Dianne Feinstein's War
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July/August 2012 Wilderness Watch Guardian:
Oyster Madness

Dianne Feinstein's War 
California's senior senator has been fighting for Drakes Bay Oyster Company at Point Reyes National Seashore — and against the creation of the first marine wilderness on the West Coast.
By Robert Gammon @RobertGammon
East Bay Express

Dianne Feinstein considers herself an environmentalist. She often boasts about her record in the US Senate, including legislation she spearheaded that resulted in the protection of seven million acres of Southern California desert. But over the past several years, instead of helping to protect pristine wildland in Northern California, the state's senior senator has been working furiously to block what would become the first marine wilderness on the West Coast.

The coastal area in question is a breathtaking inlet at Point Reyes National Seashore in Marin County called Drakes Estero. Inhabited by harbor seals, herons, ospreys, egrets, eelgrass, and other flora and fauna, Drakes Estero is scheduled to become a federally protected marine wilderness at the end of this year under a law enacted by Congress in 1976, known as the Point Reyes Wilderness Act.

With more than 2.6 million annual visitors, Point Reyes National Seashore is one of the environmental jewels of the San Francisco Bay Area. Nestled on the Marin shoreline, about 75 minutes northwest of Oakland, the park is one of the most popular destinations in Northern California, and a longtime favorite among East Bay residents. As such, the planned creation of a first-ever marine wilderness — defined as an area of land and water large enough to sustain biological diversity, which would be given the highest level of federal protection — within the national seashore represents yet another chapter in the historic legacy of environmental protection in the state.

But Feinstein wants to delay establishment of the wilderness for at least ten years, possibly longer, because she believes that a longtime oyster farm, Drakes Bay Oyster Company, should be allowed to continue operating in Drakes Estero after the farm's lease expires in November. Feinstein wants US Interior Secretary Ken Salazar to extend the oyster farm's lease, and Salazar and his department are currently considering the request. A decision is expected this fall.

If Salazar extends the oyster farm's lease, it would be unprecedented. According to research conducted at UC Berkeley's law school, the US government has never extended the lease of what is considered a non-conforming commercial operation, like an oyster farm, on national parkland designated by Congress to become wilderness. In fact, the only thing keeping Drakes Estero from being a marine wilderness today is the oyster farm — an operation that does not catch wild oysters, but instead grows and harvests them artificially in the estuary, and then sells them on the open market.Environmentalists are concerned that if Salazar gives Feinstein what she wants and establishes the precedent, it could prompt other US senators and Congressional representatives to make similar requests for commercial operations on national parkland in their states. After all, if a Democratic senator can get a Democratic administration to delay the creation of a protected wilderness in California on behalf of a business, then what's to stop a Republican senator from making the same type of request if a Republican is in the White House? "It would be a travesty," said Amy Trainer, executive director of The Environmental Action Committee of West Marin, which has led the battle for wilderness protection, along with the Sierra Club and the Audubon Society. "A deal's a deal. Drakes Estero is supposed to become wilderness."

In response to a request for an interview for this story, the senator's press office emailed a letter that Feinstein wrote last month to state officials. In the May 22 letter, Feinstein stated that she took up the oyster farm's cause because she believes that the National Park Service has treated the farm in a "biased and unfair manner." She pointed to an environmental study by the Park Service and comments made by park officials — concerning the oyster farm's effects on the estero — that were sharply criticized by the Interior Department's Office of Inspector General and the National Academy of Sciences for being flawed.

Feinstein's letter, however, did not mention that Park Service officials have apologized for their mistakes and retracted the study. Nor did the letter acknowledge that the oyster farm has repeatedly violated state regulations for aquaculture farming during the past decade. The letter also did not note that the flawed Park Service study was irrelevant as to whether the oyster farm's lease should be extended. Indeed, under federal law, it doesn't matter whether the oyster farm has harmed the estero or not, because the estero — meaning estuary or inlet — cannot become a protected marine wilderness as long as there's a large, active commercial operation in the middle of it.

Kevin Lunny, owner of Drakes Bay Oyster Company, has known since before he bought the oyster farm in 2004 that its lease was going to expire in November 2012. Nonetheless, Lunny, a politically connected rancher who also owns an organic, pasture-raised cattle ranch on Point Reyes National Seashore property, has fought to extend the lease, establishing a network of influential friends who have joined his battle against the Park Service. During the past half-decade, he has taken an active role on the boards of several high-powered nonprofits in the sustainable-food movement, including Marin Organic and the Agricultural Institute of Marin, which operates farmers' markets throughout the Bay Area, including the Grand Lake Farmers' Market in Oakland.

Lunny's supporters also include wealthy Democratic Party donors who have taken up residence in bucolic West Marin. Among them is Nan T. McEvoy, a former co-owner and chairwoman of the San Francisco Chronicle who is also an influential campaign contributor. McEvoy owns a 550-acre organic olive farm near Point Reyes and has intervened on Lunny's behalf in his efforts to extend his lease.
As for Feinstein, she has arguably fought as hard for the oyster farm as for any other issue on her agenda in the past several years. And evidence has surfaced recently that she hatched a plan to broker a secret backroom deal that would block Drakes Estero from becoming a protected wilderness.

Point Reyes became a national seashore in 1962; in fact, the park is celebrating its fiftieth anniversary this year. Drakes Estero, a sprawling, 2,500-acre estuary on the park's southern, central shore, is named for Sir Francis Drake, the English explorer who landed at Point Reyes in 1579.

In 1965, as the park expanded and its popularity grew, the State of California ceded control of coastal areas at Point Reyes to the National Park Service. Seven years later, Charlie Johnson, owner of Johnson's Oyster Company, which would later become Drakes Bay Oyster Company, sold his coastal property to the Park Service and received a forty-year lease in return. Such transactions have been and are typical for commercial enterprises and personal property surrounded by national parkland.

In 1976, Congress passed the Point Reyes Wilderness Act, and President Ford signed it. The Act designated more than 25,000 acres in Point Reyes as wilderness, and more than 8,000 acres as "potential wilderness," including Drakes Estero. Congress deemed the estero to be potential wilderness because land cannot become true wilderness as long as there's a commercial business, in this case an oyster farm, operating on it. As such, Drakes Estero would become wilderness once the oyster farm's lease expired.

On a recent spring day, I hiked to the estero during low tide from Drakes Beach. Along the way, Tom Baty, a local fisherman who has been trekking daily throughout Point Reyes National Seashore for the past several decades, pointed out dozens of pieces of plastic from the oyster farm that had washed up on the beach. "There's another one," Baty said, scooping it up for his large collection. "They're all along here."

As we headed inland, through berry brambles and poison oak and over a ridge top, the mouth of Drakes Estero came into view. Dozens of harbor seals were sunbathing on a big sandbar in the middle of the inlet; the estero is a major pupping ground for harbor seals. High overhead, an osprey cruised by its nest. Farther into the estero, the oyster farm's operations started to become apparent as the tide continued to recede.

Throughout much of the 20th century, Johnson's Oyster Company was a bustling enterprise. Johnson's family grew oysters in the estero, and then sold them to restaurants and other Bay Area outlets — and to tourists at a rambling shack at the end of a dirt road off Sir Francis Drake Boulevard. But by 2004, the oyster business had lost steam, and so the Johnsons sold it to Lunny, who operates the historic, 1,400-acre G Ranch that sits directly across Sir Francis Drake Boulevard from the estero and the oyster farm.
According to public documents, both Johnson and the National Park Service told Lunny that the oyster farm's lease was going to expire in 2012 and that Drakes Estero was to become a federal marine wilderness — a fact that Lunny admitted in a recent interview for this story. Lunny also knew when he bought the oyster farm that the California Coastal Commission had issued a cease-and-desist letter to the Johnsons for not having proper permits. Yet Lunny decided to invest heavily in the aging, aquaculture business, and to ramp up its operations.

According to government data, the oyster farm had produced, on average, about 150,000 pounds of oysters a year in the half-decade before Lunny purchased it, but by 2007, it was pumping out 475,000 pounds annually, Trainer said. Lunny's oyster farm is big business; it supplies at least 25 percent of the oysters consumed in California, is the largest supplier of oysters in the Bay Area, and is the state's biggest commercial shellfish operation in terms of production.

Under Lunny, the newly named Drakes Bay Oyster Company, like its predecessor, has also run afoul of state regulators. Public records show that the Coastal Commission continued to issue cease-and-desist letters in the years after Lunny bought the oyster farm because he did not have proper permits. In February 2009, Lunny got in more trouble because he was growing and harvesting Manila clams, an invasive species, in the estero without a National Park Service permit. Then in December of that year, the Coastal Commission fined the oyster farm $61,500 for numerous ongoing violations. And last September, the commission sent another reprimand to Lunny, warning about the "adverse impacts" of his company's boats operating in sensitive harbor seal habitat "during the breeding and pupping season."

Nonetheless, Lunny has successfully portrayed himself in Marin County as the "little guy" fighting against oppressive government bureaucrats who have unfairly targeted him and his thirty employees. "They make us out to be some kind of terrible stewards" of the environment, he said of the Coastal Commission regulators, "which is not the truth."

Lunny's extensive network of friends and supporters in West Marin also is impressive, and his prominence within the sustainable-foods community has won him much sympathy and praise, creating a situation in which some liberal Democrats, who otherwise would typically side with the environment, are instead firmly in his corner. "West Marin is ground zero for sustainable and organic agriculture," noted Corey Goodman, who owns a ranch in the nearby town of Marshall.

Coastal Commission officials, however, take issue with the allegation that they have persecuted Lunny. "The reality is: He still doesn't have any permits," said commission spokeswoman Sarah Christie. "We would have been well within our rights to go after his operation as an enforcement case. But we haven't. We have bent over backwards ... for the operation. Not only have we not persecuted him, we've been more than fair."

But in the small coastal towns near the park and Tomales Bay — Marshall, Point Reyes Station, Olema, Inverness Park, Inverness, and Bolinas — state regulators are often looked upon with suspicion, and the National Park Service is viewed by many as a giant with an insatiable appetite. Ranchers, in fact, believe that if the oyster farm's lease isn't renewed, they'll be the next to go. "Almost everybody close to this does have that fear," Lunny said. "The oyster farm is seen as an example of unbecoming conduct by the Park Service and its distaste for agriculture."

For their part, Park Service officials have stopped talking about the oyster farm as Salazar nears his decision. But they've said previously that ranchers, including Lunny, who leases his cattle ranch from the park, are in no danger of losing their leases because they're on property that was never designated by Congress to be potential wilderness.

Many residents and ranchers, however, don't trust the Park Service because of the missteps it made with Drakes Bay Oyster Company.

Lunny's decision to dramatically increase production at his oyster farm in 2005 and 2006 raised alarm bells at Point Reyes National Seashore. By early 2007, Sarah Allen, a park scientist, and Don Neubacher, the park's superintendent, began warning publicly that the expanding oyster farm was seriously impacting the harbor seals' pupping ground.

Lunny reacted angrily and swiftly, complaining to the Department of Interior's Office of Inspector General that Park Service officials were allegedly slandering him and harming his business. Lunny, who also owns a rock quarry and paving business, convinced Steve Kinsey, a Marin County supervisor who represents West Marin and has close ties with the ranching community, to get the rest of the board of supervisors to ask Dianne Feinstein to intervene on the oyster farm's behalf.

Despite her success in protecting Southern California desert, Feinstein also has a record of siding with business over the environment. California Watch reported in 2009 that Feinstein had assisted wealthy Central Valley farmer Stewart Resnick and state agribusiness interests in their attempts to extract more water from the fragile Sacramento-San Joaquin River Delta, and thus leave less water for declining salmon populations.

And in the summer of 2008, Feinstein received the ammunition she needed to help Lunny in his battle with the Park Service. The Interior Department's Office of Inspector General issued its report, strongly criticizing Allen and Neubacher for overstating the oyster farm's impacts on harbor seals.

Lunny portrayed the report as vindication of his claims of being persecuted, while Feinstein expressed outrage at the conduct of Park Service officials. The senator also asked the National Academy of Sciences to review an environmental study that the Park Service had done on Drakes Estero and the oyster farm. In May 2009, the academy responded with more fuel for the fire, concluding that the Park Service had manipulated data and exaggerated the oyster farm's effects on the estero and harbor seals.

Neubacher apologized and retracted the environmental study. But the damage had been done. The flawed study and misstatements by park officials helped Lunny and Feinstein change the public conversation from the planned creation of the first marine wilderness on the West Coast to the alleged persecution of a popular oyster farm and its owner.

Looking back, some environmentalists now acknowledge that the Park Service's claims about the oyster farm and the environmental studies it conducted were unnecessary. That's because it doesn't matter whether the oyster farm harms Drakes Estero or not (it does have impacts, but their extent remains in dispute). The simple fact is: The estero cannot become a wilderness as long as Lunny's operation is there.

So why did the Park Service do what it did? Lunny claims that Neubacher was determined to stop him from extending his lease and manipulated the science to show that he was greatly harming the environment. "There are some impacts," he acknowledged of his oyster farm. "But no serious adverse effects."

However, Gordon Bennett, a West Marin environmentalist who has closely monitored the estero controversy, said the Park Service conducted the environmental studies because it was concerned about the massive increase in production at the oyster farm. "Mr. Lunny was engaged in a fairly heavy expansion at that point," Bennett said. "There was conflict there."

Lunny, however, wasn't just expanding his oyster operation; he was expanding his network of influential friends. Among them was Nan T. McEvoy, heiress to the Chronicle publishing empire and big-time Democratic Party donor. Since 2000, she has contributed at least $534,900 to federal Democratic campaigns, finance reports show. She also is an influential player in state politics, donating $1 million to Governor Jerry Brown's two charter schools in Oakland.

McEvoy also stirred controversy of her own in the North Bay when she proposed to build a giant windmill at her olive farm. Lunny supported her plan, and she helped him by asking at least one former lawmaker to intervene on his behalf — ex-Congressman Pete McCloskey, the co-sponsor of the 1976 Point Reyes Wilderness Act. Jeff Creque, who works for McEvoy at her olive farm, said she has been a longtime supporter of Lunny's business and views it as being environmentally sustainable.

Her involvement also has paid dividends for Lunny. After being contacted by McEvoy, McCloskey has made numerous public appearances contending that Congress had always intended to allow the oyster farm to remain at Drakes Estero — even though the Wilderness Act does not specifically say so.

Lunny's most vocal supporter, however, is Corey Goodman, an outspoken and now-retired UC Berkeley neuroscience professor. Goodman has been the loudest critic over the past several years of the Park Service and its studies of the estero, publicly condemning park officials and calling their actions "criminal." In a recent interview, he alleged that the Park Service has been involved in "intentional deception."

Environmentalists, however, contend that Goodman, who does not have a degree in environmental science, has manipulated data on behalf of Lunny's operation and has routinely made outlandish and unsupported claims. In fact, the federal Marine Mammal Commission concluded last year in a report on Drakes Estero that some of Goodman's statistical models were flawed and produced "inflated" results.
Yet that hasn't silenced his criticism of the Park Service. "I think the National Park Service needs to show environmental harm, and by hook or by crook, they're going to show it," he said in an interview. In 2009, Goodman also co-founded Marin Media Institute, a so-called low-profit company that bought the Point Reyes Light newspaper. Goodman has subsequently left the board of the institute, but he writes columns for the Light, which environmentalists say is solidly pro-Lunny. Last week, the Light featured another piece written by Goodman, criticizing the Park Service.

As for Feinstein, the reports from the National Academy of Sciences and Department of Interior emboldened her to take her war against the Park Service to the next level.

In 2009, Feinstein introduced legislation in the US Senate that would have automatically extended Lunny's lease for another ten years. But the proposal sparked concern among senators who recognized that it would set a precedent. So Feinstein backed down and agreed to a compromise that would allow Salazar, who as secretary of the Interior also oversees the Park Service, to make the final determination about Lunny's application to extend his lease.

As part of that decision-making process, the Park Service embarked on a comprehensive environmental study. Last fall, the study's draft report concluded that allowing Lunny's lease to expire in 2012 was the "environmentally preferred" option.

Feinstein and Goodman immediately ripped the report, alleging that, like the Park Service's 2007 environmental study, it, too, was riddled with errors. They questioned whether the Park Service could be trusted to conduct an objective analysis. "Missteps by the National Park Service have fundamentally undermined its ability to accurately review this application," the senator said in a statement after the draft report came out. "It is my hope that the final report, and Secretary Salazar's decision, will rely on objective findings from the National Academy of Sciences and the Marine Mammal Commission."

Recently, Goodman and Lunny also have begun to argue that Drakes Estero wouldn't be the first marine wilderness on the West Coast because Estero de Limantour, which is next door and shares the same inlet mouth as Drakes Estero, is already marine wilderness. However, according to Congress, the Park Service, and environmentalists, Limantour is part of Drakes Estero, a m ulti-pronged estuary, and as long as Lunny's operation remains there, the area is not true wilderness.

As for the Marine Mammal Commission's report, it did not provide Feinstein with the additional ammunition she sought. Released last November, it not only found flaws in Goodman's statistical models but also concluded that the oyster farm appears to be harming harbor seals in the estero, but that more study is needed. As for the National Academy of Sciences report — the second one requested by Feinstein concerning Drakes Estero — it has not yet been released.

Feinstein, however, apparently isn't interested in waiting for more reports. Last month, evidence surfaced that the senator had hatched a plan to strike a backroom deal with Salazar to extend Lunny's lease rather than wait for the National Academy of Sciences and the final environmental study from the Park Service.

In a move that would have helped Feinstein broker the deal, Lunny had requested — with the senator's blessing — that the California Fish and Game Commission reassert the oyster farm's right to operate in Drakes Estero. According to letters sent to Fish and Game, Lunny and Feinstein contended that the oyster farm falls within "the public right to fish," as guaranteed by the California Constitution. If the Fish and Game Commission then agreed with this contention, it would have set up a states' rights issue, in which an influential California agency — Fish and Game — would have been on record saying it wanted Drakes Bay Oyster Company to continue operations. Such a scenario would have pressured Salazar to bow to the will of the state.

And that appears to be exactly what Feinstein desired. At a May 23 Fish and Game Commission meeting, former state Assemblyman William Bagley, a Marin County resident who also supports Lunny, said that he had been in discussions with Feinstein's staff about the senator wanting Fish and Game to reassert Lunny's rights so that she could force Salazar's hand, according to a transcript of the meeting. "If she has a resolution from this good board that you intend to continue exercising your jurisdiction to issue leases," Bagley told the Fish and Game Commission, "she can hand that to the secretary [Salazar] and say, 'Look, my state wants to exercise its jurisdiction, please let them.'

"That means that the Park Service will be overridden and will receive, from the secretary, orders to issue another land-use permit" to Lunny, Bagley continued.

However, Fish and Game staff, along with the state Lands Commission and the Coastal Commission, strongly disagreed with Lunny and Feinstein's right-to-fish argument. In letters in response to Lunny and Feinstein, the agencies all said emphatically that oyster farming is not fishing; it's farming because no wild oysters are caught. Instead, the oysters are grown and harvested artificially. The commission unanimously agreed and refused to take up Lunny and Feinstein's request.

As a result, the question of whether Drakes Estero will become the first marine wilderness on the West Coast appears to be solely up to President Obama's appointee, Ken Salazar. There's no exact timetable for his decision, but he's expected to make it before Lunny's lease expires this November.

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