NATIONAL PARKS:

A love of PBS comes between oyster farm and its attorneys

Drakes Bay Oyster Co. has severed its relationship with a right-leaning advocacy group after a scuffle over a PBS segment on the oyster farm's ouster from Point Reyes National Seashore.

Cause of Action has helped represent the farm in its lawsuit against the Department of Interior that claims that former Secretary Ken Salazar failed to follow environmental regulations before deciding to close the farm last year. The 9th U.S. Circuit Court of Appeals is currently deciding whether to allow the farm to stay open while a lower court considers the lawsuit (E&ENews PM, May 14).

The relationship was a unique -- and tenuous -- one. Drakes Bay Oyster Co. operates in a liberal enclave, exhorting the virtues of sustainable agriculture, while Cause of Action is a watchdog group that tends to follow conservative causes (Greenwire, Nov. 14, 2012).

Their interests dovetailed when it came to the debate over the farm's operation in a national park. The farm wanted to stay open but had little funds for legal fees; the group wanted to publicize the overreach of government agencies.

But earlier this month, Cause of Action took its cause too far for the farm's comfort. It filed a Freedom of Information Act request with PBS, arguing that the network unfairly portrayed the group and "misconstrued key facts." The group asked PBS to release the full video recordings used for the nine-minute "NewsHour" segment.

The segment focused on the "strange bedfellows" created by the debate over whether the farm should operate in a potential wilderness area. The years-long fight has pitted conservationists against other environmentalists -- and led to the farm gaining support from conservatives.

Farm owners Kevin and Nancy Lunny were unhappy with the report, but they also didn't authorize Cause of Action to attack PBS. The couple recently joined scientist Corey Goodman in writing a letter to PBS informing the station that Cause of Action no longer represented them. Freedom of the press, they said, is "just as critical to our society as is truth and scientific integrity in our government."

But they lamented that the relationship had already caused the media to report that they were "part of some conspiracy to destroy parks and wilderness."

"Nothing could be further from the truth," they wrote. "We are environmentalists and agriculturalists. We also believe in working landscapes, the collaboration of sustainable agriculture while protecting the environment, and maintaining the character of our community."

Cause of Action has withdrawn its FOIA request, and in a statement yesterday, the group confirmed that it will be withdrawing from the lawsuit. The farm's lawsuit will continue with law firms Briscoe Ivester & Bazel LLP, Stoel Rives LLP and SSL Law remaining as counsel.

"All client matters are confidential and they will remain so here," Mary Beth Hutchins, Cause of Action's spokeswoman, said in an email. "We hope for nothing but the best for Drakes Bay Oyster Company and the Lunny family."

Farm says DOJ made incorrect statement during oral arguments

The separation came on the same day that the farm filed a letter with the 9th Circuit claiming that the Department of Justice made an incorrect statement during oral arguments on May 14.

During that hearing, Justice Department attorney David Gunter told the three-judge panel that Salazar had responded to criticisms of harbor seal data in Interior's environmental impact statement on the farm. But the farm argues that such a response was impossible, as the criticism wasn't raised until after the EIS was published.

In a letter to the court, Peter Prows, an attorney at Briscoe Ivester & Bazel, asks that the record be corrected. But Gunter argues that his statement was an honest mistake that has little bearing on the case.

"After reviewing the video, I believe that no correction is necessary," he wrote in a letter to Prows. "To the extent I made a mistake in my argument, that mistake was not material and will have no bearing on the Court's consideration of the case."

Gunter also warned Prows that "courts do not look favorably on attempts by parties to seize upon minor points ... and use them as a pretext for supplemental briefing."

Attorneys for the farm had used the harbor seal criticism as an example of why Interior needed to follow National Environmental Policy Act guidelines that require agencies to wait 30 days after a final EIS to make a decision.

Salazar waited only a few days to announce his decision, before anyone had a chance to study the data in the final EIS. Goodman's analysis of the seal data -- and his contention that the EIS misrepresented it -- only came after Salazar's decision (Greenwire, May 14).

Interior maintains he wasn't required to follow NEPA rules, as Salazar simply chose to not renew a lease and based that decision on policy.

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