OCTOBER 13, 2013 |
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CA VS Drakes Bay Oyster Company |
www.DrakesBayOyster.com |
Todays guests:
Nancy and Kevin Lunny |
About
Drakes Bay Oyster Company:
The family behind Drakes Bay Family Farms is the Lunny
Family, now in their fourth generation of farming. A
century ago the Lunny Family took over stewardship of
some of these fertile lands and waters. The Lunny’s have
the same philosophy as the Miwoks when it comes to
caring about the sustainability and conservation of this
precious area.
The Lunny Family has produced high quality farm products
in Marin County for most of the twentieth century, and
they continue to do so in the twenty-first. The Lunny
cattle ranch, known also as the Historic G Ranch is
situated in the heart of Point Reyes National Seashore,
with Pacific Ocean bordering one side of the ranch and
Drake’s Estero bordering the other. Most of the time the
Lunny Family has been on this ranch was spent producing
milk in their grade A dairy. The Lunny’s have now added
gourmet oyster farming and conservation of Drakes Estero
to their many new ventures.
As with all of their products, Drakes Bay Family Farms
and the Lunny Family make this promise to you and your
family. We will provide you with products of only the
highest quality produced in most the humane and
sustainable manner possible.
Drakes Bay Oyster Company provides local jobs and a
sustainable food product that supports local businesses.
Our stewardship of the oyster farm has resulted in
award-winning oysters, and has protected the pristine
waters of Drakes Estero and its abundant wildlife.
In November 2012, the National Park Service issued a
decision that would shut down our business. In the
course of this decision, NPS misrepresented the law, our
contracts with the State of California, and the results
of scientific studies. The fight is not over. We are in
court to protest this. We need your help to continue.
REF:
http://www.drakesbayoyster.com/history/
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Video:
Feds Kill Drakes Bay Oyster
Company Marin County, CA |
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Frequently Asked Questions About Drakes Bay Oyster
Company |
Q: |
Do environmentalists support the oyster farm? |
A: |
Yes. Many
prominent environmentalists support DBOC,
including West Marin environmental elder Phyllis
Faber (who helped create Point Reyes National
Seashore, as well as the Coastal Commission and
the Marin Agricultural Land Trust, among other
accomplishments); activist and Omnivore’s
Dilemma author Michael Pollan; environmental
scientist Dr. Peter Gleick; investigative
journalist and Conservation Refugees
author Mark Dowie; renowned conservation
scientist Dr. Gary Paul Nabhan; and food and
environment writer and Geography of Oysters
author Rowan Jacobson. DBOC also has widespread
support within the local food movement; an
amicus brief in the Ninth Circuit supporting the
oyster farm was filed by: Alice Waters,
chef-owner of Chez Panisse; Patty Unterman,
chef-owner of Hayes Street Grill; Food Democracy
Now; the Alliance for Local Sustainable
Agriculture, and others in the local,
sustainable food movement. We are also
supported by the Tomales Bay Association and the
Marin Conservation League. |
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Q: |
Does oyster farming provide positive ecological
services that help the
environment? |
A: |
Yes.
According to various Federal agencies, NOAA,
the Army Corp of Engineers, and others, oysters
provide valuable ecological services to a marine
environment, such as improving water quality.
Oysters help waterways by eating algae,
filtering out particulates and excess nutrients,
and creating habitat for other organisms to
thrive. One oyster can filter more than 50
gallons of water in 24 hours. The National
Oceanic and Atmospheric Administration (NOAA) is
actively promoting oyster restoration, including
restoring native oysters
in the Chesapeake Bay; these efforts are
accelerating, especially in
Harris Creek,
where 22 acres of reefs were built in 2012, and
34 acres are planned for 2013.
Oyster
restoration
is also under way in Florida,
California,
and
Massachusetts,
among other places. Only in Drakes Estero is
anyone trying to remove oysters from the
water. |
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Q: |
NPS
claims that DBOC harms birds, water, and
wildlife—is that accurate? |
A: |
No. NPS claims of environmental harm are not
accurate. The eel grass in the Estero is very
healthy, having doubled since the early 1990s.
Allegations that the oyster farm causes harm to
seals, to eelgrass, to birds, or to water
quality have been shown to be false The
National Academy looked NPS science on two
occasions – and found it lacking both times. |
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Q: |
Under
California and Federal Agreements, is DBOC
allowed to farm past 2012? |
A: |
Yes. The State of California renewed their
permit to grow oysters in Drakes Estero in 2004
– and the new permit goes to 2029. The
renewable permit with the National Park Service
reached term in 2012. DBOC submitted a request
for a new permit in 2010. All leases for
agricultural and mariculture at Point Reyes were
for a specified term and are renewable. After
NPS incorrectly claimed they lacked the
authority to extend the lease, Congress enacted
legislation giving the Secretary of the Interior
the authority to do so. |
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Q: |
Can
DBOC stay without setting a bad precedent
against wilderness? |
A: |
Yes. The continuation of the oyster farm would
not establish any precedent against wilderness.
Congress, in 2009, gave the Secretary the right
to extend the lease. The very same legislation
has a specific provision which expressly states
that the provision is not a precedent. Congress
already addressed this issue and resolved it
four years ago. |
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Q: |
Are the
oyster farmers careful not to disturb the seals
and other wildlife? |
A: |
Yes. In 1992, long before the Lunnys purchased
the oyster farm, a multi-agency protocol was
established to protect harbor seals. The
protocol requires the oyster farm boats,
workers, and activities to remain 100 yards from
seals during the March-May harbor seal pupping
season. As a practical matter, DBOC oyster
growing areas are approximately 600-700 yards
away (or, six to seven football fields). The
protocol has been adhered to. The Marine Mammal
Commission has made no recommendation to change
or modify it. The State Agency with
jurisdiction for oversight at Drakes Estero—the
California Department of Fish and Wildlife—has
never received a report of a seal disturbance,
or any other disturbance of wildlife, by the
DBOC. |
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Q: |
What
is the situation regarding the original
agreement between NPS and DBOC? |
A: |
A deal should be a deal. The Lunnys have a bona
fide renewal clause in a legally binding
agreement. The State, not the Park Service,
retained the right to farm shellfish on the
Drakes Estero bottoms – and they have extended
that agreement until 2029. Congress enacted
legislation to extend the lease, not end it.
Those agreements should be honored. |
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As recently as 1998, the Park Service
recommended that the oyster farm be fully
rebuilt and upgraded. The NPS decision to shut
down the farm is very recent, not grounded in
law, and fully unjustified. |
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Q: |
Why
are you suing the California Coastal Commission? |
A: |
Because the Commission is breaking environmental
law. |
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The California Environmental Quality Act (CEQA)
requires the Commission take into account any
evidence about environmental impacts that would
result from implementing its orders. The Order
the Commission is trying to enforce against DBOC
would have serious environmental impacts. (For
example, the Commission is ordering the oyster
farm to undertake demolition efforts to remove
all the oyster racks, which have been in place
for decades, without studying how that
construction will affect the environment. The
federal court and the Dept. of Justice lawyers
agreed that the removal of the oysters and racks
will cause environmental harm.)
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When the evidence of these environmental impacts
was submitted to the Commission, instead of
taking it into account, the Commission expressly
voted to exclude it from the record. That is a
clear violation of CEQA. |
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The Commission is also exceeding its
jurisdiction under the California Constitution
and California law by trying to control what
types of shellfish Drakes Bay Oyster Company
grows and how they are grown. The authority to
make that kind of decision is vested with the
California Fish and Game Commission, and the
California Department of Fish and Wildlife.
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In early April, Marin County Superior Court
Judge Lynn Duryee granted an alternative writ
that requires the Coastal Commission to show
good cause why the cease and desist and
restoration orders should not be rescinded. The
hearing date is currently set for July 9, 2013. |
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Q: |
Who is
supporting DBOC in its lawsuits?
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A: |
DBOC is honored to have the support of four
different law firms, all of which are
representing the oyster company pro bono. Our
lawyers are Peter Prows and Lawrence Bazel of
Briscoe, Ivester & Bazel LLP in San Francisco;
Richard Idell of Idell & Seitel, LLP in San
Francisco; Ryan Waterman and S. Wayne Rosenbaum
of Stoel Rives LLP in San Diego; and
Zachary Walton of SSL Law
Firm LLP also in San Francisco. |
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Our
pro bono lawyers are representing us because we
are a small company the federal government is
not giving a fair shake to. This support is not
part of any national agenda. Our lawyers and
their firms are representing Drakes Bay Oyster
Company due to the merits of our case (and
because they also love Point Reyes, appreciate
the beauty of the historical agricultural
community there, and relish the local,
sustainable food the area produces). Our legal
team believes that as legal professionals they
have a special obligation to help those who
cannot afford the services of a lawyer, and
their firms ask all of their lawyers to devote a
portion of their practice to pro bono work.
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Q: |
What
is the current status of the federal lawsuit
challenging Secretary Salazar’s denial of a new
Special Use Permit to Drakes Bay Oyster Company? |
A: |
On
February 25, 2013, just three days before DBOC
would have been forced to stop operating, the
Ninth Circuit granted DBOC’s emergency motion
for an injunction pending appeal. In granting
this rare form of relief, the Ninth Circuit
found that DBOC’s appeal presented “serious
legal questions” and that DBOC had proved that
the “balance of hardships tips sharply in [DBOC’s]
favor.” Because the Ninth Circuit granted an
injunction pending appeal, DBOC is allowed to
continue to grow and sell oysters while the
court considers the merits of its appeal.
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On May 14, 2013, a three-judge panel of the
Ninth Circuit Court of Appeals heard oral
argument on DBOC’s appeal of the district
court’s denial of a preliminary injunction. On
September 3, 2013 the Ninth Circuit issued a 2-1
decision against the oyster farm, upholding the
district court’s denial.
Judge Paul J.
Watford, in his dissent, wrote a blistering
opinion admonishing the majority’s decision,
asserting that it consisted of “hand waving,”
containing “nothing of any substance” and saying
that “Drakes Bay is likely to prevail [in its
Federal case] on the merits.” |
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On the strength of this dissent, DBOC is asking
for a reconsideration by the full Ninth Circuit
panel of 11 judges in what is called an En Banc
hearing. The timeframe for the court’s decision
about this is unknown. |
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Q: |
Who Supports
DBOC in Congress?
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A: |
Many Congressional Representatives and Senators
– and multiple committees – are following the
DBOC story, demanding accountability, and
conducting reviews. The Park Service has made
false claims, abused its power, ignored
contracts and legal agreements, and is
threatening to eliminate jobs, shutter a small
business, and do serious harm to the local
shellfish market. These are not partisan issues. |
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Senator Feinstein submitted her first set of
questions about DBOC in the Fall of 2006.
Senators in shellfish-growing regions are
growing increasingly concerned. DBOC is deeply
appreciative of the interest of all members. |
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