Oyster shucking at Drakes Bay_Screenshot (610)The historic oyster farm in Drakes Estero is one of the resources Point Reyes National Seashore was formed to protect. Indeed, the desire to preserve the farming and ranching here is a major reason Point Reyes is a National Seashore and not a National Park.

This is one of the key facts being clarified tremendous outpouring of support on behalf of Drakes Bay Oyster Company’s petition requesting a re-hearing of its case in the Ninth Circuit. Eight separate Amicus Curiae friend-of-the-court briefs have been filed, shedding light on legal, scientific, historic, economic, and cultural aspects of the case.

The case is about the oyster farm’s request for an injunction to remain open in the face of Park Service wrongdoing while its lawsuit against the agency proceeds. In September, the Ninth Circuit ruled against the oyster farm in a 2-1 split decision, with dissenting Judge Paul Watford writing a blistering opinion that most observers find extremely compelling. Judge Watford pointed out that When Congress was considering the legislation that became the 1976 Point Reyes Wilderness Act, wilderness proponents “stressed a common theme: that the oyster farm was a beneficial pre-existing use that should be allowed to continue notwithstanding the area’s designation as wilderness.”

On October 18, Drakes Bay filed its petition for a re-hearing by the full panel of Ninth Circuit judges; known as an “en banc” hearing, the re-hearing is essentially an appeal of the decision. In its petition, the oyster farm’s legal team points out:  “Before it became obsessed with destroying the only oyster farm in Point Reyes National Seashore, the National Park Service had for many decades supported the oyster farm, as did local environmental groups and the community at large.”

Historic perspectives

That point is underlined in an Amicus brief written by Dr. Laura Watt, a historian and professor of environmental studies at Sonoma State University who is an authority on the legislative history of Point Reyes. Dr. Watt’s interest in the case stems from her doctoral research at the University of California Berkeley, which examined the evolution of the working pastoral landscape at Point Reyes, after becoming a National Seashore in 1962. She is currently extending this research into a book.

In a brief filed Monday October 28, James Talcott Linford, a San Rafael attorney for The Monte Wolfe Foundation (a California non-profit whose core mission is the preservation of the Monte Wolfe Cabin, a structure located within the Mokelumne Wilderness Area) argues that “Savoring a Drakes Estero oyster is a wilderness experience.”

Linford points out that the Ninth Circuit has, in another case, “rejected an understanding of the Wilderness Act that would preserve the wilderness in a museum diorama, one that we might observe only from a safe distance, behind a brass railing and a thick glass window,” holding, rather, that it is the Act’s intent to assure that the wilderness be made accessible to people, “devoted to the public purposes of recreational, scenic, scientific, educational, conservation and historical use.” The brief shows that the historic oyster farm in Drakes Estero is a historical use and can easily be considered a conservation use “given the context of the National Seashore and the historic bargain between ranchers and environmentalists that created it.”

Support from shellfish growers

The Pacific Coast Shellfish Growers Association (PCSGA) filed a supporting brief arguing that both the Secretary’s Order of November 29, 2012 denying DBOC a permit to continue to operate in the Point Reyes National Seashore, and the FEIS that informed his decision, ignored the adverse impacts to the environment, oyster industry, and neighboring community associated with ordering DBOC to cease its operations, and that the decision and the FEIS also failed to properly evaluate the positive environmental impacts associated with shellfish cultivation.

The PCSGA brief argues: “Oysters are one of the world’s oldest food sources and provide a healthy, sustainable, and “green” food source for California and consumers worldwide. Oysters provide significant sociological, economic, and environmental benefits to the surrounding environment and community. These benefits include job production, tourism, improving water quality through nitrogen and phosphorus filtration, just to name a few. As the owners and operators of a historic shellfish farm that operates on land that has cultivated shellfish for over 80 years, DBOC plays a significant role in providing these benefits to Drakes Estero, Marin County, and the State of California.”

Government and activists must comply with the law

The Pacific Legal Foundation filed a brief on behalf of the California Cattlemen’s Association (CCA) detailing significant legal issues raised by the case. CCA has several members who ranch within the boundaries of Point Reyes National Seashore under reservations of use and occupancy and/or special use permits from the National Park Service, and these members have a strong interest in ensuring that the National Park Service complies with applicable laws when acting on future renewals of their permits.

I filed a brief myself, taking issue with the process by which some national activist groups jerry-rigged the public comment process on the environmental impact statement to give the false impression to the court and the public that most people support getting rid of the oyster farm.  In fact, a poll of local residents shows 84% support for keeping the oyster farm.

Closure would hurt working families

As reported elsewhere in these pages:  Legal Aid of Marin has filed a brief on behalf of two longtime employees of the oyster farm, Jorge Mata and Isela Meza, arguing that “closing the oyster farm will hurt real working people and their families.” Dr. Corey Goodman filed a brief detailing the false scientific narrative created and promulgated by NPS in its quest to eliminate the oyster farm. And on Tuesday October 22, a supporting brief was filed by San Francisco attorney Judith Teichman and a coalition of former legislators, environmentalists, and proponents of the sustainable agriculture practices by Drakes Bay, including Earth Day co-founder and Sierra Club “environmental hero” Pete McCloskey.

What’s at stake

“The breadth and number of Amicus briefs in this case is extraordinary,” said Peter Prows, a member of the DBOC’s legal team and a partner at Briscoe Ivester Bazel LLC. “The wide variety of perspectives represented is impressive,” said Prows; “briefs have been filed by legislators, scientists, environmentalists, historians, legal experts, and farmers, and by conservatives and liberals alike.  That’s not surprising given what’s at stake here—the question of whether government agencies can abuse their power with impunity.”

By Sarah Rolph

First published in the West Marin Citizen October 31, 2013. Reprinted with Permission