NPS bought trouble with $1.5M studies of wilderness oyster farm

Interior Secretary Ken Salazar's decision last week to close down Drakes Bay Oyster Co. was years in the making, costing his agency millions of dollars in research and potentially damaging the reputation of the National Park Service.

But in the end, his justification was simple: The continued operation of the business in a potential wilderness area violated NPS policy. After spending at least $1.5 million to research the California oyster farm's effect on the environment, Salazar largely sidestepped the resulting environmental impact statement (EIS) to focus on a legal argument he could have made years ago (E&ENews PM, Nov. 29).

So what was the point of all that money and all that controversy?

That question is central in the aftermath of Salazar's decision, which will end marine aquaculture in Drakes Estero after more than 70 years. The EIS -- and the research behind it -- had become a lightning rod in the passionate debate over whether Drakes Bay Oyster Co. should continue to operate in Point Reyes National Seashore.

Until last week, the review seemed a priority to Interior. The department paid a contractor at least $869,000 to complete the EIS, according to It paid another $700,000 to the National Academy of Sciences for three related reports since 2008, according to an NAS spokeswoman. More money went to two reports from the Marine Mammal Commission; still more paid the time and salaries of more than a dozen NPS employees and researchers.


All for a document that, in the end, Salazar deemed optional and tangential to his decision.

The draft and final versions of the EIS, Salazar wrote in a memo last week, "are not material to the legal and policy factors that provide the central basis for my decision, [but] they have informed me with respect to the complexities, subtleties, and uncertainties of this matter and have been helpful to me in making my decision."

Environmental groups have long argued that the issue was one of policy, not science, and have called the controversy over NPS research a distraction. But this week, they also characterized the EIS as a political necessity.

Doug Morris, a former NPS superintendent, said members of the Coalition of National Park Service Retirees have discussed at length whether the Park Service should have gone through the lengthy process of developing an EIS under the National Environmental Policy Act. But he believed it was unavoidable amid such controversy over the farm's future.

"You just almost never go wrong doing NEPA," Morris, who supports Salazar's decision, said in a recent interview. "You may be criticized ... but you're probably going to suffer that no matter what."

Kristen Brengel of the National Parks Conservation Association agreed.

"You're damned if you do, you're damned if you don't," she said. "If they didn't do a full-blown EIS, they would be criticized."

Morris and Brengel also argued that the EIS did factor into Salazar's decision, which had been complicated by years of controversy.

"His mind wasn't made up when the Park Service decided to go through with the EIS," Brengel said. "This one was not settled until a week ago."

'We're not going to walk away'

The Park Service began the NEPA process in 2009, after Sen. Dianne Feinstein (D-Calif.) successfully inserted a provision in a spending bill giving Salazar the option of renewing the farm's lease. Before that, Interior and NPS had argued they couldn't legally allow the farm to stay past its lease expiration this year.

The agency aimed to get the final EIS done by June 2012, in time for Salazar to make a decision in July. But the process soon became bogged down in allegations of misconduct. At one point, Interior's Office of the Solicitor found that an NPS scientist had "acted improperly" by withholding photographic evidence. NPS research also came under attack, prompting some critical reviews from NAS.

The draft EIS found that the farm's continued operations would negatively affect the surrounding environment. But it was plagued with problems, from scant references to an unorthodox use of environmental baselines.

Interior didn't release the final EIS until late last month, more than a year after the draft. That gave Salazar little more than a week to review it before making his decision -- a violation of NEPA rules, which dictate a 30-day waiting period before a decision on the proposed action.

But Interior now characterizes the EIS on the farm as a courtesy -- not a requirement.

In his decision memo, Salazar argued that Feinstein's provision, known as Section 124, doesn't require Interior to go through the NEPA process.

"The NEPA process, like Section 124 itself, does not dictate a result or constrain my discretion in this matter," he wrote.

Interior now faces a lawsuit over that contention. The watchdog group Cause of Action, on behalf of farm owner Kevin Lunny, filed a lawsuit Monday arguing, among other things, that Interior was required to follow the NEPA process but violated procedures.

The group plans to ask a judge for an injunction this week, delaying the farm's closure until the lawsuit is resolved. In the meantime, the farm is still open, with 90 days left to clear out.

"We're not going to walk away," Lunny said yesterday in a call with reporters.

He added: "Based on the law and based on the environmental consequences of shutting the farm down and given the fact that the secretary had discretion [to extend the lease], we were very much surprised by the decision by the secretary."

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