Marin Voice: Oysters and wilderness can co-exist

Is there a compromise, an equitable solution to the oyster war? Linford (below) argues for this in this week's Marin Independent Journal. The National Park Service, the Marine Mammal Center, the EAC, and others have steadfastly refused to meet with the Lunnys to talk about the logical and fair solution. Kevin Lunny is often misrepresented as a millionaire businessman but he actually represents a very large family of DBOC owners. Spinners like Amy Trainer and Gordon Bennett use right-wing antics like planting false stories into the public arena early and often to frame the narrative their own way. The pair, weekend-naturalists, email-blast a continual stream of press releases regurgitating the same bad facts. Early on they tried to frame the narrative by introducing misleading sound bites and catchy one-liners - an approach which copies the Republican agenda.While most reputable reporters have double-checked the pair's bad facts, discovered the lies, the defamation, the mean-spirited attacks including disingenuous allegations of Koch-connections and gone forward to publish fair and balanced reports, the Trainnets have resorted to publishing their own 'stories' on a fringe blog site that wears out the old cliche "Main stream media is ignoring my story."

Jim Linford of Marinwood is a semi-retired appellate attorney who has filed a pro bono amicus brief in support of rehearing on behalf of an historic resource foundation:

 A basic misunderstanding of the Wilderness Act has led to misperceptions about the legal setting of the oyster farm case. The misunderstanding comes from a philosophical division between wilderness purists and wilderness pragmatists. Purists take "wilderness" to mean "pristine wildness," while pragmatists see "wilderness" as a nuanced legal framework where the pristine ideal can coexist with a wider range of use and purpose, although always shaped by overarching preservationist values.

For the purist, there can never be any commercial activity whatsoever within a wilderness area.

This is the position taken in an amicus brief recently filed by the Environmental Action Committee of West Marin and others, in opposition to the request that the Ninth Circuit rehear the oyster farm case.
However, the Wilderness Act itself falls on the pragmatic side of the divide. For example, although there is indeed a general rule against, notably, commercial activity within a designated wilderness, there are exceptions to that prohibition.
Thus, the act provides that commercial animal grazing can continue in a designated wilderness if the grazing rights existed when it became a wilderness.
The act also provides for commercial activity that serves the "public purpose" (as defined by the act) of "recreational" use. That provision was applied by the 9th U.S. Circuit Court of Appeals in a 2004 case to hold that wranglers could hire out their services providing pack-animals to carry camping supplies into the wilderness. The court's opinion was careful to assure that such exceptional commercial use would have a minimum impact on the wilderness.
In any case, this "public purpose" exception would not apply, for example, to logging, and if large corporate interests wanted to log western forests currently designated wilderness, they would need to reverse the wilderness designations. 
Read more.

National Park Service Scientists are "Advocates and Not Scientists"

Fear of facts

Opinion

by Corey Goodman

Point Reyes Light, December 5, 2013

When I was a student at Stanford, one of the things I enjoyed most was the way scientists debated facts. No claim could be made without data to back it up, and all data were subject to robust scrutiny and examined for holes and errors. That was how we were taught to seek truth. We were encouraged to ask tough questions, and were taught that science is just as much about disproving old hypotheses as deriving new ones. It was the same culture of science I taught to my students throughout my career. 

Thus it came as a shock when, nearly 40 years later, I first got involved in the oyster farm debate and discovered that none of the National Park Service scientists or their local supporters wanted to discuss the data. At Supervisor Steve Kinsey’s request, I examined that data. As I reported at the county hearing on May 8, 2007, the data did not support their accusations.

At that same hearing, Dr. Sarah Allen made her infamous 80 percent claim— that harbor seals were down 80 percent at one location due to the oyster farm. The next day I did what any scientist would do: I wrote and asked her to share the data and methods on which she had based the claim. She never replied.

By that point I had been a practicing scientist for more than 30 years and was an elected member of the National Academy of Sciences. Never in my career had I written such a request and not received an answer. As a result, I did something I had never before done: I submitted a Freedom of Information Act request. I didn’t know how to do it; my friend Mark Dowie taught me.

Then I got another surprise. Park Service Regional Director Jon Jarvis responded and refused to share the data. He even refused to reveal the location at which the 80 percent decline occurred. Later, in the summer of 2007, Senator Dianne Feinstein instructed Mr. Jarvis to give me the data. He did so, and my analysis was clear: the 80 percent decline took place in the wilderness area, far from the oyster farm. When park scientists continued to refuse to talk, I published my findings in this newspaper.

For several years afterward, park supporters publicly said I was wrong. Dr. Allen remained silent. Finally, in 2010, nearly three years after she made her claim, Dr. Allen retracted it.

Since 2007, the park and its supporters have continued to make erroneous claims of environmental harm by the oyster farm, and as each claim is debunked, they abandon it and move on to a new accusation.

At first their focus was harbor seal disturbances. Those claims were put to rest when Dr. Brent Stewart, the marine mammal expert hired by the park to analyze the hundreds of thousands of secret photographs taken of seals and oyster boats, found “no evidence of disturbance.”

One supporter, Dr. Sylvia Earle, evidently hasn’t read Dr. Stewart’s report. Earlier this year, she wrote to the federal court that “seals are being disturbed” by oyster boats. I wrote to her several times and asked to discuss the data. She never replied.

Park supporters have also focused on impacts to eelgrass, but according to the National Academy, eelgrass coverage has doubled in Drakes Estero in recent years. In the environmental impact statement, the focus was on soundscape, but that too was shown to be bogus.

Beginning in 2013, attention shifted to the colonial tunicate Didemnum vexillum, or Dvex. The first thing that should make you suspicious is that park supporters call the organism “marine vomit.” A Google Scholar search shows that serious scientists don’t use such words in their publications. A Google search shows that Amy Trainer of the Environmental Action Committee and her colleagues have used it. It also appears on a website called Street Carnage, under the headline “Marine vomit attacks British coast.” That website has a photo of Clint Eastwood with a rifle pointed at a poster of “Archie Bunker for President” on its home page.

Dvex is an invasive tunicate that colonizes bays and estuaries throughout the temperate waters of the world, from Venice Lagoon to the New Zealand coast. It was observed in Drakes Estero a decade ago, and has been found in San Francisco Bay, Half Moon Bay, Monterey Bay, Elkhorn Slough, Morro Bay, Tomales Bay, Humbolt Bay, Port San Luis and Bodega Bay.

According to the National Academy, Dvex and other “non-indigenous species” are present in Drakes Estero, their “avenue of introduction is mostly unknown” and they “appear to be much less conspicuous than in nearby San Francisco Bay.” (Dvex most likely first washed into Drakes Estero in the tides.) Thus, there is nothing surprising about Dvex in Drakes Estero, given its worldwide distribution and appearance up and down the California coast.

Dvex was also reported on eelgrass at both Martha’s Vineyard and Tomales Bay. In 2011, Dr. Ted Grosholz reported it on eelgrass in Drakes Estero.

But in 2013, as other claims of harm were disproven, park supporters sounded a note of alarm about Dvex. In January and October 2013, Jude Stalker, at the request of EAC, studied Dvex in Drakes Estero. She called it “marine vomit” in a letter to EAC, suggesting advocacy, not science. Ms. Stalker ended by writing “please do not hesitate to contact me with questions.” I did just that, contacting her four times, asking to discuss her data. She never replied.

Ms. Stalker found Dvex on some eelgrass in one arm of Drakes Estero, in essentially the same location where Dr. Grosholz found it in 2011. There is no reason to conclude that anything has changed, or that Drakes Estero is more imperiled by this tunicate than any other bay along the California coast or around the world.

Responding to these alarms, the California Coastal Commission now demands that the oyster farm douse Drakes Estero with bleach and vinegar and wrap the oyster racks with massive amounts of plastic, to try to kill the ubiquitous tunicate. Such impaired judgment is another good reason to openly discuss and debate the facts.

Seven years into this debate, the pattern is clear: I keep offering to discuss the data—a normal part of the scientific process—and people on the other side steadfastly refuse. This, to me, is evidence that they are advocates and not scientists. As the court case moves forward, expect more alarming claims. But don’t expect them to have any more merit than the many previous false, and retracted, claims. Science, after all, is about  debate and discourse, not twisting facts to fit a preconceived ideology. Scientists have three words for such behavior: fear of facts. 

Psuedo-Environmentalists Resorting to Vandalism in Point Reyes - Steal & Destroy Signs

Oyster supporters plagued by vandalism

By Christopher Peak -- Point Reyes Light

Early this month, half a dozen people stood outside a defunct factory, painting their biggest project yet: a 13-foot by 6.5-foot mural of the nowubiquitous sign supporting Drakes Bay Oyster Farm.

Sweating in the heat, the group of painters dipped their brushes in blue and white as they transformed a wall at the old Rich’s Readimix Quarry building on Point Reyes-Petaluma Road into a watery scene of gentle waves and sunshine. Drivers waved and honked their horns as they passed. The painters had no idea how the finished product was going to look, so as soon as they finished, they ran up the road to admire their accomplishment.

Last Saturday morning, the project was gone, destroyed by a vandal during the night. The wall had been splashed with gray paint, leaving only a hint of an orange sun visible. 

“A cloudy, sad day in Point Reyes,” the painters said among themselves.

Since a small grassroots group began fashioning the free signs with donated plywood, producing around 600 copies to date, their work has been defaced or stolen repeatedly. Members of the coalition have been frightened by intrusions on supporters’ property and worry the destructive tactics will only further divide the West Marin community around the Drakes Bay controversy.

Bridger Mitchell, the president of West Marin’s Environmental Action Committee, condemned the vandalism. “We don’t condone in any way that type of vandalism or malicious defacement,” e said. “I’ve checked with people at the  EAC, and we know nothing about it,” he added. 

Mr. Mitchell said the EAC offices faced similar attacks after Secretary of the Interior Ken Salazar issued his decision to close the farm: someone dumped toilet fixtures on their doorstep.

“The EAC would fully support citizens’ rights to express themselves politically. It’s evidently something that a number of people feel they want to do and that’s fine,” he said. “We don’t think it’s helpful to conduct dialogue with those instruments. It’s not a political campaign, it’s not who votes for who. The dialogue is really going on now in the United States courts.”

The loose coalition of oyster company supporters consists of roughly a dozen volunteer sign painters—some publicly identified, some anonymous—without a formal structure or hierarchy. They formed in March in response to heightened tensions and a noticeable decline in the tenor of the conversation that had devolved into name-calling and ad hominem attacks, said Robin Carpenter, one of the original members. It seemed you were either a “Koch brothers conspirator” or a “wilderness crazy,” she said.

Following the lead of chef Alice Waters and the other community organizations who submitted a “friends of the court,” or amicus curiae, brief, the signs gave people a non-combative way to communicate their support for the oyster company, Ms. Carpenter said.

“We wanted a positive statement, something happy and nonthreatening and nonjudgmental,” she said. “We didn’t want anything creepy, since we have a lot of visitors here.”

Citing poster campaigns like the feminist Guerilla Girls and roadside advertisements like Burma Shave’s 1950’s billboards as inspiration, the group made a message into artwork. The signs have been produced without any help from Drakes Bay Oyster Company, but with their blessing, members said.

Sonoma Valley resident Yannick Phillips first came up with the idea for handpainted signs and painted messages on staves from wine barrels, before Barbara Ravizza, a Stinson Beach resident, designed the current version for a larger sign that could be easily reproduced.

Supporters have gathered at open parties where the work runs like a factory line, each volunteer specializing in one aspect. Ms. Ravizza sometimes tells the painters their waves look too much like tsunamis or that the letters are too curvy, but having a unique, handmade sign is part of the appeal, Ms. Carpenter said.

Backers say the signs have had enormous success, sprouting up across Sonoma, Napa and Marin. Some have been seen as far north as Portland, south in Los Angeles, and even as far east as Iowa.

Yet despite the group’s intention to improve the dialogue, a recent surge in vandalism has made supporters question whether they have accomplished their goal or whether this too will devolve into a war without compromise or respect for the other side’s opinions.

The first instances of vandalism in early May were almost comical to the group members. Some opponents simply painted out “Oyster Farm” or inserted “Go Wild” as a message of their support for wilderness in Drakes Bay. Judy Teichman, one of the painters, joked that these vandals did not understand branding when they appropriated the highly recognizable work, instead of designing an original.

But recently, the sabotage has become more violent and widespread, supporters said. Ms. Carpenter awoke on a June morning to find a curse word scrawled in black marker across the sign outside her home in Lagunitas. Jeff Creque, an ALSA board member and Inverness resident, has had multiple signs stolen. Some fences in Bolinas were damaged when vandals ripped down signs screwed into posts. And one sign placed at the Rich’s Readimix Quarry Building, where the mural was recently painted and vandalized, was thrown into a stream behind the building.

“I felt violated,” Ms. Carpenter said of the vandalism to her sign. “It’s scary to have someone on my property at my home or in my garden having enough anger to rip something off or write something ugly.”

Frustrated by the vandalism, the group contacted the Readimix property owners and asked for permission to paint a giant sign on the side of the building, a highly visible message that couldn’t be tossed away. Ms. Ravizza sketched a design and the coalition set up a scaffold and completed the project in three hours.

Fearing the same person who had destroyed previous signs at the factory would return, they posted a red warning against potential trespassers. Neither sign deterred the vandal—or vandals.

When Michael Greenberg, an Inverness resident, found out the sign he helped paint was ruined, he started fuming. “This is a breakdown of society that we can no longer shrug at,” he said. He doubted the vandals had considered the implications of their actions. “This only entrenches people and makes them angry. It encourages other people to put up more signs,” he added.

No police reports of vandalism to the signs have been submitted in the past 90 days, said Sgt. Hugh Baker, perhaps indicative of the pervasiveness of the problem or a realization by supporters that the sheriff’s office probably has bigger shellfish to fry.

The sign painters wonder whether the vandals are opponents of the farm or simply a group of kids who want to stir things up, isolated incidents or a group conspiracy. “It could be anybody,” Ms. Carpenter said.

The painters are publishing ads and distributing flyers for a “Sign Replacement Service,” repainting the large mural at the Readimix and continuing to work down the waiting list of supporters who want their own signs.

“Our signs will keep getting bigger and bigger,” Mr. Greenberg said. “See if you can carry that away.”

Earth Day Co-Founder & Environmental Hero: Lawmakers Join Fight to Save DBOC

Ex-lawmakers join fight to keep Drakes Bay Oyster Company open

• By GUY KOVNER   -- THE PRESS DEMOCRAT

October 23, 2013, 4:38 PM

Two former California lawmakers who helped establish Point Reyes National Seashore have filed a federal court brief supporting a commercial oyster farm’s right to continue harvesting shellfish in the park’s protected waters.
William Bagley, a former Marin County assemblyman, and Pete McCloskey, a former Bay Area congressman, filed a 26-page brief this week supporting Drakes Bay Oyster Company’s bid for a rehearing by the 9th Circuit U.S. Court of Appeals, which rejected the company’s case in September.
Their “friend of the court” brief challenged the legality of former Interior Secretary Ken Salazar’s decision nearly a year ago not to renew oyster farmer Kevin Lunny’s permit to raise oysters in Drakes Estero, a 2,500-acre Pacific Ocean estuary.
The brief, backed by 11 other parties including the Sonoma County Farm Bureau, also asserted that even without a federal permit for use of the estero shoreline, Lunny could continue oyster cultivation under a state lease of the estero “water bottoms.”
Lunny, who plants and harvests $1.5 million worth of oysters a year from the estero, said he agreed with the brief’s “legal analysis” but hasn’t evaluated the prospect of working without a land base.
“We’re still focused on getting the onshore permit,” he said. “If it gets denied, we have to look at those other options.”
Lunny’s own lawyers last week asked the 9th Circuit to reconsider the 2-1 ruling that supported a government shutdown order based on Salazar’s action last November.
The appeals court could take a few months to decide whether to submit Lunny’s case to an 11-judge panel.
Bagley and McCloskey weighed in on the oyster company controversy in a 2011 letter to Salazar asserting that the Point Reyes seashore, created in 1962, was intended “to retain an oyster farm and California’s only oyster cannery in the Drakes Estero.”
Bagley authored the 1965 state bill that transferred the Point Reyes tidelands to the National Park Service, and McCloskey secured $35 million from the Nixon administration for the 1972 purchase of the ranch lands surrounding the estero.
Their letter noted that former Rep. John Burton and former Sen. John Tunney, testifying on a 1976 wilderness designation bill for Drakes Estero, said the oyster farm was to continue as a “non-conforming use.”
McCloskey, who lives on a ranch in Rumsey, Yolo County, blamed park service bureaucrats for the change in direction regarding the estero.
“I’m pissed off,” he said in a telephone interview. “I’m 86 years old and I wish I was young enough to get back into this fight.”
McCloskey, a co-founder of the first Earth Day, received the Sierra Club’s first “environmental hero” award in 2010.
The brief, written by San Francisco attorney Judith Teichman, asserted that Salazar’s decision was “ultra vires,” meaning beyond the power, by interfering with the state’s leases and Lunny’s rights under the leases.
A previous “friend of the court” brief, submitted in April by four environmental groups, rejected the argument that California could continue to lease the estero water bottoms for aquaculture without a federal permit for use of the shoreline property.
[END_CREDIT_0]You can reach Staff Writer Guy Kovner at 521-5457 or guy.kovner@pressdemocrat.com.

Co-author of Endanger Species Act joins Luminaries in Legal Cause for DBOC

Luminaries File Brief in Support of Drakes Bay Oyster

Environmentalists, Agricultural Leaders, Elected Officials, and

Leaders of Local Sustainable Food Movement File Amici Curiae Brief

INVERNESS, CALIF. — Drakes Bay Oyster Company announced today that an impressive group of environmentalists and proponents of sustainable agriculture filed an Amici Curiae (“friend of the court”) brief in support of its petition requesting an En Banc hearing of its case in the Ninth Circuit. The historic oyster farm is fighting to remain open in the face of Park Service wrongdoing. Its case in the Ninth Circuit is about the request for an injunction to remain in business while its lawsuit against the agency proceeds.

The brief argues: “The Drakes Bay Oyster Company is a treasured part of California’s coastal zone in the Point Reyes National Seashore.  Shellfish from Drakes Estero are an important part of the San Francisco Bay Area’s world famous local, sustainably raised food movement.  Modern environmentalists hail Marin County and DBOC as a model for sustainable agriculture. Consistent with Federal policies supporting increasing the Nation’s supply of sustainably raised seafood, California, which leases Drakes Estero to DBOC, has declared shellfish cultivation there to be ‘in the public interest.’ ”

Joining the brief are:

·         Former Congressman “Pete” McCloskey, coauthor of the Endangered Species Act, who intervened with the Office of the President to secure the 1970 Congressional appropriation that enabled the National Park Service to create the Seashore,

·         Former State Assemblyman William T. Bagley, who in 1965 authored Assembly Bill 124 transferring the Point Reyes tidelands to the National Park Service, specifically reserving the State’s right to fish,

·         Phyllis Faber, a noted wetland scientist who helped found, and served on, the California Coastal Commission, and co-founded the Marin Agricultural Land Trust,

·         Mark Dowie, an award-winning investigative environmental and science reporter and resident of Marin County with a stated interest “is in ensuring that public policy and decisions impacting the environment are based on accurate facts and sound science,"

·         Tomales Bay Association, a 50-year old West Marin County environmental organization that supports DBOC “as a critical component of on-going habitat restoration projects for Threatened & Endangered species, especially native oyster restoration projects in SF Bay and elsewhere in the State, because it is the last operating cannery in California and therefore the only readily available source of shell in California,”

·         Patricia Unterman, owner of the Hayes Street Grill, known for its fresh fish, who says “The loss of the oysters produced by DBOC would have a devastating impact on our mission, our menu and the expectations and pleasure of our customers.  We cannot replace the fresh, local, shucked oysters from DBOC,”

·         Tomales Bay Oyster Company, one of two oyster farms located on Tomales Bay in Marin County with retail shops along State Highway One; its retail and picnic area is at capacity and its customers will be adversely affected if DBOC’s 50,000 customers attempt to visit,

·         Alliance for Local Sustainable Agriculture,  an unincorporated association of people who believe that “a diversified and healthy agricultural community is important to our individual health and to our community’s and our nation’s safety, economy and environment,” and are “advocates for the use of good science and fair processes,”

·         The California Farm Bureau Federation and the Marin and Sonoma County FarmBureaus, nonprofit voluntary membership corporations that exist to protect and promote agricultural interests in the State and in their Counties,

·         Food Democracy Now, a grassroots movement of more than 350,000 American farmers and citizens dedicated to reforming policies relating to food, agriculture and the environment,

·         Marin Organic, founded in 2001 to foster “direct relationship between organic producers, restaurants, and consumers” to strengthen the commitment and support for local organic farms, such as DBOC. 

Lunnys Did *Not* Have Full Disclosure From Park Service Before it Purchased Oyster Farm FILES FOR EN BANC

EXCERPTS FROM THE DBOC BRIEF TO THE NINTH CIRCUIT (Rehearing Petition)

First Paragraph of DBOC Brief

“Before it became obsessed with destroying the only oyster farm in Point Reyes National Seashore, the National Park Service had for many decades supported the oyster farm, as did local environmental groups and the community at large. The oyster farm and the surrounding cattle ranches provide the agricultural heritage the Seashore was created to protect. When Congress was considering legislation that became the 1976 Point Reyes Wilderness Act (“1976 Act”), wilderness proponents “stressed a common theme: that the oyster farm was a beneficial pre-existing use that should be allowed to continue notwithstanding the area’s designation as wilderness.” (Op. 40 (Watford, J., dissenting).) To this day, modern environmentalists and proponents of sustainable agriculture praise Drakes Bay as a superb example of how people can produce high-quality food in harmony with the environment.”

Park Service Sustained Vendetta Against Drakes Bay

“Since 2005, for reasons that remain a mystery, the Park Service has changed position and sustained a vendetta against the oyster farm. The Park Service has been reprimanded by the National Academy of Sciences, which in 2009 found that the Park Service had “selectively presented, over-interpreted, and misrepresented the available scientific information”, and by the Solicitor’s Office of the Department of the Interior, which in 2011 found “bias” and “misconduct” in the evaluation of harbor-seal data.”

Footnote # 6 (Excerpt) – Secretary Salazar Admitted – DBOC Not Told Farm to Shut Down, Renewal Clause Not to be Honored

“Although, as the Secretary recognized, Drakes Bay received the Park Service’s legal analysis only after it purchased the oyster farm (ER 120, see ER 180, ¶64), the majority mistakenly asserted that “Drakes Bay purchased the oyster farm with full disclosure” and that “the only reasonable expectation Drakes Bay could have had at the outset was that such a closure was very likely”. (Op. 36-37.) This mistake controlled the majority’s review of the equities.”

 Park Service Reprimanded by the National Academy of Sciences and the Department of the Interior’s Office of the Solicitor

“Here a federal agency has behaved so badly that it has been reprimanded by the National Academy of Sciences and the Solicitor’s Office for misconduct, and by Congress for misinterpreting the law. Despite these reprimands, the agency continued to make false scientific statements and insist on the very misinterpretation Congress overrode. Courts should provide a remedy whenever an agency bases its action on false statements and acts in disobedience of a Congressional directive. And yet the majority held that courts lack jurisdiction to determine whether this type of agency action was arbitrary, capricious, or an abuse of discretion. This holding is wrong. Congress could not have intended to allow an agency to disobey a statute, or to base permit decisions on false statements, and yet be immune from judicial review. Nor could Congress have intended that a court would have jurisdiction to review an agency’s discretionary decision for everything except abuse of discretion. En banc rehearing is needed.”

Park Service Misconduct Raises Significant Legal Principle – Is the Park Service Above the Law and Beyond Accountability

“The decision could potentially prohibit courts from considering whether agencies were arbitrary and capricious or abused their discretion in countless decisions granting or denying ordinary permits.”

Myth Buster, Laura Watt - Did park coerce sales of ranches to form PRNS?

While the Drakes Bay lawyers make the case that the oyster company was always intended to be part of the Point Reyes National Seashore historically, author Laura Watt is shredding one myth after another as she looks back into history. She found the ranches were never in danger of coming under development before the NPS bought them and that NPS maneuvered them into a corner that resulted in the ranchers selling their properties to Department of Interior. Listen to her interview with KOWS radio host, Arnold Levine by clicking here.

And in some non news, seemingly it is EAC and its mouthpiece who published more questionable science on a questionable blog here. Guess no professional reporter would pick up the story. Was that because there had been no fact-checking?

Who is *Really* Behind Fight to Oust DBOC - "Too Many Lawsuits"

Rather than saving species and conserving their habitats, the ESA is used as a sword to tear down the American economy, drive up food, energy and housing costs and wear down and take out rural communities and counties. Center for Biological Diversity and it's followers such as the Environmental Action Committee believe they influence left-leaning thinkers not to pay attention to anything at all that comes from the right. If CBD's actions harm the environment, it may be time to take a look at all sides of the issue. CBD, which brags about killing 4-5,000 mostly family farms, got over 2 million dollars in 3 years from the federal government in a twisted series of aggressive lawsuits. House Natural Resources Committee Chairman, Doc Hastings reports on "too many lawsuits" here.  

"...the Center for Biological Diversity was involved in over 50 individual cases, open between 2009 and 2012, where they were the lead plaintiff. "

It is important to watch CBD in order to protect local agriculture and to prevent the loss of more farms, especially the few farms left on the Point Reyes Peninsula.

Wilderness Act intended for Drakes Bay Oyster Company to stay.

Marin Voice: Oysters in the wilderness

Marin News

By Jim Linford
Guest op-ed column

Posted:   10/10/2013 08:00:00 PM PDT

Jim Linford

THOSE OF US who have followed the Drakes Bay Oyster Co. case understand that the three-judge decision handed down at the beginning of September went against the oyster farm by 2-1.
But it is not well understood that the judges did all agree on a very important fact: When Congress designated the wilderness in the Point Reyes National Seashore in 1976, it thought the oyster farm to be compatible with wilderness and expected the farm to remain indefinitely.
The dissent fully develops this understanding of the original congressional intent, and the majority acknowledges "the accuracy of the dissent's recitation of the legislative history of the 1976 Act."
Here is the puzzle: All three judges agreed that Congress intended the oyster farm to be compatible with wilderness. And yet two of them upheld the secretary's decision to close down the oyster farm based on his misunderstanding that Congress supposedly thought the oyster farm to be incompatible with wilderness.
How could that happen?
First, the majority thought that the secretary's decision did not have to pay attention to congressional intent because of recent special legislation regarding the Drakes Bay oyster case. And second, since (former) counsel for the oyster farm shared the secretary's misunderstanding, the oysters-in-the-wilderness approach was never properly presented and did not really need to be considered.
The dissent disagreed and attributed the misunderstanding to the secretary's legal counsel.
How pristine does wilderness need to be?
In the 2010 Wilderness Watch case, the Ninth Circuit rejected a narrow understanding of the Wilderness Act, one that would preserve the wilderness in a museum diorama, one that we might observe only from a safe distance, behind a brass railing and a thick glass window.
Rather, it is the act's intent to assure that the wilderness be preserved as wilderness and made accessible to people, "devoted to the public purposes of recreational, scenic, scientific, educational, conservation and historical use."
Although the Wilderness Act generally precludes commercial activities, it specifically allows for the continuation of animal grazing rights that pre-existed the wilderness designation (and, I would argue, for bivalve as well as bovine grazing).
Given this provision and the continuation of grazing within the Point Reyes National Seashore, it is no surprise that in 1976 Congress expected the oyster farm to remain in operation.
The Drakes Bay oyster farm case was not fully developed when presented to the district court and court of appeals. I hope that the Court of Appeals allows it to develop properly by granting the request for an en banc rehearing.
On a more personal level, a rehearing could also permit the correction of an odd misunderstanding at the beginning of the opinion:
"This appeal ... pits an oyster farm, oyster lovers and well-known 'foodies' against environmentalists aligned with the federal government."
If we have learned anything at all from the public debate over this matter, it is that there are "environmentalists" on both sides.
Certainly those of us who support sustainable agriculture (a "conservation use" of the seashore) see it as an environmentalist cause.
It would be helpful for the court to acknowledge that fact.
Jim Linford of Marinwood is a semi-retired appellate attorney and an active member of the California Bar.

"Our government and its corporate sponsors have created a system of subsidies that has to be abolished. They turned the lands into a commodity. We have to get public land users off this welfare system. It is not a simple thing to break those chains." - Kieran Suckling, Founder, Center for Biological Diversity

For a well-documented overview of how the Center for Biological Diversity, with roots in Trainer's San Juan Islands, manages to kill off over 4,000 farms, most of them multi-generational family farms without a hint of guilt, skip on over to sister-site, trojanheron.blogspot.com. Succinct summary there.

Time to protect Pt. Reyes farms!

Yet another Letter to the Editor Demanding Trainer Be Fired:

Yet another Letter to the Editor Demanding Trainer Be Fired:

During my three-year tenure as board president of a non-profit organization, one of my responsibilities was to make sure that our executive director followed the letter and the spirit of the goals and objectives set forth in our mission statement. 

From my reading of the Environmental Action Committee’s (EAC) mission statement on their website (www.eacmarin.org) the conduct of their executive director Amy Trainer is similarly in conflict with the objectives of the organization she works for.

Here are some examples: “EAC works for...the preservation of a rural, community spirit”; EAC uses law, policy, science and education to: create a common ground of understanding and promote informed debate; and encourage and facilitate productive resolutions to land-use conflicts by working closely with those who own, manage and use West Marin lands.”

Ms. Trainer’s take-no-prisoners approach to problem solving has made an absolute mockery of the goals stated above. And even now that the fate of the Drakes Bay Oyster Company (DBOC) is squarely in the hands of the courts, and has been for several months, her most recent attempt to smear DBOC and the Lunny family is stark evidence of how she has allowed her role in this conflict to degenerate, without apology, into a personal vendetta. 

If this is the kind of reprehensible conduct the EAC is proud to support then the gaping wounds that have been opened in the hearts and minds of so many people in this community and beyond will only continue to fester. If not, then the EAC must take quick and decisive action to find new leadership for its executive position.

Having gone all in with Ms. Trainer in their wilderness-at-any-cost campaign, this will not be an easy task for the EAC, and it will be especially difficult because in a small organization where everyone knows each other, the bonds of association and friendship will frequently cause a board of directors to put off making such a crucial decision. I know from my own experience with this process, that the longer you wait to release a toxic employee the worse it gets for all concerned.

If the EAC has any hope of reclaiming its birthright as an organization dedicated to truth, scientific integrity and personal accountability in the pursuit of the goals and objectives as proclaimed by its founders, there is only one choice they can make. And only when they find the courage to do so can real healing truly begin.

Bruce Mitchell

Inverness

As far back as 1961 the National Park Service said the oyster company was a beneficial part of the Point Reyes seashore and should be kept. That is part of the legal case that is on a path to the U.S. Supreme Court.

Federal Court Opinion: National Park Service Has Misinterpreted Law Since 2004 "Bizarre"

September 9, 2013:  Robin Carpenter interviewed Drakes Bay Oyster Company attorney Peter Prows who said the case may very well reach the United States Supreme Court. Read West Marin Citizen story here.

What’s really remarkable is, going back to 2004, after the Lunnys spent a couple hundred thousand dollars to invest and fix up the oyster farm, they got a letter and a memo from the Park Service saying that the wilderness laws, in particular the 1976 Point Reyes Wilderness Act, mandated that the Park Service not issue a new permit to the oyster farm when the  existing permit expired in November of 2012. This is a legal position that the Park Service has now taken over the last 8 to 10 years.

The Park had the law wrong:

 There’s really no question anymore that the Park Service has had the law wrong all along.

Ninth District Court called this change of position "bizarre:"

For 30 years before the Park Service’s memo to the Lunnys, that’s what everybody thought that legislation meant. The Department of Interior told Congress in the 1970’s that the oyster farm was a beneficial use there and should continue notwithstanding whatever wilderness legislation was passed. The Environmental Action Committee of West Marin told Congress essentially the same thing. The Wilderness Society and the Sierra Club had the same view. Everybody had the same view of what the law should accomplish and what the law meant. It wasn’t until 30 years later that the Park Service and some of these groups changed positions. Judge Watford called that a “bizarre” change of position.

Text of Federal Court dissent: 

 The Department’s legal analysis concluded—bizarrely, given the legislative history recounted above—that by designating Drakes Estero as a potential wilderness addition in the Point Reyes Wilderness Act, Congress had “mandated” elimination of the oyster farm. The Department never identified anything in the text of the Act to support that view; it cited only a passage
from the House Report accompanying H.R. 8002. But that passage “is in no way anchored in the text of the statute,” Shannon v. United States, 512 U.S. 573, 583–84 (1994), and thus provides no support for the Department’s interpretation of the Act.

Capricious and Illegal? "Secretary had no authority" - Judge Watford

But the dissenting opinion by Judge Paul Watford said that the Secretary’s decision did indeed rely on a belief—an unfounded belief, he said—that the existence of the oyster farm violated the law, which means his decision was capricious and illegal.  Good coverage of Drake's Bay Oyster Company's situation and continuing battle to keep 40% of California's oysters available in the Pulitzer Prize winning Point Reyes Light here. The blue signs are still up and the community at large is happily supporting the Lunny family.

For "anonymous" here is a photo of the 2011 tax statement from EAC showing how much Trainer made to create 'hits' on the Lunnys. She needs to learn that good-will goes a long way out here in the boonies!

Annual Salary 2011: $62,871 - that would feed a lot of oyster worker families!

Drakes Bay Oyster Company Remains Open and Will Petition for Rehearing by Ninth Circuit’s Full Eleven Judge Panel

INVERNESS, CA —  The historic oyster farm and last oyster cannery in California announced today that it plans to file a petition requesting that their case be reheard in front of a full eleven-judge panel of the Ninth Circuit. Drakes Bay Oyster Company has assured its supporters that this is not the end for them and has pledged to continue the fight to remain open.

The farm announced that, within 45 days, it will file a petition for an En Banc rehearing.  In the meantime, the farm remains open for business. 

The small, family-owned farm, which has been in a heated legal battle with federal regulators for its survival, is adamant that the majority opinion got it wrong. “After reading the Court’s decision -- and especially the dissent from Judge Watford -- we are more convinced than ever that we will prevail based on the merits of our case” said Kevin Lunny, owner of Drakes Bay.

While the Ninth Circuit’s three-judge panel ruled 2 to 1 yesterday against the oyster farm, the company believes the dissenting opinion of Judge Paul J. Watford was absolutely correct.  In that dissenting opinion, the Judge admonished the majority’s decision, asserting that it consisted of “hand waving,” containing “nothing of any substance” and that “Drakes Bay is likely to prevail on the merits” (see pg. 47 from the Ninth Circuit decision).

In his dissent, Judge Watford also agreed with the oyster farm that, in enacting the 1976 Point Reyes Wilderness Act, “all indications are that Congress viewed the oyster farm as a beneficial, pre-existing use whose continuation was fully compatible with wilderness status” (see pg. 44 of the decision).  Only recently, he observed, did the Interior Department “bizarrely” change position and insist that the law required the oyster farm to leave in 2012 (see page 43 of the decision).

Drakes Bay remains optimistic that the farm will be successful in the next stages of its legal battle. “With the support of thousands of environmentalists, community members and elected leaders around the nation, we will continue to fight for what’s right and remain committed to succeeding in our fight to remain open and serve our community,” Lunny said. “Although we strongly disagree with the panel’s decision, we remain steadfast in our opinion that we can prevail based on the merits of our case,” Lunny said.

Don't Lose Heart - Keep your BLUE SIGNS UP!

Drake's Bay Oyster Company lost the federal injunction to continue operating until they have their day in court. BUT! Keep your blue signs up! The state, which owns the water bottoms, has a lease with the Lunny Family that is not impacted and is still in effect meaning the oyster farm can still operate. Get ready to be more supportive than ever!

Author: Jeff Creque - Global Ecology and Drakes Bay Oysters

If the National Park Service and the Environmental Action Committee and others are successful in shutting down Drakes Bay Oyster Farm and then follow the Center for Biological Diversity plan to shut down all the farms on the Point Reyes Peninsula, we are headed for big trouble.
Jeff Creque's Op Ed piece in the Marin Independent Journal Aug 25, 2013, explains the faulty reasoning behind their battle for 'wilderness' and why it doesn't work. Read it here. 

What Trainer Did in Washington

Someone asked what Trainer did up in Washington? If you have time to watch the first half of this show, you can learn a lot. Or, take a minute and read how she falsely accused a homeowner of violating ordinances, calling a halt to their home reconstruction, when they had permits in order and had taken the extra expense of hiring a specialist to make sure the permits had been been done properly. Trainer picked and chose minor parts of ordinances, etc. without investigating the situation as a whole. Sound familiar to people in Marin?

Did Trainer Feed False Info to Yellow Journalist Known for Kardashian Gossip? Then Tweet It?

Trainer immediately tweets false story after yellow journalist, Dina Exil publishes it combining year old information with a news story 3,000 miles away. The story claims DBOC, which never sells oysters that have to travel farther than their trucks can drive in a few hours, was part of an East Coast health warning.

How did Trainer know about the story and tweet about it so fast? She can't come up with the evidence that she found it in a tweet that doesn't seem to exist.

After DBOC lawyers contacted Trainer's lawyers, the tweet was removed. But, DBOC saw it and we have it:

Food Safety News, which was quoted in the false story, decried the false story here. Trainer and EAC must realize they are have smirched the reputation of the Environmental Action Committee, a once loved and supported non-profit. To what end? To eliminate a major source of organic food in Marin? Do realize they could be forcing a situation where  almost all of our food would have to travel on barges from Asia? Is that environmentalism?  Is Trainer is an invasive entity in West Marin, a traveling trouble-maker who leaves when the iron gets hot like she did in Colorado and Washington?

EAC board members, would you please let Trainer go on about her way before this tragic situation gets any worse here?