California Coastal Commission Gets Its Own Facts Wrong in Oyster Company Court Hearing.

The Russian River Times recently caught up with Phyllis Faber, one of the founding members of the California Coastal Commission board, who, along with the Alliance for Locally Sustainable Agriculture, has now sued her former organization for their actions against Drakes Bay Oyster Company (DBOC)and the Lunny family, who operate the historic oyster farm in Drake’s Estero at Point Reyes National Seashore.  Faber is a well-respected scientist for her work in marshland ecology, as well as an environmental icon, responsible for the development of Marin Agricultural Land Trust (MALT) which has preserved in perpetuity over 30,000 acres of Marin farmland  and has served as a model for land trust preservation everywhere.

Speaking of her vital work in the creation of the Coastal Commission, the late Peter Douglas, the first executive director of the Commission, praised Faber for her service. “Throughout the heat of political struggle, Phyllis maintained high standards of integrity and scientific honesty. Her compassion for other creatures with whom we share this planet was matched by her sensitivity to the needs of people and individuals with whom she came in contact. Whenever volunteers were needed in the course of the seven year campaign to enact California’s pioneering and bitterly fought over coastal protection program in the 1970’s, Phyllis was there ready, willing and able to do all she could to help the cause….”

Faber continues to fight for science and integrity and coastal preservation. The Marin Superior Court posted their decision on a ‘motion to stay’ the pending Coastal Commission actions against DBOC on July 16, essentially stating that further actions in the case will be held in abeyance until after the federal court decision on motions in the case brought by Drakes Bay Oyster Company against the National Park Service.  NPS has been trying to eliminate the oyster farm for almost a decade, using false science, fabricated claims and falsified data, which the Times has covered extensively since the beginning of the controversy in 2007.

Faber pointed out in the transcript of the recent Marin Superior Court hearing, that statement-after-statement s made by the California Attorney-General’s office, representing the Coastal Commission, were patently false, and were contradicted by the CCC’s own record, well-known to them at the time.  The most egregious of these is already the subject of a complaint of false information made by Faber’s attorneys relating to claims that DBOC had exceeded the harvest levels specified in the 2007 Consent Decree.

According to the Court Transcript of the July 2 hearing, the Coastal Commission falsely claimed that DBOC has increased oyster presence in the Estero from 71,000 oysters to 19 million, telling the Court that this massive so-called “expansion” was a threat to the Estero.  This claim does not stand up to even the most cursory examination.  Deputy Attorney General, Joel Jacobs, presented wildly incorrect harvest figures hopelessly scrambles the units of measurement, and seems totally unaware of facts relating to the 2007 Consent Decree.  Either he has been deceived by his client, does not care that he is misrepresenting facts to the court or has simply failed to conduct even the most basic review of the mariculture and environmental issues and information relevant to the case, including the CCC’s own documents, before making inflammatory allegations before Judge Duryee.

DBOC is mandated to report oyster harvest levels to the agency that regulates the resource, California Fish and Wildlife (formerly called CA Department of Fish and Game) in gallons and pounds.  A simple phone call to CDFW would have given him the correct information.  As for the distorted claim that DBOC grew 19 million oysters, Jacobs revealed that he and the CCC either knew nothing about the resource and how oysters were grown or deliberately misled the Court.   The 19 million refers to microscopic spat, which are induced to grow on oyster shells before being placed in the estero and, industry wide, have a very low survival rate.  To illustrate the physical difference one only needs to understand that 19 million microscopic spat mentioned could easily fit in several large 7-11 ‘Big Gulp’ cups.

More telling, the Coastal Commission had information in their own Record that directly contradicted the very assertions presented to Judge Duryee at the hearing.  At the Commission’s request, harvest data was submitted to the Commission by DBOC back in 2007 and all subsequently reports have been made available to CCC.  The information, data and supporting materials previously submitted to the Commission revealed that DBOC has complied with all harvest levels and reporting. When Jacobs and CCC made claims of massive increase in oyster activity, they should have also told the Court that DBOC operates under boat route maps approved by CCC under the 2007 consent decree, and logs all boat trips with GPS and show no significant change in activity.  Thus, the CCC chain of hypothesis of harm disintegrates completely not only at the first link, but every segment of the chain.

The Times spoke with Zack Walton, one of the attorneys representing Phyllis Faber and ALSA in the case against the Coastal Commission.  In a July 6 letter, Walton asked the Coastal Commission to correct their misstatements, as he had provided all of the shellfish harvest figures as reported to the CDFW and additional requested by the Coastal Commission in the negotiations of the consent decree.  The record shows that CCC inexplicably ignored their own findings and the 2007 Consent Decree in their latest complaint of Coastal Act violations.

The amount of shellfish harvest is regulated by CDFW under the DBOC lease, which states that the maximum oyster harvest is 850,000 lbs. and the records provided to the Coastal Commission show that DBOC harvest levels since 2007 are consistent with the 2007 Decree, with the most recent annual 2012 harvest level of 531,182 pounds.  As Walton pointed out, “They totally contradict the position they took when we negotiated the 2007 Consent Decree”.  More importantly, the California Coastal Commission is barred from regulating mariculture by CDFG, which is the lead State agency not only for oyster harvest but marine mammal protection as specified in Section 30411(a) of the Coastal Act, which clearly states that CCC may not duplicate or exceed CDFW actions.

Faber points out that the Coastal Commission is on the wrong side of science in this issue, and had made conclusionary statements that fly in the face of their previous action, and directly contradict findings by the scientific panels of the Marine Mammal Commission and the National Academy of Sciences.  The reports of the individual scientists on the MMC board who are leading experts in their field, found no incompatibility with the oyster operations and the health of the estero and its seal population.

The CCC conclusionary claims of immediate ongoing environmental harm are merely unsubstantiated opinions, many in direct conflict with their own documents and trip reports.  A CCC Trip Report from 2007 concluded that “servicing the oyster bags located several hundred yards away from the haul-out sites probably would not result in disturbance to the seals”.  This CCC finding was ignored by the CCC today.  The same Trip Report also raised claims of harm to eelgrass, yet fails to note, as did the National Academy Report, that eel grass coverage benefits from the filtering effects of the oyster cultivation and doubled in coverage in the estero since 1991.

Faber’s stand for scientific and ethical integrity in preserving California’s coastline continues to this day. She brought the lawsuit against the CCC with great reluctance, as the Coastal Commission has, in the past, been essential to the preservation of the coastline, but in the Drake’s Estero case, they failed to behave in a fair and equitable manner, becoming a law unto themselves, increasingly arbitrary, litigious and capricious. As she states,  “If they continue to lose the trust of all Californians in their ability to fairly protect the public interest, we all lose.”

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What lies in Drake’s Estero

Journalism is supposed to be the first draft of history, not the first rewrite of press releases and sound bites. In recent weeks, some journalists reporting on the Estero controversy say “they would not touch the science,” not realizing the irony that they are essentially saying they are reporting without knowledge. The word ‘science’ itself comes from the Latin scientia, ”to know.”

To report on scientific issues, it is not necessary for reporters to ‘do’ science. For example, to return to the issue of sound as a major impact in the Estero: when the NPS and its EIS consultant substitute the sound of a high- powered jet ski for a small four stroke outboard–as National Park Service did in preparing the Environmental Impact Statement–and claim the Estero is damaged by the sound, it raises issues that can only be answered by the basic journalism questions, Who? What? When? Where? Why?

The standard for journalistic coverage of the Drake’s Bay Oyster Company controversy seems to be based on guilt by six degrees of separation. The bulk of the recent reporting on the ‘ right wing conspiracy to destroy the wilderness act’  claim against DBOC is based solely on the fact that one attorney representing DBOC’s Kevin Lunny is a Republican who worked in Washington for a few months for a charity funded by right-wing interests.

By these standards, we assume that if the oyster-farm opponents report to the press that a lawyer supporting DBOC had defended an arsonist, this would be proof that Kevin Lunny, the DBOC owner, is burning down the Estero.  Much of the general press has shown an equal lack of standards in the other allegations against DBOC, with no real investigation, relying instead on unsubstantiated claims in the press releases of oyster-farm opponents, the latest of which is merely the last in a long line of attempts by National Park Service and its supporters to smear the Lunny family and present them as some sort of environmental criminals.

The press has no excuse for this type of journalism, which merely restates claims from anti-oyster-farm press releases without even the most basic fact checking. There is a marvelous expression in the British press, ‘Churnalism,’ which aptly describes much of the press and TV coverage, e.g. the regurgitation of recent press releases from Amy Trainer of West Marin Environmental Action Committee and the PBS Newshour report, “Strange Bedfellows Join Fight to Keep Oyster Farm in Operation.” There is simply no excuse for this type of inept and biased reporting.

Minimal research uncovers the facts. Both the National Academy of Science study (which found NPS had misrepresented the science), and the Marine Mammal Committee report (whose experts found no incompatibility with oyster operations and the seal population), have summaries and complete lists of all documents on their website. These including letters from the oyster-farm opponents and supporters.  Likewise, the response to the draft EIS contains statements from National Marine Fisheries, Cal Fish and Game that conflict directly with the allegations of the oyster-farm opponents.

Small local papers like the Russian River Times report stories that impact their communities, often over several years, while the larger press tends to only pick up on the sensational, often from unsubstantiated press releases and statements from advocacy groups. The truth is that NPS and its allies have conducted a long national campaign to portray the Lunnys as environmental criminals, damaging wilderness for personal gain. Locally, the Lunnys are known as a third-generation ranching family, well respected as responsible stewards and valued members of the community. Examples include their assistance with grazing research to support rangeland carbon sequestration, supporting shellfish restoration in San Francisco Bay, local composting projects, and working with endangered species restoration.

Ironically, the NPS also celebrated the Lunny’s contributions in a 2007 publication about stewardship in National Parks entitled, ‘Stewardship Begins with People.’ Page 45 shows a photo of Kevin Lunny and Seashore rancher David Evans and the statement that ”…both have been recognized for their environmental stewardship and innovation.”  In a currently available on-line version of this NPS document, Lunny has been literally airbrushed out.  He was made to disappear!  What is disturbing is that the Lunny’s environmental stewardship is ignored in most of the press coverage where NPS and its allies have attempted to destroy the Lunny’s reputation for stewardship. Not five months after the publication date back in 2007, Point Reyes Seashore Superintendent Don Neubacher told Marin County Supervisors that Lunny was an environmental criminal.

The “smear Lunny” campaign began in the spring 2006 Sierra Club Yodeler magazine by Gordon Bennett, then Chair, Marin Chapter.  Even an internet review will show that much of the campaign against the Lunnys originated with one individual, plus the direct involvement of a then-retired major Sacramento political player, active in West Marin after leaving his job with a major environmental lobbying group under a cloud.

Anything beyond the most cursory examination would find multiple cases of hidden and misrepresented data, not to mention deliberately altered photographs used without permission, known false statements about endangered species and the creation of a new hypothesis of harm each time previous claims were discredited.

Oyster-farm opponents and NPS would have you believe that sound (violations of soundscape standards) is a major problem in the Estero, implying that the experts on the National Academy of Sciences (NAS) panel and the seal experts on the Marine Mammal Commission (MMC) panel made a serious mistake in failing to identify sound as a major issue.  In their 2009 letter to the MMC, which lead to its investigation, Neil Desai of NPCA and Gordon Bennett, then of the Sierra Club, failed to even reference sound or raise the issue.

Gordon Bennett became involved in West Marin environmental activities after he sold his Westbrae Natural Foods business to the Hain Group in 1997. He unfortunately invested much of the proceeds with the infamous Bernie Madoff before becoming active in West Marin environmental issues. Bennett, in his role as Chair of the Marin County Sierra Club group, posted in an article in the Spring 2006 Sierra Club Yodeler, with false claims about criminal destruction of eelgrass, misleading claims invasive aquatic species, and distorted claims about marine debris (conveniently omitting DBOC’s clean-up efforts at Drakes Estero both on shore and in the Estero.)

Bennett is also the first author of the false claims that Lunny was obliged to vacate the lease by 2012.  (See Russian River Times “What Was the Deal?”)  Bennett appears to have become obsessed with eliminating the oyster company, filing multiple complaints with multiple government agencies, relying on convoluted ‘interpretation’ of documents.

The classic was a September 2009 letter from Bennett, as Sierra Club Marin Group Parks Chair, to multiple government agencies, claiming that DBOC was violating its NPS permit by illegally selling condiments in violation of his Special Use Permit, thus becoming a restaurant!  Locally, this became known as the “illegal catsup complaint”.

The letter was addressed to California Department of Fish and Game, Marin Department of Health Services, State Board of Equalization and Point Reyes National Seashore. Bennett bases his complaint on the one-letter difference in spelling between complimentary (i.e. given for free) and complementary (i.e. adding to something), ignoring the fact that DBOC, by the specific terms of its NPS permit, was legally allowed to sell the produce of the family’s adjoining ranch.  (The complaints about the shellfish are dealt with here.) This is just one example of Bennett poring over reams of documents in an attempt to find some supposed glitch in language or definition to cause trouble for the Lunnys.

Bennett’s LinkedIn page shows that he ceased to serve as a Sierra Club chairperson in March 2011. The Sierra Club has declined to made any statements regarding his removal, but Congressman Pete McCloskey, author of the endangered-species act and supporter of the oyster farm, informed the Russian River Times that he had been told by the executive director of the Sierra Club that Bennett had been ‘fired.’

Bennett resurfaced with Neil Desai of NPCA, co-signing an August 16 2011 complaint to the Coastal Commission, in which Bennett signs as President of Save Our Seashore. The letter makes unsubstantiated statements like”…their oyster operations within the Estero are considered unmanageable by many in the public”, and “chronic lateral channel inclusions which can include amongst other things, humans, boats and loud music, which can prevent seals from using what would otherwise be suitable habitat.” These are not ‘facts,’ but allegations, none of which were accurate.

Investigation of Bennett’s involvement leads to reports in the Nation of an amazingly revelatory discussion with Tess Elliot and Kevin Lunny, wherein Bennett candidly admits to lying. The conversation is included in letters to the editor about Elliot’s September 9, 2008 Nation article, entitled “Scientific Integrity Lost in America’s Parks” Here are the key excerpts:  “Bennett made several confessions during our post-show chat. (Listen to the KQED program with Senator Feinstein, Gordon Bennett, Tess Elliot and others here) “The park knew it had no evidence when it made those charges,” he said, excusing his own malfeasance of lying to a 50,000-strong audience. He had also claimed that the Point Reyes Wilderness Act mandated the oyster farm’s removal in 2012. “You know the Wilderness Act says nothing about 2012,” I said. Again, Bennett acknowledged misleading listeners. “If you know these claims are false, why don’t you remove them from your website?” I asked. “The other side spreads misinformation, too,” he replied. I shamed Bennett for attaching the Sierra Club’s name to his false claims. He replied that he did so as a buffer against lawsuit. 

Bennett’s LinkedIn page also claims that he has been President of Save Our Seashore, which he claims has existed since 1994, yet he has not released any information about to the public about the structure of his organization. Perhaps not coincidentally, Save Our Seashore is the name of an organization formed in 1994 by the late Peter Behr, one of the true founders of Point Reyes National Seashore, who did much in creation of the pastoral zone that protected the ranches and oyster farm and brought them into the park. Here is a 1969 TV interview with Behr regarding the Seashore, and on his views about environmental campaigning.

National Parks Conservation Association’s Neil Desai, is also a key player and founder of the SaveDrakesBay coalition website, since taken down and parked on GoDaddy.com, replaced with yet another site. His participation in the smear campaign was previously documented in the Russian River Times, involving nationally released false statements, doctoring photographs and making allegations that he knew to be misleading.  Desai nationally distributed false information to deliberately distort public comments on the NPS EIS, authoring a notice that claimed four species at Drakes Estero, including the harbor seal, were endangered.  According to the Fish and Wildlife Service, a sister agency to NPS, none were endangered (or even threatened).

He has worked closely with Amy Trainer, current EAC director who replaced Fred Smith after the start of the anti-Lunny campaign who herself has originated many of the misleading statements, such as this recent patently false claim that the Lunnys are making millions from the oyster company.

That campaign in many ways resembles the worst of the California initiative politics. This is not surprising, given the involvement of Jerry Meral, whose LinkedIn page not only shows his role with EAC, but that he ‘managed’ the former EAC executive director, Fred Smith. It also displays his well-known relationship with other environmental groups, specifically his role as executive director of the Planning and Conservation League (PCL).  Meral resigned his position in 2002 after the defeat of Proposition 51. He then became active in local politics and with the EAC, contemporaneous with the start of their campaign against Drakes Estero.

 A blunt editorial in the December 5, 2002 Sacramento Bee documents Meral’s methods: finding a cause, assembling a coalition, claiming to be protecting the public’s rights, and logrolling the various factions involved while seeking funding to drive publicity and enact the deal.

The editorial closes: ”Meral always argued that the ends justified his means. But (in the case of Prop. 51) the voters weren’t buying. When the questionable means come to overshadow the ends, maybe it’s time to retire the method, too.”

When journalists fail to ask basic questions before reporting on a story based on press releases from advocacy groups, they do little to inform the public, and contribute greatly to polarization. Journalism is not sticking a microphone in someones face and reading press releases. It is facts, documents and history and informed questions. The job of journalism is to make sure it is not being spun, and to inform, not incite.  Tell the public the facts and what you have found out about ‘Who? What? When? Where? Why?’

Editors Note:

We are including in the on line version of the article the full text of the Elliot letter in the Nation, and would point out that the article and its letters, including those from then Sierra Club Executive Director Carl Pope and Dr. Laura Watt of Sonoma State, who wrote her PHD thesis on the working landscapes of Point Reyes, are well worth reading.  The editors removed Gordon Bennett’s response to Elliot because of factual errors.

 You may read all of the Russian River Times reporting on the estero here.

Nation Web Letter

I once shared a homemade Pugliese tart with Gordon Bennett in a Starbucks in San Francisco. We had been guests on a show on public radio, along with Kevin Lunny of Drakes Bay Oyster Company. Bennett had made several claims that I knew were false. As we exited the sound room, I suggested we keep chatting, and over slices of pastry I had packed in my purse, I asked Bennett how he could lie on air.

Speaking on behalf of the Sierra Club, Bennett alleged that Lunny’s oyster farm was a menace to seals and eelgrass. Each of us knew these claims were debunked in a report by the National Academy of Sciences, which found that the park had misrepresented its own data. There was no evidence supporting the claims that the park and Bennett had levied against Lunny for over two years. The academy report brought to light what many suspected: a campaign to portray the farm as a threat, and justify its closure.

Bennett made several confessions during our post-show chat. “The park knew it had no evidence when it made those charges,” he said, excusing his own malfeasance of lying to a 50,000-strong audience. He had also claimed that the Point Reyes Wilderness Act mandated the oyster farm’s removal in 2012. “You know the Wilderness Act says nothing about 2012,” I said. Again, Bennett acknowledged misleading listeners.

“If you know these claims are false, why don’t you remove them from your website?” I asked. “The other side spreads misinformation, too,” he replied. I shamed Bennett for attaching the Sierra Club’s name to his false claims. He replied that he did so as a buffer against lawsuit. “Why don’t you just tell the truth?” Lunny asked. “Then you won’t get sued.”

Bennett was quiet. I had an epiphany. This man, whose reckless behavior has shaped the Drakes Estero debate, does not hesitate to use the power of his title to mislead the public. For him, the end justifies the means. As he put it to me that day, wilderness is like a church. Bennett pursues his wilderness-church with religious zeal. When I wrote the article for The Nation I expected a response from Bennett–but the angry and libelous tone of his letter alarmed me. It is impossible to rebut the numerous false statements in this space, so I will pick only a few.

On May 5, the National Academy of Sciences announced that a Point Reyes National Seashore report “selectively presented, over-interpreted and misrepresented” studies of the oyster farm’s ecological effects. That day, Jon Jarvis told the press that he thanked the academy for agreeing with his conclusions. What on earth did he mean? The report explicitly dismissed his conclusions. Later I discovered that Jarvis had given the academy a corrected version of the park report, but had neglected to make this version public. The older versions of the report–each containing claims of harm–kept circulating, while the corrected version remained hidden. So Jarvis was pleased that the academy agreed with his secret retractions. But Jarvis did not stop there. “We agree with some conclusions in the academy report, and disagree with others,” he said. Everyone was confused. The academy had dismissed each of the park’s claims, and Jarvis’s only challenge was a tangential point that was not even in the academy’s charter, concerning whether or not native oysters existed in Drakes Estero and therefore influenced its historic baseline ecology. Jarvis said they did not. Yet the waterside shed where Lunny sells his oysters is a stone’s throw from a gigantic midden, a heap of shells left as proof that native peoples enjoyed the estero’s salty bounty.

In his letter, Bennett makes an outlandish reversal, claiming it is the academy–not the park service–that “selectively presented, over-interpreted and misrepresented” evidence. His proof? A two-page explanation written by a man with a math degree from the University of Pennsylvania that is so flawed it is laughable.

Meanwhile, he attacks Goodman, the biologist who uncovered the park service’s misuse of data. Bennett claims Goodman is not a biologist. In fact, Goodman graduated Phi Beta Kappa from Stanford University with a BS in biology, earned his PhD in zoology, with a specialty in neurobiology, from UC Berkeley, and was a tenured professor at both of those schools for twenty-five years. He is a former chair of the life sciences board for the National Academy of Sciences. Each of Goodman’s allegations was borne out by the academy’s report.

Readers must decide whether Bennett’s claims hold water. Readers must decide who is making ad hominem attacks. I have suggested that Jarvis, now approved by the Senate for directorship of the National Park Service, has shown disregard for science. His loyalty to the troops trumps his loyalty to the truth.

Tess Elliott

Bolinas, CA

Oct 4 2009 – 2:14pm

 

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What Was the Deal?

 By Sarah Rolph

The story told by anti-oyster farm activists is that the Lunnys reneged on a deal. These activists have linked that story with another story about “wilderness,” claiming that the public was promised Drakes Estero would be wilderness in 2012. In fact, it’s the Park Service and those activists that changed the deal on the Lunnys and the public.

The oyster farm’s onshore operations are governed by a 1972 Reservation of Use and Occupancy (RUO, a leaselike agreement). The original RUO provided for an initial 40-year term. The RUO has an explicit renewal clause, so that onshore operations could continue beyond 40 years as long as the oyster farm has a valid California Fish and Game Commission (CFGC) lease in Drakes Estero. The oyster farm’s CFGC lease is currently valid until 2029.

In 1976, Congress considered designating Drakes Estero as “wilderness.” But the Department of Interior and the Park Service told Congress that Drakes Estero could not become a wilderness until California gave up its rights to lease Drakes Estero. Congress agreed, and it removed the wilderness designation for Drakes Estero in the 1976 Point Reyes Wilderness Act. Legally, Drakes Estero cannot become wilderness until California gives up its rights (which it has not done).

For more than 30 years after 1972, the Park Service supported continued and even expanded oyster farming in perpetuity. For reasons the Park Service has not explained, however, its position changed completely after the Lunnys purchased the oyster farm in early 2005.

 Early Support for Oyster Farm Upgrade

Just 17 years ago, when the Johnson Oyster Company wanted to upgrade on-shore operations at what is now Drakes Bay Oyster Farm, the Park Service was in favor of the project. Superintendent Neubacher backed the plan with a letter to the loan officer at the Bank of Oakland.

In his November 22, 1996 letter, Neubacher assured the bank: “As stated previously, the NPS would like the improvements to occur. In fact, the NPS has worked with Marin County planners to insure the facilities attain county approval. Moreover, the Park’s General Management Plan also approved the continued use of the oyster company operation at Johnsons on Drakes Estero.”

In 1998 Neubacher conducted an environmental assessment (EA) for the upgrade project that found the project would have “no significant impact” on the environment. There was no discussion of a mandatory end-date of 2012, and no concerns about legal issues or wilderness status. None of the environmental groups now calling for DBOC’s eviction opposed the plan.

 Bait and Switch

According to Kevin Lunny, at the time of purchase Neubacher promised (but not in writing) that he would put three SUPs into the name of DBOC – one for the septic system area, one for the water well and pipeline area, and one for the ancillary use area (2.2 upland acres surrounding the 1.4 acre RUO).

“Don kept his word for the septic and the well SUPs,” says Lunny. “But the Ancillary Use SUP, which had been expired and never renewed and never charged or paid for by the Johnsons since 1997, was not put into DBOC’s name as promised.”

After the Lunnys purchased the oyster farm and spent a small fortune cleaning up the operation, instead of putting the Ancillary Use SUP in DBOC’s name, Neubacher rewrote this SUP to include a new clause requiring that the oyster farm vacate the premises in 2012. Explains Lunny, “Don attempted to contractually remove our chance for renewal seven years before the expiration, cancelling the renewal clause we had spent months talking about.”

 NPS Director Bomar Intervenes

Given the extreme change in the agreement, this was a permit the Lunnys could not and did not sign. The Lunnys were supported in this decision by both Senator Feinstein and then-director of the National Park Service Mary Bomar.

Senator Feinstein became involved in early May, 2007 at the request of the Marin County Board of Supervisors. The Supervisors had become alarmed at the false science created by the NPS and the false rumors Neubacher spread about the Lunnys.

At a meeting in Olema, CA on July 21, 2007 (attended by Senator Feinstein, Marin County Supervisor Steve Kinsey, NPS Director Mary Bomar, NPS Regional Director Jon Jarvis, Superintendent Neubacher, DOI Solicitor’s Office attorney Molly Ross, Dr. Corey Goodman, and Kevin Lunny), Director Bomar removed Neubacher from the negotiations and ordered Jarvis to deal directly with the Lunnys.

Bomar specifically ordered Jarvis to remove the surrender clause added by Neubacher. The Jarvis rewrite of the SUP added multiple unjustified restrictions and new assertions of jurisdiction, but once the surrender clause was removed in 2008, the Lunnys signed the permit, considering it the best option available.

A Field Solicitor’s Opinion

The one document that is often used to support claims of non-renewability is a 2004 local field solicitor’s opinion, a letter erroneously concluding that the RUO could not be renewed. That opinion was provided to the Lunnys in early 2005, after they had taken over the oyster farm and spent over a quarter million dollars to clean up the operation.

Department of Justice lawyers have admitted in federal court that DBOC was not given the opinion until 2005, after DBOC had taken over. Yet the DoJ lawyers, the NPS, and the wilderness activists handle this fact dishonestly. They told the court and they tell the public that “Lunny was provided the opinion before escrow closed.” The close of escrow depended on NPS putting all three SUPs into DBOC’s name, and NPS failed to uphold their promise to do so. Because NPS failed to issue the third SUP, escrow never formally closed, but with the signing of the permit in April of 2008 it was considered as good as closed.

An Unexplained Shift

From the beginning of his tenure as Superintendent up until 2005, Neubacher appeared to the public to be managing the Estero as a responsible superintendent of Point Reyes National Seashore, working with all constituents concerning the fate of the oyster farm.

The public has not been told what changed in 2005. But clearly, beginning then, the Park Service at Point Reyes departed from responsible management and began acting in service of an agenda that has not been shared with the public. Regardless of one’s views on wilderness, oysters, or commercial farming, one ought to be alarmed when a government agency decides to renege on deals and rewrite history.

The public’s deal with the Park Service is that we will give them our tax dollars and they will spend them in accordance with the law. Like any citizen and taxpayer, the Lunnys had every right to expect that Neubacher and Jarvis and NPS would act lawfully. The Lunnys and the community will not rest until this injustice is corrected.

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Drake’s Estero IG Report: Investigating the Investigators

The Interim Director of the Interior Inspector General, Mary Kendall, recently issued a report seemingly exonerating the National Park Service of scientific misconduct during their recently abandoned Environmental Impact Survey (EIS) on Drakes Estero.  The original complaint to the IG centered around the NPS’ ‘importation’ of data. NPS used data from a 75 hp. 2 stroke Kawasaki Jet Ski measured in 1995 rather than actually measuring the Drakes Bay Oyster Company’s (DBOC) late model 20 HP 4 stroke outboards, as required by NPS policy.  The reports finding of no misconduct, validating NPS and its consultant’s ‘science’, has played a key role in NPS court actions regarding DBOC, who were seeking injunctive relief against the closure of the oyster farm, which was granted on appeal to the Federal 9th Circuit Court of Appeals on 25 February.  The court found that “there are serious legal questions and the balance of hardships tips sharply” in the farm’s favor.

drakes-estero-from-bay-final-2

This earlier Russian River Times graphic shows the effect of the use of the imported data vs. measured data, which the IG failed to investigate.  It expands the sound footprint to cover virtually all of the seal haul out sites in the entire Estero. The values in this graphic are corroborated by the recordings from the FAA/NPS Volpe microphone, cited in the NPS DEIS, which did not pick up the sounds which would have been produced had the imported data been correct, but did pick up the actual sounds when the DBOC boat passed by in the channel immediately to the left of the microphone, substantiating the data analysis in Dr. Goodman’s complaint.                                                        (Click image to expand)

The Russian River Times examined this most recent investigation by looking at a key claim of the source of the data, which can be found on page 10 of the IG report.  The IG Report states:  VHB’s acoustics representative and director of Air Quality and Noise Services spoke with us regarding the sound-level data used in the DEIS. He informed us that he possessed more than 40 years of sound and acoustics experience and that he was the project technical advisor for the DEIS and reviewed its soundscape sections for accuracy. He stated that during his research for this project, he personally located the NU 1995 report on the Internet and subsequently selected the watercraft measurements from the NU report to represent Company boats, which was based on information collected by VHB staff members during Company site tours.”

It would seem that, given the claims about the Internet being the source of the data, the IG would have at least done its own confirmatory web search and published the web link for the data.  However, there is no such website accessible to a public search, though this does not preclude that the data may have been blocked against public search engines, a tactic the NPS has used in the past in reports on Drake’s Estero.  In fact, DBOC itself found the data after requesting the information from both Noise Unlimited and the New Jersey State Police, who no longer had the report.  It was eventually provided by the Personal Watercraft Association, who played a key role in NPS activities on boat and jet ski or Personal Water Craft (PWC) noises, dating back to as early as 1994.

One of the key factors in most investigations would be to determine the chain of command in the matter, something on which the IG report is silent.  However, the Russian River Times had no problem in locating the appropriate document, the Department of the Interior Department Manual, Chapter 12 , which clearly identifies the NPS Environmental Compliance Division as the source of and focal point for all matters relating to National Environmental Policy Act, and provides guidelines on EIS and Environmental Assessment (EA) actions.  This point is significant, as Jake Hoogland, formerly in charge of the NPS Environmental Compliance Division, and now in charge of NPS matters for VHB, was part of the team that visited Drakes Estero, and was therefore aware of all matters relating to NEPA.

It appears from the report that the IG made no attempt to investigate the sources or rational case for selection of the PWC data, as protested by Dr. Goodman (the source of the complaint in the IG report) which would have lead them to the Personal Watercraft Association, whose director was interviewed by the Russian River Times for an earlier column in which the director stated that his organization had worked extensively on sound issues with the NPS and “there is no controversy over the methods used to test for boat sound, which are well known to state and federal regulators,” and went on to state that they are used for law enforcement and follow established sound standards. Once again, the IG report makes no reference to the actual standards of measurement, but unquestioningly accepts the NPS claims at face value.

If the IG had done meaningful investigation, it would then have lead them to the Bluewater v. Kempthorne (now v. Salazar) case, leading back to the original April 2000 NPS rulemaking on PWCs.  Equally significant, if the IG had then examined NPS involvement, they would have found that Hoogland, both in his role as chief of NPS ECD and as a representative of VHB, had written extensively on the matters of such lawsuits and their impact on policy, including a presentation to the George Wright Society in 2011, clearly demonstrating NPS and Hoogland’s long involvement with boat sound matters. (Abstract attached at end of article.)

The court action lead the Russian River Times investigation to the 2004 Gulf Islands EA, Personal Watercraft Use Environmental Assessment report examined by the Court in Bluewater v. Salazar and, on p253, located the reference to the Noise Unlimited report, but with no web link. (The bibliography also lists numerous data sources for boat and PWC noise including links to the Personal Watercraft Association)  However, the Court  dealt with the NPS EA document harshly, stating in its 2010 ruling that NPS’ EA was: “conclusory, internally inconsistent and failed to adequately explain the connection between objective facts and the conclusion reached” and the determination of the level of impacts considered in the various options are “profoundly flawed” and that “While the Court will defer to an agency’s exercise of expertise, the `Court will not defer to the agency’s conclusory or unsupported assertions.’

What is particularly interesting is to compare the 2004 Gulf Islands EA with the Drakes Estero EIS.  In the Gulf case, NPS argues that the modern advances in PWC sound and pollution justified allowing them to operate in areas of pristine beaches which is also the home to many threatened, endangered and special interest species, (see US Fish and Wildlife comments p230,) whereas in the Drake’s Estero case, NPS argues the exact opposite, make conclusory statements that the low horsepower DBOC boats are causing harm.

More importantly, the Gulf EA clearly shows that NPS knew it had no credible scientific basis for importing the 1995 PWC data (two stroke 75 h.p. at full throttle) and presenting it in the Drakes Estero EA as if it were representative of the current much quieter current DBOC boat data (four stroke at 20 h.p.).   The IG utterly failed to address the dramatically misleading effects caused by this exaggeration even after they cited a report where the previous IG found, in an almost identical level of exaggeration, that a Point Reyes National Seashore scientist had deliberately misquoting a USGS report on sediment from oysters in Drakes Estero and importing old data from a Japanese oyster farm and presenting it as if the data had been collected in Drake’s Estero.

The nature of the Court’s conclusions in Bluewater, that it failed “to explain the connection between objective facts and the conclusion reached”, generally mirror the nature of the complaints made by Dr. Goodman to the IG.   In light of the recent 21 February 2013 House Resource Committee report ‘Holding Interior Watchdog Accountable’, which claims failure to properly investigate complaints and to fulfill it’s watchdog role, the Times is left with two options to explain the IG’s failure to uncover any of the damning evidence found by the Times.  Either (1) the IG investigation is incompetent, and they merely took the NPS responses on their face with no proper investigation, or (2) the final IG report simply omits information that would be damaging to the NPS and the Department of the Interior, and that Interim IG Mary Kendall, as the committee implies, has essentially abandoned her watchdog responsibility.

The recent Public Employees for Environmental Responsibility (PEER) survey, ‘Rising Doubts on Independence of Interior Inspector General’, which indicated that 40% of IG employees do not believe the IG to be fulfilling its investigative role, would indicate the latter. As one respondent to the survey put so clearly, “Wake up and quit trying to ‘get approval’ from DOI [Interior]…we have a job to do.”  Otherwise, the IG report will stand as just another in a long line of NPS and DOI investigations of themselves, costing the taxpayers literally millions of dollars, that are nothing more than whitewash and cover-up.

Footnote:  Jeff Hoogland/VHB 2011 George Wright presentation abstract

Potato Chips or Pornography: Defining Impairment for the National Parks

Jacob J. Hoogland, NPS Market Leader, Vanasse Hangen Brustlin, Inc (VHB), Williamsburg, VA

     While the “no impairment” mandate of the National Park Service Organic Act has been in effect since its enactment in 1916, it is only recently that Federal Courts have turned their attention to the interpretation of what that phrase means. Recent cases dealing with both snowmobile operation and personal watercraft use within units of the National Park System have added to the case law on this topic. This paper examines the relationship between the roles of law, policy and science in determining when impairment occurs. The roles of science and regulation in interpretation and applying the standard are compared and evaluated.”  (emphasis added)

Posted in Oyster Farm | Tagged , , , , | 1 Comment

Salazar Oyster Farm Decision Hides from History and Abandons Science

 

By Sarah Rolph

After seven years of repeated National Park Service (NPS) allegations that Drakes Bay Oyster Farm harmed the environment, the multimillion-dollar NPS Environmental Impact Statement (EIS) created to support those claims was quietly abandoned by Interior Department Secretary Salazar and NPS Director Jarvis, raising fresh questions about the propriety of the process.  Secretary Salazar claims his decision against the oyster farm was based on sound legal interpretation, yet he cited no legal opinion or analysis document. The Salazar decision was a complete reversal of established NPS policy.  And it directly contradicted previous NEPA assessments of the very same oyster farm.

Just fourteen years ago, in 1998, Point Reyes National Seashore (PRNS) officials supported plans to upgrade the shore operations of the oyster farm (then owned by the Johnson family).  This was to be a major construction project, creating a new, modern visitor and education center that would also house the oyster processing facility.

NPS held that a full EIS was not necessary for the upgrade, and instead created an Environmental Assessment (EA), pursuant to the National Environmental Protection Act (NEPA).  The EA was fully approved by Marin County officials, who jointly with the NPS issued a Negative Declaration under the California Environmental Quality Act (CEQA) as being consistent with their coastal planning policy.  The local community was supportive, including local environmental organizations.  A Finding of No Significant Impact (FONSI) was issued by NPS, and the project was approved.  Sadly, Mr. Johnson died before the project could be completed.

The contrast between the NPS 1998 NEPA process and the NPS 2012 NEPA process could not be more stark.

The NPS 1998 EA cited support for aquaculture in the NPS General Management Plan (GMP) for Point Reyes National Seashore, cited the county approvals as significant, stated that “no special-status species are found in the project site area,” and made no mention of a sunset date for the oyster farm—in fact, the EA cited as an issue to be addressed “the long-term status of the lease agreement past 2012.”

The NPS EIS ignored the existing GMP, ignored the county, contained an entire section on endangered species it claimed would be impacted (most of which do not even exist in the estero), and alleged incorrectly that existing law required that the lease agreement not be extended past 2012.

No public statements have been made about what, if anything, in law, policy, and science has changed since 1998 to justify the Park Service changing its position from strong support of the oyster farm to its current position that the law requires it to be shut down.

While NPS was silent as to its reasons for the change, its new position was supported and promoted by a vociferous group of wilderness activists, often citing the same bogus science.

For example, the National Park Conservation Association (NPCA), sent an online mass mailing to its members in October 2011 saying “Drakes Estero is home to several endangered plants and animals, including eelgrass, harbor seals, and birds including Black Brant and Great Egrets. Yet industry wants the waters for its motorized oyster boats…”

The definition of an endangered species is, of course, a matter of Federal law.  None of the species named here were or are actually endangered—the claim was fabricated.  In fact, eelgrass has doubled in Drakes Estero during the past 20 years, and according to federal agencies, harbor seals are at near-carrying capacity in Drakes Estero.  It’s a gross exaggeration and deliberate distortion to say that “industry wants the waters,” for motorboats or anything else.

If the oyster farm did harm the environment, it would be a simple matter to report this to the appropriate authorities—the California Fish and Game and/or the NOAA National Marine Fisheries Service (which is responsible for wildlife protection).  This has never happened.

National Academy of Science (NAS) reviews, directed by Congress, found NPS claims of harm to be without merit.  In 2009, the NAS found that NPS scientific documents “selectively presented, over-interpreted, or misrepresented” data.  In 2012, the NAS review of the NPS Draft EIS found “a high level of uncertainty” with the document’s impact assessments for harbor seals, the coastal flood zone, water quality, soundscapes, and socioeconomics. The NAS determined  “there could be reasonable, equally scientific, alternate conclusions for impact intensity.”  That’s a very polite way of saying that the document is not worth the paper it’s printed on.

Nevertheless, groups such as NPCA relentlessly worked to claim otherwise with misleading advocacy campaigns, even going so far as to flood the public review process for the EIS with non-substantive comments.

In November 2011, the NPCA and three other groups sent online mass mailings to their members encouraging them to “take action” by clicking to send a form letter to NPS.  The form letter was sent directly into the Park Service comment database, thanks to sophisticated software from Convio, an Austin, TX firm that provides what it calls “constituent engagement solutions” to “help organizations translate their mission into online or integrated marketing programs that successfully acquire, engage, and convert individuals into lasting supporters.”

While these programs may be appropriate for fundraising and some kinds of advocacy, the use of these systems to populate a NEPA public-comment database is troubling.  The public comment process is meant for informed, substantive comments on pending federal activities.  The NEPA guidelines state:  “Commenting is not a form of “voting” on an alternative. The number of negative comments an agency receives does not prevent an action from moving forward.”  Not only do NEPA guidelines specify that the process is not intended to be a vote, it also makes it clear that form letters must be treated differently from substantive comments.

Yet the activists conducted a campaign to create thousands of form letters.

What’s more, they did this with emails that were highly misleading.  For example, one begins:  “The National Park Service wants to hear from you! Should they preserve the only marine wilderness on the West Coast or commercialize it?”  One would never know from this that the oyster farm in question already exists, and has for eight decades.

Nor would one know from this pitch that this is a request for a NEPA comment.  Significantly, the mass mailings do not even mention that the point of the solicitation is a comment on an EIS, much less suggest that recipients read and consider that document.

Yet the results of the mailings were trumpeted as if they were informed, substantive comments.  On March 1, 2012, NPS issued a press release saying it had “posted 52,473 public comment letters.” Minutes later, the wilderness activists issued a press release that said:  “Of the 52,473 public comments submitted on the draft Environmental Impact Statement (EIS), 92% (48,396) supported ending the private commercial use of the estuary and designating full protection for America’s only marine wilderness on the West Coast.”  Most of these 48,396 comments were exact-duplicate form letters sent via the Convio campaign.

The Park Service and its allies did not act in good faith.  As independent scientist Dr. Corey Goodman said when first interviewed by the author in 2009, “I just watch it evolve month after month and I realize my government—I’m sure there are a lot of fine individuals—but overall, my government doesn’t have any ethics when it comes to scientific data, and doesn’t actually care about scientific integrity; it just cares about winning and getting its way.”

That Goodman statement was hauntingly prescient.  The NPS falsified science, abused the NEPA process, disregarded its own policies and guidelines, and pretended that the 1998 EA—which should have been a baseline for the EIS—did not exist.  DOI and NPS spent more than two million taxpayer dollars to prepare an EIS that was abandoned nine days before the Secretary made his decision to close the oyster farm.  It is undeniably clear:  Secretary Salazar’s misguided decision hides from real history and abandons responsible science.

Sarah Rolph is a freelance writer based in Carlisle, Massachusetts.  A California native whose favorite place is Point Reyes, she is writing a book about the Lunny family. Her website is www.sarahrolph.com

John Hulls contributed to this article. 

Posted in Coastal Ecology, Oyster Farm, Uncategorized | Tagged , , , | 2 Comments

Environmental Justice in West Marin?

Rosie's crew

Rosie the Riveter and her very diverse crew were a vital part of the war effort, just as the oyster workers are a vital part of West Marin sustainable farming

A visit to the National Park Service ‘Rosie the Riveter’ historic site in Richmond, California tells the inspiring tale of how America united in a national purpose.  The World War II effort changed the nation by bringing together ethnic communities and ushering women into well-paying jobs in the workforce.  “Rosie the Riveter” celebrates the growing movement that would accelerate racial integration, strengthen the institutions that would bring safety and health to the workforce, as well as establishing fair treatment of labor.  In Point Reyes, NPS that has betrayed all that their Rosie the Riveter memorial stands for in its continued attempts to erase a multi-generational ethnic community that predates the park and has thrived in the practice of sustainable food harvest for decades.

There is no better example of the hypocrisy of Salazar’s recent decision than a recent private meeting held by NPS with the oyster workers in Point Reyes.  A two-hour recording reveals a community deeply worried about the future and two woefully unaware representatives from Salazar and one from Point Reyes National Seashore, who were blindly ignorant of the true impact that Salazar’s decision would have on the community. What is most telling about this meeting is that, despite all law, regulation and policy and the National Environmental Policy Act concerning environmental justice, it was the first meeting with the very stakeholders who would be most impacted by Salazar’s decision: the oyster workers themselves.

It is even more telling that the Secretary’s first engagement with the oyster workers was made after his decision.  The President’s Executive Order 12898 and NEPA are very explicit, a major point of the Executive Order stating all stakeholders should be engaged as soon as possible in the process and that Agencies should recognize the interrelated cultural, social, occupational, historical, or economic factors that may amplify the natural and physical environmental effects of the proposed agency action. These factors should include the physical sensitivity of the community or population to particular impacts; the effect of any disruption on the community structure associated with the proposed action; and the nature and degree of impact on the physical and social structure of the community”. Review of Executive Order 12898 and the Council on Environmental Quality/EPA documents make it plain that of the five major points in the Executive Order, Salazar has violated not one, but all of them.

The November 29, 2012 Secretarial decision to reject a renewal permit to the oyster farm is the last of a long series of NPS actions that have converted Drakes Estero into a regulatory free-fire zone for NPS, where neither law, regulation nor policy seem to apply.  Under Jon Jarvis, as Pacific West Regional Director and now, Director, NPS, and Park Superintendent Don Neubacher, (now promoted to Yosemite) NPS dealing with the communities of West Marin has been anything but transparent, open and honest.

Despite repeated complaints from the community, overly aggressive law enforcement by Park Rangers led to an initial 2003 incident where an off-duty ranger hosed down passing motorcyclists on Highway 1, leading to an altercation resulting in NPS losing a lawsuit brought by the motorcyclists.  This was then followed by a 2004 incident where the same ranger and a fellow officer, off Seashore property, handcuffed two teenagers and pepper sprayed them in the face and eyes.  This eventually resulted in a $50,000 settlement, but most damaging in the eyes of the small West Marin communities was the fact that then-superintendent Neubacher lied at a public meeting, claiming that he was asking the Marin County DA to investigate the incident, when in fact he was asking the DA to bring charges against the teenagers.  The community was justifiably incensed.

The Park Service actions are extensively documented by Pulitzer Prize winning editor Dave Mitchell in the Point Reyes Light and on his blog, Sparsely Sage and Timely. These two incidents were extensively reported in the local press and seeded a great deal of community distrust in the Park Service.

More closely related to the current oyster situation, in 2004, the Seashore had scoping meetings on the long-overdue update to the 1980 General Management Plan.  These scoping meetings were vague in stating their actual objectives, and but the proposals put forth by NPS appeared to be an attempt to change the balance of the long-standing relationship between pastoral, recreational and natural uses of the Seashore.  This change can be attributed to then-Superintendent Neubacher, increasingly isolated from the community after the law enforcement incident, and a ‘kitchen cabinet’ of three or four individual members of segments of the environmental community (as identified in the 2008 IG report).

The proposed scoping changes brought out the community with virtual ‘pitchforks and torches’ to protest at the meetings, as one local noted.  The GMP proposal was dropped, and the last mention of it is the Seashore’s 2008 GMP newsletter, which handled the issue of mariculture by wholly excluding it from the report – though the report does mention the Socio-Economic study required both for the GMP, and the current Environmental Impact Statement.  The March 2012? DOI/Atkins peer review of the NPS’ Socio Economic shows that the study was yet another NPS expenditure designed to mislead and confuse the public.  Despite the importance of agriculture and mariculture to West Marin, the study made absolutely no mention of the oyster farm, the largest single employer in West Marin next to the Park Service itself.   According to Atkins Peer Reviewer Dr. James Wilen, a UC Davis professor,   “the socioeconomics reviewer (Wilen) found that the methods used to conduct the economic assessment do not follow accepted economic impact analyses practice…” and “economic impacts are assessed using qualitative judgments instead of quantitative measurements, leading to ‘unsubstantiated inferences and interpretations of impacts that are difficult to judge reasonable...”  Once again, NPS research was subordinated to an undisclosed NPS agenda – eliminate the farm, its contributions to community and the economy – and the skilled shellfish workers as well.

Wilen found that the draft EIS derives qualitative impact assessments with minimal comparative data and undefined criteria, leading to conclusions that are ‘vague at best, and misleading at worst.’  Wilen’s concerns directly mirror the concerns of Dr. George Goldman, a planning expert at UC Berkeley, interviewed in a November 20, 2008 column in the Point Reyes Light entitled, ‘Statistics, Damnable Statistics and Lies.”  Goldman noted gross errors in the use of the software that created the plan and concluded that the report “bears little relevance to actual socioeconomic impact and seemed designed to make park policies look good.”  This Atkins Peer Review report was commissioned by NPS itself, in preparation of the Environmental Impact Statement to renew and extend the oyster farm permit.

In January, 2010, Point Reyes Light Editor, Tess Elliott submitted a DQA Complaint to Secretary Salazar to correct errors regarding the omission of economic data from oyster farming in Drakes Estero and related issues.  Copies of the Complaint were provided to Superintendent Neubacher, NPS Director Jarvis, NPS Deputy Science Advisor John Dennis, Deputy Assistant Secretary of the Interior Will Shafroth and the then Chief of Staff to the Secretary, Tom Strickland.  It was also provided to several elected officials and the Inspector General’s Office at DOI.  The Complaint detailed the failures and distortions in the NPS-funded report “Economic Impacts Study,” by BAE and requested corrections to the factual exclusions and compliance with various identified NPS Management Policies.  It also inquired about a previous Point Reyes Light DQA filed in 2007, which had not yet been addressed by DOI. In both cases, NPS failed to respond as required by law and policy. They simply ignored the petitions.

During the Secretary’s visit last month, DOI and NPS continued its exclusionary, arbitrary way of doing business in Point Reyes. The Secretary and NPS appear to have modified the definition of a critically important term — “stakeholders, so that only ‘pre-approved’ stakeholders were invited to the community ‘stakeholder’ meeting at Park Headquarters with the Secretary when he visited Point Reyes on November 21, 2012.  People and organizations like long-time and well-respect local environmentalist, Ken Fox, of the Tomales Bay Association, Marin Conservation League and Phyllis Faber, co-founder of the Marin Agricultural Land Trust, and other community groups were simply not invited. Faber, a local scientist and founding member of the California Coastal Commission attempted to attend the meeting, but this white-haired, tennis shoe wearing environmental icon was physically blocked by four NPS Park Rangers.

To return to the meeting with the oyster workers, if DOI and NPS had followed law, policy and regulations required in a situation like this, they would have had a full understanding of not only of the oyster workers, but all of West Marin and the true nature of the science and public support for the farm and its long-time oyster workers.  The DOI has been allowed to conduct both the GMP and EIS process in a complex, stove-piped manner that has avoided all accountability for egregious violations of law, policy and procedures.

Secretary Salazar can’t claim that he did not know about such problems in the agency. Inspector General Devaney was asked by Congress to address the “institutional culture of managerial irresponsibility and lack of accountability” in the Interior Department. In his 2006 Congressional testimony, he described a major problem within DOI, namely, “intricate deviations from statutory, regulatory and policy requirements to reach a predetermined end.”  This mirrors exactly the rogue actions of NPS in the Drakes Estero case today, riding roughshod over the rights of the oyster farmer, the oyster workers and the community at large.  It’s time to send a strong message to Secretary Salazar and NPS Director Jarvis:  such behavior will not be tolerated, and remove them from management of the estero and the pastoral zone, and replace it with a separate park management body.  If that’s unacceptable, then it’s time for the White House and the President to provide leadership at Interior and the NPS who will respect the law and the citizens of West Marin.

 

Posted in Oyster Farm, Uncategorized | 2 Comments

Salazar Brings Closure to the Oyster Farm, but not to the Community.

A walk down the main street in Point Reyes reveals a community shocked and deeply angered over the closure of the historic oyster farm in Drakes Estero.  During the seven-year conflict, and despite repeated promises to do so long before now, last week Interior Secretary Ken Salazar finally visited the oyster farm.

Secretary Salazar must have told his staffers to get him in and out of Point Reyes as quickly as possible in his visit, one supposedly meant to decide the fate of the Lunny family’s operation. Contrast that with Prince Charles, who came to see W. Marin’s thriving sustainable agriculture, sat down to a lunch with many of the farmers and ranchers, with Kevin Lunny seated next to him.  Prince Charles even went and had a pint with the locals at the Western Saloon.  Salazar never walked down Main Street, but if he were to do so today, he would hear a radically different story than he heard during last week’s carefully choreographed visit.

According to surveys conducted by the Marin Independent Journal, about 84-87% of local and area residents consistently favor continuation of the oyster farm. However, during Secretary Salazar’s eleventh-hour visit to West Marin, he allocated only a half an hour to meet with three specific groups: the Drakes Bay Oyster Company, the National Park Service, and “Stakeholders.” Curiously, the “Stakeholder” meeting was invite-only, and largely represented anti-oyster farm environmental groups. (In fact, MALT Founder and environmental icon Phyllis Faber was barred from entering the Stakeholders meeting to discuss the oyster farm. Local political representatives were also not invited. Surely, Secretary Salazar has a curious interpretation as to the Department of the Interior definition of a Stakeholder.  There is a suspicion that NPS arranged for Salazar to hear from only the 13-16% of the public represented by the oyster farm opponents, mostly a coalition of environmental groups.

The overwhelmingly pro-oyster figures mirror the substantive public comments vs. cut-and-paste one-click comments received on the Draft Environmental Impact Statement (EIS).  When the ‘one-click’ web responses are separated out, as required by the National Environmental Policy Act (NEPA) and the EIS contractor, 90% of the EIS comments favored the oyster farm.  Despite the actual data, NPS claims 90% support for evicting the oyster farm, based solely on a ‘click-through’ web survey by the Sierra Club, NPCA and others under a combined contract with Convio. As a company that serves non profit causes, Convio set up a program that allowed its clients (including NPCA and Sierra Club) to send a mass email to their membership lists. That special email imploring readers to click on a link to “Take Action” – that allowed them to immediately submit a copy-and-paste anti-oyster message to the EIS process. Giving such one-click, copy-and-paste submission the same weight as substantive, issue-based comments violates NEPA regulations. It is even more telling given the fact that Jake Hoogland, who visited the oyster farm and headed up the project for VHB, the contractor on the $2 million dollar EIS, had previously headed the NPS program for NEPA compliance and developed the public comment program.

None of the national organizations who commissioned the massive anti-oyster comment program have disclosed the nature of the program, how the lists were compiled or how many of the people had actually visited the oyster farm or if they even knew they were responding to a Draft EIS.

What is clear from NPS records is that the majority of the one click responses came immediately after Neil Desai of NPCA sent out a national bulletin stating that the oyster operation was threatening four endangered species, an assertion disproved by federal and state agencies in their substantive comments to the draft EIS. NPCA, Sierra Club and other groups found a clever way around the EIS rule, which disallowed bulk comments. Because they had access to this specialized Convio software/service, they were able to collect bulk comments this way and be counted as individual comments to the EIS process.  In contrast, the Lunnys collected a petition signed by over 7700 people who had actually visited the oyster farm and attempted to submit it to the EIS process. The NPS rejected the oyster farm’s petition from actual physical farm visitors, but allowed the anti-oyster crowd to submit what amounts to a fancy electronic petition of people who may never have even heard of the farm, or who may not have known what an EIS was.

Image

On his visit to the oyster farm,  Salazar and Kevin and Nancy Lunny hold a perfectly normal conversation in front of the oyster tumbler. Nancy is holding a sound meter, which was used to measure the levels to compare with the values in the Draft EIS and Final EIS, which were based on ‘imported’ data rather than the actual measurement required by NPS policy.   At the NPS reported sound levels, which would have been clearly audible over a mile away, this conversation would have been impossible.  (Photo courtesy of Linda Petersen, West Marin Citizen)

The photograph captures the feeling of many in West Marin; that the realities of our community simply don’t exist as far as NPS and Salazar are concerned, and that the Secretary’s visit was just a pro-forma sham before giving in to the NPS and the anti-oyster faction. Salazar never met with the majority of the stakeholders, nor did he discuss the matter with local government.  Despite having requested to meet, Marin Supervisor Steve Kinsey would not have had a chance to speak to Salazar if Kevin Lunny had not given up some of the half-hour allocated to the oyster farm visit. This continues the pattern of NPS’ failure to consult with all the stakeholders and government of gateway communities, despite clear requirements in DOI policy.  Notwithstanding, Point Reyes National Seashore officials arranged a ‘community’ meeting comprised solely of members of the anti-oyster farm environmental coalition.

For many in West Marin, the question of who is a stakeholder and who represents the community was underscored by Salazar’s meeting at NPS headquarters. The coalition brought in a ‘celebrity’ scientist, Sylvia Earle. Neil Desai, of NPCA, announced that she would be available to the press after her presentation. She was allowed to speak to Salazar at length, but apparently has done no research in the Estero, had not met with the Lunnys, and from her statements was clearly unaware of key facts (such as the Seashore denial of permits to a federal Sea Grant funded program working with the Lunnys on re-establishing native oysters in the estero).  However, Phyllis Faber, a well-known local scientist who has conducted substantial research in the area, co-founded Marin Agricultural Land Trust (MALT) and was instrumental in the creation of the California Coastal Commission, was physically barred from the meeting by four park rangers. This most unfortunate NPS behavior was actually recorded in a photograph in the Nov 29th West Marin Citizen. (It only shows two of the rangers)  Faber’s contributions to MALT alone, which has preserved thousands of acres of pastoral land adjacent to the Seashore, should have given her a seat at the table.

And the stakeholder issue gets worse.  In the Drakes Estero EIS, NPS claimed significant harm from sound impairment due to the oyster farm. The draft EIS stated that the noise levels from the oyster operation was ruining the wilderness experience for the customers of the commercial kayakers who provide trips in the estero. (One would think these kayakers would certainly be defined as stakeholders.) Not only did the NPS fail to consult the kayak companies to ask about sound impairment on their tours, but NPS actively ignored the contrary information provided directly to them by the kayak companies. The kayak companies wrote a comment letter to NPS regarding the draft EIS stating that the Park (a) had failed to consult the kayakers themselves regarding the claims about kayaker experiences, and (b)  was deliberately misrepresenting the fact that the oyster sounds and operations had no impact on their kayaking experience. Not only did NPS fail to ground-truth their accusation, they failed to reexamine their position after being provided with clearly contradictory evidence.

One person I spoke commented that this type of dishonest behavior and Salazar’s visit were rapidly becoming the poster child for why people have such a low opinion of government, and if local communities can’t trust that NPS will follow it’s own policies and previous decisions regarding West Marin, local governance becomes impossible.

Salazar’s expressed concern over the fate of the oyster workers was greeted with derision by many in the community.  As one ranch owner stated, “Salazar claims that he has the power to extend the ranch leases by a decade, yet can’t lift a finger to grant the time to make an orderly transition for Kevin and the oyster workers, throwing them all out right before Christmas, at the worst time of year to find jobs and forcing Kevin to rip out the farm during the winter storms.  Bull…..   As far as I’m concerned, NPS and its environmental henchmen are nothing more than a bunch of green collar criminals.”  Hopefully, Salazar will be forced to reconsider his decision.  In that case, he should read his own policies on gateway communities and stakeholders (there’s even a DOI site on how to find them) and come out and meet the same people that Prince Charles visited.  We’ll even buy him a beer at the Western.

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