Guest bloggers from Berkeley Law Environmental Law Society: Contextualizing Secretary Salazar’s Recent Decision on Oyster Farming at Point Reyes

NOTE: This post is by Legal Planet guest bloggers Nell Green Nylen, Heather Welles, Dan Carlin, Elisabeth Long, and Mary Loum, all members of UC Berkeley’s Environmental Law Society during the 2011–12 academic year.  (See more details about the work of these law students and new lawyers at the end of the post.)

Aerial view of Drakes Estero, which became wilderness on December 4th, from sand spit at inlet. Photo credit to David Zinniker.
Aerial view of Drakes Estero, which became wilderness on December 4th, from sand spit at inlet. Photo credit to David Zinniker.

If you have been following the controversy surrounding oyster farming in Drakes Estero, part of California’s Point Reyes National Seashore, you might have been surprised to learn why the Secretary of the Interior ultimately decided not to give Drakes Bay Oyster Company (DBOC) a permit to continue its shellfish farming operations in the estuary.  It’s a move that allows the waterway to finally achieve full wilderness status after spending 36 years in limbo as congressionally designated potential wilderness.  In his November 29th decision memorandum Secretary Salazar explained that his decision was not premised on local environmental or social concerns, but solely “on matters of law and policy,” namely:

  1. “[t]he explicit terms of the 1972 conveyance” of 5 acres of land adjacent to Drakes Estero from DBOC’s predecessor, Johnson Oyster Company (JOC) to the federal government, in which JOC kept a 40-year Reservation of Use and Occupancy (RUO) for the 1.5 acres bearing its oyster processing facility, and
  2. allowing DBOC to continue operating in the estuary would violate National Park Service policy “concerning commercial use within a unit of the National Park System and nonconforming uses within potential or [full] wilderness, as well as specific wilderness legislation for Point Reyes National Seashore.”

Why did this rationale shock many observers?

For years, media coverage has tended to portray the dispute as hinging on inconclusive scientific assessments of DBOC’s environmental impacts, with the National Park Service and DBOC presenting competing views.  In fact, as Secretary Salazar’s decision memorandum reflects, there are independent, long-standing legal and policy bases for ending the shellfish farming operation.  While the uncertain science has led to a series of prominent reviews by the National Research Council (in 2009 and 2012; see Ian Fein’s 2011 article for a description of the NRC’s role), the Marine Mammal Commission (in 2011), and the U.S. Geological Survey (in 2012), among others, there is much more to the Drakes Estero/DBOC story.

DBOC is a relative newcomer to Drakes Estero.  Although the company’s owner, Kevin Lunny, and his family have run a cattle ranch on land adjacent to the estuary in Point Reyes’ “pastoral zone” for years, DBOC has only been a reality since December 2004, when Lunny purchased JOC’s assets, including the remainder of the RUO JOC negotiated in 1972.  Although the RUO contained a renewal clause that would have allowed the National Park Service to discretionarily issue a new permit when it expired on November 30, 2012, Congress nullified that possibility when it designated Drakes Estero as potential wilderness as part of the Point Reyes Wilderness Act of 1976.  Notably, this was the first time Congress used the “potential wilderness” designation, intended to preserve land Congress deemed worthy of wilderness designation but which contained temporary non-conforming uses that prevented immediate conversion to full wilderness.  As Secretary Salazar pointed out in his memorandum, the House committee report accompanying the act emphasized that

[a]s is well established, it is the intention that those lands and waters designated as potential wilderness additions will be essentially managed as wilderness, to the extent possible, with efforts to steadily remove all obstacles to the eventual conversion of these lands and waters to wilderness status.

DBOC’s (previously, JOC’s) commercial shellfish farming operation comprised the sole non-conforming use preventing Drakes Estero from becoming unqualified wilderness.  (Section 4 of the Wilderness Act generally prohibits motorized vehicles and all commercial activities except those intimately tied to enjoyment of wilderness values.)  Therefore, although the National Park Service was bound to honor the remainder of the RUO and DBOC’s existing Special Use Permit, the agency believed it lacked authority to renew these instruments once expired.

Lunny knew this at the time he purchased JOC’s operation, but says his lawyers told him there might be room to negotiate an extension.  Despite the odds (multiple acts of Congress, including the Wilderness Act itself) stacked against him, Lunny did not quail.  Instead he enlisted public support—including the active participation of California’s senior senator, Dianne Feinstein—to craft his oyster operation an exemption from federal environmental law.  It worked.  In October 2009, Senator Feinstein’s rider to the Senate appropriations bill for the Department of the Interior became law. Section 124 of Public Law 111-88 provided that:

notwithstanding any other provision of law, the Secretary of the Interior is authorized to issue a special use permit [to DBOC] with the same terms and conditions as the existing authorization, except as provided herein, for a period of 10 years from November 30, 2012 . . . .

This represented a step back from Senator Feinstein’s earlier, unsuccessful attempts to insert language that would have required the National Park Service to let DBOC continue operations.  However, for the first time in 33 years, the Secretary of the Interior could legally consider the option.

Because Section 124 (through its “notwithstanding” clause) almost certainly freed Secretary Salazar from the necessity of complying with (at a minimum) NEPA, the Wilderness Act, and the Point Reyes Wilderness Act, he could have made the decision regarding DBOC’s proposed permit in an environmental-law vacuum.  Indeed, Secretary Salazar made clear he believed Section 124 expressly exempted his decision “from any substantive or procedural legal requirements.”

Despite the “notwithstanding” clause, the National Park Service prepared an EIS to inform the Secretary’s decision, as it would be required to do for any other proposed major federal action with potentially significant environmental impacts.  This EIS, however, acknowledged its difference.  For example, it explained that, while Section 124 exempted the Secretary’s decision from NEPA’s mandate, the Department of the Interior “determined that it is helpful to generally follow the procedures of NEPA.”  Normally, the Final EIS would have identified a preferred alternative, and, after a 30-day waiting period, the agency would issue a Record of Decision.  Here, however, the FEIS, released on November 20th, expressly cited Section 124 as authority for not identifying a preferred alternative, and the National Park Service is unlikely to issue a Record of Decision, which would be redundant in light of the Secretary’s decision memorandum.

Similarly, despite that fact that Section 124 did not “prescribe [] factors on which” the Secretary had to base his decision (and exempted it from other legal encumbrances), he decided to give “great weight to matters of public policy.”  In the first paragraph of his “Discussion,” the Secretary acknowledged that

the scientific methodology employed by the NPS in preparing the DIES and FEIS and the scientific conclusions contained in those documents have generated much controversy and have been the subject of several reports.  Collectively, those reports indicate that there is a level of debate with respect to the scientific analyses of the impacts of DBOC’s commercial mariculture operations on the natural environment within Drakes Estero.

However, he pointed out that, regardless of the “scientific uncertainty and [] lack of consensus in the record regarding the precise nature and scope of the impacts . . . , the DEIS and FEIS support the proposition that the removal of DBOC’s commercial operations in the estero would result in long-term beneficial impacts to the estero’s natural environment.”  Therefore, these documents, “while not material to the legal and policy factors” that ultimately controlled his decision, informed him about the scientific “complexities, subtleties, and uncertainties of this matter.”

Avoiding reliance on the uncertain and contested data regarding DBOC’s environmental impacts, Secretary Salazar chose to base his decision “on the incompatibility of commercial activities in wilderness,” consistent with the Wilderness Act and Congress’s intent in designating Drakes Estero as potential wilderness in 1976.  The fact the Secretary used Congress’s 2009 grant of authority in this fashion provides persuasive administrative precedent for bringing nonconforming uses in other congressionally designated potential wilderness areas to a rapid close once they become optional.  If he had chosen to grant the permit, this would have effectively just kicked the can down the road.  Absent further congressional action, in 10 years the original (pre-Section 124) dilemma would have re-emerged.

On December 4th, the National Park Service performed the administrative formality of publishing a Federal Register notice announcing the conversion of 1,363 acres of Drakes Estero from congressionally designated potential wilderness to full wilderness.  As the Secretary noted in his decision memorandum, this bit of paperwork enlarges the only “marine wilderness on the Pacific coast of the United States outside of Alaska” (Estero de Limantour, the southeastern finger of the estero, made a similar transition after its nonconforming use ended in 1999; see map).

However, this saga is not over yet.  DBOC, represented by the free-market advocacy group Cause of Action, filed a lawsuit on December 3rd in the U.S. District Court for the Northern District of California.  Among other things the hastily cobbled-together complaint includes constitutional (takings and due process) claims, alleges NEPA and other statutory violations, requests temporary and permanent injunctive relief preventing “any action to implement the decision or to deny DBOC the 10-year SUP contemplated by Section 124,” and asks the court to “order the issuance to DBOC of the 10-year SUP.”  In essence, the complaint directly contests the Secretary’s reading of Section 124, including his interpretation of Congress’s grant of authority and the effect of the “notwithstanding” clause.

Regardless of how the litigation evolves, one thing seems certain: Going forward, media coverage of this controversy will be more likely to acknowledge the central role played by the potential wilderness designation Congress bestowed upon Drakes Estero.

The authors, members of UC Berkeley’s Environmental Law Society during the 2011–12 academic year, researched the administration of nonconforming uses in congressionally designated potential wilderness areas and summarized the results in a comment submitted during the public comment period for the Drakes Bay Oyster Company Special Use Permit Draft Environmental Impact Statement.  Subsequently, they converted their comment into an article, titled “Will the Wilderness Act be Diluted in Drakes Estero?,” published over the summer in Ecology Law Currents.  Based on their research, they argued that the unprecedented nature of extending a non-recreation-focused commercial enterprise in a congressionally designated potential wilderness area—and the purpose and substance of the 1964 Wilderness Act and the 1976 Point Reyes Wilderness Act—counseled against granting a new permit.

, , , , , , ,

Reader Comments

31 Replies to “Guest bloggers from Berkeley Law Environmental Law Society: Contextualizing Secretary Salazar’s Recent Decision on Oyster Farming at Point Reyes”

  1. This review is highly biased and does not take into consideration the historical facts.The Point Reyes National Seashore was created in full cognizance of the long-term productive and sensitive relationship between agriculture and the surrounding wilderness in West Marin. Former Assemblyman William Bagley and former U.S. Reps. John Burton and Pete McCloskey backed the ongoing lease for the oyster farm, saying they had no intent to force out the existing oyster farm when they worked to establish the national park in 1965. All three of these original legislators recently supported extending the lease to Drake’s Bay Oyster Company. It is unfortunate that certain NPS officials took it upon themselves to force Drakes Bay Oyster Company (DBOC) out at the urging of several environmental groups who have no relationship to the region, and are interested in extending wilderness as a matter of principle. Converting a proposed wilderness area to an actual wilderness area is arbitrary. There is extensive “pure” wilderness in the adjacent parts of the estuary. The Lunny family has been a superb steward of the land and seashore that make up DBOC. Oysters create a natural filtering system for the estuary. DBOC keeps their property open to hikers and kayakers, and offer educational programs to increase awareness of the importance of the estuary as both a source of food and as a place of natural beauty. The local and state economy benefit from DBOC. Furthermore, NPS scientists engaged in a reckless and a deliberately underhanded effort to generate proof of ecological harm to the estuary by DBOC when there was none. Secretary Salazar’s decision to terminate the DBOC lease at the last minute (limiting time for appeal) was political and not at all based on law or science as he purports. We can only hope that the Lunny family will find some support in the courts.

  2. This review is highly biased and does not take into consideration the historical facts.The Point Reyes National Seashore was created in full cognizance of the long-term productive and sensitive relationship between agriculture and the surrounding wilderness in West Marin. Former Assemblyman William Bagley and former U.S. Reps. John Burton and Pete McCloskey backed the ongoing lease for the oyster farm, saying they had no intent to force out the existing oyster farm when they worked to establish the national park in 1965. All three of these original legislators recently supported extending the lease to Drake’s Bay Oyster Company. It is unfortunate that certain NPS officials took it upon themselves to force Drakes Bay Oyster Company (DBOC) out at the urging of several environmental groups who have no relationship to the region, and are interested in extending wilderness as a matter of principle. Converting a proposed wilderness area to an actual wilderness area is arbitrary. There is extensive “pure” wilderness in the adjacent parts of the estuary. The Lunny family has been a superb steward of the land and seashore that make up DBOC. Oysters create a natural filtering system for the estuary. DBOC keeps their property open to hikers and kayakers, and offer educational programs to increase awareness of the importance of the estuary as both a source of food and as a place of natural beauty. The local and state economy benefit from DBOC. Furthermore, NPS scientists engaged in a reckless and a deliberately underhanded effort to generate proof of ecological harm to the estuary by DBOC when there was none. Secretary Salazar’s decision to terminate the DBOC lease at the last minute (limiting time for appeal) was political and not at all based on law or science as he purports. We can only hope that the Lunny family will find some support in the courts.

  3. A few corrections to Jeff Lz’s comment. Neither John Burton or Pete McCloskey were members of Congress in 1965. And Pt. Reyes National Seashore was signed into law by President John Kennedy in 1962 (the local congressman Clem Miller was the chief sponsor of the legislation). As one of the people who drew the boundaries for the “citizen’s proposal” that was the basis for the legislation submitted by Senators Alan Cranston and John Tunney, I testified before the Senate Committee on Interior and Insular Affairs on March 2, 1976 on behalf of the Sierra Club. At that time I submitted a letter from the Inverness Association, a local association of homeowners, in support of the legislation. There was widespread support for this bill, including the wilderness in Drakes Estero, and it was only at the last minute that the esteros, the Muddy Hollow road corridor, and the offshore lands adjacent to the Great Beach became potential wilderness additions. In 1999 the Secretary of the Interior used his authority from the 1976 wilderness legislation to add the Muddy Hollow Corridor to the Phillip Burton Wilderness. On December 4, 2012, the Secretary published in the Federal Register his decision to add Drakes Estero to the Phillip Burton Wilderness.

  4. A few corrections to Jeff Lz’s comment. Neither John Burton or Pete McCloskey were members of Congress in 1965. And Pt. Reyes National Seashore was signed into law by President John Kennedy in 1962 (the local congressman Clem Miller was the chief sponsor of the legislation). As one of the people who drew the boundaries for the “citizen’s proposal” that was the basis for the legislation submitted by Senators Alan Cranston and John Tunney, I testified before the Senate Committee on Interior and Insular Affairs on March 2, 1976 on behalf of the Sierra Club. At that time I submitted a letter from the Inverness Association, a local association of homeowners, in support of the legislation. There was widespread support for this bill, including the wilderness in Drakes Estero, and it was only at the last minute that the esteros, the Muddy Hollow road corridor, and the offshore lands adjacent to the Great Beach became potential wilderness additions. In 1999 the Secretary of the Interior used his authority from the 1976 wilderness legislation to add the Muddy Hollow Corridor to the Phillip Burton Wilderness. On December 4, 2012, the Secretary published in the Federal Register his decision to add Drakes Estero to the Phillip Burton Wilderness.

  5. Any idea what kind of discount Lunny got for purchasing a lease expiring in 2012 rather than one extended to 2022? (I.e., how much of a subsidy would the extension have represented?). Put another way, how similar is this to Lew Wolff’s purchase of the A’s with the knowledge the team had no right to move to San Jose?

  6. Any idea what kind of discount Lunny got for purchasing a lease expiring in 2012 rather than one extended to 2022? (I.e., how much of a subsidy would the extension have represented?). Put another way, how similar is this to Lew Wolff’s purchase of the A’s with the knowledge the team had no right to move to San Jose?

  7. No comments on the the complaint section 5 and section 14? The previous argument is that the NAS study may not have been taken into consideration as required by Section 124. The latter argument is pretty much that the NPS/Interior don’t have the authority to make orders regarding the oyster racks in Drakes Estero given that they still have a water bottom lease with the State of California.

    As far as I know, the Dept of Fish and Game hasn’t issued any order regarding whether the lease terms have been breached and the oyster farm must leave. There’s a California Fish and Game Commission meeting right now, and I’m thinking that will be of interest to those following the fate of the state lease.

  8. No comments on the the complaint section 5 and section 14? The previous argument is that the NAS study may not have been taken into consideration as required by Section 124. The latter argument is pretty much that the NPS/Interior don’t have the authority to make orders regarding the oyster racks in Drakes Estero given that they still have a water bottom lease with the State of California.

    As far as I know, the Dept of Fish and Game hasn’t issued any order regarding whether the lease terms have been breached and the oyster farm must leave. There’s a California Fish and Game Commission meeting right now, and I’m thinking that will be of interest to those following the fate of the state lease.

  9. The popular media’s coverage of the Drakes Estero Wilderness issue has largely been limited to recycling the oyster company’s own press releases.

    No wonder that the public is woefully misinformed and surprised at the Secretary’s decision, which was based on law and policy (not science).

    As well as recycling wild accusations about irrelevant science, Wilderness opponents also recycle the specious claim that the state of California has the legal right to lease the bottom of Drakes Estero for mariculture.

    While there was initial confusion about which agency had leasing authority, that issue was finally resolved in the May 15, 2007 letter by the General Counsel for the California Department of Fish and Game conceding that NPS had the legal authority over mariculture leases in Drakes Estero.

    Regardless, in the intervening five-and-one-half years, the same specious claim of state authority has been recycled over and over by Wilderness opponents.

    Conversely, over that same period, that same specious claim has been rebutted by the California Department of Fish and Game (again), the California State Lands Commission, the California Coastal Commission, the California Attorney General and most recently at its 12/12/12 meeting, by the California Fish and Game Commission, which refused to confirm the state lease.

    NPS clearly has leasing authority and declined to extend the shellfish company’s lease. Such a refusal to extend the lease had been anticipated by Wilderness supporters for 36 years and explicit since 2003.

    The former shellfish operator knew the lease was not going to be extended and sold its last eight years (at a discount) to a new operator who also knew the lease would not be extended. Those eight years were enough to make profits in the millions of dollars, a precedent that the Koch brothers dearly want to follow up.

    Secretary Salazar’s courageous decision confirmed longstanding law and policy that the ability to use public land for private profit is a privilege, not an entitlement. The precedent that threatened to overturn the Wilderness Act nationwide is no more.

    1. The California Fish and Game Commission didn’t refuse to confirm that they had the authority to issue a state lease. They decided against modifying the terms from the last renewal in 2004 that made the validity of the lease contingent on the federal reservation. I understand that they really wanted to but didn’t want to be involved in the aftermath if they did.

      The only clear leasing authority NPS has is over 1.5 acres of land that isn’t in the wilderness map.

  10. The popular media’s coverage of the Drakes Estero Wilderness issue has largely been limited to recycling the oyster company’s own press releases.

    No wonder that the public is woefully misinformed and surprised at the Secretary’s decision, which was based on law and policy (not science).

    As well as recycling wild accusations about irrelevant science, Wilderness opponents also recycle the specious claim that the state of California has the legal right to lease the bottom of Drakes Estero for mariculture.

    While there was initial confusion about which agency had leasing authority, that issue was finally resolved in the May 15, 2007 letter by the General Counsel for the California Department of Fish and Game conceding that NPS had the legal authority over mariculture leases in Drakes Estero.

    Regardless, in the intervening five-and-one-half years, the same specious claim of state authority has been recycled over and over by Wilderness opponents.

    Conversely, over that same period, that same specious claim has been rebutted by the California Department of Fish and Game (again), the California State Lands Commission, the California Coastal Commission, the California Attorney General and most recently at its 12/12/12 meeting, by the California Fish and Game Commission, which refused to confirm the state lease.

    NPS clearly has leasing authority and declined to extend the shellfish company’s lease. Such a refusal to extend the lease had been anticipated by Wilderness supporters for 36 years and explicit since 2003.

    The former shellfish operator knew the lease was not going to be extended and sold its last eight years (at a discount) to a new operator who also knew the lease would not be extended. Those eight years were enough to make profits in the millions of dollars, a precedent that the Koch brothers dearly want to follow up.

    Secretary Salazar’s courageous decision confirmed longstanding law and policy that the ability to use public land for private profit is a privilege, not an entitlement. The precedent that threatened to overturn the Wilderness Act nationwide is no more.

    1. The California Fish and Game Commission didn’t refuse to confirm that they had the authority to issue a state lease. They decided against modifying the terms from the last renewal in 2004 that made the validity of the lease contingent on the federal reservation. I understand that they really wanted to but didn’t want to be involved in the aftermath if they did.

      The only clear leasing authority NPS has is over 1.5 acres of land that isn’t in the wilderness map.

  11. I remember the former CDFG Director was on record that NPS had full authority once the time the oyster farm vacated.

    http://abclocal.go.com/kgo/story?section=news/assignment_7&id=8325489

    “ABC7 checked with John McCammon, director of the California Department of Fish and Game. It’s his signature on one of the letters. He says the state wants to keep the oyster operation. It brings in tax money, keeps a food source local and is good for the economy.

    “We don’t see any interest in the state’s interest, point of view, for it to have to go,” McCammon said.

    McCammon says the environmental groups are interpreting the letters incorrectly. The state currently does have jurisdiction over the estero. The letters were in response to a request by the National Park Service to clarify what happens after 2012 and only if the farm’s lease was not renewed.

    “What they were asking me for was to make clear that the primary management authority shifted, effective 2012,” McCammon said.

    Mccammon says the state retains rights as long as the Lunny lease remains. State officials renewed the farm’s permit to operate until 2029. “

  12. I remember the former CDFG Director was on record that NPS had full authority once the time the oyster farm vacated.

    http://abclocal.go.com/kgo/story?section=news/assignment_7&id=8325489

    “ABC7 checked with John McCammon, director of the California Department of Fish and Game. It’s his signature on one of the letters. He says the state wants to keep the oyster operation. It brings in tax money, keeps a food source local and is good for the economy.

    “We don’t see any interest in the state’s interest, point of view, for it to have to go,” McCammon said.

    McCammon says the environmental groups are interpreting the letters incorrectly. The state currently does have jurisdiction over the estero. The letters were in response to a request by the National Park Service to clarify what happens after 2012 and only if the farm’s lease was not renewed.

    “What they were asking me for was to make clear that the primary management authority shifted, effective 2012,” McCammon said.

    Mccammon says the state retains rights as long as the Lunny lease remains. State officials renewed the farm’s permit to operate until 2029. “

  13. The oyster farm should be perfectly OK under the Wilderness Act because it furthers the Act’s “public purpose of … conservation and historical use” [18USC1133(b)] through traditional and sustainable agricultural production. See 629 F.3d 1024,1033, for the Ninth Circuit’s take on conservation use in wilderness areas.

    1. Jim: If the then-contemporary legislators wanted to carve out a permanent exception to the 1976 PRNS Wilderness Act for the shellfish operation, they had the obligation to make the public purpose case at the time of the PRNS Wilderness legislation.

      Assuming such a case could convince their colleagues, then those legislators would then have had the further obligation to craft language in the Bill that described that public purpose in order to then unequivocally and explicitly carve out a permanent exception to the Wilderness Act at PRNS Those legislators did none of this.

      Further, (private) “customer serving” and (public) “visitor serving” are different concepts covered by different laws. Visitor serving facilities are covered by the public bidding process of the Concessions Act. There is simply no way that any private commercial business in a National Park could assume the mantle of “public service” and exempt itself (as the shellfish operation asserts) from the competitive bidding process.

      Further still, the Wilderness Act does allow an exemption to its blanket prohibition on “commercial activities”…but only when those activities serve the public purpose of those visiting the wilderness area. The shellfish company fails this test.

      Lastly, PRNS legislation carves out an exception for “ranching and dairying” in the PRNS “pastoral zone” in order to encourage these then-private property owners to sell willingly to NPS . NPS has noted that shellfish operations are not “ranching and dairying” and that the shellfish operational areas never were and never have been included in the “pastoral zone.”

      For more information, see the Ecology Law Currents article at
      http://elq.typepad.com/currents/2012/08/currents39-05-greennylen-2012-0826.html

      Gordon

  14. The oyster farm should be perfectly OK under the Wilderness Act because it furthers the Act’s “public purpose of … conservation and historical use” [18USC1133(b)] through traditional and sustainable agricultural production. See 629 F.3d 1024,1033, for the Ninth Circuit’s take on conservation use in wilderness areas.

    1. Jim: If the then-contemporary legislators wanted to carve out a permanent exception to the 1976 PRNS Wilderness Act for the shellfish operation, they had the obligation to make the public purpose case at the time of the PRNS Wilderness legislation.

      Assuming such a case could convince their colleagues, then those legislators would then have had the further obligation to craft language in the Bill that described that public purpose in order to then unequivocally and explicitly carve out a permanent exception to the Wilderness Act at PRNS Those legislators did none of this.

      Further, (private) “customer serving” and (public) “visitor serving” are different concepts covered by different laws. Visitor serving facilities are covered by the public bidding process of the Concessions Act. There is simply no way that any private commercial business in a National Park could assume the mantle of “public service” and exempt itself (as the shellfish operation asserts) from the competitive bidding process.

      Further still, the Wilderness Act does allow an exemption to its blanket prohibition on “commercial activities”…but only when those activities serve the public purpose of those visiting the wilderness area. The shellfish company fails this test.

      Lastly, PRNS legislation carves out an exception for “ranching and dairying” in the PRNS “pastoral zone” in order to encourage these then-private property owners to sell willingly to NPS . NPS has noted that shellfish operations are not “ranching and dairying” and that the shellfish operational areas never were and never have been included in the “pastoral zone.”

      For more information, see the Ecology Law Currents article at
      http://elq.typepad.com/currents/2012/08/currents39-05-greennylen-2012-0826.html

      Gordon

  15. Uh – that’s why it’s “potential wilderness”. The definition of “potential wilderness” was created in the 1976 Point Reyes Wilderness Act. It was meant to get around the restrictions on commercial activities in wilderness areas by not actually reserving certain areas as wilderness, but allowing them to become designated wilderness at a future date without the requirement for new legislation.

    There’s lots of potential wilderness areas, including the High Sierra Camps in Yosemite. I’ve read the 1984 California Wilderness Act. It mentions precious little about them other than there are spots on a map that will mark potential wilderness areas. There’s no timeline for their departure and NPS continues to permit their operation as well as pay for repairs. I’ve read the scoping documents on the repair proposals, and a lot of the public comments suggest that if the impacts of the maintenance are too great, the legal requirement would be to close them down. These are permanent buildings, a permanent commercial presence, outhouses, concrete tent pads, septic systems, cooking facilities, and helicopter landings to service their waste disposal. They are resupplied by mules that are destructive to the trails. And Don Neubacher is OK with all this, which is apparent when he signed the approval to pay for the repairs. He’s OK with this potential wilderness remaining so indefinitely.

    I remember listening to Bill Bagley speak before the Fish and Game Commission suggesting that NPS could be forced into providing an easement to allow shellfish processing to continue.

  16. Uh – that’s why it’s “potential wilderness”. The definition of “potential wilderness” was created in the 1976 Point Reyes Wilderness Act. It was meant to get around the restrictions on commercial activities in wilderness areas by not actually reserving certain areas as wilderness, but allowing them to become designated wilderness at a future date without the requirement for new legislation.

    There’s lots of potential wilderness areas, including the High Sierra Camps in Yosemite. I’ve read the 1984 California Wilderness Act. It mentions precious little about them other than there are spots on a map that will mark potential wilderness areas. There’s no timeline for their departure and NPS continues to permit their operation as well as pay for repairs. I’ve read the scoping documents on the repair proposals, and a lot of the public comments suggest that if the impacts of the maintenance are too great, the legal requirement would be to close them down. These are permanent buildings, a permanent commercial presence, outhouses, concrete tent pads, septic systems, cooking facilities, and helicopter landings to service their waste disposal. They are resupplied by mules that are destructive to the trails. And Don Neubacher is OK with all this, which is apparent when he signed the approval to pay for the repairs. He’s OK with this potential wilderness remaining so indefinitely.

    I remember listening to Bill Bagley speak before the Fish and Game Commission suggesting that NPS could be forced into providing an easement to allow shellfish processing to continue.

      1. I don’t represent anyone. I’m nothing more than an occasional customer of DBOC and a visitor to Point Reyes. I know I’ve been accused of being a PR shill or some sort of sock puppet on behalf of the Lunnys, but to the best knowledge I’ve never met any member of the Lunny family other than Brigid (runs the retail counter).

        I have a lot of interests other than the oyster farm and probably spent too much time defending my positions because sometimes I just like a good debate.

        I don’t feel obligated to disclose who I am, but I do have a full time job that has nothing to do with oysters, PR, the law (save our company has a house counsel), or with with government agencies. I visit national parks a lot, and most of the avatars that I’ve chosen were photos I took at national parks. I have a wife who loves oysters about as much as I do, but a kid who thinks they’re gross. In another life maybe I should have gotten into PR or the law, but I chose my career path. I do like a little bit of anonymity, but I consistently use the same handle (or variations that should be obvious) almost everywhere.

        I chose this handle simply because I live in the East Bay and this is a variation on my screen name when I can’t use my normal one.

  17. If you don’t believe me, just check out my posting history on Disqus or SFGate. If you think it reads like that of a PR hack, then I don’t know what else to say. If you think that I carefully cultivated an online persona over several years just to provide cover to comment as a stealth PR writer about an oyster farm, then I guess I can’t help you. I discuss a lot of mundane things. I’m a Cal grad and a Cal sports fan, and you’ll see that in quite a bit of my discussions over the years are mundane items about college and professional sports, various political topics, and outdoor recreation. Occasionally I’ll talk about something I know professionally (which doesn’t include oyster farms). I happen to take a huge interest in our national parks.

    http://www.sfgate.com/profile/?User=y_p_w&plckUserId=y_p_w&plckPersonaPage=PersonaComments
    http://disqus.com/y_p_w/
    http://www.nationalparkstraveler.com/users/y-p-w

    So exactly what is it that you want? My full name and address so that maybe you can retaliate in some way or harass my family?

  18. We value civil discussion rather than ad hominem or irrelevant argument. The on-topic discussion has been interesting, but it is devolving. If you continue this, we will edit or remove comments.

    1. Sean: I would encourage Legal Planet to re-consider its policy allowing anonymous posts, which I believe unintentionally facilitates ad hominem and irrelevant argument. Courts do not allow “anonymous” testimony and here, readers should have the right to understand who is providing the comments so that they can judge for themselves whether the commenter has an axe to grind (rather than relying on unverifiable protestations).
      Gordon Bennett 40 Sunnyside Drive Inverness CA

Comments are closed.

About Guest Contributor

Guest Contributor

READ more