Ordered to close, oyster farmer sues federal government

12/06/2012

A government watchdog group filed a lawsuit on behalf of Kevin Lunny on Monday alleging that Interior Secretary Ken Salazar’s decision to close Drakes Bay Oyster Company violates the United States Constitution and the American Procedure Act, and that the release of the controversial Environmental Impact Statement (EIS) on the oyster farm violated the National Environmental Policy Act (NEPA) and the Data Quality Act.

The Secretary’s decision was made on the eve of the expiration of the farm’s operating agreement with the National Park Service and a week after the release of the EIS.

As part of the lawsuit, Cause of Action, a Washington, D.C.-based nonprofit working pro bono, requested a temporary restraining order and permission for the farm to continue operating until the litigation is resolved. The park service had declared its right to enter the property to inspect and monitor at any time during the next 90 days—the length of time Mr. Lunny was given to wind down activities before Drakes Estero is converted from a potential to a designated wilderness area.

Should that conversion occur, the 2,500-acre estuary would join nearby Estero de Limantour, which was converted from potential to designated wilderness in 1999, as the only federally protected marine wilderness areas on the West Coast.

The civil action suit, filed with the United States District Court for the Northern California District, requests the court either issue a 10-year permit that would allow the farm to operate under the terms of its original agreement, or require that the Interior Department and park service prepare a new EIS for review by a “neutral decision-maker.” Magistrate Judge Elizabeth Laporte will preside over the case.

Cause of Action’s complaint argues that Secretary Salazar’s decision to shutter the historic farm and cannery is “null and void, of no effect, as unconstitutional under the Fifth Amendment; arbitrary and capricious, an abuse of discretion, or otherwise not in accordance with law, in violation of the [Administrative Procedure Act]” and that the issuance of the EIS was in violation of NEPA and the Data Quality Act.

It names Secretary Salazar and Jon Jarvis, director of the park service, as defendants, along with other unnamed federal employees who “knowingly or recklessly provided, presented, gave, or are otherwise responsible for false and deliberately misleading information, misrepresented data, misstatements, material omissions, and other material inaccuracies in the [EIS] or otherwise acted in bad faith in the environmental review process.”

Dan Epstein, executive director of Cause of Action, said his organization became involved when they saw that “Interior was using scientific data we viewed as flawed to justify a draft EIS to deny a permit. “[This lawsuit] tells the story about how flawed science can lead to real-world impacts, allowing the government to engage in arbitrary and capricious actions to shut down small businesses,” he said on Tuesday.

He expects Judge Laporte to rule on the restraining order and injunctive relief “as soon as a hearing can be calendared.”

In a press release announcing the decision last Thursday, Secretary Salazar said he had taken the matter very seriously. “We’ve undertaken a robust public process to review the matter from all sides, and I have personally visited the park to meet with the company and members of the community,” he stated.

The Secretary spent one day visiting with Mr. Lunny and his wife, Nancy, six of their supporters, 10 wilderness advocates and park service employees—the latter meetings behind closed doors—on November 21, one day before Thanksgiving and a week before he issued his decision.

In a seven-page memo addressed to Mr. Jarvis last Thursday, the Secretary explained that he had based his decision on the 1972 legislation establishing Point Reyes National Seashore. He said that legislation allowed for ranching and dairying “in keeping with the historic use of that land” but did not authorize mariculture.

He acknowledged that the operating agreement made at that time with Johnson Oyster Company indicated the “possibility of a new permit after the [agreement’s] expiration but in no way suggested that one would definitely be issued.”

He expressed his wishes that the park service affirm a commitment to continued agriculture in the seashore as well as aid Mr. Lunny’s workers in their relocation.

“Because of the importance of sustainable agriculture on pastoral lands within Point Reyes, I direct that you pursue extending permits for the ranchers within those pastoral lands to 20-year terms,” he wrote. Historically the ranchers were granted renewable five-year leases but in recent years the park service was authorized to extend those to 10 years. Like the oyster farm, the ranchers originally were granted Reservations of Use and Occupancy, which were later renewed through short-term Special Use Permits such as that sought by Mr. Lunny.

The Secretary told Mr. Jarvis to “use all legal authorizations at your disposal” to assist with relocation, employment opportunities and job training for the 31 employees, 15 of whom live on the farm.

On Tuesday Point Reyes National Seashore officials hosted a “stakeholder” meeting at headquarters about the fate of the workers; the meeting was unpublicized, and neither Mr. Lunny nor his workers were informed of the event, which seashore spokeswoman Melanie Gunn called “open.”

She declined to say who was invited or what was discussed. This was the second such invitation-only “stakeholder” meeting in recent weeks, the first occurring during Secretary Salazar’s visit.

Cause of Action’s suit, co-signed by San Diego law firm Stoel Rives, also working pro bono, takes issue with Secretary Salazar’s interpretation of the very legislation that gives him the authority to decide the oyster farm’s fate. That legislation was written by Senator Dianne Feinstein, a staunch oyster farm supporter, and passed as an amendment to a 2009 appropriations bill.

In his memo last Thursday, the Secretary described his power to make the decision as “notwithstanding of any other provision of law,” quoting the 2009 bill. He wrote that the preparation of an EIS was therefore unnecessary, but that the document had helped to inform his decision anyway.

But Mr. Lunny’s lawyers said the decision was still subject to NEPA, which requires the preparation of an EIS for any major governmental decision. And they said the 2009 Feinstein bill left Interior Department ample time to follow NEPA procedures.

Instead, the park service waited until the fall of 2010 to begin work on a draft EIS. The final version was not released until the week before the oyster farm’s lease expired, allowing no time for public review and comment. And other NEPA procedures were ignored, including the submission of the final EIS to the United States Environmental Protection Agency, which had not taken place as of Wednesday.

Nor did the EIS address substantive criticism levied by the National Academy of Sciences and community stakeholders, many of whom were left feeling that the document was both legally inadequate and substantively flawed.

Other critics say the park service and Interior misled the public by acting as though they were following NEPA—and spending over $1 million on an EIS that was ultimately thrown by the wayside.

Cause of Action also alleges that Secretary Salazar’s decision constitutes a “taking” by the federal government. There are currently eight to 10 million oysters in Drakes Estero and only a fraction of those will be harvested within 90 days, Mr. Lunny said. He estimates the value of those oysters at harvest at $4 to $5 million.

Amber Abbasi, chief counsel for regulatory affairs at Cause of Action, said the park service’s termination of Mr. Lunny’s state water-bottom lease also constitutes a taking. That lease is good through 2029, though it was modified at the request of the former superintendent of Point Reyes National Seashore to hinge on the farm’s federal lease, which covers only the onshore facilities.

Ms. Abbasi argues that Secretary Salazar’s decision-making process was “subject to statutory and constitutional limits that protect the procedural rights of individuals and businesses. We are asking that the Court review that decision-making process and hold the agencies accountable for their disregard of the law.”