Drakes Bay Oyster Company and its owner, Kevin Lunny, argued in a brief to the Ninth Circuit last week that the federal government’s decision to boot out their oyster farm was an attempt to “impose an artificial wilderness in the middle of a historic farming community”, in violation of several laws. In a strong signal on the merits of the appeal, the Ninth Circuit has already granted the oyster farm’s emergency motion for an injunction pending appeal, finding that there are “serious legal questions and the balance of hardships tips sharply in [the oyster farm’s] favor”. Briscoe Ivester & Bazel LLP is representing the oyster farm pro bono, together with Cause Of Action, Stoel Rives LLP, and SSL Law Firm.

Point Reyes has been a farming community since at least the 1850s. Large areas of the uplands in Point Reyes are grazed by cattle and other livestock, producing world-class beef and dairy products. These upland farms completely surround a marine lagoon known as Drakes Estero, where the oysters are farmed.

Oysters had grown in Drakes Estero for millennia, until European settlers wiped them out. Oysters returned to the estero when oyster farming began there in the early 1930s. The Drakes Bay Oyster Company is the current owner of the oyster farm. The farm produces approximately one-third of the oysters grown in California. It is family-run, open to the public, and a model for sustainable agriculture working in harmony with the environment.

In 1962, Congress established the Point Reyes National Seashore as a working landscape composed of diverse uses, including historic farming. At the time of its creation, the federal government lacked title to much of what had been designated as the National Seashore, and Congress directed the Department of Interior to acquire the land as funds and landowners permitted. In 1965, the State of California conveyed the water bottoms in Drakes Estero to the federal government, but reserved the fishing and mineral rights to California. California has pledged to continue leasing Drakes Estero for aquaculture, and reserves the right to dredge the area for sand and other minerals at any time.

In 1976, Congress considered designating Drakes Estero as “wilderness” under the 1964 Wilderness Act, but it decided not to do so at the Interior Department’s request. Interior explained to Congress that California’s reserved mineral and fishing rights made the area “inconsistent” with wilderness. Congress agreed and instead designated Drakes Estero as “potential wilderness”. Although a House report on the final bill said that “potential wilderness” areas generally should be managed “to steadily continue to remove all obstacles to the eventual conversion of these lands and waters to wilderness status”, the Senate concluded that Drakes Estero specifically could not be designated as a wilderness until “the Federal government gains full title to these lands”.

Both federal and state laws encourage aquaculture. In 1998, the National Park Service approved a plan to expand the oyster farm and make it a showpiece of the Point Reyes National Seashore. In 2005, however, the Park Service reversed course and asserted that the law prohibited issuance of a permit that would allow the oyster farm to continue operating beyond 2012. This reversal was followed by a campaign to try to show that the oyster farm causes environmental harm. In 2007, the Interior Department’s Inspector General opened an investigation into allegations of “scientific misconduct” by the Park Service. That investigation found that the Park Service had “misrepresented research” in “concerted attempts” to find environmental harm from the oyster farm’s operations. A later investigation by the Office of the Solicitor agreed that the Park Service’s “misconduct arose from incomplete and biased evaluation and from blurring the line between exploration and advocacy through research.”

In response to this misconduct, Senator Feinstein urged the Park Service to engage the National Academy of Sciences to review the science. The National Academy found that the Park Service had “selectively presented, over-interpreted, or misrepresented the available scientific information on potential impacts of [the oyster farm]”. In particular, the Park Service gave “an interpretation of the science that exaggerated the negative and overlooked the potentially beneficial effects”, including the fact that the oysters “contribute to water filtration, the transfer of nutrients and carbon to the sediments, and biogeochemical cycling”—as they had done “for millennia until human exploitation eliminated them”.

Congress then became concerned about “the validity of the science”, and directed the National Academy to review it so as to ensure a “solid scientific foundation”. The National Academy again found indices of bias, and that the Park Service had not adequately assessed the potentially “significant” positive effect the oysters have on water quality.

The oyster farm also found flaws in the science. Instead of conducting any actual sound measurements in Drakes Estero, the Park Service relied on a study of high-horsepower jet skis, racing boats, and police patrols operating at full throttle off the Jersey Shore as “representative” of the noise generated by the farm’s small oyster skiffs. The Park Service also claimed to identify boat noise on days when no boats were operating. And it alleged that the farm’s operations disturbed harbor seals, even though the Park Service’s harbor seal expert found no evidence of any disturbance ever caused by the farm.

In response, Senator Feinstein convinced Congress to pass a law—“Section 124”—overruling the Park Service’s position and making it easy for the oyster farm to get its permit. Section 124 authorized the Secretary of the Interior to issue the permit “notwithstanding any other provision of law.”

On November 29, 2012—the day before the farm’s lease was to expire—Secretary of the Interior Kenneth Salazar denied the permit. His decision memorandum reasoned that issuing the permit would “violate” the law. He also claimed that his decision was exempt “from any substantive or procedural requirements”—including NEPA. And he directed the Park Service to convert Drakes Estero to full “wilderness”.

Four days later, the oyster farm filed a federal suit challenging the Secretary’s decision. It then moved for a preliminary injunction to allow the farm to continue operations while its suit is pending. The farm argued that the decision was illegal because the Secretary did the three things Congress told him not to do.

First, the Secretary’s decision violated Section 124. Section 124 overruled the Park Service’s position that issuing the permit would violate the law, because it authorized the Secretary “to issue” the permit “notwithstanding any other provision of law”. But when the Secretary denied the permit for the very reason Section 124 prohibited—that issuing the permit would “violate” the law—the Secretary violated Section 124.

Second, Congress in 1976 agreed with the Interior Department that Drakes Estero could not be converted to wilderness until California conveyed its reserved fishing and mineral rights back to the federal government. But California still retains its rights. And in truth, the estero is not a wilderness—it is a farm surrounded by other farms.

Third, Congress directed the Secretary to ensure a “solid scientific foundation”. But the Secretary did not ensure a solid scientific foundation. His decision did not defend the science criticized by the Inspector General, the Office of the Solicitor, the National Academy of Sciences, and the oyster farm. Instead, he claimed to be exempt from NEPA.

On February 4, the district court denied the preliminary injunction motion, and the oyster farm appealed to the Ninth Circuit Court of Appeals. On February 25, the Ninth Circuit granted the emergency injunction pending appeal. Oral argument on the appeal is scheduled for May 14 at 9am in San Francisco.

 

Peter Prows
Briscoe Ivester & Bazel LLP
155 Sansome Street, 7th Floor
San Francisco, CA 94104
Telephone: (415) 402-2700
Fax: (415) 398-5630

 

Disclaimer: In our Newsletters and Bulletins, Briscoe Ivester & Bazel LLP intends to present general information to the public and does not intend to provide legal advice pertaining to a particular situation.

 

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