THE SIGNING OF a Special Use Permit for the Drakes Bay Oyster Company did not, after all, bring the conflict to a close or diffuse the air of hostility that was rapidly seeping into the community. If anything, things were only getting started. The permit contained a number of specific stipulations regarding how the oyster farm was to operate so as not to disturb seals or harm eelgrass.
“A couple of these conditions are a little overdone and a little over-protective,” Kevin told the Point Reyes Light just two days after signing. “We just want the option for those to be adjusted once the actual situation is studied.”
At least the oyster farm was no longer operating illegally in a national park.
“Knowing all along that this permit would be signed, things were taken in good faith and the operation was allowed to continue,” said John Dell’Osso, the park’s spokesperson. “The good news is that we have a signed permit from Drakes Bay Oyster Company and that’s positive news for everyone concerned.”
The first line of the new permit read as follows:
[Drakes Bay Oyster Company] is hereby authorized for a period (“Term”) commencing on _____ April, 2008 (“Commencement Date”) and terminating on November 30, 2012 (“Expiration Date”) to use the following described land, improvements and waters . . .
The commencement date was left blank, but the permit was signed by both Kevin Lunny and the park’s deputy regional director George Turnbull, on April 22, 2008.
Meanwhile, as part of the negotiations she brokered, Senator Feinstein and the National Park Service had jointly requested that the National Academy of Sciences review the science in Sarah’s “Sheltered Wilderness Estuary” report. The task was twofold; the special committee appointed by the academy would evaluate the existing park science on the estuary, as presented, as well as come up with a new set of best management practices. The review would be carried out by the academy’s operational wing, the National Research Council, established in 1916 with the purpose of “furthering knowledge and advising the federal government.” The committee, dubbed the Committee on Best Practices for Shellfish Mariculture and the Effects of Commercial Activities in Drakes Estero, Pt. Reyes National Seashore, California, included scientists from academic institutions in Oregon, Washington, Rhode Island, Virginia, Massachusetts, Connecticut, Southern California, Ireland and Scotland. The committee was to be overseen by a number of professionals, including scientists from the Monterey Bay Aquarium Research Institute and the Woods Hole Oceanographic Institution, but also representatives from Boeing and Exxon Mobil. At the park’s request, the Marine Mammal Commission, a government agency created under Title II of the Marine Mammal Protection Act of 1972, also began separate investigations.
In the sleepy seaside towns around Point Reyes, the debate surrounding the oysters and the wilderness was starting to heat up. The conflict was splashed across the pages of the local paper every week. In early April, Corey published an opinion piece in the Light calling the park’s actions a “shock and awe” campaign against the Lunny family, and invoked the language of war.
“[Neubacher’s] reason to take those actions—his overwhelming data—like Bush’s weapons of mass destruction, did not exist,” Corey wrote. After a lengthy account of his own ongoing investigations, he called the National Park Service a sinking ship with a broken moral compass. It wasn’t enough that the park had removed the offending report and requested an outside inquiry by the National Academy of Sciences. Corey didn’t believe that Sarah had made a mistake. To him, this was a clear case of scientific misconduct—criminal actions—and he wanted Sarah and her superiors to be held accountable.
“In the end, this story is really not about oysters, and it is not about harbor seals,” Corey wrote.
Rather it is about the arrogant misuse of false science to support a political agenda. And with that political agenda comes collateral damage—a relentless government assault on a family—an attack condoned by some locals who appear to believe that the ends justify the means. At the core is the viability of agriculture in Point Reyes National Seashore and West Marin. This is not about oysters and harbor seals, it is about the future and integrity of our community.
Others, however, weren’t having it.
“The closure of this business has nothing to do with whether its methods of raising oysters are ‘sustainable’ or environmentally sensitive,” wrote local resident John Sutherland in a letter to the editor of the Light a week later.
Their lease isn’t contingent on the Seashore’s Master Plan, scientific reports, or attitudes towards agriculture. The company’s blizzard of claims against Point Reyes National Seashore is simply a shell game: a private business enlisting Supervisor Steve Kinsey and lobbying Senator Dianne Feinstein to initiate an act of Congress to extend Drakes Bay Oyster Company’s lease. This precedent would set at risk all lands protected by the Wilderness Act.
Fred Smith, now spending an increasing amount of time trying to battle claims made by the oyster farm and its supporters, was similarly frustrated, if not surprised. After all, he was used to encountering pushback from locals about a conservation project, especially if it meant shutting down a business and the loss of jobs. That was the case when it came to logging and timber companies, so why should this be any different? The only difference here was that, as far as Fred was concerned, this battle had already been won back in 1976. It was just a matter of getting people to accept it.
“It is unfortunate that Dr. Goodman chose to label most of the well-respected scientists who disagree with his dissenting opinion regarding the effects of the oyster farm on Drakes Estero as ‘collaborators’ with the Seashore, as if there is a grand scientific conspiracy against him,” Fred wrote in his own letter to the editor. His tone was pointed, if jaunty. “I hope that Dr. Goodman and other oyster farm supporters will hold their claims to the same high standards that they accuse the Seashore of violating.”
Fred stressed that the owners of the oyster company took over the operation with prior knowledge that Drakes Estero was slated for full wilderness protection in 2012. Through his eyes, Drakes Bay Oyster and its supporters were campaigning to reverse that wilderness designation, with perilous repercussions.
“Such a result would set a dangerous precedent, emboldening efforts by private industry to increase and expand commercial activity in wilderness areas throughout the country,” he wrote.
Wilderness comprises less than 2.5% of the lands in the United States, while close to half of its land base is managed for agriculture. We should be able to ensure sustainable food production for Marin without overturning legislation for acres that have already been designated for wilderness protection.
Corey responded by challenging Fred to a public duel of sorts, suggesting that the two of them duke it out intellectually. Still, Corey’s focus was on science, not policy:
“To help the community reconcile this issue, I make a proposal to the EAC,” Corey wrote in the paper, addressing Fred directly. “Let’s have a discussion of the harbor seal data, and an analysis of Neubacher’s claims in front of the community. Let’s look at the data together and try to reconcile this issue.”
But Fred wasn’t all that interested in the data. He wasn’t a scientist; he just knew the law. The trouble was that an increasing number of people in the community either didn’t understand the estero’s wilderness designation, or else they thought it was downright wrong. So what if the Solicitor General’s office had decided that the farm didn’t belong inside a wilderness area? Maybe they didn’t want a wilderness area in their backyard, thank you very much. Or at least, they didn’t feel they needed a bigger one: the connected Estero de Limantour was a marine wilderness already, having been converted from potential wilderness to full wilderness status in 1998 with the removal of some adjacent power lines. Its waters were just a small part of the 33,373-acre Phillip Burton Wilderness Area, which included forests, grasslands, ridges, and stretches of spectacular beach along the rugged coastline. A third of the park was a working landscape, and many didn’t see why Drakes Estero couldn’t just be lumped in with that. Wasn’t a national park’s protection good enough? To some, it didn’t make sense that the surrounding fields could be kept as pasture for cattle and dairy ranches, but that the oyster farm must cease. Besides, after the debacle with the exotic deer—the failed contraception attempts, and the rapidly deployed extermination—local trust in the Seashore administration was at an all-time low. People developed passionate opinions on both sides, and shouting matches broke out in front of the post office or bakery. On the little streets of West Marin’s villages, the social climate had grown decidedly chilly.
Fred, Gordon Bennett and others in the environmentalists’ camp made attempts to appeal to politicians as well. In June, they drafted a letter to California’s other senator, Barbara Boxer.
“Recently, there has been a flurry of ill-advised proposals assaulting America’s public lands, such as plans to sell and commercialize 15 national park units,” they wrote. “But thanks to the voices of Americans from sea to sea, these reckless ideas were rejected.”
The letter was cc’ed to Feinstein, Lynn Woolsey and Nancy Pelosi, among others. However, their pleas for strong public support were not gaining traction. Gordon veered a little away from the accepted agenda and tactics of the environmentalists when, at a Board of Supervisors meeting, he threatened to block another environmental issue until the oyster farm controversy was settled.
“If we’re going to lose wilderness out in Point Reyes, then we are going to work against open space measures here in Marin,” he told Steve Kinsey and the rest of the board during discussion on a quarter-cent tax increase initiative. He was speaking as a private citizen, but said he planned to ask the Sierra Club to back him. However, the move would backfire, and the Sierra Club would eventually ask Gordon to stop representing them.
“This is a hold-hostage effort but it’s misplaced,” Kinsey said of the move.
More and more, people were questioning the wilderness designation of Drakes Estero. After all, there’d been an oyster farm there for longer than most people could remember. What was so wild about it? Besides, as far as food went, what was wilder than an oyster?
“We are farming in farmland,” Kevin Lunny would tell the New York Times. “Drakes Estero is surrounded by commercial livestock production. These also are cultural resources that the Park Service is mandated to protect.”
By comparing the estuary to the pastoral zone, it was a way of denying the existence of the wilderness designation altogether. However, Phillip Burton hadn’t been concerned with what made a wilderness area a wilderness area; only that he had the power to make it so. Roads and other signs of man could be removed, and if the proposed wilderness had already been trammeled a little, well, then his subordinates had better get moving and un-trammel it. One can almost hear him, after taking a long drag from his unfiltered Chesterfield, saying, It’s wilderness if I say it is, son.
The Inspector General’s report came out in July 2008, finding that Sarah and her colleagues had misrepresented data, but not necessarily deliberately. Mistakes were made, but misconduct required intent, which there was no proof of, and no charges would be filed. While it raised questions about the quality of the science, it did not validate Kevin’s claims that he was being treated unfairly, or that the park was trying to force him out before 2012. Rather than putting to rest questions that the community had, it only served to inflame things further.
A man named Samuel Thoron, one of Sarah’s relatives, wrote a local letter to the editor as well.
It is now time to put the controversy between the Point Reyes National Seashore and the Drakes Bay Oyster Company into proper perspective. The report of the Inspector General shows us that neither side is completely clean. However, the full report makes it clear that the Superintendent and his staff are not the villains they have been made out to be [ . . . ] The repeated personal attacks on Mr. Neubacher and Dr. Allen, orchestrated on behalf of Mr. Lunny by professional publicists, lobbyists and other apologists, have been shown to be unwarranted and without merit. They must cease. It is now time for Mr. Lunny to stop behaving like a schoolyard bully, trying to change the rules when the game is not going as he wants. It is time for him to stand up, be a man, and honor and live by the terms of the agreement he knowingly entered when he acquired the business that is now Drakes Bay Oyster Company. Most important, the core issue is the preservation of the integrity of the Wilderness Act for the benefit of all. It is unthinkable that this hard won protection of our national treasure should be compromised for the commercial interests of one family, or any business, whether here in West Marin or elsewhere in the country.
THAT SEPTEMBER, THE National Academy of Sciences began their review of Sarah’s science in earnest, as well as their own assessment of oyster farming in the estero, based on studies already done by others. A two-day kick off included a boat tour of the oyster operation, and a daylong panel discussion at a hotel in Mill Valley, a posh San Francisco suburb. Fifty members of the public crowded into the small conference room to hear presentations from ten scientists and other stakeholders from 10 AM to 6 PM. Jonathan Jarvis spoke, stressing that the issue had larger implications than just this one farm in this area. A young scientist from Point Reyes National Seashore, Ben Becker, presented his report-in-progress on the estuary’s harbor seals. Corey gave a PowerPoint presentation and complained that other panelists had misquoted every single study. Becker countered that no, it was Corey who was confused, to which Corey replied that even that rebuttal was “yet another example of scientific misconduct.” The next month, the academy added two members to the panel. In November, they brought in a seal expert from the University of Aberdeen in Scotland.
Tensions continued through the fall. The Point Reyes Light had a new editor now, a young woman not yet thirty with no prior journalism experience before being promoted from advertising sales when the current editor and new owner didn’t want to edit anymore. Although she herself had only been living in the community a few years, she wrote in an editorial that park visitors, as opposed to farmers, were like “voyeurs,” and that wanting a landscape purely to protect and recreate in was “the misanthropy of the elite.”
As the oyster farm controversy moved further into the limelight, the ranchers on the surrounding seashore properties were starting to worry about their own permits with the park. After all, their own leases were short-term arrangements that could be terminated at any time, if doing so was necessary to “protect park resources,” according to the NPS management plan.
“The ranchers are nervous,” Laura Watt, a professor of cultural resources management at Sonoma State University, told Marin magazine in November 2008. “Is the oyster farm the first domino? If it goes, will ranchers be next?”
While the seashore ranchers preferred to keep their dealings with the park quiet, some in the agricultural community who were not in the park were more outspoken.
“I see the park as against ‘everyone else,’” said Henry Grossi, former president of the Marin County Farm Bureau, and a rancher in Marshall. “The signs have been there all along. Their intention is to eventually take over the ranches.”
The conflict reached a boiling point over New Year’s. Throughout the autumn, Feinstein had been trying to broker a deal between Kevin and the American Land Conservancy. The proposal was to give Kevin a cash payout, somewhere in the neighborhood of $300,000 to $500,000, and move his oyster farm to one “equal in scope” in nearby Tomales Bay, which was neither a park nor a wilderness area, and which had a handful of oyster farms operating in it already. Feinstein advised Kevin to take the deal, which seemed generous to many given the fact that the Lunnys had only been farming oysters for three years at that point. The offer was coming from the park service, with the ALC merely acting as a go-between. The ALC president visited the oyster farm that December, and handed Kevin a proposal that included a dollar amount, but not details on the relocation.
“It wasn’t a proposal, it was a guaranteed bankruptcy proposal,” Kevin told the New York Times. “This doesn’t include keeping a food source for our community, keeping the last oyster cannery in the state.”
Even though Kevin had already told media that he knew the park did not plan to renew the permit past 2012, he wrote to the executive director of the Ocean Studies Board at the National Academy of Sciences, Susan Roberts, in February of 2009. He said his decision to buy the farm was based at least partly on the wording of the Johnsons’ lease and the assumption—or at least the hope—that he’d get an extension. Also, he says it influenced how much he was willing to pay for it: “The value of the leasehold interest was based on the conditions of the reservation of Use and Occupancy and [Special Use Permits] that were in place at that time,” he wrote her.
IN THE MEDIA, other details of the farm were starting to warp and change a little. For example, the farm’s age. In 2009, oysters had been farmed in the estero for as long as seventy-seven years. That had not been continuous, either, since supply of the Pacific oysters was cut off for much of the 1940s due to the war. Still, it was reported that the oyster farm had been in operation for “more than eighty” or even “more than ninety” years. (And by 2014, it would be regularly bandied about that the oyster farm was one hundred years old). The number of oysters produced by the farm seemed to vary widely as well, with anywhere from 30 to 60 percent of all oysters grown in California being cited. There were other problems, too. Kevin insisted that his workers knew to stay away from seals, and that if his records indicated a boat wasn’t out on the water, then it wasn’t out on the water. However, the park’s wildlife cameras would show that (what appeared to be) one of the DBOC boats was indeed present in the estuary when the company’s records indicated that it wasn’t. The workers did not always follow the rules.
Meanwhile, oyster culturing was growing increasingly popular in the United States, and an aquaculture lease was something to hold on to. The oyster renaissance begun in the mid-1990s was only growing. In the waters around Long Island, home of the famous Blue Points, oyster harvests doubled from 2000 to 2008, and New York state aquaculture leases increased from thirty-eight to fifty-one during that time. There are oyster farms in Maine and Texas, Alaska and Alabama—every coastal U.S. state except Delaware. There are even oyster operations in Puerto Rico, farming Crassostrea rhizophorae, or mangrove oyster.
In spring of 2009, an anonymous source leaked an early draft of the National Academy of Sciences’ report to the Point Reyes Light, in a move that would be called “deep oyster,” fomenting further local tensions. In May, the NAS report came out in earnest. It found that Sarah’s “Sheltered Wilderness Estuary” report had “in some instances selectively presented, over interpreted, or misrepresented available scientific information on DBOC operations by exaggerating the negative and overlooking potentially beneficial effects.” However, other than the fact that Sarah had misreported Roberto Anima’s findings, the main argument made by the NAS was itself fatally flawed. The report worked from the assumption that “native” Olympia oysters had been prevalent in the estuary, and that the Pacific oysters were replacing their ecological function after the prehistoric Olympias were overharvested. However, this was not the case. There is no scientific or historical evidence that Ostrea lurida was ever either part of the baseline ecosystem of Drakes Estero, or a food staple of the native Miwok. The most recent archeological study of the area also assessed previous archeological research and found that it was possible that the surveyors were mistaken, having taken Pacific oyster shells, Crassostrea gigas—of which there were thousands—to belong to Ostrea lurida, because no distinction was made between the two. The more recent and more thorough study found just nine Olympia oyster shells. The area was a mixed site, a former dump of the Johnsons’ that had trash such as mattress springs, broken glass and roofing materials mixed in. The site was overgrown on the boundaries with non-native thistle. In the 1990s, a human skeleton was found there during excavation with a tractor, deemed to be Native American in origin, and was reburied. They believed they did find nine Ostrea lurida shells, which could mean nine oysters but could also mean as few as five, given that each oyster has two shells. Other studies did not carbon-date the shells they found but only took a visual notice. The shells that were carbon dated had a wide range. The oldest was from as long ago as 220 BC, while the youngest was from as recently as 800 AD. However, the shells were found in a site deemed likely to be a trade site, because of the presence of other materials not found near the estuary, including abalone and mussel shells (which did not grow there), and obsidian, which likely came from Napa. Cooking sites around the estero showed clam shells that had been charred through cooking, but no oysters. Furthermore, ethnographic accounts supplied through interviews with remaining Miwok people did not indicate that oysters were a common food, or even a known food at all.
One Miwok elder, Tom Smith, said that oysters were found in Tomales Bay, but then described how they were dug with a stick out of the mud. This is not how oysters grow, and it is likely that he was confusing oysters with clams or another shellfish. He also had not come of age by the time that Morgan’s oyster efforts began. All in all, between five and nine oysters, stretched out over a span of nearly a thousand years, and all of them more than 1,200 years ago, does not a thriving native population make.
Many Ostrea lurida shells have been found in San Francisco Bay as well, but this is only natural considering John Stillwell Morgan shipped down thousands of them. A few have been carbon-dated and proven to be prehistoric—again, more than 1,500 years old, but none of interim age. Those archeologists hypothesized that perhaps native oysters gave way to mussels in San Francisco Bay around 430 AD, and that mussels gave way to clams around 800 AD. But the untested Olympia-like shells were all located near where Morgan farmed them, and it is not impossible that even the prehistoric shells were brought down from Washington along with the massive shipments of oysters dredged from Willapa Bay, as part of the oyster reefs there.
MEANWHILE, THE MEDIA was still struggling to understand what was going on. For example, the New York Times, in an otherwise sound article, referred to Drakes Bay Oyster Company “extracting wildlife,” as if the oysters were naturally growing there. The oyster feud was a strange political dispute in that both sides seemed to be liberal Democrats—liberal Democrats who supported organic, “sustainable” farming on the one side, and liberal Democrats who supported wilderness on the other. Many said that they supported both, but had come down on a particular side for one reason or other. One reason might have been that the Lunnys were already running what the Los Angeles Times called a “potent” campaign.
What was clear was that it wasn’t up to the staff at Point Reyes National Seashore to extend the oyster farm’s lease. It would take an act of Congress to let it stay past 2012. Fortunately for the Lunnys, they had a senator very interested in helping them out.
In July 2009, Dianne Feinstein authored a rider on the 2010 spending bill that gave Secretary of the Interior Ken Salazar the option to renew Drakes Bay Oyster Company’s lease for another ten years, although she included language saying that the move should not be used as a precedent and that nothing in it should be cited for the management of lands outside the Seashore.
“Just because someone decides to write that in there,” Fred told a local reporter, “it doesn’t mean wilderness protections won’t be challenged in similar situations in other parts of the country.”
“This exception is not just about the slippery slope,” Jerry Meral, a respected conservationist, former deputy secretary of California’s Natural Resources Agency, and vice chairman of the EAC, told the New York Times. “It’s the beginning of the end of wilderness.”
In July of 2009, Jonathan Jarvis was made director of the National Park Service. In their letters and quotes, supporters of the oyster farm failed to make a distinction between the pastoral zone, which did not have any kind of wilderness designation, and the estuary, which did. Either you respected the wilderness designation of Drakes Estero, or you didn’t.
“The 10-year extension of the Drakes Bay Oyster Company’s lease will preserve 30 jobs at the last remaining oyster farm cannery on the West Coast while making sure that the ecology of the estuary is protected,” Feinstein wrote in her support of the rider. “This is an area with 15 historic dairy farms and cattle ranches, along with many roads running through it. It is not a remote wilderness.” Even Feinstein was denying Burton’s wilderness win.
Nobody was saying that the dairy farms, cattle ranches and their roads were wilderness: they were saying Drakes Estero was. What had made Point Reyes’s wilderness so appealing in the 1960s—its proximity to civilization—was damning it now. Meanwhile, Drakes Bay Oyster Company was violating the Coastal Act by refusing to sign necessary permits, racking up fines in the tens of thousands of dollars.
In October of 2009, Feinstein’s legislation went through, meaning that in three years, Salazar would be able to extend the oyster farm’s lease if he saw fit to. She also managed to get the park to offer longer, ten-year leases to the Seashore ranchers. Unfortunately for one rancher at least, that good news had come too late.
Little Joey Mendoza, third-generation Point Reyes dairyman, had just gone out of business. Milk prices had plummeted that spring to their lowest point in fifty-four years—since Joey was just eleven years old. That, combined with high feed costs and the tanking economy, meant that some dairy farmers were losing as much as $100 per day per cow. They were bleeding money. In California, several dairy farmers committed suicide. Under a National Milk Producers Federation program to remove cows from milk production, more than one hundred thousand dairy cows were sent to slaughter.
Joe Sr. had died the previous autumn, and at sixty-five, Little Joey was the Mendoza patriarch now. He ambled from their weather-beaten house, built nearly a hundred years before by his grandfather J.V., towards the empty milking barn. Light filtered down into the empty space. It was a bright day, unusually sunny for late June, and the yellow lupine was in riotous bloom all over the property. But the familiar sight of his Holsteins silhouetted against the gleaming ocean was missing. He tried but failed to keep from breaking down in tears in front of reporters.
“To have to let them go . . . that was very difficult,” he told Santa Rosa’s Press Democrat of the more than four hundred cows he’d recently sold to slaughter. “And part of the reason is, it’s been my life! And it has been for forty-five years so that . . . is not an easy thing to do.”
One of his workers, Valerio Salgado, had raised every single cow in the herd from the time they were calves, and he cried, too, when they were sent away. “I cry, because I am seeing how these cows are going to be . . . how you say? Slaughter?” Valerio said. “Because I saw them day after day, day after day, seeing them. Living here.”
Despite his tears, Joey would try to be resilient.
“When you get knocked down, you dust yourself and you get back on your game,” he said. “I’m gonna try that. If you made a mistake, learn from it and go from there.”
“It’s sad, but it’s something you economically have to do,” he told a reporter from NPR. “You also have the guilt pangs because of your heritage. Everybody works so hard to build this thing, and you’re the one that has to terminate it and let it go. It’s humiliating. You’re not very proud of yourself when you’ve got to do something like this.”
It wasn’t only his children and the memory of his parents and grandparents that he felt he was letting down, but the eight families, all Mexican, who depended on his dairy for their livelihood.
“I was raised to be an honorable and fair guy,” Joey said, his voice breaking. “So when your decision indirectly affects families like that and their kids—wow, that leaves a bitter taste in your mouth.”