Facing closure deadline, Drakes Bay oyster farm harvests final crop

By New Year’s Day, there should be no more oysters in Drakes Estero, a placid estuary in the Point Reyes National Seashore that has been, for the better part of eight years, the setting for a tempest of epic proportions.

Ranchers, environmentalists, scientists, food lovers and famous chefs, members of Congress and a bevy of lawyers have been embroiled in the conflict over a family-owned farm that planted millions of tiny oysters in the estero’s cold, clear waters and harvested $1.5 million worth of table-ready bivalves a year, continuing an aquaculture operation dating back to the 1930s.

Questions over the Drakes Bay Oyster Co.’s impact, good or bad, on the 2,500-acre Pacific Ocean estuary, and how the company was treated by the federal government, fairly or unfairly, raised passions that likely will persist for years in west Marin County and beyond.

But two things are clear: Those questions were never answered in a two-year legal battle that went to the U.S. Supreme Court’s doorstep, and to some degree they no longer matter because the oysters are rapidly disappearing, with workers hauling them out by the boatload each day.

“Kind of a mad dash to get everything out of the bay,” co-owner Kevin Lunny said last week, standing near the water’s edge at the company’s small base at the north end of Schooner Bay, one of the estero’s five fingers.

Three large piles of unopened oysters lay nearby, and as Lunny talked, a double-barge load of oysters in black plastic grow bags approached the weathered dock, adjacent to the oyster sales shack that was shuttered in July.

There are 1 to 2 million oysters remaining in the estero, and Lunny’s company has until midnight Dec. 31 to get them all out and to vacate the site, according to a settlement agreement approved by a federal judge in October, ending two years of litigation.

The National Park Service, which prevailed in court, is now making plans to scrape the company’s 5-acre site clear of structures and remove everything else, including five miles of wooden oyster racks embedded in the estero’s sandy bottom, restoring the waterway to a natural condition seen by few living people.

That work should be completed by the end of next year, and the estero - home to a harbor seal colony, bat rays, leopard sharks, crabs and vast beds of green eelgrass - will continue to be a mecca for nature lovers.

“That’s why it’s so exciting,” said Neal Desai of the National Parks Conservation Association. “This has always been about fulfilling the protection for such an amazing place. It’s a public interest victory.”

Meanwhile, the west Marin community, which has been bitterly divided over the oyster farm’s fate, needs to get on with plans for the future of the surrounding cattle ranches and oyster farming in nearby Tomales Bay, said Marin County Supervisor Steve Kinsey, who has represented the area for 18 years.

“The main thing is it’s over,” Kinsey said. “The wounds were deep and even when it heals there’s a scar there.”

The supervisor said he initially supported Lunny’s bid to renew his permit for a commercial oyster operation in a waterway designated by Congress for wilderness status. But after former Interior Secretary Ken Salazar declined to renew the farm’s permit in November 2012, Kinsey said he decided “our job was to live with it.”

Lunny immediately filed a federal lawsuit, alleging the secretary’s action was “arbitrary and capricious,” but federal judges disagreed three times and the Supreme Court ended the matter, deciding in June that it would not hear the case that sparked national attention and debate about for-profit use of federal park lands.

The end of the oyster farm upholds a promise put forward decades ago in law to fully protect Drakes Estero, but it also severs ties to a cherished history of shellfish farming in the waterway.

“We won a wilderness, but we lost a legacy,” Kinsey said, referring to the generations of families that came to Drakes Estero to buy fresh oysters and picnic on the beach. “I hear a deep remorse from many folks who have lived here a long time.”

Amy Trainer, executive director of the Environmental Action Committee of West Marin, said the estero will be a wildlife refuge and “a source of recreation, spiritual renewal and refreshment” for humans. It also will be a “place to celebrate good government in action,” she said, where wilderness values prevailed over “the most formidable opposition.”

Melanie Gunn, the National Park Service outreach coordinator at Point Reyes seashore, acknowledged the conflict over Lunny’s oyster farm strained both the park and the community. “I think we’re all grateful to be moving forward,” she said.

For Lunny, the end means sending his crew out, rain or shine, to bring in three to four barge loads a day, with 30,000 to 40,000 oysters per load. “It’s going to take every minute between now and Dec. 31 to get them all out,” he said last week.

Lunny’s reports to the Park Service, mandated by the settlement agreement, said his company removed nearly 500,000 oysters from the estero in September and October, with no report in yet for November.

The oysters are coming in so fast that many, including those too small to sell, are piled on the beach to rot, while the rest are shipped to restaurants and markets. “This is food being destroyed,” Lunny said, gesturing toward a fresh pile of mollusks that would sell for as much as $3.50 each if served on a half-shell at a restaurant.

The abandoned oysters will be trucked to a ranch, where they will dry and bleach in the sun for two years, killing everything inside and on the gnarled shells, which are then used in habitat restoration projects, including snowy plover nesting sites.

Lunny, whose family purchased the oyster farm in 2004, shared that he still thinks the Supreme Court would have ruled in his favor had it taken the case, but said he understands that the justices “have a lot of important cases” and consider only a fraction of them - actually about 1 percent of the 10,000 cases the high court receives each year.

Among those who rallied to the oyster farm’s defense were famed Berkeley chef Alice Waters, who co-signed a legal brief that praised the Lunnys’ dedication to “sustainable agriculture,” and California Sen. Dianne Feinstein, who sought to grant the oyster farm a new permit through legislation in 2009 but wound up with a bill that left the decision up to the Interior Secretary.

In the end, the courts upheld Salazar’s decision, which he said was based on matters of law and policy, setting aside the allegations of scientific misconduct by the park service that had provoked Feinstein’s involvement.

“We’re accepting it,” Lunny said. “We’re moving forward.”

The family plans to open a restaurant with an “oyster-centric” menu at the Tomales Bay Resort in Inverness in January or February. The Lunnys also plan to continue supplying their wholesale customers - about 70 restaurants and markets, mostly in Sonoma and Marin counties - with oysters from Tomales Bay, Humboldt Bay, the Pacific Northwest and the Pacific Coast of Baja, Mexico.

Down the road, Lunny said he hopes to get back into oyster farming, possibly in Tomales Bay.

Supervisor Kinsey, who is also chairman of the California Coastal Commission, said that body just approved an oyster production master plan for Humboldt Bay and may do the same for Tomales Bay, a step that could make room for new operations in the bay that separates Point Reyes Peninsula from the mainland.

“Kevin is probably eying that as an opportunity,” he said.

The settlement agreement committed the government to provide federal relocation benefits to “qualified employees” of the oyster farm who were living in five worker housing units on Nov. 29, 2012, the date Salazar declined to renew the permit.

Paul Cohen, executive director of Legal Aid of Marin, said he is representing more than a dozen families who are candidates for the benefits, and Gunn said three families had applied for them. Cohen and Gunn declined to name any of the families Friday.

“We’re in the process of determining what benefits all of the workers are entitled to,” Cohen said. The five trailers at the oyster farm were “shared housing” for multiple families, he said.

Gunn said she was surprised by the number of families, noting that officials had visited the oyster farm immediately after Salazar’s decision, giving the park service “a pretty good idea” of the number of eligible families.

The benefits generally pay a tenant displaced by government action the difference between the rent plus utilities at their former residence and the cost of new housing for up to 42 months, said Greg Gress, a park service realty officer in San Francisco. The program also provides a contractor who will find displaced tenants comparable housing that must be “decent, safe and sanitary” in a location of the tenant’s choice.

As soon as the contractor is hired, “we’re going to work very diligently to find suitable replacement housing,” he said. Tenants are entitled to remain in the trailers until March 31, three months after the company must get off the site.

Lunny confirmed that his daughter and son-in-law, who were employees and residents at the oyster farm on the appropriate date, should be eligible for relocation benefits.

The park service also is making plans to demolish the oyster sales shack, worker housing units and other structures, all of them timeworn and overdue for repairs. The Lunnys bought the business, with eight years remaining on the use permit, in 2004. Charlie Johnson, the previous owner, had sold his property to the government in 1972, receiving a 40-year operating permit.

Nothing will be cleared from the land until the new year, and Gunn said the agency is lining up the necessary permits and consulting with regulators on how to go about removing the oyster racks - accounting for about 250,000 board feet of lumber in the estero - “with a minimal amount of impact.”

Each of the 95 racks is 300 feet long and 12 feet wide, on average, and they are supported by a total of 4,700 posts sunk into the estero’s soft mud and sand bottom. The lumber weighs about 375 tons, or possibly more due to absorbed water.

Future use of the oyster shack for another purpose - for example, as a farmers market - is not feasible, Gunn said, because it lies in a flood zone. It was inundated during a high tide on Thursday.

The park service is aware of collapsed racks, oyster-growing tubes, plastic bags and other debris on the estero floor, Gunn said. All of it will be removed - at taxpayers’ expense - under the terms of the settlement agreement negotiated by lawyers for Lunny and the Interior Department. The cleanup cost has yet to be determined by the park service, but in a declaration submitted along with his lawsuit Lunny said it would cost more than $400,000 to do it with his own workers.

The agreement specifically exempts Lunny’s company from responsibility for removing any onshore or offshore structures or apparatus, oyster racks, shells, trash or “biological material” and from any obligation to grade or re-vegetate the site.

Asked why Lunny was not paying for the cleanup, Gunn said the park service was satisfied that the settlement agreement is “fair and in the public interest.”

“It’s a mutual agreement,” she said, noting that Lunny agreed to drop all litigation.

Trainer and Desai, the wilderness advocates, said they have always preferred that the park service handle the cleanup, even if it is at public expense. “They are the only entity that would do it right,” Trainer said.

You can reach Staff Writer Guy Kovner at 521-5457 or guy.kovner@pressdemocrat.com. On Twitter @guykovner.