Outpouring
of Support for Drakes Bay Oyster Farm
By FBWorld Team
The
historic oyster farm in Drakes Estero is one of the resources
Point Reyes National Seashore was formed to protect. Indeed,
the desire to preserve the farming and ranching here is
a major reason Point Reyes is a National Seashore and
not a National Park.
This
is one of the key facts being clarified tremendous outpouring
of support on behalf of Drakes Bay Oyster Company's petition
requesting a re-hearing of its case in the Ninth Circuit.
Eight separate Amicus Curiae friend-of-the-court briefs
have been filed, shedding light on legal, scientific,
historic, economic, and cultural aspects of the case.
The
case is about the oyster farm's request for an injunction
to remain open in the face of Park Service wrongdoing
while its lawsuit against the agency proceeds. In September,
the Ninth Circuit ruled against the oyster farm in a 2-1
split decision, with dissenting Judge Paul Watford writing
a blistering opinion that most observers find extremely
compelling. Judge Watford pointed out that When Congress
was considering the legislation that became the 1976 Point
Reyes Wilderness Act, wilderness proponents "stressed
a common theme: that the oyster farm was a beneficial
pre-existing use that should be allowed to continue notwithstanding
the area's designation as wilderness."
On
October 18, Drakes Bay filed its petition for a re-hearing
by the full panel of Ninth Circuit judges; known as an
"en banc" hearing, the re-hearing is essentially
an appeal of the decision. In its petition, the oyster
farm's legal team points out: "Before it became obsessed
with destroying the only oyster farm in Point Reyes National
Seashore, the National Park Service had for many decades
supported the oyster farm, as did local environmental
groups and the community at large."
Historic
perspectives
That point is underlined in an Amicus brief written by
Dr. Laura Watt, a historian and professor of environmental
studies at Sonoma State University who is an authority
on the legislative history of Point Reyes.
Dr.
Watt's interest in the case stems from her doctoral research
at the University of California Berkeley, which examined
the evolution of the working pastoral landscape at Point
Reyes, after becoming a National Seashore in 1962. She
is currently extending this research into a book.
In a brief filed Monday October 28, James Talcott Linford,
a San Rafael attorney for The Monte Wolfe Foundation (a
California non-profit whose core mission is the preservation
of the Monte Wolfe Cabin, a structure located within the
Mokelumne Wilderness Area) argues that "Savoring
a Drakes Estero oyster is a wilderness experience."
Linford
points out that the Ninth Circuit has, in another case,
"rejected an understanding of the Wilderness Act
that would preserve the wilderness in a museum diorama,
one that we might observe only from a safe distance, behind
a brass railing and a thick glass window," holding,
rather, that it is the Act's intent to assure that the
wilderness be made accessible to people, "devoted
to the public purposes of recreational, scenic, scientific,
educational, conservation and historical use." The
brief shows that the historic oyster farm in Drakes Estero
is a historical use and can easily be considered a conservation
use "given the context of the National Seashore and
the historic bargain between ranchers and environmentalists
that created it."
Support
from shellfish growers
The Pacific Coast Shellfish Growers Association (PCSGA)
filed a supporting brief arguing that both the Secretary's
Order of November 29, 2012 denying DBOC a permit to continue
to operate in the Point Reyes National Seashore, and the
FEIS that informed his decision, ignored the adverse impacts
to the environment, oyster industry, and neighboring community
associated with ordering DBOC to cease its operations,
and that the decision and the FEIS also failed to properly
evaluate the positive environmental impacts associated
with shellfish cultivation.
The
PCSGA brief argues: "Oysters are one of the world's
oldest food sources and provide a healthy, sustainable,
and "green" food source for California and consumers
worldwide. Oysters provide significant sociological, economic,
and environmental benefits to the surrounding environment
and community. These benefits include job production,
tourism, improving water quality through nitrogen and
phosphorus filtration, just to name a few. As the owners
and operators of a historic shellfish farm that operates
on land that has cultivated shellfish for over 80 years,
DBOC plays a significant role in providing these benefits
to Drakes Estero, Marin County, and the State of California."
Government
and activists must comply with the law
The Pacific Legal Foundation filed a brief on behalf of
the California Cattlemen's Association (CCA) detailing
significant legal issues raised by the case. CCA has several
members who ranch within the boundaries of Point Reyes
National Seashore under reservations of use and occupancy
and/or special use permits from the National Park Service,
and these members have a strong interest in ensuring that
the National Park Service complies with applicable laws
when acting on future renewals of their permits.
I
filed a brief myself, taking issue with the process by
which some national activist groups jerry-rigged the public
comment process on the environmental impact statement
to give the false impression to the court and the public
that most people support getting rid of the oyster farm.
In fact, a poll of local residents shows 84% support for
keeping the oyster farm.
Closure
would hurt working families
As reported elsewhere in these pages: Legal Aid of Marin
has filed a brief on behalf of two longtime employees
of the oyster farm, Jorge Mata and Isela Meza, arguing
that "closing the oyster farm will hurt real working
people and their families." Dr. Corey Goodman filed
a brief detailing the false scientific narrative created
and promulgated by NPS in its quest to eliminate the oyster
farm. And on Tuesday October 22, a supporting brief was
filed by San Francisco attorney Judith Teichman and a
coalition of former legislators, environmentalists, and
proponents of the sustainable agriculture practices by
Drakes Bay, including Earth Day co-founder and Sierra
Club "environmental hero" Pete McCloskey.
What's
at stake
"The breadth and number of Amicus briefs in this
case is extraordinary," said Peter Prows, a member
of the DBOC's legal team and a partner at Briscoe Ivester
Bazel LLC. "The wide variety of perspectives represented
is impressive," said Prows; "briefs have been
filed by legislators, scientists, environmentalists, historians,
legal experts, and farmers, and by conservatives and liberals
alike. That's not surprising given what's at stake here-the
question of whether government agencies can abuse their
power with impunity."
By
Sarah Rolph
First
published in the West Marin Citizen October 31, 2013.
Reprinted with Permission
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