Politics & Policy

Raw Deal

Kevin Lunny, patriarch and owner of Drakes Bay Oyster Co.
Bad science and contempt for the law allow the government to destroy a family oyster farm.

Brigid and Sean knew from their father’s face that the news was not good. As he took a short phone call, the Lunny family could tell that a decision handed down by the federal government would cost them their livelihood, their family home, and their retirement plan.

“I was standing in our little oyster shack, the retail store where people gather,” says Kevin Lunny, the patriarch and owner of Drakes Bay Oyster Co., in Marin County, Calif. “The phone rang, and my daughter answered it. She said, ‘It’s Secretary Salazar, for you.’ We all knew, and we were all waiting. None of us could sleep, none of us could physically eat as we were awaiting the decision. Sean’s looking at me. Brigid’s looking at me. About a minute into the conversation, I hadn’t said anything, and they were both in tears because they could see my face. This was not the decision we’d hoped for and prayed for. Walking out of that room and onto the dock where our 30 employees were waiting — you had all 30 of us in tears because it’s a tragedy.”

#ad#On November 29, Ken Salazar, secretary of the interior, announced his decision not to renew Drakes Bay Oyster Co.’s lease on National Park Service land about 30 miles north of San Francisco. Citing the 1976 Point Reyes Wilderness Act, the National Park Service intends to establish a federally designated wilderness area, the first on the West Coast, on the land where the oyster farm has long operated.

The Lunnys and their 31 full-time employees, many of whom have worked for decades on the oyster farm, will lose their jobs. Fifteen who lived on the premises will also lose their homes. And the company has only three months to vacate.

One would hope the Interior Department would do everything in its power to preserve a small business unless it had a good reason to do otherwise. In fact, recent legislation explicitly allowed the Interior Department to extend the oyster farm’s lease for ten years. But it seems clear that the National Park Service wanted the land as wilderness, then set about to obtain it at all costs. Salazar largely avoided mentioning science in his decision — probably because the Interior Department and National Park Service studies measuring the environmental impact of the oyster farm are riddled with errors.

Corey Goodman, a 61-year-old professor emeritus at Stanford and Berkeley, is an animated man. He’s a brilliant, much-lauded scientist with an impressive résumé that spans the academic, private, and public sectors, and he has a talent for explaining complicated scientific studies simply, gesturing often to emphasize his points. After being elected in the 1990s to the National Academy of Sciences, Goodman became interested in science and public policy, chairing the Board of Life Sciences. He has long expressed his commitment to putting science before politics.

In 2007 Goodman received a phone call from Steve Kinsey, a member of the Marin County board of supervisors. Kinsey told him of the Park Service’s allegations of environmental damage from a small oyster farm with an otherwise impeccable reputation, then he asked Goodman to fact-check the government’s claims. Goodman agreed, reviewed the data, and attended a public hearing on Drakes Bay Oyster Co. He had never met the Lunnys, but he was appalled at what he heard from the Park Service officials. Their statements completely conflicted with what Goodman had found.

“I sat and listened to the Park Service that day make the most incredible claims,” he tells National Review Online. “We hadn’t heard exaggeration,” Goodman recalls. “We’d heard things that were simply not true.”

His interest piqued, Goodman embarked on what became a five-year examination of the Interior Department and National Park Service studies of the oyster farm.

“I’ve never seen anything like it,” Goodman says. “It’s a stunning misuse of science by our federal government. . . . They have spent a huge amount of money trying to find harm when it doesn’t exist. . . . The Park Service was determined to get rid of the oyster farm, and they simply made [the environmental damage] up. . . . These people aren’t following the data. They’re following a predetermined agenda.”

At one point, the Park Service issued a glossy brochure claiming that oyster feces were causing significant damage to the bay’s eelgrass and fish. Skeptical, Goodman investigated, examining previous data from the California Department of Fish and Game, as well as reports from the National Park Service itself. Based on those government studies, Goodman discovered that the oyster farm actually had some of the healthiest eelgrass in California, and the area where it grew had doubled in size in the past decade. Goodman also chased down a UC Davis report that showed the fish populations were thriving.

Reviewing the Park Service’s sourcing, he found very specific numbers about how many tons of feces the oysters were producing, all based on a 1991 study. Goodman tracked that study down and found that even though it did examine the sediments surrounding the oyster farm, it concluded that there was no problem with oyster feces there. The 1991 paper, in turn, cited another study measuring oyster feces, one from 1955 that examined a totally different type of oyster off the coast of Japan. The Park Service had taken these old numbers from a foreign land and claimed they were data from present-day Drakes Bay Oyster Co.

Finally, Goodman found a 2005 study examining the ecosystem in the water surrounding the oyster farm — funded with National Park Service money. That report concluded that near Drakes Bay Oyster Co., the dominant organic sediment was from the lush, abundant eelgrass. In other words, the National Park Service’s claim about damage to the eelgrass and fish was not only poorly researched; it was flagrantly wrong.

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“Either it’s just really sloppy science, or it’s deliberate,” Goodman says. “But when you see the same people do the same thing over and over and over again, it’s hard not to conclude intent.”

The examples of bad science are abundant. In another report, Goodman discovered the Park Service had claimed the oyster farm had an adverse effect on red-legged frogs, an endangered species. One problem: Red-legged frogs live in fresh water, not the salt water of the oyster farm. Goodman dug further and found that the Park Service was claiming the presence of Drakes Bay Oyster Co. put the red-legged frog at “increased risk for vehicle strikes.” In other words, the government was claiming an endangered frog might somehow trek toward the seashore, cross a road, and get hit by a car on the half-mile path leading to the oyster farm.

#ad#And recently, the Park Service complained that one of the “major impacts” of the farm was on the soundscape of the surrounding park lands. The Park Service was talking about noise from Lunny’s plastic oyster tumbler, a machine used to sort oysters by size, which is powered by a tiny, one-quarter-horsepower electric motor. But rather than measuring the sound from the oyster tumbler itself, Goodman discovered the Park Service had used as a stand-in some noise-disruption data from a 400-horsepower cement truck, and later from a portable metal Army cement mixer filled with gravel and stone. And — here’s the kicker — the Park Service also assumed an ambient silence level roughly comparable to the Vatican library. It was an imaginative report, but it had nothing to do with the sound situation near the oyster farm.

Those are just some of the examples. After examining years of data about the oyster farm, Goodman has reported that the federal government’s reports were repeatedly inaccurate. He has also concluded that “Kevin Lunny is an environmental icon,” “a great steward of the environment,” and “one of the pioneers for organic and sustainable agriculture that also protects the environment.”

Nevertheless, the federal government’s data maligning the Lunnys and their farm was disseminated to environmental groups and immediately publicized. That faulty data was frequently cited by these organizations, even after the National Park Service was forced to admit errors. The Save Drakes Bay Coalition, a group of more than 40 local, regional, and national environmental organizations, all took up the cause of evicting Drakes Bay Oyster Co. from the Park Service land. The Lunnys say they usually agree with such environmental groups, and the groundless attack caught them off guard.

Meanwhile, instead of apologizing for its scientific errors and dropping its case, the federal government has resorted to personal attacks when its data were proven faulty, Goodman says. He has also been careful to avoid conflicts of interest, receiving no compensation from the Lunny family, Drakes Bay Oyster Co., or any of the other parties involved. He told me that his involvement was initially at the request of Supervisor Kinsey, and later at the request of Senator Dianne Feinstein (D., Calif.).

Nevertheless, Goodman says, if he were 25 and a scientific neophyte, “they would have destroyed me by now. . . . They would have just rolled me over.” It’s been hard for the federal government to dismiss a scientist with Goodman’s credentials, but he says he worries about the precedent this case will set.

“I’ve been outraged by the way my government, in the National Park Service and with the seeming approval of the Department of the Interior, have misused science over and over,” he says. “This sends a terrible example throughout the federal government. If they get away with this — which so far they have — it sends the signal to every young scientist throughout the federal government to forget about science, forget about data, find out what your boss wants.”

These botched pseudoscientific studies should be a central consideration in the battle over Drakes Bay Oyster Co. But the Department of the Interior has attempted to relegate science to the sidelines in this decision. If Secretary Salazar prevails, it will be thanks to a grossly flawed interpretation of both science and law.

Back in 2004, the National Park Service issued an opinion stating that the 1976 Point Reyes Wilderness Act, which designates the surrounding Drakes Estero as a potential wilderness area, did not allow the oyster farm’s leasing permits to be extended.

Senator Feinstein decided to champion the cause of the small oyster farm, crafting a rider to a 2009 appropriations bill that explicitly allowed the Interior Department to extend the oyster farm’s lease for ten years, “notwithstanding any other provision of law.” She also directed Salazar to “take into consideration recommendations of the National Academy of Sciences Report.”

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What happened from there is suspicious, to say the least. At first, the Department of the Interior began following the procedures outlined in the National Environmental Policy Act: Before it made a decision on the lease, the law required Interior to complete a draft environmental-impact statement, analyze the results, allow for public involvement and comment, issue a final environmental-impact statement, invite public comment again, then issue a record of the decision.

However, Goodman and others at the National Academy of Sciences found numerous problems with Interior’s environmental-impact statements, some of which were just described. Furthermore, the department was running behind schedule. It issued its final environmental-impact statement the day before Thanksgiving this year, just days before the final decision on the lease permit for Drakes Bay Oyster Co. was due. That didn’t allow enough time for the period of public comment mandated by the National Environmental Policy Act.

#ad#So Salazar simply reinterpreted the law. He claimed that because Feinstein’s rider had given him authority to extend the lease “notwithstanding any other provisions of law,” he was free to deny the lease and disregard the National Environmental Policy Act too. That would also allow him to make a decision without considering the findings — and many errors — within the environmental-impact statements. It essentially takes the science out of the decision.

“That’s a fairly broad grant of authority that [Salazar] is embracing there,” says Amber Abbasi, chief counsel for Cause of Action, a government-accountability group representing the Lunnys. She adds that the history of Feinstein’s rider legislation “clearly indicates that Section 124 was passed to rebut the National Park Service Interpretation of the 1976 Wilderness Act.”

The Lunnys’ interpretation of Feinstein’s rider seems spot-on. After all, Feinstein wrote that she “authored legislation to give the Interior Secretary the option to extend the oyster company’s lease by 10 years.” The senator also wrote that “the Park Service has repeatedly misrepresented the scientific record since 2006 to portray the farm as environmentally harmful, and it is my belief that the Park Service is doing everything it can to justify ending the oyster farm’s operations.”

The Lunny family bought Drakes Bay Oyster Co. in 2004, but their history with the land goes back much further. Kevin Lunny was born and raised on a cattle ranch and dairy farm that overlooked the oyster farm, a child of the Point Reyes National Seashore. When Drakes Bay Oyster Co. was put up for sale, Lunny was thrilled. “It’s such a beautiful, sustainable food system,” he tells National Review Online.

“It’s extremely healthy for the environment. There are no feeds, no fertilizers, no chemicals. . . . [We] got very involved and passionate about the local-food movement, organic production, sustainability, and local marketing.”

A committed environmentalist, Lunny wanted to farm oysters in a responsible way. He took out a $300,000 loan to clean the farm and restore the property, using the old Lunny family cattle ranch as collateral. As the Lunnys’ reputation for good oysters and responsible, sustainable agriculture grew, the farm became more and more popular. The Lunnys were able to make payments on their loan, maintain their employees, and stabilize their inventory. The farm was holding its own.

The Interior Department’s decision not only kills the farm but also financially ruins the Lunny family. The farm is home to an inventory of baby oysters worth nearly $5 million, all too young to be harvested and sold. Furthermore, with their business shuttered, the Lunnys will have no way to repay the loan they took out to improve the farmland, so they’ll probably lose the cattle ranch they used as collateral, too.

“This is not a store where we can have a fire sale, sell everything off the shelves and go away,” Lunny says. “The Park Service is asking us to kill all these oysters, destroy all this food, get out before they can even be harvested. There’s no way for us to recover our investment.”

The National Park Service would not take questions from National Review Online, referring reporters instead to the Interior Department. Blake Androff, the Interior Department’s spokesman, would not respond to questions about the numerous scientific errors in the National Park Service and Interior Department reports. He also wouldn’t comment on why the Lunnys were given only 90 days to vacate the premises.

Instead, Androff responded with an uninformative e-mailed statement: “The Secretary made his decision after careful consideration of the applicable law and policy. The Department will carefully review the complaint and any related materials that may be filed. The Department does not comment on litigation.”

The Sierra Club and the Environmental Action Committee of West Marin — both of which have made the environmental case against the oyster farm — did not return phone calls by the time this story was filed.

And Gordon Bennett, spokesman for Save Our Seashore, said: “With all due respect, we’re not opposing the oyster farm. We’re supporting wilderness. . . . it doesn’t matter if they’re doing good or bad. It’s irrelevant.” He added that it was the Lunnys’ responsibility to prepare for job losses and provide retraining opportunities and severance to the employees who were left out of work when the farm was evicted.

The Lunnys have launched one final attempt to keep their farm, working with lawyers from Cause of Action. The lawyers say the Lunnys were not afforded due process and have been deprived of their property through arbitrary action of the government — both constitutional claims. Furthermore, they allege that Interior violated the National Environmental Policy Act and the Park Service violated its own rules. Last week the Lunnys filed for injunctive relief, which would allow them to continue operating the farm until a court rules on the case.

To be sure, it’s an uphill battle. The Interior Department has millions of taxpayer dollars at its disposal, while the Lunnys are on the brink of bankruptcy.

“We’re saying now, ‘We are dead,’” Lunny says. “It’s a really insensitive and harsh way to throw us out. It will completely destroy us.”

Jillian Kay Melchior is a Thomas L. Rhodes Fellow for the Franklin Center for Government and Public Integrity.

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