Apr 30, 2013
By Trevor Hunnicutt
The battles facing oysterman Kevin Lunny and his family business advanced in state bureaucracies and in federal court last week, as lawyers submitted their final briefs to push an appellate court to prevent the cannery from being shut down. On Monday, Mr. Lunny’s lawyers argued to federal judges that the federal government overstepped its authority by attempting to convert to wilderness an estuary in which the state of California has reserved fishing rights.
Drakes Bay Oyster Company has been pushing the Department of Fish and Wildlife to take a more assertive stance in defense of the oyster farm, and commissioners who oversee the department discussed their legal options in closed session at a meeting in Santa Rosa last week that drew both supporters and opponents.
Meanwhile wilderness advocates unleashed new allegations, immediately denied by Mr. Lunny, that the cannery understated the costs of unwinding its operations in documents submitted to the state.
Environmental groups also pushed back against the argument by Drakes Bay advocates, including celebrity chef Alice Waters, that the public interest would be undermined if courts allowed the National Park Service to evict Drakes Bay.
The oyster farm is gearing up for a protracted lawsuit challenging a decision by former Secretary of the Interior Ken Salazar to not issue a new permit that would allow continued harvesting. But before the lawsuit goes forward the oyster farm must convince an appellate court to prevent an eviction that could destroy the decades-old business. Oral arguments for the injunction order will take place on May 14 in San Francisco.
Drakes Bay on Monday filed a brief that accuses the federal government of pursuing an “obsession” to shutter the oyster farm and attempts to pry open the alleged flaws in their opponents’ legal arguments while rehearsing several arguments of their own. Congress intended to speed the issuance of a new permit for Drakes Bay in 2009—not exempt the denial of such a permit from judicial review, as the government successfully argued to a lower court judge—the brief states. Drakes Bay lawyers say Mr. Salazar’s decision violated a number of laws, including requirements that major federal actions be underpinned by sound science. Drakes Bay lawyers also stressed that Drakes Estero is falsely being converted to a legal wilderness status, contending that fishing rights reserved by the state of California and an ongoing state lease for Drakes Bay’s offshore operations preclude such a status.
In a statement this week, Neal Desai of the National Parks Conservation Association said Drakes Bay had estimated just $10,000 in costs for cleaning up the estuary in statements to officials for seven years, despite more recently filing court documents saying those costs could top $600,000. “Taxpayers should be outraged that they may have to foot the bill for cleaning up the significant mess that could be left behind by this unsustainable oyster operation,” he said.
Mr. Lunny disputed the charge, saying that the escrow account required by his lease was set before he purchased the farm and is managed by state officials, an assessment that state officials endorsed.
Mr. Desai and the Environmental Action Committee of West Marin also dismissed a brief by Alice Waters and others who wrote that the loss of the oyster company would have deleterious impacts on the Bay Area’s restaurant business, food and environmental quality and the livelihood of the aquaculture industry’s workers. They cited noise disturbance of harbor seals and birds, the presence of an invasive tunicate and the coastal-commission order as evidence that the oyster farm is “far from being environmentally benign,” causing harms that weigh more heavily than the social impacts of closing the business.
Apr 30, 2013
In the course of writing about Drakes Bay Oyster Company (DBOC) I’ve had the privilege of spending time with Dr. Corey Goodman, and have picked up one of his sayings: “Facts are our friends.”
An inconvenient fact might wreck your theory or your dissertation, but it should still be welcomed. Science is an ongoing process of forming hypotheses, testing them, getting results and analyzing them. Scientists make their data and methods available to the scientific community be- cause a result is not considered reliable until other scientists have replicated it.
The importance of facts is not an aca- demic matter. The knowledge that there is such a thing as a fact is one of the few certainties we have. Facts are our friends because only facts can lead us to an un- derstanding of reality.
The extreme activists working against Drakes Bay Oyster Company have shown a disdain for the facts. Nowhere is this attitude more plain than in the Amici brief filed by the Environmental Action Committee of West Marin (EAC) against DBOC. The EAC was joined by the Na- tional Parks Conservation Association, Natural Resources Defense Council, Save Our Seashore and the Coalition of Na- tional Park Service Retirees. Their brief makes the same discredited arguments made by the park service in its environ- mental impact statement (EIS) on the oyster farm, a document so flawed it was never formalized by being filed with the EPA, as the process requires.
While it’s sometimes difficult for a nonscientist to know who to believe, it’s possible to get a good sense of whether something is true by paying attention to whether it seems to be factual, scien- tific and consistent with the rest of the field’s body of knowledge. The EAC brief doesn’t pass this test.
Consider this: In every discussion of alleged environmental harm, the brief cites not a body of scientific evidence, but rather one person who holds that view. The brief says the oyster farm’s noise dis- turbs seals, citing statements by Domin- ique Richard, described as an “engineer- ing acoustics expert.”
In his public comment letter about the EIS, Dr. Richard describes himself as “a professional in the field of mathematical modeling and statistical analysis.” That letter doesn’t mention seals, or noise, but since last year Dr. Richard has apparently developed an interest in seals and an ex- pertise in noise, and is quoted in the brief as saying, “the continued normal DBOC operations do make enough noise from motorized boats to have negative impacts to harbor seals.”
Missing from this section are the facts. Harbor seals are known for coex- isting with people (which is why they’re called harbor seals). The seal situation in Drakes Estero was examined by a panel of marine mammal scientists convened by the Marine Mammal Commission. All of the seal scientists who studied the issue for the commission affirmed that con- cerns about mariculture harming seals in Drakes Estero are unfounded. They said everything that is known about the relationship between other oyster farms and harbor seals shows that they do just fine together, and that oyster farms can be a haven. They found that the seals in Drakes Estero are so plentiful that there may soon be too many of them.
You can read these experts’ verbatim reports at mmc.gov/drakes_estero/pdfs/ appendix_f.pdf.
The EAC brief cites John Kelly claiming that DBOC’s boats bother birds. Dr. Kelly does at least have some expertise about birds. But he seems to have studied them in Tomales Bay, not Drakes Estero; the two environments are very different. Dr. Kelly is quoted as saying: “Motorized boat activ- ity introduces a level of disturbance that is incompatible with migratory and resident waterbirds that use the Estero’s natural resources for sustenance, rest, and protec- tion.” But there is no evidence provided of any “disturbance,” or any explanation of the purported “incompatibility.”
This section continues: “Drakes Estero is an important foraging and resting place for migrating and seasonally resident seabirds, shorebirds, and waterbirds [generically, waterbirds herein]. Large num- bers of waterbirds winter in the Estero, and many waterbirds that migrate along the Pacific Flyway between wintering grounds to the south and summer breed- ing areas in the Arctic depend on Drakes Estero for migratory support.”
All that is certainly true, which is why bird-lovers flock to the place. So what is the problem? It seems to be in an imag- ined future. The brief says Dr. Kelly con- cluded “that continued DBOC operations would have long-term adverse impacts on birds through noise disturbance and habitat loss.”
The argument here seems to be that although the oyster operation over the past eight decades hasn’t had any impact on birds that we know of, it’s a good idea to shut down the oyster farm because one scientist says its continued operation will be a problem in the future. This is not a factual argument.
One of the most peculiar claims in the brief is the notion that oysters don’t clean the water.
The fact that oysters do clean the wa- ter is perhaps one of the most widely rec- ognized facts about oysters. This is why oyster restoration projects are taking place all over the world, and why NOAA and other agencies support aquaculture.
The farmed oysters in Drakes Estero help clean the water, replacing the valu- able ecological services once provided by the native oysters in this estero before they were overfished. That’s a fact pointed out by the National Academy of Sciences in its May 2009 report on Drakes Estero.
Peter Baye is quoted in the brief saying otherwise. Dr. Baye is referred to here as a “coastal ecologist.” In references found online, Dr. Baye refers to himself most of- ten as a “coastal plant ecologist,” since his specialty is, in fact, botany.
After this astonishing display of non- factual statements, strange quotes and peculiarly individual findings, the au- thors of the brief have the temerity to conclude: “In sum, the unsubstantiated assertions about DBOC’s ‘sustainable’ business do not comport with the facts about its operations in Drakes Estero.”
As Kevin Lunny said to me a few years ago with genuine, pained, astonishment, these people do not care about the truth.
Apr 30, 2013
California Farm Bureau Federation
A law signed by Gov. Brown last year imposes an annual fee assessed to rural residents living in “State Responsibility Areas.” The charge per habitable dwelling is supposedly to cover fire prevention services. The California Farm Bureau Federation, the Howard Jarvis Taxpayers Association and other organizations believe that this fee places undue burden on rural residents.
Farm Bureau members are encouraged to visit the state website at www.firepreventionfee.com, where they can find information about the fee as well as a protest form, titled “Petition for Redetermination.” Within 30 days of submitting the fee payment, those who object to the fee should fill out the petition and submit copies to each of the following:
Special Taxes Remittance Processing, State Board of Equalization, P.O. Box 942879, Sacramento, CA 94279-6199
Fire Prevention Fee Service Center, Attn: Petitions, P.O. Box 2254, Suisun City, CA 94585
Board of Forestry and Fire Protection, P.O. Box 944246, Sacramento, CA 94244
Cite the reason for protest as “Other.” The description can include the member’s concern about the fee and illegal taxation.
The Howard Jarvis Taxpayers Association has filed a lawsuit to challenge the legality of the SRA fee. To learn more, visit firetaxprotest.org.
Below is a sample letter for reference when protesting the fee:
Special Taxes Remittance Processing, State Board of Equalization
P.O. Box 942879
Sacramento, CA 94279-6199
Fire Prevention Fee Service Center
P.O. Box 2254
Suisun City, CA 94585
Board of Forestry and Fire Protection P.O. Box 944246 Sacramento, CA 94244
RE: Strong Opposition to SRA Tax-Paying under Protest!
To Whom It May Concern,
We are only paying this tax (you call it a fee) under duress of a state tax lien and possible property confiscation.
We strongly oppose and protest paying any Fire Prevention Taxes issued by the State Board of Equalization (BOE) on behalf of the California Department of Forestry and Fire Protection (CAL FIRE).
This is an unconstitutional tax because Article XIIIA of the California Constitution requires that new taxes be approved by two-thirds of the membership of both houses of the Legislature. Because the money from this charge will not be redirected to local jurisdictions proportionate to their direct charge, there is no way to ensure that I will receive any direct benefit from the payment of this bill. Thus, this charge is a tax, and because it has not been properly approved by two-thirds of the Legislature, it is illegal. We intend to support any legal action(s) taken by any organization(s) opposing this illegal taxation.
Paid Under Protest,
Apr 29, 2013
BAY DELTA CONSERVATION PLAN
From Vacaville Reporter – Sunday, April 28, 2013
Sacramento-San Joaquin River Delta communities are calling foul on a plan orchestrated by Gov. Jerry Brown that he touts as they best way to deliver more water to the south and restore the Delta.
Coalition response…The concern the water users in the Delta have is one that other water users in California can relate to – water shortages for the last 20 years. A large part of the water lost due to environmental regulations flowed to the ocean with no measurable ecosystem benefit. A part of that water could have been serving 25 million people and growing local food in a farm state that is more productive than any other region on earth. That water can be put to use when the right conditions make it available.
The Bay Delta Conservation Plan is focused on creating a reliable water supply and a restored Delta ecosystem. Public water agencies are seeking the reliability that would provide near average deliveries to what they have received over the last 15 years, which is a reasonable compromise Californians can support.
Water sale just the beginning?
From Chico Enterprise-Record – Saturday, April 27, 2013
The Glenn-Colusa Irrigation District’s plan to sell 5,000 acre-feet of water to the San Luis and Delta-Mendota Water Authority this year reminds me of the old frog-boiling metaphor. If you put a frog in hot water, it will jump out immediately. But, supposedly, if you put a frog in cold water and heat it slowly enough, the frog will allow itself to be boiled alive.
Coalition response…Voluntary water transfers add flexibility to California’s water system and provide benefits to both the buyer and the seller. Its important to understand that transfers like this undergo a review process by the State of California that must prove no harmful effect to the area of origin or the environment. As water moves downstream through the Sacramento-San Joaquin Delta, part of it remains in the Delta for environmental benefits as well.
Comparing a boiling pot of water to transfers leaves out a very important factor—the oversight and assurance that the transfers meet their needs of the recipients as well as protecting the area of origin.
(This article was previously printed in the Woodland Daily Democrat.)
From Chico Enterprise-Record – Sunday, April 28, 2013
Burying two 40-foot-wide tunnels beneath the Sacramento-San Joaquin Delta will make a mess, but state officials hope to offset the environmental damage by improving the ecosystem in other parts of the Central Valley.
Coalition response…A clarification is needed to this story regarding who is paying for parts of the Bay Delta Conservation Plan. The improved conveyance measures, including the twin tunnels, will be paid by those users who receive the water and not the public.
BAY DELTA CONSERVATION PLAN
By Nancy Vogel
From BDCP – Friday, April 26, 2013
The California Department of Water Resources (DWR), the U.S. Bureau of Reclamation, and public agencies that buy water from the State Water Project and Central Valley Project have been discussing the potential structure of a partnership to oversee design and construction of new water intakes and conveyance in the Delta, as well as associated mitigation under the Bay Delta Conservation Plan (BDCP).
From Sacramento Bee – Sunday, April 28, 2013
If Gov. Jerry Brown had his way, the tunneling machines would be boring right now under the Sacramento-San Joaquin Delta, carving out space for a pair of 40-foot-wide tunnels to ship Sacramento River water to cities and irrigation districts south of the Delta.
From Sacramento Bee – Sunday, April 28, 2013
The Bay Delta Conservation Plan would affect 3,530 acres of land in Sacramento County, mostly between Freeport and Courtland, to divert Sacramento River water. This map shows the latest official location and size of the proposed facilities, which may change when a final proposal is released later this year.
From Sacramento Bee – Sunday, April 28, 2013
When Daniel Wilson learned earlier this year that the state of California wants to bulldoze his family’s pear orchard to build a giant Sacramento River water diversion, he and his brother were making a major new investment in the crop.
I appreciate the Enterprise-Record recently printing my letter about the Bay Delta Conservation Plan. In that letter, I suggested we learn the facts, so here is information about the plan from a commentary by Carolee Krieger of the Water Impact Network in the Sacramento Bee on April 25.
From San Diego Union-Tribune – Sunday, April 28, 2013
The combined price tag for a grand redesign of California’s plumbing network now surpasses a staggering $35 billion, although there are signals that the final bill will eventually shrink.
From The Record – Saturday, April 27, 2013
Five members of Congress called this week for the governor’s point man on Delta issues to resign, after two environmental advocates said he commented that the twin tunnels project will not save the estuary.
From Washington Post – Sunday, April 28, 2013
Like a pitcher taking the mound on opening day, Frank Gehrke gets the spotlight in California every early April. That’s when the otherwise obscure state water official trudges into the Sierra Nevada mountains, media in tow, and plunges aluminum tubes into the snow.
From KGET 17 – Friday, April 26, 2013
With a severe water shortage around the state, local water officials say Kern County is in crisis mode.
By Byron Williams
From Contra Costa Times – Saturday, April 27, 2013
It is understandable that our collective attention is swayed by the issue de jour. After all, the world of 24-hour news — which is actually closer to four hours of news and 20 hours of looping prods — bombards us until we acquiesce our attention to what is offered.
From Desert Sun – Saturday, April 27, 2013
Federal, state and local officials met at the Salton Sea on Friday to share ideas for preserving California’s largest lake despite limited government funding and diminishing flows of water to sustain it.
From Chico Enterprise-Record – Sunday, April 28, 2013
Water transfers and water storage are on the agenda for the Butte County Water Commission, which meets at 1:30 p.m. Wednesday at the Board of Supervisors Chambers, 25 County Center Drive in Oroville.
Apr 28, 2013
Meeting for Tuesday, April 30th
Decision Life Church Corner of Main and Oberlin…1301 South Main St. Yreka
Program: Open Microphone: Possible subjects, you decide: Benghazi cover up, Common Core, unanswered questions about the Marathon bombing and Chem trails.
Free, Public welcome Contact Louise for more information at 530-842-5443.
I have 3 DVDs left on “Chem Trails”, more will be available at the May 7th meetings. I am completely out of DVDs on “Common Core”, more will be available at the May 7th meeting. I have 14 bumper stickers, “Stop Common Core” available for sell for $1.00. I also have about 30 “Common Core” books available for sale for $15.00 but lots of free handouts.
It would be helpful if you would email or call if you want any of the above mentioned DVDs so I will have a better idea of how many to order. All DVDs are only $1.00.