There’s no shortage of options for framing the struggle over Drakes Bay Oyster Company’s future in the estero of Tomales Bay.
Good vs. evil; David vs. Goliath; truth vs. fiction; citizen vs. government; business vs. environment: There’s no shortage of options for framing the struggle over Drake’s Bay Oyster Company’s future in the estero of Tomales Bay. The showdown has been shaping up for the better part of a decade. This is the third time I’ve written about it in this magazine and, so far, I’m flunking the test put forth by famed journalist Robert Scheer: “In any story, I want to know who’s getting screwed and who’s doing the screwing.”
The legal wrangling over whether the National Parks Service will let the company stay put or make good on its order to pack it up is set for a hearing before the Ninth Circuit Court of Appeals in May and, thanks to the vagaries of publishing and the appeals court, as these words find their home with you, the outcome likely won’t be known.
But there’s quite a tale on how we got to this moment. It’s full of improbable alliances, enough twists and turns to make the folks at Sonoma Raceway envious and a boatload of heated debate that’s divided Marin County into several camps, some of which have nothing at all to do with oysters.
The Phrase “strange bedfellows” doesn’t begin to cover it. Louisiana Republican Senator David Vitter, an advocate of coastal oil drilling, teamed up with Democratic Senator Dianne Feinstein, a California legislator who counts herself an environmentalist, with the product being an amendment that could give Drake’s Bay more life.
The “Energy Production and Project Delivery Act of 2013” is a piece of legislation authored by Vitter and signed onto by 20 Republicans. In a statement about the bill, Vitter said it will create 2 million jobs and $2 trillion in federal taxes over three decades by “increasing access to our domestic resources.”
How would that work? The bill calls for easing the environmental regulations to allow oil and gas exploration in the Arctic National Wildlife Refuge and open the coasts to oil exploration. A section of the bill calls for Drake’s Bay being allowed to continue operating for 10 years with an option for another 10 years at the company’s request, and for the NPS to abandon the wilderness designation for the estero. The amendment regarding Drake’s Bay was added to the Senate Concurrent Resolution for the 2014 federal budget.
Another powerful politician weighed in on the Drake’s Bay controversy. Rep. Doc Hastings (R-Wash.) sent a letter to Secretary of the Interior Ken Salazar, demanding documents connected to the decision to give the oyster operation the heave-ho. Hastings is chairman of the House Natural Resources Committee, and while his request for materials from Salazar doesn’t constitute an investigation, it wasn’t a love letter, either. “Serious questions have been raised about the science used by the NPS to justify the closure of the oyster farm,” read Hastings’ missive.
Hastings’ letter sparked a public war of words between Kevin Lunny, whose family owns the Drake’s Bay Oyster Farm and Rep. Jared Huffman (D-San Rafael). In a Press Democrat article by Guy Kovner, Lunny praised Hastings’ interest in science, causing Huffman to opine “If the GOP leadership is interested in science, this would be a first.” Huffman also said that Hastings’ support mirrored the Republican agenda to make public lands “available to oil and mining interests.”
Then you have the nonprofit that’s paying the freight on the legal fight by Drake’s Bay to preserve its business in the Point Reyes National Seashore. Cause of Action, the Washington, D.C.-based organization, bills itself as governmental watchdog. Drake’s Bay is also receiving legal support from Briscoe Ivester & Bazel LLP, Stoel Rives LLP and SSL Law Firm LLP.
Cause of Action’s Executive Director Dan Epstein is a former counsel for the Charles G. Koch Charitable Foundation, an organization connected to Charles and David Koch, who control the second-largest private corporation in the country, Koch Industries. It has revenues of $115 billion per year. As you might imagine, the brothers Koch, worth $21.5 billion each, according to Forbes (a figure that makes George Lucas’s $3.2 billion worth look almost paltry), have a bit of disposable income and a few hobbies they enjoy pursuing. Among them is bankrolling the Tea Party. Their support of the oyster company has come under fire in the county known for its liberal pedigree. I’ll come back to this later.
The controversy over whether Drake’s Bay Oyster Co. should stay open has divided Marin County in a way most natives have seldom seen. It’s separated environmentalists into at least two different camps. Those who favor the NPS stance backing the restoration of the estero to wilderness feel that they have the law on their side and point to the 1976 law that called for the area to attain a status whereby it would be untrammeled by man. They also feel any effort to extend the oyster farm agreement sets the dangerous precedent of welcoming more businesses into the national park system.
At the same time, there are environmentalists who point to the oyster company as a prime example of a company operating in a way that respects the environment and provides food in a textbook, farm-to-fork example.
Then there are the pragmatic environmentalists, who see the oyster farm providing 31 jobs as well as housing for 15 of the workers, knowing all of that goes away should the appeals court rule the NPS got it right in deciding against a lease extension.
This isn’t to say Marin’s environmental community has ever spoken with one voice. But this issue has been particularly divisive. The West Marin Environmental Action Committee has passionately fought against the oyster company staying, championing the need for the estero to be as close to wilderness as possible. And Marin Organic, a nonprofit dedicated to organic agriculture and the promotion of Marin County as an environmental brand, is a party to amicus brief in support of Drake’s Bay Oyster Company.
The seafood saga has become a national story, with coverage in the New York Times, the Wall Street Journal and the Los Angeles Times as well as conservative outlet RedState and left leaning Daily Kos. This it say nothing of the local TV coverage. The controversy has spawned the website SavePointReyesWilderness.org dedicated to having the oyster operation exit, and the website DrakesBayHealing.org, a website hoping to help locals move beyond the vitriol over the oyster issue. Celebrity chef Alice Waters signed on to a friend of the court brief supporting Drake’s Bay.
The NPS decision to shut Drake’s down isn’t the first time the company has ended up on the business end of a public agency’s lawyers. The California Coastal Commission has had a number of skirmishes with the company over the permit process. In February, the commission voted unanimously to hit the company with a cease and desist and restoration orders over several alleged violations of state environmental laws.
In April, the Alliance for Local Sustainable Agriculture out of Marshall brought a lawsuit in Marin Superior Court alleging the commission’s decision violated CEQA as well as the state Coastal Act.
Marin loves debates, and the more public the better. City council meetings over issues that, to the uninitiated might seem simple or straightforward often trail into the wee hours. Residents hoping to persuade elected town leaders to look favorably on a remodeling project often come armed with land use attorneys, landscape designers, architects and feng shui consultants. With West Marin as a backdrop, the fight over oysters and wilderness takes on the classic tone of a showdown. And the simple truth is that this corner of Marin has in too many ways been pushed to the edge—and now it won’t give an inch in any direction.
The backstory
Representative Clem Miller of Corte Madera, along with Marin County Supervisors Vera Schultz and Peter Behr, fought to create Point Reyes National Seashore, with Miller authoring a bill in 1959. In 1962, President John F. Kennedy signed the bill into law authorizing $14 million to buy 64,000 acres. As late as 1970, the park was threatened by development before the project began to gain momentum.
In 1972, NPS purchased the land that belonged to the Johnson Oyster Company (which had been in operation since 1957) for $79,200 and leased the property back to Johnson, with the “reservation of use” expiring in 2012. In 1976, the Point Reyes Wilderness Act was passed, which designated portions of the seashore as wilderness or potential wilderness, including the estero.
In 2004, Kevin Lunny and his brothers, Robert and Joe lll, bought the oyster operation—and, with it, a reservation of use (ROU) until 2012—from the Johnson family for $72,000. They set about cleaning up the operation and rehabilitating the oyster farm and cannery.
The Lunnys knew what they were getting into, as they lived on the Lunny Ranch and were neighbors of the Johnsons. The Lunny Ranch is also known as G Ranch, and sits inside the boundaries of the park. The family operates Lunny’s Drakes Bay Family Farm, which produces organic grass fed beef, and also owns Lunny Grading and Paving. The Lunnys had been doing some work on the Johnson farm before they even thought about buying the place, and the local chatter had the Johnsons looking to unload the place.
Kevin Lunny told NorthBay biz in 2008 that, when his family was kicking around the idea of buying the Johnson’s out, they approached Point Reyes National Seashore (PRNS) Supervisor Don Neubacher about his thoughts on a deal. Neubacher told Kevin that he thought it unwise because Johnson had permit and environmental challenges.
But the next day, according to Lunny, Neubacher called back, told Lunny the deal was a great idea and that the NPS could help them with the permits.
A trio of permits was required and the first two were cake, according to Lunny. But the last permit included a clause that required the family to sign an agreement with specific language agreeing that they’d vacate the property in 2012. Lunny told NBB he asked Neubacher why his family would want to sign that agreement. “This wasn’t what Don wanted to hear, and that’s where the debate heats up,” Lunny said.
The family had a business plan for operating the oyster farm that had them breaking even, maybe making a little money, based on a 2012 exit. But the Lunnys also knew it was possible for NPS to extend the ROU if it wanted to, despite the Wilderness Act.
From here, the tale becomes an unending series of dramas, where various studies are authored that show the Lunny operation harms native harbor seals, that oyster farming harms the ecosystem and that the environment is being harmed by the continued operation of the oyster farm. The studies are met by the Lunnys’ own counter-studies, which show the conclusions—and, sometimes, the scientific methods used to compile data—are, to be charitable, questionable.
The Inspector General for NPS finally got into the act after the Lunny family complained the department was harassing them. The family charged that park officials had engaged in “scientific misconduct and disparate treatment,” according to the Inspector General’s report. The resulting 53-page investigative report found that a 2012 report from the Point Reyes National Seashore dealing with the environmental health of the estero contained several mistakes. It also blamed Senior Science Advisor Sarah Allen with misinterpreting scientific data and took Neubacher to task over how he dealt with Lunny’s claim that the oyster farm actually improved the estero’s ecology. The National Academy of Science also found fault with scientific information dispensed by the PRNS.
Salazar came out to West Marin in late November 2012 and visited Drakes Bay, sitting with the Lunny family and some of the oyster farm employees, getting a small feel for the place before serving notice eight days later that he felt it best that the oyster operation shut down.
In a statement about Salazar’s decision, Senator Feinstein said, “I’m extremely disappointed that Secretary Salazar chose not to renew the operating permit for Drake’s Bay Oyster Company. The National Parks Service’s review process has been flawed from the beginning with false and misleading science, which was also used in the Environmental Impact Statement. The Secretary’s decision effectively puts this historic California oyster farm out of business. As a result, the farm will be forced to cease operations and 30 Californians will lose their jobs.”
Amy Trainer, executive director of the Environmental Action Committee of West Marin had a decidedly different take, “We are ecstatic that this ecological treasure will be forever protected as marine wilderness,” she said in a statement on the group’s website. “We’re so grateful to Secretary Salazar for choosing to honor federal law and policy and for upholding the integrity of all our national parks and our wilderness preservation system.”
The legal nut
Less than a week later, Lunny filed a lawsuit in U.S. District Court in San Francisco alleging that Salazar and the National Park Service had ignored due process provided by the National Environmental Policy Act, and that the decision to move Drake’s Bay Oyster Company out was based on faulty science. “If allowed to stand, Secretary Salazar’s decision will terminate 31 full-time jobs, deprive 15 employees of affordable housing, hijack a property right of the state of California and permanently tear the fabric of a rural community," the lawsuit stated.
By February, the future of Drake’s Bay Oyster Co. was once again in doubt when U.S. District Judge Yvonne Gonzalez Rogers ruled against the company’s suit. She wrote in her decision that she didn’t believe she had authority to overturn NPS’s decision, and that, even if she had such power, Drake’s Bay had not shown that it would likely win the case on the merits.
Later that month, the Ninth Circuit of Appeals granted an emergency injunction that let the company continue harvesting oysters until the court could hear the appeal in May. Kevin Lunny had this to say at the time: “We’re beyond thrilled that our business will now remain open while we continue to fight the decisions from the court and Secretary Salazar that have put our business at risk. We’re so grateful for the support we continue to receive from the community and our legal team, and we now will press on in our fight as the lawsuit proceeds. Our fight has always been about more than just our business. Our fight is, and will continue to be, about the great service Drake’s Bay Oyster Farm provides to the community as an innovative, sustainable farm, an educational resource and part of the economic fiber of Marin County.”
William Robertson, the dean of Empire College School of Law, was circumspect regarding the case, saying it was important enough that the court of appeals decided to hear it while noting that the appeals court represents the Western United States.
The Ninth Circuit is widely thought to have a liberal biased, and so it might lean toward upholding the wilderness designation. But a look at the roster of 41 active judges suggests that the politics may not be so clear. A total of 25 judges were appointed by Jimmy Carter, Bill Clinton or Barack Obama, while 16 were placed by Richard Nixon, Ronald Reagan or one of the Bushes. The case will be heard by a three-judge panel, but that decision could be appealed for hearing by the entire circuit.
A North Bay lawyer familiar with the appeals court said, “The politics, to me, isn’t such a big deal. This decision could go well beyond whether the oyster company stays or goes. Depending on how the court words the decision, it could impact the ability of businesses throughout the West in National Parks, from grazing rights and leases to tour companies.”
At this point, it’s worth noting that the day that Salazar ruled against Drake’s Bay Oyster Company, he also announced that other businesses in the National Seashore, such as working ranches, would receive additional time on their leases. The NPS wouldn’t comment on the reasoning behind lengthening the agreements, but it seems obvious it was concerned that the Drake’s Bay decision would prompt ranchers and dairies to wonder if perhaps they were next.
The bigger picture
It’s hard to argue that Drake’s Bay hasn’t benefited from the support of conservative politicians. Besides the bill authored by Vitter of Louisiana, Darrel Issa (R- Ca.) has taken on the Interior Department over its treatment of the oyster company. He also called for an investigation by his House Committee on Oversight and Government Reform of the Drake’s Bay denial.
In fairness, a straight line cannot be drawn from Cause of Action to the Koch brothers. But Cause of Action has drawn the suspicion of oyster company critics not just because of Executive Director Dan Epstein’s former position with the Kochs. Cause of Action, a new nonprofit, has refused to reveal the identity of donors and has yet to file a tax return where donors’ names would be found. And given the Kochs’ lavish record of giving to groups that share their social or political agendas, this has led some to jump to the conclusion that the Kochs are behind Cause of Action’s legal defense of the oyster farm.
The Koch holdings include energy and petrochemicals, minerals and agriculture including a cattle operation outside of Yellowstone Park in Montana.
Critics have also pointed out that the environmental review of Drake’s Bay Oyster Company cost NPS $3 million and that, as federal budgets grow leaner, it might choose to simply renew leases held by businesses rather than spending money on environmental studies that might be required after the Ninth Circuit renders a decision.
The Cato Institute, a conservative think tank, has advocated for the privatization of public lands, as has American Legislative Exchange Council and Americans for Prosperity; the latter two organizations have received millions of dollars in contributions from the Kochs. This, in turn, has some other organizations worried about how Drake’s Bay fits into that movement, or, perhaps more to the point, what kind of precedent it might set.
Helen Grieco, the Northern California organizer for Common Cause, is among those who are worried. “I think there’s something deeper going on here. This is really suspect,” she says. “This isn’t about a little oyster farm: Why is somebody paying $200,000 to defend the farm? Who’s really behind it?”
Cause for Action is on record as saying it hasn’t received any money from the Kochs, and its defense of Drake’s Bay is about making the federal government follow the right process.
To be sure, this story long ago left the confines of cozy Tomales Bay. It’s now morphed into a tale that stretches from Washington, D.C., up to Alaska and down into the Bayou. And while the yarn is now populated with high-profile politicians and billionaires trying to keep a low profile, it’s useful to remember it began with a small business comprised of people simply trying to make a living. And one way or another, that’s the way it will end as well—once the circus leaves town.
And you can bet cleaning up after the clowns and elephants won’t be pretty.
