UPDATE: Motion Denied, Appeal Filed – See Next Post
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In July, restaurateurs and others affected by the scheduled closure of Drakes Bay Oyster Company (DBOC) filed a second lawsuit to keep DBOC in operation. The original lawsuit was filed in December 2012 by DBOC itself. Long-time DBOC supporter, Sarah Rolph, discusses the latest lawsuit and the importance of keeping a community treasure in operation at the Point Reyes National Seashore.
The Drakes Bay Oyster Farm is an historic cultural resource, having been in operation over 80 years. Virtually every government agency in the world concerned with restoring or managing marine resources is working to put oysters into the water, because these filter-feeders are beneficial to the environment. Nevertheless, on November 29, 2012, Secretary of the Interior Ken Salazar refused to renew the permit for Drakes Bay Oyster Company (DBOC) to continue operating within Point Reyes National Seashore. Why? So Drakes Estero could be designated a “marine wilderness” by the National Park Service (NPS).
The Drakes Bay Oyster Farm makes a substantial contribution to the local economy. The National Park Service’s own Environmental Impact Statement recognizes that the Farm’s removal would cause “long-term major adverse impacts on California’s shellfish market.”
Because of this very real impending impact from the potential closure of the farm, a group of San Francisco Bay Area businesses and others whose interests will be impacted if the Oyster Farm is closed have filed suit to prevent NPS from shutting down the Oyster Farm.
Plaintiffs are restaurants/restaurant owners: Tomales Bay Oyster Company, Saltwater Oyster Depot, Osteria Stellina, Patricia Unterman, Hayes Street Grill, Margaret Grade’ and Café Reyes; an unincorporated association, the Alliance for Local Sustainable Agriculture; an employee, Loretta Murphy; agroecologist Jeffrey Creque; a wholesale customer who sells at local farmers’ markets, Rosa “Nellie” Gamex; and a provider of marine and wetlands services, Dixon Marine Services, Inc.
Main Legal Arguments
The Secretary of the Interior erroneously claimed that the 2009 bill authorizing him to grant DBOC a permit “swept away any statute of regulation that might otherwise have applied to his decision whether to close the oyster farm.” Although the Ninth Circuit Court of Appeals found that federal defendants did not violate NEPA [the National Environmental Policy Act], the court also held that the Secretary did not have unfettered discretion in making a decision about the future of the oyster farm.
The recently-filed lawsuit alleges that the Secretary acted “arbitrarily, capriciously, and in violation of the law” when he failed “to ensure the decision on whether to close the oyster farm was consistent to the maximum extent possible with the purpose and policy of the National Aquaculture Act and “to ensure that the decision to close DBOC was consistent to the maximum extent practicable with the enforceable policies of the California Coastal Management Program.”
The lawsuit also alleges that the Secretary’s decision was improper in that he failed to consider the impact of the Order to close down shellfish cultivation in Drakes Estero on the fishing rights the California Legislature retained when it voluntarily transferred ownership of the submerged and tide lands within the Point Reyes National Seashore boundaries to the United States in 1965.
The suit also alleges that the Interior Secretary’s decision to close down shellfish cultivation in Drakes Estero was in excess of the authority granted the Secretary under Point Reyes National Seashore Enabling Act and, as such, constitutes a “taking” of the State’s property rights.
Plaintiffs also allege that defendants National Oceanic and Atmospheric Administration Office of Ocean and Coastal Resource Management (“NOAA-OCRM”) and Margret Davidson, in her official capacity as Acting Director thereof, (collectively, “NOAA Defendants”) erroneously determined that the continued operation of the DBOC’s oyster farm had the potential to have a foreseeable effect on coastal resources when, in fact, it could only be a decision by Interior defendants to close the DBOC’s oyster farm that could have a foreseeable effect on coastal resources, as an oyster farm had been operating in the same location for approximately eighty years.
The plaintiffs ask that the Court hold unlawful and set aside the Secretary’s defendants’ decision to force the DBOC oyster farm to close, and enjoin the defendants to engage in a new decision-making process that complies with the law. In the interim, the plaintiffs seek preliminary injunctive relief during the pendency of this litigation to prevent their irreparable harm.
The amended complaint also adds claims alleging that NPS and the Department of the Interior, by ordering the DBOC to stop raising oysters in the estero, effectively condemned property interests held by the State of California, in excess of their authority under the Point Reyes National Seashore Enabling Act.
Irreparable Losses
If DBOC is required to cease cultivating shellfish in Drakes Estero, plaintiffs will either completely lose access to locally harvested oysters, or lose access to a substantial and critical component of their locally-harvested oyster supply. This would cause them to suffer irreparable losses of business goodwill.
Plaintiffs have a wide variety of interests in having shellfish cultivation in Drakes Estero continue.
Tomales Bay Oyster Company (TBOC) supplements its harvest with 6,000 to 15,000 oysters a week from DBOC. There is no other local source that can make up for this shortfall. TBOC and other Tomales Bay oyster farms have an interest in having the DBOC retail and picnic site available as an alternative recreational opportunity available to relieve overcrowding at their facilities.
The farm-to-table restaurants in the area would be deprived of this important source of local fresh oysters, and the sole remaining source of fresh-shucked oysters made possible by this last oyster cannery in California.
Plaintiff Rosa “Nellie” Gamez may have to close her business if she is no longer able to purchase oysters from DBOC. The only other possible source for her in California is Humboldt Bay Oyster Farm in Humboldt Bay. They said that the oysters they sell in the San Francisco Bay area go directly to the Hog Island Oyster Company and they do not have enough oysters to supply her.
Plaintiffs also have an interest in having oysters, which are an environmentally-friendly food source, continue to serve as filter feeders in Drakes Estero. The Tomales Bay Oyster Company has an interest in being able to source oysters from Drakes Estero to keep their retail business open when Tomales Bay is closed following winter rains and/or when additional oysters are not be available from Washington State during summer months.
Plaintiff Murphy has an interest in continued employment for herself and others in her West Marin community, and for avoiding the impact of closure on other DBOC employees, who stand to lose their affordable housing as well as employment.
Plaintiff restaurants and the Tomales Bay Oyster Company, in particular, have an interest in having the State of California ensure the proper management and regulation of commercial fishing in California.
Plaintiff Dixon Marine Services, Inc. has an interest in the continued operation of the DBOC cannery as a source for the whole oyster shells it uses to build artificial reefs for the reintroduction of native Olympia oysters in the San Francisco Bay, in performance of contracts with the California Coastal Conservancy.
Eye-Opening Impacts
In an amicus brief filed on August 6, 2014, amici Phyllis M. Faber, Robin Carpenter, Elizabeth Hill, Andrew R. Olmsted, Laura A. Watt, and Revd. Dr. Robert L. Weldy, Jr. ask that the court consider the “community of interests that was deprived of an opportunity to be heard regarding the multiple respects in which the Secretary’s Order is inconsistent with the legally binding policies applicable to land and water uses and natural resource protections in California generally and more specifically in the County of Marin.”
The amici point out the tremendous number of negative effects that would result from removing the oyster farm. That removal would:
- Eliminate a source for almost 85% of the fresh, locally-raised shellfish sold in the San Francisco Bay Area;
- Eliminate a source for the healthy food that amicus Andrew Olmsted and others like him who strive to live “ethically” seek;
- Eliminate skilled jobs for the low-income and mostly Latino workers who produce the food, including the women who work in the cannery;
- Eliminate an exceptional recreational opportunity for the over 50,000 visitors each year to the DBOC oyster farm who, among other things, seek an opportunity to join with friends and multiple generations of family for a picnic while enjoying fresh oysters from the waters they see and in a setting that has existed for over 80 years;
- Reduce the options for recreational alternatives in Marin to wine country tours;
- Eliminate a significant source of environmentally- and economically-sustainable, high quality marine protein;
- Eliminate the ecosystem services provided by oysters—without providing an alternative;
- Eliminate a historic cultural landscape;
- Eliminate the last oyster cannery in California, an activity that reflects both an important historic and continuing period in the economic history;
- Eliminate (by closing the cannery) the source for whole oyster shells used in efforts to restore San Francisco Bay and aid in survival of the endangered snowy plover; and
- Eliminate an opportunity for the public to observe and learn about mariculture.
Removing the oyster farm from Drakes Estero would be a terrible mistake. It’s clear that the Park Service, Interior, and NOAA did not follow the proper procedures in arriving at the decision to close down the Oyster Farm.
FTCLDF is administering a litigation fund for the new lawsuit in support of continued shellfish farming in the Point Reyes National Seashore.