< 8 Strange oyster bedfellows Drakes Bay Oyster Company owner Kevin Lunny thought he had a shot at getting an extension. Salazar quashed that hope when he issued his decision, one day before Lunny’s lease ended, giving the company 90 days to wind down its operation. That includes the loss of about 30 jobs and the end of oyster cultivation that accounts for as much as 40 percent of the state’s oyster production, according to DBOC supporters. In a move that the company said was designed to line up evidence against the oyster operation in order to kick it out of the estero, the park service came out early and hard with an aggressive approach that alienated many locals and gave credence to the big government boot on the neck of the little guy meme espoused by many who support the oyster farm and oppose the park service. The park service fudged facts, said oyster farm supporters, when it compiled environmental hazards allegedly associated with the oyster farm. But while oyster farm supporters claimed the park service had skewed scientific results to prove what it already wanted to hear—negative environmental consequences—a Department of the Interior study cleared the park service of intentional misconduct. “The factual record firmly supports conclusions that there was no criminal violation or scientific misconduct, but the park service is an organization and through its employees made mistakes which may have contributed to an erosion of public confidence.” Studies and counter-studies continued. After Feinstein’s rider, known as Section 124, was enacted, it started a process that resulted in an environmental statement regarding options for the estero. A key part of the lawsuit Cause of Action filed claims that the federal government failed to follow the National Environmental Policy Act (NEPA) while the park service and Salazar were formulating the decision regarding the environmental impacts and ultimate outcome for the estero. In his memo, Salazar says that according to Section 124, he was not bound to adhere strictly to NEPA in making his decision, but “the NEPA process will be used to inform the decision of whether a new special use permit should be issued to DBOC for a period of 10 years.” Cause of Action and its legal team, the law firms of Stoel Rives LLP and SSL Law Firm LLP, claim Salazar should have followed NEPA. They also allege that the park service used faulty science in the environmental review process. Neal Desai, associate director for the Pacific region of the National Parks Conservation Association, says the charge that Salazar failed to follow NEPA, resulting in a flawed decision, is itself a flawed conclusion. He points to a letter Ryan Waterman, a lawyer at Stoel Rives, wrote to Salazar Nov. 1, almost one month before the decision, stating Salazar should grant a lease extension based on “a wealth of information” already compiled. The problems associated 10 PACIFIC SUN DECEMBER 14 - DECEMBER 20, 2012
with the environmental review process, the letter states, raise an interesting question: “What effect does the [National Park Service’s] failure to provide you with a legally adequate [environmental report] have on your discretion” under Section 124? In fact, the letter continues, “none, because Section 124 includes a ‘general repealing clause’ that allows you to override conflicting provisions in other laws—including NEPA—to issue” a new special use permit for DBOC. Dan Epstein, executive director of Cause of Action, says there’s an important distinction in that letter. According to him, if Salazar had decided to extend the lease, he would not need to consult NEPA. But if he decided not to renew the lease, which he did, he should have followed NEPA requirements to the letter. “What we are arguing is that because Salazar decided to terminate the lease, he was required to follow more procedural guidelines and to follow a higher standard in terms of complying with NEPA.” Cause of Action has filed for a temporary restraining order to halt the closure while the lawsuit is pending. Epstein’s characterization of Salazar’s action as deciding to “terminate” the lease holds a clue as to which side of the fence Epstein and Cause of Action sit. The lease was set to expire Nov. 30. Salazar did not terminate it. He refused to renew it because, he said, that always was the intention when the area was designated potential wilderness. Plans called for removing the oyster operation in 2012 and also removing the “potential” description. The 29-year-old head of Cause of Action is a former staffer at the Charles G. Koch Charitable Foundation. The billionaire Koch brothers made a fortune in the oil and gas business. They spent hundreds of millions trying to get Republicans elected this year. They also have been key financial supporters of the Tea Party. Epstein also served as an attorney for the House Committee on Oversight and Government Reform, headed by California Republican Darrell Issa. The committee has spent long hours on several investigations of the Obama administration. One of those investigations targeted the National Park Service and its actions related to Drakes Bay Oyster Company. No one could call Issa nonpartisan. Epstein worked on—among others—the investigation into the Association of Community Organizations for Reform Now (ACORN). The conservatives’ dedication to topple ACORN tore the group apart. Epstein and his organization continue to wage war against ACORN, which they say has morphed into many smaller groups since the demise of the parent organization. Nonprofit groups say conservative lawmakers and groups like Cause of Action have targeted them. According to the Chronicle of Philanthropy, Cause of Action has written letters to groups that receive federal money, warning them they may have violated lobbying laws. The tactic aims to stifle charitable advocacy work, say the nonprofits.
Epstein says the Cause of Action investigations, including those aimed at ACORN, adhere to his organization’s nonpartisan mission. “At all times, our investigations into groups like ACORN or any nonprofit that receives federal funds” focuses on a concern that “taxpayer dollars are at risk of being misused and abused. Our evidence indicates that ACORN in addition to other nonprofits have done that.” He says Cause of Action has never had an interest in tying ACORN to voter fraud. The organization targets, he reiterates, fraud, abuse and government overreach. Cause of Action also has been involved in lawsuits representing a lesbian woman who wants to have a child with a girlfriend using donated sperm and a Chinese company interested in building wind farms in Oregon. Still, it seems that Cause of Action finds most of its waste, fraud, abuse and overreach on the left side of the political spectrum. Ironically, no one knows much about the finances of Cause of Action because the nonprofit organization formed in 2011 and has not filed financial statements yet. Donors are anonymous. Epstein says all the work his organization does, including for Drakes Bay Oysters, is pro bono. Friends of the Lunnys contacted Epstein’s organization to take up the cause of the oyster operation. Epstein says the park service actions and the Salazar decision are “capricious.” He also says Cause of Action took an interest in Drakes Bay because of the inadequate “quality of the science being used” by the park service. “We think it is important to bring this challenge.” But supporters of Salazar’s decision say science never should have played a role in the ultimate outcome. “The science is interesting and informative,” says Gordon Bennett of Save Our Seashore, “but it will never be the final answer. We can never do
enough science to get a definitive answer. That’s why you have these polices that say in the event of confusion or uncertainty, the park service is required to take an action that is most protective of the environment.” Weighing the value of restoring, as much as possible, the estero to a pre-mariculture condition versus the benefits of having a local seafood food producer ignited the Drakes Bay Oyster Company fire. Supporters say the state has ultimate authority over the lease. A lineup of former elected officials who were in on creating the Wilderness Act and the 1965 state tidelines grant to the National Park Service have said the state has authority over the estero. But opinions from the California State Lands Commission, the Department of the Interior’s Pacific Southwest Region Office of the Solicitor, as well as the California Department of Fish and Game, all assert the feds and the park service have ultimate authority. But fish and game commissioners have disagreed with their department. An intramural jurisdiction fight in the Department of Fish and Game is not out of the question. Neither is a legal tug of war between proxies for the state and the feds. “Taxpayers bought this property and it was long-planned to be our first marine wilderness on the West Coast,” says Desai. “This lawsuit is clearly an attempt to privatize the estero and rob the public of this great gift the secretary has given all Americans.” One thing that should hearten supporters of agriculture (as opposed to mariculture, a different animal) in West Marin: Salazar’s memo calls for extending leases on ranches in the pastoral zone to 20 years, from the current 10 years, to protect them as a “vibrant and compatible part of the Point Reyes National Seashore...” < Contact the writer at peter@pseidman.com.
< 8 Newsgrams costs—by forming the Central Marin Police Authority. If San Anselmo officials approve the merger, the CMPA would begin patrolling the mean streets of middle Marin as of Jan. 1. Corte Madera and Larkspur joined forces as the Twin Cities Police Authority in the early 1980s; talks of welcoming San Anselmo into the fold have been ongoing since the economy tanked in 2008 and county municipalities have been struggling to find ways to tighten their financial belts without strangling quality of services. San Anselmo and the Twin Cities have already merged their patrol and dispatch staffs over the course of the past few years. County officials have been calling for consolidation of services for years—but debate over local control and decline in service has left many merger proposals stagnating. In a report from June, a “bewildered” Marin County Grand Jury counted no fewer than 64 county agencies and called for city managers to seek opportunities for sharing or consolidating services; and for all government officials make it a priority to identify “institutional duplication within their sphere of influence.”
Many rivers to Crosse... Woodacre resident Liza Crosse was appointed this week to fill the remaining two years of David Behar’s term on the Marin Municipal Water District board, after receiving unanimous approval from the remaining four board members. Crosse was selected out of a pool of six final candidates, after a total of 14 initially applied to fill the seat of Behar, who is stepping down after moving out of the MMWD Division 3, which covers from Larkspur through the San Geronimo Valley. Crosse is an administrative aide to Marin County Supervisor Steve Kinsey, and serves on the board of the San Geronimo Valley Land Trust, chairs the Lagunitas Creek Technical Advisory Committee and has volunteered for a slew of other West Marin water-focused groups.