Local purveyors sue over oysters

07/24/2014

Drakes Bay Oyster Company is set to close its shack next week per government orders, but local restaurants facing the loss of a West Marin staple are making a last-ditch effort to save the farm; a coalition of food purveyors and farm supporters filed a lawsuit late last week in federal district court to stop the eviction.

The suit claims that then-Secretary of the Interior Ken Salazar needed to follow certain legal procedures, such as consulting with a federal aquaculture coordinating group, before making his decision in 2012 on the farm’s permit. His failure to do so violated the Administrative Procedures Act and harmed the interests of local businesses that rely on Drakes Bay, the suit says.

Government lawyers have argued over the A.P.A.’s relevance to the secretary’s decision before, during litigation with the farm. The government asserted that Congress authorized the secretary to bypass all laws when he made the decision. Though the Ninth Circuit Court of Appeals agreed it could not review the secretary’s ultimate authority, they said he had to follow laws or procedures that didn’t mandate a particular outcome.

On Tuesday the plaintiffs were notified that Judge Yvonne Gonzales, who sided with the government last year in district court, will rule on the injunction. As of Wednesday evening, they had not heard anything further on the filing.

Half of the plaintiffs in the suit are culinary outfits in West Marin: Tomales Bay Oyster Company, Osteria Stellina, Saltwater Oyster Depot, Café Reyes and Margaret Grade of Sir and Star. The other parties include Hayes Street Grill, a seafood restaurant in San Francisco; the grill’s co-owner, Patricia Unterman; the Alliance for Local and Sustainable Agriculture; ALSA board member and rangeland ecologist Jeff Creque; and farm employee Loretta Murphy. (The farm is not a plaintiff.)

In a statement posted to indybay.com, the executive director of the Environmental Action Committee of West Marin, Amy Trainer, called the lawsuit “desperate.”

“Nobody likes a sore loser, instead of accepting ‘no’ they filed a meritless lawsuit that delays the inevitable closure and prolongs the much-needed healing in our community,” said Ms. Trainer, whose group has long argued that there cannot be a commercial enterprise in a marine wilderness.

Bridger Mitchell, the board president, told the Light that the claims should have been aired long ago. “The federal courts have already strongly and consistently upheld Secretary Salazar’s decision, and of course that was to let the lease expire and restore wilderness...I think the chance to express yourself to the courts was a year and a half ago, so we hope that everyone will respect the courts holdings and cooperate with the seashore and leave this divisive issue behind.”

The new suit claims that the secretary’s decision to close of the farm without considering the effect on domestic aquaculture threatens local restaurants as well as the century-old Tomales Bay Oyster Company.

Tomales Bay Oyster Company has purchased between 6,000 and 15,000 oysters a week from Drakes Bay since they started keeping track in 2012, according to the suit. They typically sell, in total, around 30,000 a week in the summer and 20,000 weekly in the winter. If Drakes Bay closes, they expect to lose between $250,000 to $400,000 a year.

The company leases enough acreage in the bay to cultivate more oysters. But Tod Friend, an owner of T.B.O.C., told the Light that ocean acidification has made it virtually impossible to buy more seed. “Theoretically, we could grow all the oysters we need to supply our customers, but it’s a seed problem. We can’t get enough seed from hatcheries in the Northwest to fuel our need,” Mr. Friend said.

That need is trending up; they’ve been buying more from Drakes recently. And if Drakes Bay’s customers start to seek their oyster fix along the East Shore, that demand will only rise, he added.

T.B.O.C. must also contend with the possibility of harvesting closures due to a bio-toxin that can make the oysters in the bay temporarily poisonous. This past winter, the state health department closed the entire bay to harvesting for weeks because of high levels of a toxin caused by algae that can give people paralytic shellfish poisoning. T.B.O.C. purchased heavily from Washington state and Drakes Bay so that it didn’t turn customers away.

Restaurants in Point Reyes say they also rely on Drakes Bay as a feature of the farm-to-table experience. Stellina “will no longer be able to consistently serve fresh locally sourced seafood,” the suit says. Saltwater Oyster Depot will have less to offer customers who come to eat local bivalves.

Over the past year and a half, Interior Department lawyers has asserted that the decision to either renew or a refuse the farm a permit was not subject to any legal constraints. They cited a clause in a 2009 appropriations rider that gave the secretary the discretion to make a decision on the farm permit “notwithstanding any provision of law.” For instance, though the park produced an Environmental Impact Statement, the government argued it wasn’t technically required to prepare one.

The oyster farm fervently contested this interpretation. They argued that the secretary was required to follow a host of laws, including NEPA, if he refused to offer the permit, though he could ignore them if he renewed it.

During the farm’s own attempt to secure an emergency injunction to remain open, both the federal district court and the Ninth Circuit sided with the federal government on the secretary’s ultimate authority. (The Supreme Court declined last month to hear an appeal of those rulings.)

But the Ninth Circuit didn’t agree with either side’s interpretation of the “notwithstanding” clause.

Judge Margaret McKeown, writing for the majority, said the secretary had broad, but not totally unfettered, authority. He could make whatever decision he wanted, but he was required to follow laws, like NEPA, that didn’t require a particular outcome. “As a general matter, ‘notwithstanding’ clauses nullify conflicting provisions of law…Procedural constraints that do not conflict with the authorization would apply to the Secretary’s decision regardless of whether he granted or denied the permit.”

According to Stuart Gross, the lawyer representing the long list of plaintiffs, that means the federal government must consider the National Aquaculture Act, which stipulates that federal agencies with jurisdiction over aquaculture consult with a coordinating group chaired by the Secretary of Agriculture. The suit also says the secretary should have evaluated the decision’s effect on the state’s public trust right to fish and its consistency with the Coastal Zone Management Act, which requires federal agencies to consult with state coastal commissions before making decisions that impact coastal resources.

Mr. Gross has, until now, not been involved in any of the legal battles related to the farm. But he is familiar with fights between fishing rights and government interests; he is also representing the herring fisherman in their lawsuit against the Golden Gate National Recreation Area, which wants to prohibit commercial fishing in San Francisco Bay waters that border park land. (“That’s how the plaintiffs found me,” he said.)

“These are process laws. They don’t mandate a particular outcome, so there’s no way these laws conflict with that authority. He could still make whatever decision he wants to make, as long as he follows the law,” he said.