Coastal Commission sued over Drake’s orders

David Briggs
Phyllis Faber, an original member of the California Coastal Commission, is suing the agency.
04/11/2013

In a new round of legal proceedings for the embattled oyster company, of the Marin Agricultural Land Trust co-founder Phyllis Faber and the Association for Local Sustainable Agriculture (ALSA) filed suit against the California Coastal Commission Friday, claiming the commission’s recent orders to Drake’s Bay Oyster Company exceeded the agency’s authority and were not subjected to environmental review before being issued, a violation of the California Environmental Quality Act (CEQA).

Oysterman Kevin Lunny filed his own suit, which alleges the same jurisdictional overreach and environmental repercussions but also contends that the commission denied the oyster farm due process when it issued the orders.

Mr. Lunny worries not only for the fate of his own farm but for the precedent the commission’s orders could have on shellfish production in the entire state.

“Somebody has to stand up for Drake’s Bay Oyster Company,” said ALSA board member Donna Yamagata, who noted that though her group believes the commission “does a lot of good,” the recent orders “basically violated environmental law” and threaten the farm’s existence.

On Wednesday, the court approved ALSA’s requested writ and ordered the commission to show good cause for the orders. A hearing will take place on July 9 in Marin County Superior Court.

Ms. Faber, an original member of the 41-year-old commission, explained to the Light in a phone interview she was “the only one that had standing to file the lawsuit in the public because I testified at the [commission] hearing” in February and felt compelled to do so because the orders would “bankrupt” the family-owned business.

“If they persist in these orders, it would completely destroy that estero,” she said. The suit claims that the commission’s orders require “digging into every inch of the water bottom” to remove Manila clams—an invasive species, according to the commission—an action which would “destroy plants and animals living on water bottoms,” such as eelgrass.

Ms. Faber is taking a leave of absence as a Marin Agricultural Land Trust board member for the duration of the suit.

The commission, the Department of Fish and Wildlife and Marin County Supervisor and Coastal Commissioner Steve Kinsey did not return requests for comment before press time.

The Environmental Action Committee of West Marin criticized the oyster farm lawsuit on Tuesday, saying in a statement that it “chose to sue the commission rather than comply with coastal protection laws.”

The suits say that the commission did not perform an environmental review of the potentially harmful impacts of the cease-and-desist and restoration order issued in February, as required by CEQA, a decision ALSA’s suit called “arbitrary and capricious.” The suits say the commission’s orders, which could take about two and a half years to complete and could include removing up to 95 racks of oyster cultivation as well as two million Manila clams, would create 260 tons of biological waste, and that the intensive construction work required to carry out the orders would harm the ecosystem.

The commission has said it is exempt from CEQA, according to a staff report. A press release from the Environmental Action Committee said that “regulatory actions by government agencies to protect natural resources or the environment, and enforcement actions, are categorically exempt from CEQA
review.”

Zach Walton, a lawyer for ALSA and Ms. Faber, said that the exemption does not apply if the orders could significantly impact the environment.

Both suits also assert that the commission is reaching beyond its jurisdiction because aquaculture in the estero is regulated by the California Fish and Game Commission and the California Department of Fish and Wildlife. The commission claims authority to issue the orders because the oyster farm was operating in the coastal zone without a development permit.

But the suits say the commission’s orders asserts controls, such as the removal of an invasive tunicate and Manila clams, in an area over which it does not have jurisdiction and contradicts leases already issued. The oyster farm has a lease from the state valid until 2029 to operate on just over 1,000 acres of water bottoms in the estero.

“This order has huge implications that have created fear with all of the shellfish growers throughout the state,” Mr. Lunny told the Light. He said that if the commission could shut down ostensibly invasive shellfish cultivation that Fish and Game had already authorized, such as Manila clams, the commission could theoretically shut down clam cultivation or even all shellfish cultivation throughout California, as Pacific oysters are not native either.

Mr. Walton agreed that the orders could put “other shellfish operators in an untenable situation” because they “can have authorization from Fish and Game but can’t trust that it means what it says.”

Mr. Lunny also said compliance with some aspects of the orders were not only environmentally problematic but unfeasible. The requirement to eradicate didemnum, an invasive tunicate that grows on hard surfaces, is “impossible” to fulfill because it would just be reintroduced from San Francisco Bay. He added that trying to remove it would disrupt other native species in the water.

On Feb. 7, the coastal commission held a public hearing and voted unanimously to issue a cease-and-desist order and a restoration order to the oyster farm. The former requires the farm to stop development and remove anything that is on the land as a result of “unpermitted
development.”

The restoration order requires the farm to remove all equipment and operations from the premises, including the oyster racks, which hold about 19 million oysters.

If the farm wins its case in federal court against the Department of the Interior, parts of the orders will be “inoperative,” according to the commission’s staff report. But some provisions, such as the removal of clams and didemnum, are supposed to be undertaken immediately and are not contingent upon the federal case.

While the commission issued a consent cease-and-desist order in late 2007—meaning that Mr. Lunny agreed to the terms—the commission issued a unilaterial CDO in February because of “continuing noncompliance and lack of compliance with Coastal Act requirements,” according to a staff report.

That noncompliance and includes the replacement of six picnic tables, the installation of a refrigeration unit and the digging of a temporary trench during an electrical emergency.