Agency findings add setbacks for oyster farm

02/14/2013

The California Coastal Commission on Thursday found Drake’s Bay Oyster Company in prolonged violation of state law and ordered the cannery to plan for unwinding their operations should their fight to remain open fail by a February 28 deadline.

The regulatory agency’s ruling added yet another obstacle to oysterman Kevin Lunny’s decaying campaign to save his business, three days after a federal judge declined to allow continued harvesting in Drakes Estero in defiance of an order by the Obama administration to restore the public land to wilderness. Mr. Lunny’s lawyers are asking the Ninth Circuit Court of Appeals this week to quickly reconsider that lower court’s ruling.

Environmental complaints that have dogged the oyster-farming operation for years also resurfaced last week with the release of a new report by the inspector general of the Interior Department refuting some longstanding claims of scientific misconduct and fraud.

Mr. Lunny had asked the Coastal Commission for additional time to address concerns, some of which date back to before he purchased mariculture rights in 2004, that his operation is in violation of Coastal Act prohibitions on “unpermitted development” and could

negatively impact the environment. But the 12-member panel voted at a meeting in Southern California to issue cessation and restoration orders against the company’s operations in the Point Reyes National Seashore.

The commission said that ongoing oyster-farming operations—including property modification, debris discharge and boat traffic in protected harbor seal pupping sites—could diminish water quality, make the estuary more hospitable to invasive species and damage habitat for eelgrass, seals and other marine organisms. Mr. Lunny has repeatedly denied those allegations.

“We’ve been working very carefully and diligently with the California Coastal Commission leading up to getting a coastal development permit,” Mr. Lunny said in a telephone interview before the meeting. “Coastal Commission staff elected not to give us more time, and they elected to take a unilateral enforcement action against the DBOC.”

The remediation measures required by the commission—which include removing disused oyster racks, cleaning debris, limiting oyster and clam production levels, protecting seal and eelgrass habitats and counteracting the risk of invasive species—“would require literally hundreds of thousands of dollars, if not millions,” Mr. Lunny said.

In December, Drake’s Bay was growing approximately 20 million oysters and 2 million clams in the estuary, with a wholesale value of $10.6 million, according to farm officials.

Supervisor Steve Kinsey, the vice-chair of the Coastal Commission who has long defended the oyster farm, voted with the commission.

“While the Commission’s actions were appropriate under the law, I was distressed that both staff and the conservation group critics felt compelled to paint a very dark view of the operation, when that is not true,” Mr. Kinsey wrote in an email. “The Lunny family has been working hard to clean up problems from the previous operation since the day they bought the business. In addition, it is well documented that the ecological impacts have been misrepresented for some time as a means of justifying termination of the lease, and that is wrong.”

The commission’s order, which was cheered by several environmental groups, also requires Mr. Lunny to develop within one month a plan for how his company will withdraw its property from the estuary should their legal battle against Interior Secretary Ken Salazar fail.

Mr. Lunny’s lawsuit against Mr. Salazar and Jon Jarvis, director of the National Park Service, alleges that the government acted against law, science and the public interest in failing to issue another permit for the company’s operations in November. Mr. Lunny argued in documents submitted in U.S. District Court late last year that Drake’s Bay cannot financially survive, even if it prevails in the lawsuit, if they are forced to unravel their offshore operations by the February 28 deadline set by the National Park Service.

A three-judge appellate “motions” panel could still issue orders preventing that closure. Officials with the U.S. Department of the Interior declined to comment while the lawsuit is active.

The Interior Department’s inspector general’s office on Thursday released its investigation into allegations by a scientist friendly to Drake’s Bay that condemned a government report, first released publicly in 2011, evaluating the impacts of extending the oyster farm’s federal lease.

Corey Goodman, a National Academy of Sciences member and biotechnology entrepreneur, said the environmental impact statement was vitiated by scientific misconduct, apparent conflicts of interest and fraud. Dr. Goodman concluded that because the report was unnecessary, it was also a waste of millions of dollars of taxpayer money.

The Interior report refuted several claims made by Dr. Goodman, finding “no evidence, documents, [draft Environmental Impact Statement] revisions, or witnesses that supported the complainant’s allegations.” Those allegations included criticism that the data used to represent the sound emissions of an oyster-sorting device, for instance, actually came from a cement mixer. The inspector general’s office wrote that U.S. Department of Transportation acoustic experts and “industry standards” validate such a use of so-called “proxy” data.

“Our investigation revealed no intent to deceive the public through the concealment of information as alleged,” said the 43-page public version of the report, which focuses primarily on how the Environmental Impact Statement came to the conclusion that continued oyster farming would have “major” noise impacts. “Because the issuance of [a special use permit] is considered a major Federal action, conducting [the environmental assessment] was required in accordance with [legal] guidance before [a permit] could be issued.”

On Wednesday, Dr. Goodman described the report as a whitewash.

“The latest [inspector general] report on the [park service] soundscape analysis of [oyster farm] equipment accepts every misrepresentation NPS made, raising serious questions about the independence of the IG,” Dr. Goodman said. “The IG accepts the use of the jet ski to misrepresent the oyster skiff, accepts the use of the cement truck to misrepresent the plastic oyster tumbler, and accepts the estimate that the oyster tumbler can be heard for 2.4 miles, something anyone who has ever visited the oyster farm—including Secretary Salazar—knows is ridiculous.”