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: https://www.nationalparkstraveler.org/review/2017/07%E2%80%8B/legacy-yosemite-mafia-ranger-image-and-noble-cause-corruption-national-park-service 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.