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.