Oyster-free Drakes Estero: who knew what when

07/17/2014

In the July 10 Point Reyes Light Op-ed, the Lunnys state their belief that the National Park Service told Charlie Johnson’s lawyer that “the wilderness status of Drakes Estero wasn’t a problem because it was more symbolic than anything else.”

Further, the Lunnys also state their belief that “We took over operations on January 1, 2005, and quickly invested close to a million dollars…. A few months later, the park sent us a letter from their lawyers concluding that the wilderness laws prohibited the renewal of the lease.”

However, multiple records submitted to the Courts tell an entirely different story.

Charlie Johnson’s lawyer represented Johnson Oyster Company (JOC) in the December 2003 Coastal Commission Cease and Desist Order (CDO) that stated (http://www.coastal.ca.gov/legal/Th16a-12-2003.pdf): “NPS has informed Staff that it cannot, under this [Wilderness Act] Act, extend or renew JOC’s lease when it expires in 2012 because the estuary and surrounding [tide] land will convert to wilderness, and the continued operation of a commercial aquaculture facility is inconsistent with the wilderness designation.” 

Mr. Lunny stated to the court  (AR #6, pg. 43) that “when we took over operations in 2005, it was after working with the Coastal Commission staff early in or late in 2004 to understand the 2003 cease and desist order.”  So the Lunnys knew about the Park Service decision not to renew in 2004, before they bought the operation.

Further, in a February 2004 letter to Tom Johnson (Case4:12-cv-06134-YGR Document 75-5), the Department of Fish and Game (DFG) wrote: “Based on information from Don Neubacher, Superintendent, Point Reyes National Seashore, your existing federal lease will terminate in 2012. At that time the leased [bottom] land will revert to wilderness designation and your non-conforming use will not be permitted thereafter.”

With an escrow opened December 17, 2004 (Case4:12-cv-06134-YGR Document72-8), the Lunny family initiated the purchase of the lease from the Johnson family at a substantial discount based on the few remaining years.   So again, the Lunnys knew about the Park Service decision not to renew in 2004, before they bought the operation.

On January 25, 2005, a letter from NPS to the Lunnys (Case4:12-cv-06134-YGR Document72-9) stated, “As we have discussed, there is the issue of the potential wilderness designation…we’ve enclosed the Solicitor’s memorandum for your reference.  Before you closed escrow on the purchase, we wanted to make sure you had a copy [which stated] ‘The Park Service is mandated by the Wilderness Act, the Point Reyes Wilderness Act and its Management Policies to convert potential wilderness, i.e., the Johnson Oyster Company tract and the adjoining Estero, to wilderness status as soon as the non conforming use can be eliminated.’”

So yet again, the Lunnys knew about the Park Service decision not to renew before they bought the operation (closed escrow).

In sum, there is an abundance of records demonstrating that the Lunnys once freely admitted that they knew of the Park’s decision not to renew the mariculture lease well before (not “months after”) they bought the oyster operation or invested any money in it.

The Lunnys have now been operating in our wilderness area for almost 20 months beyond the long-established closure date that has been upheld by four Courts, including the Supreme Court.

The Lunnys have already harvested all the oysters that were in the estero when they were told (yet again) in November 2012 that their lease would not be renewed…and then the Lunnys planted even more and harvested most of those too.  It is time to move on.

Oyster Decision and Ranches

The above 2003-2005 documents point out that the NPS decision not to renew the oyster lease was made on the basis of law and policy long before the scientific controversies broke out in 2007.

This rule of policy over science is consistent with the National Academy statement: “The ultimate decision to permit or prohibit shellfish farming in Drakes Estero necessarily requires value judgments and tradeoffs that can be informed, but not resolved, by science.”  

Thus the oyster-science claims did not drive Secretary Salazar’s decision on the oyster operation nor will ranch-science claims mandate outcomes in the upcoming ranch planning process.

In contrast, the Lunnys believe that the Park Service scientists “put a bull’s eye on the ranchers’ backs by identifying them in the farm’s recent environmental impact statement as the primary source of nonpoint-source pollution in an oyster-free Drakes Estero.”

But again, the actual records tell an entirely different story.  The reference described as a “bull’s eye” from the Park Service does not come from Park Service at all, but instead comes from the 2006 and 2010 Sanitary Surveys conducted by the California Department of Public Health, whose studies were done when Drakes Estero was full of oysters, rather than “oyster-free.”

In fact, the Environmental Impact Statement (pg. 303) goes on to note: “Ranchers in cooperation with the NPS have installed riparian fencing and implemented other BMPs to reduce cattle access to stream habitat.”

So it is past time for this community to work in cooperation with the NPS and ranchers to outline best management practices for the dairying and ranching operations that are intended to continue, and put the disputes, beliefs, claims and counter-claims about this oyster operation behind us. 

 

Gordon Bennett of Inverness is president of Save Our Seashore