The Oyster Company That Wouldn’t Leave

One year after it was ordered to close, a controversial oyster business continues to block the creation of the first marine wilderness on the West Coast.

One year ago this week, the Obama administration designated Drakes Estero in Point Reyes National Seashore to become the first marine wilderness on the West Coast. But that order remains in limbo because a controversial oyster business has steadfastly refused to stop operating in the estero. Instead, Drakes Bay Oyster Company has continued to harvest oysters and invasive clams in the area while fighting its legal case in court.

The oyster business, moreover, is still reaping substantial revenues from its operations — and is now doing so at taxpayer expense. In addition, a recent environmental report strongly indicates that the oyster business may be inflicting significant harm to the fragile estero.

Currently, the oyster company’s legal case is still in front of the Ninth Circuit Court of Appeals in San Francisco. The company has asked the full Ninth Circuit to overturn a decision made by a three-judge panel of the same appeals court earlier this year. That panel had ruled against the oyster farm, and ordered it to close, concluding that then-US Secretary of the Interior Ken Salazar was within his legal authority when he decided on November 29, 2012 to allow the oyster farm’s lease to expire at the estero. A federal circuit judge had previously come to the same conclusion.

Yet despite the two losses in court, Drakes Bay Oyster Company remains fully open for business — thanks to an order granted by the Ninth Circuit, allowing the company to remain in business while it pursues more appeals. The oyster company also is profiting from the drawn-out legal proceedings: Its lease with the federal government expired last year, so the business is operating rent-free on public land.

In addition, a recent financial report produced by Jeffrey Michael, a respected economics forecaster at the University of the Pacific in Stockton, estimated that Drakes Bay Oyster Company likely will produce about $3.9 million in shellfish sales this year, and earn between $466,000 and $815,000 in net income. Michael based his economic estimate on past revenues and business operations that the oyster business had produced for federal government officials.

A new environmental report, meanwhile, found that the oyster company’s continued operations appear to be fostering the increased growth of a highly invasive species — Didemnum vexillum (Dvex), also known as “marine vomit” — that threatens to seriously harm the 2,300-acre estero. The report, by Jude Stalker, a biologist and invasive species specialist, found that Dvex is spreading in the estero. The species — which has thrived on the oyster company’s infrastructure, including plastic tubes, lines, and oyster shells — is now growing on dead eelgrass on the bottom floor of the estero. “Because eelgrass dominates the bottom habitat of Drakes Estero, the potential for the colonization of much of the Estero floor by Dvex is high and the ongoing and future harm to this natural resource is cause for serious concern,” Stalker stated in her report, adding that Dvex, as a result of its spread to eelgrass, could “become the dominant member” of the local environment.

In court documents, the oyster company’s legal team, which is working on the case free of charge, continues to argue that the business is not hurting the estero. The company’s lawyers also are continuing to contend that the federal government was required under federal law to conduct a comprehensive environmental impact report before allowing the oyster company’s lease to expire. They also argue that the environmental study conducted by the National Park Service was flawed.

Until earlier this year, the oyster company’s legal efforts had been led by a shadowy nonprofit, Cause of Action, that has ties to the ultra-right-wing Koch brothers. In fact, the oyster company has become a cause célèbre in conservative circles, serving as a poster child for the rights of private businesses operating on public land. And while the oyster company has severed its ties with Cause of Action, it’s still embracing support from the Right. The conservative Pacific Legal Foundation, which also has received Koch brothers funding, filed a court brief with the Ninth Circuit on behalf of the oyster company, a move that the oyster company approved.

The US Department of Justice has until December 2 to respond to the oyster company’s request for a review of the case by the full Ninth Circuit. The DOJ is expected to reiterate arguments it made before the three-judge panel and the federal district court — namely, that legislation written by US Senator Dianne Feinstein in 2009 gave then-Secretary Salazar unilateral power to decide whether to renew the oyster company’s lease or let it expire. As such, the federal government was not obligated to conduct a comprehensive environmental review. (Ironically, Feinstein was a strong supporter of the oyster company, and she wrote the legislation in the hopes that the Obama administration would agree to renew the lease.)

If the full Ninth Circuit agrees to the oyster company’s request for a review of the three-judge panel’s decision, then oral arguments in the case likely will not take place until next year. And if the Ninth Circuit denies the oyster company’s request for review, then the oyster company is expected to appeal to the US Supreme Court. The oyster company also is expected to request that it remain open until the Supreme Court issues a ruling.

Consequently, it could be some time before the West Coast finally gets its first federally protected marine wilderness area.

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