Despite drastically curtailing operations at its popular picnic site last month, Tomales Bay Oyster Farm still faces substantial, unresolved regulatory problems.

The most serious issue is that the company’s largest aquaculture site, located off Millerton Point, has never had a coastal development permit. Within the last year—for apparently the first time—staff from the California Coastal Commission have suggested in letters over the past 14 months it may need an after-the-fact permit, which could be both exorbitantly expensive and curtail the farm’s operation.

The oyster company maintains that the 156-acre site, which is currently the largest lease in Tomales Bay, shouldn’t need a permit because oysters have been cultivated in this location since 1875. The Morgan Oyster Company began growing oysters in the area in 1909, and the business was renamed Tomales Bay Oyster Company in 1913, according to a report written by Scott Hochstrasser, a consultant for T.B.O.C. The farmed tidelands were originally privately owned, but the state began to acquire them in the 1970s. 

State records for the site in question appear to date back to 1976, according to Mr. Hochstrasser’s report, written last year. In October of that year, a 320-acre area around Millerton—which incorporates the current site in question—was leased by the state to the American Shellfish Corporation. 

At the time, state Fish and Game staff wrote that the corporation was taking over an area previously cultivated by Tomales Bay Oyster Company. In his report, Mr. Hochstrasser surmised that the absence of records before 1976 may be explained by the company’s historical operation on individually owned tidelands.

Tomales Bay Shellfish Farms took over the lease in 1983, though the area had been reduced to 156 acres after a previous grower abandoned much of the acreage. The lease was transferred to Tomales Bay Oyster Company L.L.C., whose majority owner and operator is Tod Friend, in 2012. But the Millerton lease has no coastal permit authorizing its operations.

T.B.O.C.’s lawyer, Peter Prows, has repeatedly argued that none is needed in his responses to the commission.

Mr. Prows rests his argument on two premises. First is that “ongoing agriculture” is not considered development under the Coastal Act. Second is that the lease, he said, has been continuously farmed since well before  the passage of the Coastal Act, giving T.B.O.C. “vested rights” to cultivate oysters on that lease. A vested right means that an activity can continue as it always has even after new regulations take effect—in other words, the lease area was essentially grandfathered in.

“All [current ] oyster-cultivation activities were either ongoing or planned before the Coastal Act became law in 1977,” Mr. Prows wrote in January. 

Coastal commission staff declined to comment on specifics regarding the open investigation into issues around T.B.O.C., but in letters have offered shifting statements over the last year. In May a staffer—who also wrote in one letter to Mr. Prows that it had only recently come to the agency’s attention that T.B.O.C. cultivated oysters on the lease in question— wrote to Mr. Prows that the oyster farm may have a vested right, but would need to apply for an official determination. They also said any such right would date from 1973, when a ballot measure passed to create the commission.

Then in August, Louise Warren, the deputy chief counsel for the commission, wrote in a letter that even if Mr. Prows’ points are correct, that the oyster company still needs federal authorization for its offshore operations, and recommended that such authorization be obtained via a coastal development permit. (She also disputed his interpretation of whether the lease constituted a developement.)

The cost for securing a coastal permit for the Millerton site is unknown. Ms. Warren wrote that application fees it would depend on how much it had cost to develop the site, and application fees are five times higher for after-the-fact permits. Mr. Prows said it would be “unfathomably expensive” in a letter to Steve Kinsey, coastal commissioner and Marin supervisor. The company would likely also have to pay for biological studies and reports. 

Additional problems

The commission has also charged the company with a host of lesser regulatory infractions since 2014.

T.B.O.C was ordered earlier this year by the Gulf of the Farallones National Marine Sanctuary to remove a berm it constructed late in 2014 near the mouth of Walker Creek—work for which it has also had to secure a coastal permit.

Mr. Friend wrote in an email on Wednesday that “the Walker Creek lease ‘reef’ that I had created has been removed as of today and I will be notifying [the commission] as to the completion of that permitted project. We have been working closely with [the commission] on getting this done…T.B.O.C. has but one goal at this point in time and that is to get ‘legal’ with all the agencies by meeting all lawful demands.”

The placement of picnic facilities, rocks and a revetment on its bayside property is also an alleged violation of the Coastal Act. Though the business had been trying to obtain permits from the county to legalize these improvements, it recently pulled its application and removed the picnic tables and barbecues. 

The most recent alleged violation is for depositing oyster shell—approximately 2,000 square feet of it, eight inches deep—on a bay mudflat near one of its piers, though outside its lease area, without a permit. The violation notice, delivered last month, appears to have been triggered by a picture submitted by photographer and activist Richard James, who runs a blog about the trash and debris he finds around Tomales Bay. He told the Light he had never seen so much shell in one place. 

“It’s not just shells,” Mr. James said. “There’s lemons and utensils and bottle caps.”

The shell was deposited in order to help employees load and unload oysters from company boats to trucks, Mr. Prows said in a letter to commission staff. The shell was placed immediately next to the pier and on private property by both T.B.O.C and its predecessors. Mr. Friend also said in his email that he believed his county use permit authorized the shell. But both said that the shell has now been removed.

Commission spokesperson Noaki Schwartz declined to answer specific questions about the open enforcement case against T.B.O.C. 

“There is an ongoing enforcement matter open on onshore and offshore activities at the site, and one of the things we’re looking into is the allegation of unpermitted shell deposits,” Ms. Schwartz wrote in an email earlier this month.