Oyster farm flap reverberates far beyond Drakes Bay
Published: Friday, March 8, 2013 at 6:30 p.m.
Last Modified: Friday, March 8, 2013 at 6:30 p.m.
Drakes Bay Oyster Company's legal bid to continue operating in federally protected waters has broader implications than simply the fate of the Marin County family-owed business that sells $1.5 million worth of shellfish a year.
To Cause of Action, a little-known Washington, D.C.-based nonprofit group that has provided the oyster company about $200,000 worth of free legal services, the case is about curbing government regulatory overreach.
To critics — including another nonprofit organization, California Common Cause — the oyster farm's challenge to Interior Secretary Ken Salazar's authority fits into a national effort to promote for-profit use of national parks and wilderness areas.
Amid the controversy stand Charles and David Koch, the billionaire brothers who own the nation's second-largest privately held corporation and are well-known for supporting conservative political causes, such as the tea party.
"It's pretty clear there's an overriding interest in this case," said William Robertson, dean of the Empire College School of Law in Santa Rosa.
The San Francisco-based 9th U.S. Circuit Court of Appeals has agreed to hear the oyster farm's case, rejected by a district court last month, the week of May 13.
Robertson said there is reason to believe the appellate court's three-judge panel may issue a ruling that could "expand, contract or eliminate" commercial uses, including cattle and sheep ranches, timber and mining operations, on some federal lands.
"Every word (in the decision) will be worth a lot of money," Robertson said, calling the case "a big deal for the American West as we know it."
The appellate ruling would apply throughout the 9th Circuit, which covers California, Oregon, Washington, Nevada, Idaho, Montana, Arizona, Alaska and Hawaii, a region that includes several signature national parks: Yosemite, Yellowstone and the Grand Canyon.
To Kevin Lunny, whose family purchased the oyster farm business in the Point Reyes National Seashore for $260,000 in 2004, the appeal temporarily rescinded a Feb. 28 deadline to shutter the business that harvests 8 million oysters a year from the cold, clear waters of Drakes Estero.
The deadline was based on Salazar's decision last fall not to extend a permit that had allowed oyster farming to continue for 40 years in the estero, a 2,500-acre waterway with extensive eelgrass beds and a harbor seal colony in the midst of a designated wilderness area.
Barring a reversal by the courts, Salazar's decision would ultimately require Lunny to remove and destroy $4.5 million worth of oysters, terminating mariculture that dates back to the 1930s in the Pacific Ocean estuary.
Lunny's lawsuit, filed in December by Cause of Action, describes the oyster farm has "environmentally sustainable" and alleges that Salazar's decision was "arbitrary and capricious and an abuse of discretion."
Cause of Action, founded in 2011, is a nonpartisan, tax-exempt organization dedicated to "government accountability and transparency," according to its website.
"Any time government is overstepping its bounds, our interest is coming in to protect taxpayers' interests," said Mary Beth Hutchins, the organization's spokeswoman.
Critics say that's not the whole story, pointing to Cause of Action's refusal to disclose its funding sources and ties between its executive director, Dan Epstein, and the Koch brothers, whose global corporation has annual revenues of $115 billion.
Epstein, a lawyer, worked for the Charles G. Koch Charitable Foundation from June 2008 to January 2009, then went to work as counsel for the House Committee on Oversight and Government Reform, chaired by Rep. Darrell Issa, a San Diego County Republican.
Issa, a self-made millionaire, is among the wealthiest members of Congress. He and 19 of the 22 other Republican members of the oversight committee received nearly $150,000 from Koch Industries in the 2012 election cycle, according to the Center for Responsive Politics.
Koch Industries, labeled a "heavy hitter" by the center, spent $10.5 million on lobbying and made political donations of $5.2 million in the 2012 election cycle.
Epstein left the House committee staff to head Cause of Action as it started up in August 2011. A year later, the organization filed a formal complaint alleging the National Park Service used faulty science to assess the oyster farm's environmental impact.
In December, Cause of Action filed suit on behalf of the oyster farm, devoting 24 pages to a critique of the Park Service's science. It also asked for immediate permission to continue oyster-farming operations until the case was decided.
District Court Judge Yvonne Gonzalez Rogers rejected the lawsuit in February, ruling that she lacked jurisdiction to review Salazar's decision and dismissing the claims of bad science.
"At best, the record before the court is mixed with competing expert declarations ... and cannot be resolved at this stage," Rogers said.
Robertson, the law school dean, said the wording of the 9th Circuit's terse decision to hear an appeal suggests the three judges have "serious reservations" about Rogers' ruling.
Amy Trainer, executive director of the Environmental Action Committee of West Marin, said the case could set a "dangerous precedent" for the national parks and wilderness system.
Drakes Estero was supposed to be "on a one-way path to becoming wilderness," which could be reversed by the oyster farm's challenge. "That is very troubling," said Trainer, whose organization wants the farm closed.
Meanwhile, California Common Cause is questioning how the case fits into what it calls a conservative-inspired movement to "privatize public lands for profit," said Helen Grieco, the organization's Northern California organizer.
That campaign, Grieco said in a Common Cause report, includes recent efforts to permit uranium mining near Grand Canyon National Park.
"Is it just this little oyster farm?" she said of the Drakes Bay lawsuit. "Somebody's investing a chunk of change in this case. Who benefits?"
Grieco, a Petaluma resident, said it's clear that Epstein "has a connection to the Koch brothers." But there is no "smoking gun," she said, connecting the Kochs with Cause of Action.
"We do not receive any money from the Koch brothers," Hutchins said in a telephone interview. The organization, like other nonprofits, does not disclose the names of its donors, she said.
Cause of Action has filed a dozen lawsuits on a wide range of issues, including a Chinese-owned company's interest in setting up wind farms in Oregon and an Oakland lesbian's attempt to get pregnant using free sperm from a man she knows — both thwarted by government agencies.
Its legal services are provided without charge, and Epstein, in an interview with Greenwire, an environmental news organization, said that Cause of Action's clients are secondary to the group's educational mission.
Americans tend to think that "regulation is good in all circumstances," Epstein said. "And we're trying to fight that."
Neal Desai, Pacific region associate director of the National Parks Conservation Association, a party to the oyster farm lawsuit, challenged Cause of Action's claim that it serves the public interest.
"Taxpayers bought the (Drakes Estero) property, paid to protect it, and finally stand to benefit after waiting 40 years," Desai said.
The oyster farm's lawsuit "demands taxpayers accept a 'heads I win; tails you lose' proposal where Americans get nothing. It's a raw deal."
(You can reach Staff Writer Guy Kovner at 521-5457 or email@example.com.)
All rights reserved. This copyrighted material may not be re-published without permission. Links are encouraged.