Drakes Bay suit now cites violation of state’s rights

08/07/2014

The coalition of food purveyors suing the Department of the Interior over the ouster of Drakes Bay Oyster Company from the Point Reyes National Seashore is now alleging that the federal government had no right to kick the oyster farm out of Drakes Estero because of the state’s property rights.

A new business has also joined the plaintiff’s ranks: Dixon Marine Services, an oceanographic and wetland restoration firm located in Inverness, which says it heavily relied on shell from Drakes Bay’s shucking and cannery operation (which closed last week) to fulfill a contract with the Coastal Conservancy to build artificial reefs in San Francisco Bay.

Interpretations of the state’s “right to fish” in Drakes Estero, a right retained by the state when it turned over the water body to the federal government in the 1960s, have shifted since the creation of the seashore. Though federal and state officials at that time believed it applied to aquaculture operations, more recently federal and some state officials have argued that the right to fish doesn’t pertain to oysters and that the federal government has primary authority over the bottoms.

Late last month a group of West Marin restaurants, oyster farm supporters and the Tomales Bay Oyster Company filed a lawsuit stating that the federal government didn’t follow necessary procedures, such as assessing the impact of the farm’s closure on domestic aquaculture, when it declined to issue the farm a use permit in 2012. An updated complaint, submitted to federal court on July 31, claims that when the government ordered to the oyster farm to cease operating, it also ignored the state’s right to lease the estero for shellfish cultivation. Because the state never ceded those rights, the Interior violated the 1962 Point Reyes Seashore Enabling Act, the suit states.

“What this claim is focusing on is whether the Department of Interior had the authority to affect a cancellation of the state of California’s property interest to the bottomlands of Drakes Estero,” said Stuart Gross, a lawyer for the plaintiffs.

The current lawsuit cites correspondence between the state and federal governments from 1966, as well as a 1974 environmental impact statement for establishing wilderness in Point Reyes, to support their argument.

In 1965, the governor of California approved legislation transferring to the federal government “all of the right, title and interest…in and to all of the tide and submerged lands or other lands beneath navigable waters” in the seashore. It made two basic exceptions: one for mineral rights, including oil and gas in the submerged lands, and the other for the right to fish.

William Bagley, at the time the state assemblyman who authored the legislation, said he told the Johnson family, which then owned the oyster company, that they weren’t affected. “I, the author, told Johnson, ‘Don’t worry about it. You’re protected; you have a right to fish,’” Mr. Bagley, who is also a lawyer for the plaintiffs, told the Light.

The next year, the director of the California Department of Fish and Game (now Fish and Wildlife), Walter Shannon, wrote to the superintendent of the seashore to clarify whether the legislation affected oyster farming. 

Mr. Shannon refers to the “right to fish” and then writes, “It thus appears that all State laws and regulations pertaining to shellfish cultivation remain in effect.” Then-superintendent of the seashore Leslie Arnberger responded that the seashore was “quite agreeable” with that interpretation.

The 1974 environmental impact statement undertaken for the creation of wilderness in Point Reyes, which ended up designating Drakes Estero potential wilderness, also assumed the state had a right to issue oyster leases, asserting, “Control of the lease from the California Department of Fish and Game, with presumed renewal indefinitely, is within the rights reserved by the State on these submerged lands.” It also said that the oyster business precluded wilderness and that there was “no foreseeable termination of this condition.” 

Though it said that a wilderness designation would afford the estero more ecological protection if the oyster farm ever vacated, it added that its economic and interpretive benefits were appropriate for what was considered a recreational park.

When the state created marine protection areas along the coast in the 2000s, restricting fishing in a network of preserves in order to strengthen marine ecosystems, it designated the estero as a state marine conservation area. Two uses are permitted: the recreational taking of clams and commercial aquaculture.

And in 2004, the California Fish and Game Commission renewed the farm’s shellfish leases until 2029. The leases were made contingent on park authorization, but in a July 2012 letter, the commission urged the park to issue the oyster farm a special use permit. Commission director Sonke Mastrup said that the commission “has clearly authorized” shellfish cultivation. 

But despite the 1966 correspondence, the California Department of Fish and Wildlife—which carries out the commission’s regulations—has in past years asserted that the state does not have primary jurisdiction in the estero, and that the right to fish does not extend to aquaculture.

In a 2007 letter from the C.D.F.W.’s director at the time, Ryan Broddrick, to the seashore, Mr. Broddrick told the seashore that aquaculture “is properly within the primary management of the [seashore], not the Department.” Though the state does have authority to manage the leases if the seashore allows oyster farming, he wrote that aquaculture cannot be considered part of the state’s right to fish because the oysters are private property. 

The department forcefully reiterated this position in 2008. In a letter to Jared Huffman, at the time the area’s state assemblyman and now a congressional representative, then-acting director of C.D.F.W. John McCammon wrote, “…‘the right to fish’ over tidelands is a public right and cannot be exclusive. By contrast, a state water bottom lease confers on a person the private right to exclusively cultivate and harvest aquatic organisms in the leased area.” In a footnote, he added that the 1966 correspondence regarding the right to fish was baseless.

However, more recently, in 2012, current C.D.F.W. director Charlton Bonham wrote to the seashore that the 1966 correspondence “strongly suggests” that the agencies believed the right to fish included the right to lease the water bottoms for aquaculture “indefinitely.” (When asked for comment on the “right to fish” issue, a C.D.F.W. spokesman sent the 2008 letter.)

The California State Lands Commission has concurred with the agency’s older interpretation that the state has no essential right to lease the water bottoms for aquaculture. 

The federal government has also asserted that the right to fish doesn’t cover leasing the bottoms, and that the Fish and Game Commission doesn’t actually have leasing authority in the estero at all. 

In 2012, a field director for the Department of the Interior, Barbara Goodyear, wrote to the Fish and Game Commission that because the right to fish didn’t extend to aquaculture, the state of California “has no real property interest to convey to DBOC through the mechanism of a state water bottom lease” and was “without leasing authority.” (All of the alternatives in the 2012 environmental impact statement on the farm hinged on the farm giving up its state leases.)

Mr. Gross said regardless of how one interprets the “right to fish,” the state still has an established property right based on the 1966 correspondence and the Point Reyes Wilderness Act’s environmental statement. “They confirmed amongst themselves that that law effected a reservation of property interests by the state of California” for oyster cultivation, he argued.

And according to Mr. Bagley, these more recent interpretations ignore not just the correspondence from 1966 and the 1974 E.I.S., but the decades that the oyster farm has existed and received state leases. “Fifty years of usage, plus the statement by the Department [of the Interior] that they acknowledged jurisdiction, and then 10 years later they acknowledged that again—it is pure property law,” he said.