National Park Service Enjoined By Court From Forcing Oyster Farm Out Of Point Reyes National Seashore

An oyster company's legal battle to continue operations in Drakes Estero in Point Reyes National Seashore will continue into the spring following an appellate court's ruling. NPS photo of Drakes Estero.

The 9th U.S. Circuit Court of Appeals has blocked the National Park Service from forcing an oyster farm out of Point Reyes National Seashore and scheduled a hearing on the dispute for May.

In a terse order filed Monday, the appellate court granted the request for an emergency injunction from the Drakes Bay Oyster Co., whose lease to operate in the national seashore's waters expired in November. The appellate court was asked to consider the motion after a lower court denied the same request.

"Appellants’ emergency motion for an injunction pending appeal is granted, because there are serious legal questions and the balance of hardships tips sharply in appellants’ favor," the order read.

On February 4, a U.S. District Court judge declined to issue a temporary restraining order that would have allowed the oyster farm to continue operations in Drakes Estero while its owner, Kevin Lunny, pursued a lawsuit against the federal government.

In seeking the TRO, the company's lawyers argued that Interior Secretary Ken Salazar broke the Administrative Procedures Act and violated the National Environmental Policy Act when he decided last November not to extend the lease for 10 years. In denying the lease extension, the Interior secretary cited the value of wilderness and congressional intent. On the very next day, Park Service Director Jon Jarvis declared the estero part of the Philip Burton Wilderness at the Seashore, effective December 4.

In her ruling, Judge Yvonne Gonzalez Rogers held that she had no jurisdiction to rule on whether the Interior secretary broke the APA, and even if she did, Mr. Lunny did not prove that Secretary Salazar acted arbitrary or capricious, or abused his discretion, in his decision.

Drakes Bay Oyster Co. also is facing a cease-and-desist order handed it by the California Coastal Commission last month. That order cited unpermitted operations in the seashore's waters by the oyster company, land alterations, debris from the farming operations, violations of previous cease-and-desist orders, and company boats operating in waters that were supposed to be closed to traffic due to harbor seal pupping.

Comments

I don't think the Second and Fourth Amendments are "under attack," Mike. In any case, I second you final paragraph.


Reminds me of your reading of the Second Amendment in other threads--the commas you skip over and your rearranging of its clauses.


Did not "skip" or rearrange anything. The words "the right of the people to keep and bear Arms, shall not be infringed" aren't contigent on your interpretation of "militia". In fact they aren't contingent on anything.

"the right of the people to keep and bear arms" is clearly not the subject of "shall not be infringed." Unless you skip over the comma.

But I think we're confirming Mike's sense that we're moving off topic.


"the right of the people to keep and bear arms" is clearly not the subject of "shall not be infringed."


What????? Then what is the subject? of "shall not be infringed"?

Oh, and by the way, the text ratified by the states and authenticated by TJ as Secretary of State, has no comma.

Finally, tell us what enumerated power in the Constitution gives the fed government the right to regulate arms in the first place irrespective of the Second amendment?

And yes, I know it is off topic, (and I apologize Kurt) but you brought it up and I can't let it go unchallenged.

We are moving off topic in a way but the underlying tones presented through this thread have everything to do with the Drakes Bay Oyster Issue and many others, I believe.

Been a good topic and I appreciate this forum and the posters. Don't believe the topic has ended.

Heading to the Backcountry now. Have a good day everyone:).

So let's get back on topic and stay away from discussing the 2nd or 4th amendments. They're not in play here.

With that said, when is a contract a contract, and when is it not?

To those who believe the NPS/DOI should reverse course and extend the oyster company's lease, what would you say if this involved private land that you owned, and which in good faith you had signed a contract with your lessee giving them X number of years to operate on your land, but after that, they had to move. But instead of your lessee honoring the terms that they agreed to, they went to court to fight the terms of the contract.

Or, if you were a businessman, would you purchase a company knowing that in seven years the lease to the land necessary for your operation to continue was going to expire? And even if there was an extremely remote possibility to renew that lease, would you invest in that remote possibility?

Speaking of backcountry. Am starting to investigate a backcountry trip in Dinosauer National Park. Would like to hike and camp with primay focus on fishing. Looks like most the river access camping is reserved for float trips. Not much info on the NPS site. Anyone familiar with this area that could provide tips.


What????? Then what is the subject? of "shall not be infringed"?


"A well regulated Militia." "The right of the people to keep and bear arms" is an appositonal phrase. This is pretty basic, middle school grammar, ec.

But let's get back on topic.

Kurt, I understand your "contract" point. And generally, landlords have the right not to renew. Whether that was the right thing to do in this case is the primary disagreement as opposed to whether the government has the authority. As to suing, certainly not my preferred recourse. On the other hand, the government has established its own set rules for considering whether to lease. As I understand it, the suit is based on the claim the government didn't follow the rules. I don't know the answer to that question. I do know the government could have renewed the lease, kept a historic operation in place, kept people employed and avoided this whole controversy without detrimental effect to the area.

Before I go (you dragged me back, Kurt:), The contract back in the 70's (we are all part owners of Point Reyes) from what I've gathered did not include the verbage that Drakes will vacate. The culture, particularly the ultra environmentalists (I hate the way the term has been hijacked) have moved the goal posts to exclude ventures other than their own. In this case raising oysters for a grateful community. Hollistically raising them for the benefit of the environment raises questions as to their (the anti-Drakes Bay Oyster Co. folks) true motivations. Lets look at that aspect.We are all owners of Point Reyes NRA so the analogy to private property rights seems flawed to me.

ec -- in most places in Dinosaur, access to the river by anything other than some kind of floating device is going to be very difficult. But I think (although am not certain) that a limited number of non-commercial permits are available. So if you have a kayak or your own raft . . . . .

It also appears that at least along the Yampa, there are a number of large inholdings lining the river that may also limit access.

Check with the park and see if I'm correct.

The contract in the '70s put a 40-year length on the lease, and contained a "may renew" option. But the Congress through the Point Reyes National Seashore Wilderness Act also directed the Park Service to phase out non-conforming uses in the estero.

Lee & EC: Canoe/kayak access via the Yampa is best after July 1, I believe, when the river flows ebb and the rapids aren't as nasty. However, I understand the bugs become nastier after July 1;-) That said, perhaps the easiest access for fishing would be to go to the Jones Hole Fish Hatchery and hike down to the river from there. There are a number of campsites right along the Yampa at that point.

Thanks Lee and Kurt.

BTW Kurt, have you thought about sponsoring a park Q&A section on this blog where people could ask questions like mine and get answers?

Yep, it's on the drawing board. Tried it once years ago and was inundated by spam. Believe we've found a way around that; now it's just a matter of manpower and affording it;-)

That would be a great idea. I had a question about SEKI the other day and couldn't quite find the right place for it.

Regarding the contract Kurt... i sure don't know the answer. The NPS may very well be entirely within the rights of the contract. I think the question is a little larger than just the contract. If this were a private transaction, I think the answer might be different than acquisition of private property or a private lease for public purposes.

While I don't know the percentage of the property impacted by the oyster farm, the farm provides jobs and quality oysters, a rare product. I don't see that the benefits from removal outweigh those considerations.

While wilderness is important to many does it have to be here? Can't the wilderness accomodate the use ala Frank Church or Grand Teton? What does the public (the ones paying for all this) lose if the farm is continued within the park or wilderness?

Congress can do whatever it likes here. I'd like to see legislation introduced and passed that would permit the farm to exist within to the park.

Interestingly enough, I listened to an interview of Kevin Lunny today on KGO. Besides sounding like a normal human being, he also debunked the claims seen here. Apparently, when he bought the business, the understanding was that the lease was renewable. During the first couple years, he cleaned up some of the issues he inherited from the prior owner, and then the NPS started talking about not renewing the lease.

It'd be nice to see the NPT reach out to the DBOC and get a different point of view for readers to ponder. That'd be interesting.

The bottom line of all this is that it reinforced my belief that the wildernuts are just another bunch of fanatics.

Chiming in here briefly. I apologize that I haven't been following the latest twists and turns in this ongoing saga.

I think the farm will lose in the 9th Circuit Court of Appeals (the appellate court considering the case). The interior secretary would seem to have the law on his side. However, maybe the new interior secretary (Sally Jewell) will undo the decision before the farm closes.

Is it true that if the farm closes tons of oysters will simply be discarded? If so, there should be a protest in which hungry people demand to eat the oysters. Maybe soup kitchens in S.F. should stage a protest saying send them to us. There are plenty of hungry people in California. Our state now has one of the nation's highest poverty rates, I've read recently.

Kurt Repanshek:
With that said, when is a contract a contract, and when is it not?

To those who believe the NPS/DOI should reverse course and extend the oyster company's lease, what would you say if this involved private land that you owned, and which in good faith you had signed a contract with your lessee giving them X number of years to operate on your land, but after that, they had to move. But instead of your lessee honoring the terms that they agreed to, they went to court to fight the terms of the contract.

I've noted residential rental agreements in the cities of Berkeley or San Francisco. The rent control ordinances in those cities make it near impossible for a landlord to end a rental agreement unless there is "just cause" such as missing a rent payment.

However, this is the federal government we're taking about and not a private landlord. Federal leases with the BLM and Forest Service end up in court all the time. There are leases (40 years terms I believe) for vacation homes on Forest Service land. If the Forest Service were to deny a lease and order a vacation home owner to vacate and demolish a house, I'm almost sure the owner is going to sue the feds.

In addition to that, the State of California (through the California Fish and Game Commission) still asserts that it is the landlord for the water bottom allocations. The text of the reservation of use recognizes the authority of California to issue the water bottom leases. Yet NPS and Interior have issued orders evicting the oyster farm from the waters.

Zeb, re your "echo chamber" comment (thanks for editing it out). And here I thought you were a long-time regular reader of the Traveler.

Almost two years ago I interviewed Mr. Lunny for his side of the story:

http://www.nationalparkstraveler.com/2011/10/debate-over-oyster-farming-point-reyes-national-seashore-offers-differing-perspectives8858

I also interviewed one of the original sponsors of the Point Reyes Wilderness Act (who contacted me after the story to say what a great job I had done with it):

http://www.nationalparkstraveler.com/2011/09/politicians-past-and-present-want-interior-secretary-permit-oyster-farm-point-reyes-national-seashor8758

There also was a story about the bad NPS science:

http://www.nationalparkstraveler.com/2009/05/national-research-council-blasts-park-service-report-oyster-farming-point-reyes-national-sea

A story about the need for more science:

http://www.nationalparkstraveler.com/2011/11/new-study-says-more-studies-are-needed-determine-impact-drakes-bay-oyster-co-point-reyes-national-se9076

Another story about a panel questioning the NPS science (a story that brought complaints from the NPCA to me):

http://www.nationalparkstraveler.com/2012/09/independent-panel-raises-questions-over-national-park-service-science-concerning-oyster-farm10491

A story about Congress having little faith in the NPS science:

http://www.nationalparkstraveler.com/2011/12/congress-wants-national-academy-sciences-review-oyster-farm-studies-point-reyes-national-seashore9218

A story about Sen. Feinstein accusing the NPS of falsifying the science to get a desired conclusion:

http://www.nationalparkstraveler.com/2012/03/point-reyes-national-seashore-staff-accused-more-wrongdoing-measuring-impacts-oyster-farm9691

And yes, there also have been stories about the California Coastal Commission's complaints about how the Drakes Bay Oyster Co. is operating.

Seems to me that NPS leadership knew full well that it might be on shaky ground politically if it arbitrarily decided to not renew the lease based soley on the wilderness issue so it made the decision to fully embrace NPS policy of using science to guide management in parks. Unfortunately that decsion was based on an assumption that clear resource impacts were actually occurring. Unfortunately, those clear resource impacts turned out to be not so clear. And when the science didn't clearly point to the predetermined outcome, the warm and fuzzy policy about letting science guide management in the NPS went right out the window. Whether the NPS can put the genie back in the bottle now and return to making its management decision outside the data already collected (presented and analyzed in the draft EIS) is what the ninth circuit will be deciding, and the preliminary ruling for the injunction doesn't look good. I contend that if the NPS is forced in court to defend its use of science (and ethics) in this matter it will lose and the NPS and DOI science programs will suffer greatly. (Try and argue for reversing the sequester cuts with that millstone around your neck.) The best that could happen at this stage is that Sally Jewell work out a settlement whereby the oyster farm stays as a nonconforming use in the marine wilderness.

Of course, it might be a while before Ms. Jewell is confirmed as the Secretary of Interor if Senator Murkowski follows through on her threat to put a "hold" on her nomination due to some unresolved dispute in Alaska.

Rick

Kurt, I missed that Lunny interview. I'll have to go back. I was still riled up by that interview last night.

slc72:
The best that could happen at this stage is that Sally Jewell work out a settlement whereby the oyster farm stays as a nonconforming use in the marine wilderness.
As it stands, the oyster farm still exists, and I think under the law Drakes Estero is technically still potential wilderness. I know that they've had the memo issued (and published in the Federal Register) that "nonconforming uses" have ceased, but that's obviously not true. I recently saw DBOC products at my local market, so they're obviously still there and continuing the use with the court challenge holding up any actual conversion to full wilderness.

In addition to that, the overlapping jurisdictions are especially interesting. I haven't heard of California Dept of Fish and Game starting any action, but they have asserted that they have the authority to issue the water bottom leases until such time as they decide to end the leases. I know DBOC is in a precarious position, but as long as California contends that they still have that authority, the oyster farm has some hope. And the issues with the California Coastal Commission are odd, since their cease and desist order to DBOC seemed to claim authority over the oyster farm operations that were the authority of CDFG and the California Fish and Game Commission. DBOC's attorney attended the meeting and posed a comment in their public forum since it was too late to add it as an agenda item. He protested the California Coastal Commissions "incursion" into the Fish and Game Commission's authority over issues of the oyster farm. This is from the last commission meeting in February:

http://www.fgc.ca.gov/meetings/2013/020613summary.pdf

MOVED BY M. SUTTON, SECONDED BY R. ROGERS, THAT
THE FISH AND GAME COMMISSION HEREBY RECOGNIZES THE PUBLIC
COMMENTS AND RECOMMENDATIONS AND DIRECTS STAFF TO DRAFT AND
SEND A LETTER TO THE CALIFORNIA COASTAL COMMISION REGARDING
JURISDICTION ISSUES OVER THE DRAKES BAY OYSTER COMPANY’S
ORDER AND TO REPORT BACK ON THE COMMISSION’S AUTHORITY
REGARDING COYOTE CONTESTS AND HUNTING REGULATIONS.
AYES: J. KELLOGG, R. ROGERS, M. SUTTON.
ABSENT: J. BAYLIS.
MOTION PASSED.

I've contended for a while that NPS has allowed for nonconforming uses in potential wilderness at the discretion of management - namely the High Sierra Camps in Yosemite and Bearpaw HSC in Sequoia. Perhaps those uses fall more in line with what NPS imagines from land that they manage