By: Gary P. Nabhan, Jeffrey A. Creque
Sunday, December 18, 2011
Is an oyster farm compatible with wilderness values?
The purpose of the 1970 National Environmental Policy Act – under which the National Park Service alleges authority to prepare an environmental impact statement on Drakes Bay Oyster Co. operations – was “to create and maintain conditions under which man and nature can exist in productive harmony.”
The 80-year tradition of shellfish aquaculture in Drakes Estero is a quintessential example of exactly such a productive harmony. The continuation of the oyster farm was deemed appropriate when Drakes Estero was designated potential wilderness by Congress. The farm is clearly compatible with natural-resource conservation, species recovery and the protection of wilderness values today. It cultivates more than half of the shellfish harvested in the San Francisco region without measurable impact on the wildlife or the ecology of Drakes Estero.
The intent guiding the Point Reyes National Seashore General Management Plan makes “potential wilderness, agriculture, ranching and mariculture all co-equal management objectives.” Tragically, for the past eight years, the Park Service has attempted to obfuscate the clear intent of Congress: to establish Point Reyes National Seashore as a cultural landscape where dairy farms, ranches and shellfish aquaculture would demonstrate to the American public that conservation and sustainable food production are indeed compatible.
The Park Service now asserts that the oyster farm is not compatible with wilderness and must be removed. Can memory loss within the Park Service be reversed? It can and must, given the Park Service’s near-decade of denial of the original operating instructions for Point Reyes National Seashore.
Historic documents confirm that the Park Service also has suffered memory loss regarding the state’s rights. The state Constitution requires the state, in any grant of public trust tidelands, to reserve to itself the “absolute right to fish.” That, in fact, was done in 1965 by AB1024, requested by the Park Service and authored by then-Assemblyman William T. Bagley.
Bagley reports: “My (Bancroft Library) files contain 1965-66 letters (from) the state Fish and Game Commission claiming it retained all fishing rights: ‘All State laws and regulations are in effect … and … are applicable to the (then) Johnson Oyster Company.’ The National Park Service replying: ‘We are agreeable to your interpretation.’ These formal, authoritative, contemporaneous statements define the specific rights reserved.”
In addition, the state attorney general, in 1965, confirmed that, by state law, oysters are “fish” and are therefore outside the management authority of the Park Service.
Bagley continues: “In 1974, the Park Service, writing with reference to proposed wilderness designation of the Estero, states: ‘Control of the (shellfish aquaculture) lease … indefinitely is reserved by the State.’ The present state lease expires in 2029 … the state has constitutionally protected the public trust rights. My 59 years of law practice tells me that this whole controversy may very well be moot. The state controls the right to lease its fishing rights.”
The Park Service never had the legal authority to manage oyster-growing or harvesting activities in Estero waters. This means that the current environmental review process regarding the oyster company should not have been undertaken.
By all appearances, the Park Service is using the environmental impact study to achieve its desired outcome to remove the farm. The current environmental review process must be suspended, and Interior Secretary Ken Salazar must require the recalcitrant Park Service leadership to support, rather than disrupt, sustainable shellfish production in Drakes Estero.
Notably, all across the country – with the exception of Point Reyes – the Park Service is committed to working with fishers, farmers and ranchers to demonstrate how sustainable food production is essential to biodiversity conservation. Bagley’s archival evidence should be sufficient to restore Park Service memory of the original intent of the seashore and the understanding of the authors of the Point Reyes Wilderness Act that shellfish aquaculture and wilderness were in fact compatible.
We hope for a fresh start in the relationship between food producers and the Park Service at Point Reyes, one that is based on collaborative conservation and provides not only a real-world example of “conditions under which man and nature can exist in productive harmony” but also of human beings as integral to the hole, not apart from it.
We can and must do this if we are to save ourselves and our beleaguered planet. Drakes Estero offers us an incredible opportunity. Let us not squander that for lack of imagination or lack of a willingness to collaborate in its realization.
Gary P. Nabhan is a former member of the National Park System Advisory Board. Jeffrey A. Creque is a member of the board of the Alliance for Local Sustainable Agriculture.