News Analysis

Legislative elders weigh in on Drake’s Bay Oyster Company

Photo and story by Andrea Blum

West Marin Citizen, July 21, 2011

Public statements by three legislative pioneers of California environmental law show that the decision whether to extend the oyster lease in Drakes Estero in Point Reyes National Seashore will be one of public policy. The Department of Interior after reviewing all facts of the debate on law and science will have to decide what is in the public’s best interest.  It will be up to the public, however, to let elected and appointed officials know what they want.

 The latest public statements from the very people who wrote and sponsored the laws creating Point Reyes National Seashore, protecting its wilderness and granting state tide and submerged land rights in Drakes Estero to the federal government may help turn the policy tide to extend the oyster farm lease in the estero for another ten years.  The triumvirate of former legislators have blown into West Marin with what appears to be the law on their side.

John Burton, former congressman and senator, current chair of the California Democratic Party and primary author of the 1976 Point Reyes Wilderness Act said one intention when writing the bill for Point Reyes National Seashore was to keep the oyster farm as part of the wilderness area. “Established private rights of landholders and lease holders will continue to be respected and protected. The existing agricultural and aquacultural uses can continue,” write the authors of the bill. story

Bob Bagley, a former Republican assemblyman who authored the 1965 legislation ceding state tidelands and water bottoms to Point Reyes National Seashore said he retained in the bill the “absolute right to fish” which he says includes oysters. Fishing rights are part of the public trust embedded in the California Constitution.

Bagley, a former Woodacre fireman said when an Inverness resident and oyster farm supporter alerted him last month of the oyster debate he immediately asked the Bancroft Library at UC Berkeley to dig into its archive and fish out the papers documenting his bills. Out of that treasure trove came letters from the NPS, the Department of Justice, the Department of Fish and Game (CDFG) and the Johnsons who had owned the oyster farm since the 1930s in agreement that the state retained the fishing rights including the oyster leases and aquaculture in Drakes Estero. The legislative history is chuck full of instances supporting oyster culture.

“AB1024 was significant piece of legislation,” said Bagley of the 1965 bill. “It’s gold. The Feds have no authority. This is the Constitution.”

In a letter from then director of the Department of Fish and Game W.T. Shannon in 1965 to Charlie Johnson, “It appears to us that all state laws and regulations pertaining to shellfish cultivation remain in effect since the conveyance by the legislature reserves fishery rights to the state.”

Other letters from the Sierra Club, the National Park Service and the Department of Fish and Game expressed the same conclusions. In legal terms, it created an administrative construction or an implied interpretation of the statute that remained intact until 2004 when the NPS Field Solicitor informed the PRNS superintendent that the United States owns the tide and submerged lands and therefore has the ultimate say in any future commercial activities of the estero.

His analysis goes on to say, “Only if the non conforming use can be eliminated,” hence the oyster farm and the date of 2012 when the federal use permit expires. After 40 years of one interpretation another began to take form.

In 2006 and 2007, letters from Joseph Milton, senior counsel for the CDFG explain its renewal of a state lease for the oyster farm in Drakes Estero until 2029. He explained that the extension was contingent upon concurrent federal permit requirements-a reservation of use- issued by the PRNS to expire in 2012. “However, invalidation of the [federal] lease due to failure of such a condition does not necessarily mean that the aquaculture operation must cease, nor does it require the state of California to compel such cessation,” wrote Milton in a 2006 letter. “However, the reservation of the right to fish cannot be construed as extending to aquaculture operations,” he said referring to Bagley’s 1965 statute.

Pete McCloskey, former Republican congressmen who ran against Nixon, co-authored the Endangered Species Act, co-sponsored John Burton’s 1976 Wilderness Bill and helped acquire $35 million to purchase 20,000 plus acres of land for the creation of the National Seashore is the last of the three elder statesmen to come forward. McCloskey, who the Sierra Club has named an environmental hero, has for the last seven weeks privately interviewed and gathered information from all sides of the oyster story to help make a personal recommendation to the Secretary of Interior Ken Salazar. He got involved after West Marin ranch owner Nan McEvoy asked him to look into the issue. The two are friends and are both olive growers.

McCloskey’s blitz on the issue covering both science and law helped him form an opinion that the oyster farm can legally stay for reasons of legislative history and for its environmental record-one that shows little impact on the estero. He interviewed the Lunny family, Dr. Corey Goodman, and former State Director of Resources Huey Johnson, California Coastal Commission staff including Dr. John Dixon and executive director Peter Douglas as well as staff from the Marine Mammal Center. He spoke with Sierra Club Deputy Director Bruce Hamilton and exchanged emails with the former Marin Sierra Club representative, Gordon Bennett who refused to meet with him. Neil Desai of the National Parks Conservation Association also declined to meet but exchanged emails. Former Superintendent Don Neubacher did not respond to his request to meet. “I will defer any inquiry to Mr. Neubacher or the scientists until the EIS is completed,” said McCloskey. 

Currently the National Park Service is conducting an environmental review (EIS) evaluating the lease extension of the oyster farm and its related impacts on Drakes Estero. The decision of the lease extension is up to the Secretary of Interior Ken Salazar. Senator Diane Feinstein attached a rider to an appropriations bill that gave the discretionary power to the Secretary. The draft EIS will be released mid-September, NPS officials say. The document will be one of several reports from different agencies released over a four-year period that have analyzed the environmental impacts, the scientific integrity of park staff, the accusations of misconduct as well as the law.

The pristine estero on the shores of the Point Reyes has become a story larger and more complicated than anyone could have imagined. The debate in far-flung West Marin has pitted environmentalist against environmentalist neatly dividing those upholding the ideology of “wilderness” and those supporting the system of local sustainable agriculture. The two ideologies are hallmarks that define West Marin but have found a place of conflict that has caused a vicious and often ugly debate culminating a price tag to the public in the millions.

“I’m pleased that John Burton, Pete McCloskey and Bill Bagley-each of whom played a key role in the transfer and use of this land at the time-are offering their unique understanding of this issue,” said Senator Diane Feinstein on Wednesday. “It is my hope that the National Park Service will extend the lease as soon as possible unless there is compelling evidence to not do so.”

But even with the powerful lawmakers on its side, the oyster farm has no guaranteed future in Point Reyes National Seashore. A key detractor to the views of Bagley, Burton, and McCloskey besides Environmental Action Committee of West Marin and the Sierra Club, both wilderness supporters, is the State Lands Commission and the California Department of Fish and Game who regulate state water bottoms. Their solicitor concluded that Drake’s Estero is owned by the United States.

Curtis Fossum, executive officer of the State Lands Commission said Bagley’s statute handed the land to the United States with unintended consequences. “The confusion is the assumption that the public right to fish or dig clams is coincident with growing oysters,” he said of oyster farming in the estero. “You have to look at the ink on the page. It’s difficult to come to any other conclusion than this land belongs to the United States.” Fossum said he interprets AB1024 to allow the public its right to fish but said, “That doesn’t include the right of the public to go and plant oysters and then sell them.” Fossum, who supports the oyster farm personally, said there are very few examples of the state handing over land to the United States. He did say the law has a caveat under the public trust doctrine. “If the United States fails to use it for public purposes, the state can get it back.”