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.

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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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Senator Salazar vs. Secretary Salazar

On November 1, 2005, in Room 364 of the Dirksen Senate Office Building, Senator Salazar testified at a hearing of the Subcommittee on National Parks of the Committee on Energy and Natural Resources, United States Senate.  The purpose of that hearing, as stated in its title, was to “RECEIVE TESTIMONY ON THE NATIONAL PARK SERVICE’S DRAFT MANAGEMENT POLICIES, INCLUDING POTENTIAL IMPACT OF THE POLICIES ON PARK OPERATIONS, PARK RESOURCES, INTERACTION WITH GATEWAY COMMUNITIES, AND SOLICITATION AND COLLECTION OF DONATIONS.” Coincidentally, at the same time, the Lunny’s had just completed negotiations with the Johnson Oyster Farm and the National Park Service to take over operations of the historic oyster operation and begin a massive cleanup and permitting process to bring the farm into regulatory compliance.

In view of subsequent events, Senator Salazar’s comments in the Senate Subcommittee are eerily similar to the sentiments of many who have visited Drake’s Estero and question Point Reyes National Seashore’s attempts to close the oyster farm:  “But it seems that there was something hidden, something done in the dark of night, something done in the back door closets to try to come up with a new set of rules to accomplish some purpose that we are trying to define here.”  The November 2005 Senate hearing on National Park Service (NPS) Management Policies, while not directly referring to the events in Point Reyes, nonetheless addressed many of the concerns expressed about Drake’s Estero, and how they should be treated in light of the Organic Act of 1916 which is the legislation that created the Park Service.

One issue that was raised was “A disturbing trend in recent years has been the inclination of park managers to almost immediately select closures or prohibitions in dealing with use management issues. Instead of seeking to manage uses to conserve resources or to accommodate different users, it has been too easy to simply post a `closed’sign. The proposed rewrite takes a far more professional, and refreshing, approach. It prescribes intermediate steps to manage, mitigate or avoid resource impacts or user conflicts. Only when management cannot correct a problem are closures or prohibitions prescribed. (See 8.1.2).” (as raised by the testimony of Don H. Carberry, former Director of the Midwest Region of the National Park Service.)

 This is exactly what happened in Pt. Reyes starting in 2005. Then-Superintendent Neubacher, shortly after the Lunnys took over the oyster farm, simply ignored the policy requirements and represented to the local community and government that his hands were tied, the lease was non-extendable (not true) and stated flatly that he was shutting down the oyster farm.  When Marin County Supervisor Steve Kinsey questioned NPS and expressed concern because of the oyster farm’s critical importance to the economy of his district — and sustainable food production in West Marin – Neubacher’s response was to abruptly and unexpectedly announced to the President, Marin County Board of Supervisors that NPS was suspending all work on pending permits required to operate the farm, and instead, was asking the US Attorney to bring civil and criminal charges against Kevin Lunny, operator, Drakes Bay Oyster Company for harm to harbor seals and the environment.  Within days, Lunny submitted asked the Interior Department’s Inspector General to investigate.

The record of the IG report shows that at the time he made these accusations, the Park Service Superintendent had no evidence to support them.  These actions lead to the Marin County Board of Supervisors unanimously asking Senator Feinstein to bring about a resolution, which then centered around the misleading scientific claims presented by Neubacher and his staff and lead to not one but two studies by the National Academy of Sciences, who concluded that the Park Service had misrepresented science in claims against the oyster farm, as well as concluding that continued oyster operation did not represent a significant threat to the health of the Estero.  It is also telling that in three studies — two by NAS and one by the Marine Mammal Commission — the independent scientists who have looked at the estero have found no incompatibility between the oyster farm and the ongoing environmental health of the estero.

When NPS is in charge of the investigation, such as with their original ‘Sheltered Wilderness’ report and the current Environmental Impact Statement (EIS), each time they make false claims of harm and impairment, such as the importation of 50-year-old oyster sediment research data from Japan and attributing it to the oyster farm (as concluded in the IG report).  Their attempts to claim harm from oyster farm disturbance of harbor seals was disproved by their own hidden camera program, which they concealed from National Academy of Sciences (NAS) and the Marine Mammal Commission (MMC) as noted in the Department of Interior’s (DOI) Frost Report) and now, the hopelessly flawed draft EIS claims of sound violations based on false data, presented as if from Drakes Estero, which came from a 1995 New Jersey State Police study of jet ski noise – 3,000 miles away. Not only did they import this false data, but ignored the fact that it was contradicted by their own data from the Volpe sound report, which was partially and incorrectly cited in the draft EIS. (DEIS)

Visitor satisfaction was a major source of concern at the 2005 Senate hearings on NPS Management Policies, and there are several very telling comments that apply to the Estero.  Over 50,000 people a year from 44 States, 12 countries and three provinces in Canada have enjoyed the oyster farm along with countless school children who have enjoyed educational visits on the ecology of oysters and the Estero, hosted by the Lunnys.   The segment of the environmental community that opposes the oyster operation has attempted to create a myth of the wilderness experience and aesthetic, damaged by the oyster operation.  This point is flatly denied by the science and those who spend the most time on the estero, as shown by the comments of the commercial kayak companies  response to the DEIS. The text of their comment is attached below and directly contradicts the DEIS manufactured claims of sound impairment.  The resource value and visitor enjoyment of the oyster farm, as a historic resource that predates the existence of Point Reyes National Seashore (PRNS), is clearly to be preserved over the aesthetic experience of a small group.

William P. Horn, former Assistant Secretary for Fish and Wildlife and Parks, Department of the Interior, stated in direct testimony that: “No intellectually honest reading of this Act (Organic Act of 1916) can support the notion of treating large “natural” units of the Park System as unmanaged, untouched biological preserves with visitors to be kept on the other side of the glass or fence.” In subsequent written response to the Committee, Assistant Secretary Horn continues: “Management policies must clearly distinguish between these values as a resource and these values as aesthetics. Where the former is clearly identified, actions to conserve the resource is fully appropriate and necessary. Where the latter is at issue, NPS must not try to transmute aesthetic values into resources. Moreover, management for subjective aesthetic values must be considered openly and honestly and decisions made with regard to the 1916 Act, the purposes for which individual units were established, and the obligation of a public agency to treat all citizens fairly.”

The concerns of the 2005 hearing, in which U.S. Senator Ken Salazar participated, have come home to roost in Drake’s Estero. especially his own concerns about NPS process, quoted at the beginning of this article. Groups that differed from then Superintendent Neubacher’s vision of PRNS policy have been airbrushed out of existence.  The Marin County Board of Supervisors, who raised many of the initial alarms have been ignored, along with the fate of the families of the oyster workers, who were simply eliminated from the mandated socio-economic study which was so devastatingly criticized in the DOI/Atkins review of the DEIS.  NPS simply ignored Information Quality act filings by local newspapers and stakeholders groups, and refused to enter into open dialogue with the community, and now it appears that a decision will be made before the public and stakeholders such as local government even have an opportunity to take advantage of the mandatory public comment period.

It’s time to honestly involve all the stakeholders and bring rational and policy-driven decision-making to Point Reyes. The Secretary of Interior should preserve Drakes Estero as the special place it is – as an historical, working, educational landscape. It’s time to bring policy and intellectual integrity to the debate about Drakes Estero. This is a working seashore, full of agriculture, mariculture and ranching, part of a thriving community. This Seashore was created by a partnership between agriculture and environment to preserve the working landscape for future generations. Continuation of the historic oyster farm is an integral part of that working landscape and was incorporated into the very structure of the Point Reyes National Seashore. Under all the issues discussed in the hearing, the oyster farm is entitled to conservation under the ruling Organic Act of 1916 and the NPS policy which implements the act.

At Wednesday’s visit to Pt. Reyes, Salazar said he will reach a decision about the future of the oyster farm by the 30th of November, notwithstanding the fact that NPS just released the final EIS, allowing no reasonable time for public review, a behavior that Salazar found unacceptable in the 2005 hearing.  The decision will reflects whether he will allow continued politicization of policy under increasingly out-of-control NPS bureaucrats who have spent millions of dollars of public money in their attempts to destroy the oyster farm or, as he indicated in the 2005 hearing, that he believes in the integrity of the Organic Act, which has done so much to insure future enjoyment of our National Parks by the many diverse visitors.  Secretary Salazar should  preserve the oyster farm and restore the integrity of NPS management.

____________

 (Here  is the DEIS comment from the kayak organizations who provide tours of Drakes Estero.  The kayakers refute the portion of the DEIS where NPS falsely implies that the kayakers wilderness experience is ‘interrupted’ by the oyster farm, calling it “misleading” It should be noted that the kayakers operate under license from PRNS and kayaking is mentioned repeatedly in the DEIS, yet they state that they, as stakeholders, were not contacted in its preparation.)

As the three largest and longest operating local kayaking companies, that consistently provide the majority of kayaking tours on Drakes Estero, we feel it important to provide a statement of our experiences of Drakes Estero and Drakes Bay Oyster Company.  Between our 3 companies we operate at least 85% of the public kayaking tours on Drakes Estero. We feel the paragraph below misrepresents the wilderness experience that we have consistently encountered over the years and that we have been misrepresented within this section of the impact statement. 

“In 2010, three of the authorized kayak operators reported providing tours in Drakes Estero.  In total, 221 visitors were accommodated on these tours during the 8-month period Drakes Estero is open to kayakers.  Drakes Estero, which is congressionally designed potential wilderness, offers kayakers an outstanding opportunity for solitude while enjoying primitive and unconfined recreation.  This is a hallmark quality of a designated wilderness area.  Such a wilderness experience, however, is currently subject to interruption by motorized boat traffic, handheld pneumatic drills, and other generators of noise associated with DBOC operations.  A more in-depth description of the soundscapes within the project area can be found in the “Soundscapes” section of this chapter.  Additional background on wilderness qualities can be found in the “Impact Topic: Wilderness” section.” (p. 213 DEIS) 

During our many kayak outings on the estero, the “soundscape” of the wilderness area has not been impacted by the noise of the farm. The use of power tools can be heard while one is on shore preparing to launch, but the noise quickly fades after leaving the shore in Schooner Bay paddling toward the potential wilderness area. While kayaking on Home Bay and Creamery Bay, any noise of farm operation is undetectable. Over many years of operating tours on the estero, we have never had guides or clients comment on the pneumatic drills negatively impacting their experience while kayaking or hiking within the estero.  

Oyster boats are rarely seen in action and if we do encounter boats, they are always very respectful of our presence, making sure not to disturb us or wildlife in any way. “I have been guiding on the estero for four years and only once have I encountered a motor boat. And it was on purpose. Kevin Lunny was meeting our group at the oyster beds to discuss the history of aquaculture, and his oyster farming techniques.” Tressa Bronner, Point Reyes Outdoors

We feel that the above section of the DEIS does not accurately represent our experience of Drakes Estero or Drakes Bay Oyster Company and infers that we have stated these complaints to the park or others when we have not. Nor we have we been contacted directly by the park for feedback on our experiences concerning either Drakes Estero or Drakes Bay Oyster Company.  

Attached you will find comments from the individual companies that collectively signed this statement.

Thank you. 

Laurie Manarik, Mike Rudolph, Tressa Bronner – Point Reyes Outdoors – Point Reyes Station

Bob Licht, Steve Hayward – Sea Trek Kayaking Center – Sausalito

John Granatir,  Pamalah McNeilly – Blue Waters Kayaking – Inverness

Point Reyes Outdoors Company Statement: 

I have kayaked and hiked Drakes Estero personally and professionally since 1992 and have never been disappointed with the wilderness experience.  The launching experience however, has been much improved since the Lunny family took over operation of the Oyster Farm.  Not only have they cleaned and improved the physical location but they offer an educational and historical component that enhances our client’s experience of the area. Their willingness to share information on sustainable aquaculture and its history in the area has been a terrific addition to tours for school groups and scout troops.

Having the DBOC operation means there is an emergency phone and boats within the estero and accessible to us which provides a welcome level of comfort, knowing help is available in an area that is hard for rescue operations to get to quickly. While this is not a component of wilderness, their generous assistance did help us get a client who was having trouble breathing back to shore quickly and without incident. 

Laurie Manarik, Point Reyes Outdoors – Point Reyes Station

                  www.pointreyesoutdoors.com  (415)663-8192

Sea Trek Company Statement:

I have always felt that the Oyster Company adds rather than distracts from the paddling experience.  It is rare that people get to see an environmentally conscious operation and they like to find out the story of how oysters are grown.  It is similar to MALT taking people on educational tours of the Strauss Dairy.  We have never heard any complaints from our clients about the noise or distraction of motorboats.  The expectation is that one is entering a working Bay which only adds to the experience and we still see the requisite amount of wildlife, seals and waterfowl.  We haven’t noticed that they are disturbed by the operation.

                        Bob Licht/Owner – Sea Trek Kayak and Paddleboard Center
www.seatrek.com   (415) 332-8494

Blue Waters Kayak Company Statement: 

We at Blue Waters Kayaking feel that the presence of Drake’s Oyster Farm has not been of any detriment to Blue Waters Kayaking or any of our clients. On the contrary, we feel that it has positive cultural and historical significance, is of economic importance to the local community, is a significant example of benign, non-harmful aquaculture, is a safety resource for recreation users, and is in general a model and well run company that should have the option of continued presence on Drake’s Estero.  We do not feel that the “wilderness” aspect of the Estero is compromised by the presence of the Oyster farm. 

                                John Granitir & Pamalah MacNeily – Blue Water Kayak

                                                                www.bwkayak.com  (415) 669-2600

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An Open Letter to the Members of the New National Academy of Sciences Panel on NPS Science at Drakes Estero

We wish to share with you our experience from nearly 6 years of covering the story of National Park Service Science at Drakes Estero. Our purpose is to provide you with an understanding of the stunning arc of NPS unethical conduct disguised as science.   It is important for you to know as much as you can about the context of this conflict, as the NPS has created multiple generations of hypothesis of harm which when subjected to scientific scrutiny, have been shown to be based on fraudulently applied data, withholding of key information, obtuse statistical manipulations and misrepresentations to public officials.   We are restricting ourselves to the NPS’ scientific conduct, though their behavior in the political and regulatory arenas are equally unacceptable.

If the Panel is to properly advise Congress and the American public on this matter, it is vital for you to understand the source and selection of not only the data, but the manner in which it has been manipulated, beginning in 2006.   In January of that year, the Park Service began their politically-motivated attempts to close Drake’s Bay Oyster Company (DBOC).  In the 2006 “Sheltered Wilderness Report” (withdrawn from the NPS website at the direction of then-NPS Director Mary Bomar at the recommendation of Senator Feinstein)  NPS made undocumented claims of serious environmental damage. NPS also claimed to Marin County Supervisor Steve Kinsey that they had data to prove criminal environmental behavior by Kevin Lunny of DBOC.  As the NAS determined in its study, no such data existed at the times these claims were first made, nor does it exist now, despite the NPS’ subsequent attempts to manufacture data and create controversy over the contents of the NAS report.

For NPS to establish one of its major claims of harm–that the oyster operations were the principal source of sedimentation in Drakes Estero–the NPS literally ‘imported’ irrelevant data from 6,000 miles away from intensive oyster culturing in Japan, conflating it with a deliberate misquote from a USGS researcher who had studied sedimentation in the estero. Further still, even though the California Department of Health and the USGS researcher pointed out to NPS the falsity of their claims, they presented it to the public as if the data had come from Drakes Estero . (See pp7-30 of the first IG report) and subsequent reports, wherein they find that not only has the NPS deliberately misled the public and Marin County officials concerning alleged harm from oyster operations but failed to ensure that ethical and integrity standards were met.

Now, five years later, you must evaluate a disturbingly similar situation, in which the NPS has taken data from a different situation on the other side of the country (decades old jet-ski noise data from 3,000 miles away on the New Jersey shore) and knowingly used it to prepare the Environmental Impact Statement as if it were actual sound data collected at Drakes Estero, using it as the basis for NPS to fabricate yet another claim of serious environmental impact from the oyster farm. The behavior of the NPS and their Virginia based EIS contractor VHB ( led by the recently retired NPS official responsible for compliance with environmental protection laws) is stunningly similar to the  unacceptable manipulation of the sediment data that started this chain of deceit, contributing to Congressional demands that NAS investigate the highly questionable EIS.

The divergence between the actual sound data and the jet ski data represents a greater than 300 times overstatement of impact by NPS and its consultants. (Click on image for larger version) This graphic from an earlier article shows the footprint of sound claimed by NAS, which covers approximately 4000 acres.  The Estero itself is approximately 2200 acres, while the green circle which represents the actual recorded  sound levels, covers approximately 12 acres. The sound levels of the Environ data are confirmed by data from the NPS Volpe microphone as cited in the DEIS and by the Russian River Times informal tests.  It appears that neither NPS, VHB or Atkins compared their jet ski  noise claims with the Volpe data they themselves cited in the DEIS. 

As panel members, you would do a great public service were you to ask the NPS:

  •          why the noise issue never surfaced in the first NAS study (or anywhere else in the             preceding five years)
  •           why NAS chose to hold your recent field meeting in Los Angeles, rather than in Point Reyes, where you could have visited the estero. As possible explanation, we offer this graphic from an earlier Russian River Times article, showing the enormity of the NPS’ distortion of fact which would have been audibly and visibly apparent if you had visited.
  •           why did the NPS find there was no need for an EIS in a total rebuild of the oyster farm. In 1998, the NPS signed a negative declaration, finding that no EIS was required for a complete upgrade of the oyster operation. What subsequent scientific data justifies this complete reversal of position?

When the first case of fraudulent claims about sedimentation surfaced, we were amazed at the NPS’ disregard of its own procedures to insure scientific integrity. In 2006 our reporter, then writing for the Point Reyes Light, consulted with Dr. Brian Schrag, an ethics expert at the Poynter Institute for the Study of Ethics and American Institutions. Schrag commented: “Some have charged that under the current (Bush) administration, government scientific research has become politicized. One of the things that is worrisome, if that happens, is that normal checks and balances of scientific research can be compromised. In such circumstances, appealing to internal procedures of a particular government agency may turn out to be futile.” We find his word to be particularly true at Drakes Estero. The NPS has ignored its own procedures and standards not only scientifically, but in conducting the EIS itself, as is made clear by many of the informed comments on the draft EIS, such as that submitted to your panel by Dr. Laura Watt.

You are dealing with a threatened NPS bureaucracy that has been unable to duck responsibility for its actions and subsequent cover-up and is squirming under a Congressional microscope. Here, we can draw a parallel with the experience of retired Navy Admiral Hal Gehman, who headed the investigation into the Columbia Shuttle disaster (as a senior admiral, he had led other major investigations, including investigation of the terrorist attack on the USS Cole). Speaking to writer William Langewiesche during the investigation, Gehman said: “It’s been scorched into my mind that bureaucracies will do anything to defend themselves. It’s not evil–it’s a just a natural reaction of bureaucracies and since NASA is a bureaucracy, I expect the same from them. As we go through the investigation, I’ve been looking for signs where the system is trying to defend itself.

Initially, NASA administrator Sean O’Keefe formed his own parallel, internal investigation team, which included Linda Ham, a Shuttle program manager who–it later turned out–played a key role in events leading to the disaster.  They tried to deflect investigation from the actual cause. Gehman wrested control of the program from O’Keefe. “I’m not going to get rolled by the system…Now, when I hear NASA telling me things like ‘Gotta be true!’ or, ‘We know this to be true’ all my alarm bells go off.” In a key move, Gehman established direct support from Congress for his independence, rewriting the stated mission to include “root cause and circumstances” which turned out to be NASA’s politicized misuse of science and engineering.

The NPS has already ‘rolled’ the NAS, manipulating one investigation and now, they appear to be trying to do it again. Many in our community wonder why the NAS has let itself be drawn into another NPS-controlled investigation, especially on such an unrealistic time schedule. One of the many NPS hypotheses of harm discredited in the NAS report was alleged patterns of disturbance of harbor seals by oyster workers. The NAS report concluded that the volunteer observation database was inadequate to support the NPS conclusions and was never intended to be a regulatory tool, but a way of detecting long term trends.  The NPS report stated that that date-stamped photos [of worker activity and seal disturbance] would be needed to support such claims. During the entire NAS investigation, the NPS deliberately concealed the fact that they had undertaken three years of minute-by minute-photographs during the pupping season in an attempt to prove harm.  It is important to note that this data revealed zero oyster farm disturbances, and that some claimed disturbances were attributable to kayaks, yet NPS failed to share this exculpatory evidence.

We believe that the careful wording of the NAS ‘Statement of Task’ is designed to emasculate your review, down to the careful choice of language that avoids an evaluation of ‘data.’ We urge you to follow Admiral Gehman’s example and include “root cause and circumstances” and a specific evaluation of data and its appropriate use in your report if the NPS is to be held to any level of scientific integrity and follow the procedures described in its own manuals. (Apparently for legal reasons, senior NPS management vociferously opposes characterizing the concealed photographs and other information as data, as shown on p29 of the Frost report.)

Now, you face the same circumstances in the NPS’ use of obsolete jet-ski data imported from New Jersey as representative of the actual DBOC sound levels.   The Russian River Times investigation shows that the NPS and its consultants not only failed to follow NPS policy and directly measure DBOC-generated sound levels but knew that the outdated jet-ski data were not representative of the modern DBOC four-stroke outboard motors, built to current regulatory standards.  We urge that your report clearly analyze the NPS’ behavior, starting with the sedimentation issues, following through failure to reveal the existence of the exculpatory photographs and ending with the misleading ‘importation’ of the jet-ski data in the over-all preparation of the EIS.

Previously, NAS staff was far too solicitous of the National Park Service. Evidently several of the previous panel members were of the same opinion, as there were multiple leaks of drafts of their report and other documents. The  draft outline report contained the directive: “Sloppy use of data, but forgive the troops.” What ‘data? Who are the ‘troops’ and for what are they being forgiven? Worse still was the editorial input that reduced the comment on the NAS harbor-seal papers from “so biased as to be meaningless” to a final version that relied on highly obtuse discussion of statistics and causality, inaccessible to the general public.

Science is being distorted to justify an NPS political decision that has already been made.  Starting in 2006, we have observed multiple generations of hypothesis of harm, presented as Federally measured scientific fact. Yet, as each successive hypothesis of harm is discredited, the NPS creates a controversy over an insignificant point in an attempt to deflect the criticism and fabricates a new hypothesis that in turn–as with the use of New Jersey two-stroke jet-ski sound data–proves to be false.

Science is an intensely human endeavor, whose success rests to a large part on trust that the data has not been manipulated.  Here,we show two clear examples where the NPS has been caught violating this basic bedrock of scientific ethics, first with the sediment data and now with the noise data, yet the staff, consultants and peer reviewers working for NPS and DOI failed to fulfill their responsibility under the DOI ethics and scientific integrity policy, which covers all employees and consultants and volunteers.  We realize it is distasteful to have to deal with unethical behavior by ones scientific peers, but under the DOI science integrity policy manual, obligations are clear.  NPS is obliged to have notified you of your responsibilities, incorporating such language into your contract.  If in the course of your study you find evidence of scientific misconduct, section 3.6 (H) 4 defines your obligations.  You are responsible for, “Reporting to the appropriate officials, as described in Section 3.8 of this chapter, knowledge of scientific misconduct that is planned, is imminent, or has occurred.”  Without your panel’s intervention, the NPS and its EIS process will continue in violating all three.

We cannot overemphasize how damaging NPS behavior has been to the local public’s perception of federal science and policy, not only regarding the oyster farm, but a host of other issues.  NPS and its consultants are asking us to believe that a 300-fold error in sound footprint, as shown in the previous graphic, makes no difference to the conclusions of the EIS.  This is clearly stated in a May 7, 2012 letter from  peer review consultant ATKINS to Dr. Ralph Morgenweck,  DOI Scientific Integrity Officer.   Essentially, having been caught with their hand in the data jar, the NPS consultant abdicates responsibility by saying that the EIS is fine, no one is wrong, its too complicated and repeats that tired, over-used scientific excuse, ‘further research is required’.  It never addresses the huge errors caused by the bogus NPS data nor its origin. The citizens of West Marin and the general public know when they are being lied to by NPS and its consultants.  We look to your panel to protect us from this kind of scientific dishonesty and abuse of policy.

Loss of trust in science damages not only our coastal communities but the the entire Nation and is a clear and present threat to the future of our environment.

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