action.”  In the May 1, 2013 NewsHour broadcast, Ms. Faber is quoted as stating, “I am very disturbed by that and I don’t agree with it at all. I think what they’re headed for is trying to use a commercial operation in a park – they want to establish that in other public, on other public lands and I think that’s terribly unfortunate.” [regrettably it was something she might have considered before filing a lawsuit against the California Coastal Commission for taking action against Drakes Bay Oyster's "egregious" ignoring of violations]  

Note: The CCC has filed suit against Drakes Bay Oyster Company. DBOC's reaction? It's "in retaliation" for all of the law suits filed on our behalf. A "how to respond" lesson learned from Mr. Epstein. (click here for article) 

Like Mr. Epstein being upset with the description of he and his past employers, he also feels Cause of Action was not described to Ms. Faber as it should have been. He claims the only reason Cause of Action became involved was over concerns about the quality of information developed, brought to his attention by Drakes Bay Oyster Company's Kevin Lunny and Dr. Corey Goodman. Apparently he was unaware it was something which shellfish attorney Billy Plauche wrote to the National Park Service about in August of 2007, as requested by the Pacific Coast Shellfish Growers Association. (click here for 2007 letter)

Shellfish attorney Billy Plauche

who wrote to NPS about "information quality"

in 2007 for the PCSGA.

Mr. Epstein is certainly free to describe the reason for his actions however he wishes, but the fact is if this private commercial operation is allowed to operate in the designated wilderness it will set a precedent for how to dismantle the wilderness act and create a new "corporate wilderness" which benefits only private corporations or individuals, such as Mr. Epstein's past employer, the Koch Brothers.

 

Dr. Goodman (r) and Mark Dowie (l)



As an end note, if Mr. Epstein is truly concerned about unbiased press and government transparency he might consider exploring whether the local Point Reyes Light newspaper (owned by the Marin Media Institute which Dr. Goodman co-founded and which Phyllis Faber was also a director of) may be using unbiased adjectives in their reporting on Drakes Bay Oyster Company's problem, or how much money has been spent on water quality testing in Marin County using technology Dr. Goodman helped privatize (click here). More likely Mr. Epstein will continue to complain about the press and government overreach.

Drakes Estero: Phyllis Faber Lawsuit Against Coastal Commission Called Frivolous

In a guest op-ed piece published in the May 2, Marin Independent Journal, Dr. Martin Griffin describes the lawsuit filed by Ms. Phyllis Faber against the California Coastal Commission (CCC) as a misguided effort which he forcefully states is frivolous. Ms. Faber challenged the CCC's orders against Drakes Bay Oyster Company (DBOC) for their numerous Coastal Act violations they have chosen to ignore.

Dr. Martin Griffin



In the piece he reminds readers about the fact that DBOC chose to ignore previous cease and desist orders filed against them. He correctly describes a company who simply chose to ignore numerous requests, becoming demands, that they correct deficiencies in their operation which were in violation of the Coastal Act. It clearly states that DBOC is alone in their ignoring regulations every other shellfish operator in California finds no problems complying with. Touched on but not developed fully is the false belief by Ms. Faber and others that cessation of the commercial shellfish farm's operations will have adverse ecological impacts worse than those currently occurring, a claim not based on fact but supposition put forth by DBOC's attorney.

Seemingly, the friendship between Ms. Faber and the Lunny family will alter a legacy of environmental activism she has established over her lifetime. If she prevails, the Coastal Act will be greatly diminished and the ability of the California Coastal Commission to enforce the regulations it was created to oversee will be greatly weakened. Something many industries will not doubt be enthused about.

California Coastal Commission Has Acted Appropriately Against Drakes Bay Oyster Company

(Editors Note: Sometimes a response to an Op-ed piece is better made by commenting directly within the article.)

 

Background: In the February 16, 2012 issue of the Marine Independent Journal is a "Guest op-ed" by Phyllis Faber, a co-founder of the Marin Agricultural Land Trust and a creator/former commissioner of the California Coastal Commission. It is copied below with comments on her thoughts. Ms. Faber is respected and has devoted most of her life to the preservation of open spaces through conservation easements, and through the California Coastal Commission (CCC), helped control developments on shorelines. That said, Ms. Faber does the CCC and the Wilderness Act a disservice in her well intentioned but misplaced support for the continued operation of the commercial shellfish farm in Drakes Estero.

 

Ms. Faber

Photo, Marine Independent Journal

 

California Coastal Commission uses distorted information to condemn oyster farm, 2/16/13, Marin Independent Journal

Comment: Drakes Bay Oyster Company was not condemned by the California Coastal Commission (CCC). It was brought before the commission to address past violations it did not act on