They’re Either FOIA or Against Ya

Timely and honest access to data and reliable information from our government is vital to our democracy.  Enshrined in Federal law, the Freedom of Information Act gives the public broad access to the records of Federal departments and agencies.  It was signed into law more than a half century ago by Lyndon Johnson, appropriately on the 4th of July, 1966.  Its importance is best summarized by Johnson himself in his speech at the signing ceremony.

“This legislation springs from  one of our most essential principals: A democracy works best when the people have all the information that the security of the Nation permits.  No one should be able to pull curtains of secrecy around decisions which can be revealed without injury to the public interest…..I have always believed that freedom of information is so vital that only the national security, not the desires of public officials or private citizens, should determine when it must be restricted.

The Freedom of Information Act: An Essential Pillar of Democracy                               To journalists, the Act, or more commonly ‘FOIA’, is a vital tool in reporting on the national interest, but perhaps more so to those working to protect their own community. However, many departments and agencies have learned that to undermine the legal mandate, all they have to do is deny or delay a request until after the national media moves on, thus avoiding further public scrutiny.  In such cases, small local papers are at an advantage. When a government agencies actions are deceitful and ongoing harm to the local community results, they and their reporters can just go on digging, for years if necessary.

NPS Misrepresentations Revealed by FOIA Requests                                                            In the case of Drakes Estero, the more we dig and the longer we cover the fight to remove the historic oyster farm and the subsequent ‘restoration’ project, the more we learn that the NPS is continuing in a pattern of  falsifying, selectively editing and withholding crucial data not only from the community, but in permit applications to other Federal and State agencies.  FOIA documents recently obtained by the Russian River Times establish that Point Reyes National Seashore Superintendent Cecily Muldoon signed critical project permitting documents in spite of the fact that she had earlier been informed of dangerously high levels of toxic material associated with the removal of the oyster racks from Drakes Estero

It is now beyond question that NPS suppressed critical information to obtain Federal and State permits for the restoration project. A recently obtained string of e-mails, addressed to Muldoon, NPS Project Manager Ben Becker and other NPS staff, show certified lab test results of material associated with the oyster rack structures contained dangerous levels of copper and arsenic preservatives which exceeded mandatory reporting levels, as well as levels of volatile organics present in wood preservatives which were stated to be “off the charts”.  The test results were reported on 22 Dec 2015 by the consultant preparing the Environmental Site Assessment discussed in previous Russian River Times coverage.

Information Withheld on Permit Applications                                                                 Some two month later, NPS submitted final documents to the US Army Corps of Engineers (USACE) and other state and federal agencies to obtain permits for the ‘restoration’ project. None of these reports contained any reference to the toxic materials, and some even went so far as to claim that toxic material was no longer present.  Most critically, on 29 February 2016 Superintendent Muldoon signed a National Environmental Policy Act (NEPA) Categorical Exclusion Form, necessary to avoid full NEPA environmental impact studies.  It discusses  the presence of some 250,000 board feet of lumber contained in the old oyster racks without ever citing the results of the Environmental Site Assessment and the high levels of toxicity.

This information was withheld from documents submitted to the Corps of Engineers, as confirmed in their response to a FOIA request.  They stated that they received no documents on toxicity or significant changes impacting the project, both required by the permit. The ESA and toxic test results were not submitted in applications to any of the other permitting agencies.  It is clearly demonstrable that NPS willfully withheld critical documentation and ignored Federal and State disclosure requirements.

Whistleblower Filed Separate FOIA Requests With Multiple Agencies                    Whistleblower Matt Zugsberger, a contract employee hired for the underwater work on the restoration project, was fired when he complained that NPS and its contractors were not following safety requirements, were violating many of the contract conditions including the environmental safeguards and cheating him and other workers out of their rightful earnings.  These charges were substantiated by the Labor Department and OSHA and fines were levied against the contractor.

He submitted detailed complaints concerning NPS violations to other government agencies and made FOIA information requests to all the Federal agencies involved in his case.  Because of chemical injuries he received, he asked for specific information on toxic tests and disposal of the materials. It is now clear from comparing information provided to him by other agencies vs. information provided by NPS that their personnel were willfully withholding information requested  by both Zugsberger and the Russian River Times.

Importantly, the NPS continues in its failure to respond to many of the specific items in FOIA requests regarding the toxic material. Questions concerning the testing, handling and disposition  are still unanswered, which may prove significant considering Zugsberger’s claims that he heard discussions that the waste was being trucked to various sites including islands in the Sacramento Delta rather than to landfills licensed to accept it. He also claims that in conversations with truckers hauling the wood from the oyster racks they stated they did not need to comply with regulations for hauling toxic waste.

The Cost of Ideology Based Management by NPS                                                               What happens when NPS and other government agencies are allowed to function in an ideogical free-fire zone, believing their own noble mythology and accountable to no one to follow law, policy and procedures? Let’s ignore the very real expense of damage to the community, loss of jobs, loss of trust in government, withholding information and distorting public surveys and all the other damage they have done and just consider the taxpayer’s money that NPS has spent in Drakes Estero to make it ‘wilderness’.

Millions Spent With No Cost/Benefit Analysis                                                                         In addition to the $4.5 million spent on the current restoration fiasco, over the past decade NPS had already spent more millions on studies both by itself and other agencies like the National Academy of Sciences, DOI OIG investigations. It has spent large sums on various outside consultants, including a very expensive Environmental Impact Study on the future of the oyster farm. The EIS was abandoned before it was ever finalized, submitted to the EPA as required, subject to a 30 day comment period and requiring a Secretarial Record of Decision.

The Government Accounting Office recently reported to Congress that there is virtually no tracking of total EIS costs, such as staff time, legal expenses and such but notes that overall contractor payments on a complex EIS average some $6 million. Based on other similar government programs, it is an entirely reasonable guess that the all inclusive taxpayer costs to shut down the oyster farm could run between $20-30 million, plus the most recent $4.5 million for the single source/no bid Estero restoration contract.

NPS claims of damage from oyster sedimentation, harm to harbor seals, excessive noise and a sequence of other supposed harbingers of harm put forward as the necessity for removal of the oyster farm were all discredited and abandoned along with the multi million dollar EIS

What is the Current Justification for this Massive Expenditure?                                   The current justification seems to be ‘saving’ wilderness with eelgrass. Looking at the numbers, the NPS/California Coastal Commission, submitted as part of the project permit requirements, calculates the potential increase in the eel grass coverage to an amazing two decimal place accuracy at 1.31 acres.  National Academy of Sciences reports on the estero determined that in 2007, there were 740 acres of eel grass coverage in the estero, and it was healthy, having been increasing at rate of some 25 acres per year. In fact, eel grass coverage had doubled between 1991 and 2007 while the oyster farm was still in operation.

In statistical terms this means that the claimed potential effects of less than one fifth of a percent of increase in coverage will be overwhelmed by the natural annual change so impacts on the overall Estero environment will be so small as to be immeasurable.  Cost/Benefit analysis? Taxpayers millions spent by an agency that says it has budget issues, all in in pursuit of a myth of ‘wilderness’ which has virtually nothing to do with the preservation of the truly wild.

The Legacy of the Administration of NPS Superintendent Jarvis.                                        A pattern of behavior developed under Jon Jarvis, the disgraced former NPS director from 2009-2016.  When confronted, NPS goes through a cycle of dismissal, delay, denial and deceit.  The Jarvis legacy explains not only the decade of misconduct at Drake’s Estero, but the host of other NPS scandals including sexual harassment at the Grand Canyon and Yosemite, revealed at three congressional oversight hearings in 2015-16, the Effigy Indian Mound contracting scandal in Indiana and others.  Nor should we overlook Jarvis’ own book publishing scandal that lead to his removal from the role of NPS chief ethics officer.  All these were exposed during the Jarvis tenure, some of which had been covered up for years despite numerous responsible NPS employees risking their careers by submitting multiple complaints to NPS senior management and the Interior Department Inspector General.

How Could This Happen?                                                                                                                   If you want to understand how NPS management could let such events occur over and over again, the reasons are well documented in the recent book by former NPS investigator and life-long Park Service employee Paul Berkowitz.  It’s entitled ‘Legacy of the Yosemite Mafia: the Ranger Image and Noble Cause Corruption’.  You can read the National Parks Traveler review here:                                           NPS senior employees simply believe that they are above the law and their perception of the Park Service mission justifies behavior that violates law, policy and procedures in pursuit of ideological goals of their own choosing, not to mention while often benefitting themselves.

The Danger of NPS Myths.                                                                                                        Myths are dangerous, and can have expensive consequences   to our communities, far beyond just dollars.   President John F Kennedy put it best in his 1962 speech at the Yale University commencement:

The great enemy of the truth is very often not the lie—deliberate, contrived and dishonest, but the myth—persistent, persuasive and unrealistic.  Too often, we hold fast to the cliches of our forebears, We subject all facts to a prefabricated set of interpretations. We enjoy the comfort of opinion without the discomfort of thought.

Last week was the 54th anniversary of President Kennedy’s death.  With his telling words in mind, there are today dozens of Federal, State and local Departments, Agencies and Offices who need to ask themselves if it is safe and wise to ever trust the word of NPS management.  There are lots of very persistent and discomforting facts about NPS management and the culture that perpetuates them.  Key positions that oversee NPS such as the NPS Directorship and the Assistant Secretary for Fish, Wildlife and Parks lie vacant.  Secretary Zinke and the new administration need to appoint individuals who are capable and willing to forcefully address the pressing need to hold NPS and its management fully accountable to law, policy and procedures while serving equally and honestly all the groups and communities and visitors who share the wonderful heritage of our National Parks


Footnote;  The title of this piece is recycled from a decade old op-ed about filing FOIA’s and Data Quality Act requests about Drakes Estero.  Jon Jarvis, then head of NPS Western Region responsible for Point Reyes National Seashore, simply ignored them.











Posted in Coastal Ecology, environmental regulation, Oyster Farm, Uncategorized | Tagged , , , , , , , , , , , | Leave a comment

National Park Service concealed high levels of toxic material in Drakes Estero project

Critical information withheld from US Army Corps of Engineers permit applications and NEPA documents.

There are new developments in the Russian River Times ongoing investigation of National Park Service (NPS) misconduct in Drakes Estero.

After their controversial decade-long battle to close a local oyster farm, NPS began a program to remove the historical oyster racks to achieve ‘wilderness.’ In late 2015, one of the first steps was to complete the Drakes Estero Restoration Project preliminary engineering studies.  Among other tasks, that study included testing removal methods for oyster rack pilings.

Engineering study and permit applications started with no toxicity tests                    At the same time, NPS also began to obtain required Clean Water Act and other permits from the US Army Corps of Engineers as well as approvals from other State and Federal agencies. While the permitting process unfolded, NPS then decided to commission an independent ‘Environmental Site Assessment Report’, whose purpose was to “…evaluate potential environmental liabilities.” The Report concluded that there were long term risks from extremely high concentrations of hazardous materials in the oyster rack’s structure which leach into sediments. This key report, heretofore unreleased, was not posted with other project documents on the NPS web site.  It was uncovered in a recent FOIA (Freedom of Information Act) request, as part of the RR Times coverage of multiple claims against NPS made by whistleblower Matt Zugsberger, working as the diver for a project subcontractor.

Results of toxicity test confirm whistleblower’s claims of exposure to toxics             In the past several months, Zugsberger’s claims, one-by-one, have been substantiated and upheld. His initial claims of safety and pay violations in the $4.5 million Drakes Estero ‘restoration’ project were upheld by the issuance of Occupational Safety and Health Administration (OSHA) citations against the NPS project and its contractors and a Labor Department ruling requiring shorted back wages to be paid.

The newly released NPS Report validates the whistleblower’s claims of toxic waste mismanagement which caused toxic material to be released into the Estero and caused Zugsberger to sustain chemical burns on his lower body. The Environmental Site Assessment report contains test results show very high levels of toxic wood preservative materials.   The results classify the oyster rack material as hazardous waste. The reported level of toxicity constitutes a ‘REC’ or… “Recognized Environmental Condition”, defined by the national standards for a Phase 1 Environmental Site Assessment as “…the presence or likely presence of any hazardous substances ior petroleum products in, on, or at a property (1) due to any release to the environment (2) under conditions indicative of a release to the environment or (3) under conditions that impose a material threat of future release to the environment.”

The report includes photographs of an NPS employee, (identified in the text of the report NPS Chief Scientist at Point Reyes, Dr. Ben Becker, who served as Project Manager) taking samples from the racks on 8 December 2016, as well as an image of the cresosote film on the surface of the water. Despite the same Environmental Site Assessment Report, Dr. Becker, in an NPS 25 January 2016 Environmental Screening Form for the project, ignored report findings and claimed to have run NOAA fisheries models that showed the oyster rack material was safe.

Park Superintendent signs critical NEPA filing: No mention of toxics                             A month later, NPS Seashore Superintendent, Cicely Muldoon, approved the 25 February 2016 NEPA Categorical Exclusion form in which reference to the toxic materials were excluded. This misleading NEPA document was submitted to US Army Corps of Engineers and other State and Federal agencies.  Records obtained from specific FOIA requests to the Corps reveal that NPS did not submit any reports documenting toxic material and failed to disclose their existence in the permit applications, as required by the permitting process.

NPS pattern of withholding critical data and hiding reports.                                        This type of NPS malfeasance repeats a pattern in Drakes Estero that has done huge economic damage not only to the local community, but has cost the taxpayers millions of dollars in ‘studies’, which, when they fail to support policy decisions, are suppressed. Prime examples of this irresponsible conduct can be found in the earlier RR Times coverage, including abandonment of a multi-million dollar Environmental Impact Statement which substituted sounds of souped up 2-stroke jet skis for 20 horsepower, 4-stroke outboards on the oyster boats and concealment of three years of exculpatory ‘hidden camera’ photographs which showed no seal disturbances or Marine Mammal Act violations by the oyster company, despite NPS fabricated claims to the contrary. The photos were withheld from a National Academy of Sciences investigation conducted at the request of Senator Feinstein, who was concerned about NPS misuse of science.

Some of the same NPS personnel who today suppress reports about toxic materials were previously censured in the findings of Secretarial-ordered investigation of concealment of secret spy cameras installed by Point Reyes staff. Then and now, NPS does not want the citizens of West Marin, the Bay Area, the State or the rest of the Nation to know what they are doing or how NPS is conducting itself.

NPS coverup of toxic dumping only revealed after  State of Arizona suit.                Concealment of illegal acts is unfortunately common at NPS. In 1985, divers discovered that worn out toxic lead acid batteries were routinely being dumped into the Colorado River water at Glen Canyon by Del Web employees, who were contracted to run the Glen Canyon marina. NPS finally put Del Web on notice in 1988. The matter was only resolved after word of the dumping leaked out and the Arizona State Attorney General filed civil and criminal charges, later settled by guilty pleas to a felony charge by Del Web corporation, and their successor ARA, along with combined fines of well over a million dollars.

Retired NPS investigator Paul Berkowitz, author of two books detailing NPS misconduct, revealed that State investigators documented claims of obstruction, lying, destroying evidence and pressuring subordinate staff by NPS management.

During its 2016 centennial year, NPS celebration was overshadowed by multiple Congressional Oversight hearings and other congressional inquiries on sexual harassment and toxic work environments.  In addition, revelations of widespread destruction of Indian artifacts in illegal construction projects were unearthed by PEER (Public Employees for Environmental Responsibility)  Together, these investigations documented a massive failure of NPS management under then-NPS Director Jon Jarvis, himself the subject of an ethics scandal.

Grand Canyon sexual harassment scandal first reported to NPS in 2004.                  NPS investigator Berkowitz, back in 2004 and again in 2006, was responsible for the first reports of the Grand Canyon sexual harassment and toxic work environments to senior NPS management and Department of the Interior Inspector General (IG) , detailing the need for a fully independent DOI investigation. In 2014 thirteen current and former NPS employees came forward and co-signed a complaint sent directly to the Secretary of the Interior.  The resulting IG investigation confirmed the claims and accusations which emboldened others in Yellowstone, Yosemite and Canaveral National Seashore to report litany of abuse, leading to 2016 hearings by the U.S. House Committee on Oversight and Government Reform that darkened the Park Centennial celebrations.

Is this time different?                                                                                                                       Matt Zugsberger, the whistleblower in the NPS Drakes Estero restoration project, followed the NPS chain of command with his complaints. He was immediately fired. As a result, he pursued the same course of action which led to the 2016 House Oversight hearings, taking his case directly to the Secretary of the Interior. The important point is that without whistleblowers like Zugsberger and the Grand Canyon 13, bringing matters to the attention of Congress and the public, there is virtually no hope of meaningful reform to a corrupt and dysfunctional NPS management.

Zugsberger charged NPS with safety violations and was upheld. He charged them with cheating worker pay and the Department of Labor upheld his claim. He also charged NPS with polluting Drakes Estero and mismanaging toxic materials. NPS documents now show that he was correct. It remains to be seen if his revelations and those of other NPS whistleblowers will finally have a lasting effect and eventually force Congress to save our National Parks from NPS corrupt, venial and profligate management.

Posted in Coastal Ecology, environmental regulation, Oyster Farm, Uncategorized | Tagged , , , , , , , , , | 1 Comment

Health Care and the Economy: 2007 Revisited

Nearly a decade ago, the Russian River Times published an article on health care, which we have re-published below, in which we looked at the state of US health care using facts and analysis from The World Economic Forum, CRS Report to Congress ‘US Health Care Spending: Comparison with Other OEDC Countries’ and references from a 2005 article in ‘Health Affairs’ entitled ‘Illness and Injury as Contributors to Bankruptcy’.   Then Harvard Professor, now Senator Elizabeth Warren was one of the authors.   Keep in mind that this article was written at the same time as the sub-prime mortgage debacle and the start of the ‘Great Recession of 2008’.  Now, Congress is juggling something that impacts even more people and as much as 16.6% of Gross Domestic Product with little if any consideration of the facts and history, which we can look at thanks to the Kaiser Foundation.  Medical Bankruptcies?  Pre- Existing Conditions?  Unrestrained insurance companies? What can possibly go wrong?  Here’s the article.

Author: John Hulls


OH, CANADA:  Medical bankruptcy affect 2 million people per year in US…in Canada… ZERO

Do health care and banking statistics describe our government? The World Economic Forum Competitive Report assesses the twelve critical factors influencing business, ranging from quality of government, education, infrastructure, and health to finance, including bank stability. The stability table lists Canada first, the U.S. in 40th place, tied with Lithuania, Botswana and, surprisingly, Germany. In life expectancy, Canada ranks 5th, while the US ranks 29th.  Does this mean that there is a direct correlation between the quality of a country’s banking system and the quality of its citizen’s health care? Maybe, but consider the stats on education and other factors that improve the citizen well being and you find solid indications that a country that runs its banking, educational and financial systems in a stable manner to benefit its individual rather than corporate citizens is more likely to produce an effective health care plan that gives greater longevity and better health outcomes at lower cost.

Another major source of information on the health care issue is the Congressional Research Service 2007 report for Congress entitled ‘U.S. health-care costs: Comparisons with other OECD Countries.’ It is clear that participants at the recent ‘town hall’ meetings, (including some members of Congress) have not familiarized themselves with the information in this document, an impartial comparison of the current U.S. system. Most striking is Figure 1 on p.3, showing the relative spending of each country, and how much is public vs. private: 44.7% of health care costs in the U.S. are federally funded, vs. 69.8% in Canada. Figure 1 shows the huge percentage of costs associated with private payments in the United States. Figure 20, equally graphically shows why. The U.S. is second on health administration and insurance costs per capita at well over four times the OECD average of $104, and dwarfs the Canadian costs of $131.

Perhaps the anti-health-reform town hall participants can identify at which point the level of federal expenditures justifies scribbling Hitler mustaches on pictures of national leaders, or Grassley and his fellow Republicans could point out where 44.7% federal health funding (U.S.) and 69.8% (Canada), the whole thing breaks down and becomes socialism and Marxism. The problem is not Granny getting unplugged by the federal government but getting Moms and Dads and children getting plugged into good health care. The most telling statistic? People and their dependents forced into bankruptcy by medical costs.

Canada-0, Great Britain–0, Japan-0 France-0 (the list goes on)

United States- 2 million per year, including 700,000 children.

Want to know how well private insurance worked? 75% of the people filing bankruptcy had health insurance at the start of the illness that caused the bankruptcy. The Harvard Medical School article, published in Health Affairs cites the early Romans law allowing creditors to sell debtors piece by piece in the public market if they couldn’t pay their bills. Our government seems to have dropped this idea for Wall Street and the financial community, perhaps the cause of our lousy bank-stability rating, while keeping laws almost as harsh for its citizens struck by catastrophic illness.

Health admin and ins. costs

Health Care Spending per capita 2004





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A Decade of NPS Deceit in Drake’s Estero

The value of local news….

A decade of NPS history just repeated itself in Drake’s Estero, and unless Interior Secretary Zinke takes decisive action to root out the entire toxic NPS management culture, we can look forward to a further decade of cover-ups, ethics scandals, sexual harassment and an agency that considers itself above the law and accountable to no one, least of all our local community. Asked to editorialize on the RR Times reporting on NPS and Drakes Estero, I recalled the circumstance when we wrote the “About” page for the then-new website. Tess Elliot, editor of the local Point Reyes Light, wrote a 2009 article for the Nation entitled ‘Scientific Integrity Lost on America’s Parks’ documenting why the Interior Secretary needed to clean up the NPS mess surrounding new National Park Service Director, Jon Jarvis, then poised for Senate approval. The article detailed how Jarvis, in his role as head of NPS Pacific West region had lied to local government and “demonstrated contempt for “truth, transparency and scientific integrity”.

Years later, here the community is again, with a new Secretary of the Interior, awaiting the appointment and Senate approval of a new NPS chief. Last time, the NPS old boy’s club PR machine and beltway politicking overcame objections to Jarvis, an already flawed candidate. Who will Zinke turn to for his sources of information this time? Many people responded to Elliot’s ‘Nation’ article, including our RRT editor who wrote about the role of the local press. “We provide an absolutely critical journalistic function, especially when reporting on local stories that have direct relationship to national issues. Reporting on the concerns of local citizenry, local papers have the luxury of continuing to report on an issue. As editor, I get immediate feedback about the real concerns of my readers–at the post office, at the grocery store and when I deliver papers (admittedly a less glamorous aspect of the rural editor’s job). Continued local concern enables us to cover issues in great detail and over time in a manner simply not possible in the major daily press.”

While NPS scandals were hot topics last year, the ever-shrinking news cycle hides the true arc of the story. Local papers create an important record by covering stories like Drakes Estero over its entire history, from the first revelations to the last oyster harvested in December of 2014 and the subsequent NPS behavior, not only for their own communities but to define a history founded in reality rather than soundbites. The first revelation: NPS was deliberately misleading the community, distorting science and rewriting history to support an entirely ideologically-based  attack designed to cast a well-respected local family, the Lunnys, as environmental criminals and remove their historic Drake’s Bay Oyster Company (DBOC). Over a decade, I have documented the NPS lies, both sins of commission and omission. In many ways, what happened is a microcosm of reasons the Federal government and its agencies have eroded so much of the public trust.

It is axiomatic to a functioning democracy that citizens must be able to trust that government employees, from Washington on down, will speak the truth and follow the law, policy and procedures that govern their jobs. That didn’t happen for the citizens of West Marin. In February of 2006, Don Neubacher, then Superintendent for Point Reyes National Seashore, told the local Press that Congress prevented him from renewing the lease for Drakes Bay Oyster Company. Not true, just the first of more than a decade of lies, documented first with the Point Reyes Light, where I was a columnist, later with the Russian River Times. You may recall Neubacher’s sudden resignation from NPS following last year’s congressional hearings on hostile workplaces and sexual harassment. Retired NPS director Jon Jarvis, disgraced in his own NPS ethics scandal, was also a key player in the smearing of the Lunny family.

NPS vs. the oyster farm and the community.  

In 2006-2007, one of the first revelations was that Point Reyes National Seashore scientists had knowingly misrepresented a US Geographic Service scientist, claiming that his research showed the oyster farm to be the major cause of sediment in the Estero. I wrote a column for the Point Reyes Light entitled “They are Either FOIA or against YA,” essentially accusing the NPS of deliberate lies. Before doing so, I called Dr. Brian Scrag,  now retired, of the Poynter Center for the Ethics and American Institutions at Indiana University, an expert on ethics in institutions and research. The Institute was founded with a grant from famed newspaper man Nelson Poynter, who endowed the Institute to study the causes for declining public trust in government and societal structures.

I asked Dr. Schrag, in light of NPS’ failure to comply with FOIA and Data Quality Act, if it was reasonable, based on my reporting experiences so far, to expect Department of the Interior and Congressional oversight committees to force the Department of the Interior and the NPS to follow their own rules, regulations and scientific procedures. Asked for a quote for my 2007 article, he stated: “Some have charged that under the current administration government scientific research has become politicized. What is worrisome, if that happens, is that the normal checks and balances of scientific research can be compromised.” The claims of NPS’ scientists lying about research in Drakes Estero were confirmed by DOI Inspector Devaney’s October 2008 Semi-Annual Report to Congress, where the section on the National Park Service was entitled, “NPS Scientist Misrepresents Research.” Under Jarvis, the NPS promoted that scientist to a senior position overseeing marine research.

A most damaging lie was the claim first made to a May 2007 meeting of the Marin County Board of Supervisors by Don Neubacher, former Point Reyes Seashore superintendent and key player in the Yosemite scandal, that DBOC was causing a massive loss of hundreds of seal pups. This was patently untrue, and attempts to erase this lie show the Jarvis administration obsession with wiping out all memory of the oyster farm. A secret camera program, designed to ‘prove’ seal harm from DBOC, showed the exact opposite and was hidden from the DOI IG, the National Academy of Sciences and the Marine Mammal Commission. After being caught with the secret photos, NPS claimed that an independent scientists’ retained by NPS to review of the previously concealed photographic evidence concluded oyster boats caused seal disturbances.  But in 2015, Newsweek reporter Michael Ames revealed that the scientists’ report was altered to show that disturbances had been caused by the oyster boats

It is worth quoting a few lines directly from Ames report: “In 2012, with the end of the farm’s lease approaching, the DOI ordered the USGS to complete a definitive study of the seal photographs. Stewart, a respected 37-year veteran in the field, was called in as an independent authority to determine whether the photos were sufficient for scientific research and whether, after years of internal recrimination at DOI and the Park Service over the issue, DBOC boats had disturbed the creatures. On May 3, 2012, Stewart filed his reports, determining there were no disturbances attributable to the oyster farm’s boats. (There was one case, however, where a curious kayaker caused several seals to flush into the water.) But when the USGS published its final report that November, Stewart discovered that his findings had been altered and that the study reached conclusions his research directly contradicted. “It’s clear that what I provided to them and what they produced were different conclusions and different values,” says Stewart. “In science, you shouldn’t do that.”  Lacking any respect for the law and ethics, NPS included the false data in documents provided to Department of Justice lawyers, who quoted it in their arguments against DBOC in the federal court case. The Jarvis/NPS pattern of withholding information, altering reports and editing history to cover lies and falsehoods is pervasive.

The Russian River Times thought that the oyster-farm story was over until a whistleblower  contacted the paper revealing serious environmental, safety and payroll violations in the 2016/17 $4 million dollar Estero Restoration project. A FOIA request confirmed that the NPS had withheld information on toxic waste from permitting agencies and flagrantly violated regulations on handling toxic material. The FOIA material revealed that Jarvis had received a Nov 29, 2017 DOI OIG memorandum that showed, among other significant issues, that NPS had classified the waste to be removed in the Estero as toxic, containing heavy metals. It also stated that the whistleblower had followed the correct protocols in his complaint regarding salary and safety, both upheld subsequently by the Department of Labor, and OSHA.  The DOI memo returned the investigation to NPS control, giving it 90 days to complete its investigation and respond to the IG. The deadline was the end of February, yet as of mid-April, a DOI IG investigator in contact with the whistleblower claimed that NPS had yet to respond. If the Department of the Interior can’t get a straight story from NPS, what chance does the victim of an NPS smear campaign to get a response from NPS?

This NPS behavior was very much evident in Drakes Estero. In 2007, after a meeting between Senator Feinstein, local officials, Mary Bomar, (then NPS director), Kevin Lunny  and others, the NPS was forced to withdraw a report on Drakes Estero because of scientific error.  This meeting lead to a 2009, National Academy of Science report on NPS scientific  studies which stated  “NPS selectively presented, over-interpreted, or misrepresented the available (as of 2007) scientific information on potential impacts of the oyster mariculture operation” and essentially denied all Jarvis’ (then NPS regional director)  claims of significant harm from DBOC. Jarvis initially said that ‘mistakes had been made’ and also  claimed that the NAS report would be used to improve management.’  Instead he made statements to the Press that essentially reinstated all of the claims. DBOC’s Kevin Lunny wrote two letters to Jarvis, asking that he define the unidentified ‘mistakes’ in the first report, and after Jarvis reinstatement of the falsehoods, a second Dec 31, 2009 letter pointing out the falsehoods in Jarvis actions and demanding an explanation.  The Russian River Times has obtained Lunny’s permission to publish both letters.

Jarvis and NPS have, to date, ignored the OIG’s 29 Nov 2016 IG memorandum, ironically addressed to Jarvis shortly before his resignation from NPS. A pattern emerges, as if from a hidden NPS playbook designed to attack and destroy, rather than correct and resolve. The Park Service never responded and never retracted their claims that Lunny was an environmental criminal who caused the death of seal pups and threatened the Estero itself. Reading the letters, one can imagine how they felt under this onslaught, especially when Lunny recalls Neubacher and the NPS’ lawyer’s  comments to him that “the Park Service pays for our attorneys.” In an recent RRT article I referred to the Jarvis’/NPS’ strategy of ‘Defer, Delay, Deny, Misdirect and Bury’ at last year’s Congressional hearings, which commented on multiple appearances by senior NPS officials with little or no evidence of change.

What happened in Drakes Estero prevails throughout NPS, given the long list of scandals breaking into the national news from Yosemite to Yellowstone, Canaveral to the Grand Canyon and elsewhere.  It will continue unless DOI imposes a complete housecleaning of the NPS inbred, closed culture.  It speaks volumes about the NPS’ ‘good old boy’ network, as commented upon in the Southern Utah/St. George Independent, that John Reynolds, father of the current acting NPS chief Mike Reynolds, was the official who gave Jarvis his first park superintendent job. New DOI chief Zinke should understand that the problems of sexual harassment, bogus science and a hostile workplace are not isolated problems but result directly from a culture that holds itself unique, unaccountable and above the law.

Consider the complaint of sexual harassment in the Grand Canyon, one of the subjects of last year’s congressional hearings, first reported to the DOI IG in 2004, as documented in former NPS Special Investigator Paul Berkowitz latest book on the NPS which also cites a 2003 statement by then DOI IG Earl Devaney: “Mr. Chairman, and members of the Committee, I have served in the Federal Government for a little over 32 years, and I have never seen an organization more unwilling to accept constructive criticism or embrace new ideas than the National Park Service. Their culture is to fight fiercely to protect the status quo and reject any idea that is not their own.” Secretary Zinke, the Russian River Times wishes you every success in restoring the nationwide damage NPS management has done to what famed conservationist and writer Wallace Stegner called “America’s Best Idea”

Written by Russian River Times contributing editor John Hulls

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NPS to the Lunny Family: We don’t have to tell you anything

The Russian River Times posted these letters with permission from the Lunny family and are referenced in the subsequent editorial. We are looking at this type of post in conjunction with our other reporting as a way to  use the web to show directly how news can impact our local residents. Sometimes it is best to give space to the voices of the people impacted by government actions to tell the tale. These two letters serve as a valuable example of how some government agencies, in their arrogance, ignore law, policy, procedure and facts yet feel they have no need to even respond to the citizens whose life they impact. Continue reading

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Toxic National Park Service

More corruptive acts in the decade long battle to close the historic oyster farm in Drake’s Estero

The Russian River Times (RR Times) has obtained photographs and samples from the National Park Service (NPS) Drake’s Estero ‘Restoration’ project site where the toxic wood waste from the removal of the old oyster racks from the former oyster company were brought ashore.  The photos and samples show gross violations of the conditions mandated for the NPS project approval by the U.S. Army Corps of Engineers (USACE) and other agencies.  They also document a complete disregard for state and federal regulations governing the handling of toxic wood wastes, dredging bottom lands and a host of other environmental safeguards. 

Concurrently, the NPS released over a thousand pages of documents that, when compared with documents submitted to obtain the project’s permits, show a disturbing pattern of a federal agency that believes it can do as it pleases and answers to no one, least of all the local community, the State of California, or the U.S. Army Corps of Engineers and is not reticent in bullying other agencies to get its way.   In Point Reyes, NPS has a long history of selectively editing and withholding information from other agencies, not only its own material, but information received from other agencies prior to the start of a project. This is clearly shown in the recently released documents.

NPS knew of toxic materials prior to commencing project planning

On 29 November 2016, then-NPS Director, Jon Jarvis, was directed by the Interior Department’s Inspector General (IG) to investigate detailed complaints about worker safety, worker compensation and the improper containment of toxic material into Drake’s Estero.  RR Times readers will recall that Jarvis, then Western Regional NPS Director, was the main NPS instigator in the battle to remove the oyster farm, dating back over a decade, which led to numerous investigations by, among others, National Academy of Sciences (NAS), the Interior Department’s Solicitor’s Office and Marine Mammal Commission (MMC), none of whom found the claimed harm from the Drake’s Estero oyster farm operation.

NPS documents and reports appended to the IG’s November memorandum to Jarvis reveal that NPS officials knew about the presence of toxic material in the oyster racks slated for removal from tests performed prior to the award of the restoration contract.  According to Jack Williams, NPS Construction Management Representative for the Drake’s Estero project, NPS performed screening tests on the materials to be recovered, and determined that the material was hazardous, stating that “…arsenic, chromium and creosol (a toxic disinfectant component of creosote) were identified in NPS’s testing.”

Despite the tests showing the presence of toxic metals and creosote, the only mention in the NPS permit-application environmental documents submitted to USACE and others is a claim in the water-quality section of the  February 2015 NPS EFS (Environmental Screening Form), which asserts that they ran a NMFS (National Marine Fisheries Service) computer program model showing that all of the toxics had leached out of the wood. It fails to state that actual tests were performed by NPS, contradicting  the claims that there were no heavy metals or wood preservative in the oyster racks and pilings.

NPS knew of threats to fish habitat and steelhead and coho salmon

None of these threats are mentioned in their permit applications to USACE or consultations with NMFS. NPS committed to following BMPs (Best Management Practices) yet withheld from USACE and others that it knew of threats to water quality, essential fish habitat and endangered steelhead and coho salmon well before the start of the Drake’s Estero Restoration project.

In 2011, the DOI commissioned Atkins Inc. to peer review the NPS’ controversial DEIS (Draft Environmental Impact Report) on the Drake’s Estero special-use permit and the potential closure of the oyster farm. In it, the Atkins report clearly identifies the threats to EFH (Essential fish habitat) and endangered steelhead and coho salmon. These fish are extremely sensitive to toxicity from the material in oyster racks, pilings and surrounding sediment. The report notes that tests and permits would be required for the removal of the oyster racks and pilings.

 The Atkins report made several recommendations including stating that Review the scientific studies in NOAA Fisheries – Southwest Region (2009) to develop the same level of analytical detail presented for other water quality impacts in the DEIS. Conduct the detailed analytical approach in the ESA and EFH consultation efforts that are reported as underway for the DEIS and will be required for the U.S. Army Corps of Engineers (USACE) permitting process as noted in the DEIS” (emphasis added). The NPS committed to following the specified NOAA BMPs (Best Management Practices), including in its NEPA required Categorical Exclusion form submission to USACE, yet there is no indication that they did so, either in the removal of the toxic material from the Estero, control of sediment, or in its subsequent handling or disposal.

The NOAA report referenced by Atkins, ‘The Use of Treated Wood Products in Aquatic Environments’ is used by USACE and other permitting agencies as the guiding document for Best Management Practices (BMPs)  It states that the NMFS leaching models that NPS cites, while useful, are not adequate without local site testing.  More importantly, it shows that the toxic material can leach into the sediment, impacting areas over two meters from the wood.  Most critically, it states in the Demolition BMPs’ section that sediments adjacent to the project should be analyzed. The NPS required conformance with BMPs, including specifically sediments, in its NEPA required Categorical Exclusion form submission to USACE

NPS eliminated environmental safeguards without approval

The project plans submitted by NPS to USACE and other called for lumber from the oyster racks and pilings to be placed directly into containers on the barge, and transferred to containers on land prior to shipment to a Class 1 landfill, eliminating any risk to groundwater, as specified in the contract.  Instead, the contractor piled both treated lumber and dredged debris directly on the ground, in clear violation of State and Federal requirements. The USACE permit requires notification of any change in the project, the USACE states they have no record of allowing any such changes.

Toxic Pit

Unloading site for dredged material showing depressed area with sediment and crushed waste with piles of dredged wood fragments to the left of excavator.  Compare with Press Democrat photo of operations, taken from hill behind estero to see location relative to the shore of the Estero (see link in following paragraph.)

The image shows water-saturated wood waste, along with other debris (stacked to the left of the excavator) allowed to drain directly onto the ground, then apparently crushed to reduce volume for shipping, practices banned by both Federal and State regulations. This has created a muddy, saucer-shaped depression covered with dredged sediment, fragments of wood and crushed plastic tubes.  The area covered is almost an acre, only a few feet from the shores of the Estero. A 12 April 2017 photo from the Santa Rosa Press Democrat website, taken during operations, shows water draining from the saturated toxic wood waste in the dark pile on the right of the image, ponding in the depression and draining towards the Estero.

Federal and State rules and regulations, included in the NPS permit-applications material, place strict requirements for handling, storing and shipping toxic material, including storage only on impervious barriers, protection from weather and proper collection and disposal. In addition, the material must be reported and tracked in an unbroken chain of custody from origin to ultimate disposal. The RR Times has not yet been able to determine whether required testing was performed, has not yet obtained the shipping and disposal records, nor determined whether such mandated records and documents were even kept.

NPS changed contract, abandons waste disposal supervision

NPS records show they abandoned much of the contract supervision of when it switched the contract billing for the waste disposal from an hourly rate to a fixed amount, as discussed in a string of internal e-mails starting on 12 July 2016. The string starts with Daniel Fleming, an NPS project specialist, who writes to the contract officer stating, “Why did we use unit pricing for CLIN3 Debris Removal instead of a Lump Sum?…We discussed that it will require a lot of oversight to verify these hours.” NPS managers questioned the manner in which the contract might be altered.

On 13 July, Jack Williams , mentioned above for his statement about the presence of toxics, states: We should discuss the ‘Debris Removal’ bid prior to our meeting with the Contractor Pre-con.  As currently awarded, we will need a mechanism to track hours or there could be future debates and potential for claims.” Jason Longshore, contract officer replies: “Also, to follow up on the debris removal, we can easily change that to a lump sum if that helps the process.  It is a firm fixed-price contract, so regardless of quantities, they are owed that much.”  The contract change on the $1.29 million line item was signed by the prime contractor, T.L. Petersen on 16 Dec 2016, months after debris removal began.

Contract specifications contradict permit environmental documentation

The restoration contract, which was not submitted with the permit application documents also contains the only specific reference to the toxic nature of the wood waste. As previously discussed the presence of toxic metal is not mentioned in any of the environmental documents submitted in permit applications.  The contract contradicts the permit applications and states that, as part of an earlier report, “ samples were taken from rack materials and 6 of the 7 samples showed positive for creosote.  The demolished material will need to be taken to a Class 1 landfill.”(emphasis added)

NPS makes misleading and non-credible statements to ABC TV Channel 7

In a recent statement to ABC Channel 7 TV in San Francisco, the Park Service spokesman, responding to whistleblower claims of OSHA safety violations and environmental problems, stated that the contractor corrected these findings immediately. OSHA did not make any findings with respect to the handling and disposal of treated lumber,” adding that “all methods relating to the project work were permitted and approved by regulatory agencies.”  This statement is an attempt to mislead, as OSHA does not regulate toxic waste disposal. The statement about permitting defies credulity as, for example, NPS own photos show many of the violations, including toxic material placed on unprotected soil in clear violation of federal Resource Conservation and Recovery Act regulations as well as California Department of Toxic Substance Control regulations.

NPS has also stalled for months on its response to the DOI IG. In the previously mentioned 29 Nov memorandum to then NPS Director Jarvis, the DOI, after a cursory examination of a detailed complaint that made serious accusations regarding worker safety and environmental protection, turned the investigation back to NPS to investigate itself.  The memorandum states that the NPS official assigned to investigate this matter should complete and return an Accountability form within 90 days of the receipt of the 29 Nov Memorandum.  It is now well over five months since the memorandum was issued. The  whistleblower was told that in discussions with the IG investigator that NPS has so far refused to comply, despite multiple requests.

Defer, Delay, Deny, Misdirect and Bury

Many of the community in West Marin feel that the NPS has lied to them for over a decade.  It is ironic that one of NPS Director Jarvis’ last acts involved the DOI IG report on NPS environmental violations in Drake’s Estero.  Jarvis’ tactic of defer, delay and deny has been invoked – again. Today, they have been joined by misdirect and bury.  These NPS practices became more visible to the public in last year’s series of Congressional oversight hearings on NPS misconduct at Grand Canyon where sexual harassment had been covered up for decades, the same as the Indian Mound contracting scandal continued for years until uncovered by PEER.     These same NPS strategies are alive and sick on the shores of Drake’s Estero, as they have been for the past decade.  The Department of the Interior needs to step in, set standards, clean house, and put a stop to the toxic NPS management practices before they do any more damage.
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Dollars Disappear in Drake’s Estero

National Park Service busts through seal-pupping deadline as fired former diver challenges costs.

National Park Service (NPS) was supposed to have finished its Drakes Estero Restoration Project by the beginning of the seal- pupping season on March 1 this year.  In its lengthy battle to evict the historic Drakes Bay Oyster Company (DBOC), NPS previously made unsupported claims, dating all the way back to early 2007 testimony before the Marin County Board of Supervisors, that even minor disturbances would cause massive loss of seal pups. Regardless of these claims, NPS’ work has continued for over two months into the critical pupping season, which runs for four months, ending 30 June. The work involves continuous operations of large barges and excavators throughout the Estero.  The barge and shoreside facilities are clearly visible in this image from a recent flight over Drake’s Estero. NPS has not respond to enquiries prior to publication.

Screen Shot 2017-05-03 at 1.54.01 PM

Aerial Photo Showing Barges and Equipment at old DBOC Site

In a previous RR Times article, Matt Zugsberger, a contract diver who claims that he was fired from the project for whistleblower activities, made numerous statements concerning his employment and worker safety. He also told the RR Times that from his review of the NPS website, the level of effort and environmental compliance was far less than that described in the NPS documents and safety and technical procedures were “way out of line on other projects I have worked on involving pilings and treated timber.”   To proceed with his investigations, Zugsberger filed FOIA actions with National Park Service, Department of Labor, and U.S. Army Corps of Engineers.  So far, only USACE has completed his FOIA request.

“I had been told by Galindo, the subcontractor that hired and subsequently fired me, that this was a $4+ million project, but it was only after I received the actual contract from NPS as a preliminary response on my FOIA request,  and the NPS Preliminary Engineering report (among other documents) from USACE that my suspicions were confirmed. I started out wanting to make sure I could work safely, and ended up getting fired for my troubles,” said Zugsberger, in the earlier RR Times reporting.  “After I was terminated, I reviewed the documents on the NPS website, and found that the planned scope of the project was much larger than what was being provided by the subcontractor.”

Zugsberger provided the RR Times with copies of the contract, and the USACE documents.  “The first thing I noticed was that the contract clearly specified on page 11 that the wood waste was toxic and had to be hauled to a Class 1 landfill.  The engineering report on page 13 lists 477 tons of toxic wood waste, and assumed that some mud and additional debris would be sticking to some of the wood. When I reported receiving chemical burns, I was told by Galindo and NPS and other Government personnel that toxic sediment was not a factor, and that they had run models that showed all the toxins had leached out of the wood.”  RR Times could not find any direct reference to the presence of 447 tons of toxic wood with potentially adhering sediment in the documents submitted for USACE approval by the Park Service.

Other than the previously cited reference in the Preliminary Engineering  report, there are only oblique reference appearing on page seven of the 17 Sept 2015 NPS Environmental Screening Form under ‘Water Quality,’ implying that models showed all toxins leached out after one year and a reference to tonnage of oyster rack. In addition, the NPS Categorical Exclusion Form (used to avoid the need for an environmental-impact statement) does not mention the 447 tons of toxic wood waste requiring disposal in a Class 1 landfill, but merely states that a total of 500 tons of aquaculture and marine debris will be removed. It was signed by Park Superintendent Cecily Muldoon in January 2016.

Zugsberger has been very focused in tracking down his concerns. “Once I saw NPS had specified that the treated wood waste (TWW) had to go to a Class 1 dump, I realized I could get a pretty good estimate of actual costs. The disposal of the waste was line item 3 on page 10 in the contract for $1,299,000, out of the initial $3.5 million discussed. It was initially listed as an hourly charge, but was changed to a bulk (fixed price) payment when the contract was revised on 6 December 2016, shortly after I was fired. I don’t know if there was any connection, but any documents on that issues are subject to my FOIA requests. Slow FOIA response, especially from Department of Labor has made it virtually impossible to pursue my wage claims and defend myself against baseless accusations.”

Zugsberger stated: “I called all the California Class 1 dumps, and couldn’t find any who had accepted that much toxic wood waste. It was only when I called a couple of the big waste- hauling companies that I finally discovered where some of the waste had gone. Waste Management’s sales manager recognized the name of the contractor, but he understood that some of the waste had gone to WMI’s Redwood Landfill in Marin, but that they wouldn’t have accepted the wood but that their Altamonte Landfill is not a Class 1 dump, but can accept some treated wood waste (TWW) of this type, but he didn’t remember a large contract like that.” Zugsberger also claimed that Galindo made repeated references to disposing of some of the waste “in the Delta, for erosion control.” Galindo construction has sofar failed to respond inquiries by the RR Times.

Zugsberger went on to describe his analysis; “Altamont is approximately 90 miles from Point Reyes, and 500 tons of waste would require 25 trips. If you assume a generous $2,000 a trip, that’s only $50,000 total, with tipping fees according to WMI being $75 a ton, or $37,500.  If you add $500 to load each truck, for an additional $12,500, which is a very high figure, you still end up with a total of $107,500 for the wood waste. Much of the remaining waste, if not contaminated, would have a significantly lower tipping fee. Using the same cost basis for all of the waste removed, and rounding it up to 1,500 tons, the total bill still comes to only $262,500. So the question is this: where did the waste go, and when you take away $262,500 from $1,299,000, where did just over $1 million dollars go?”

The RR Times has reviewed Zugsberger’s figures, based on the documents provided by the USACE, and documents on the PRNS website, and he is correct in his general understanding.  A 2014 Press Democrat article cites costs of $400,000 for both rack removal and waste disposal.  Court records show that Kevin Lunny of DBOC, in a sworn court statement, provided the estimates of the amount of timber in the racks which were used as the basis of the NPS Engineering report analysis. DBOC estimated the dry weight of the wood as 375 tons, but could weigh more because of water saturation.  It was also noted that such TWW could not be disposed of in a local landfill.  The court documents also note that it was proposed to ship the waste to Marin Resource Recovery Center, a three-hour round trip from the Estero, for a total cost of $9,375. WMRC are licensed to act as a transfer station for Toxic Wood Waste and charge a $150/ton tipping fee. Coupled with the $9,375 trucking costs, this equates to a total of $56,250. As a worst case, applying that cost model to the entire 1,500-ton volume of waste produces a total cost of $225,000, very close to Zugsberger’s estimate of $262,500

Given the major discrepancy between court records, outside confirmation and the line item for waste disposal in the no-bid waste-removal contract, the only way to reconcile the issue is for NPS and its contractors to account fully for the total volume of the waste.  how they stored and handled it in accordance with conditions called for in the permits, and federal and state laws. Equally important is whether the waste ended up in a legal repository, what actual costs were involved and why there is such a huge difference between rationally estimated waste-disposal costs and the amount paid.

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