Drakes Bay Oyster Company: Supreme Court to Review Petition June 26th

The Secretary emphasized in particular that

"his decision was 'based on the incompatibility of

commercial activities in wilderness.'"

Department of the Interior brief

 



The Supreme Court has announced it will review Drakes Bay Oyster Company's petition on June 26th.  It is expected an announcement will be issued the following Monday, June 30th, on their decision. It may be rejected, re-listed for further consideration the following week, or accepted for review.

The Department of the Interior's clear logic on why DBOC's petition should be rejected is detailed in their brief [click here]. It shows the reader in clarity why DOI's decision to allow Drakes Estero to become the wilderness Congress intended, for all citizens of the United States to enjoy, is well grounded in law. DBOC's perceived belief of being entitled to generate profits from their commercial operation within the Philip Burton Wilderness Area does not trump the Wilderness Act.

Additional information may be found here:
13-1244
Drakes Bay Oyster Company v. Jewell

(1) Whether federal courts lack jurisdiction under the Administrative Procedure Act to review an agency action that is arbitrary and capricious or an abuse of discretion when the statute authorizing the action does not impose specific requirements governing the exercise of discretion; (2) whether federal agencies can evade review of their actions under the National Environmental Policy Act by designating their actions as “conservation efforts,” when the record shows that the action will cause significant adverse environmental effects; and (3) whether an agency commits prejudicial error when it makes materially false statements in an environmental impact statement, and then asserts that it would have made the same decision even if the false statements had been corrected.

Burley Lagoon: Taylor Shellfish Proposes 25+ Acre Geoduck Farm

[Note: SEPA environmental decision is separate.]

 

Comments Due July 3, 4:30 P.M.

Must include permit number SD/CP15-14 and Applicant, Taylor Shellfish – Western Oyster

Properties LLC aka Burley Lagoon

Attn: Ty Booth, Senior Planner

tbooth@co.pierce.wa.us 253-798-3727

 

or in writing to:

Planning and Land Services,

Attn: Current Planning, Ste. 175,

2401 South 35th Street

Tacoma, WA 98409.

 

25+ Acre Conversion of Burley Lagoon

Pierce County has notified the public that Taylor Shellfish has submitted an application to create a 25+ acre geoduck farm in Burley Lagoon. As described:

Proposed Action: The Applicant is proposing to convert existing shellfish beds from the cultivation (planting, growing, and harvesting) of Pacific oysters, Manila clams, and scatter-planted Geoduck clams to Geoduck clams planted in tubes.

Detail of action area

 

Do starfish celebrate like the Mariners?

Taylor Shellfish states it is only transforming an area from one type of shellfish cultivation to another and little harm will result. Whether the native habitat and species of Burley Lagoon agree will remain to be seen. It's doubtful the starfish seen below agree.

 

Did we win something?

From Burley Lagoon

 

They typically do not "pig pile" in  celebration like the Mariners did in 1995 after beating the Yankees in the 11th inning of the ALDS . Scientists contacted generally agree these were intentionally moved and piled together. More worrisome to some, by concentrating a population such as this the current "starfish wasting" disease which is impacting starfish in Puget Sound will likely spread, further devastating a native species. However, it is less worrisome to the shellfish industry who see them as little more than a "pest." (See industry's complete list of "pests" in their "Pests of Bivalve Aquaculture" document.)



1995 Game 5 ALDS, 11th Inning

Go home Yankees

Feels better than the starfish.

Things linger in low flush toilets
Pierce County once noted that Burley Lagoon is a low flushing lagoon. The result is sediments which are suspended are not simply carried away by the tide but instead linger within the body of water.  Whether Pierce County will permit one of the largest proposed geoduck farm in an enclosed body of water will remain to be seen.

Image created from dive harvesting

pictures of Spencer Cove, Harstine Island.

Vibrio Returns to Puget Sound: Hood Canal Growing Area 6 Impacted

Vibriosis traced to oysters

from Hood Canal

The Department of Health has notified shellfish growers of vibriosis contracted from oysters traced to Hood Canal Growing Area #6. They are now requiring shellfish growers in Area #6 to reduce the "time to temperature" to one hour. DOH is required to act if 2 or more cases of vibriosis are reported which can be traced to a specific growing area.

Combination of Minus Tides

and Higher Temperatures



As noted earlier in the month, the combination of higher than normal temperatures and minus day time tides increases the risk of vibrio in oysters causing illness. April 30th, DOH issued a warning to shellfish growers to be aware of the increased risk to consumers. Warmer than normal temperatures for this weekend, combined with minus day time tides, may again increase the risk of contracting vibriosis from oysters harvested from Puget Sound.

Drakes Bay Oyster Company: DOI Responds to DBOC's Petition - "Misguided, lacks merit."

 "This isn't about environmental crimes."

Dr. Corey Goodman, Range Magazine, 2013

 

 

"The purchase documents specifically informed

petitioners that the right to operate in the

National Seashore would expire in 2012."

DOI Brief

 

"After careful consideration of the applicable law and policy, I have directed the National Park Service to allow the permit for the Drakes Bay Oyster Co. to expire ... and to return the Drakes Estero to the state of wilderness that Congress designated for it in 1976."

DOI Secretary Salazar, November, 2012 [Note: date corrected 5/29] 

 

NEWS: Interior Dept. Files Supreme Court Brief, Concludes No Credible Argument Presented



Contact:

Amy Trainer, Environmental Action Committee of West Marin, 415-306-6052

Neal Desai, National Parks Conservation Association, 510-368-0845

 

 

Interior Department Brief Concludes No Credible Argument Presented by Oyster Company

Interior Filing Confirms Oyster Company’s Petition is Misguided, Lacks Merit 

Today, the Department of the Interior filed its opposition brief against the Drakes Bay Oyster Company’s petition for review to the U.S. Supreme Court. The Interior Department’s opposition brief handily rejected the oyster company’s desperate attempt to continue operating more than a year after former Interior Secretary Salazar decided to let the 40-year lease expire on its own terms as planned. The Federal District Court and the 9^th Circuit Court of Appeals affirmed the legality of Salazar’s decision, including that the oyster company was well aware of the lease’s 2012 expiration date.

 “The Interior Department’s brief strongly articulates the many reasons why the Obama Administration’s decision to let the 40-year commercial oyster lease expire and allow Drakes Estero to be restored to wilderness is definitively supported by federal court decisions, as well as federal law and policy,” said Amy Trainer, executive director of the Environmental Action Committee of West Marin. “The Interior Department’s brief handily rejects the oyster company’s misguided and erroneous legal arguments, and seamlessly shows why the Supreme Court should pass on reviewing this case.”

“Three federal court rulings have rejected the oyster company’s assault on taxpayer purchased lands, bringing Americans one step closer to enjoying their national park wilderness as planned decades ago,” said Neal Desai, pacific region field director of the National Parks Conservation Association.

 

Highlights from the Interior Department’s brief include:

 

-- The court of appeals accordingly considered on the merits (and rejected) every objection that petitioners [Drakes Bay Oyster Co.] raised against the Secretary’s decision. Pg. 11

 

-- The petition does not identify any particular, specific, reviewable arguments that were presented to, but disregarded by, the court of appeals. Pg. 14

 

-- Because the court of appeals did not conclude that there was “no law to apply” in this case, the decision below does not implicate any of the circuit conflicts alleged by petitioners. Pg. 15

 

-- The decision in this case did not alter the legal status quo. This is not a circumstance in which an agency is required by statute or regulation to act on a permit application. Rather it is a circumstance in which rights reserved in a contract conveying land to the United States were set to expire on their own terms, and the agency did nothing to change that situation. Allowing such rights to expire is not naturally characterized as “major agency action.”And none of the circuit decisions relied on by petitioner suggests that NEPA would apply in a circumstance like this. Pg. 23

                                                                                                         # # #

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

China Lifts Geoduck Ban

Earthfix reports that after the United States agreed to more stringent testing for arsenic it will lift the ban on geoducks and other shellfish.
(see Earthfix for more)

China To Lift Ban On West Coast Shellfish

May 23, 2014 | OPB

China will lift its ban on imports of geoduck clams and other shellfish from the West Coast, according to a statement from Washington Congressman Derek Kilmer.

“The lifting of this ban is great news for shellfish growers and businesses in our region,” Kilmer said Friday in a statement. “China is a key export market for our region’s shellfish and this news means greater economic stability for the workers and families in our region.”

In December, China issued the first ever ban on all shipments of shellfish harvested on the coast from the waters of Washington, Oregon, Alaska and Northern California. That followed China’s determination that a shipment of geoduck clams from Washington showed unsafe levels of inorganic arsenic and another from Alaska showed similarly high levels of the toxin that causes paralytic shellfish poisoning.

Chinese officials sent a letter Friday to the National Ocean and Atmospheric Administration advising the federal agency the ban would be lifted. The letter stated Chinese officials were satisfied with NOAA’s proposed plans for new monitoring and testing requirements for paralytic shellfish poisoning and inorganic arsenic, which would meet China’s food safety requirements.

China’s ban sparked questions over how shellfish should be inspected before export. The portions of the clam showing levels of the toxins beyond China’s standards are not typically eaten in the U.S. but are in China. The U.S. has no standards for arsenic in shellfish.

The ban also put a brief economic strain on a major Northwest industry. The shellfish industry is worth $270 million in Washington state. The U.S. exported $68 million worth of geoduck clams alone in 2012 — most of which came from Puget Sound. Nearly 90 percent of that went to China.

“I appreciate the hard work of the State Departments of Health and Natural Resources, and the U.S. National Oceanic and Atmospheric Administration, Foreign Agricultural Service and U.S. Trade Representative, for all they’ve done to respond to this case and for effectively communicating to our international trading partners that our seafood is safe and healthy for their consumers,” Washington Gov. Jay Inslee said. “I also want to thank the staff in my D.C. office for working diligently on bringing resolution to this issue.”

Despite the ban, Washington growers had been shipping shellfish to Asia, with the two main destinations being Hong Kong and Vietnam. NOAA officials will work with federal and state food safety and health officials and the shellfish industry to implement the new requirements, which must be done before trade with China can resume. China still plans to send a team of food safety officials to the U.S. this fall to further discuss the issue and evaluate U.S. monitoring and testing plans.

New Hatchery to Help Restore Native Olympia Oysters in Puget Sound

Puget Sound's Native Olympia Oyster

(Maggie Freeman)



Restoration of Washington's native Olympia oysters, at less than 4% of their historic levels, took a step forward with the opening of the Kenneth K. Chew Center for Shellfish Research and Restoration hatchery. As part of a 10 year plan, the hatchery will focus on providing tribes and agencies a seed source to help rebuild the native population which was brought to near extinction from overharvesting and pollution.

Native Olympia (l) and Pacific (r)

 

Sea Grant: Restoration efforts at risk from non-native Pacific oyster

While the native Olympia oyster has shown signs of being able to adapt to lower pH levels ("ocean acidification") a larger challenge to restoration efforts may be found in the non-native Pacific oyster, introduced from Japan by the shellfish industry. The ability of the latter to grow quickly made it a more favorable "crop." However, this same ability has also caused Sea Grant to question whether the Pacific oyster presents a risk to the restoration efforts currently taking place in California. In a July 2, 2013 article, they noted the Pacific oyster "... has taken up residence in San Diego’s bays and lagoons and may be in the early stages of a full-fledged, non-native species invasion." The article went further and noted:

The traits that make it so suited to culture could also make it a formidable invader..."Our worry is that native oyster restoration efforts may backfire and we will end up creating habitat for the invasive oyster,” said Danielle Zacherl, a professor at Cal State Fullerton, who has been documenting the Pacific oyster’s spread in San Diego and Orange counties and is involved in native oyster bed restoration in Southern California.

For an earlier post on the Sea Grant article, see "Sea Grant: Pacific Oysters "may be in the early stages of a full-fledged, non-native species invasion."

Part 2: Bill Moyers Interviews Environmentalist David Suzuki

David Suzuki, interviewed

by Bill Moyers.

Part 2 of Bill Moyers' interview with David Suzuki explores further the influence of economics on environmental perceptions. As in part one, anyone paying attention to Drakes Bay Oyster Company's well paid public relations press will find insight into how to frame an environmental issue for the benefit of business at the expense of the environment. While focused on climate change, the means used to attack those who believe the climate has in fact changed as a result of human activities, are behind the reasoning used to justify a commercial operation in Drakes Estero, preventing the completion of the Philip Burton Wilderness Area.

In the case of DBOC, labels of "enviro Nazis" and "environmental zealots" are used to describe those who believe the Wilderness Act is clear in saying commercial operations are not compatible with wilderness. A permit's expiration date, well known when the current owners purchased the operation, is now described as "big government's overreaching" action. As noted in Bill Moyers' accompanying article:

In the second part of his conversation with Bill, Canadian scientist and environmental activist David Suzuki says killing the messenger is a 50-year-0ld strategy ripped straight from big tobacco’s playbook.
“This is a very effective thing that we know has been done by the tobacco industry [and] it’s being done by the fossil fuel industry… You attack a person on the basis of their trustworthiness, their ulterior motives, anything to get away from dealing with the issues”

As the Supreme Court's decision on whether to hear the case or not approaches, the arm waving increases. The conservative Pacific Legal Foundation puts out well buffered videos. Professors  complain that science isn't perfect when, in fact, this is an issue of a permit coming to an end not whether a class room experiment was designed correctly. "Friends" with nothing more than their own economic gain from book sales on the history of Drakes Estero feign deep concern. And cocktail party conspiracies of running agriculture out of Marin County, with Sonoma County next, are discussed on talk shows whose primary focus is on listening to speeches played backwards to hear the hidden meanings. It is arm waving which will not lift the idea out of the bridge club. 

Pierce County/Haley Geoduck Farm: Coalition and Neighbors Appeal MDNS Decision

Location of the proposed 11 acre "Haley" geoduck farm

on tidelands jointly owned by Taylor Shellfish family,

Seattle Shellfish, and those of the Haley (Almond Roca) family.

 

The Coalition To Protect Puget Sound Habitat and neighbors of a proposed 11 acre geoduck farm on Case Inlet have appealed the Mitigated Determination of Non-Significance (MDNS) issued by Pierce County. It was felt the lack of analysis by Pierce County which preceded the MDNS decision would set a dangerous precedent for all of Puget Sound. Issues included such things as the large size of the farm; the lack of a clear indication of how the farm would be planted and harvested; and, little to no consideration of the current expansion of geoduck farming which is occurring and will occur in Puget Sound.

The appeal decision - a $2,900 investment in the future of Puget Sound
Unlike the past, it was strongly felt that not appealing the MDNS would set a dangerous precedent for all of Puget Sound. While an appeal fee of $2,900 had to be paid, the alternative of doing nothing would have left the door open for shellfish attorneys to claim, as they have in the past, that because "nobody appealed the MDNS" any environmental concerns should not be considered in the permitting process. It is an investment in the belief that the future of Puget Sound is in balance.

Overview of the Haley farm's location,

just north of Herron Island.

 

Access to tidelands is denied - "trust us"
Part of the decision rested on the fact that the Taylor family, Seattle Shellfish, and the Haley family refused to grant access to the tidelands to help scientists determine what was there. In the past, shellfish attorneys have stated because expert witnesses did not visit the specific site their testimony should be discounted if not ignored. Now, when given the opportunity to show that the contract scientists hired by the shellfish industry were, in fact, correctly analyzing the habitat, the shellfish industry denies access. Instead, they take a "trust us" attitude because their well paid contract scientists have been there.

Department of Natural Resources'

"Herron Lake" lease proposal,

south of the Haley farm. 



Pierce County, and other counties, cannot operate in a vacuum - a current weakness in the Shoreline Management Act
Also at issue is the fact that Pierce County feels it is only obligated to look at what is occurring in Pierce County. In fact, south Puget Sound's habitat spans three separate counties with three separate approaches to how its tidelands are developed. Pierce and Thurston County both require permits, some more stringent than others, both complained about by the shellfish industry. Immediately to the west, Mason County has chosen to virtually ignore any regulatory oversight of geoduck farming, as seen in this permit note to Arcadia Point Seafood, with similar letters sent to others in the industry:

wrote letter to applicants, Steve and Vicki Wilson, cc'd DOE and Corps, approving proposal without need for SDP [shoreline development permit] or letter of exemption.

Minterbrook Oyster owner Kent Kingman's

 unpermitted developments.

Even Pierce County is challenged by shellfish growers - Minterbrook Oyster owner Kent Kingman's unpermitted bulkheads, shellfish operation and old data
Despite Pierce County's permitting requirements, even shellfish growers make regulatory oversight difficult with unpermitted activities. Within the Coalition's Shoreline Master Plan update submittal to Pierce County is a settlement agreement between Kent Kingman, current owner of Minterbrook Oyster, and Pierce County, for unpermitted developments on his shoreline property at the south end of Herron Island. Included is a major unpermitted shellfish operation; bulkheads; decks; and a dam blocking a stream which created a lagoon (see above and page 9 of the document). Currently, Taylor Shellfish has applied to operate the shellfish farm. Part of the application to resolve the violation incudes an 8 year old (2006) review done for both the DNR site and Mr. Kingman's, hoping to address the "Critical Fish and Wildlife Review." The report was done by Bioaquatics, owned by Dan Cheney, also employed by the Pacific Shellfish Institute. It does not appear any of the above was considered in the decision process which determined the outcome of the MDNS which the Coalition is appealing.

"You too can get rich!"

Really?

The tideland rush
Added to the above is a current rush by shellfish growers to lock up as many tidelands as possible for as long as possible. Industry is out of tidelands leaving only private and public tidelands left. Waving promises of great riches before tideland owners who are, for the most part, naïve of the long term consequences of their signing on the dotted line, shellfish growers lock them in to long-term leases with a small percentage paid to them. Not discussed is who will clean up the mess when this "geoduck bubble" crashes. It is not a matter of if, only a matter of when.

Support the Coalition and Case Inlet Shoreline Association
You can help the Coalition in its drive to protect Puget Sound's habitat as it was meant to be with a donation to the Case Inlet Shoreline Association (CISA). CISA is a 501c3 organization so donations are tax deductible. More important is the future Puget Sound which you will help create.

Geoduck Management Plan in Canada Causes First Nation Stz'uminus to Act

 “If you’re not going to acknowledge our interests...

… then we’re going to reclaim the area.”

Ray Gauthier, CEO of the Coast Salish Development Corporation

 

Area in dispute on the East

side of Vancouver Island

 

Canada's recently released "draft geoduck management plan" which would open vast tracts of British Columbia's tidelands to geoduck harvesting and cultivation has caused the Stz'uminus First Nation to threaten to blockade all commercial fishing in an area of the Straights of Georgia (see here for Area 17 and Area 18 proposed DFO harvest maps). In The Tyee, it was noted Stz'uminus chief John Elliot believes the threat was the culmination of decades of frustrations with what he sees as unsustainable resource management by the Department of Fisheries and Oceans (DFO), which he added favours commercial fishermen over First Nations. He was quoted as saying:

"...DFO's management plans and policies don't put nations in any position to be successful in any of their territories."

Vancouver Island, Puget Sound and

area Stz'uminus threaten with a blockade.

 

Unlike the state of Washington, where the courts declared Puget Sound Native American tribal treaty rights allow them 50% of all revenues from subtidal harvesting of geoduck (estimated by Sea Grant at 4 million pounds annually), First Nations (tribes) must apply to the government for harvest rights. In the case of the Stz'uminus, they had applied for an area covering 100 hectares (~247 acres) next to their reserve, but were only granted the right to harvest 5 hectares.

For more on the dispute see CBC News or The Tyee.

Bill Moyers Interviews David Suzuki on the Corporate Press to Redefine Environmentalism

Bill Moyers Interviews David Suzuki

(click here for interview)

Anyone who has listened to or read the corporate lobbyists try and create a "modern environmentalist" to justify why a commercial operation should be allowed in Drakes Estero, part of the Philip Burton Wilderness Area, will find Bill Moyers' interview with David Suzuki on point. In it they discuss the current press by corporate interests to undo decades of work meant to ensure future generations will have some sense of what wilderness and nature truly are.

As put by Al Bergstein on the Olympic Peninsula Environmental News site:

"a coordinated attack on environmentalists from a huge number of media outlets, paid for by corporations that profit from environmentally destructive practices, and backed by billionaires who also profit from the status quo, has effectively countered many of the arguments for progress."

In the case of Drakes Estero, an agreement that a commercial operation would end in 2012 is now being framed by corporate interests as a "small business operator" being pushed off of public lands by environmental "zealots" whose goal, in fact, is to see the completion of the Philip Burton Wilderness Area. It is a goal which has been fought by corporate lobbyists whose goal is nothing more than to put in place a template to gain access to other wilderness areas throughout the United States.  Wilderness areas intended to be protected for future generations, not for commercial exploitation.

Get involved. You can help complete the creation of the Philip Burton Wilderness Area by donating to the West Marin Environmental Action Committee.
[Update 5/12: Corrected Mr. Moyers' name.]