The Politics of Shellfish

Posted on January 6, 2013 in Administrative Law, Environmental Law | Comments Off

An ongoing controversy over a well-known oyster farm in the San Francisco Bay Area is coming to a dramatic climax. Having grown up in the area, I know of the Drakes Bay Oyster Company as something of an institution.  However, by the end of this year the business permit and lease given to the aquaculture company by the Department of the Interior is set to expire, and renewal has become a contentious issue because of controversial environmental impact reports and political pressure from several parties. Now the California Department of Fish and Game is stepping into the arena and asking Secretary of the Interior Ken Salazar to renew the lease[1]. Fish and Game point out that Drakes Bay Oyster Company’s yearly harvest of eight million oysters represents 40 percent of those cultivated in the state. Drakes Bay Oyster Company and the National Academy of Sciences say that the environmental report produced by the Department of the Interior, which found that the farm had negative impact on the environment, is questionable and the oyster company has asked for further studies. The question of whether the lease will be renewed before the end of November is a high stakes game of politics and environmental protection.

As part of the Point Reyes National Seashore, Drakes Bay is covered by the federal law, which prohibits commercial enterprises from operating in wilderness areas[2]. However, certain agricultural businesses including dairy and oyster farms have been grandfathered in as legacy uses. One issue at hand is whether a renewed lease to Drakes Bay Oyster Company would constitute a new or existing business. The National Park Service, of which the National Seashores are a part, is within the Department of the Interior. As such, the decision on Drake Bay Oyster Company’s new lease has fallen almost singularly on Secretary of the Interior Ken Salazar’s shoulders.

Mr. Salazar’s decision will in large part be based on the National Park Services’ environmental impact statement. Drakes Bay Oyster Company has pointed to a National Academy of Sciences report which stated that an absence of conclusive data in the EIS makes its findings unreliable[3]. Critics of the EIS point to several factors that they claim should make it suspect. The Park Service failed to include a “negligible” option for the various impact factors it assessed, placing some factors which the NAS claimed were negligible in the “minor impact” category. The statement also failed to measure the environmental impact of its alternative situations from the same baseline, making it difficult to make comparisons between courses of action. Specifically, the report compared the ongoing operation of the farm to a scenario in which it does not exist, while comparing the scenario of closing the farm to the current operation of it. Perhaps most damning for the EIS is the fact that only the noise factor of the farm was categorized as a “major adverse impact,” yet no noise data was taken in the year of the study. Additionally, in the data that does exist, it is difficult to determine what sound comes from the farm and what comes from other sources. The questions regarding the scientific validity of the statement led Ryan Waterman, the attorney for Drakes Bay Oyster Company, to write in an open letter arguing that the substantial criticism of the EIS leads to the “inescapable conclusion that the entire DEIS must be revised and recirculated.”

Unless the Interior Department takes an extension in deciding whether to renew the lease pending further review, this saga of seafood, law, and environmentalism will reach a conclusion by the end of November. A decision to put Drake’s Bay Oyster Company out of business would mean a dramatic shift in California’s aquaculture landscape. I don’t think the Interior Department’s study and apparent push for closure of the oyster farms is in bad faith. Generally, such large-scale disturbance of an environment is harmful, and it is the Department’s role to protect our wild spaces. However, in this case the proof of environmental harm is so scant that, pending further analysis, it would be rash to close such a long-standing institution. That being said, no company should be given an exemption to profit off of the degradation of our shared wilderness. In the end, I think that if the impact is as slight as Drake’s Bay Oyster company claims, it should be allowed to stay. Otherwise, it’s time to give them the boot.

—Jonah Trotz-Liboff is a general member of MJEAL. 


[1] http://www.savepointreyeswilderness.org/wp-content/uploads/2012/10/DFG-to-Seashore-Oct-10-2011.pdf

[2] 16 U.S.C.A. § 1133

[3] Emily Yehle, Park Service Must Make Lack of Data Plain in Oyster Case — NAS , 2012 Greenwire (2012).