Bay Area Oyster Farm Fights for Life

OAKLAND, Calif. (CN) – The government is illegally forcing a Bay Area oyster farm to shut down, which will devastate the businesses that rely on its oysters, the Tomales Bay Oyster Co. and several other business claim in Federal Court.
     Tomales Bay Oyster Co., three restaurants, the Alliance for Local Sustainable Agriculture et al. sued the Department of the Interior, the National Park Service, the National Oceanic and Atmospheric Administration Office of Coastal Resource Management and their top officials, on July 17.
     The plaintiffs claim the government ignored its duties under the National Aquaculture Act and the California Coastal Management Program when it issued a memorandum shutting down the Drakes Bay Oyster Co. in November 2012.
     Drakes Bay is not a party to the complaint.
     Moreover, the decision to close Drakes Bay did not analyze the impacts of the closure on local coastal resources since “an oyster farm had been operating in the same location for approximately eighty years,” according to the 20-page lawsuit.
     Drakes Estero, about 25 miles northwest of San Francisco in the Point Reyes National Seashore, is surrounded by Schooner, Barriers, Creamery and Home Bays and serves as the primary drainage point for Point Reyes Peninsula.
     Historians believe the Estero is the most likely place where Sir Francis Drake landed in California during his circumnavigation of the world from 1577 to 1580. As such, it has been designated as a National Historic Landmark.
     The region is also a source of controversy between dairy and oyster farmers who have used the area for decades, and conservationists who claim that such uses threaten water quality and the integrity of the ecosystem.
     Drakes Estero is California’s cleanest estuary due in large part to the oyster farm, the plaintiffs say. Shutting down Drakes Bay Oyster Co. will remove Pacific oysters from the Estero, which will “lead to degradation of water quality in the Estero, and that livestock managed by producers surrounding the Estero may be held responsible for this decline. This could result in efforts to shut down livestock operations in the Estero watershed and further losses to the sustainable agriculture of the region,” the complaint states.
     California has leased the water bottoms of the estuary for shellfish aquaculture since 1934, and retained that right when it transferred the water bottoms to the federal government in 1965, according to the complaint.
     Johnson Oyster Co., the original lessee of the 1.5 acre oyster farm at Drakes Estero, granted fee title to the federal government in 1972 “in exchange for a forty (40) year renewable reservation of use and occupancy (RUO),” the complaint states.
     That RUO was transferred in 2004 to Drakes Bay Oyster Co. The government’s order to close the farm by the end of July will prevent it from enjoying its leases, the complaint states.
     The government’s claim that its decision to close the farm did not have to comply with the National Environmental Policy Act or any other law is based on an erroneous interpretation of section 124 of the Department of the Interior Appropriations Act, the plaintiffs say.
     As a result, the government did not consult with the “aquaculture coordinating group” before issuing the decision, in violation of the National Aquaculture Act; did not work with the California Coastal Commission to ensure that closure of the oyster farm was consistent with the state’s coastal management plan; and encroaches on public trust rights to fish in the estuary’s waters, according to the lawsuit.
     “The Interior defendants erroneously took the position that their decision whether to close the DBOC [Drakes Bay Oyster Co.] oyster farm was exempted from any substantive or procedural legal requirements. Accordingly, the Interior defendants failed to consider all relevant factors and failed to conduct a full analysis of the foreseeable effects of their decision to close the DBOC oyster farm. … This was arbitrary, capricious, unlawful and contrary to the procedures required by law, in violation of 5 U.S.C. §§ 706(2)(A) and 706(2)(B), as were the Interior defendants’ decision that they were exempted from the legal requirements to adequately consider or analyze such factors, and their decision to close the DBOC’s oyster farm based on that inadequate analysis,” the complaint states.
     The National Oceanic and Atmospheric Administration’s requirement that the farm submit a report concerning the impacts of continued operation in the estuary to the California Coastal Commission is also arbitrary, the plaintiffs say.
     “As a matter of basic logic, the proposed activity here, continuation of oyster farming that has occurred in the estero uninterrupted for approximately 80 years cannot be deemed to have coastal effects that are reasonably foreseeable, but rather only the cessation of such farming could have such effects,” the complaint states.
     The indirect impacts of closing the farm would fall most heavily on the shoulders of businesses such as the plaintiffs, of whom several are small, locally owned restaurants that rely on oysters from the Drakes Bay oyster farm to attract customers, the complaint states.
     Tomales Bay Oyster Company says it buys 6,000 to 15,000 oysters a week from Drakes Bay, and would lose $250,000 to $400,000 if it cannot get locally harvested oysters from the farm.
     Saltwater Oyster Depot describes itself as a “small farm to table restaurant in Inverness, California that relies on locally sourced shellfish to offer guests a taste of the area and support a tightly knit food production network.” If the Drakes Bay farm is forced to close, it says, the cost of shipping in nonlocal oysters would prevent it from competing with larger establishments.
     Osteria Stellina, an Italian restaurant that forged its reputation by using local ingredients, says that being unable to buy locally sourced oysters from Drakes Bay will result in “significant” losses of clientele.
     Plaintiff Jeffrey Creque, an agricultural ecologist who helped found the Alliance for Local Sustainable Agriculture, says that shellfish cultivation is an “ecologically benign and even beneficial food production system, for environmental reasons.” Among other things, it is carbon neutral and helps preserve threatened marine ecosystems, Creque says.
     The plaintiffs seek declaratory judgment that the decision to close Drakes Bay Oyster Co. and the requirement to prepare a consistency plan are arbitrary and capricious in violation of the Administrative Procedures Act, and ask the court to vacate both.
     They also want an injunction preventing the government from enforcing the decision to close the oyster farm and allowing it to continue operating until the court weighs on the merits, and the government can issue a decision that is “consistent with the law.”
     The plaintiffs’ lead counsel is Stuart G. Gross, of San Francisco.

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