Category Archives: Drakes Bay Oyster Company

Which side ???

 

By Richard Lang, published Nov 2012.

Friends have asked, regarding my letter to the West Marin Citizen 11/15/12, “Exactly which side are you on? Was that Letter To The Editor simply another, ‘Why can’t we just get along? Kumbaya?’” Maybe…but really, it’s a plea to shift gears. Here in West Marin, two groups fought an internecine struggle while mutually engaged in a shared vision for sustainability, biodiversity, low carbon footprint, healthy farming practices—these two groups have divided themselves into what I’ve come call the Agriculturati and Wildernistas.

As I said, I’d been on both sides of the issue, but now that the decision has been made by Sect’y Salazar, my feelings have settled like silt in a pond and now, I’m profoundly sad about how this went down. Families with children are affected, the Lunny family who has put heart and soul into this endeavor is affected, we are all affected by the loss of a viable and rich source of sustainable food. Food. Not only food but also, the mighty oysters function as nature’s kidneys cleaning the estuary.

Judith, my wife, and I were in DC early this fall to give a presentation at the NEWSEUM about plastic pollution in the ocean. We were put up in a hotel used mainly by out-of-town lobbyists. During our stay we kept running into large, blond, thick-fingered folks speaking with dipthonged A’s—the accent we heard in the movie Fargo. They all had big yellow buttons saying “Ask me about the farm bill.” We did.

They were in DC from North Dakota, Iowa—Midwestern farmers lobbying for an extension of the Crop Insurance Act, a program that allows family farmers to compete with big agribusiness. The Cargills and ADMs of the world can absorb the vicissitudes of weather and pricing, but family farms, always at the edge of financing, have a harder time. The farmers told us the thrust of not allowing crop insurance has allowed the agri-giants to absorb family farm after family farm. Bad news for the environment especially as the chemical industry is in the business of making farming drug-dependant—the pushers are Dow, Monsanto, Bayer, BASF—getting farmers hooked is their idea of better living through chemistry.

 

Disinformation abounds, just last summer the nationally distributed report from Stanford that became a media meme, said organic food wasn’t any better for you than chemically farmed food. Hmmm…. who supported that report and pushed its distribution? Although Cargill had no traceable link to the funding, they fund the department that did the study. And a group from the UK, using the same data came up with opposite results. The crucial and unspoken issue was not the food itself but what “conventional” farming does by destroying the soil, increasing dependency on chemical fertilizers and pesticides.

 

In January of 2009 the Supreme Court acceded to the Citizen’s United case. However, corporations are not people or alive, they are robots whose only purpose is to maximize profits. The “good guys” in the contention are all of us who value the complexity of living systems. The “bad guys” are entities who have little at stake save a quarterly report. And they are not “bad,” per se, there is no evil 007 bad guy working the levers—corporations are simply mindless automatons, disconnected from biological life. Although Lunny was figured in some press reports as a corporate giant, he’s a family farmer, a neighbor and a vital member of our community.

Specifically, here in West Marin we have the opportunity to be a little more free of the burgeoning corporate food business and blessedly free of the corporate “fun” business of a Leisure World Theme Park. Handmade cheese and lettuce that doesn’t kill the soil goes a long way in my book. Let’s be a model of acting like an organism and feel our way through this. So, which side? What I’m for is creative solutions to our problems like Peggy Rathman and John Wick’s Marin Carbon Project. Lunny actually tried to DO something about the environment, raising food with sensitivity while doing an admirable of tidying up the mess at Johnson’s. Kumbaya? There are some scary forces at work, I’m just sayin’, “lovers of the biosphere Unite!”

Having just seen the terrific new movie Lincoln, I’m reflecting on the history of the passage of the 13th Amendment outlawing slavery — how congressmen basically on the same side, were blocking passage because they weren’t getting exactly what they wanted. And, how Lincoln was masterful at making a coalition to get the bill passed.

And Lincoln, as a model for making tough legislation work was also a prescient follower of money interests. Before his presidency Lincoln was an early version of a corporate lawyer, defending the interests of the mushrooming corporations. His specialty was railroads so he knew the danger of the growing giants.

As a result of the war, corporations have been enthroned and an era of corruption in high places will follow, and the money power of the country will endeavor to prolong its reign by working upon the prejudices of the people until all wealth is aggregated in a few hands and the Republic is destroyed.

The passage appears in a letter from Lincoln to (Col.) William F. Elkins, Nov. 21, 1864

 

Today, we are poised at another history-changing moment, easily as momentous as ending slavery. It’s clear our environmental problems need another Lincoln—our relationship to the natural world must be corrected or we’re finished. And, maybe, in the end we can even get the vote for Harbor Seals.

 

 

 

The “Wave”

There was madness in any direction, at any hour. You could strike sparks anywhere. There was a fantastic universal sense that whatever we were doing was right, that we were winning…

And that, I think, was the handle — that sense of inevitable victory over the forces of Old and Evil. Not in any mean or military sense; we didn’t need that. Our energy would simply PREVAIL. There was no point in fighting — on our side or theirs. We had all the momentum; we were riding the crest of a high and beautiful wave…

So now, less than five years later, you can go up on a steep hill in Las Vegas and look West, and with the right kind of eyes you can almost see the high water mark — that place where the wave finally broke, and rolled back.” Hunter S. Thompson from Fear and Loathing in Las Vegas 1971

The “Wave” coming ashore actually did leave some gifts washing in and one was the PRNSS. This was no hallucination dissolving into pop materialism and commodification but a tangible monument to the marriage of the practical and spiritual. It was shaped as an experiment of cooperative arms embracing something precious—contentious factions worked together to make a new vision of how to be in the natural world. It was a union of the Wildernistas and the Agriculturati. A National Park that made food, what an idea…perfectly suited to this very place. The ranches and oyster farm want to do a better job at harnessing nature’s gifts, lets help them instead of proving legalistic or scientific points. It’s been said that DBOC’s renewed lease would set a dangerous precedent. We are not talking about fracking in a National Park or, god forbid, something like the damming of Hetch Hetchy, but the engagement with our ancient connection to the ultimate solution to our problems, the ultimate solar power—making food that enhances our relation to the natural forces of the world…all you need is love.

Richard Lang

Forest Knolls

Published September 2013

On the loss of Drakes Bay Oyster Farm

Significance beyond the obvious

I have spent the past 35 years exploring, through both theory and practice, the many challenges attendant to producing food in a manner that is ecologically benign or, at its best, beneficial. I have enjoyed oysters from Drakes Estero throughout that time, but it was not until I watched the evolution of the Drakes Bay Oyster Farm under the stewardship of the Lunny family that I came to fully appreciate how closely the Farm approaches perfection as a truly sustainable food production system. This simple fact is made all the more poignant by the juxtaposition of the imminent loss of the Farm and the particularly critical juncture in human history at which we now find ourselves.

 

Whether one views the Anthropocene as beginning with the Industrial Revolution of the 18th century, or with the agricultural revolution of 8,000 BCE, the era is rapidly approaching endgame. We are now witnessing the sixth great extinction event on Earth. The Northwest Passage is no longer a fantasy. The most recent sea-level rise projections, expressed in feet, soar to the double digits. Wild oceanic fisheries are projected to collapse within the next 35 years, just as the human need for protein doubles.

 

Shellfish aquaculture is widely recognized as one of the few sustainable options for marine protein production, even as oceans acidify, placing natural shellfish reproduction everywhere at risk. The US already faces a worsening shellfish deficit without the gratuitous destruction of over half of California’s production capacity. We cannot replace this resource without effectively stealing it from the mouths of others, though, to be sure, we have shown ourselves to be very good at that.

 

Arguments by opponents of the oyster farm, that its destruction is an environmental good, have been repeatedly exposed as without scientific merit. If Department of Interior policy is derived behind a smokescreen of distorted and falsified pseudoscience to fit political whims, the future of our public lands, already at dire risk from underfunding, archaic management paradigms and rapidly advancing climate change, is dark indeed. If the National Environmental Policy Act can be manipulated by politics and ultimately ignored, as has been done repeatedly in the Drakes Bay tragedy, what recourse do we as citizens have in the ongoing effort to protect our environment against actual threats? And if the constitutional rights of the people of our state can be so easily bought and sold, what hope can there be for the emergence of a functional democracy in America?

 

I cannot help but wonder upon what planet those who have fought so diligently -and so obscenely- against the oyster farm, imagine themselves to be living. Earth, this planet, is in ecological crisis. A single species, ourselves, is claiming over half of the annual biological production for its own use, and fouling its land, water and air with total disregard for the limits of the global system upon which we are utterly dependent to absorb or purify any of it. Wilderness?  We will be lucky to survive this century, and no amount of diddling with magic markers on a map will make a bit of difference to that calculus.

 

What might make a difference, what could make a difference, would be for us to wake up and recognize that we are part of this astonishing web of life, this vibrant blue sphere, this mote of dust in the sun. Our actions matter, for better or ill, as we choose. The oyster farm epitomizes the potential for our constructive, exuberant engagement with the full complexity of the living world. Perhaps this is why it cannot be allowed to stand by those who view mankind apart from that, who are incapable of imagining no role for our species but that of despoiler.

 

The discretionary elimination of the Drakes Bay Oyster Farm is but one more tragic, foolish, volitional step along our rapidly accelerating path to self-destruction. We have the capacity to build a world of abundance, but, thus far, have chosen another road.

 

 

 

 

New chapter for Drakes Bay Oyster Company


 

Drakes Bay Oyster Company announced it has settled its long-running lawsuit against the federal government. The legal agreement with the National Park Service, filed today, will allow the company to keep harvesting oysters until the end of 2014.

“We fought long and hard all the way to the U.S. Supreme Court.  Along the way we stood up for family farms, for sustainable food, and for scientific integrity in government,” said Drakes Bay Oyster Company co-owners Joe, Kevin and Bob Lunny.

“At the end of the day, although we lost this battle, it was important for us to be a voice for justice for family farms,” the Lunnys added.  “But we also respect the rule of law.  Even though we believe we were right, as good and law-abiding Americans, we accept this decision and will now move on to other things.”

But wait….

The Lunnys also have good news to announce.  Having fallen in love with the sustainability, ecological contributions, and food value of oysters, the Lunnys are planning a new venture: Drakes Oyster House, a restaurant to be located at the Tomales Bay Resort in Inverness, California.

In addition, because restaurant owners recognize the Lunny’s commitment to quality and service, Drakes Bay will also continue distributing oysters.  Hundreds of restaurants and markets around the San Francisco Bay Area will still be able to depend on Drakes Bay for their shellfish needs.

“This new venture will allow us to continue to provide jobs for many of our oyster workers while supporting other small family farms and fishermen in West Marin County,” said Kevin Lunny.  “We are delighted that we will be able to continue to offer bags of oysters to our cherished Drakes Bay retail customers.  And we are very excited about the opportunity to serve oysters and other fabulous local food at this stunning location on the water, with dining and decks overlooking beautiful Tomales Bay.”

Tomales Bay Resort owner Jeff Harriman said “I am thrilled to have the Lunnys bring the restaurant component to our five acre, 35 room resort and marina.”

“This is a great outcome,” said Corey Goodman, scientist, activist and Marshall rancher who advocated on behalf of DBOC. “The Lunnys remain in the community as vibrant members. Hopefully their new seafood restaurant thrives, and they continue in the oyster world. A good solution given a terrible court decision.”

Goodman is not completely at ease, however. “The worry of course is that the ranchers have bulls eyes on their back.  The press release [from Environmental Action Committee of West Marin] makes it as clear as can be.”

The EAC press release passage he finds specifically worrisome is this: “Now we will be able to find out just what difference, if any, oysters really have, or whether, instead, what matters is controlling what flows into an estuary.”

Editor’s note: Amy Trainer, executive director of the EAC, sent this correction to the Citizen re: the EAC press release:

The quote mentioned is from a “Protect Our Shoreline” News website posting that added commentary about an EAC press release, but the quote Corey attributes to us did not come from EAC.  Amy Trainer

 

In the settlement agreement, the farm will be allowed to continue harvesting oysters until the end of the year.  The National Park Service wants the oyster farm’s operations ended, and so the Park Service will be taking responsibility for removing all of the oyster-farming equipment and structures remaining in Drakes Estero.  The Park Service has also pledged to provide relocation assistance to the company’s workers.  The settlement agreement has been submitted to the federal district court for its formal approval.

“We’d like to thank our many friends and supporters, starting with Senator Dianne Feinstein and Marin County Supervisor Steve Kinsey.  We are especially grateful for our employees, many of whom we hope will keep working with us as we move forward,” the Lunnys said.

 

A day in court: personal reflections and DBOC legal proceedings

By Marc Matheson
On Tuesday, September 9, I attended my first court hearing on the Drakes Bay Oyster Company issue. What follows is a hybrid essay of fact and personal perspective.
I have, until recently avoided the conflict of this ongoing community conversation. My concern, rather, has been the effect that the often times bitter and angry debate has had on our neighborhood and our friendships. This article provides both a first-hand report from this week’s ruling as well as my subjective opinion.
It was an interesting excursion into downtown Oakland on a busy weekday. I passed through the security checkpoint of the Federal Building, named for former African American mayor Ronald Dellums.
Upstairs, outside Courtroom 1, gathered several dozen Anglo men in suits, many of them lawyers; a handful of ladies, many also in suits and among them several women of color; a few familiar faces from Point Reyes National Seashore, in civilian clothes; and a passel of sundry West Mariners, whose faces I know and whose hands I shook in greeting regardless of their affiliation on this debate.
Yvonne Gonzalez-Rogers, the judge of the United States District Court for the Northern District of California who ruled on Tuesday and had ruled on this case in early 2013, was born Maria Yvonne Gonzalez in 1965 in Houston, Texas. She was appointed to her current post by President Obama, and had earlier been a judge of Alameda County Superior Court, appointed by Governor Schwarzenegger.
She is the first Latina to serve on that court.
The case before Her Honor was a request for a preliminary injunction filed by a group of businesses, individuals and advocates to set aside the Interior Department’s decision to let the special use permit expire on its own terms for the Drakes Bay Oyster Company that operated in Drakes Estero wilderness.
The suit had been filed in mid-July by Tomales Bay Oyster Company; Saltwater Oyster Depot, in Inverness; Osteria Stellina and Café Reyes, in Point Reyes Station; Hayes Street Grill in San Francisco; the Alliance for Local Sustainable Agriculture; and individuals Margaret Grade, Loretta Murphy, Jeffrey Creque and Patricia Unterman.
Judge Gonzalez-Rogers began the hearing with some clear and unambiguous language: “What you are asking is extraordinary and rarely given. I am concerned, as this looks like a repeat of the February 2013 case over which I presided and which ultimately proceeded to the U.S. Supreme Court.”
(For anyone unaware of this ongoing fight, Drakes Bay Oyster Company had sued the Interior Department in December 2012, after former Interior Secretary Ken Salazar decided to let the 40-year lease expire on its own terms. The effect has been that the temporary emergency injunction put in place by the 9th Circuit in February 2013 was lifted and the Department of the Interior set in motion a timeline for the company to remove its oyster operation from Drakes Estero).
On June 30th of this year, the U.S. Supreme Court denied the petition for review filed by the Drakes Bay Oyster Company, affirming the 9th Circuit Court of Appeal’s denial of the Company’s preliminary injunction lawsuit.)
“All of these issues were vetted years ago,” Judge Gonzalez-Rogers continued. Your lawsuit, “strains credulity. There is no indication that it has any reality. I have wondered whether Rule 11 sanctions aren’t appropriate given the complete lack of merit of your claims,” said the judge.
(Rule 11 of the Federal Rules of Civil Procedure, which govern civil lawsuits in United States federal court provides for fines or punishment against attorneys and clients who file lawsuits based on frivolous arguments and that lack of factual investigation.)
For those legal beagles who relish precise language, Judge Gonzalez-Rogers unpacked her decision by emphasizing that a preliminary injunction is an “extraordinary” remedy, repeating that word several times, and which could only be granted if the plaintiffs satisfied each and every one of four required tests:  (1) that they had a strong likelihood of prevailing on the merits of their claims (i.e., that they could convince the court that federal government had violated some law); (2) that they would suffer “irreparable harm” if the injunction were not granted; (3) that balancing the harms to plaintiffs from denying an injunction against the harms to the National Park Service’s interests of granting the injunction favored granting the injunction; and (4) that an injunction would be in the public interest.
On the issue of whether the plaintiffs had standing to bring claims seeking relief for DBOC, which was not a participant in July’s lawsuit, Her Honor invited attorney Stuart Gross to explain why they had standing…but she frequently interrupted him, saying that he was wrong, he wasn’t convincing her, and so forth.  He made arguments about the Coastal Zone Management Act and then the National Aquaculture Act, but no headway with the judge.
Judge Gonzalez-Rogers made clear that in denying the motion for an injunction, she found that the plaintiffs had not met a single one of the four tests for an injunction, noting with regard to the balance of harms and the public interest that she’d already ruled on those in denying DBOC the injunction it sought in early 2013.
“Your proposition is nonsensical. It makes no sense. A permit has lapsed. It has lapsed. The only relief is to issue a permit,” the judge said.
“Your motion is denied. Not only do I have doubts about the sustainability of this cause of action, but the law is clear that a reduction in the supply of a product can’t constitute irreparable harm because a monetary remedy is possible; as this court has indicated in other rulings, there is no fundamental difference here with the issues raised [in February 2013;] this motion is incredibly untimely. It is not as if parties who brought this action didn’t know it was happening; these issues have been debated in public and in the courts for years. I don’t know if you’re corresponding with Drakes Bay Oyster Co. or what is your strategy for bringing this kind of action so late in game, and I understand your claim that it only became an issue after the Supreme Court ruled, but I find that to be unpersuasive. The motion for a preliminary injunction is denied.”
The judge then said that she assumed the federal government would be bringing a motion to dismiss (i.e., to toss the case out for failure to state any viable legal claims and because the plaintiffs lacked standing to bring these claims).  The government attorney replied that that was their intention.
Two amicus “friend of the court” briefs were filed in this case, but the court accepted only one; the other was rejected by the court. The amicus brief submitted by the Environmental Action Committee of West Marin and other environmental organizations was filed by attorneys at Earth Justice and was accepted by the court. The brief argued that the “Plaintiffs now, at the eleventh hour, rehash the same arguments this Court and the Ninth Circuit found unavailing in Drakes Bay, while utterly ignoring the environmental harms that are resulting from continued operation of the oyster farm and the public interests in favor of securing wilderness protection for Drakes Estero. Further, the speculative economic harms they assert are not harms cognizable for the purposes of granting an injunction.”
EAC’s amicus brief included two new court declarations explaining the harm to Drakes Estero from continued operations as evidenced by the underwater video footage taken by Richard James (available online at the You Tube channel, Coastodian.)
The amicus brief filed by Judy Teichman on behalf of Phyllis Faber, Robin Carpenter, Laura Watt and others was rejected by the court and not considered credible. The attorneys for the federal government opposed the amicus brief because it made “the same arguments as Plaintiffs and used similar authorities to support their identical interests,” did not “provide unique information or perspective to the Court,” and because the amicus applicants [Faber, Carpenter] “are “friends of the plaintiffs” and not “friends of the court,”” resulting in “a highly partisan attempt to influence the Court to find in favor or Plaintiffs by repeating the same arguments advanced in Plaintiffs’ motion for preliminary injunction.”
The judge apparently agreed with the federal attorneys reasoning since she rejected the Teichman brief.
And here’s where my personal perspective and concern for community goodwill come in. While nothing in this long legal battle and community controversy might have been predicted, one hopes that this latest chapter will close the book, finally, on the divisiveness and heated, personal acrimony that has strained West Marin residents – and others – and poisoned the common well of amity and collegiality.
The special permit issued to Drakes Bay Oyster Co. to operate within Point Reyes National Seashore expired almost two years ago. The federal court and Supreme Court have upheld that expiration. It’s truly time to let go of this fight, heal the community wounds, and heal our marine wilderness at Drakes Estero.

 

Drake’s Bay Oyster Farm gets another extension

IMG_5437From the Press Democrat and confirmed today, Sunday, by Loretta Murphy, manager of DBOF.

Allies of Drakes Bay Oyster Co. announced Friday they had secured an agreement with the National Park Service to give the embattled Marin County oyster farm 30 days’ notice before ordering it to shut down operations in the Point Reyes National Seashore.

The agreement “ensures the status quo,” enabling oysterman Kevin Lunny’s company to continue harvesting oysters until a competitor, Tomales Bay Oyster Co., can get its case before a federal judge, possibly in September, said Stuart Gross, a San Francisco attorney representing Tomales Bay.

Gross said he had reached the agreement with the park service and it did not need a judge’s approval. A proposed schedule for future hearing dates requires that action, however.

Photo of Ginny Cummings, sister of Kevin Lunny, Sunday July 27. Plenty of oysters available, go and enjoy.

Emergency suit filed to stop closure of Drakes Bay Oyster Company

BUSINESSES THREATENED BY CLOSURE OF DRAKES BAY OYSTER COMPANY FILE EMERGENCY SUIT TO
STOP ITS CLOSURE ON JULY 31

SAN FRANCISCO, July 18, 2014 – Late last night, West Marin businesses and others that directly depend on the continued operation of the Drakes Bay Oyster Company filed an emergency action to stop its closure by the federal government on July 31st .

The Tomales Bay Oyster Company, a plaintiff in the case, stated in papers filed in support for a Motion for a Temporary Restraining Order and Preliminary Injunction that the company stands to lose between $250-$400 thousand a year if the Drakes Bay Oyster Company is shut down.

Charles “Tod” Friend, owner of the Tomales Bay Oyster Company, stated, “I’ve been involved in the West Marin oyster farming for thirty-five years. This is a close-knit community. We depend on each other. If they close down Drakes Bay, it is not only the Lunnys and all of their hard-working employees who will suffer.” Mr. Friend explained that Tomales Bay Oyster Company grows oysters itself, but depends on Drakes Bay Oyster Company when customer demand at their retail operations on shores of Tomales Bay outstrips what they can grow.

These sentiments were echoed by longtime West Marin resident and manager at Drakes Bay Oyster Company, Loretta Murphy, also a plaintiff. “Drakes Bay Oyster Company and the oyster farm workers are an integral part of the community fabric. If the oyster farm is forced to close and the oyster workers lose their housing and move to other areas it will be a large negative impact on the local school, the local church, and countless businesses, shops and restaurants. The loss of these jobs will mean upheaval for over 40 family members and there will be much collateral damage from such a large change in such a small town.”

The list of restaurants joining Tomales Bay Oyster Company and Loretta Murphy as plaintiffs read like a who’s who of the West Marin farm-to-table culinary scene, including Margaret Grade of Sir and Star, Osteria Stellina, Saltwater Oyster Depot, and Café Reyes.

Luc Chamberland, owner of the Saltwater Oyster Depot in Inverness, emphasized the importance of Drakes Bay oysters in the ability of his restaurant and others to deliver what their clientele has come to expect. “I and the other West Marin restaurateurs have built our reputations on providing an exceedingly fresh farm-to-table experience in a location that is remarkably close to one of the most urbanized places in the country. Closing Drakes Bay Oyster Company threatens our ability to do that.”

Stuart G. Gross of Gross Law, lead attorney for the plaintiffs. explained that the suit is fundamentally about ensuring that government agencies follow the law. “The Secretary of the Interior explicitly declared himself exempt from all legal requirements in deciding whether to close Drakes Bay Oyster Company. This was wrong. There are laws that he was required to follow, and he didn’t. This suit seeks to compel his compliance.”

Drakes Bay Oyster Company provides between one third and half of all oysters grown in California and as much as 70% of the oysters grown in Marin County. The nearest other growers to the San Francisco Bay area are hundreds of miles away. The suit alleges that the Department of the Interior and the National Park Service ignored their responsibilities under the National Aquaculture Act and the Coastal Management Act and disregarded the public trust rights of the people of California and California’s enforceable policies against conversion of coastal areas from agricultural use.

Also joining as plaintiffs are Alliance for Local Sustainable Agriculture (ALSA), Dr. Jeffrey Creque, founding member of ALSA, the Hayes Street Grill, and its co-owner and local food advocate, Patricia Unterman. Also named as a defendant is an office of NOAA.

With Stuart G. Gross of Gross Law, also representing plaintiffs are former U.S. Congressman Paul “Pete” McCloskey of Cotchett, Pitre, & McCarthy, LLP and former California state assemblyman Bill Bagley of Nossaman, LLP.

Gross Law is located at Pier 9 on The Embarcadero in San Francisco, California. Gross Law represents clients in natural resource, environmental, commercial, and business practices litigation throughout the United States.

The lawsuit is titled, Tomales Bay Oyster Company, et al. v. U.S. Dep’t of the Interior, et al., No. 14-3246, and was filed in the District Court of the Northern District of California.

Letter from the Lunny Family

Our family almost didn’t buy the oyster farm. Like all the ranches on Point Reyes, the farm can’t succeed without the seashore’s support, so we called then-Superintendent Don Neubacher before buying it to ask him what he thought. He said it would be a “bad idea” to buy the farm. The problem wasn’t that Drakes Estero was a “potential wilderness” area; wilderness status, he had told Charlie Johnson’s lawyer, was “more symbolic than anything else.” The problem was that the farm was falling apart, and the National Park Service wouldn’t support an operation that was in shambles. After the call, we agreed to walk away.

But Don called us back the next day. “I’d feel like I’d died and gone to heaven if you bought the oyster farm,” he said. He understood that our family had a great relationship with the park, that we were good stewards of our ranch and that we would take care of Drakes Estero. The park service had long supported the continuation of agriculture in the seashore, and had routinely renewed ranchers’ leases. We thought that if we fixed up the farm, as Don wanted, that the park would renew that lease, too—and that an important part of the agricultural fabric of our community would be saved.

After the call, our family decided to go ahead with the purchase. We took over operations on January 1, 2005, and quickly invested close to a million dollars in borrowed money for cleanup and upgrades. We truly believed the park would be relieved.

Instead, things went downhill. A few months later, the park sent us a letter from their lawyers concluding that the wilderness laws prohibited the renewal of the lease. (The people who drafted the legislation, like Congressman John Burton and the Environmental Action Committee’s founder, Jerry Friedman, thought Congress always intended the farm to stay.) We quickly became the target of an ugly attempt by the park to paint our family as “environmental felons.” (In fact, the environment in Drakes Estero is thriving.) Then-Secretary Ken Salazar, in denying our renewal, relied on much of the same wrong reasons.

If the park service can rewrite history and make false accusations of environmental harm against our family and the oyster farm, it can do it to any of the ranching families. So we sued. The federal district court and two judges on the Ninth Circuit held that the courts don’t have jurisdiction over our main claims. The only judge to review our claims on the merits—Judge Paul Watford—agreed with us that the decision was an abuse of discretion.

Now that the U.S. Supreme Court has declined to review our case, we are out of legal options to keep the farm open while we continue litigation. The oyster shack and cannery will close at the end of this month. We look forward to seeing and greeting our cherished friends and supporters in the coming days.

The park’s decision to close us down will hurt our employees. Many of them have grown up and put their children through school here, and have specialized skills that will be tough to put to use elsewhere in West Marin. We are grateful that California Rural Legal Assistance and Marin Legal Aid will be meeting with our employees and their families to try to find ways to help.

The decision will also hurt our community. The park service says it supports the ranchers and that the oyster farm issue is unrelated. We’re skeptical. If the park truly supports agriculture in West Marin, it would have honored Congress’s intent and renewed our farm’s permit. It would not have put a bull’s eye on the ranchers’ backs by identifying them in the farm’s recent environmental impact statement as the primary source of nonpoint-source pollution in an oyster-free Drakes Estero. It would be removing elk from the pastoral zone and issuing long-term leases today. And it would be thinking creatively about reusing the oyster shack as a place to sell the ranchers’ wares, rather than gearing up to send in the bulldozers. The park’s actions, and inactions, speak louder than words.

Our family will get through this. And there’s still a chance for us to get a new permit, either through the courts or Congress. (Though we don’t think civil disobedience is a good idea here, those of you still looking for ways to help should speak your mind to park officials and elected representatives.)

We owe so many people our deep and abiding gratitude; to name them all would overflow the pages of this newspaper. Thank you Senator Feinstein and Supervisor Kinsey, who have each proven willing to fight for their constituents and for sustainable agriculture in West Marin. Thank you Corey Goodman, who spent thousands of hours debunking the false claims of environmental harm and standing up for scientific integrity in government. Thank you Phyllis Faber, the Alliance for Local Sustainable Agriculture, Laura Watt, Jeff Creque, Dave Weiman, Sarah Rolph, Barbara Garfien, Judy Teichman, Bill Bagley, Michael Greenberg and Donna Yamagata, Jane Gyorgy and our lawyers. Thanks to the Light and the Citizen, which have covered this issue courageously over the years. And thanks to the countless volunteers who contributed their time and talent to make those wonderful “Save Our Drakes Bay Oyster Farm” signs, which we hope will stay up as a reminder that 85 percent of this community has supported us in this fight. Keep on shucking and believing.

Kevin & Nancy Lunny on behalf of the entire Lunny Family

 

 

Considering the complete history:the wilderness act

 

There is a long history of disagreement over the meaning of wilderness; this is not a unique circumstance to the Drakes Estero conundrum.  So to suggest that the meaning and intent of wilderness is clear and unambiguous here, regardless of which “side” one is on, can only result from a selective (or cherry-picking) view of the history.  I first got involved with this debate, back in 2007, because it seemed that the pro-wilderness side was doing just that: looking at a few sentences in isolation without considering the broader record.  It is that cherry-picking tendency that sharing of my research here is intended to address.

 

Carolyn Longstreth pointed out last week that the 1964 Wilderness Act prohibits commercial enterprises within wilderness areas—but Drakes Estero isn’t wilderness, it’s potential wilderness, with the oyster farm expressly allowed to remain as a non-conforming use.  No one has proposed removing the “potential” status, so, like the High Sierra Camps located within potential wilderness areas of Yosemite National Park, there is no current conflict between the structures, or the use, and the designation.

 

It is bit ironic that Longstreth quoted the then-NPS Director from his 1976 testimony about temporary uses in wilderness, because that testimony was given to argue against designating Drakes Estero as potential wilderness.  Given that the oyster farm had already been a fixture of the Estero for more than 50 years at that point, it was impossible to see it as “temporary,” and that was part of the NPS’s reasoning for why that area shouldn’t be included in any designation at all.  It does not follow that, because Congress ignored the NPS’s argument and went ahead with the potential wilderness designation anyway, that somehow requires the oyster farm to “become temporary.” (And there’s really no way of conceiving of a now 80-year use as temporary!)

 

Longstreth also quotes from House Report 94-1680 (which was actually written before passage of the bill, not after as she states), which included a single sentence that refers to the “efforts to steadily continue to remove all obstacles” to eventual wilderness conversion. In contrast, there are numerous sentences and statements elsewhere in the legislative record, as I discussed in my last guest column, clearly stating an intention to allow the oyster farm to remain—and there is absolutely no reference, anywhere, to allowing it to remain only until the reservation of use (RUO) expires.  To suggest that it is “plain” that everyone meant “only until the RUO expires” is to put words in their mouths—and three of the legislators in question have recently assured the Interior Secretary that no such intention existed.  How can Congress, written generically, have that intention if the sponsoring Congressional representatives did not?

 

And there is no requirement to convert potential wilderness to “full” with any particular speed.  Even taking that single sentence literally, it still says nothing about the pace of removal, other than to say “steadily.”  Considering that the following sentence in the same document directs the Park Service to remove the utility lines in the Muddy Hollow corridor “as promptly as possible,” it becomes clear that these are relative terms; it took the NPS 23 years, from 1976 to 1999, to accomplish that first assigned task.  To remain on a steady pace, literally, the NPS has at least until 2022 to make the next change—and probably longer, since 23 years was “as promptly as possible.” And as the State of California still retains reserved rights in the Estero, confirmed by a letter from the Department of Fish and Game this past week, the oyster farm is not the only remaining obstacle to full wilderness designation.

 

It is important to remember that the 1976 wilderness bill was the first Congressional use of the potential wilderness designation, so to suggest that it had an unambiguous meaning at the time is reading today’s values into the record.  A second legislative report that accompanied the bill, this one from the Senate, made clear that many legislators were in fact uncomfortable with the designation: “The [Senate] Committee’s retention of the potential wilderness provisions contained in the House passed measure should not be construed to be an advocacy of this classification by the Committee. Although the Committee understands the Department’s rationale for this legislative classification, the Committee reserves the right to question this procedure at future wilderness hearings.”

 

Similarly, there is no clear consistent policy within the NPS today on conversion of potential wilderness to “full”; for example, the 1980 Yosemite General Management Plan stated, “The Ostrander ski hut and the High Sierra camps will be reclassified as potential additions to wilderness. They will continue to be available for public use.” Just five years ago, an NPS official testified before Congress that Southern California Edison could continue its use of a check dam for hydroelectric power within proposed potential wilderness in Sequoia-Kings Canyon “as long as it wants,” stating nothing about its steady or eventual removal on any time frame.

 

Reading through the 1976 wilderness hearings, it appears that the primary intention of insisting on potential wilderness status was to keep motorized off-road vehicles or jet skis out of the Estero. The Sierra Club’s representative testified, “The possibility of jeeps and motorcycles having access to the Estero shore and adjoining area is a frightening one.” Similarly, a letter from the Marin Conservation League specified, “MCL strongly urges inclusion in Wilderness of the quarter-mile strip of tidelands and Drake’s Estero. The fragile and important estero must have protection from recreational motor boats. The beaches must be protected from off-shore vehicles. We recommend controlled burns in the Bishop pines forest and Douglas fir forest and we do not object to the non-conforming use of the Johnson Oyster Co. operation in Drake’s Estero.”

 

Furthermore, if one is to take the language from the 1964 Wilderness Act literally regarding no commercial enterprises being allowed to enter or use wilderness, then all commercial pack trips, kayak guides, or photography workshops should be banned as well—these are all instances of one party commercially profiting from a use of wilderness.  In addition, the cameras themselves should be left at the wilderness boundary, as the law bars any mechanical uses in wilderness; this is why mountain bikes are not allowed.  One could argue that hiking, sight-seeing, and photography are passive rather than direct uses of the resource, but the wilderness law does not make this distinction; and, what could be more direct a use than walking through a wilderness area and setting up camp for the night?  As a society we tend to exempt recreational or tourist uses of places from the meaning of “use,” but they are uses, and are not free of impact; the Wilderness Act states that the “imprint of man’s work should be substantially unnoticeable,” yet trails are constructed and maintained by people for their own use, and are clearly noticeable across an open landscape.

 

We will not solve the great debates over wilderness here at Point Reyes—and the decision about continuing the oyster farm does not represent a crucial precedent in the management of wilderness.  While my book manuscript is not yet complete, I’m happy to share my research with whoever would like to examine the historic record more closely for themselves, so that they can reach their own conclusions about what it means. But we cannot take individual sentences or words from that record, and take them literally, without considering the entire historic record.

Published October 2012

Dr. Laura A. Watt is an Associate Professor of Environmental Studies and Planning at Sonoma State University, and is currently completing a book project on the history of management at PRNS.