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Guest column
Sierra Club responds
By Gordon Bennett, Sierra Club Marin Group Conservation Chair
Recently, certain local sources have clearly misunderstood statements made by the Sierra Club after a KQED program about the Drakes Estero wilderness controversy. <kqed.org/epArchive/R9063010000> Speaking for the Sierra Club, I would like to set the record straight.
Policy Confusion
Assertions were made about a supposed Sierra Club “confession” that the 1976 PRNS Wilderness Act says nothing specific about 2012. However, this is not a confession or even news. Back in 2006, in response to the same assertion, a Sierra Club article noted that the 1976 Act did not set a date for any mandated action but instead made an over-riding statement:
“As is well established, it is the intention that these lands and waters designated as potential wilderness additions will be essentially managed as wilderness, to the extent possible, with efforts to steadily continue to remove all obstacles to the eventual conversion of these lands and waters to wilderness status.”
Local sources also quoted the 1976 Act sponsors, Tunney and Burton, as saying the oyster operation could “continue.” However, the quotes do not say, “continue forever.” They simply mean that the Act did not require the oyster operation to close immediately, but rather allowed it to continue its pre-existing rights until the 2012 expiration.
Two supposed examples of nonconforming uses allowed in potential wilderness were also asserted by local sources as precedents for extending the oyster rights past 2012, but the Grand Canyon example is not a congressionally designated potential wilderness and the Sequoia example is a pre-decisional carve-out. Neither applies to recently proposed use permit extension for the local shellfish company that is ex post facto to the 1976 PRNS Wilderness Act by 33 years.
Also an assertion was made that the oyster operation’s 1972 Reservation of Use (ROU) is renewable but the assertion failed to note that the renewal clause also states: “any permit for continued use will be issued in accordance with the National Park Service Regulations in effect at the time the Reservation expires.” Since the 1976 Act calls for efforts to steadily continue to remove all obstacles, it represents the “NPS Regulation” that will be in effect in 2012 and thus it precludes renewal.
Claims were also made regarding extending oyster rights past 2012: “an act of Congress is not required…It would simply take a signature from the superintendent…” However, both claims were flatly contradicted by the Inspector General’s Report that exonerated Superintendent Neubacher from all the oyster company’s bias accusations: “Neubacher did not have the authority to extend any ROU…an extension of DBOC’s particular ROU would violate a congressional mandate that the oyster operation be removed as soon as soon as the ROU expires...”
Both the former Bush- and the current Obama-appointed head of the Interior Department agree with the IG’s finding. Ironically, even wilderness opponents agree, which is why they support an act of Congress to overturn the 1976 Act.
Science Confusion
Certain local sources are also confused about the NAS criticism that NPS had “in some instances selectively presented, over-interpreted, or misrepresented the available scientific information.” But they fail to understand that most of the NAS criticisms relate to legitimate but still unresolved scientific disagreements re native oysters and seals.
Determining whether or not native oysters were originally abundant in Drakes Estero is critical because that sets the ecological baseline. The draft NAS Report cited a report showing native oysters abundant in shell middens around the Estero, but we discovered that the cited source actually said nothing at all about these middens, so the NAS withdrew the citation.
To its credit, the NAS acknowledged the critical importance of getting the native oyster evidence and ecological baseline correct and so will recommend accepting additional evidence on these points. But since the ecological baseline is so critical to the Report and is the basis for most of the NAS criticism of the NPS science, we requested the NAS to delay publishing its final Report until the issues were resolved.
Unfortunately, the NAS Report was finalized with the only evidence provided for its baseline assumption being the shell midden located, ironically, within tossing distance of the oyster shucking facility. The same midden was cited as “evidence” by local sources.
However, an archeology reference provided to NAS (Riley, 1976) stated, “One of the oystermen... indicated that shells from the oyster farm had been heaped on [the midden]…The surface of the deposit is covered with shells from a species of oyster that I have not seen in other central California shellmounds. Furthermore, oysters are not a major constituent in any other Estero archeological deposit… a large part of the [midden’s] shell deposits…is a result of the oyster farm….”
The NAS declined to reference this telling analysis in its final edition. Claiming this midden as Native American without referencing its recent disturbance is, in our opinion, a misrepresentation of the available scientific information.
Six archeological reports on 14 middens along the shore of the Estero were presented to the NAS. All six reports supported the Park’s position that native oysters existed in only trace amounts in only one midden. None of these reports were referenced in the final NAS Report. Thus the NAS “abundant native oyster baseline” is, in our opinion, a significant over-interpretation of the available scientific data.
In addition to the native oyster criticism, the other main NAS criticism of NPS involved the Park’s use of site-specific seal impacts when the NAS used population impacts. Certain local sources have claimed therefore that the NPS science was not proven. However the NAS Report states, “visits to these areas [within 500 m of a haul out] can be expected to lead to the short term disturbance…” The current buffers around Estero seal haulouts are only 91m (100yd). Nevertheless, we noted that the NAS emphasis on population impact contravened the Marine Mammal Protection Act. The Marine Mammal Commission has also indicated concern and will conduct an independent review. We requested that the final NAS Report include a reference to this review, but NAS declined.
One has to wonder why there was such a rush to publish the “final” NAS Report when so many issues core to the Report and its criticisms of the Park remain scientifically unsubstantiated or under question. Nonetheless, the NAS Report was used to justify the appropriations bill rider that contravenes the wilderness act as well as NPS competitive bidding requirements for the exclusive benefit of perpetuating a commercial operation. The rider will extend the use permit past 2012 in clear contradiction to the intent of Congress to phase out non-conforming commercial operations in this potential wilderness. The rider will no doubt encourage other commercial entities to seek special exceptions elsewhere. The rider proposal should be stopped.