Kevin Lunny - National Park Service

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.. Kevin Lunny"



07/20/201010:26AM

To "Cicely Muldoon" cc bcc Subject

Dear Cicely, The week before last, I was in San Diego attending a conference on ocean acidification (more on it later, we should discuss what was presented -- implications for Point Reyes NS) and directed David Weiman to submit our first round of questions on our behalf regarding the NPS "Sunday Project." Appended to this letter is a second round of questions. Additional rounds of questions are pending and will be submitted shortly. The May I, 2009 document is troubling by itself. The NPS remote camera program requires considerable explanation and we're trying to understand NPS actions that directly impact our farm, our workers and our family. I am aware that some of the questions overlap and may even be duplicative. NPS, in the past, has not been forthcoming. After learning that NPS reissued its report, "Drakes Estero, A Sheltered Wilderness Estuary , several times, we wrote and asked NPS to tell us how many times it was published and why? NPS wrote back, through Rep. Lynn Woolsey, and said that they (NPS) didn't know what we meant by "published." NPS did not want to reveal that the report was republished several times, or that they ignored the requirements of Director's Order #IIB, which required NPS to post the changes with explanations for each. We sincerely hope that, with your becoming Superintendent, those days are over. As you are undoubtedly aware, Ben Becker contacted me to discuss how the harbor seal inventory and monitoring database can be used. I am happy to meet with him -- and will do so, but believe the issues involving the disputed NPS Harbor Seal Disturbance Data need to be resolved first, as it directly affects the database. As indicated in the letter, we are obligated to submit additiopal documentation and analysis to the MMC and therefore request that responses to these requests be expedited. We thank you for coming out to the oyster farm. In 2004, a key factor in deciding to purchase Johnson's Oyster Company -- was -- and is -- that this little oyster farm is the crown jewel of Point Reyes. We believed then and still believe now that we can improve it, make it better and establish it as a "place of great pride" in collaboration with NPS. We believe that we can accomplish this by working with you. Sincerely,

Kevin Lunny

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20100720 DBoe to CicelJ Muldoon.pdf

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DrakesBay Oyster Company 17171 Sir Francis Drake Boulevard Inverness, CA 94937 (415) 669-1149 [email protected] [email protected]

July 20, 2010

Cicely Muldoon Superintendent Point Reyes National Seashore One Bear Valley Road Point Reyes Station, CA 94937 Dear Cicely, The letter and questions are submitted to further understand the NPS, Briefing Statement, National Park Service Response to Goodman's January 18, 2009 Letter to NRC, May 1, 2009

(NPS Briefing Statement), a document that we first learned of in early June 2010, and other information from NPS made available only after the June 7, 2010 Marine Mammal Commission (MMC) meeting. This NPS report and information recently made available for the first time raises a number of questions. We seek your assistance to fully understand NPS objectives, purposes, and programmatic accomplishments of what NPS called a "remote camera." As recently reported to you, DBOC did not know about these undisclosed cameras or the NPS remote camera program. DBOC obtained a copy of the NPS Briefmg Statement on the eve of the MMC meeting on June 7, 2010 and learned about the hidden camera only the day before. The 33-page NPS Briefing Statement discusses the camera and its use in two instances. The first, according to this NPS (Page 1 - second page of the document) stated: NPS has time stamped images ofseals on the sandbars... during the 2008 breeding season in Drakes Estero.

The second reference is found in Appendix A, "NPS Review ofTidal Patterns and Harbor Seal Behavior in Drakes Estero" and stated:

For the six dates selected by NPSfor review (Table 2), the NPS examined date and time stamped photographs taken ofDrakes Estero by remote camera. The remote camera was on-site at Drakes Estero for the majority of the of2008 breeding season, capturing images every minute from 7:00 AM to 7:00PM The camera view encompassed the "lateral" channel with sandbar DB in the foreground. At the June 7, 2010 MMC meeting, NPS officials acknowledged the camera's existence and explained, at the time, that it was used for wildlife management purposes. Several days later, on June 10,2010, an article in the West Marin Citizen, based on interviews with Dave Graber, NPS Pacific West Regional Scientist and David Press, PRNS Data Manager disclosed that (a) there were two, not one, cameras; (b) the purpose ofthe camera involved not just monitoring wildlife but documenting harbor seal disturbances; (c) the "images were used as a wtry to improve seal observations and reduce disturbances"; and, (d) the installation of the cameras "was an experiment to collect data for both harbor seals and disturbances." The two key paragraphs in the Citizen's story state: David Graber, ChiefScientist for the Pacific West Region of the National Park Service spoke ofone camera installed by Seashore officials and said the images were used as a wtry to improve seal observations and reduce disturbances at the different sites. The camera, he said, was not used to observe the oyster operation. 'Have we used the photos against [oyster company owner} Kevin Lunny?" asked Graber in response to the question if Seashore officials were using the camera as a wtry to monitor oyster operation. The answer was no, he said David Press, the data manager for the Seashore said the camera was set up in an experiment to collect data for both harbor seals and disturbances. 'The camera was an experimental approach to see

if we could add to our understanding ofharbor seals and

harbor seal disturbances in general within the upper part of the Estero, ' Press said.

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A June 22, 2010 email from you then revealed, for the first time, that a camera was installed and active in Drakes Estero prior to 2008. Later, on June 30, in another communication, you provided additional detail and stated that the camera was first installed and operational on May 5, 2007. We have been reviewing the limited photographic data and other information you provided and are still confused by the remote camera program. Therefore, in addition to the questions submitted on July 8, the following questions and requests for information (and where appropriate, documentation and source materials) are submitted so that DBOC can understand the NPS remote camera program. (1)

NPS Experimental Program - Plan and Approval, Acquisitions and Installations (a) Please provide the Work Plan for the proposed experiment. (b)

Who directed, approved, or concurred in the establishment of this experiment andlor program?

(c)

Provide copies of all documents, including but not limited to reports, papers, emails, communications, summaries, directives or andlor other documents related to this experiment andlor program.

(d) (2)

NPS Experimental Program - Progress Reports (a) Please tell us how often, per the NPS Experiment's Work Plan, were Progress Reports required prepared. Weekly? Quarterly? Seasonally? Annually? (b)

(3)

Provide all justification documents related to this proposed experimental program.

Provide copies ofthe regular progress reports.

NPS and DFG 1992 Multi-Agency Harbor Seal Protocols. NPS, NMFS and California Department ofFish and Game executed Harbor Seal Protocols for Drakes Estero in 1992, which remain current and operational today. (a)

Did NPS communicate with its mUlti-agency partners about this experiment?

(b)

Did NPS ask these agencies to review or comment on the experiment? If so,

provide copies of their comments andlor responses. (4)

NPS Annual Harbor Seal Reports - Failure to Reference Experiment (a) NPS, at Point Reyes, published annual harbor seal reports in 2007,2008 and 2009 (among others). Why is the remote camera experiment andlor program not mentioned, referenced or discussed?

(5)

NPS, San Francisco Bay Area Network Piuniped Monitoring Protocol, Version 3.02, December 2009. NPS issued, after a five-year process, a new updated and revised harbor seal monitoring protocol in December 2009. According to the updated protocol, "protocols document standardized objectives, methods and data management to enable high quality evaluation ofpinniped population status for the region." (a) When the updated protocols were being finalized, NPS at Point Reyes had three years experience with the remote camera program, yet the new protocols are silent about it. Why? (b)

How was the remote camera program evaluated for inclusion in the protocols?

(c)

Did the remote camera program meet the "high quality evaluation" test set forth in the protocols?

(6)

NPS and DBOC Statement of Principles. In March 2008, NPS and DBOC executed a Statement of Principles Regarding Environmental Evaluations at Drakes Estero which, among other things, required NPS to "advise DBOC of any scientific, technical, or other information. .." to be used in future environmental reviews and "consult with DBOC in good faith in the design of any further scientific or technical studies ... " (a) Based on this agreement,NPS should have notified DBOC of the decision to install the camera. Why did NPS fail to inform or notifY DBOC of the existence and use of the camera in 2007,2008,2009 and 2010? (b)

Why did NPS fail to consult in good faith with DBOC regarding this new experimental program as specified by this Agreement?

(7)

Experiment Site Selection - Statistical and Experimental Justifications. As we understand the NPS harbor seal observation program, NPS monitors at least eight sandbars or'subsites within Drakes Estero for counts,. observation and disturbance.

According to your recent email to us, this remote camera program has been in place for four years. (a)

What was the statistical and experimental justification criteria used to choose the lateral channel between OB and UEN as the target of one camera and to choose UEF as the target of the second?

(b)

NPS records (2005-2007) indicate there were approximately 3,000 seal flushes from several hundred disturbances events. These were attributed to various sources (hikers, clammers, airplanes, kayaks, etc.). According to NPS disturbance records, only a handful of these flushes occurred at the three subsites monitored by the remote cameras. Why did NPS select subsites with such few disturbances for the experiment?

(c)

Why did NPS select three subsites for this experiment that excluded virtually all disturbances -- except those allegedly from or associated with oyster activities?

(8)

Establishing Baselines and Parameters for Experiment. The vast majority {)f federally funded research requires a Quality Assurance Protocol and Plan (QAPP) or equivalent be completed that defines all factors concerning data gathering, testing procedures, statistical analysis, interpretation of data, maintenance of records, etc. Even the most informal project requires a full work/study plan. (aj

Please provide us with the QAPP or equivalent work study plan that shows the protocols for the photographic collection of disturbance, especially the means of evaluating the identity of vessels associated with the disturbance.

(b)

What information, advice and/or instructions regarding boat identification did NPS provide to those participating in the experiment and/or reviewing photographic data? Provide copies ofthe documents in which NPS instructs those managing or participating on the difference between a DBOC boat and other motorized boats and a DBOC boat and kayaks and/or canoes.

(9)

NPS Objective - ImproviIig Observations and Redncing Disturbances. According to the Regional Chief Scientist Graber, the purpose of the remote camera program was to improve observations and reduce disturbances. (a)

How did this experimental program measure progress for "improved observations?"

(b)

Please identifY the "improvements" achieved. What was the starting point and how much as been accomplished? Provide annual progress reports (or other supporting documentation).

(c)

How did this experimental program measure progress for reduction of disturbances? What was the starting point and how much has been accomplished during the study period?

(10)

NPS Map, undated, entitled, "Drakes Estero Camera Angles." This map shows the approximate placement of two cameras and the approximate camera angles in Drakes Estero. (a)

The map displays the camera angles for 2008 to 2010. The year, 2007, was not included. Please provide a map showing the location, placement and angle of view for 2007.

(b)

For the lower of the two cameras (camera closer to the bottom of the page) it displays a label that reads "long and short views." Can you please explain how this worked? Were both used in each of the years - 2008, 2009, and 201 O? What was the purpose of each?

(c)

This map displays, in a yellow line, a category labeled, "Maximum Harbor Seal Use Areas (OB and UEF only)," a designation or description never previously seen. Explain this designation and describe what it includes and excludes.

(d)

Based on our five-years of experience Drakes Estero, harbor seals haul out in very large numbers along the main channel, outside your selected camera angle. Why would NPS exclude the vast majority of harbor seals and their haulout sites li:om the remote camera program - a program ostensibly designed to improve harbor seal observations?

(e)

NPS, at various times during the past five years, has produced at least six different maps highlighting harbor seal haulouts. Which map, according to NPS, is correct?

(11 )

Four-Year Remote Camera Experiment Excludes High Disturbauce Areas. The

remote camera program, throughout the four-year experimental program is directed at three subsites (and only small portions of those subsites). (a)

The remote cameras are not moved to and directed at other sub sites, trails, or areas where NPS Harbor Seal Database records show high incidences of disturbance. Why?

As you are aware, Point Reyes National Seashore did not disclose the existence of this program. We are, therefore, now compelled to submit detailed questions and request information for what, we believe, should have been disclosed some. time ago. We want to express our thanks and appreciation for your response to our requests for maps, photographic data and other information. We recognize that these are difficult issues. We look forward to continuing and improving communication and information sharing with your office: We know that reconciling these issues will serve all of us and our community the long run. Again, we request that responses be expedited. We are very sensitive to the MMC's need to finalize their report. It's essential that this information be available to us - and them - in a timely manner. We thank you for your cooperation and assistance. Sincerely;'

Kevin Lunny

Nancy Lunny

Gicely Muldoon/PORE/NPS

To "Kevin Lunny" , "'Nancy Lunny'"

07/20/201009:33 AM

cc [email protected],gov, [email protected]

bcc Ann Nelson/PORE/NPS Subject Re: NPS 06/28/10 Letter to Fish and [email protected] Dear Kevin and Nancy: First, let me thank you for spending the time to give me a tour of the oyster operation last Wednesday. It was good to meet one on one. It is clear that your passion for and knowledge of the oyster farm runs deep. A few thoughts in response to your letter from this Sunday. I am copying Tim, as the Marine Mammal Commission is referenced, and as we all share a hope for improved communications. David, I'm copying you as well, as your signature block appears at the bottom of the letter signed by Kevin and Nancy. I regret that you find our letter to CDFG so objectionable, it was certainly not intended to be, and I welcome further discussion on this. Although the park was not copied on your proposal, I thought as a matter of courtesy I should cc you on our response. We spoke last week of the complexity of permitting operations within the Estero. I would welcome a way to at least synchronize our approaches and to ensure we all understand where we are in the process. In spite of your assertion, I fully support Tim Ragen's efforts to change the tone of this discussion, respect one another's viewpoints, stand down from independent courses of action, and pursue an adaptive management approach. Defining a collaborative approach among Estero stakeholders seems like a good place to start. We all care deeply about this extraordinary public resource, and share, I firmly believe, a commitment to its health. As I mentioned last Wednesday, a clear path to resolving the future of the Estero is in everybody's interest. My sincere hope is that we can forge a positive working relationship, in spite of any differences we may have about the issues that surround the Estero. We have to start from a place of respecting one another's outlook on this very complex issue, finding those places on which we can agree, and defining how we can work together. Long after the current issues are behind us, and the lawyers and lobbyists have left the discussion, we will still be neighbors. Kevin, I thought you said it eloquently early on in our discussion last Wednesday, when you spoke of well intended people on both sides of this issue trying to do the right thing. I couldn't agree more. To me, this seems like a fundamental basis for a more positive discussion. Sincerely, Cicely

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Cfuoly Muldoon, Sup<>[email protected]

POINf REYES NATIONAL SEASHORE

1 Be,r Valley Road Point ReyO$ Station, CA 94956 ph
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.. Kevin Lunny"

07/17/201006:34 PM

To "Cicely Muldoon" cc "'Nancy Lunny'" Subject NPS 06/28/10 Letterto Fish and Game

Cicely, The NPS letter of June 28 to California Department of Fish and Game was received earlier today. By this letter, you accomplish two things. First, you ratify Don Neubacher's approach to business here at Point Reyes -- needlessly impose delays, drive up costs and maximize conflict. Second, you unilaterally reject the efforts of Tim Ragen and the Marine Mammal Commission to improve the way business has been conducted and to improve relations. Remarkably, you have now positioned NPS to oppose efforts to enhance the native oyster here in Drakes Estero. The errors and distortions contained in the NPS letter will be addressed next week. On Wednesday at the oyster farm, you offered words of cooperation. By this letter, you withdrew them. Deeply saddened, Kevin Lunny

Nancy Lunny

David M. Weiman Agricultural Resources 635 Maryland Ave., NE. Washington, D.C. 20002 (202) 546-5115 (202) 546-4472 fax [email protected]

.. Kevin Lunny" 07/13/201006:30 PM

Ta cc "Cicely Muldaan" , "'David M Weiman'" , "'Nancy Lunny'" , "'Tim Ragen'" bcc Subject Meeting Schedule

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Ben, I would like to reschedule our meeting to discuss OBOe disturbances in Drakes Estero. I am happy to meet with you, but we have recently received new information regarding the oyster boat disturbances. I believe the issues involving the disputed NPS harbor seal disturbance data need to be resolved before we discuss how to move forward with analyzing those data. Thank you, Kevin

Ben Becker/PORE/NPS

To "Kevin Lunny"

07/13/201008:51 PM

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bcc

"'David M Weiman'" .,

[email protected], "Cicely Muldoon" , "'Nancy Lunny'"

Subject Re: Meetin9 Schedule!::l Hi Kevin, I think we should still meet on Wednesday. Our meeting was not to discuss disturbances or how to analyze them. Rather, the meeting was to think about new ideas for measures of mariculture activity that you feel might be more appropriate than the annual DFG harvest metric. So, please consider coming out. The meeting can be as short or long as you like, but I think it is important to move forward and discuss your perspective on these data sets and ways to potentially improve them. You can let me know by email or leave me a message at 415-464-5247. Thanks, -Ben

Ben Becker, Ph.D. Director and Marine Ecologist Pacific Coast Science and Learning Center Point Reyes National Seashore 1 Bear Valley Road Point Reyes Station, CA 94956 tel: 415-464-5247 fax: 415-868-1202 [email protected] http://home.nps.gov/pore/parkmgmtipcslc.htm The Pacific Coast Science and Learning Center is one of 19 Research Learning Centers at National Parks across the country working to increase the effectiveness and communication of research and science through: · Facilitating the use of parks for scientific inquiry · Supporting science-informed decision making · Communicating relevance and providing access to research knowledge · Promoting resource stewardship through partnerships

Ben,

I would like to reschedule our meeting to discuss DBOe disturbances in Drakes Estero, I am happy to meet with you, but we have recently received new information regarding the oyster boat disturbances, I believe the issues involving the disputed NPS harbor seal disturbance data need to be resolved before we discuss how to move forward with analyzing those data,

Thank you,

Kevin

JUL-08-2010

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Special Use Permit t'or Drakes Bay Oyster Company

Dear Secretary Salazar: ( !U11 writing to you on behalf of Kevin and Nancy Lunny ("the Lunnys"), owners of the Drakes Buy Oyster Company ("OBOe"). to request that you enable OBOC [0 continue to occupy and utilize the buildings and lands on the shores of Drakes Estero, located within Point Reyes Natiomll Seashore ("PRNS"), a unit ofihe National Park Service ("NPS").

OBoe is a family business operated by the Lunny family, tourth and fifth generation farmers and long-term Point Reyes residents who have lived at the historic "G" Ranch, overlooking Drakes Estero. Since acquiring the business in 2004, the Lunnys have been operating a sustainable, environmentally-friendly local business that provides jobs for the community and gives visitors to PRNS a valuable cultural and historic experience.

We were encouraged to hear of your recent statement at the Great Outdoors Conterence that DBOC would continue to operate within PRNS. As you acknowledged, the oyster limn has e)(isted in PRNS for many years. In fact, commercial oyster production has taken place within Drakes Estero for over seventy years-since the early 1930s, approximately three decades before Congress established PRNS in 1962. OBOe now produce~ both oysters and clams as part of its operations and is the last operating oyster cannery in the State of California. As background, and as discussed in more detail below, OBOC operates under both State and Federal permits. With respect to the fonner, OBOe cultivates shellfish on the bottomlands in Drakes Estero pursuant to leases from the California Department of Fish and Game; which were renewed for 25 years in 2004, and thus c)(pirc in 2029. As to the latter, OBOe operates under a Reservation of Use and Occupancy ("R.UO") executed in 1972 between NPS and the previous owners of the oyster farm and under several ancillary special USe pennits issued by NPS. The RUO and the other permits expire in 2012; however, the RUO contains a renewal

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dause, which provides tor the i$~Llatlce of a ,pecial usc permit lhat would "nm concurrently Wilh and ... terminale upon expiration of the State water boltom allotments .... " Questions have been raised regarding lhc legal authority ofNPS to issue a special usc penni! that would allow DBOC to continue operating past 2012, given that Drakes Estero was designated "potential wilderness" in 1976, pursuant to the Point Reyes Wilderness Act, Public Law 95-544. Notably though, the designation of Drakes Estt:ro as "potential wilderness" was never meant to preclude the continued operations (If DBOC. As is evident from r<:levant legislative history and environmental reviews, Drakes Estero was designated llS "potential wilderness" rather than wilderness because the understanding that oyster cultivation would continue, in light of California's retained interest in leasing the bottom lands for shellfish cultivation.

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Moreover, and importantly, in October of 2009 Congress expressly authorized the Department of the Interior to issue DBOC a special use peImit to continue its operations past 2012. As this letter describes, and given Congress's recent directive, there are multiple important reasons to issue such a pennit, including the rich history of oyster farming in Drakes Estero and the myriad cultural, recreational; educational and ecological bendits DBOC provides.

I.

RICH HISTORY OF MARICULTURAL OPERATIONS IN DRAKES ESTERO

Oyster farming has enjoyed a long history in Drakes Estero. The Miwok Indians were the original "oyster-farm operators," with their harvesting of native shellfish beginning thousands of years ago. III fact, their ancient oyster middens are still present in the estero. Commercial oyster farming began in the estero in the 19308, with the original allotment recorded in the namtl of David C. Drier on January 18, 1934 for the purpose of growing oysters. I Although several transiers occurred during those early years, for most of its commercial history, the estero was fanned by Johnson's Oyster Company. In 2004, the Lunny tamily purchased the farm frorn'lohnson's Oyster Company and have sought to adopt many ofthe same sustainable practices '~ed by the Miwoks in order to conserve the important natural resources ofthe area. This long history of man cultural operations has been routinely recognized as a valid and important use of Drakes Estero. The legislative history of the Point Reyes National Seashore Act, for example, is replete with references to both the history and legacy of oyster farming and the important benefits it proVides to PRNS. For instance, during congressional hearings on the establishment ofPRNS, former NPS Director Conrad Wirth explained that the "[eJxisting commercial oyster beds and an oyster cannery at Drakes Estero ... should continue under national seashore status because of their public values. The culture of oysters is an interesting and unique indus~ which presents exceptional e~ucat~onal oPf0rtunities for introduc.ing the public, especIally students, to the field of manne bIOlogy." Comments made dunng the Senate hearings See NPS, Environmental Assessment/Initial Study Joint Document, JOhnson Oyster Company, Marin County, Point Reyes National Seashore, at 8 (May 1998). 2 NPS, Conrad L.'Wirth, Director, Report on the Economic Feasibility oflhe Proposed Point Reyes National Se.sho", at 20 (1961), included in the Hearings Before the Subcommittoe on Public Lands of the Committee on

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on Lhe proposed I'RNS legislation echoed this view: '·!.t Ihis proposed legislation provides a balanced use between the public and privaLe interests concerned [because] the oyster and commercial tisheries would be able to continue operation and provide bOLh recreation and ~conomic value to the scushore.") In the early 1970s. when Congress began considering designating wilderness areas within PRNS, the imp(lrtanee of the oyster operations W'ls affirmed. Senator John Tunney, who introduced the PRNS wihlemess legislation, reiterated that "[e]stablished private rights of landowners and leaseholders will continue to be respected and protected, The existing llgriculture and aquaC~llture uses can continue,".j ~imilarly, Reprcsentative John Burton underscored that the legislation's intent was to "preserve the present diverse uses of the Seashore," including the commercial oyster operations in Drakes Estero.) The Department of Interior itself reco[Jlm"udcct that an express wilderness designation would be inappropriate: "Commercial oyster ("annillg operations take plae" in this estuary and the reserved rights by the State on tidelands in this area makc this acreagl3 inconsi5lent with wildemess.,,6 Until vcry recently, NPS consistently agreed with these conclusions and appeared supportivc of the continued use of Drakes Estero for marieultural operations. The RUO itselt: for example, conlains a renewal clause, which providcs that ''[ulpon expiration ofthe reserved term, a special use pennit may be issued It)r the continued occupancy of the property ... ,',7 Additionally, in the Final Environmental Impact Statement prepared by NPS evaluating the potential impacts associated with designating certain PRNS lands as wilderness, NPS discussed the "oyster-farm operation" and noted that while removing the oyster farm might remove human activities trom the estero, there would be a "[oss of some compensating values. Besides its economic benetits to the community, the farm has decided interpretive importance as a popular 'living exhibit,' where visitors have the unique opportunity to observe the operation Interior and Insular Affairs. U.S. Senate, 87th Congress, First Session on $.486, A Bill to Establish The Point Reyes National Seashore in the Slate of California and for Other Purposes (Mar. 28,29, and 3 L 1961). Hearings Before the Subcommittee on Public Lands of the Committee on Interior and Insular Affairs, U.S. Senate, 87th Congress. Fim Session on S.476, A Bill to Establish The Point Reyes National Seashore in the St.te of California and for Olher Purposes at 17 (Mar. 28, 29, and 31, L(1). He.ring. on S.l 093 and S.2472 Before the Subcommittee on Parks and Recreation of the Committee on Interior and InsuLar Affairs, 94th Congo 271 (L 976). I d. at 272·73.

• Lel<.r dated Septemher 8, 1976, from John Kyl, Assistant Secret.ry ofthe Interior, to U.S. Representative James A. Haley, Chainnan, Committee on Interior and Ingular Affairs, House ofR"presentatives, U.S. House Report No. 94-]680,94 U.S. Code and Congressional News 5593. JOC Gr.nt Deed 10 the United Stares, Exh. C, § 11 (Nov. 9. (972). The clause, in fact, only requires that , the special use penn it "run concurrently with and will lenninate upOn the expiration of the State water bottom allotments ... ," Those "State water bottom aJlotments" refer to a renewable lease issued by the California Department of Fish and Game, which has granted DBOe the right to cultivate oysters in Dr-.okes Estero through 2029, California Deportment ofFish & Game Amendment No.2 to Indenture of Lease, M-43S-01 (Dec. 2.2005). Accordingly, lssuancu ofa SUP that would "run conturrentJy with l ' the State water bottom all6tments would be consistem wjth the state authorizations and wouJd allow the oyster farm to continue operating lJ:lrough 2029.

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and to purchase freshly grown oysters. Th.:se are appropriate purpose8 at Point Reyc~, a . I-cu tegory par k ."K rccrcatlonu NPS continued to recognize the value of the oystcr operations in its \ 980 PRNS General Management Plan (still in effect), which includes the following management objectives: "[IJO monitor and improve maricullUnll openltions, in particular the oyster farm operation in Drakes Estero," ,md "Itlo monitor and support productive lan~ uses and activities [including marieultural activities] which ure consistent with historic patkms.'" As reccntly as 1998, NPS conducted an environmental assessment pursuant to the National Environmental POlicy Act ("NEPA") of the potential impacts of improvin!,l and substantially expanding the oyster tarm operutions, Although (he planned expansion did not take place because of funding shortfalls. NPS' support of the project demonstrates the agency's recognition that oyster farm operations are a valid use of PRNS land. w

II.

OBOe IS A BENEFICIAL USE OF PRNS

Recently, some questions have been raised regarding the types of environmental impacts oyster fanning may be having on Drakes Estero. In 2006 on
• See NPS, final Environmental Statement FES 74-18, Proposed Wilderness; Poi" Reyes National Seashore, California, at 56 (Apr. 23. 1974) .

. )

NPS, General Management Plan: Point Reyes Nalional Seashore, at 2-3 (Sept. 1980).

to s,,~. e.g., Leiter from Don Neubacher, Superintendent, PRNS, to Bank of Oakland (Nov. 22, 1996) (explaining the relationship between the oy.t<'r farm and NPS .lId noting that NPS is "genuinely e"cited about the planned changes" to the oyster farm and "pledge[s] to work with the Johnsons and the Bank ofOakl.nd to make the project successful"); see also Thomas Ye.tts, Point Reyes Light, Park Planned Big New Oyster Plant (Aug. 2,2008) (documents obtained by the newspaper indicate that, beginning in 1996, "Point Reye. National Seashore (PRNS) staff developed a plan to renovate the Johnson Oyster Company's rickety buildings and septic system. and proposed new two-slory development"). \I See, e.g., Field Solicitor Opinion Re: Point Reyes Wilderness Act (Feb. 26, 2004) (coneluding that the Wilderness Act, the Point Reyes Wilderness Act, and NPS Management Policies mandate that NPS convert potential

wilderness. such as Drakes Estero. to wilderness statUS "us soon as the non conforming use can be eliminated").

" For clarification, we disagree with NPS' legal interpretation that any law preclude. the agency from allowing OBOe to continue operating past 2012. There i. nO manclate found in any applicable .Iaw or guidance that

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From the outset it should be noted that since purchasing the farm in 2004, the Lunnys have dedicated signiticant time and resources to cleaning up the oyster rann and resolving past violations onaw that had occurred during their predecessor's operations. See. e.g., Peter Jamison, Point Reyes Light, Park Service to Close fii.l'loric Oyster Farm (June 15,2007) (discussing OBOe's cleanup und quoting PRNS spoke~man John Dell'Osso, "Kevin [Lunny] has done a famUli!ic job of cleaning up. Everything we've asked him to do, he's done."). The Lunnys remain committed to continuing those cleanup efforts and ensuring that DBoe is operated in a sustainable, environmentully-frienJly munner. I ' As such, the fomBy-along with their many supporters in western Marin County environmental and agricultural circles-was disheartened by the NPS report, which app~ared 10, among other things, overlook the many beneficial eHeets of oyster culture operations on the environment. IS In order to help resolve the debate regarding the scope of impacts of nBOC and the availability of ~cientilic analysis. the National Academy of Sciences ("NAS") agreed to help clarify the seientitic issues regarding maneultural activities and produced two reports, The tirst report. which was released in May of 2009, ussessed the adequacy of the claimed scientitlc bases for NPS staffs preliminary conclusions in their Drakes Estero reports, and evaluated the

would require NPS to convert "polential wilderness" to wilderness on. particular timelable. The Wilderness Act,

for example, does not use the phrase "potential wiJderncs~~" rnuch less define when Upotential wildemessu must

become actual wildern~ss, if evcr. NPS management policies. director's orders, and ruteren
with respect to a specific timetable for conversion and only p:rovide that, once "non confonning usesu haye ceased, NPS will publish It Federal Register nolice 10 change the designation trom potential wilderness to wilderness, See NPS Reference Maoual1l41 at Appendix II, Wilderness Preserv.lion and Management (1999). There is no

reqUirement, however, mandating that NPS ensure that such operations cease by a certain date, and there has been no environmental review of the impact of removing [he oySler cultiv~tion operation in Drakes Estero.

I~ Examples of non contonning uses that NPS has allowed in other potential wildemess areas include: 1) . operation ot'mulorized boats in potential wild.rness areas of Grand Canyon National Park; ii) public use of Five High Sierra camp" and the O'tnlrlder ski hut in potential wilderness areas of Yosemite Valley; iii) operation by Southern California Edison ofhydrocl
Prior to the Lunny family', ownership, Ihe oyster farm had suffered from a degree of deterioration that led to a number of violations of law, including the Coastal Development Act, and enforcement actions by the California Coastal Commission ("CCC"). The Lunny. are working with the CCC to resolve those violalions and en,ure that DBOC's operalions fully comply with all applicable local, Slale, and federal regulations. Additionally, on incident recently occurred allhe fann in which clam-growing equipment was inadvertently pl.c.ed inlo a Harbor Seal Protection Are •. The Lunnys immediately look steps 10 rectiIY this mistake and .re implementing processes to ensuro that such mistakes do not occur in Ih. fulure. Moreover, many ofNPS' allegations that the oyster farm adversely impacts harbor seals have since been retracted at very recent Marine Mammal Commissiod ("MMC") he.rings. Like Ih. NAS, the MMC has become involved specifically to resolve the debate surrounding the oyster farm's' impact on harbor seals. The MMC bas held a series of panel hearings, and is working on a report that is due out in the near future. . IS The Department of Interior's Inspector General investigated the various versions of the NPS Repon and found that scientific inaccuracies undennined NPS' conclusions regarding the oyster fann's ecological impact on Drakes Estero,

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LAT H AM"WATK INS'"

,IVailable lima spceiliC;llly rel:arding the impact of DBOe's maricultural activities. 16 The second report, which wus released in February of2010, broadly addresses best management practices and pertonnance standards tll enhance the overall bene/its of shellfish mariculture ,md minimize any negative ecological cffecls. '1 . The first NAS report reasonably concluded that "there is a lack of strong scientitic evidence that shellt1sh farming has major adverse ecological effects 011 Drakes Estero at the current (2008-2009) levels of production and under current (2008-2009) operational practices, . including compliance with restrictions to protect oelgrass, seal~, water-birds, and other natural resources." NAS 2009 Report at 6. The report goes on to discuss some of the over-looked benellcial effects that DBOe is having on the estero, including: (0 (he potential that oyster culture in Drakes Fstcrois replacing tbe important "tiltering'capacity and biogeochemical processing that was lost in the mid-19th century and subsequent decades with the overharvest and functional climmation of the native Olympia oystt\r" (id. at 68); (ii) the possible benellcial effects on eelgrass in the area, given that eelgrass has up proximately doubled in Drakes Estero from 1991 to 2007 (ld,); (iii) the positive economic impact for the region-including employment, tax revenuc, and local food production (id. at 64); and (iv) the positive visitor experience, given that DBOe "preserves a piece ol"local and regional culture and history" (id. at

65). As noted above, tbe oyster farm provides significant ecological benefits to Drakes Estero, OBOC's oysters are helping to "restor[e] an historic baseline ecosystem" by acting as a proxy for native oysters. [d. at 22; see also NAS 2010 Report at 13-14. The oysters are also known as "ecosystem engineers" and "foundation species" (NAS 2009 Report at 18) that bolster the ecosystem's resiliencl:' against abnormal events like phytoplankton blooms or sedimentation trom storm water run-off (id. at 22, 23).'8 In addition to the work done by the oysters, the Lunnys themselves are committed to conserving and protecting PRNS, For example, DBOC is the only oyster farm in California to produce 'and hatch its own seeds on site, greatly reducing the risk of introducing contaminants and invasive species. And it employs an environmentally-friendly off-bottom "hanging culture" method, used by less than 5% of U.S. oyster farmers due to the labor-intensive hand harvesting required. The Lunnys are also dedicated to educating others about conservation and the environment. The oyster farm offers free tOUTS to the pUblic to inform them about the history of oyster farming in PRNS, oysters' value as a beneficial source of protein, coastal ecosystems, and the nature and efficacy of organic sustainable farming. Similarly, the oyster fann offers its

I.

See National ACademy of Sciences, National Research Council, Shellfish Moriculture in Drakes Estero, Point Reyes National Seashore, California (2009) ("NAS 2009 Report").

,7

See National Academy of Sciences, Nation.l Research Council, Ecosystem Concepts for Sustainable Bivalve Marieul!u,e (2010) ("NAS 2010 Report").

The second NAS report provides further delailed discussion of the general ecosystem services that bivalves " perform. NAS 2010 Report at 10-1 L In fac~ these ecosystem services are so significant that the report recommends quantifying their economic value, as well as developlng policies to encourage restoration ofbivalvt:!s in more ecoiysU::ms so they can improve and benetlt from these services. See iel.

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t:lcilitics to researchers und participate, in research on native oyslers, t:stuarine biodiversity, and human health protection. For all these reasons, many of PRNS' 2.5 million annual visitors t10ck to OBOC, which curries on th" long-standing tradition of oyster farming in Drakes Estero and remains as the last opt:Tating oy,ter cannery in the State. With irs cullural, recreational, educational and ecological bcnclits, the oyster farm undoubtedly "enhances visitors' experience in [he estero." [d. at 65. I3y contrast, should the oyster fann be shut down, the community would be adversely impacted in significant ways. Not only would PRNS lose the numerous visitors for whom OBOC is a destination, but the oyster farm employees who have speci&lizcd skills would lose their livelihood, and the low-income housing that OBOC provides for their employees would be demolished. This in turn would effect the local ranches, where many of DBOC's employees' family members work. Furthermore, removing the oysters could have an adverse effect on the Drakes Estero ecology, including its water quality. Both NAS reports ultimately at't1rm that there is no ecologicaljustitication to deny OBOC a special use permit. And givcn that Congress has expressly authorized NPS to issue a special use permit, there is no legal justil1calion either. NPS should issue OBOC a special use permit to continue its operations past 2012.'9

III.

NPS AUTHORITY TO ISSUE A SPECIAL USE PERMIT FOR CONTINUED OPERATIONS PAST 2012

In October 01'2009, Congress provided a detinitive answer to the legal question of whether NPS has the authority to issue a special use permit to OBOC to continue operating past· 2012. The answer was a resounding yes. Specifically, Congress directed that: Prior to the expiration on November 30, 2012 of the Drake's Bay Oyster Company's Reservation of Use and Occupancy and associated special use permit ('existing authorization') within Drake's E~tero at Point Reycs National Seashore, notwithst
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-LATHAM"WATKI N 5'"

into consid"ration recommendations ufthe National Academy of Sciences Report pertaining toshelltish marieulturc in Point Reyes National Seashore before moJilying any terms and conditions of the extended authorizatioll. Department ofthc Interior, Environment, and Related Agencies Appropriations Act, 2010, Pub. L. No. 111-&8 § 124 (2009) (emphasis added). As such, now that the second NAS report has been issued, DBOe respectfully requests that NPS provide a proposed special use pem1it to OBOe incorporating the same terms and conditions under which DBOe clltrently operates, including an appropriate annual fee. Thank you very much tor your attention to this matter. We understand that will Shafroth, Deputy Assistant Secretary tor Fish, Wildlife and Parks, recently visited OBoe on February 4, 20 I O. The Lunnys would be happy to host you, Secretary Salazar, and any oth~r interested Department of Interior officials on a tour ofthe oyster farm, and/or provide any follow-up information requested. We look forward to meeting with you and your staff to discuss this mlltter in further detail, and will be in touch to set this up. If you have any questions or would like additional information, please do not hesitate to reach me at (415) 395-8136. Best regards,

/<,j»J~;r

/\I.[?

Karl S, Lytz I ofLATI-IAM & WATKINS LLP ce:

The Honorable Dianne Feinstein Will Shafroth, Deputy Assistant Secretary for Fish, Wildlife and Parks Jonathan Jarvis, Director, National Park Service George Turnbull, Acting Regional Director, Pacific West Region, National Park Service Cicely Muldoon, Superintendent, Poinl Reyes National Seashore

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Drakes Bay Oyster Company 17171 Sir francis Drake Boulevard Inverness. CA <.J4
JLdy 1,2010 Dear Secretary Salw.ar, We were heartened and gratHied to hear your recent statement at the Great Outdoors Conference about our family being able to continue to operate the Drakes Bay Oyster Farm. We can relate to your story about growing upon a ranch, working the tields, tending cattle, and believing in the stewardship and conservation values that have been passed on by American tiumers. We feellhe same way. When Kevin was growing up on a ranch overlooking Drakes Estero, the oY81.:r limn was a fixture in the West Marin and Point Reyes Station communities. As an animal science major in college, Kevin took a course in aquaculture. Years later, our tamily was privileged to acquire the oyster farm. The oyster tarm is compatible with our commitment to practicing sustainable agriculture. Fot example, we were the tirst Point Reyes National Seashore ranch to raise certified grass fed and organic beet: and our land management practices are certified by Salmon Sate. We have poured our time, money and hearts into turning the oyster farm around, correcting at great expense a nwnber of environmental problems that had developed during the years prior to our involvement. Working with others in tbe field and the California Department of Fish and Game, we have developed new methods tor raising spat (young oysters) at the facility to reduce the likelihood of harmful nonnative species infiltrating Drakes Estero. We've also donated oyster shells to aid in restoration of San Francisco Bay. This year's appropriation bill for the Department of the Interior states that you are authorized to extend our use of the shoreside facHities needed to support the offshore cultivation of shellfish, which is done pursuant to leases with the California Department of Fish and Game that expire in 2029. People who value mariculture are rallying around the oyster rami in support of realizing the "Drakes Estero Mariculture Interpretive Center" suggested in National Research COWlcil study of the impllCt of our farm on the Estero. Your extending our lease is pivotal to making this vision a reality. You are in our thoughts and have our heartfelt sympathy as you deal with the tragic environmental . disaster in the Gulf of Mexico. While we would like to meet with you personally to discuss the future of the oyster farm, we understand that may not be realistic at this moment. In the alternatiVe, our attorneys at Latham & Watkins LLP and we would appreciate an early opportunity to sit down with a senior member of your staff to discuss the future of the oyster farm in Drakes Estero.

07/08/2010 THU 12.37 [TX/RX NO 8599) ~002

nKevin Lunny"



04/02/201012:30 MST

To: cc: .. . . . "'Cassidy Teufel'" Subject: RE: DraKes Estero Seal Protection Areas

Thank you for the reply. I was hoping to work with a NPS GIS person. but we will hire a private GIS consultant to help us with this. We are planning to do some survey work next week. Perhaps the same people can help us with this work. I certainly understand that you would not want to make any changes at this point. I was really making the point that we still need to have access past these areas. I know that the eee created them knowing that we would still operate around them - there may be no adjustment required at all. I agree that we should get all of the information together first and then take a look. I will contact you when we have the GIS work completed. Thank you, Kevin -----Original Message----From: [email protected] [mailto:[email protected]] Sent: Friday, April 02, 2010 11:26 AM To: Kevin Lunny ec: Sarah [email protected]; John A Dell'[email protected]; [email protected]; David [email protected]; George [email protected] Subject: Re: Drakes Estero Seal Protection Areas Hi Kevin, Thanks for your inquiry. Neither Sarah nor I are able to assist you with any changes to the harbor seal protection areas. Any amendments will have to be discussed with the California Coastal Commission and NPS representatives out of the regional office. Any changes prior to the final report from the Marine Mammal Commission would of course be premature. As for GIS assistance, I do think it is important for you to have the most accurate information possible. I am not comfortable providing this support. However, I can consult with the regional office to see what help we can provide and when. Lastly, I strongly encourage you to seek professional assistance from a GIS consultant on these matters. I recognize that the boundaries that you need to be aware of while in the field are not easy to recognize. I think your best option is to use GPS units with all relevant data layers loaded in so that your staff can literally see on the screen where they are in relation to your lease boundary, harbor seal protection zones, etc. A GIS consultant can help you set something like this up, and we would be able to assist with providing some of the data layers. Best regards, Dave David Press Ecologist / Data Manager

San Francisco Area Network Inventory and Monitoring Program 415-331-0168 415-331-5530 (FAX)

1---------+----------------------------> I I "Kevin Lunny" I 1 1 1 1 1 1 04/01/2010 08:01 1 1 1 1 1 MST 1 1---------+---------------------------->

>-----------------------------------------------------------------------------------------------------------------------------1 1

To:

,

cc: Subject:

Drakes Estero Seal Protection Areas

>-----~-------------------------------------------------------------~------­

---------------------------------------------------1

Good morning Sarah and Dave,

I think we have figured out how to get the prohibited, areas to show up on our GPS screens. As we discussed, this would offer another level o~. security - the boat operators would "know" if they're getting close to a protected area. I have attached a map showing the two prohibited areas. In that map, I have given each angle point a number. Would you please provide us with the coordinates for each of these points? We don't have the capability of determining the coordinates. I have a couple of questions I observations:

1. Line 2-3 should be placed so that the channel is outside the protection area so that oyster boats may use the channel. 2. Line 8-9-10 should be placed so that the channel is outside the protection area so that oyster boats may use the channel. 3. Line 13-14 should be directly on top of the southernmost aquaculture lease line. 4. Move point 4 north east, towards point 5, enough so that the channel from Bull Point to the main channel can be used by oyster boats. Is this something you could help us with? Thank you, Kevin

[attachment "20100401 Prohibited Area Coordinate Request.pdf" deleted by Dave Press/GOGA/NPS]

Sarah Allen/PORE/NPS

To "Kevin Lunny"

04102/201010:57 AM

ce "'Diane Windham'" , John_A_Dell'[email protected], "'Kirsten Ramey'" , [email protected], '''Tim bee Sarah Allen/PORE/NPS Subject HE: Drakes Estero Work Group~

Hi Kevin: Yes, small is good - I also think that the Coastal Commission might want to be involved. Thanks Sarah Sarah G. Allen, PhD Senior Science Advisor Point Reyes National Seashore Point Reyes Station, CA 94956

415-464-5187

"Kevin Lunny" "Kevin Lunny"



04/02/2010 09:48 AM

To ee "'Diane Windham'" , "'Kirsten Ramey'" , "'Tim Ragen'" , , Subject RE: Drakes Estero Work Group

Sarah, No problem - I'm happy to help. These are the same agencies that were involved to create the 1992 seal protection protocols. It seems reasonable to include these same agencies to improve upon the management practices. It· also seems as though the work group should be kept as small as possible for a number of reasons.

I look forward to working with Natalie as well. Thank you, Kevin -----Original Message----From: Sarah [email protected] [mailto:Sarah [email protected]] Sent: Thursday, April 01, 2010 4:46 PM To: Kevin Lunny Cc: 'Diane Windham'i 'Kirsten Ramey' i 'Tim Ragen' i [email protected] .. goVj John_A_Dell' [email protected]·s.gov

Subject: Re: Drakes Estero Work Group Hi kevin: I am pleased to see that you have pulled these other agencies into the working group. For the NPS representative, though, Natalie Gates is likely the better representative. She is the new Chief of Natural Resources and handles all of the natural resource management issues. You can be assured, though I that I will continue to be involved and advise on harbor seal biology. Thanks for helping this move forward. Sarah Sarah G. Allen, PhD Senior Science Advisor Point Reyes National Seashore Point Reyes Station, CA 94956 415-464-5187

flKevin Lunny" 04/01/2010 08,46 AM

To , "'Diane Windham'lI , tt I Kirsten Ramey I " cc " , Tim Ragen I n Subject Drakes Estero Work Group

Hi Sarah, I spoke with Diane Windham about the small work group that We agreed upon during the Marine Mammal Commission meeting. Diane has agreed to work with the group "as the NOAA contact. Kirsteh Ramey has agreed to represent CDFG. I think that we (NPS and DEaF) can make some more progress before engaging the larger group. We can work together to plan how to structure the larger group meetings. Tim Ragen has also offered his assistance if you think it would be helpful. Thank you! Kevin

(See attached file: Diane_Windham.vcf) (See attached file: Kirsten Ramey.vcf)

.. Kevin Lunny" 04/02/201009:48 AM

To eC "'Diane Windham'" , "'Kirsten Ramey'" , "Tim Ragen'" , , bce Subject RE: Drakes Estero Work Group

History:

~ This message has b~~~ii=plied to.

Sarah, No problem - l!m happy to help. These are the same agencies that were involved to create the 1992 seal protection protocols. It seems reasonable to include these same agencies to improve upon the management practices. It also seems as though the work group should be kept as small as possible for a number of reasons. I

look forward to working with Natalie as well.

Thank you, Kevin -----original Message----From: Sarah [email protected] [mailto:Sarah [email protected]] Sent: Thursday, April 01, 2010 4:46 PM To: Kevin Lunny Cc: rDiane Windham! j (Kirsten Ramey! j 'Tim Ragen!;- [email protected] John A [email protected] Subject: Re: Drakes Estero Work' Group Hi kevin: I am pleased to se~ that you have pulled these other agencies into the working group. For the NPS representative, though, Natalie Gates is likely the better representative. She is the new Chief of Natural Resources and handles all of t-he natural resource management issues. You can be assured, though, that I will continue to be involved and advise on harbor seal biology.

Thanks for helping this move forward.

Sarah Sarah G. Allen, phD Senior Science Advisor Point Reyes National Seashore Point Reyes Station, CA 94956 415-464-5187

((Kevin Lunnyl1

To

,

04/01/2DIO 08:46 AM

v,Jindham'

n

IIIDiane ,

II I Kirs ten Ramey I jj

11 1

Tim Ragen

I

u



Drakes Estero Work Group

cc

Subject

Hi Sarah l I spoke with Diane Windham about the small work group that we agreed upon during the Marine Mammal Commission meeting. Diane has agreed to work with the group as the NOAA contact. Kirsten Ramey has agreed to represent CDFG. I think that we (NPS and DEOF) can make some more progress before engaging the larger group. We can work together to plan how to structure the larger group meetings. Tim Ragen has also offered his assistance if you think i t would be helpful. Thank you,

Kevin

(See attached file: Diane_Windham. vct) (See attached file: Kirsten Ramey.vcf)

"Kevin Lunny"



04/01/201008:46 AM

To , "'Diane Windham'" , "'Kirsten Ramey'" cc "'Tim Ragen'"

bee Subject Drakes Estero Work Group History:

~ This message has beeri',repl.ied to,

Hi Sarah, 'I spoke with Diane Windham about the small work group that we agreed upon during the Marine Mammal Commission meeting. Diane has agreed to work with the group as the NOAA contact. Kirsten Ramey has agreed to represent CDFG. I think that we (NPS and DBOF) can make some more progress before engaging the larger group. We can work together to plan how to structure the larger group meetings. Tim Ragen has also offered his . assistance if you think it would be helpful. Thank you, Kevin

Diane_Windham. vcf Kirsten Ramey. vcf

.. Kevin Lunny"



04/01/201008:01 AM

To , cc bcc Subject Drakes Estero Seal Protection Areas

History:

Good morning Sarah and Dave, I think we have figured out how to get the prohibited areas to show up on our GPS screens. As we discussed, this would offer another level of security - the boat operators would "know" if they're getting close to a protected area. I have attached a map showing the two prohibited areas. In that map, I have given each angle point a number. Would you please provide us with the coordinates for each ofthese points? We don't have the capability of determining the coordinates. I have a c;:ouple of questions / observations: 1. 2. 3. 4.

Line 2-3 should be placed so that the channel is outside the protection area so that oyster boats may use the channel'. Line 8-9-10 should be placed so that the channel is outside the protection area so that oyster boats may use the channel. Line 13-14 should be directly on top of the southernmost aquaculture lease line. Move point 4 north east, towards point 5, enough so that the channel from Bull Point to the main channel can be used by oyster boats.

Is this something you could help us with? Thank you, Kevin :::;\'; i;;.;'1 t.:::.J,!

.. _., 20100401 Prohibited ,6,reo3 Coordinate Reque:~t. pdf

o

D

I

D

o

Aquaculture Material 2005 Aquaculture Material 2007

I Aquaculture Material 2008 Seal Protection Zone Aquaculture lease

[[Z] Eelgrass Propeller Damage Eelgrass Cover

N

I~~~~J Sparse _Dense

o 250 500 1,000 1,500 2,000 -;,""" ....=:;MM ...c:;,;;.. .............c====:::1_____ Meters

.. Kevin Lunnt'

To "John A Dell'Osso" cc bcc

03/29/2010 01 :59 PM

Subject FW: "A Growing Relationship: Parks and Aquaculture"

I forgot to copy Sarah ...

-----Original Message----From: Kevin Lunny [mailto:[email protected]] Sent: Monday, March 29, 2010 1:56 PM To: John A Dell'Osso (John_A_Dell'[email protected]) Subject: FW: IIA Growing Relationship: Parks "and Aquaculture ll John, Are you aware of this webinar? I have registered and will be participating. will anyone from PRNS be joining? Kevin -----Original Message----From: Laura Hoberecht [mailto:[email protected]] Sent: Friday, March 26, 2010 5:57 PM To: [email protected] Cc: T Diane Windham . Subject: I1A Growing Relationship: Parks and Aquaculture ll

Hi Robin, curious if PCSGA is involved with this event? http://WWW2.gotomeeting.com/register/697859435

Your input is appreciated! Have a great weekend,

Laura ><> ><>

><>

><>

><>

><>

><>

><>

Laura Hoberecht, PhD Fishery Biologist Habitat Conservation Division National Marine Fisheries Service 777 Sonoma Ave, Rm 325 Santa Rosa, CA 95404 phone: 707-575-6056 fax: 707-578-3435 email: [email protected]

><>

><>

><>

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.. Kevin Lunny"



To cc bcc

03/24/2010 10:04 AM

Subject RE: FW: Kayakers are still coming to the farm

Thank you. -----Original Message-----

From: [email protected] [mailto:[email protected] Sent: Wednesday, March 24, 2010 9:49 AM

To: Kevin Lunny Cc: [email protected]·90v Subject: Re: FW: Kayakers are still coming to the farm Hi Kevin: I am passing along your email to David Schifsky who is the new Chief Ranger and he Can address your questions. He is the person you can contact in the future about any of these sorts of questions. Thanks for bringing this to our attention. .

Best regards, sarah

Sarah G. Allen, PhD

Senior Science Advisor Point Reyes· National Seashore

Point Reyes Station, CA 415-464-5187

94956

llKevin Lunnyn

03/23/2010 03:16 PM

TO



cc

Ginny Cummings' " II I

Subject

FW: Kayakers are still coming to the farm

Hi Sarah,

We are bften telling people with kayaks during pupping season that they are not allowed in Drakes Estero during this season. This situation (below) is common: didn't know about the closure and didn't see the sign. We don't mind telling people about the closure, but occasionally they make it into the estero before we spot them. Do you think that a bigger sign at the launching site would be helpful? Maybe even a rope across the opening from the parking lot to the water1s edge as an extra reminder? My sister Ginny and my daughter Brigid are willing to keep up the watch, but it is sometime hard to deliver the bad news to a visitor that has their heart set on a kayak trip into the estero. Kevin From: Ginny Cummings [mailto:[email protected] Sent: Tuesday, March 23, 2010 12:46 PM To: 'Kevin Lunny I Subject: Kiyakers are still coming to the farm



Hey Kev: Brig and I just went out to inform another couple of kayakers who traveled from Trinity to kayak today. and they shared that they saw no wh.ere on the NPS website the closure dates. The signage here is pretty poor and these two guys did not even see .it until we pointed it out. What do you think. should I call someone at headquarters and sugg~st better, more obvious si"gIlage or let these occurrences happen? The only sign is a page-size note indicating closure dates and cites the federal law and that a fine will be levied .. what I s your thought? It I S tli€":: unfortunate visitor I feel badly about . Ginny

Sarah Allen/PORE/NPS

To "Kevin Lunny"

03/24/2010 09:48 AM

cc David Schifsky/PORE/[email protected] bcc Sarah Allen/PORE/NPS Subject Re: FW: Kayakers are still coming to the farm/ill

Hi Kevin:

I am passing along your email to David Schifsky who is the new Chief Ranger and he can address your questions. He is the person you can contact in the future about any of these sorts of questions. Thanks for bringing this to our attention. Best regards, Sarah Sarah G. Allen, PhD Senior Science Advisor Point Reyes National Seashore Point Reyes Station, CA 94956

415-464-5187 "Kevin Lunny" "Kevin Lunny" 03/23/201003:16 PM

To cc "'Ginny Cummings'" Subject FW: Kayakers are still coming to the farm

Hi Sarah, We are often telling people with kayaks during pupping season that they are not allowed in Drakes Estero during this season. This situation (below) is common: didn't know about the closure and didn't see the sign. We don't mind telling people about the closure, but occasionally they make it into the estero before we spot them. Do you think that a bigger sign at the launching site would be helpful? Maybe even a rope across the opening from the parking lot to the water's edge as an extra reminder? My sister Ginny and my daughter Brigid are willing to keep up the watch, but it is sometime hard to deliver the bad news to a visitor that has their heart set on a kayak trip into the estero. Kevin

From: Ginny Cummings [mailto:[email protected]]

Sent: Tuesday, March 23, 2010 12:46 PM To: 'Kevin Lunny' Subject: Kiyakers are still coming to the farm

Hey Kev: Brig and I just went out to inform another couple of kayakers who traveled from Trinity to kayak today ... and they shared that they saw no where on the NPS website the closure dates. The signage here is pretty poor and these two guys did not even see it until we pointed it out. What do you think ... should I call someone at headquarters and suggest better, more obvious signage or let these occurrences happen? The only sign is a page-size note indicating closure dates and cites the federal law and that a fine will be levied ....what's your thought? It's the unfortunate visitor I feel badly about. Ginny

.. Kevin Lunny"
m>

03/23/201003:16 PM

To cc '''Ginny Cummings'" bcc Subject FW: Kayakers are still coming to the farm

History:

7' This message. has b~erireplie"d t~ ..

Hi Sarah, We are often telling people with kayaks during pupping season that they are not allowed in Drakes Estero during this season. This situation (below) is common: didn't know about the closure and didn't see the sign. We don't mind telling people about the closure, but occasionally they make it into the estero before we spot them. Do you think that a bigger sign at the launching site would be helpful? Maybe even a rope across the opening from the parking lot to the water's edge as an extra reminder? My sister Ginny and my daughter Brigid are willing to keep up the watch, but it is sometime hard to deliver the bad news to a visitor that has their heart set on a kayak trip into the estero. Kevin

From: Ginny Cummings [mailto:[email protected]] Sent: Tuesday, March 23,2010 12:46 PM To: 'Kevin Lunny' Subject: Kiyakers are still coming to the farm Hey Kev: Brig and I just went out to inform another couple of kayakers who traveled from Trinity to kayak today" .and they shared that they saw no where on the NPS website the closure dates. The signage here is pretty poor and these two guys did not even see it until we pointed it out. What do you think ... should I call someone at headquarters and suggest better, more obvious sign age or let these occurrences happen? The only sign is a page-size note indicating closure dates and cites the federal law and that a fine will be levied .... what's your thought? It's the unfortunate visitor I feel badly about. Ginny

.. Kevin Lunny" 03/01/2010 11 :02 AM

To cc bcc Subject RE: Meeting

Your office is fine.

Where exactly are you located?

Kevin -----Original Message----From: [email protected] [mailto:[email protected]] Sent: Monday, March 01, 2010 8:36 AM To: Kevin Lunny subject: RE: Meeting Hi:

My office is fine if that is not too much driving for you. I gladlycan meet- you part way at Priscilla I s if tha.t is easier. My cellphone is (b) (6) . sarah sarah G. Allen, PhD Senior science Advisor point Reyes National. Seashore Point Reyes Station, CA 94-956 415-464-5187

lIKevin Lun~yn

To

02/28/2010 11:30 AM

cc subject RE: Meeting

Sarah, Thank you for making the time - we can keep it short. Lunch on Monday is perfect. Where should we meet? 11m happy to come to your office if it is·

easier for you. Kevin -----Original Message----From: Sarah [email protected] [mailto:Sarah [email protected]] Sent: Friday, February 26, 2010 9:48 AMTo: Kevin Lunny Subject: RE: Meeting Hi Kevin: I just am getting to my email now and so am sorry not to respond sooner. I am here all day today but likely will leave before 4PM because I am coming back tomorrow. If you would like to come in today, we can sit down for a few minutes. Saturday/we are giving the class/ I will forward the agenda to you for your interest. Monday is taken up with many meetings, although we could talk over lunch at @ 12:00. I have a meting at 1PM. Would that work? I appreciate your persistence.

Here is my cellphone if you wish to connect sooner (b) (6)

)

Best regards / Sarah Sarah G. Allen, PhD Senior Science Advisor Point "Reyes National Seashore Point Reyes Station, CA 94956 415-464-5187

"Kevin Lunny"



02/25/2010 06:44 PM

To cc Subject

RE: Meeting

Sarah, I would really like to meet with you, even if only for a few minutes, either tomorrow or Monday. I would like to call Tim Ragen on Monday to tell him that you and I have already had our first meeting. There is no agenda necessary for this first preliminary meeting. I would just like to touch

base with you.

To save time,

I am happy to stop by your office.

I can meet hp.fore lO:OOAM tomorrow (Friday) or anytime before 1:00PM or after 2,30PM on Monday. Thank you, Kevin

Home, (b) (6) Office, 662-9848 Farm, 669-1149 -----Original Message----From, [email protected] [mailto;[email protected]] Sent, Thursday, February 25, 2010 3,25 PM To: Kevin Lunny Subject' RE; Meeting Hi: I am not sure monday would work either because I have a couple of meetings that will likely take alot of time. Wed and thurs I am gone most of the days but friday in the morning might work.

How does that work with your schedule? After that I will be away for a couple of weeks. What would you like to discuss? Perhaps we can do so on the phone? sarah

Sarah G. Allen, PhD Senior Science Advisor Point Reyes National Seashore point Reyes Station, CA 94956 415-464-5187

.. Kevin Lunny"
m> 02/28/2010 11 :30 AM

To cc bcc Subject RE: Meeting

;p This mess?ge has been replied Jo.

Rii3i6iy: .

Sarah, Thank you for making the time - we can keep it short. Lunch on Monday is perfect. Where should we meet? 11m happy to come to your office if it is easi~r for you. Kevin -----Original Message----From: Sarah [email protected] [mailto:[email protected]] Sent: Friday, February 26, 2010 9:48 AM To: Kevin Lunny Subject: RE: Meeting Hi Kevin: I just am getting to my email now and so am sorry not to respond sooner. I am here ,all day today but likely will leave before 4PM because I am coming back tomorrow. If you would like to come in today, we can sit down for a few minutes. saturday,we are giving the class, I will forward the agenda to you for your interest. Monday is taken up with many meetings, although we could talk over lunch at @ 12:00. I have a meting at 1PM. Would that work? I appreciate your persistence. Here is my cellphone if you wish to connect sooner ((b) (6) Best regards

)

I

Sarah Sarah G. Allen, PhD senior Science Advisor Point Reyes National Seashore point Reyes Station, CA 94956 415-464-5187

IIKevin Lunnyn

To

02/25/2010 06:44 PM

cc Subject RE: Meeting

'I would really like to meet with you,

even if only for a few minutes, either tomorrow or Monday. I would like to call Tim Ragen on Monday to tell him that you and I have already had our first meeting. There is no agenda necessary for this first preliminary meeting. I would just like to touch base with you. To save time, I am happy to stop by your office. I can meet before 10:00AM tomorrow (Friday) or anytime before 1:00PM or after 2:30PM on Monday. Thank you,

Kevin Home: (b) (6) Office: 662-9848 Farm: 669-1149

-----Original Message----From: [email protected] [mailto: [email protected] Sent: Thursday, February 25, 2010 3:25 PM To: Kevin Lunny Subject: RE: Meeting Hi:

I am not sure monday would work either because I have a couple of meetings that will likely take alot of time. Wed and thurs I am gone most of the days but friday in the morning might work. How does that work with your schedule? After that I will be away for a couple of weeks. What would you like to discuss? Perhaps we can do so on the phone? Sarah Sarah G. Allen, PhD Senior Science Advisor point Reyes National Seashore Point Reyes Station, CA 94956 415-464-5187

"Nancy Lunny"
m>

02/25/2010 06:09 PM

To ee bee Subject Seal observer training

Good evening, Sarah, I am very much looking forward to being a part of the volunteer seal observer training program. You had mentioned that there is a training planned for this coming Saturday, February 27th. Due to a previous committment, I am unable to attend this training. I would very much appreciate it if you would advise me of the next opportunity for training.

My best, Nancy Lunny

Sarah Allen/PORE/NPS

To "Kevin Lunny"

02/25/2010 12:22 PM

cc bcc Sarah Allen/PORE/NPS Subject Re: Meeting~

Hi Kevin: Thank you very much for the offer to meet I would like to meet next week instead on monday pm or tuesday, because I have a lot to do to prepare for the training this saturday. Would either of those days work for your schedule? I am looking forward to moving forward with you! Sarah Sarah G. Allen, PhD Senior Science Advisor Point Reyes Nation.al Seashore Point Reyes Station, CA 94956

415-464-5187 "Kevin Lunny" "Kevin Lunny" 02/25/2010 11 :45 AM

To cc Subject Meeting

Hi Sarah, Do you have any time today for a half hour chat? Over lunch or coffee? If today can't work, I also have some times that could work tomorrow. Thank you, Kevin

.. Kevin Lunny" 01/30/201010:09AM

To "Don Neubacher" cc bcc Subject Drakes Bay Oyster Farm Driveway

History:

~ This message has been replied to and forwarded.

Don,

Normally you would have the oyster farm road graded immediately before a dignitary visits the farm. We request that you not grade the road until after Mr. Shafroth's visit on Thursday, February 4th. Thank you, Kevin and Nancy Lunny

.. Kevin Lunny"



12/29/200903:30 PM

To "Don Neubacher" cc "'Kirsten Ramey'" , '''Sonke . Mastmp'" , '''Jon Fischer'" , "Cassidy Teufel" bcc Subject Drakes Estero Shellfish Leases

History:

""!> This message has been forwarded.

~

2{$1229 D80Cto Don Neubacher riO clams.pdf

Drakes Bay Oyster Company 17171 Sir Francis Drake Boulevard Inverness, CA 94937 (415) 669-1149 [email protected] [email protected]

December 29, 2009

Don Neubacher Superintendent Point Reyes National Seashore One Bear Valley Road Point Reyes Station, CA 94956 Dear Mr. Neubacher. We are in receipt of your letter dated 12/23/09. The characterization that cultivating clams on lease M-438-01 is a change that requires review is without merit. You have personal knowledge that the California Fish and Game Commission (FGC) approved the cultivation of clams on lease M-438-01 in 1993. The FGC recently reaffirmed this when it corrected a typographical error incorrectly indicating the clams were to be cultivated on lease M-438-02, which has never been the case. Your letter incorrectly states that the FGC granted permission to cultivate clams at its 12110/09 hearing. The agenda and staff report are unambiguous that this approval was granted 16 years ago. As the cultivation of clams on lease M-438-01 has been authorized since 1993, no further approvals from NPS to cultivate clams are necessary. Please direct any questions you may have about this to the FGC. To avoid further unnecessary confusion, the SUP should be conformed to reflect the corrected lease. Sincerely,

Kevin Lunny

cc:

Nancy Lunny

California Department ofFish and Game Fish and Game Commission California Coastal Commission

United States Department of the Interior NATIONAL PARK SERVICE Point Reyes National Seashore Point Reyes, California 94956

IN REPLY REFER TO:

Ll425 02-106 December 22, 2009

Mr. Kevin Lunny Drakes Bay Oyster Company 17171 Sir Francis Drake Inverness, CA 9493.7 Dear Kevin: We want to acknowledge receipt of your development request and site drawing on October 15, 2009. We subsequently received a copy of revised versions, along with development costs and a project description, submitted to the California Coastal Commission on October 30, 2009. Article 6 of your Special Use Permit sets forth requirements regarding requests for Improvements and Alterations. Improvements and Alterations require prior written approval of the National Park Service.' As a prerequisite, the Permittee is to submit design plans and other relevant data to the National Park Service. Accordingly, we will consider your October IS and October 30 correspondence as a request under Article 6 of your Special Use Permit. We will be reviewing your requests through our standard environmental compliance process as required by the National Environmental Policy Act. This project review process has already been initiated and should be completed in 30-45 days. The objective of this initial review is to determine what level of environmental coml?liance is required for the proposed project and whether an Environmental Assessment or Environmental Impact Statement will be needed. We will notify you once this initial process is complete. Regardless of the compliance pathway necessary, it is likely that more information on the project will be requested of you. In addition, we acknowledge you have received permission from the California Fish and Game Commission to place Manila clams in Lease M-438-01. As stated in your permit (Article 4bvi),

you may not implement any modifications to CDFG leases without prior written approval from the National Park Service. Article 4bvi states: Permittee will not introduce species ofshellfish beyond those described in the existing leases from the CDFG. Permittee may seek to conform and/or modifY these leases with the CDFG. Any modifications approved by CDFG will be considered by Permitter on a case-by-case basis, and Permittee may not implement any such modifications without the prior written approval of the Permitter.

At this time, we would like to request additional information on Manila clam production. Please provide a proposal that includes location and size of growing area, approximate number of bags and clams, seed origin, history of production, and other details on the production of Manila clams. With this information, we will use our standard process to meet our environmental compliance responsibilities. Thanks for your attention to these matters. Sincerely,

Don L. Neubacher Superintendent

.. Kevin Lunny"



12/21/200907:17 PM

To "George Turnbull" , "Don Neubacher" . "Gregg Langlois" . "Cassidy Teufel" cc bcc Subject Drakes Estero Manila Clams

History:

% This message has been forwarded,

Attached is a response to the

r~

eee enforcement action letter dated December 7, 2009.

2llGS1221 DBOe!o CCC Ie Clam violation.pdf

Drakes Bay Oyster Company 17171 Sir Francis Drake Boulevard Inverness, CA 94937 (415) 669-1149 [email protected] [email protected] December 21, 2009

Jo Ginsberg California Coastal Commission 45 Fremont St., Suite 2000 San Francisco, CA94105-2219 Re: CCC-07-CD-ll Drakes Bay Oyster Company Dear Ms. Ginsberg, Manila clams have been cultured on M-438-01 since 1993 when Johnson Oyster Company (JOC) asked that they be added to M-438-0l as a cultured species, and the California Fish and Game Commission (FGC) approved the request. Inadvertently, however, through a FGC clerical error, the FGC added the Manila clams to the farm's other lease (M-438-02) that was created by the FGC in 1979 for the purpose of culturing native rock scallops. Pursuant to the actual FGC approval, JOC clam culture began on M438-01. Since 2007, Drakes Bay Oyster Company (DBOC) and the California Department ofFish and Game (CDFG) have been working toward correcting the error. DBOC brought the FGC clerical error to the attention of the California Coastal Commission (CCC) in its Coastal Development Permit (CDP) application 2-06-003, on August 20, 2008. In so doing, DBOC made the CCC aware that the FGC error was to be corrected. The CCC 2007 Consent Cease and Desist Order CCC-07-CD-ll (CDO) reflected the clerical error. The approved cultured species included in the CDO was taken from the FGC lease language that contained the 1993 FGC error. A correction to both the FGC le.ase and the CCC Consent CDO was necessary, so that the clams could stay on M-438, 01 where they had been officially permitted. Prior to the correction by the FGC, OBOC received an enforcement letter from CCC dated September 16, 2009. The letter stated that DBOC was out of compliance with the Consent CDO because Manila clams were located outside of M-438-02. DBOC contacted CDFG about this matter. Devin Bartley, State Aquaculture Coordinator, told

DBOC that the matter was submitted to the FGC for the correction, and would be placed on an upcoming agenda. On October 2, 2009,DBOC submitted a letter to CCC noting that the FGC would be acting on the issue soon and that CDFG would be in contact with CCC regarding the clam location. On October IS, 2009, I asked Cassidy Teufel and Allison Dettmer if the clams could .remain where they had always been, on M-438-01, until the upcoming FGC meeting that would address the clerical error issue. At the time, Allison and Cassidy recommended that DBOC move the clams for two reasons: first, Peter Douglas was considering an enforcement action against DBOC because of the clam location and second, the Coastal Commissioners were not likely to approve a CDP if DBOC was out of compliance with clams. Given this CCC position, DBOC agreed to move the clams from M-438-01 to M438-02. In response to the CCC directive, DBOC initiated a process to move the clams. Step one was to contact the CDFG to obtain coordinates for the new location. Even though M438-02 was an eligible area to grow shellfish, as a practical matter, DBOC had not used' it previously, thus were unfamiliar with it. CDFG provided the latitude/longitude coordinates in "minutes/seconds." Step two; convert the coordinates to decimals so they could be entered into a hand-held GPS; In making these calculations, an error was made. On October 29, 2009, DBOC notified the agencies that the clams had been moved to M438-02 as directed by CCc. On November 25, 2009, CDFG provided the December 9-10 FGC meeting agenda to the CCC. On the Consent Calendar for that meeting, included as item IS, was the correction of the 1993 Manila clam error. On November 30, 2009, I receive a copy of an email from CDFG to NPS scientist Ben Becker with the coordinates ofM-438-02. Various other agencies were copied, as was DBOC. On December 03, 2009, I sent an email to Ben Becker and said: "DFG forwarded me a copy of the email of November 30, 2009. Apparently, you have questions about our lease with the State. Would you please detail your concerns to us? Why didn't you ask us, or copy us with copy of your inquiry. We would be happy to work with you." NPS did not respond. On December 8, 2009, DBOC first learned of the clam placement error. I received a call from US Senator Dianne Feinstein's office with questions about clams having been placed in a prohibited area. I told them that I did not know what they were talking about. I explained that we had moved the clams onto M-438-02 as directed by' the CCC. While on the call, the Senator's staff sent me an aerial photo and map prepared by the NPS describing where the clams were. I was astonished at what I saw. I explained to them

that this had not been brought to our attention and we would address the problem immediately. During the same day, the CCC and the NPS called to also notifY DBOC of the problem. The message was clear - get the clams out of the prohibited area. DBOC has worked very hard to develop a good rapport with CCC and was moving steadily towards the CDP. The call from Cassidy clearly revealed that CCC perceived an unintentional mistake as intentional, resulting in a loss oftrust for DBOC. The calls I had received on December 8, 2009, included a call from a US Senator's office, a call from the NPS Pacific West Regional Director's office and the Point Reyes National Seashore Superintendent, a call from the California Coastal Commission informing me of a $61,250.00 fine and a loss oftrust. NPS directed us to move the clams. We moved the clams the next day. In the process of retrieving the clam bags, DBOC kept the boat in deep water and outside of the seal protection area so that there would be no damage to eelgrass or other resources. It was not seal pupping season and there were no seals around during the placement or recovery of the clam bags. Removing the bags was a simple three hour task of lifting the bags up off the sandbar and hand carrying them to the two barges that were attached to the boat. The bags were in an area devoid of eelgrass and the bags left no marks on the sand. (To give you a sense of volume, the clams in question would have fit in the back of a pickup truck.) It is important to note, according to NPS data, the largest causes of seal disturbances in Drakes Estero---kayaks and seashore visitors---, are allowed to use and enjoy the very areas prohibited to DBOC. In 1992 NOAA, CDFG and NPS created harbor seal protection protocols. NOAA and NPS records show that the protocols have worked. Moreover, recent reports from both agencies reveal that harbor seals along the California coast are at carrying capacity. Today, at the request ofthe Sierra Club and National Parks Conservation Association, the Marine Mammal Commission is undertaking a new review and DBOC is working closely with them in that review. I had a conversation with Cassidy Teufel about the clam placement error. From this conversation, I learned that it appeared to CCC that DBOC must not "know" where the boundaries of the protected areas are, if they placed clams within the prohibited area. DBOC is aware of the locations of these areas. DBOC uses established routes to each and every shellfish bed. Those well known routes do not interfere or cross either protected area. DBOC boats will continue to use the established routes. There is no reason to expect that boat traffic is entering the prohibited areas or that boat traffic will enter these areas in the future. This is an unusual situation which resulted in an isolated error. Cassidy and I agreed that it would be a good idea to mark the boundaries of the seal protected areas with buoys so that there would be no inadvertent boat traffic within these areas. This would make it clear to all parties concerned. CCC has expressed the concern that this mistake was intentional. It was not.

DBOC understands that an error occurred while undertaking a very unusual task and DBOC takes responsibility for that error. Locating a .growing area is not a normal task and does not suggest that a similar error could occur in the future. DBOC staffis fully aware of the locations of all of the historic oyster beds. The well established oyster beds do not move and are well known to the staff. The staff never looks for "new areas" to place shellfish. At the December 10, 2009 FGC meeting, the Commission formally acknowledged, by a unanimous vote, that in 1993, the commission approved Manila Clams as a cultured species on M-438-01. The FGC corrected the clerical error that erroneously indicated Manila clams on M-438-02. Manila clams are legal and approved on M-438-01 with FGC, CDFG and NPS. In light of the FGC determination, we respectfully request that the CCC conform all applicable records and documents. When the record is conformed there will be consistency between all agencies and the clams will remain in the same location that they have historically been grown. As previously stated, the placement of clams in a prohibited area was unintentional. Harbor seals were not present and eel grass was not disturbed. DFG informed CCC of the FGC error and the movement of clams should not have been required. We therefore respectfully request that the $61,250.00 penalty be withdrawn. Please confirm that our COP application and all applicable records have been changed to reflect the action taken bytheFGC. Enclosed, please find a check in the amount of$8,500.00. This represents the balance due for the DBOC COP application. We look forward to working with CCC staff through the completion of the COP process. Sincerely,

Kevin Lunny

Cc:

Nancy Lunny

George Turnbull, Deputy Regional Director, National Park Service Don Neubacher, Superintendent, Point Reyes National Seashore John McCamman, Director, California Department ofFish and Game John Carlson, Executive Director, California Fish and Game Commission Gregg Langlois, Senior Environmental Scientist, California Department of Public Health, Environmental Management Branch Allison Dettmer, CCC, Deputy Director, Energy, Ocean Resources, and Federal Consistency Division Cassidy Teufel, CCC, Coastal Program Analyst Lisa Hagge, CCC, Chief of Enforcement Zachary Walton, Esq., Paul, Hastings, Janofsky & Walker LLP

Ann Nelson/PORE/NPS 12/14/200908:05 AM

To [email protected] cc [email protected], [email protected] bcc Subject Fw: Fish and Game Commission

Dear Mr. Weiman: Per your request, we're hereby forwarding you a copy of the requested letter (in Word and PDF); we're also sending copies to Mr. and Mrs. Lunny.

Fish&GameCommission LeUe, 120909.doc "David M Weiman"

12/10/200902:51 PM

[!J

Fish&GameCommission LeUe, 120909.pdf

To "Neubacher, Don" cc "Lunny, Kevin" , "Lunny, Nancy" Subject Fish and Game Commission

Don. According to the Fish and Game Commission, you submitted a letter regarding the DBOC lease issue that was before the Commission today. Would you please provide us with a copy of that letter? Thank you. dave

w.

David M. Weiman Agricultural Resources 635 Maryland Ave., N.E. Washington, D.C. 20002 (202) 546-5115 (202) 546-4472 fax [email protected]

United States Department of the Interior NATIONAL PARK SERVICE Point Reyes National Seashore Point Reyes, California 94956

Ll425 December 8, 2009 California Fish and Game Commission 1416 Ninth Street Sacramento, California 95814 Re: Consent Item #15 for the December 9, 2009 Fish and Game Commission Meeting regarding expansion of Manila Clams to Drakes Estero Aquaculture Lease M-438-01. Dear Commissioners: Drakes Bay Oyster Company (DBOC) has proposed to expand the mariculture use in Drakes Estero Lease No. M-438-01 (the "Lease"), as reported on the Consent Calendar Agenda Item No. 15 for DecemberlO, 2009 for the meeting of the Fish and Game Commission. We do want to aclmowledge that DBOC does have the right under our permit to "seek to conform and/or modifY these leases with COFG." Point Reyes National Seashore, a unit of the National Park Service (NPS) has several concerns regarding Manila clam cultivation that is within the park's boundary. The NPS has not had the opportunity to fully discuss with OBOC or the California OepartmentofFish and Game (CDFG) the proposed expansion of mariculture by DBOe. Our specific concerns follow: •

Changes in the current CDFG lease are subject to enviromnental review and analysis under the National Enviromnental Policy Act (NEPA), along with the California Enviromnental Quality Act (CEQA). We believe the expansion of the area from one acre to the entire lease of over 1,000 acres where manila clams can be cultivated is an important change to the current lease and requires enviromnental review. We also believe that consultation regarding this expansion is required with NOAA Fisheries, California Coastal Commission, Anny Corps of Engineers, and the US Fish and Wildlife Service. We are concerned about the potential ecological risks that this species may bring to Drakes Estero and native species there. No risk analysis for this speCies to be introduced has been conducted.



Potential expansion of Manila clams as an invasive species is a major concern. While Manila clams have been introduced and have spread in other estuaries of California, there is currently no evidence to our lmowledge that they escaped or invaded Drakes or Limantour Esteros. The National Academy of Sciences noted in their report ShellfISh Mariculture in Drakes Estero (NAS 2009) that "The oysters and clams cultured in Drakes Estero are nonnative species that have some risk of establishing self-sustaining populations (p 5)" and further noted that "continued culture of

nonnative oysters and clams poses some risk of their eventual naturalization in Drakes Estero and larval spread to other coastal lagoons, a risk that could be minimized but not entirely eliminated by culturing triploids (NRC, 2004a) {p 22)". Finally, they reported that "If the Manila clam successfully reproduces and establishes populations in Drakes Estero, it may compete with native infaunal suspension-feeding bivalves" (p 52). •

Before any expansion of the cultivation of this non-native species, a thorough survey should be conducted to confirm its absence or presence throughout the estero. Dr. James Carlton, a leading authority on invasive species, communicated to us by letter that "a survey of Drakes Estero to determine if the Manila clam Venerupis philippinarum is established there would be of interest." He noted that "As of 1979, I could find no published or museum records of the Manila clam in Drakes Estero. I may have overlooked previous records, however, and I also did not personally do any surveys there." National Park Service biologists have conducted informal surveys, and not seen this clam naturalized within Drakes Estero. A systematic survey would verify the presence or absence of this potentially invasive non-native species in Drakes Estero. .



Potential changes in the intensity of cultivation. The addition of bag culture for cultivating manila clams throughout the estero has the added concern of providing a substrate for the highly invasive non-native tunicate, Didemnum species A or Didemnum sp., which is already present in the estero attached to oyster racks, and more recently on natural habitat at Bull Point. The NAS in their report noted that "Any culture' bags used to contain Manila clams would provide additional solid surfaces for epibionts (species that attach to other living organisms)" (p 52), and that "It is now a very evident epibiont covering a substantial fraction (up to about half, judging from the committee's observations made during its September 2008 visit) of subtidal surface space on shell surfaces ofliving Pacific oysters and on associated oyster-rearing gear in Drakes Estero" (p. 52). They noted that "Research on control of abundance and risk of spread of the invasive tunicate, Didemnum vexillum, is urgently needed, not just in Drakes Estero, but worldwide." (p 8). The potential to expand substrate material throughout the estero has the potential to expand the presence of this highly invasive species in Drakes Estero and to the adjacent Estero de Limantour (a newly designated state Marine Reserve) where it presently does not OCCur.

We request you postpone any action on this issue at this time and we appreciate your attention to

these concerns.

Sincerely,

Don L. Neubacher Superintendent

.

.. Kevin Lunny" 12/09/2009 02:24 PM

To cc "'Cassidy Teufel'" , "Tim Ragen" , "'Tom Moore'" , "Kirsten Ramey" bcc Subject Manila Clam Relocation

[[@

2(J;0012U9 OBO[:to Don Neubacher.pdf

Drakes Bay Oyster Company 17171 Sir Francis Drake Boulevard Inverness, CA 94937 (415) 669-1149 [email protected] [email protected]

December 9, 2009

Don Neubacher Superintendent Point Reyes National Seashore One Bear Valley Road Point Reyes Station, CA 94956 Dear Mr. Neubacher. This will acknowledge your letter and directive of December 4, received yesterday December 8, and your I :30 pm telephone call, with George Trumbull. As of I :00 pm today, all clams were moved, as you directed and returned to their original location in the Estero. This matter could have been addressed far more expeditiously had you or your staff simply picked up the telephone and called us. In less than 24 hours of learning about this matter, the clams were moved as directed and this matter is fully resolved. As you are aware, clam placement on our state lease became an issue because an inadvertent clerical- paperwork- error that occurred in1993, sixteen years ago and a dozen years before we acquired the oyster farm. The clams were there prior to 1993 - and have been there since. The Estero is the same. The resource is the same. The production is the same. After acquiring the farm we began correcting a series of clerical issues (NPS, for instance, had not issued a SUP to Johnson Oyster Company for the decade prior to our acquisition of the oyster farm). One of the last remaining administrative items to be addressed - correcting the administrative list of shellfish to be grown pursuant to the state lease We have been trying to get this clerical error corrected - and, as you know; it is now on the Calendar for the Fish and Game Commission tomorrow. Even though DBOC's shellfish lease is issued by the California Department ofFish and Game (CDFG), they were not informed of the concern, but only asked by Dr. Ben Becker of your staff for technical GPS coordinates. In the CDFG response to Becker, we were copied. Upon receipt, we immediately contacted Dr. Becker and asked:

"CDFG forwarded me a copy ofthe email of November 30, 2009. Apparently, you have questions ab.out our lease with the State. Would you please detail your concerns to us? Why didn't you ask us, or copy us with copy of your inquiry. We would be happy to . work with you." Becker did not acknowledge or respond to our request for information. Had he done so, this could have been handled more responsibly - and far more quickly. Your letter raised additional issues which we will address in a subsequent communication. Thank you.

Kevin Lunny

cc:

Nancy Lunny

California Department ofFish and Game Fish and Game Commission California Coastal Commission Marine MammarCommission Senator Dianne Feinstein Senator Barbara Boxer Rep. Lynn Woolsey Marin County Board of Supervisors

George

To [email protected]

Turnbull/OAKLANDINPS

cc "Don Neubacher"

12108/2009 10:43 AM

bcc Subject Re: Phone [email protected]

Kevin. Don and I will call you at the number' below at 1:30 pm.

"Kevin Lunny"

"Kevin f.1Ui:1tiJII

12/08/2009 10:30 AM Please respond to kevin drakesbayoyster.com

To "George Turnbull" , "Don Neubacher" cc Subject Phone Call

George and Don,

I will be in my office today from 11:00 AM until 5:00 PM. I will be unavailable from 2:00 to 2:30. Feel free to call me, or let me know if you would like me to call you.

(b) (6)

Kevin Sent via BlackBerry by AT&T

United States Department of the Interior NATIONAL PARK SERVICE Pacific West Region IIII Jackson Street, Suite 700 Oakland, California 94607-~807

IN REPLY REfER TO:

~~J

Ll425 (PWR-RD) 02-106

DEC 0 4

20~91

COpy fOR YOUR INfORMATION

KI~vin

Lunny Drakes Bay Oyster Company 17171 Sir Francis Drake Inverness, CA 94937

Dear Mr. Lunny: We have tried. to reach you several times about bags with clams and/or oysters and other materials which have been placed in the Harbor Seal Protection Area of Drakes Estero and outside the permitted area. We have attached relevant maps from the Special Use Pennit as well as a geographic referenced photograph regarding the violation (see attachments). This letter serves as a notice of violation by Drakes Bay Oyster Company (DBOC). The situation as described below is a violation of the tenns and conditions ofDBOC's Special Vse Permit (MISC-8530-6000-8002) with the National Park Service, and is therefore a . violation ofTitlc: 36 Code of Federal Regulations (CFR). Using areas outside ofthe permitted area described as the "Premises" on page 1 ofthe Special Use Pennit is a permit violation. This is also a violation of section 4(b )(vii) and Exhibit C of the Special Use Permit. Section 4(b)(vii) states: Pennittee must avoid disturbance to marine mammals and marine mammal haul-out sites. The Marine Mammal Protection Act, 16 U.S.c. 1361 et seq., includes a prohibition against any act of pursuit, tonnent or annoyance that has the potential to injure or disturb a marine mammal or marine mammal stock in the wildby causing disruption of behavioral patterns, including, but not limited to, migration, breathing, nursing, breeding, feeding, or sheltering. The National Oceanic and Almo·spheric Administration (NOAA) recommends maintaining a distance of at least 100 yards to avoid disturbance to seals. Pennittee will maintain a distance of at least 100 yards from hauled out seals throughout the year. Pennitter will monitor marine mammal popUlations in Dralees Estero. In addition, during the pupping harbor seal closure period, March I-June 30, the designated wilderness area (outside of Pennit area) is closed to all boats. Pennittee will follow "Drakes Estero Aquaculture and Harbor Seal Protection Protocol" attached hereto as Exhibit C. If required by CDHS, watercraft may use the Main Channel identified in Exhibit C during the pupping harbor seal closure period only to access CDHS's sentind monitoring station for marine biotoxins.· Boats shall be operated at low speed, near the eastern shore, to minimize chailce of distnrbance to harbor sealB. No oiber use of the Main Channel is authorized during the pupping harbor seal closure period

TAKEPRIDE~IE=; ~

INAM ERICA ~"""'/

fi' '



The DBOC Special Use Pennit's Exhibit C: Drakes Estero Aquaculture and Harbor Seal Protection Protocol (Item 3) states: Throughout the year, all of Permittee's boats, personnel, and any structures and materials owned or used by Permitttee shall be prohibited from the harbor seal protection areas identified on the Protocol Map. In addition, all of the Permittee's boats and personnel shall be prohibited from coming within 100 yards of hauled out seals.

Violating the terms and conditions of the Special Use Pennit also violates Title 36 CFR sef;tion 1.6(g)(2) which states: "Violating a tenn or condition ofa pennit issued pursuant to this section is prohibited." Furthennore, Title 36 CFR section 1.6(h) states: "Violating a telm or condition of a pennit issued pursuant to this section may also result in the suspension or revocation of the pennit by the superintendent." DBOC has thirty days from the date of this letter to remedy this pennit violation. Please provide fonnal notice when the bags and other materials are removed. Thank you for your prompt attention to this matter. Sincerely,

,.--;--

.. )~11.A~ F:_1 Rory D. Westberg

Acting Regional Director, Pacific West Region

Attachment 1: Special Use Pennit Exhibit C: Drakes Estero Aquaculture and Harbor Seal Protection Protoeol: Protocol Map Attachment 2. Special Use Pennit Exhibit A: Drakf:'s Estero Aquaculture & CDFG Leases Attachment}. Geographic Referenced Photo of oyster activity in Harbor Seal Protection Area ce:

Peter Douglas, California Coastal Commission 45 Fremont St., Suite 2000 San Francisco, Ca 94105 Director McCamman, California Department of Fish and Game,1416 9th Street, Sacramento, Ca 95814-5515

Drake's Bay Oyster Company CCC-07-CD·ll Page 29 of34

FIGURE 2:HARBOR SEAL PROTECTION AREA

~'r-----------===========::1

Permit Type

[~:c.:-; Aquaculture Lease/SUP Area

BROP

E:2SJ Existing Wilderness

Bsup

t;:Z;J Potential_Wildemess

Oyster Racks - - Active - - Dilapidated

o____-===::::00.5Miles



o

50

100

200 Meters

300

400

nKevin Lunny"



...

12/04/200907:53 AM Please respond 10 [email protected] ..~-----

HislQlY'

To "George Turnbull" , "Don Neubacher" cc bcc Subject Phone Call

...-....

Dear George and DonI I got the message that you called yesterday. I was out and about and will be again today. Would you please give me a couple times that I could call you either today or Monday? AIso would you please send me an agenda for the call? l

Thank you

l

Kevin Sent via BlackBerry by AT&T

.. Kevin Lunny" 121031200912:25 PM

To cc bcc Subject RE: M-438-02 and lat longs for corners from ArcGIS

Hi Ben, DFG forwarded me a copy of the email of November 30, 2009. have questions _about our lease with the State.

Apparently, you

Would you please detail your concerns to us? Why didn't you ask us, or copy us with copy of your inquiry. happy to work with you.

We would be

Thank you. Kevin Lunny -----Original Message----From: Tom Moore [mailto:[email protected]] Sent: Monday, November 30, 2009 1:20 PM To: Ben [email protected] Cc: [email protected]; Cassidy Teufel; Kirsten Ramey Subject: Fwd: M-438-02 and lat longs for corners from ArcGIS Hi Ben, As per our phone conversation, I am forwarding my email to Kevin Lunny regarding locating (lat-1ong) the corners of lease M-438-02. These coordinates should not be considered as a legal description of the corners of lease M-438-02 and are a rough approximation only. This lease was a deep-water lease for scallop culture using lantern nets, it was never intended for clam culture which takes place on the bottom in intertidal ,mudflats. Clam culture was mistakenly authorized for this lease, not M-438-01 as requested by JOC and the Department, through clerical error on part of the Fish and Game Commission back in the 1990s. The mapped location of lease M-438-02 (DPH management plan Fig 2.) is consistent with the conditionally approved harvest guidelines for lease M-438-02. Further information on DPH management of shellfish harvest from Drakes Estero can be obtained from Gregg Langlios at DPH (CC'd here) . I will be retiring on Dec. 16, 2009,. my replacement and point-of -·contact after that date will be Kirsten Ramey. Her contact inforamtion is as ·follows: Email Addresse [email protected] Phone Numbers Office: (707) 445-5365 Mobile: (707) 761-1755 Fax: (707) 445-7883

If you have any questions or need clarification on this know.

topi~,

please let,me

Tom

Thomas O. Moore Calif. Dept. Fish and Game Marine Aquaculture Coordinat'or, P.O. Box 1560 Bodega Bay, CA 94923 (707) 875-4261 (707) 688-3192 cell (707) 875-4269 FAX [email protected] v Due to the Governor I s 'Executive Order, I will be off on Furlough the 1st, 2nd & 3rd Friday of each month You will never find time for anything. If you want time you must make it. C. Buxton

»> TMOORE 10/19/2009 11:33 AM »> Kevin, I used Fig 2. DPH Management Plan for DE 2006 location for M-438-02 (see attached) and created a polygon of one-acre area. This is my best approximation of: 1) the location and, 2) the lat long coordinates -for the corners (see attached print-out) . I used DPH location for the lease since they control harvest and have water quality info based on this mapped location. Robert Reese should be able to provide the most accurate location, based OD. the lease description, however we may wish to use the DPH location and provide an accurate description and amend the lease description. Take a look and let me know your thoughts. Tom



Thomas O. Moore Calif. Dept. Fish and Game Marine Aquaculture Coordinator, P.O. Box 1560 Bodega Bay, CA 94923 (707) 875-4261 (707) 688-3192 cell (707) 875-4269 FAX [email protected] Due to the Governor's Executive Order, I will be off on Furlough the 1st, 2nd & 3rd Friday of each month You will never find time for anything. If you want time you must make Buxton

it. c.

Don Neubacher/PORE/NPS

To Ann Nelson/PORE/[email protected]

11/04/200908:26 AM

cc bcc Subject Fw: Drakes Bay Oyster COP Application

FYI--files

Don Neubacher Superintendent Point Reyes National Seashore Point Reyes Station, CA 94956 415-464-5101 (office) 415-663-8132 (fax) The National Park Service cares for special places saved by the American people so that all may experience our heritage. ----- Forwarded by Don Neubacher/PORE/NPS on 11/04/2009 08:26 AM --Kevin McKay/PORE/NPS 11/04/2009 07 :49 AM

To Don Neubacher/PORE/[email protected] cc Subject Fw: Drakes Bay Oyster COP Application

FYI Kevin E. McKay Special Park Uses/Concessions National Park Service Point Reyes National Seashore 1 Bear Valley Road Point Reyes Station, CA 94956 (415) 464-5111 Fax (415) 464-5182 EXPERIENCE YOUR AMERICA The National Park Service cares for special places saved by the American people so that all may experience our heritage. ----- Forwa·rded by Kevin McKay/PORE/NPS on 11/04/2009 07:48 AM ----"Kevin Lunny".

To: "'Kevin McKay'" cc: Subject: FW: Drakes Bay Oyster COP Application

11/04/200912:38 AM

PST Hi Kevin,

This is the latest info sent to the Coastal Commission.

Kevin

From: Kevin Lunny [mailto:[email protected]] Sent: Friday, October 30, 20094:47 PM To: 'Cassidy Teufel' Subject: Drakes Bay Oyster CDP Application Hi Cassidy, Here's the latest information for the COP. Please let me know if I can get you any more information. I look forward to talking to you about the application fee ... I'm a little nervous about how expensive it will be. Thank you,

Kevin 20091030 CDP letteLpdf 20091030 Project Description.pdf 20091030 Development Costs. pdf

[@J CDP Site Plan Revision 10.30.Q9.pdf

DRAKES BAY OYSTER COMPANY 17171 Sir Francis Drake Blvd., Inverness, CA 94937

California Coastal Commission Attn: Cassidy Teufel 45 Fremont Street, Suite 2000 San Francisco, CA 94105 October 30, 2009 RE: Coastal Development Permit Application No: 2-06-003 - Response to CCC letter dated 10115109

Dear Mr. Teufel, We have received your letter and understand what you have requested. Following our recent conversations and listening to your recommendations, we have further reduced the scope of the project. Also at you suggestion, we removed our requests for changes in our CDFG shellfish leases until approved by CDFG. At your suggestion, we may re-apply for another CDP in the near future. This letter will address each of your requests and a revised project description will be attached. I. An itemized cost estimate for the project is attached. 2. Repairs. a. No new siding will be used on the stringing shed or the retail building .. b. No equipment will be required to replace the siding on the stringing shed or the retail building. c. Repairs will not result in an expansion ofbuilding(s) footprint. d. Most of the repairs will take approximately one year to complete. The oyster racks will be repaired as needed on an ongoing basis. e. The materials used to make the repairs will include concrete for interior floor repairs, wood, sheet rock, interior plumbing, interior electrical, roofing materials

and paint. The repairs will require the use of small tools. The temporary staging area for building materials will beoehind the Ag worker housing trailers on the east end of the property. This will keep-the public area free from construction material storage. g. Care will be taken during repairs so that no debris or construction materials enter the estero. h. The only structural repair required is to the roof of the processing building. This is necessary because a portion the roof framing is rotten and requires replacement. 3. Wooden oyster washing pier. a. The repair of the deck of the pier does not require removal or replacement of pilings. b. Approximately 100 square feet of replacement decking is required. The gangway will also be replaced. No change in the footprint will result from this project. c. There is no eelgrass near the oyster washing pier. 4. Floating dock f.

The replacement floating dock will be similar to the existing floating dock. It will be a wooden dock with Styrofoam floats. b. The existing floating dock will be floated to the working beach near the stringing shed dnring high tide. Dnring low tide, it will be fully dismantled by hand and hauled off site to an approved dnrnp site. The new floating dock will be placed on the same beach at low tide and floated into place during high tide. c. The new floating dock will be the same size as the existing dock (12' X 60') and will be anchored in the same position. It will occupy the same footprint. d. There is no eelgrass near the floating dock. Oyster washing/conveying/sediment retention system. a. The plastic or stainless steel sediment retention basket will be approximately 3' X 4'. The basket will be located on the oyster washing pier nest to the oyster washing conveyor. b. No concrete is required for the oyster wash / sediment retention system. c. The sediment retained in the sediment basket will be stored near the shell piles and periodically hauled to an approved composting facility. d. System Will be equipped with sealed bearings that do not require periodic lubrication. Seawater intake system. a. The seawater intake replacement is no longer a part of the current project description. Project Description. a. The project description has been amended to include the 12" X 18" trench and the picnic tables in the "after the fact development" section. The seed setting tanks that were not removed when the buildings were removed are already in the "after the fact" list. Restroom facility. a. Restroom repairs necessary to comply with ADA requirements will require indoor plumbing. b. Restroom repairs do not require any trenching or ground distnrbance. Fences a. Approximately 200' of split rail fence is included in this application. To wood treatment or paint will be used on the split rail fence. b. Approximately 25' of 8' solid wood fence will be placed in front of the storage and processing containers to screen them from view. The fence will be painted to match the adjacent retail building. c. Approximately 100' of 4' wood fence will be placed around processing area to separate seashore visitors from the work area. The 4' wood fence will not be treated or painted. Outdoor display aquarium. a. The aquarium is no longer a part of the current project description. Paved walkway. . a. This walkway';s to provide safe access to the bathrooms to meet ADA standards. The walkway is 6' wide by 30' long in front of the processing building. b. The paved walkway will be snrfaced with asphaltic concrete (asphalt) to match existing paved surfaces. c. A thickness of 0" to 8" of structnral fill under the path is required to meet ADA slope requirements. No cuts or excavation will be required for path placement. South pier removal. a. None of the south pier exists within the intertidal portion of Drakes Estero. b. 4" X 4" posts will be removed as well as the remaining portions of the deck. a.

5.

6. 7.

8.

9.

10. II.

12.

c.

The pier will be removed by hand. If the 4" X 4" posts are too difficult to remove by hand, a chain will be attached to the post and pulled out by a front end loader. No equipment will need to enter the intertidal area to remove any portion of the pier. 13. Underground electric lines. a. New underground electric lines are no longer a part of the current project description .. 14: Implement vessel transit plan. a. I" Schedule 40 PVC pipe may be placed vertically, by hand, to mark channels. 15. Repairs to oyster racks. a. All oyster racks may be repaired. Different racks will be in use at different times. Racks are often vacant for a period oftime following harvest and before planting. Rack repairs are made during times that they are not being used for oyster cultivation. 16. Harbor seals. a. DBOC continues to comply with the 1992 interagency standards. DBOC also complies with the current NPS and CCC harbor seal protection measures. 17. Water system. a. DBOC operates Public Water System #2110510 regulated by the California Department of Public Health, Drinking Water Unit. DBOC's responsibilities include regular sampling and bacteriological testing, monitoring and reporting. The pump in the well is the only equipment required to operate the water system.

Please feel free to give me a call if you need any additional information. Thank you,

Kevin Luuny Encls: Project Description Project Cost Estimates Project Site Plan

DRAKES BAY OYSTER COMPANY 17171 Sir Francis Drake Blvd., Inverness, CA 94937

Project Description 10/30109 Proposed New Site Development 1. Construct and install required ADA compliant restroom facility. 2. Construct and install split rail and solid board fencing around proposed storage area and retail facility. 3. Construct and install paved walkway to the restrooms to meet ADA requirements. 4. Demolish and remove existing wooden pier (south pier). 5. Implement Vessel Transit Plan with mooring areas and access lanes clearly marked.

Ongoing Maintenance fOr Existing Operation 6. Continue to carry out regular repairs and maintenance to existing oyster racks using only CDFG, CCC and NPS approved materials. 7. Continue compliance with 1992 Harbor Seal Management Plan as well as final CCC and NPS harbor seal protection conditions. 8. Continue to carry ont oyster and clam culture using 24" x 24" x 3" plastic or plastic coated wire containers or trays. 9. Continne to use established boat traffic lanes through Drakes Estero eelgrass beds for use during low tide. 10. Continue to operate the picnic area. 11. Continue Pacific and European oyster culture using hanging cluster method on racks located throughout DFG lease area number M-438-01 within Drakes Estero. 12. Continue Pacific and European oyster culture using anchored bottom bags within intertidal areas throughout DFG lease area number M-438-01 within Drakes Estero 13. Continue Pacific and European oyster culture using un-anchored bottom bags within intertidal areas throughout DFG lease area number M-438-01 within Drakes Estero 14. Continue Pacific and European oyster culture using anchored floating bags within intertidal areas throughout Department ofFish and Game lease area number M-438-0l within Drakes Estero 15. Continue Manila clam culture using bottom bags within areas throughout DFG one-acre lease area number M-4 38-02 within Drakes Estero 16. Continue to carry out marine biotoxin monitoring and water quality sampling within the estero. 17. Continue to import Pacific oyster larvae and seed; Manila clam larvae and seed and European oyster larvae and seed, only from CDFG approved sources with current CDFG import permits. 18. Continue to operate motor driven vessels within estero to plant and harvest approved shellfish species, for water quality monitoring, marine biotoxin monitoring, or any other farm related purpose. 19. Continue to operate non-motorized barges within estero to facilitate shellfish planting and harvesting. 20. Continue to operate retail sales facility. 21. Continue to operate the only state certified and FDA approved shellfish shucking and packing facility, pursnant to the requirements of the California Department of Public Health, Food and Drug Branch; the US Food and Drug Administration and the National Shellfish Sanitation Program. 22. Continue to operate onsite wastewater and septic systems.

23. Continue to store limited quantities of hazardous substances such as paints, gasoline, chlorine, detergents, solvents and cleaning products. 24. Continue to discharge wastewater from hatchery operations, wet storage, setting systems and oyster washing into estero (heated water to remain below 20 degrees above ambient water temperatore) 25. Continue to carry out interpretive services to visiting public, conduct tours of onshore facilities for school groups, local non-profit organizations, private organizations, government agencies, etc.

26. Continue to provide onsite housing for employees and their families. 27. Continue to operate indoor hatchery/seed prodnction facility and carry out remote setting activities both indoor and outdoor. 28. Continue to implement the Hazardous Materials Business Plan. 29. Continue to operate the state certified Drakes Bay Oyster Company non-transient, noncommunity, public water system, pursuant to the requirements of the California Department of Public Health, Drinking Water Unit and the National Shellfish Sanitation Program.

Repairs

30. Repair existing wooden oyster washing pier with similar materials.

31. 32. 33. 34. 35. 36.

Replace existing 12' X 60' floating dock at the end of the oyster washing dock. Replace oyster washing / conveyor / sediment retention system. Repairs to stringing shed. Repairs to hatchery building. Repairs to processing building. Repairs to retail sales building.

After the Fact Development 37. 38. 39. 40. 41. 42. 43.

Installation of one 8-foot by 40-foot storage container. Removal and replacement of a porch at worker residence. Installation of split rail fence along the edge of parking area. Installation of asphalt pavement surrounding the processing facility. Installation of a temporary construction trailer. Installation of a temporary 8-foot by 40-foot container for oyster shucking and packing. Use of five outdoor seed setting tanks and associated water intake, discharge and circulation infrastructure. 44. Construction and backfilling of a 12-inch by 18-inch by 80-foot long trench. 45. Replacement of six picnic tables and six additional picnic tables

Cost Estimate $20,000.00 $2,500.00 $600.00 $400.00 $200.00

$23,700.00

Proposed New Site Development I. 2. 3. 4.

5.

Construct and install required ADA compliant restroom facility. Construct and install split rail and solid board fencing around proposed storage area and retail facility. Construct and install paved walkway to the restrooms to meet ADA requirements. Demolish and remove existing wooden pier (south pier). Implement Vessel Transit Plan with mooring areas and access lanes clearly marked.

Total New Site Development

Ongoing Maintenance for Existing Operation 6. 7. 8. 9. 10. II. 12. 13. 14. IS. 16. 17. 18. 19. 20. 21. 22. 23. 24. 25.

Continue to carry out regular repairs and maintenance to existing oyster racks using only CDFG, CCC and NPS a Continue compliance with 1992 Harbor Seal Management Plan as well as final CCC and NPS harbor seal protecti Continue to carry out oyster and clam culture using 24" x 24" x 3" plastic or plastic coated wire containers or tra) Continue to use established boat traffic lanes through Drakes Estero eelgrass beds for use during low tide. Continue to operate the picnic area. Continue Pacific and European oyster culture using hanging cluster method on racks located throughout DFG lea~ Continue Pacific and European oyster culture using anchored bottom bags within intertidal areas throughout DFG Continue Pacific and European oyster culture using un-anchored bottom bags within intertidal areas throughout D Continue Pacific and European oyster culture using anchored floating bags within intertidal areas throughout Dep: Continue Manila clam culture using bottom bags within areaS throughout DFG one-acre lease area number M-43~ Continue to carry out marine biotoxin monitoring and water quality sampling within the estero. Continue to import Pacific oyster larvae and seed; Manila clam larvae and seed and European oyster larvae and se Continue to operate motor driven vessels within estero to plant and harvest approved shellfish species, for water q Continue to operate non-motorized barges within estero to facilitate shellfish planting and harvesting. Continue to operate retail sales facility. Continue to operate the only state certified and FDA approved shellfish shucking and packing facility, pursuant to Continue to operate onsite wastewater and septic systems. Continue to store limited quantities of hazardous substances such as paints, gasoline, chlorine, detergents, solvent Continue to discharge wastewater from hatchery operations, wet storage, setting systems and oyster washing into '. Continue to carry out interpretive services to visiting public, conduct tours of onshore facilities for school groups,

26. 27. 28. 29.

Continue to provide onsite housing for employees and their families. Continue to operate indoor hatchery/seed production facility and carry out remote setting activities both indoor an Continue to implement the Hazardous Materials Business Plan. Continue to operate the state certified Drakes Bay Oyster Company non-transient, non-community, public water s

Repairs $2,000.00 $5,000.00 $3,500.00 $500.00 $2,000.00 $5,000.00 $3,000.00 $21,000.00

30. 31. 32. 33. 34. 35. 36.

Repair existing wooden oyster washing pier with similar materials. Replace existing 12' X 60' floating dock at the end of the oyster washing dock. Replace oyster washing / conveyor I sediment retention system. Repairs to stringing shed. Repairs to hatchery building. Repairs to processing building. Repairs to retail sales building.

Total Repairs

After the Fact Development $1,200.00 $800.00 $400.00 $1,500.00 $500.00 $8,000.00 $300.00 $600.00 $900.00

37. 38. 39. 40. 41. 42. 43. 44. 45.

Installation of one 8-foot by 40-foot storage ·container. Removal and replacement of a porch at worker residence. Installation of split rail fence along the edge of parking area. Installation of asphalt pavement surrounding the processing facility. Installation of a temporary construction trailer. Installation of a temporary 8-foot by 40-foot container for oyster shucking and packing. Use of five outdoor seed setting tanks and associated water intake, discharge and circulation infrastructure. Construction and backfilling of a 12-inch by 18-inch by 80-foot long trench. Replacement of six picnic tables and six additional picnic tables

$14,200.00

Total After the Fact Development

$58,900.00

Total Cost of Project



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Don Neubacher/PORE/NPS

To Ann Nelson/PORE/[email protected]

10/29/2009 03:22 PM

cc bcc Subject Fw: Clams in Drakes Estero

For files.

Don Neubacher Superintendent Point Reyes National Seashore Point Reyes Station, CA 94956 415-464-5101 (office) 415-663-8132 (fax) The National Park Service cares for special places saved by the American people so that all may experience our heritage. ---- Forwarded by Don Neubacher/PORE/NPS on 10/29/2009 03:22 PM ---Kevin McKay/PORE/NPS 10/29/2009 02:41 PM

To Don Neubacher/PORE/[email protected] cc Subject Fw: Clams in Drakes Estero

FYI Kevin E. McKay Special Park Uses/Concessions National Park Service Point Reyes National Seashore 1 Bear Valley Road Point Reyes Station, CA 94956 (415) 464-5111 Fax (415) 464-5182 EXPERIENCE YOUR AMERICA The National Park Service cares for special places saved by the American people so that all may experience our heritage. ---- Forwarded by Kevin McKay/PORE/NPS on 10/29/200902:41 PM ---"Kevin Lunny"

10/29/2009 02:36 PM

To: "'Tom Moore'"

cc: "'Cassidy Teufel'" , "'Kevin McKay'"

Subject: Clams in Drakes Estero

MST

Dear Tom, We have transferred all Manila clams that were not previously located on M-438-02 to M-438-02.

All Manila clams in Drakes Estero are located on M-438-02. Thank you for your help, Kevin Lunny Drakes Bay Oyster Company

L1425 02-106 OCtober 20 2009 :' .. '-

-

".,

Sincerely,

DonL Neubachet

.. Superintertdeht

EricldsiITe

Attachment 1: TITLE 36--PARKS, FORESTS, AND PUBLIC PROPERTY DEPARTMENT OF THE INTERIOR PART 2--RESOURCE PROTECTION, PUBLIC USE AND Contents

RECREATION-~Table

Sec. 2.50 Special events. (a) Sports events, pageants, regattas, public spectator attractions, entertainments, ceremonies, and similar events are allowed: Provided, however, There is a meaningful association between the park area and the events, and the observance contributes to visitor understanding of the significance of the park area, and a pemit therefore has been issued by the superintendent. A permit shall be denied if such activities would: (1) Cause injury or damage to park resources; or (2) Be contrary to the purposes for which the natural, historic, development and special use zones were established; or umeasonably impair the atmosphere of peace and tranquility maintained in wilderness, natural, historic, or commemorative zones. (3) Umeasonably interfere with interpretive, visitor service, or other program activities, or with the administrative activities of the National Park Service; or (4) Substantially impair the operation of public use facilities or services of National Park Service concessioners or contractors; or (5) Present a clear and present danger to the public health and safety; or (6) Result in significant conflict with other existing uses. (b) An application for such a permit shall set forth the name of the applicant, the date, time, duration, nature and place of the proposed event, an estimate of the number of persons expected to attend, a statement of equipment and facilities to be used, and any other information required by the superintendent. The application shall be submitted so as to reach the superintendent at least 72 hours in advance ofthe proposed event. (c) As a condition of permit issuance, the superintendent may reqUIre: (1) The filing of a bond payable to the Director, in an amount adequate to cover costs such as restoration, rehabilitation, and cleanup of the area used, and other costs resulting from the special event. In lieu of a bond, a permittee may elect to deposit cash equal to the . amount of the required bond. (2) In addition to the requirements of paragraph (c)(I) of this section, the acquisition ofliability insurance in which the United States is named as co-insured in an amount sufficient to protect the

of

United States. (d) The permit may contain such conditions as are reasonably consistent with protection and use of the park area for the purposes for which it is established. It may also contain reasonable limitations on the equipment used and the time and area within which the event is allowed. (e) Violation of the terms and conditions of a permit issued in accordance with this section is prohibited and may result in the suspension or revocation of the permit. [48 FR 30282, June 30,1983; 48 FR 31847, July 11, 1983}

AIWF.org " Calendar" Sunday September 13 2009 • 8th Annual Slurp n' Burp- 0 ...

STH ANNUAL SLURP N' BURP- OYSTERS ON DRAKES BAY Sunday. September 13, 2009 - AIWF NorCal (CA) Time: 12:00 am to 04:00 pm Member Price: $55.00

Guest Price: $80.00 Venue: Drakes Bay Family Oyster Farm 17171 Sir Francis Drake Blvd, Inverness, CA 94937

~_ _~A",d",d,,,,e,~s:

----------

AIWF·NORCAL invites you to

The Eighth Annual Slurp n' Burp MEMBER LOGIN USERNAME:

1. ___ _ PASSWORD;

L

--

BECOME A MEMBER!

.MUiI.

at

Drakes Bay Oyster Farm, Inverness CA Sunday, September 13,2009 Noon to 4:00 p.m. $55 for members/$SO for guests"

"Guests who join that day canapp/y the $25 towards AIWF membership Yes, it's that time again! This year, JOin us at Drakes Bay Oyster Farm http://drakesbayfamilyfarms.com/on September 13 for all-you-can-eat Drakes Estero oysters. A deep-water upwelling just off the coast of Drakes Bay provides cool, pristine, nutrient-rich water year-round, producing what many recognize as some of the finest oysters in the world. You'll also have the opportunity to enjoy a tour of this rustic working oyster farm. DrakesBay is named for Sir Francis Drake because it has long been considered Drake's most likely landing spot on the west coast of North America during his circumnavigation of the world by sea in 1579.

For membership address

updates, please contact AIWf: 800.274.2493 - toll free

831.250.7739 - main 831.622.7783 - facsimile AIWF National Address;

26364 Cannel Rancho Lane, Suite 201 carmel, CA 93923

We'll also be serving Aidells sausages http://www.aidells.coml. salads, clams (ifthey're availabte) and other goodies, beer, compliments of Lagunitas IPA as well as wine donated and poured by Dee Vee Wines http://www.dvw.coml.WinesincludeCh1iteaudel·Aulae Cramant de Loire Brut, 2006 Solter Rheingau Riesling Brut Sekt, 200S Domaine des Lauriers Pi"cpoul de Pinet, 200S Chateau Gaillard AOC Touraine Sauvignon Blanc, 200S Domaine de Villargeau Coteaux du ,Giennois Blanc. If people are interested they will have order forms and special discounts available! For a special treat, Redwood Hill Farm & Creamery http://www.redwoodhill.comlwill be there to offer their exquisite artisan goat cheeses. Join in the fun by preparing your food the way you like it, learn to shuck oysters, or just sit back and relax, make new friends and catch up with old ones, while you enjoy the wonderful view of Drakes Estero. Bring some cash --- to make it even more fun, we're having a raffle! To pay by credit card (no additional fees), go to: http://www.ticketweb.com/t3/sale/SaleEventDetail?dispatch=1oadSelectionData&eventld=2409004 To pay by check, please leave a message on the AiWF hotline at 415-508-6790 and then send a check (payable to AIWF) to: AIWF, PO Box 2207, Sausalito, CA 94966-2207 along with your name, addr.ess, telephone number, email address, number of places desired, and names of others in your party. New: Add $25 to your payment to support AIWF's signature program, Days of Taste®. The program brings chefs and farmers into fourth and fifth grade classrooms to teach students in an engaging way about the importance of fresh food and how these ingredients weave their way through daily life, from farm to table. AIWF is a 501 (c)(3) charitable organization making this fully tax deductible.

• Generous donations from"these fine local purveyors help make this event memorable

Dee Vine Wines Purveyors of Fine & Rare Wines

DsLL6 F6TTORI6 The ArWF would like to thank the following corporate sponsors:

PEBBLE BEACH" FOOD&WINE

~'Lr O:'IIW\t,< Bill, ;$~---==--

© 2001 - 2009 The American Institute of Wine &,Food 26364 Carmel Rancho

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lane, Suite 201, Carmel, CA 93923 (SOD) 274-AIWF (2493)

Privacy Policy The AIWF acknO'ollleidges web designer. CAMALEO,

for their generous in-kind contribution to the AIWFwebslle, perermia! good humor, and endless pallence. Thank you!

Kevin McKay/PORE/NPS

To Don Neubacher/PORE/[email protected]

10/15/2009 02:30 PM

cc Ann Nelson/PORE/[email protected] bcc Subject Fw: DBOC Clam Issue

FYI Kevin E. McKay Special Park Uses/Concessions National Park Service Point Reyes National Seashore 1 Bear Valley Road Point Reyes Station, CA 94956 (415) 464-5111 Fax (415) 464-5182 EXPERIENCE YOUR AMERICA The National Park Service cares for special places saved by the American people so that all may experience our heritage. ----- Forwarded by Kevin McKay/PORE/NPSon 10/15/200902:29 PM ---"Kevin Lunny"

10/15/2009 02:09 PM MST

To: '''Cassidy Teufel'"

cc: "'Tom Moore'" , "'Kevin McKay'"

Subject: RE: DBOC Clam Issue

No problem. I will keep everyone informed. Kevin

From: cassidy Teufel [mailto:[email protected]

Sent: Thursday, October 15, 2009 2:05 PM

To: Kevin Lunny Cc: Tom Moore; Kevin McKay Subject: RE: DBOC Clam Issue

Kevin Thank you for passing along this information and I support your efforts to bring DBOC into compliance with the existing terms and conditions of your DFG lease, NPS Special Use Permit and Coastal Commission Consent Order: I would appreciate it if you could notify me when you have completed relocating the clams to shellfish lease M-438-02. Thanks, Cassidy Teufel California Coastal Commission Energy, Ocean Resources and Federal Consistency Division 45 Fremont St., Suite 2000 San Francisco, Ca 94105

T: (415) 904-5502 F: (415) 904-5400

c----Original Message----From: Kevin Lunny [mailto:[email protected],com] Sent: Thursday, October 15, 2009 1:37 PM To: Kevin McKay Cc: Cassidy Teufel; Tom Moore' Subject: DBOC Clam Issue Hi Kevin, Drakes Bay Oyster Company is pursuing CDFG approval for adding Manila clams to its main shellfish lease, M-438-01. Currently, M-438-02 includes Manila clam culture. This permission was asked for by the Johnson Oyster Company in 1993 and was approved. Inadvertently ... were not sure why, the Manila clams were added to M-438-02 instead of M-438-01 (see attached). We are simply making the effort to correct what seems to be a clerical error. We are told that this issue will be included in the November California Fish and Game Commission meeting. Our SUP states: 4 B) Vi) Permittee wm not Introduce speCies of shellfish peyond those described in the exis\tng leases from the CDFG. Permittee may seek to conform aodlor modifylhese le""el; wiln the CDFG. Ar.y modificatioFls approved by CDFGwlll be consider<);d by Permltteron a c8!;e-by-q;56 basis, and Permittee may not implement any such modifications without the prior written approVal of the Permitter. Our SUP also states:

i)

Production of aU sheliiishsp:e<:l,ies .shaU be c",ppe<:l eli! lhe "cul!",:ot produc!lonlevel" as determined under the Califomia Coastal Commissfon Coosenl Order No. eee-O?"GlI)-04.

The production cap includes all species of shellfish. Adding Maniia clams to M-438-01 will not allow any expansion in overall production. The Manila clams are biva·lves as are oysters. Manila clams are grown using the same methods as oysters. They will simply use space that would otherwise be used for oyster production and will replace some of the oysters with clams in the overall production. This is basically a request to substitute species. . Both the Johnson Oyster Company and the Drakes Bay Oyster Company have historically grown Manila clams ·on M-438-01. Currently there are still some clams on M-438-01. To bring the oyster farm into full compliance with the NPS SUP and CDFG leases, OBOC will, within one week from today, 10/22/09, move any Manila clams not currently on M-438-02 to M-438-02. We wanted to let you know about our plan. Please feel free to give me a call if you have any questions. When we have a confirmed agenda at the F &G Commission, I will send it to you. Thank you, Kevin Lunny 415-669-1149 (oyster farm) 415-662-9800 (office)

Don Neubacher/PORElNPS

To Ann Nelson/PORE/[email protected]

10/15/2009 02:38 PM

cc bcc Subject Fw: DBOC Clam Issue

Don Neubacher Superintendent Point Reyes National Seashore Point Reyes Station, CA 94956

415-464-5101 (office) 415-663-8132 (fax) The National Park Service cares for special places saved by the American people so that all may experience our heritage. ----- Forwarded by Don Neubacher/PORE/NPS on 10/15/2009 02:38 PM ----Kevin McKay/PORE/NPS 10/15/200901:54 PM

To Don Neubacher/PORE/[email protected] cc Subject Fw: DBOC Clam Issue

FYI Kevin E. McKay Special Park Uses/Concessions National Park Service Point Reyes National Seashore 1 Bear Valley Road Point Reyes Station, CA 94956

(415) 464-5111 Fax (415) 464-5182 EXPERIENCE YOUR AMERICA The National Park Service cares for special places saved by the American people so that all may experience our heritage. ----- Forwarded by Kevin McKay/PORE/NPS on 10/15/2009 01 :54 PM ----"Kevin Lunny"

10/15/2009 01 :37 PM

To: "Kevin McKay" cc: '''Cassidy Teufel'" , "'Tom Moore'" Subject: DBOC Clam .Issue

MST Hi Kevin,

Drakes Bay Oyster Company is pursuing CDFG approval for adding Manila clams to its main Shellfish

lease, M-438-01. Currently, M-438-02 includes Manila clam culture. This permission was asked for by the Johnson Oyster Company in 1993 and .was approved. Inadvertently ... were not sure why, the Manila clams were added to M-438-02 instead of M-438-01 (see attached). We are simply making the effort to correct what seems to be a clerical error. We are told that this issue will be included in the November California Fish and Game Commission meeting. Our SUP states: 4 B) vi) Permillee wf[! not Introduce species of shellfisn beyond those desoribed in the existing teases from lhe CDFG. Permittee may seeK to conform and/or modlfy these leases with the COFG. Any mOdificaUons approved by cOl" G wlll be considered by Permltler on a case.by-case basis, and Permil!ee may nol implement any such modifications without the prior written approval of the Permltler. Our SUP also states:

i)

Production of all sh.,i1fish sp.ecjee shari be capp~!lt !he "c.~!I'j:ent prOOuc!lon level" as determined unci." lhe California Goestat Commission Consent Order No.; bee-or"-00 04. 0

The production cap includes all species of shellfish. Adding Manila clams to M-438-01 will not allow any expansion in overall production. The Manila Clams are bivalves as are oysters. Manila clams are grown using the same methods as oysters. They will simply use space that would otherwise be used for oyster production and will replace some of the oysters with clams in the overall production. This is basically a request to substitute species. Both the Johnson Oyster Company and the Drakes Bay Oyster Company have historically grown Manila clams on M-438-01. Currently there are still some clams on M-438-01. To bring the oyster farm into full compliance with the NPS SUP and CDFG leases, DBOC will, within one week from today, 10/22109, move any Manila clams not currently on M-438-02 to M-438-02. We wanted to let you know about our plan. Please feel free to give me a call if you have any questions. When we have a confirmed agenda at the F &G Commission, I will send it to you. Thank you, Kevin Lunny 415-669-1149 (oyster farm) 415-662-9800 (office)

~

DFG and FGC docs relating to Manila clam request.pdf

From: To: cc:

Subject:

Date: Attachments:

Tom Moore Devin Bartley; [email protected]; Kirsten Ramev; DFG and FGC docs relating to Manila clam request Wednesday, September 02, 2009 12:41:52 PM JOC Manila clam request 08-06-93 correspondance.pdf

Devin, Kevin, See attached docs pertaining to the original Manila clam request for M-438-01 which shows FGC mistakenly placed on M-438-02 Tom Thomas O. Moore Calif. Dept. Fish and Game Marine Aquaculture Coordinator, P.O. Box 1560 Bodega Bay, CA 94923 (707) 875-4261 (707) 688-3192 cell (707) 875-4269 FAX [email protected] Due to the Governor's Executive Order, I will be off on Furlough the 1st, 2nd & 3rd Friday of each month You will never find time for anything. If you want time you must make it. Buxton

c.

RECEIVED CALlFORlllA

_ _ _ _~~_ _ _ _ _ _ F. ROBERT STUDDERT ATTORNEY AT LAW

August 6, 1993

FISH AHO GAME COMMISSION

9AUG 93

1I

50 ......

REPLY TO NORTHGATE OFFICE

Robert R. Treanor FISH & GA-~ 1415 Ninth street, RM 1207-5 Sacramento, CA 94244 ,

~LIFORNIA

Re:

Water Bottem Allotment Lease No. M-438-01 Johnson Oyster Company

Dear Bob: Johnsen Oyster Company would like te start culturing Manila Clams on the captioneq lease in Drakes Estero. Accordingly r please consids.r tl1is a reqp.est to add that species t Manila clams (Venerupis japonica), te the other species specified at page 4 of the captioned allotment at the top of the page. If memory serves correctly, we had been able to change the species cultured 0n other leases by administrative change rather than having to go to a noticed procedure. I would hope that the foregoing requ,est could be processed in the .same manager. Thank you for your usual courtesy and cooperation in this matter. Very truly yours,

Studdert

cc:

Tom Johnson, Johnson Oyster Company Bob Hulbrock

FRS/lcv JOC1*l JOCl/2

--.. NORTHGATE OFFICE: 36 PROFESSIONAL CENTER PARKWAY • SAN RAFAEL, CA 94903 • (415) 499-1155 WEST MARIN OFFICE: P.O. BOX 6 •• INVERNESS, CA 94937 • (415) 663·8235 FAX, (415) 479-8416

I

October 18, 1993

Mr. Tom Johnson Johnson oyster company c/o F. Robert Studdert, Esq. Northgate Office 36 Professional center Parkway San Rafael, CA 94903 Dear Mr. Johnson: The cOllllllission, at its October 8, 1993 meeting in San Diego, approved your request to add Manila clams (Tapes japonica) t.o the list of species for mariculture purposes at your Drakes Estero Lease M-438-02. You should be receiving your amended lease from the Department shortly. Sincerely,

Robert-R. Treanor Executive Director cc:

Marine Resources Division

~R~e~g~ir,o~n~3~~~~=-==~~~~~~

Bob Hulbrock, Aquaculture coordinator

OCT 1 9 f99J

LOCATION MAP DRAKES ESTERO AQUACULTURE 11:""/-\;-'1:"";".1

Don Neubacher/PORE/NPS

To Ann Nelson/PORE/[email protected]

10/15/2009 02:37 PM

cc bcc Subject Fw: Additional CDP information

For files

Don Neubacher Superintendent Point Reyes National Seashore Point Reyes Station, CA 94956 415-464-51 0 1 (office) 415-663-8132 (fax) The National Park Service cares for special places saved by the American people so that all may experience our heritage. ----- Forwarded by Don Neubacher/PORE/NPS on 10/15/2009 02:36 PM ----Kevin McKay/PORE/NPS 10/15/2009 01 :53 PM

. To Don Neubacher/PORE/[email protected] cc Subject Fw: Additional CDP information

FYI Kevin E. McKay Special Park Uses/Concessions National Park Service Point Reyes National Seashore 1 Bear Valley Road Point Reyes Station, CA 94956 (415) 464-5111 Fax (415) 464-5182 EXPERIENCE YOUR AMERICA The National Park Service cares for special places saved by the American people so that all may experience our heritage. ----- Forwarded by Kevin McKay/PORE/NPS on 10/15/200901 :52 PM ----"Kevin Lunny" 10/15/2009 01 :37 PM MST

To: "Kevin McKay" cc: Subject: FW: Additional CDP information

Kevin This is to keep you current with the CCC COP process.

Kevin

From: Kevin Lunny [mailto:[email protected]]

Sent: Monday, October as, 2009 1:59 PM To: 'Cassidy Teufel' Subject: Additional CDP information Hi Cassidy,

We will send the revised site plan separately.

Kevin 20091005 CDP letter.pdf

DRAKES BAY OYSTER COMPANY 17171 Sir Francis Drake Blvd., Inverness, CA 94937

California Coastal Commission Attn: Cassidy Teufel 45 Fremont Street, Suite 2000 San Francisco, CA 94105 October 5, 2009 RE: Coastal Development Permit Application No: 2-06-003 Dear Mr. Teufel, Enclosed please fmd the additional documentation requested in your June 10,2009 letter for permit application Number 2-06-003 for development at the Drakes Bay Oyster Farm; APN 109130-17, located in Inverness, California. The operations at the Drakes Bay Oyster Farm are pursuant to vested rights but Drakes Bay Oyster Company agrees to submit to the commission's

jurisdiction under reasonable tenns.

Drakes Bay Oyster Company (DBOC) has reduced the scope of development proposed for the site. The new project description is broken into four categories:

Proposed New Site Development 1. Install one 8-foot by 20-foot refrigeration unit/container at the onshore site. 2. Construct and install required ADA compliant restroom facility. 3. Construct and install split rail and solid board fencing around proposed storage area and retail facility. . 4. Install outdoor display aquarium for interpretive purposes. 5. Construct and install paved walkway to the restrooms to meet ADA requirements. 6. Remove existing power pole near setting tanks. 7. Remove existing power pole near processing building. 8. Demolish and remove existing wooden pier (south pier). 9. Install electricity lines below ground. 10. Implement Vessel Transit Plan with mooring areas and access lanes clearly marked. II. Construction and backfilling of a 12-inch by 18-inch by 80-foot long trench.

Proposed changes in CDFG lease and shellfish culture operations 12. Amend list of cultnred species permitted within DFG lease area number M-438-01 to include purple-hinged rock scallops (Crassodoma gigantean formerly Hinnities multirugosus) - contingent on DFG approval. 13. Amend list of cultnred species permitted within DFG lease area number M-438-01 to include Manila clams (Venerupis phillipinaruni formerly Tapes japonica) - contingent on DFG approval. 14. Collect wild purple hinged rock scallops for futnre use as broodstock with CDFG approval and CDFG Broodstock Collection Permit. 15. Development of hatchery process to spawn purple hinged rock scallops onsite and produce scallop "seed" with CDFG approval. 16. Modify boundaries ofDFG lease area number M-438-01 to include oyster racks currently outside of lease area - contingent on DFG approval.

Ongoing A1aintenance for Existing Operation 17. Continue to carry out regular repairs and maintenance to existing oyster racks using only CDFG, CCC and NPS approved materials. 18. Continue compliance with 1992 Harbor Seal Management Plan. 19. Continue to carry out oyster and dam culture using 24" x 24" x 3" plastic or plastic coated wire containers or trays.

20. Continue to use established boat traffic lanes through Drakes Estero eelgrass beds for use during low tide. 2!. Continue to operate the picnic area. 22. Continue Pacific and European oyster culture using hanging cluster method on racks located throughout DFG lease area number M-438-01 within Drakes Estero. 23. Continue Pacific and European oyster culture using anchored bottom bags within intertidal areas throughout DFG lease area number M-438-01 within Drakes Estero 24. Continue Pacific and European oyster culture using un-anchored bottom bags within intertidal areas throughout DFG lease area number M-438-01 within Drakes Estero 25. Continue Pacific and European oyster culture using anchored floating bags within intertidal areas throughout Department ofFish and Game lease area number M-438-01 within Drakes Estero 26. Continue Manila clam culture using bottom bags within areas throughout DFG one-acre lease area number M-438-02 within Drakes Estero 27. Continue to carry out marine biotoxin monitoring and water quality sampling within the estero.

28. Continue to import Pacific oyster larvae and seed; Manila clam larvae and seed and European oyster larvae and seed, only from CDFG approved sources with current CDFG import permits. 29. Continue to operate motor driven vessels within estero to plant and harvest approved shellfish species, for water quality monitoring, marine biotoxin monitoring, or any other farm related purpose. 30. Continue to operate non-motorized barges within estero to facilitate shellfish planting and harvesting. 31. Continue to operate retail sales facility. 32. Continue to operate the only state certified and FDA approved shellfish shucking and packing facility, pursuant to the reqnirements of the California Department of Public Health, Food and Drug Branch; the US Food and Drug Administration and the National Shellfish Sanitation Program. 33. Continue to operate onsite wastewater and septic systems. 34. Continue to store limited quantities of hazardous substances such as paints, gasoline, chlorine, detergents, solvents and cleaning products. 35. Continue to discharge wastewater from hatchery operations, wet storage, setting systems and oyster washing into estero (heated water to remain below 20 degrees above ambient water temperature) 36. Continue to carry out interpretive services to visiting public, conduct tours of onshore facilities for school gronps, local non-profit organizations, private organizations, government agencies, etc.

37. Continue to provide onsite housing for employees and their families. 38. Continue to operate indoor hatchery/seed production facility and carry out remote setting activities both indoor and outdoor. 39. Continue to implement the Hazardous Materials Business Plan. 40. Continue to operate the state certified Drakes Bay Oyster Company non-transient, noncommunity, public water system, pursuant to the requirements of the California

Department of Public Healtb, Drinking Water Unit and tbe National Shellfish Sanitation Program.

Repairs 41. 42. 43. 44.

45. 46. 47. 48.

Repair existing wooden oyster washing pier witb similar materials. Replace existing 12' X 60' floating dock at tbe end of the oyster washing dock. Replace oyster washing / conveyor / sediment retention system. Replace existing seawater intake system witb two four-inch high-density-polyetbylene pipes extending 1050-feet into tbe estero from shore and terminating in a 16 square foot screened intake structure. Repairs to stringing shed. Repairs to hatchery building. Repairs to processing building. Repairs to retail sales building.

After the Fact Development 49. 50. 5!. 52. 53. 54. 55.

Installation of one 8-foot by 40-foot storage container. Removal and replacement of a porch at worker residence. Installation of split rail fence along tbe edge of parking area. Installation of asphalt pavement surrounding tbe processing facility. Installation of a temporary construction trailer. Installation of a temporary 8-foot by 40-foot container for oyster shucking and packing. Use of five outdoor seed setting tanks and associated water intake, discharge and circulation infrastructure.

Seed Setting Tanks: The five existing seed setting tanks were previously covered by a non-permitted open structure witb no floor. CCC -03-CD-12 required tbat tbe open building be removed. To comply witb tbe order, DBOC removed tbe cover structure, but did not remove tbe tanks. The tanks are currently in basically tbe same location. The setting tanks have been integral to tbe oyster operation for at least three decades and are still used almost continuously. For tbe business to continue, the tanks had to remain in operation. There was no reason to move tbe five tanks to a different location so DBOC did not substantially move tbe tanks. DBOC repaired or replaced some of tbe piping at tbe tanks and buried the bottom 2 feet of tbe light weight fiberglass tanks so tbat tbe wind would not blow tbem away. The underground pipe location is shown on tbe project drawings. The seawater for tbe setting tanks is delivered by a 2" Schedule 40 PVC plastic pipe tbat is connected to the seawater intake and pump system. Each tank has tbe capacity of around 4500 gallons. During the setting season, each tank is used for oyster larvae setting approximately every two weeks. The tanks are filled once, heated to approximately 75 to 80 degrees Fahrenheit, and held at tbat temperature for approximately 4 days. On tbe 4th day, the heaters are turned off, allowing tbe water in tbe tanks to cool. On about tbe 5th day, raw seawater is pumped into tbe tanks at a rate of approximately 3 gallons per minute. At tbe end of tbe cycle, around 7 days, tbe fully cooled seawater is allowed to discharge from tbe tanks. Proposed Boat Ramp Improvements: No boat ramp exists at the DBOC facility and tbere are no plans to build a boat ramp.

Septic System: At one time, DBOC was concerned that an existing gravity sewer pipeline, located in the existing parking area, did not have adequate slope to function properly. There has been no problem with the operation of this pipeline. Quarterly monitoring and annual on-site inspections are conducted by Marin County Environmental Health Services and a registered Sanitarian. The septic systems operated by DBOC are operating correctly and no repairs are required. Existing Asphalt Pavement: Most of the existing asphalt paving was an overlay of pre-existing asphalt paving. This paving was installed as required by the California Department of Public Health, Food and Drug Branch, to protect human health while transporting oysters between the walk-in refrigeration and the 8 X 40 shucking and packing facility. The NPS specified where the 8 X 40 processing container would be located and approved the requisite asphalt paving at a meeting on-site when the demand was given by the Health Department. At the time, DBOC was unaware of any requirement to obtain a CDP for this work. No one, inclnding the several NPS officials present at the joint regulatory agency meeting, mentioned anything about a CDP requirement for the work. The asphalt paving consists of 2" compacted thickness, .Yz" aggregate asphalt. In a small section, to conform to ADA regulations, up to 10" of class 2 aggregate base rock was used between the original surface and the new surface to reduce the slope of the top surface. DBOC will remove existing (and pre-existing) paved surfaces as shown on project drawings. A portion of the parking area has been paved with asphalt since before DBOC began operations in 2005. None of the parking area will be paved with asphalt. It will be an oyster shell surface to match the existing, surrounding parking lot surfaces. Only work areas requiring impervious, hard surfaces will be paved. The final asphalt area to remain on site, as shown on plans, is less overall paved surface area than was covered in asphalt when DBOC took over operations in January, 2005. Asphalt removal will be performed by saw cutting the existing asphalt at locations shown on the construction drawings. The pavement will be removed from site by a licensed carrier and will be delivered to an asphalt and concrete recycling facility. Sonth Pier Removal: The South Pier was historically used by the oyster farm to load cultch bags from the setting tanks onto barges .. The Pier was damaged· by storms and would need repairs prior to continuing its traditional use. DBOC will remove the South Pier and limit the oyster farm to only one pier. The south pier will be demolished by hand and removed from site. All debris from the pier demolition will be transported to an approved landfill. We understand that the CDFG issues need to be resolved as soon as possible. It is my understanding that these issnes may be included on the November Fish and Game Commission meeting agenda. Hopefully, all of the outstanding issues will be resolved at that meeting. Please feel free to give me a call if you need any additional information. Thank you,

Kevin Lunny Drakes Bay Oyster Company

Don Neubacher/PORE/NPS

To Ann Nelson/PORE/[email protected]

10/15/2009 02:37 PM

cc bcc Subject Fw: Coastal Development Permit site plan

Don Neubacher Superintendent Point Reyes National Seashore Point Reyes Station, CA 94956

415-464-5101 (office) 415-663-8132 (fax) The National Park Service cares for special places saved by the American people so that all may experience our heritage. ----- Forwarded by Don Neubacher/PORE/NPS on 10/15/2009 02:37 PM ----Kevin McKay/PORE/NPS 10/15/2009 01 :53 PM

To Don Neubacher/PORE/[email protected] cc Subject Fw: Coastal Development Permit site plan

FYI Kevin E. McKay Special Park Uses/Concessions National Park Service Point Reyes National Seashore 1 Bear Valley Road Point Reyes Station, CA 94956

(415) 464-5111

Fax (415) 464-5182 EXPERIENCE YOUR AMERICA The National Park Service cares for special places saved by the American people so that all may experience our heritage. ----- Forwarded by Kevin McKay/PORE/NPS on 10/15/2009 01 :53 PM ----"Kevin Lunny"

To: "Kevin McKay" cc: Subject: Coastal Development Permit site plan

10/15/2009 01 :37 PM

MST

Kevin, This is the revised site plan' that we submitted to the CCC on 10105/09.

~

Kevin CDP Site Plan Revision 1D_D5_DS_pdf

_DR.\~ES ESTEFIO

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8 1'\

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~PN IO~~li ~N OYSTER CO . CIS DRAKE ·mVER~ESS 94937 •

RESTORATIONS FOR:

DRAKES BAY

17171 SIR

PLOT PLAN

WILLIAM W KIRSCH ARCHITECT

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"Kevin Lunnt' 06/15/2009 06:29 PM

To cc "'Lunny, Nancy'" bcc Subject NRC Drakes Estero Report

Dear Mr. Jarvis, Please review and respond to the attached letters. I have attached the letter that we sent to you on

05/11/09 for your convenience.

Thank you, Kevin Lunny

OBoe ioJonJarvis 06.15.0S.pdf DBDe io Jon Jarvis 05.11.0S.pdf

Drakes Bay Oyster Company 17171 Sir Francis Drake Boulevard Inverness, CA 94937 (415) 669-1149 kevin{aJ,drakesbayoyster .com [email protected]

June 15,2009

John Jarvis Regional Director National Park Service 1111 Jackson Street, Suite 700 Oakland, CA 94607 Dear Mr. Jarvis. On May 11, we submitted a letter asking for an explanation of your public statements on behalf of the National Park Service in response to the release of the National Academy of Sciences' final report on NPS Science at Drakes Estero. It has been more than a month.

Given your request to the National Academy of Sciences to change or modify their final report, which violates their rules, withholding responses while behind-the-door discussions take place is deeply disturbing. May we have the courtesy of a response? Sincerely,

Kevin Lunny

Nancy Lunny

Drakes Bay Oyster Company 17171 Sir Francis Drake Boulevard Inverness, CA 94937 (415) 669-1149 [email protected] [email protected]

May 11,2009

Jon Jarvis Regional Director National Park Service 1111 Jackson Street, Suite 700 Oakland, CA 94607 Dear Mr. Jarvis. On May 5, 2009, in response to National Academy of Sciences Report on NPS science at Drakes Estero, the Pacific West Region of the National Park Service issued a press release entitled, "Park Service to Use National Academy a/Sciences Report to Improve Management a/Drakes Estero. " You were also interviewed by the media on May 5 and over the subsequent few days and made several additional statements. We acknowledge the Park Service apology and express our appreciation for it. That said, we are confused by certain statements that have been made and, by this letter, ask for clarifications. (1)

(2)

NPS Rejects Unspecified NAS Conclusions. According to an article in the Marin Independent Journal, "Report: Point Reyes Oyster Farm Poses No Danger to the Estero," you said: "we (NPS) agree with some conclusions, disagree with some and say we need more research too." (A)

Please itemize the NAS conclusions in which NPS concurs.

(B)

Please itemize the NAS conclusions in which NPS "disagrees."

(C)

Please provide a detailed explanation for those instances in which NPS disagrees and provide supporting data and documentation.

NPS Contradicts NAS, Renews Claims that Oysters in Drakes Estero Harming Environment. According to an AP story published in the San Jose Mercury News,

entitled "Report Criticizes Feds Over Marin Oyster Farm:" National Park Service officials said the non-native Pacific oysters raised by the farm are damaging the ecosystem. But the National Academy ofSciences says in its report that it found no major negative environmental impact. The panel also suggests that park officials misrepresented some of the facts to support their position. Park Service Director Jon Jarvis says he disagrees with some of those findings.

(3)

(A)

Please explain and detail how and why the National Academy is wrong.

(B)

Notwithstanding NAS conclusions of no environmental harm, NPS still Claims that non-native Pacific oysters are harming the environment at Drakes Estero. Please detail the harm. Provide the data that supports and substantiates that harm.

NPS Plan to Correct the Record with Marin County Board of Supervisors, Federal and State Agencies, the Citizens of Marin and the Public at Large. According to an article published in the Point Reyes Light, "Park Service Abuses Data, Apologizes:" In a press release, Jarvis wrote that the Academy affirmed [NPS's Science Advisor Sarah} Allen's conclusions [in the NPS Report, "Drakes Estero, A Sheltered Wilderness Estuary}, but over the phone contradicted himself. "It's the conclusions that are debated, " he said, "but not the raw data... " Still its determination that the park, "in some instances selectively presented, over interpreted, or misrepresented the available scientific information" approximates the definition ofscientific misconduct as written in the federal register. "The allegations ofscientific misconduct is based on there being intentional falsification ofdata, " he (Jarvis) said. "Neither the IG nor the Academy found that. What they did find in both cases was overreaching. " Jarvis declined to describe his plan for correcting the public record.

(A)

NPS testified, published, hand-delivered and otherwise disseminated information, reports, documents, data and reports that, according to the NAS "in some instances selectively presented, over-interpreted, or misrepresented the available scientific information on DBOC operations by exaggerating the negative and

overlooking potentially beneficial effects..." These reports, information, documents and data were provided to the Marin County Board of Supervisors, Congresswoman Woolsey, Senators Feinstein and Boxer, other locally elected officials, California Costal Commission, Marin Mammal Commission, California State Resources Agency, MLPA Task Force, California Department ofFish and Game, NOAA among others. Please detail your plan and timetable for correcting the public record with all parties and interests.

(4)

(B)

According to the Inspector General's Report, NPS also provided the same flawed reports, information, documents and data to certain environmental groups including the Sierra Club, Nati.onal Parks and Conservation Association (NPCA) and the Environmental Action Committee (EAC). These groups, today, are actively publishing, disseminating andlor are circulating this flawed and tainted scientific information. Please detail your plan and timetable for correcting the public record with these and other environmental groups.

(C)

Please provide copies of the letters and documents in which the corrections are made.

According to the NPS Pacific West Region News Release on May 5, 2009: "Certainly, we apologize for the errors in our original document [Drakes Estero, A Sheltered Wilderness EstuaryJ and already have taken steps to correct them, " Park Service Regional Director Jon Jarvis said. "We appreciate the thoroughness of the academy's report and especially that academy concurred with many of our conclusions in the final, corrected version of the report"

(A)

IdentifY each ofthe specific "errors" in the original document being referenced.

(B)

Explain the -"steps being taken to correct them."

(C)

You state, "we appreciate ... that the academy concurred with many of our conclusions in the final, corrected version ofthe report." To which "conclusions" are you referring? Itemize and detail.

(D)

Your statement references the ''final, corrected version of the report." We are unfamiliar with such a document. Immediately after the NAS Report was published, we asked the NAS panel for this document and they were unable to provide it. Will you please provide us with a copy of the final, corrected version ofthe Drakes Estero report.

This has been an agonizing ordeal for our family. NPS, since we purchased the oyster farm in January 2005, has been making a sustained series of accusations, claims, and charges - ranging from environmental criminality to environmental harm. Now, it appears as if a "new generation"

of charges is emerging. This is painfully unacceptable. We were heartened by the NPS apology. But a few words in a press release, unfortunately, will not restore our good name -- and neither will it absolve NPS of its responsibility to take responsibility for the damage it has done to us and to itself. NPS must clean up the situation it has created for our family and our community, starting with correcting the record of false NPS claims. We ask that you, in good faith, please clarify this immediately and provide detailed and complete answers to the questions set forth in this letter. Sincerely,

Kevin Lunny

Nancy Lunny

.. Kevin Lunny"

02/19/200901 :18 PM

To '''Banks, Gina I(Feinsteinl)'" , , ee "'Watts, John I(Feinsteinl)'" , '''Molinari, Jim I(Feinsteinl)'" bee Subject RE: draft agenda for tomorrow

Thank you, Gina, Please send us any updates, changes or proposed amendments to the January 9'" NPS/ALC relocation proposal. We will need this to prepare for tomorrow's meeting. Kevin

From: Banks, Gina (Feinstein) [mailto:[email protected]]

Sent: Thursday, February 19, 2009 12:46 PM To: [email protected]; Kevin Lunny; [email protected] Cc: Watts, John (Feinstein); Molinari, Jim (Feinstein) Subject: draft agenda for tomorrow Hi everyone,

Attached is a draft agenda for tomorrow's meeting. There may be som,e additional changes. Please let me know if you have any questions. Best, Gina Banks Director of Field Services Office of U.S. Senator Dianne Feinstein One Post Street, Suite 2450 San Francisco, CA 94104 Phone: (415) 393-0707 Fax: (415) 393-0710

Jon Jarvis/OAKLAND/NPS

01107/200906:43 PM

To "George Turnbull" .. "Holly Bundock" .. "Don Neubacher" . cc bcc Subject Fw: Drakes Bay Oyster Co.

Fyi Sent from my BlackBerry Wireless Handheld Jonathan B. Jarvis Regional Director Pacific West Region 510-817-1304 Oakland 206-220-4010 Seattle

original Message ----From: llKevin Lunny" [[email protected]] Sent, 01/07/2009 04,25 PM PST To: n'Devin Bartley'lT i ulTom Moore' II i ; David Graber; Jon Jarvis . Subject' RE, Drakes Bay Oyster Co.

Devin, This will acknowledge your email and suggestion. It appears that you were provided some information about what's unfolding, but not all of it. On December 16 1 the Senator's office contacted me advising that they inserted an amendment into pending legislation that would codify my renewable permits with the NPS. The next day, December, 17, several members of -Feinstein1s staff, including her State Director, Jim Molinari, contacted me and said the Park Service knew about the pending amendment, and apparently in response, went to Senator Feinstein and announced that they had a comprehensive Tomales Bay Relocation Proposal and wanted me to consider it. I was informed that the Senator ' recommended that it be considered as well. but if it wasn't as good as or better than what we had in Drakes Estero, she would proceed with the amendment. Given the Senatorls request, I agreed to evaluate the proposal a,nd was told to expect it shortly "fter the call. It did not arrive. On Friday, December 19, I contacted the SenRtor's office and said, IIhey folks, haven't heard anything. II That generated another call from Feinstein staff in California and Washington. This time, I was informed that an unnamed NGO, not NPS, would be contacting me. Sure enough, Kerry OIToole, President, American Lands Conservancy, called-and asked to meet the following Tuesday, Christmas Eve and one of the busiest days of our work year. Notwithstanding the bad timing, I agreed to meet - conditionally, but insisted that I have the relocation proposal-, have an opportunity to review it. O'Toole sent me a document - either later that day or Monday. It

detailed everything I would relinquish, but not a single detail about the relocation proposal. When I called her on Monday, she and I agreed to meet after the fi·rst of the year, with Kerry openly a:cknowledging that she was brand new to this, knew very little and needed time to put "her arms around it. Within hours, I was accused of canceling the meeting and Jim Molinari strongly urged that the meeting occur. When we met, she had nothing to say about relocation. Immediately after Christmas, Molinari called. He was startled when I told him that I didn't have a proposal. He assured me that I would have the proposal immediately. Further, he indicated that Senator Fei~stein wanted to talk to me and we scheduled a telephone meeting the morning of December 30.

Senator Feinstein pushed me hard, and was almost critical for my failing to respond to the NPS proposal. She did not know that NPS had failed to produce the proposal - now 13 .days after NPS said it w6uld be sent to me within moments. It is fair to say that the senator was not pleased, surprised - and perhaps even stunned. Based on earlier discusstons with NPS, Senator Feinstein discussed with me the details of the pending proposal including leases for growing oysters, similar production, piers, on-shore facilIties r a retail store, cannery and packing shed, worker housing. She also imposed an "equivalency standard, II telling me that the NPS relocation proposal had to represent a situation that was as good as or better than what we have in Drakes Estero. Senator Feinstein told me that the much-discussed relocation proposal would be in hand within hours, and directed her staff to make sure it happened. It didn t happen. No proposal arrived on the 30th. As we were clo.sing on New Year's Eve, I received an email, not with a relocation proposal, but a bare-bones multiple choice buy-out proposal. I was then expected to attend a meeting on January 2 to discuss it. I

This week, I again explained to the Senator's office that the oft-discussed relocation proposal was nowhere to be seen. Yesterday, Jim Molin?ri finally admitted to me that Jarvis ·had no proposal. Then, I get an invitation from you to attend another meeting to discuss the same thing. It's January 7. It r s been three weeks since a proposal was· supposed to be lIon-my-desk-within-the-hour. rr We have yet to see the NPS proposal and now learn it never existed. Once NPS finalizes its proposal, based on the equivalency standard as represented, we will evaluate it. After that, and if appropriate, further discussions can then be scheduled . . But to schedule a meeting in order to discuss a non-existent relocation proposal is inappropriate and premature. In the meantime, CFDG needs to know that we have completed a review of a NPS presentation to the Nat"ional Academy of Sciences and have now uncovered an entirely new generation of made-up science. NPS falsi.fied key data upon which their report is based. We are finalizing our research now and it will be released shortly. Devin, please don't misinterpret these comments. You and your agency are responding to Jarvis and others. I have no problem with that. The NPS

handling of this matter has been less than appropriate. Kevin -----Original Message----From: Devin 'Bartley [mailto:[email protected]] Sent: Tuesday, January 06, 2009 2:33 PM To: Tom Moore; [email protected]; [email protected] david [email protected] jon [email protected] Subject: Drakes Bay Oyster Co. Dear colleagues, We are trying to arrange a meeting where we can all sit together and discuss

objectives, plans, options and

constraints to resolving the issues

surrounding DBOC. I understand time is tight and we should try to have a meeting as soon as possible. Tom and I are both available after 2 on Friday., 9 January. Would it be possible to meet somewhere in Marin county, Friday afternoon to avoid SF traffic. I regret I have no specific venue in mind, but there must be a convenient- office of coffee shop. I know John is tr"aveling, but I understand someone else from NPS would attend. If this time is inconvenient please let me know what would work for you all. My available dates are: Thurs 8 Jan 9-11; Fri 9 Jan all day Mon 12 Jan 1-5 Thurs 15 Jan 1-5; Then I am gone until 9 Feb. It may not be necessary for both Tom and I to be-there if scheduling gets too difficult. Please let me know asap what could work for you and if you have creative -ideas for a venue. Regards, Devin

Devin M. Bartley, PhD State Aquaculture Coorpinator Department of Fish and Game 1416 9th Street 12th Floor Sacramento, CA 95814 Tel. Office: (916) 651 7824 Cell:, (916) 202 0317 [email protected]

Jon Jarvis/OAKLAND/NPS 12/31/200802:45 PM

To "Kerry OToole" , [email protected], cc

j([email protected]

bee Don Neubacher/PORE/[email protected] Subject meeting on Friday location, 2:00 PM~ Jim, Kerry and Kevin: Our meeting location on Friday is NOT at Cavallo Point. On such as short notice, I could not get a room. Instead I have got a meeting room nearby out near Rodeo Beach at the Headlands Institute. We will stilll be on the Marin side of the Golden Gate Bridge. . For refresher on getting out to Rodeo Beach 1 Fort Cronkhite 1 Headlands Insitute Campus- it is at the very end of Bunker Road, which intersects with Alexander Avenue, the road ·into Sausalito just north of the GG Bridge. From the north, take the off-ramp just before getting onto the bridge, then curve to the right, back under 101 and one stop sign, then left at the signs for Cavallo Point, US Coast Guard. Go to the tunnel entrance, hope the light is green, and blitz on through. From the south, once over the GG Bridge, take the first real exit (after the bridge vista point) - Alexander Avenue, and drop down hill to the left turn to the tunnel. Through the one-way Baker-Barry tunnel and keep going on Bunker Road, turn up hill and to the right just as you get to the beach, and then an immediate left (Stennis, I think, if it's even signed) and park in the east parking lot, which is right next to the Marine Lab (Building 1111) where the Coast Room is the eastern-most end of the building and is marked on the map 1 photo with the square around it. I have the room reserved for two hours and will get there early to wave everyone in. My cell is 510-541-9288 but reception is weak out there. Jonathan B. Jarvis Regional Director Pacific West Region 510-817-1304 Oakland

~

Map to Coast Room, Headlands Insti!u!e.JPG

See you Friday.

· "Kevin Lunny"

To

m>

ee


11/17/200805:35 PM

bee

Subject RE: Saturday Morning 11/15/08 NPS visit

Don,

Thank you for the response. Our staff was sure that it was a NPS uniform. Our staff was either mistaken or the photographer was sent from somewhere in the NPS besides PRNS. THANK YOU for taking care of the grading of the oyster farm driveway. Great improvement. If we were allowed to perform regular maintenance to the driveway as was customary in 'the past, the road would not reach this level of disrep~i.r and it would be less burdensome to PRNS maintenance staff. Kevin

-----Original Message----From: Don [email protected] [mailto:Don [email protected]}

Sent: Monday, November 1·7, 2008 1:24 PM-

To: Kevin Lunny Subject: Re: Saturday Morning 11/15/08 NPS visit Kevin, I checked with law enforcement and other park staff this morning and discussed this issue at our staff meeting. No one knew of any park staff visiting the site on Saturday morning. Also, Point Reyes NS does not have a government black car. In addition, no senior staff member asked anyone to go to. the oyster processing facilities. We assume it was another agency visiting the area. On another subject, we bladed the entrance road on Friday to ensure it was in good shape for the warm weather.

Don

Don Neubacher Superintendent Point Reyes National Seashore Point Reyes Station, CA 94956

415-464-5101 (office) 415-663-8132 (fax) The National Park Service cares for special places saved by the American people so that all may experience our heritage.

"Kevin Lunny" 11 I

Don Neubacher \ (E-mail \)

To I "

11/15/2008 02:30 PM



SubjeCt Saturday Morning 11/15/08 NPS visit

Don, This morning, a Saturday morning, at around 7:30 AM a NPS employee (in uniform) arrived at the oyster farm in an unmarked black car with US Govt. plates. The oyster farm staff was busy with regular duties - removing cultch with seed from the setting tanks. The NPS official began to photograph the oyster farm employees while they were working. The workers were very uncomfortable with the position that the NPS official put them in. They told me that they £e,lt intimidated because the NPS official made "no effort to introduce himself or state the purpose of the visit. One would expect the NPS to use common decency and let our staff know why he was there and why he was photographing them at work. What were the instructions given to the NPS employee that arrived at the oyster farm this morning? Why was he there on a Saturday morning at 7:30? What is tbe purpose of the photographs? Why was no notification given to DBOC before the visit? Sincerely, Kevin Lunny

Don Neubacher/PORE/NPS

To "Kevin Lunny"

11/17/200801 :24 PM

cc bcc Jon Jarvis/OAKLAND/NPS Subject Re: Saturday Morning 11/15/08 NPS visit~

Kevin, I checked with law enforcement and other park staff this morning and discussed this issue at our staff meeting. No one knew of any park staff visiting the site on Saturday morning. Also, Point Reyes NS does not have a government black car. In addition, no senior staff member asked anyone to go to the oyster processing facilities. We assume it was another agency visiting the area. On another subject, we bladed the entrance road on Friday to ensure it was in good shape for the warm weather. Don

Don Neubacher Superintendent Point Reyes National Seashore Point Reyes Station, CA 94956 415-464-5101 (office) 415-663-8132 (fax) The National Park Service cares for special places saved by the American people so that all may experience our heritage. "Kevin Lunny" "Kevin 18un-n,¥" 11/15/200802:30 PM

To "'Don Neubacher \(E-mail\)'" cc Subject Saturday Morning 11/15/08 NPS visit

Don, This morning, a Saturday morning, at around 7:30 AM a NPS employee (in uniform) arrived at the oyster farm in an unmarked black car with US Govt. plates. The oyster farm staff was busy with regular dutiesremoving cultch with seed from the setting tanks. The NPS official began to photograph the oyster farm employees while they were working. The workers were very uncomfortable with the position that the NPS official put them in. They told me that they felt intimidated because the NPS official made no effort to introduce himself or state the purpose of the visit. One would expect the NPS to use common decency and let our staff know why he was there and why he was photographing them at work. What were the instructions given to the NPS employee that arrived at the oyster farm this morning? Why was he there on a Saturday morning at 7:30? What is the purpose of the photographs?

Why was no notification given to OBOe before the visit? . Sincerely, Kevin Lunny

L14~5

02d06

N9"~~~~~4l296%·

"Daryl Boness" 10/16/2008 08:56 AM

..,-,. - --'---".-'

---"..--- -

To

cc "Marine Mammal Science" bcc Subject Decision on "Modeljng the effects of EI Nino, density dependence,and disturbance on harbor seal counts ... "

-,,--'"------

------

--------~-~~--"--

-_.

-

Dear Dr. Becker: I have now received input from some of the original reviewers and Associate Editor on your replies to the concems and questions raised by Dr. Corey Goodman (and others with similar points being made) concerning your in press paper entitled "Modeling the effects of EI Nino, density dependence, and disturbance on harbor seal counts in Drakes Estero, California: 19972007." I have also spoken (or emailed) with Dr. Susan Roberts of the NRC and Dr. Tom Moore of the California Fish & Game. I am satisfied that there is no basis for considering pulling your paper from Marine Mammal Science for ethical grounds (scientific misconduct). The r",views I received based on your responses to Dr. Goodman's questions and your new analyses suggest there is no need to even revise your manuscript before publication should be allowed. I concur with the reviewers that the paper should be allowed to move forward with publicatipn, but I also believe it would be best to include the updated information and improved analyses that you have proposed in your emails to me. In the revised paper, you should acknowledge the questioned data point and at least nOle that the conclusions would not change whether this point is included or not. Since you have information available on the 2008 harbor seal and oyster harvest levels I would also like to see you include in the discussion a statement about how this might affect your conclusions. It would be helpful if you identified in the revised paper where you have made the substantive changes as you indicate you will in your email replies. I will process your revised paper as quickly as possible once I receive it. I appreciate your cooperation in this unusual situation regarding your paper that was accepted for publication in Marine Mammal Science. Sincerely, Daryl J. Boness Editor Marine Mammal Science

"Daryl Boness"



10/25/2008 08:23 AM

To cc "Marine Mammal Science" . bcc Subject re: MMSCI-2668.Rl/MMS 234{additional changes)dec!sion

Dear Dr. Becker I have made a couple of minor editorial corrections, but otherwise am satisfied with the changes you have made. I believe these revisions have improved your paper and appreciate the effort you have made to address the concerns'. You can now consider ·the paper accepted once again. I am pasting in below the standard letter following acceptance of a manuscript to be sure you know that you have to send Rick Henley a'final revised manuscript in proper format. ·If you need the usual attached documents that go with this. letter, email Rick to get .them. In talking with Rick we have decided we will keep your acceptance date as that associated with the ~cceptance bf MMSCI.Rl since that determines the order'of publication. As long as you turn around the final submission reasonably quicly your paper should still appear in the next issue. Sincerely, Daryl J. Boness Editor . Marine Mammal Science Previous letter sent to you at the acceptance of MMSCI-2668.Rl: I am very pleased to inform you that your revised Article entitled 1IMODELING THE EFFECTS OF EL NINO, DENSITY-DEPENDENCE, AND DISTURBANCE ON HARBOR SEAL (PHOCA VITULINA) COUNTS IN DRAKES ESTERO, CALIFORNIA, i997 - 2007" has been accepted for publication in Marine Mammal Science. In order to proceed with publication we will need your final text file in Word with any tables and figure captions' included in this Word file. Refer to the guidelines and checklist attached for assistance with style and formatting. Please save line artwork (vector graphics) a~ high resolution Encapsulated PostScript (EPS) or PDF files. The lines should still appear sharp when zoomed. to 400% final size. Save bitmap files (halftones or photographic images) as Tagged Image Format (TIFF) files, with a resolution of at least 600 dpi at final size. Symbols and abbreviations must follow journal style. More detailed information on the preparation of electronic artwork can be found at http.//www.blackwellpublishing.com/bauthor/illustration.asp. Once the final manuscript and figures 'are prepared, please submit them by e-mail to [email protected] Files that are formatted incorrectly will be returned for correction. Plea.se seek assistance with the preparation' of your figures if you cannot create high resolution files in the correct format. Submitting low resolution files will delay the publication of your manuscript. Color figures must be specified and paid for in advance of publication. The

[2668]-1 PREPAGEPROOFS-NOTFINALCOPY

LRH: MARINE MAMMAL SCIENCE, VOL. 00, NO. 0, 2009 RRH: BECKER ET AL.: MODELING HARBOR SEAL DISTURBANCE

Modeling the effects of El Nino, density-dependence, and 5

disturbance on harbor seal (Phoca vitulina) counts in Drakes Estero, California: ·1997--2007

BENJAMIN H. BECKER

Pacific Coast Science and Learning Center, 10

Point Reyes National Seashore, 1: Bear Valley Road,

Point Reyes Station, California 94956, U.S.A. E-mail: [email protected]

15

DAVID T.

PRESS

Inven·tory and Monitoring Program, Point Reyes National Seashore, 1 Bear Valley Road, Point Reyes Station, California 94956, U.S.A.

20 SARAH G. ALLEN

Point Reyes National Seashore,

[2668]-2

PRE PAGE PROOFS - NOT FINAL COPY

1 Bear Valley Road, Point Reyes Station, California 94956, U.S.A.

[2668]-3

PREPAGEPROOFS-NOTFINALCOPY

25 ABSTRAc:r

Harbor seal (Phoca vitulina) haul-out site use may be affected by natural or anthropogenic factors. Here, we use an 11-yr (1997--2007) study of a seal colony located near a 30

mariculture operation in Drakes Estero, California, to test for natural (EI Nino-Southern Oscillation (ENSO), densitydependence, long-term trends) and anthropogenic (disturbance or displacement related to oyster production activities)

factors

that may influence the use of haul out subsites. Annual 35

mariculture related seal disturbance rates increased ~

significantly with increases in oyster harvest (rs = 0.55). Using generalized linear models ranked by best fit and Akaike's Information Criteria, ENSO and oyster production (as a proxy for disturbance/displacement) best explained the patterns of seal 40

use at all three subsites near the mariculture operations, with effects being stronger at the two subsites closest to operations. Conversely, density-dependence and linear trend effects poorly explained the counts at these subsites. We conclude that a combination of ENSO and mariculture activities

45

best explain the patterns o·f seal haul-out use during the

[2668]-4 PREPAGEPROOFS~NOTFINALCOPY

breeding/pupping season at the seal haul-out sites closest to oyster activities. Key words: information-theoretic, ArC, Phoca vitu1ina, harbor seal, disturbance, Point Reyes, Drakes Estero, El Nino, density50

dependence, maricul ture .

PREPAGEPROOFS-NOTFINALCOPY

The Pacific harbor seal (Phoca vitulina richardii) ranges along the eastern Pacific from Baja California to Alaska, and in north-central coastal California, they are the dominant and only year-round resident pinniped (Sydeman and Allen 1999, Burns 55

2002). The population at Point Reyes, California represents the second largest concentration of harbor seals in the State of California, accounting for about 20% of the mainland breeding population, and the most seals per haul out site in the state occur between 37.5° and 38.0 N. ' Much of the Point Reyes coastal 0

60

zone remains relatively pristine within a national park, and provides diverse marine and terrestrial habitat for seals to rest, molt, feed, and breed where human encroachment is minimal, in contrast to urbanized locations nearby such as San Francisco Bay (Sydeman and Allen 1999, Grigg et al. 2004).

65

Harbor seals are unusual for a large marine predator because they occur almost exclusively in nearshore habitats, and as a pinniped, they come onshore at traditional terrestrial sites to breed and rest (Burns 2002). Typically, seals attend haul out sites year round and spend about 33%--55% of their time

70

onshore (Yochem et al. 1987, Allen Miller 1988). The number of seals present at any given haul-out site is influenced by several factors including time of day, tide level, current

[2668]-8

PRE PAGE PROOFS- NOT FINAL COPY

The Point Reyes peninsula, along the north-central California Coast, extends from Tomales Bay (38°30'N) south to Bolinas Lagoon (37°30'N). The peninsula is located within the Point Reyes National Seashore and adjacent to the Gulf of the. 120

Farallones National Marine Sanctuary. The topographic diversity of this coastal zone provides a broad range of substr.ates for harbor seals to haul out of the water. These include tidal mud flats, offshore and onshore rocky tidal ledges, and sandy beaches. A "haul-out site" is defined as a terrestrial location

125

where seals aggregate for periods of rest, birthing, and suckling of young (Harvey 1987). A colony site may be a collection of haul-out sites within a limited geographic area. Drakes Estero and Estero de Limantour encompass a complex of eight subsites where seals haul out

130

(Fig. 1), which are referred

to collectively as the Drakes Estero/Limantour colony. Seals use the subsites at various times of the year depending upon their reproductive status, molting condition, and the level of disturbance encountered (Allen Miller 1988). All subsites are used during the breeding and molt seasons, and some are used

135

regularly year-round. Females with pups have disproportionately

,

used the sand bars exposed at low tide in the upper and middle portions of the Estero that are isolated from the mainland, and

[2668]-9 PREPAGEPROOFS-NOTFINALCOPY

consequently from humans and predators. Limantour Spit was mostly used by non-breeding seals during the breeding season

140

(Allen Miller 1988). Subsites in the middle-lower estero, which are generally closer or attached to the mainland, have historically suffered higher human disturbance rates when compared to the isolated island sandbars of the upper estero. Human access to the seal haulcout sites within Drakes

145

Estero was limited because it is part of a national park and a congressionally designated wilderness area; During the breeding season (1 March--1 July), no boats were allowed within the Estero except for the non-conforming (to congressionally designated wilderness) uses by a commercial oyster operation.

150

Three of the subsites where seals haul out are proximate to this commercial oyster operation (UEF, OB, and UEN). Subsite OB is within the oyster lease but was not used much for oyster culture in the recent past (1999--2004), portions of subsite UEN were within or adjacent to the lease, and subsite UEF was in a

155

navigational channel that bisects a gap in the oyster lease where oyster boats traversed Drakes Estero (Fig. 1). Oyster production and oyster culture methods used within the estuary have varied over the past 50 yr. However, the primary methods included oyster racks (measuring approximately 3

[2668]-10

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160

x 30 m each), stakes, and bags (each measuring 0.5 x 1 m). In 2007 most of the racks were distributed in the upper portion of the estuary and >1,000 oyster bags (estimated) were distributed along the margins of the estuary, on intertidal sandbars in the center of the bay and in Home and Creamery Bays (Fig. 1).3 Oyster

165

production levels were high between 1981 and 1998 (annual production ranged from 3 to 9 million oysters per year) and reduced between 1999 and 2005 (annual production <2 million oysters per year). Production then increased to about 3.5 million (-136,000 kg) oysters in 2006, and.-211,000 kg oysters

170

for 2007 (Fig. 2A, B). 4,

5

Surveys The National Park Service (NPS) conducted surveys of harbor seals throughout the year from 1996 to 2007, but surveys were more frequent during breeding (1 March--30 May) and molting (1 175

June to 1 August) seasons (2--4 times per week, depending on weather). Trained volunteers and NPS staff conducted surveys at medium to low tides (below 2.5 .ft [0.76 ml) during the day. Surveys were not conducted in heavy fog or rain because of poor visibility. NPS data collection began in 1996 but we were not

180

able to completely discern all subsite count data in that first year since a few subsites were grouped on some surveys. We

[2668]-11

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therefore analyzed disturbance data from 1996--2008, and count data from 1997--2007. Surveys were designed to capture the seasonal peak numbers

185

at several of the Point Reyes seal colonies, including the Drakes Estero/Limantour colony, and to detect disturbances that might affect seasonal peak numbers at·each colony. Survey periods lasted at least two hours, with counts occurring every half~hour.

190

Each subsite was surveyed separately, and added to

other subsites to obtain a total count for the entire colony. All subsites were visible from one survey location. For each subsite, the observer recorded the total number of. adult/immature seals, pups, and dead pups present. Because of the difficulty in distinguishing adult from immature seals,

195

these two groups were combined. Pups were the young of the year and, after weaning, were difficult to distinguish from yearling seals. Consequently, pup numbers were reliable only from 1. March to 1 June. Surveys were conducted with binoculars and a 40--50x monocular spotting scope from a bluff on the western edge of

200

Drakes Estero (Fig. 1). Disturbances of the seals were recorded during each survey, and within a survey, multiple disturbances could occur.

We

defined disturbance as any activity that elicited a reaction by

[2668]-12

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the seals; which was either a head alert, a flush towards water, 205

or flush into water. Disturbance rate (# disturbance events / # surveys during March--July of each year) was analyzed from 1996-2008 for the upper estero subsites and we tested for a correlation in mariculture related disturbance rate in relation to annual oyster harvest using a 1-tailed Spearman ranks test.

210

We also used a non-parametric Wilcoxon rank test to see if oyster harvest differed in years with or without mariculture related disturbances. To be conservative, if two or more activities

(e.g., oyster boat and a kayak) appeared to cause a

seal disturbance, the event was categorized as "non-oyster" 215

related. Data preparation We selected count data from Drakes Estero within the historical peak of the pupping season (15 April--15 May) during 1997-c2007. These data were then filtered to remove:

220

(1) data

from observers with less than one year of survey experience, observations at tide levels above +2 ft

(+0.61 m)

(2)

(MLW) when

fewer seals would be present because some subsites might be submerged (Allen Miller 1988, Grigg et al. 2004), and (3) observation dates where weather reduced visibility. Tide level 225

and tide time were standardized to the Golden Gate Bridge, San

[2668]-13 PRE PAGE PROOFS-NOT FINAL COPY



Francisco (PST). To ensure that variation in tide levels

~2

ft

(0.61 m) did not affect counts, we tested for correlations between tide level and counts at all of the eight subsites and found no relationships (Spearman ranks test, all rs < 10.241, n =

230

104). Temporal autocorrelation plots of means by year indicated no significant autocorrelations at any time lag (all r

<

0.5).

The data from all 104 surveys used in this analysis were checked for accuracy against the raw data forms and by comparing subsite data with the sum of counts from the full Estero. Between 6 and

235

15 surveys (mean

=

9.5 ± 2.9) were completed in each year during

this period. We also graphically compared pupping season counts with the five other primary local harbor seal colonies within 30 km of Drakes Estero from 2000 to 2007 to provide a regional context. 240

Analyses

We hypothesized that there could be four potential effects on counts at two of the subsites closest to the mariculture operation in the upper estero (OB and UEN).: trend through time,

245

(1) year as a linear

(2) density-dependence, defined as total

seal counts in the middle-lower Estero away from mariculture operations (L, A, A1, DEM, DBS) , event (1991--1992 and 1997--1998;

(3) years since the last ENSO

PREPAGE PROOFS-NOT FINAL COPY

[2668]-14

http://www.pmel.noaa.gov/tao/elnino/), and (4) mariculture activity measured as the weight of oysters harvested (x 10 5 lbs)

250

during the same year. We assumed that the oyster harvest variable represented the combined effects from boat traffic, human activity, and oyster bag placement that may displace or disturb seals. Candidate models included between one and three of the above factors; year and ENSO were not used in the same

255

models since both represent time and they were correlated. Density-dependence data was limited to the middle-lower estero counts since the upper estero subsites were being modeled as dependent variables and including them would lead to lack of independence between independent and dependent variables. For

260

exampie, if oyster harvest was impacting any of the upper estero subsite counts, then using those counts as independent variables in the model would lead to a lack of independence. This could result in using overlapping data in both the independent and dependent variables.

265

To investigate the robustness of the models to how densitydependence was calculated, we also investigated densitydependence effects on an annual (mean) basis (in addition to daily, as described aboye). Similarly, we also investigated modeling oyster harvest with a 1-yr time lag. Since time from

[2668]-15

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270

oyster planting to harvest is about 18 mo, any effects due to harvest levels could potentially begin to be expressed sometime during the 18 mo prior to harvest. 5.

6

However, in Drakes Estero,

most oyster related activity occurs near seal haul-out sites OB and UEN for only 3--4 mo prior to harvest. 7 Consequently, we 275

focus on same year oyster harvest effects in the analyses and results. Lastly, we considered lowest tide height during the survey as an additional covariate. Linear mixed-effects models were also tested using ENSO as a random effect. For analyses of total counts at subsites OB and UEN, we

280

built generalized linear models (GLM). Daily counts were overdispersed (i.e., variance greater than the mean and increasing with. the mean), and we therefore used a negative binomial distribution to model the data (Venables and Ripley 2002, Insightful Corp. 2003, Crawley 2005) and ranked each model

285

using Akaike's Information Criterion corrected for small sample sizes

(AIC c )

(Burnham and Anderson 2002). Lower AIC c values

indicate a more parsimonious model that better explains the pattern in the data while penalizing the addition of trivial parameters. For the negative binomial distribution, we used a 290

maximum likelihood estimation of

e

(shape parameter for the

negative binomial distribution) for both UEN and .OB using the

[2668]-16

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glm.nb function in S-Plus (GLM with negative binomial distribution)

(Venables and Ripley 2002). These values (1.0 for

OB and 1.6 for UEN) were subsequently used in all GLM models 295

because B must be kept constant to compare maximum likelihood (and hence AIC c ) between models using the same dataset (Venables and Ripley 2002). We report the nAIC c value, Akaike weights (Wi), and pseudo y> (Maddalla 1983) to present the level of confidence in each model.

300

To validate the best model at OR, we used the best fitting GLM model parameters to predict counts at UEF using a scaling parameter that divided the mean counts at UEF from 1997--2007 (26.4) by the mean counts at OB (83.6) for the same period (ratio = 0.32). We then compared the predicted and actual counts

305

at UEF for each year using a Pearson correlation. Lastly, we constructed a regression tree with the software program R to illustrate and test the interactions between independent variables (year, ENSO, density-dependence, and oyster harvest in the same year) on combined OB and UEF harbor seal counts.

310

Statistical analyses were done with S-Plus 6.2 (Insightful Corp. 2003).or R 2.7.2' (R Development Cor" Team 2008) using the MASS library (Venables and Ripley 2002) . RESULTS

[2668]-17 PREPAGEPROOFS-NOTFfNALCOPY

Seal attendance varied at all three upper Drakes Estero 315

subsites from 1997--2007; however, the amount of change varied amongst thesubsites. At subsite OB, both the maximum and mean counts for seals and pups were lower from 1998--2001, higher from 2002--2004, and then lower for 2004--2007. Oyster harvesting show.ed a U-shaped pattern, declining in the early

320

part of the study period and increasing in 2005 (Fig. 2A). Disturbance rates in the upper estero (subsites OB, UEF, UEN) significantly increased with oyster harvest

(rs

= 0.55, P

<

0.03). This correlation is highly robust to sample size. For example, there was still a significant positive correlation (r s 325

0 . 53, P

<

0.04) of disturbance rate with oyster harvest even

when removing the 2006 disturbance, four of the 2007 disturbances (including two disturbances on one day in 2007 that the mariculture company challenged), and four of the 1996 disturbances (nine total) from the analysis. Similarly, oyster 330

harvest levels in years with oyster related disturbances were significantly higher (U=43, n= 13,

P,-tail

<

0.04). Only one

mariculture related disturbance was recorded in the middle-lower estero during the study. This was at subsite A in 2003 and was likely due to a state mandated water quality testing trip.

[2668]-18

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335

The best GLM model to explain seal counts at OB

(Wi =

0.65)

included years since ENSO and oyster harvest (Table 1). The coefficients indicated that seal counts had a positive relationship with years since ENSO and a negative relationship with oyster harvest (Table 2). The second ranked model (oyster + 340

ENSO + Density-dependence) was similar to the first model with the inclusion of

density-depend~nce

as a non-significant

variable· (Wi = 0.32). Thus, the top two models had a total

Wi

of

0.97 and consisted primarily of years since ENSO and oyster harvest. Pseudo r2 was moderate (0.37-0.38) for these two best 345

models and declined rapidly thereafter to <0.29 for the remaining models. Predicted counts at UEF using the scaled best fit/lowest AIC c model from OB fit well (r = 0.66, P < 0.04), strongly suggesting that similar processes (ENSO and oyster harvest) were

350

driving the counts at both OB and UEF (Fig. 3A). In fact, all years except the highest oyster harvest years (1997, 2006, 2007) fit extremely well. The only significantlY correlated (P < 0.05) variables were year and ENSO (r s = 0.89), and ENSO and subsite OB counts (r s

355

=

0.64). Daily density-dependence was not correlated

with counts at OB (r s = -0.12), but mean annual

~ensity-

{2668]-19

PREPAGEPROOFS-NOTFfNALCOPY

dependence was using ranks tests (rs

0.65) but not Pearson

tests (rp = 0.43, P > 0.18). Using density-dependence as an annual mean rather thana daily value and/or oyster harvest with a I-year lag effect still

360

resulted in oyster harvest (with a significant negative coefficient) being included in all of the best (lowest ArC c / highest r2) models at OB. For example, if considering densitydependence on an annual mean basis,

(not shown in tables), the

best model included density-dependence, ENSO and oyster harvest

365

(same year) all as significant (P

<

0.004) variables and oyster

harvest still had a negative coefficient similar to that in Table 2. However, removing oyster harvest from the model increased Arc by -6.7, indicating that failing to consider oyster harvest results in a model with much lower confidence

370

(Burnham and Anderson 2002). Tide height effects were not important in any models and did not appear in the highest ranking models. Linear mixed-effects models (termed non-nested or crossed random effects)

(Faraway 2006) using ENSO as a random

factor also resulted in a significant negative oyster harvest

375

coefficient. Model results were also not affected by including components for temporal autocorrelation. Residual plots for the

PRE PAGE PROOFS- NOT FINAL COPY

[2668]-20

GLMs showed no issues with homoscedasticity or increasing variance.

Models for subsite UEN, which is farther from the oyster 380

operations, all had poorer fit than OB (all pseudo r' < 0.17), but oyster harvest and ENSO were once again in the best (lowest AlC c ) model with an Akaike weight of 0.41 (Fig. 3B, Table 1). However, the model containing only year as an explanatory variable ranked second and had an Akaike weight of 0.20, which

385

partially reduces our confidence in the top model. The regression tree for counts at OB and UEF combined also confirmed the patterns found by the GLMs. ENSO explained much of the variation, and an increase in oyster harvest explained the significantly lower counts (from 255 ± 62 seals down to 118 ±

390

62) once ENSO effects had subsided (Fig. 4). The tree was grown until additional nodes had a negligible «5%) additional reduction in model deviance. Residual plots of the regression tree model indicated that the model was sound. Five other colonies in the region showed a different

395

pattern than Drakes Estero subsites UEF, UEN, and OB, as well as Drakes Estero as a whole (Fig. 5) .. Bolinas Lagoon, Tomales Bay, and Duxbury Reef showed stable popUlations during the time series. The Double Point haUl-out site suffered from an

[2668]-21

PREPAGEPROOFS-NOTFINALCOFY

aggressive male elephant seal (Mirounga augustirostrus)

400

that killed approximately 40

in 2003

(mostly female) and chronically

harassed 100s of harbor seals ·throughout the breeding season. Coincidentally, the Drakes Estero colony had an abrupt peak in 2003, possibly due to movement of some of the seals from Double Point. The Tomales Point colony showed a small increase over

405

time. Finally, middle-lower Drakes Estero counts (used to analyze density-dependence in t.his paper: subsites A, A1, DEM, DBS, and L) were relatively stable from 2000 to 2006, and similar to the entire estero, had a one-year peak in 2003 that may have been related to the displaced seals from nearby Double

410

Point, and then a small decline in 2007. DISCUSSION

pinnipeds, and harbor seals in particular, are vulnerable to human disturbance at haul-out sites where they rest, molt and raise their young (Seuront and Prinzivalli 2005, Grigg et al.

415

2002, Perry et al. 2002, Suryan and Harvey 1999, Allen et al. 1984, Kenyon 1972). Determining the level of effect from human activities, though, is difficult because of confounding factors such as environmental variables and mUltiple disturbance sources. Additionally, many studies are of short duration,

420

focusing on short-term issues and do not account for factors

PRR PAGE PROOFS.., NOT FlNAT. COPY

[2668]-22

such as density-dependence on long-term trends of populations (Johnson and Acevedo-Gutierrez 2007, Perry et al. 2002, Grigg et al. 2002).

This study illustrates the utility of concurrently modeling 425

anthropogenic and environmental factors using a priori hypotheses and information-theoretic (i.e., AIC) model selection to explain observed patterns in wildlife counts. Here, we provide evidence that from 1997 to 2007 seal counts at Drakes Estero subsitesOB and UEF increased after the last ENSO and

430

then declined with an increase in mariculture activities around 2005. The strong ENSO in 1998 had widespread ramifications for

many upper trophic level predators in the California current, and in harbor seals, who may forego breeding and pupping in years of low available forage while spending more time foraging 435

(Lee et al. 2007, Grigg et al. 2004, Benson et al. 2002, Sydeman and Allen 1999, Trillmich and Ono 1991). The upper estero subsites were used mainly for pupping and molting because. they are islands, and therefore generally have lower human and natural disturbance rates.

440

Mariculture operations likely began increasing by 2005 to generate the increases in harvesting seen in 2006 and 2007, as time from oyster planting to harvest is typically around 18 mo

[2668]-23 PRE PAGE PROOFS-NOT FINAL COpy

in Drakes Estero, with the latter 3--4 mohths being in areas closer to seal haul out sites OB and UEF. This is consistent 445

with observations that there was little or no oyster equipment (e.g., bags) near the OB sandbars from the summer of 2002 to the

summer of 2004

(DTP, unpublished data). Also, aerial imagery

from August of 2005 shows oyster bags on the west end of sandbar OB. After April 2007, there were extensive oyster equipment 450

arrays and bags in this area (Fig. 1). The disturbance data and oyster landings (Fig. 2B, Table 1) suggest that increasing mariculture activities resulted in some combination of increased disturbance from boat traffic, human presence on sand bars, and/or physical displacement of seals from the sandbars by

455

oyster growing equipment. While disturbance would likely occur primarily at low tides when seals were hauled out, surveys that count seals and record disturbance events were only completed during a small fraction of the year (typically <50 d per year, each survey 2--4 h), so all types of disturbance were likely

460

underestimated here. Studies from Washington found that disturbance events that flush seals into the water only resulted in a return to previous numbers 39% of the time (Suryan and Harvey 1999), and results from nearby Bolinas Lagoon.were similar (Allen et al. 1984). Other studies have indicated that

[2668]-24

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465

females with pups may be more vigilant and sensitive to disturbance, and this also may have contributed to the sharp decline of seals at the subsite (OB) in Drakes Estero where mostly females and pups occurred (Lucas and Stobo 2000, Suryan and Harvey 1999, Stein 1989). Such disturbance events in Drakes

. 470

Estero at OB and UEF appear to have produced effects that were detectable during the entire pupping season via reduced seal counts. However, simple displacement due to mariculture activities or equipment without actual disturbance events may equally be driving the patterns observed at OB and UEF.

475

The similar count pattern and good model fit observed at subsite UEF (Fig. 3A) suggests that the same factors were driving counts at both OB and UEF. However, the predictive model also showed that the subsites appeared to decouple when oyster harvest was high (1997, 2006, 2007, and perhaps 2008). This

480

suggests that UEF and OB covary strongly in the absence of high oyster harvest levels. Conversely, it appears that when oyster harvest was high, the subsites (OB and UEF) fell out of sync due to mariculture related disturbance or displacement events. Curiously, there is no consistent directionality in this

485

decoupling pattern (Fig. 3A).

Alternatively, this decoupling

could be related to poorer model fit at the beginning and end of

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[2668]-25

the time series, but since time (year) was not a variable selected or used in the model, this seems unlikely. Counts at subsite UEN, which is slightly further away from 490

mariculture operations, nonetheless showed a significant, but muted response to ENSO and oyster harvesting. While several other subsites in.the estero vary with changes in sandbar morphology, disturbance, predators, and other environmental factors, subsites OB and UEF (and UEN) suffered no such physical

495

changes other than an increase in nearby mariculture use. The generally poor fit for all of the UEN models suggests that other unmodeled factors

(including interactions among subsites) may

affect counts there more than ENSO, density-dependence, or oyster harvest. Additional processes that might influence the 500

seal counts. at UEN include 1) seals are typically farther from oyster operations than those at OB and UEF and thus less susceptible to disturbance, and/or 2) some seals may have moved from OB or UEF to UEN upon being displaced by oyster operations. Distance from a disturbance source has often been documented as

505

contributing to whether seals respond to a human activity (Johnson and Acevedo-Gutierrez 2007, Suryan and Harvey 1999, Allen et al. 1984). Furthermore, changes in sandbar morphology in the middle-lower Estero, might also have affected counts in

[2668]-26 PRE PAGE PROOFS - NOT FINAL COPY

the upper estero because of redistribution of seals. For 510

example, counts at subsite A in the middle estero (Fig. 1) declined dramatically from 2004--2007, due to a naturally shifting sandbar that allowed predator (coyote, Canis Iatrans) access to the site. The displaced seals· appeared to move to other subsites in the estero (for example, subsite A1 increased

515

dramatically as A declined), and this process may have also had

a confounding impact on the counts at UEN. Clearly, the variation at UEN is not very well explained by our candidate models and unknown p·rocesses such as interactions among subsites in the Estero may be partially driving counts atUEN. 520

Additionally, variation in tidal height should not affect the counts since all surveys were conducted at low tides, and multiple counts. were conducted during each survey, with only the highest count recorded and analyzed here. Modeling density-dependence should also control for larger

525

scale regional impacts such as the poorly understood oceanographic anomalies in the California Current reported in 2005 and 2006 that depressed food for many seabirds (Bart·h et al. 2007). For exampl·e, if ocean conditions depressed seal

density in Drakes Estero and this in turn caused less use of OB 530

or UEF due to density-dependent effects, then density-dependence

[2668]-27

PREPAGEPROOFS-NOTFINALCOPY

should have presented a better (more parsimonious) explanation of tl;1e data than "ENSO" and "Oyster"

(Table 1). This would

similarly address any covariation of counts in Drakes Estero compared to other harbor seal haul-out sites in north-central , 535

California due to unexplained interannual variation (Fig. 5) While mean total harbor seal counts in all of Drakes Estero increased from 2000 to 2003

(from -700 to 1,200 individuals),

and then declined from 2003 to 2007

(back down to -750

individuals), ENSO and oyster harvesting still explained the 540

data much better than density-dependence (Tables 1 and 2). This is likely because the middle-lower estero counts were somewhat more stable (Fig. 5). The one year spike in 2003 was likely due to displaced seals from Double Point moving to Drakes Estero. There was also a small unexplained decline in 2007.

545

The significant decline in adults and pups at OB after 2004 suggests that oyster harvesting influenced these numbers; however, the GLM models were fit to actual data, so it would be inappropriate to predict if seals at OB would have continued to increase or asymptote after 2004 in the absence of increasing

550

oyster harvesting. In fact, a square-root (diminishing effects) transformation for ENSO may have also been a reasonable a priori test. Nonetheless, w,hile long-term studies in Washington and

[2668]-28

PRE PAGE PROOFS - NOT FINAL COPY

Oregon noted density-dependence effects at harbor seal colonies (Brown et ai. 2005, Jeffries et ai. 2005), the data for subsite 555

OB in Drakes Estero were most consistent with the hypothesis that a significant portion of the reduced seal count during 2005--2007 was related to the increase in oyster harvesting. Further evidence for the negative effect of oyster harvest levels on counts at subsites OB and UEF comes from the limited

560

data available for 199?

These counts were not used in the GLM

or tree models due to incomplete data, however, five surveys during the peak pupping season showed a mean count for OB of only 47 ± 39 (similar to 1997, 2005, and 2007) during the highest oyster harvest year (587,000 lbs) and the highest 565

disturbance rate during the study (Fig. 2B). The 2008 pupping season presented an opportunity to investigate the immediate effect of a change in oyster operations. In 2008, the California Coastal Commission (CCC) imposed a seal protection zone which restricted some use of the

570

lateral channel adjacent to OB by oyster boats during the pupping season. Thus, boat use in the lateral channel in 2008 was curtailed from use levels during 2005--2007, and concurrently, mean counts at OB increased from about 61 ± 10 (SE) in 2007 to 81 ± 12 in 2008 despite a nominal increase in

[2668J-29

PRE PAGE PROOFS-NOTFINAL COPY

575

oyster harvest, from 466,000 lbs in 2007 to a projected 493,000 lbs in 2008. The restriction of oyster operations also coincided with only one mariculture related disturbance detected in the upper estero in 2008 (versus six in 2007)

(Fig. 2B), suggesting

that conditions that previously reduced pupping season seal 580

counts may have partial·ly abated due to CCC restrictions. We therefore suggest that an adaptive management approach for oyster operations be investigated since reducing activity in the area close to seals may have had immediate positive effects. This also suggests that while oyster harvest was a good proxy

585

for impacts on seal counts in the upper estero for 1997--2007, changes in operations such as those experienced in 2008 may make the oyster harvest proxy less useful in the future. For this reason, it is not appropriate to include the 2008 data in the models because of this large change in management.

590

In conclusion, patterns observed in Drakes Estero at upper estero subsitesOB and UEF (and potentially UEN) are best explained by ENSO and increased disturbance from oyster harvest activities. The ability of the OB model to predict counts at subsite UEF suggests that similar processes are occurring at

595

both subsites and that the modeling t.echniques are robust. The results of this study also contribute to a limited body of

PRE PAGE PROOFS - NOT FINAL COPY

[2668]-30

literature on the potential negative effects of mariculture on marine mammals. Watson-Capps and Mann (2005) found that oyster farming in coastal waters off Australia reduced use by

600

bottlenose dolphins (Tursiops sp.) even though the facility had open areas that presumably would allow dolphins to pass. Such conflicts may increase in the future if mariculture replaces wild ocean harvesting due to the worldwide decline in wild fish stocks .(Worm et al. 2006). This study illustrates the benefits of long-term studies

605 for

understan~ing

multiple anthropogenic and environmental

factors that can affect pinniped populations and productivity (Thompson et al. 2001, Richardson et al. 1995). It also demonstrates how chronic disturbance activities, in this case

610

associated with a mariculture operation, can lead to displacement of seals at haul-out sites, resulting in animals either shifting to alternate subsites or leaving the area. Kenyon (1972) noted for the monk seal (Monachus schauinslandi) that such losses likely led to net population losses because of

615

the lack of suitable breeding habitat. If harbor seals in the region are at environmental carrying capacity, then loss of pupping sites within Drakes Estero also might conceivably lead to population loss. Finally, our results suggest that an

[2668]-31

PRE PAGE PROOFS-NOTFINAL COpy

important part of managing for protection of pinnipeds may be to

620

provide a higher level of protection around breeding habitat which is not currently protected under the Protection Act

u.s.

Marine Mammal

(www.nmfs.noaa.gov/pr/laws/mmpa) ACKNOWLEDGMENTS

We gratefully acknowledge reviews of previous drafts of

625

this paper by J. Laake, J. Barlow, M. Z. Peery, E. Grosholz, J. Harvey, H. Markowitz·, E. Hines, G. Fellers, F. Gulland, C. Goodman and three anonymous reviewers. J. Laake and J. Barlow kindly provided statistical advice. We also benefitted from discussions with T. Regan and D. Graber. We thank the many

630

dedicated volunteers and interns of Point Reyes Nationa·l Seashore who helped collect data; S. Waber, W. Holter, J. Manna, M. Vanderhoof, and K. Truchinski for entering data; D. Adams for program oversight; D. Roberts for database management; and D. Brown for producing Figure 1.

635

LITERATURE CITED ALLEN, S. G., D. G. AINLEYANDG. W. PAGE. 1984. The effect of disturbance on harbor seal haul out patterns at Bolinas Lagoon, California. Fisheries Bulletin 82:493--500. ALLEN, S. G., H. R. HUBER, C. A. RIBIC, AND D. G. AINLEY. 1989.

640

Population dynamics of harbor seals in the Gulf of the

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[2668]-32

Farallones, California. California Fish and Game 75:224-232. ALLEN MILLER, S. 1988. The movement and activity patterns of harbor seals in Drakes Estero, California. M.S. thesis, University 645

of California, Berkeley, CA. 69 pp. BARTH, J. A., B. A.. MENGE, J. LUBCHENCO, F. CHAN, J. M. BANE, A. R. KIRINCICH, M. A. MCMANUS, K. J. NIELSEN, S. D. PIERCE AND L. WASHBURN. 2007. Delayed upwelling alters nearshore coastal ocean ecosystems in the northern California current.

650

Proceedings of the National Academy of Sciences 104:3719-3724. BENSON S. R., D. A. CROLL, B. B. MARINOVIC, F. P. CHAVEZ AND J. T. HARVEY. 2002. Changes in the cetacean assemblage of a coastal upwelling ecosystem during EI Nino 1997--98 ·and La Nina

655

1999. Progress in Oceanography 54:279--291. BEJDilR, L., A. SAMUELS, H. WHITEHEAD, N. GALES, J. MANN, R. CONNOR, M. HEITHAUS, J. WATSON-CAPPS, C. FLAHERT.Y, M. KRUTZEN. 2006. Decline in relative abundance of Bottlenose dolphins exposed to long term disturbance. Conservation Biology 20:1791--1798.

660

BOWEN, W. D., S. L. ELLIS, S. J. IVERSONANDD. J. BONESS. 2003. Maternal and newborn life-history traits during periods of contrasting population trends: Implications for explaining

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the decline of harbour seals (Phoca vitulinal on Sable Island. Journal of Zoology 261:155--163. 665

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760

California,

in autumn.

Marine Mammal Science 3:323--333. Received: 15 February 2008 Accepted: 28 May 2008

765

770

[2668]-38

PRE PAGE PROOFS ~ NOT FINAL COPY

FIGURE LEGENDS

Figure 1. Oyster bag areas (mapped in spring of 2007), oyster racks, and the eight seal haul out subsites (e .. gO. , OB) in Drakes Estero. UEF, OB; and UEN are considered upper Estero. 775

Subsites A, AI, DBS, DEM, and L are in the middle-lower Estero and not subject to disturbance from mariculture. All surveys were completed from. the bluffs indicated by the "survey location" marker.

Figure 2. 780

(A) Mean (±1 SE) counts of harbor seal·s at Drakes

Estero subsite OB and oysters harvested from Drakes Estero during 1997--2007. 1998 was an EI Nino year.

(B) Relationship

between annual oyster harvest and mariculture related disturbance rate from 1996--2008. Text adjacent to points indicates the year, the number of disturbances in that year, and

785

the number of surveys. Between 37 and 50 surveys were conducted each year from 1997--2005. During 1997--1998, oyster harvest rate was rapidly declining which may have diminished some of the factors that lead to disturbance.

Figure 3. 790

(A)

Predicted and actual (from the best fitting

generalized linear model at OB) mean counts of pups and adults from 1997--2007 at subsite UEF. The 2008 data point is not derived from the model

(it is actual data) or used the

PREPAGEPROOFS-NOTFINALCOPY

[2668]-39

correlation test. It is oniy shown to illustrate that seals in 2008 appear to be returning to more normal covariation between 795

OB and UEF.

(B) Mean seal counts from 1997--2007 at subsite UEN

during the 15 April--15 May pupping season. Error bars represent the standard error for the total count.

Figure 4. Regression tree illustrating how ENSO and oyster harvest interact to best explain seal counts at subsites UEF and 800

OB. The number of seals for each survey is represented by a dot histogram along the x-axis in each box, with points at the origin indicating a zero count and poirits to the right of the box indicating larger counts. This model agrees closely with the GLM results in Table 1.

805

Figure 5. Mean (±1 SE) counts of pups and adults during the pupping season (15 April--15 May) from 2000 to 2007 at Drakes Estero and five regional sites within 30 km. Dark bars on the Drakes Estero panel represent only the middle-lower estero counts used for calculating density-dependence in the GLM and

810

regression tree models.

[2668]-40

PRE PAGE PROOFS - NOT FINAL COpy

815

FOOTNOTES 1

Lowry, M. S., J. V. Carretta and K. A. Forney. 2005. Pacific

"

harbor seal, Phoca vitulina richardii; census in California during May--July 2004. NMFS NOAA-SWFSC Administrative Report LJ05-06. 38 pp. 820

2

Allen, S., S. Waber, W. Holter and D. Press.. 2004. Long-term

monitoring of harbor seals at Point Reyes, California: Five year annual report 1997--2001. National Park Service Technical Report. 156 pp. 3

825

Brown, D., and B. H. Becker. 2007. Trip report---Drakes Estero

eelgrass, oyster bag, and oyster rack assessment. Unpublished National Park Service .report. 4

California Department of Fish and Game. 2007. Unpublished

report on Oyster landings in Drakes Estero from 1950 to 20Q6. Available from Tom Moore, CDFG Biologist, Bodega Bay, 830

California. 5

Tom Moore, Biologist, California Department of Fish and Game,

Presentation to the National Research Council Panel on Mariculture in Drakes Estero, 4 September 2008. 6

835

Pauley, G. B., B. Van.Der Raay and D. Toutt. 1988. Species

profiles: Life histories and environmental requirements of coastal fishes and invertebrates (Pacific Northwest)---Pacific

[2668]-41 PREPAGEPROOFS-NOTFJNALCOPY.

oyster. U.S. Fish and Wildlife Service Biological Report 82(11.85). U.S. Army Corps of Engineers, TR EL-82.4. 28 pp. 7

840

Goodman, C. S., Letter to the National Research Council Ocean

Studies Board Panel on Drakes Estero. 22 September 2008.

[2668]-42

PRE PAGE PROOFS- NOT FINAL COPY

Table 1. Ranking of candidate models at subsites OB and UEN by AIC c and Akaike weights (Wi). The dependent variable is the count of total seals at subsite OB and independent variables are year as linear trend (Year), Density-dependence (DenDep: daily 845

sum of seals in the middle-lower estero), years since last El Nino event (ENSO), and Ibs of oysters harvested in the same year (Oyst). Column headings are: small sample AIC (AICc ), distance from best model

(6i), and Akaike weight

(Wi);

models. Model

Alec

Wi

SubsiteOB

Oyst+ ENSO

332.96

0.00

0.65

0.37

Oyst + ENSO + DenDep

334.38

1.42

·0.32

0.38

ENSO

340.36

7.40

0.02

0.25

EN SO + DenDep

340.70

7.74

0.01

0.28

Year

344.90

16.53

0.00

0.19

DenDep

353.16

20.20

0.00

0.07

Oyst

353.22

20.26

0.00

0.05

Oyst + DenDep

353.42

20.47

0.00

0.11

Null

353.68

20.72

0.00

0.05

Oyst+ ENSO

320.19

0.00

0.41

0.16

Year

321.68

1.49

0.20

0.10

Subsite UEN

n = 104 for all

[2668]-43 PRE PA GE PROOFS-NOTFINAL COPY

850

Oyst + ENSO + DenDep

322.34

2.15

0.14

0.16

ENSO + DenDep

322.66

2.47

0.12

0.12

ENSO

323.20

·3.01

0.09

0.11

Null

326.10

5.90

0.02

0.00

DenDep

327.66

7.47

0.01

0.01

Oyst

328.22

8.02

0.01

0.00

Oyst + Den Dee

329.81

9.61

0.00

0.01

[2668]-44 PRE PAGE PROOFS- NOT FINAL COPY

Table 2. Coefficients of the best two AlC c ranked models for OB and UEN from Table 1. Wi is Akaike weight. Coefficient

Standard Error

t

p
Constant

3.530

0.185

19.099



Oyst

-0.240

0.063

-3.821



ENSO

0.261

0.035

7,563



Constant

3.269

0.366

8.928



Oyst

-0.229

0.066

-3.447



ENSO

0.251

0.036

6.911



Density-dependence

0.001

0.001

0.914

Constant

4.720

0.117

40.292



Oyst

-0.105

0.040

-2.631



ENSO

0.119

0.022

5.436



-140.463

36.041

-3.897



0.073

0.D18

4.038



Subsite:Modef Subsite 08 MadeJ 1 (Wi= 0.65)

Model 2 (Wi = 0.32)

Subsite UEN MadeJ 1 (Wi= 0.41)

Model 2 (Wi = 0.20)

Constant Year

C~~~J

Seal Haul-out area

CJ Aquaculture lease - - Oyster Rack 'as of August 2005

A1 DBS OEM L

Next to Main Haul-out Sandbar Attached to land Drakes Mouth Sandbars Umantour

o



A

0

'"

Ii

~

Adult

m

Pup

0

0 0 0 0

Oyster harvest

~

UJ

c

::l

...

0 0 -0 0 0

0 ·0 ~

0

u

1il (J)

(J)

(J)

::T

c

(')

@

c. 0

C

'"

0

'< (J)

(J)

:2

(J)

~

+1

::l

C.

(/)

~

\l 0

c

N

0 0

0 <0

0

0 0

Cii iii

::T III

;: CD (J)

Cii

c.

o

0

>(J) > ~

::l (J) ~

(J)

c.

"l-

's = 0.55

B

0

1996

60f21

P< 0.03

'""!-

0

0

(J).

(J)

U C

'"

-

0 N

ci

.n ~

::l ( J)

'5

'"ci

~

2007

-0

2

'"~

-

0 "'";-

o

60f56

1

2003 2 of 43

(J)

~

::l

"5 u ·c

'"

:2

'"ci 0

0

~-

2006 1 of 33

2008

199B

1997 0



0 0

0

1999 - 2005

0

000

00

0

10f40



100,000 200,000 300,000 400,000 500,000 600,000

Annual oyster harvest (Ibs) Fig. 2

0

L()

rs =0.66

A

2008'•

0

u..

--

'<1'

• 1997

w

::J 05

c

::J

0


• 2007



tl

::J tl



(")

0

'iii



P< 0.04



0 N

• 2006

• •

0



~



,

10

20

30

Predicted count at UEF

0 0

(")

B



Adult

IiJlj Pup

z

-'" w

::J

-

0 0 N

05

C

::J

0

tl C

05

Ql

::2

0 0 ~

o

Fig. 3

40

50

Mean = 110 ± 91 n = 104

ENS6 < 4 years

ENSO
Mean = 151 ± 88 n =68

Mean = 34 ±26 n =36

Oyster harvestr>_1_0_7-,-,6_9--,9--,I--,b~s_---,-_ _ _O_Y,-s,-,t~e,-,r.:.:h=.:,arvest < 107,699 Ibs

Mean = 118 ± 62 n=49

Fig. 4

Mean = 235 ± 90 n = 19

1500,---------, Boli nas Lagoon

1250

Drakes Estero

Double Point

Tomales Bay

Tomales Point

1000 750 500

......

C ::::l

o

()

c rn

Q)

2

1500,---------, Duxbury Reef

1250 1000 750 500 250

o ~rS-

~

- m

"'.m ......

"[: )'\;.). . ~'\;)<),. 'i::J~~ I':>~ R.~ f\l~ ~~

~

'V

'1'

'1'

"D

"D rp

Year

Fig. 5

L1425 02d06 NoY~fli1:j(::l"4,

1008

Sincerely,

Don L. Neubacher Superintendent DLNeubacher:an 11104/08

.. Kevin Lunny"

To . , , , , , cc "'Goodman, Corey'" , '''John Hulls'" (b) (6) > bce

10/22/2008 10:48 AM

Subject FW: 2007 Harbor Seal Report

Please review the attached letter and 2007 Annual Harbor Seal Report that were sent to Dr. Susan Roberts and the NAS Drakes Estero panel. If you have any questions, please feel free to contact me. Thank you, Kevin Lunny Drakes Bay Oyster Company

415-669-1149

From: Kevin Lunny [mailto:[email protected]esbayoyster.com]

Sent: Monday, October 20, 2008 4:47 PM To: Susan Roberts ([email protected]) Cc: 'David M. Weiman'; 'Melissa Cichantek' Subject: Susan,

Please distribute this to the panel members. Thank you,

Kevin lunny.OS.OS92.pdf Ha,bo,_SeaL2007_Annual_Repo,t2 (WITH PROPERTIES].pdf

Drakes Bay Oyster Company 17171 Sir Francis Drake Boulevard Inverness, CA 94956 (415) 669-1149 [email protected] [email protected]

October 15, 2008

Dr. Susan Roberts Executive Director Ocean Studies Board National Academy of Sciences 500 Fifth Street, NW Washington, DC 20001 RE:

Undisclosed 2007 NPS Point Reyes Regional Harbor Seal Report

Dear Dr. Roberts. We just learned of a new NPS Report - the annual Point Reyes National Seashore/Golden Gate National Recreation Area Harbor Seal Report - a report that was not disclosed to your Board, not disclosed to us and that contradicts the Becker Report. I am a third generation farmer and rancher on the Point Reyes Peninsula. I am a graduate ofUC Davis with a degree in Animal Science. I was taught to respect science. What's unfolding here at Point Reyes National Seashore - and before your panel- is inconsistent with the scientific principles I was taught. For the reasons described below, the National Park Service owes the Ocean Studies Board (OSB) an explanation. In June, 2008, Point Reyes National Seashore staff completed work on two formal studies: "Modeling the Effects ofEl Nino, Density-Dependence and Disturbance on Harbor Seal (phoca Vitulina) Counts in Drakes Estero, California: 1997-2007" (the Becker Report) and "Pacific Harbor Seal (phoca vitulina richardii) Monitoring at Point Reyes National Seashore and Golden Gate National Recreation Area: 2007 Annual Report' (the 2007 PRNS Harbor Seal Report). There are striking similarities to both Reports, including. •

Both involved harbor seals;



Both involved harbor seals at Drakes Estero;



Both involved the year 2007;



Both stndies were peer-reviewed; and,



Both stndies were authored or reviewed by some of the same Point Reyes National Seashore staff.

The Similarities End Here. The Becker Report was submitted to the OSB panel on June 3, 2008 immediately after NPS was informed by Dr. Daryl Boness, Editor, Marine Mammal Science Journal that peer-review was completed and the Becker Report was approved for publication. Three months later, on the eve of the September 4,2008 OSB panel meeting in California, the agenda was modified to make the Becker Report the lead presentation. Unlike the Becker Report, the 2007 Harbor Seal Report (dated June 2008) was NOT submitted to the OSB. As of September 4 (the day the OSB met in California) NPS had not submitted the 2007 Harbor Seal Report to the OSB Panel (Source: National Academy of Sciences, Public Records Office). As of September 23, three weeks after the panel first met, OSB updated the public documents file for this Board's work and the 2007 Harbor Seal Report was still not submitted. The National Park Service did not submit their official 2007 Harbor Seal Report to your panel. We will. It is attached to this letter and we ask that you distribute it with this letter to the members of our panel and include it in your record.

The Irregularities Begin. The 2007 PRNS Harbor Seal Report, according to Jon Jarvis, Regional Director National Park Service, was to be available by December 2007. In a June 13, 2007 letter to Dr. Goodman, Jarvis said the 2007 harbor seal documentation:

" ... will be prepared as afinal ann!lal report by December 2007." The 2007 Harbor Seal Report focilses on the pupping season (March-June) and is typically released in December of the same year. NPS missed its self-imposed deadline of December 2007. The 2007 Harbor Seal Report is dated June 2008. To prepare for the OSB's September meeting, Dr. Goodman sought to update harbor seal data, documentation and other information. Realizing that the 2007 Harbor Seal Report had neither -2-

been posted nor sent to him, he filed a Freedom of Inform'ation Act (FOIA) request on July 31, 2008 to the Park Service seeking the 2007 report and related documents. On August, 25, 2008, NPS sent Dr. Goodman a letter denying the FOIA request, declaring:

"the 2007 Harbor Seal Report is undergoing peer review and is, as a result, withheld..." There are two irregularities with this NPS rejection. First, NPS neglected to inform Dr. Goodman that the 2007 Seal Report was already dated June 2008, two months prior to his request. Second, the Park Service also did not tell Dr. Goodman that the 2007 Seal Report was already on the internet. Peer-review, it would appear, was completed when Dr. Goodman's request was denied. After peer-review and after uploading it to the web, NPS neither .informed Dr. Goodman of its availability or nor sent it to him. Perhaps more significantly, NPS made a decision not to submit this Report to the OSB.

The Trail ofIrregularities Continues From 2007, what is on the public record? What is known? And, does this now-published 2007 PRNS Harbor Seal Monitoring Report reflect that public record? In early April 2007, in the middle of the 2007 harbor seal pupping season, the NPS told the Marin County Board of Supervisors that because of civil and criminal misconduct by DBOC against the federally-protected harbor seals, NPS was not proceeding with our pending permits. On May 8,2007, the Superintendent formally testified before the Marin County Board of Supervisors and declared the harm to harbor seals a "national emergency." Said Neubacher:

... we believe because of recent actions, and I want to illustrate this, that the harbor seal pupping area in Drakes Estero is seriously threatened right now. Dr. Allen is going to discuss this, but we have some major problems because you can see on your map that pup [oyster] bags recently have been put in pupping areas. And Sarah will give you statistics, but it's amazing how many pups we have probably lost this year. So we've got a serious problem right now... I mean its that complex, because now you're talking about the Marine Mammal Commission, for example, wrote us a letter this morning, they're going to take it up. This is a national issue. They're going to take itup on a nationalleve!... Now, a year and a halflater, the Becker Report was presented to the OSB. The Becker Report -3-

was focused on modeling the relationship between oyster production at Drakes Estero and harbor seal populations. Becker and NPS colleagues concluded that as oyster production in Drakes Estero went up, harbor seals at subsite OB (one of eight in Drakes Estero) went down. The 2007 Harbor Seal Monitoring Report defmed its own objectives as follows:

The objectives of monitoring each site and the population as a whole are to i) detect changes in population size, ii) detect changes in reproductive success by way ofpup production, and iii) identify anthropogenic or environmental factors that may affect the condition of the population. The monitoring objectives and protocol are described in detail in the draft San Francisco Bay Area Network Pinniped Monitoring Protocol, scheduledfor completion in 2008. One would expect the concurrently published 2007 PRNS Harbor Seal Monitoring Report to detail the environmental harms caused by our oyster company, our boats, our workers and our presence. It did not. The 2007 PRNS Harbor Seal Report referenced oyster production - in passing - and none of these references were consequential. None related to harm. Put another way, the Becker Report and the 2007 PRNS Harbor Seal Monitoring Report are not consistent.

These two NPS studies - involving the same resource, harbor seals at Drakes Estero in the same time period, authored or reviewed by the same individuals at Point Reyes National Seashore - contradict one another. They are not consistent. More Irregulatities. Recently, we were informed that the 2007 PRNS Harbor Seal Monitoring Report was published on the internet. We immediately Googled harbor seals Drakes Estero 2007. Nothing found. Then we went to the U.S. Department of the Interior's web site, used their search feature and searched for "Harbor Seals, Drakes Estero, 2007." Nothing found. We took another step. We went to theNPS web site and repeated the process. Nothing found. Following that, we then went to the PRNS (PORE) web site and inserted the same. Nothing found. -4-

Then we went to the NPS fuventory and Monitoring Program's web site. Nothing found. Then we repeated the process using other names, reversing sequences and orders. Nothng found. Yet, the NPS fuventory and Monitory Program's 2007 PRNS Harbor Seal Annual Report is on the web. It's on the internet. It is on a Park Service web site. (See: http://science.nature.nps.gov/imJunits/sfanivital_signs/pinnipeds/docslHarbor_ Seal_2007_Annua 1_Report2.pdf) The web site, however, contained an instruction that prohibited the 2007 PRNS Harbor Seal Monitoring Report from being located and retrieved by Google, Yahoo or any other common search engine, including those of the Park Service or futerior Department. It is hidden in plain sight. It was withheld from Dr. Goodman. And, it was not provided to the OSB. NPS Irregularities Violate NPS "Data Management Plan" Several NPS units throughout the region developed a formal Data Management Plan (Version 2.0, September 2005) for what is called the San Francisco Bay Area Network, fuventory and Monitory Program. According to this plan:

The San Francisco Area Network. (SFAN) Data Management Plan outlines how we intend to implement and maintain a system that will serve and data and information management needs of our Inventory and Management Program. This plan reflects our commitment to establishing and maintaining a robust system for data management and to ensure the availability and usability of high-quality natural resource information. [highlight added] According to the National Park Service Advisory Board, cited by the SFAN Plan, stated that the findings resulting from an I&M program, "must be communicated to the public, for it is the broader public that will decide thefate of these resources." To that end, this NPS Data Management Plan is to "provide data in a variety offormats and venues to reach all potential users" and actually calls us "information consumers." The same NPS Plan provides a flow chart from "data product' to "use" in which the fifth of seven stations is labeled "data discovery" stating:

Allow for widespread, automated awareness of data products through websites and indexed clearinghouses. -5-

The next station is labeled "distribution" stating:

Share data products through internet download or direct mailing in response to specific requests. Another section of the Plan instructs NPS to make the data "easily discoverable and obtainable." These and other NPS requirements as set forth in their own regional plan were violated in numerous instances. Moreover, there is nothing in the NPS 2005 Data Management Plan that directed or recommended that the Park Service impose blocks on these reports. Nothing in this Plan says the NPS harbor seal reports, prepared as part of the Inventory and Monitoring Program may be hidden in blocked files.

The Two "Es" - Exclusions and Errors. During the six weeks since the OSB met, the Becker Report was carefully reviewed. Based on letters and emails to NPS and the Journal of Marine Mammal Science, it can be concluded that the Becker Report, intended or not, is riddled with and based upon the Two "Es" - Exclusions and Errors. The Becker Report: Exclusions • excluded data and analysis from most of the study period's eleven years and limited their primary analysis to 2005-2007, coincidently, the precise time of the Lunny family's ownership of the oyster farm; •

excluded five of the eight subsites in Drakes Estero;



excluded the overall harbor seal popUlation in Drakes Estero;



excluded the neighboring harbor seal populations of PRNS (PORE);



excluded all non-oyster disturbances from the I&M Harbor Seal Data Base for 20052007;



excluded all harbor seal disturbances from 1997-2004; and,



excluded all but 211 Oth of I % of the recorded harbor seal disturbances (put another way, more than 99% of the total harbor seal disturbances were not included in the Becker Report)

Errors • There is one over-arching error of significance. The oyster production (pounds of shucked oysters harvested) fignre overstated DBOC production by 63% (267% when

-6-

compared to 2006). In five communications since September 4 from Dr. Goodman and Mr. Hulls to the OSB, the Marine Mammal Science Journal and to the NPS, they separately detailed a lengthy list of other errors, omissions and misrepresentations.

What is striking about the 2007 PRNS Harbor Seal Report? It's similar to and consistent with the 2006 PRNS Harbor Seal Report. Both the 2006 and 2007 PRNS Harbor Seal Reports found no problems with the oyster farm. Conclusions and Recommendations Conclusions

(1)

The National Park Service is engaging in deceptiou with the Ocean Studies Board.

(2)

On September 4 at the OSB meeting, Dr. Goodman already pointed out that the NPS Harbor Seal Database (1970's to the present) was not submitted to the OSB. Now, another key document, the most recent formal report on harbor seals at Point Reyes National Seashore (including Drakes Estero), was NOT submitted to the OSB.

(3)

The 2007 PRNS Harbor Seal Report was placed on the web, and a manual instruction was inserted in the code to prevent the report from being searched and retrieved. It is only available if one lmows its precise address (http://science.nature.nps.gov/irn/units/sfanlvital_signs/pinnipeds/docslHarbor_ Seal_2007 _Annual_Report2.pdf).

(4)

Withholding andlor omitting this 2007 PRNS Harbor Seal Report prevents the Panel from a comparative review. It denies the panel the ability to see the obvious contradictions in Park Service reports.

What's emerged here is the "tale of two sciences." NPS/PRNS work done in the name of the I&M program appears to be professional and is consistent (see: 2006 and 2007 PRNS Annual Harbor Seal Reports). By contrast, science prepared and presented under the direction of the Superintendent ignores a lengthy list oflaws and policies (see: the NPS Report, "Drakes Estero, A Sheltered Wilderness Estuary, Versions" I-V and now the Becker Report). These Reports are, it now appears, little more than a taxpayer-funded advocacy. Recommendation for the Ocean Studies Board:

(1)

Request that NPS formally submit the 2007 PRNS Harbor Seal Report to the OSB for inclusion in the OSB record and for consideration and evaluation by your panel.

-7-

(2)

Request from NPS in writing, a full explanation as to why this 2007 PRNS Harbor Seal Report was denied Dr. Goodman in August when it was dated in June.

(3)

Request from NPS a full and complete explanation for the contradictory conclusions between the 2007 PRNS Harbor Seal Report and the Becker Report.

(4)

(5)

Require the NPS to explain why it insisted that Becker be the lead presentation before the . OSB panel meeting on September 4, 2008. Require that all peer review comments -- from both the Becker Report AND the 2007 PRNS Harbor Seal Report - be submitted to the OSB by NPS, and placed in the OSB public files so these comments can be reviewed by all parties.

In light of these revelations, we remind the OSB panel that the Federal Policy on Research Misconduct is defmed, in part: Falsification is manipulating research materials, equipment, or processes, or changing or omitting data or results such that the research is not accurately represented in the research record.

And, we request that, when preparing your report and recommendations, the OSB recommend that all NPS science reports be fully accessible and searchable, consistent with Federal law and consistent with their Regional SFAN Inventory and Monitoring Data Management Plan. The NPS practice of blocking search access to these NPS reports should be halted. Additionally, DBOC requests that the OSB hold another public hearing. We request an opportunity to present a statement to your panel about the Drakes Estero Report, the Becker Report and the underlying science - and explain how these NPS actions have interfered with our oyster farm. The numerous revelations and new information, available only after September 4 require it. DBOC has written Dr. Goodman and Mr. Hulls. We have asked that they prepare a comparative analysis and submit it to you and to the Journal of Marine Mammal Science. We close this letter with two thoughts. First, the Park Service tells farmers and ranchers at Point Reyes that they lack sufficient funds to repair fences, allowing a large elk herd to compete with cattle for grass during a severe drought. Yet, they spend tax payer dollars to fund incorrect and misleading studies, like the Becker Report and the five versions of the Drakes Estero Report, as well as underwrite this panel- and then attempt to shape and manipulate its work. Second, at DBOC we have tried to apply the lessons of science to improving our farm and our farming practices. We have pioneered methods of setting seed to all but eliminate the threat of invasives and we are exploring opportunities to reinstate native oysters in Drakes Estero.

-8-

We respectfully ask that your panel help us, our community, and the National Park Service wade through this situation in order to establish a sound, factual baseline upon which you could build the second, wider study. We fear that allowing this pattern of falsehoods and misrepresentations to go unacknowledged and uncorrected would send a chilling message. There is so much good science that could be done with mariculture and tl)e environment and we hope that we will be able to work with the panel on the second, an,d far more ecologically and scientifically significant part of your charter; to establish the best praciices for coastal mariculture. We also ask that this letter, and the accompanying report be circulated to your Panel members and be included in your Public Records database.

SinCere~IY' --:'

,4~' y . .#~---X / ---Kevin Lunny U

Enc:

,

' I (I

7t0:'~ IL...>'-r-?(.......... Nancy Lunny

,/

Pacific Harbor Seal (Phoca vitulina richardii) MOnitoring at Point Reyes National Seashore and Golden Gate National Recreation Area: 2007 Annual Report, National Park Service, US Department of the Interior; National Resources Program Center, Natural Resource Teclmical Report NPS/SFANINRTR _ 20081118

-9-

Natural Resource Program Center

Pacific Harbor Seal (Phoca vitulina richardii) Monitoring at Point Reyes National Seashore and Golden Gate National Recreation Area: 2007 Annual Report Natural Resource Technical Report NPS/SFANINRTR-200SI1IS

cc:

Dr. Daryl Boness, Editor, J oumal of Marine Mammal Science Jon Jarvis, Regional Director, National Park Service Don Neubacher, Superintendent National Park Service Briau O'Neill, Superintendent, Golden Gate National Recreation Area Dr. Ben Becker, Pacific Coast Science aud Learning Center, Point Reyes National Seashore David Press, fuventory and Monitoring Program, Point Reyes National Seashore Dr. Sarah Allen, Lead Scientist, Point Reyes National Seashore Kristen Truchinski, Point Reyes National Seashore Dale Roberts, Point Reyes National Seashore Erin Flynn, Point Reyes National Seashore Dr. John Dennis, Deputy Chief Scientist, National Park Service Dr. Corey Goodmau John Hulls

-10-

ON THE COVER

A Pacific harbor seal (Phoca vitulina richardil) nurses her pup in Point Reyes National Seashore Photograph by: Judy Bourke

Pacific Harbor Seal (Phoca vitulina richardii) Monitoring at Point Reyes National Seashore and Golden Gate National Recreation Area: 2007 Annual Report Natural Resource Technical Report NPS/SFANINRTR-20081118 Kristen Truchinski, Erin Flynn, David Press, Dale Roberts, and Sarah Allen Harbor Seal Inventory & Monitoring Program Point Reyes National Seashore 1 Bear Valley Road Point Reyes Station, CA 94956

June 2008 U.S. Department of the Interior National Park Service Natural Resource Program Center Fort Collins, Colorado

The Natural Resource Publication series addresses natural resource topics that are of interest and applicability to a broad readership in the National Park Service and to others in the management of natural resources, including the scientific community, the public, and the NPS conservation and environmental constituencies. Manuscripts are peer-reviewed to ensure that the information is scientifically credible, technically accurate, appropriately written for the intended audience, and is designed and published in a professional manner. The Natural Resources Technical Reports series is used to disseminate the peer-reviewed results of scientific studies in the physical, biological, and social sciences for both the advancement of science and the achievement of the National Park Service's mission. The reports provide contribntors with a forum for displaying comprehensive data that are often deleted from journals because of page limitations. Current examples of such reports include the results of research that addresses natural resource management issues; natural resource inventory and monitoring activities; resource assessment reports; scientific literature reviews; and peer reviewed proceedings of technical workshops, conferences, or symposia. Views, statements, findings, conclusions, recommendations and datain this report are solely those of the author(s) and do not necessarily reflect views and policies of the U.S. Department of the Interior, NPS. Mention of trade names or commercial products does not constitute endorsement or recommendation for use by the National Park Service. Printed copies of reports in these series may be produced in a limited quantity and they are only available as long as the supply lasts. This report is also available from the San Francisco Inventory and Monitoring website (http://science.nature.nps.gov/irnlunits/sfan) or by sending a request to the address on the back cover. Please cite this publication as: Truchinski K., E. Flynn, D. Press, D. Roberts, and S. Allen. 2008. Pacific harbor seal (Phoca vitulina richardii) monitoring at Point Reyes National Seashore and Golden Gate National Recreation Area: 200Tannual report. Natural Resource Technical Report NPS/SFANINRTR- . 2008/118. National Park Service, Fort Collins, Colorado.

NPS D-553, June 2008

ii

Contents Page Contents ............................................................ :..................... c•••••••••••••••••••••••••••••••••••••••••••••••••••••• iii Fignres ............................................................................................................................................. v Tables ............................................................................................................................................ vii Abstract .......................................................................................................................................... ix Acknowledgements ........................................................................................................................ xi Introduction ..................................................................................................................................... I Background ......................................................................................................................... 1 Objectives ....................... :................................................................................................... 1 Methods ........................................................................................................................................... 3 Study Area .......................................................................................................................... 3 Surveys ................................................................................................................................ 5 Data Management and Analysis ............................................. ' ........................................... 6 Results ............................................................................................................................................. 9 Overall ................................................................................................................................. 9 Summary by Site ............................................................................................................... 15 Conclusion .................................................................................................................................... 21 Literature Cited ............................................................................................................................. 23

iii

iv

Figures Page Figure 1. Regional survey sites in San Francisco Bay and Sonoma, Marin, and San Mateo counties, California......................................................................................................................... 4 Figure 2. Maximum counts of harbor seal adults and immatures during the breeding season (March-May) at Marin County locations ...................................................................................... 10 Figure 3. Maximum harbor seal pup counts for 2000-07 at Marin County locations .................. 11 Figure 4. Maximum harbor seal pup counts (Phoca vitulina richardii) at the dominant Marin County pupping locations, 2000-2007 ....................................................... :.................................. 12 Figure 5. Maximum harbor seal counts during the molt season (June-July) for 2000-07 at Marin County locations ........................................................................................................................... 13 . Figure 6. Rates of disturbances per hour at Marin County locations from March through July 2007 ............................................................................................................................................... 15 Figure 7. Rates of disturbances per hour at Marin County locations from March through July of 2004-2007 ..................................................................................................................................... 16

v

VI

Tables

Page

Table 1. Summary data of harbor seal colonies for the 2007 season .............................................. 9 Table 2. Date of first pup observed in the season by location, 2000-07 ....................................... 11 Table 3. Identified sources of disturbances for Marin County locations, from March 1st to July 31st, 2007 ....................................................................................................................................... 14 Table 4. Regional surveys of harbor seal numbers in central California, March 1st through July 31 st, 2007 ....................................................................................................................................... 19

vii

viii

Abstract Pacific harbor seals (Phoca vitulina richardii) are the dominant and only year-ronnd resident pinniped in the San Francisco Bay Area, Califomia. Long-term monitoring stndies have been condncted at the largest harbor seal colonies in Point Reyes National Seashore and Golden Gate National Recreation Area since 1976. The objectives of monitoring each site and the population as a whole are to i) detect changes in population size, ii) detect changes in reproductive success by way of pnp production, and iii) identify anthropogenic or environmental factors that may affect the condition of the population. Harbor seal surveys were conducted throughout the 2007 breeding (March through May) and molting (June through July) seasons once to twice per week at the largest Point Reyes and Golden Gate harbor seal colonies, collectively referred to as Marin County locations. Members of the Harbor Seal Monitoring Volunteer Program completed 252 surveys at eight Marin County locations, contributing an estimated 2152 hours. During the breeding season, a maximum combined total of 2771 adults and immatnre seals and 903 seal pups were counted at all Marin County monitoring locations. Drakes Estero had the most adults (759), followed by Tomales Bay (481) and Double Point (469). Drakes Estero and Double Point accounted for 54% (488) of pups at Marin County haul outs. From June to July, 4218 animals molted at Marin locations. Disturbances to seals occurred, with 215 incidences recorded during surveys. The most frequent causes were human (35.3%), unknown (20.9%), and motorboat (14.4%). Regional surveys occurred 13 times throughout the season at locations in Sonoma, Marin, San Francisco, and San Mateo counties. Marin County locations accounted for 73.2% (2916/3979) of breeding adults and immatnres, 84.4% (765/974) of pups, and 74.1 % (3459/4787) of seals during the molting season.

IX

x

Acknowledgements We thank all the volunteers who hiked many miles through fog, rain, and wind to survey harbor seals, including J. Adams, J. Bourke, T. Bushore, R. Bograd, R. Catlin, K. Carolan, M. Conrad, L. Davidson, R. Ferris; J. Fitzpatrick, J. Ford, W. Holter, R. Kane, M. Koenen, P. King, K. Kirk, J. Lamphier, J. Lasnier, D. Leite, E. Leite, D. Lingelser, P. Lord, E. Moore, J. Mohr, P. Moschetti, S. Pender, T. Pete, R. Schweig, B. Siegel, E. Sojourner, S. Van Der Wal, M. Vanvelkenburg, E. Vermeulen, S. Waber, E. Wheeler, A. Whelan, D. Zierten, and S. Zurek. We also thank the regional group of volunteers associated with various collaborative groups, including N. Bell, J. Bray, S. Bush, S. Durkin, M. Engelbrecht, M. Follis, D. Green, D. Greig, C. Hellwig, B. Jayne, S. Lenz, C. Miller, J. Mohr, J. Mortenson, B. Platos, L. Wheeler, B. Wilson and other agencies and organizations including the Farallones Marine Sanctuary Association, Gulf of the Farallones National Marine Sanctuary, The Stewards of the Cqast and Redwoods, The Fitzgerald Marine Reserve, and The Marine Marnrnal Center for contributing numbers to the region-wide surveys. Finally, we are grateful for the generous contributions from the Point Reyes National Seashore Association, the David and Vicki Cox Family Foundation, the San Francisco Bay Area Inventory and Monitoring Program, and the Marin Conservation Corps/AmeriCorps Program. The following peer reviewers greatly improved this document: Bill Merkle (GOGA Wildlife Biologist), Ben Becker (Director, NPS Pacific Coast Science and Learning Center), Dave Graber (Chief Scientist, NPS Pacific West Region), and Denise Greig (Marine Biologist, The Marine Mammal Center).

Volunteer Dick Lingelser counting seals at Drakes Estero (photo courtesy of Judy Bourke). xi

Xli

Introduction The information presented in this report is a summary of the harbor seal data collected at Point Reyes National Seashore and Golden Gate National Recreation Area during the 2007 breeding and molting seasons, March-July. Summary data collected as part of a region-wide survey effort, including adjacent areas (San·Francisco Bay, San Mateo County and Sonoma County) where NPS surveys were conducted in conjunction with other agencies and organizations for 2007, are also presented. This report is not intended to analyze long-term trends in the harbor seal data set, which are more appropriately investigated at five year intervals (i.e. Allen et aI. 2004). Furthermore, this document is not intended to report on or analyze data specific to NPS management issues related to harbor seals. Background Pacific harbor seals (Phoca vitulina richardii) are the dominant and only year-round resident pinniped in the San Francisco Bay Area, Califomia. The population at Point Reyes National Seashore represents the largest concentration of harbor seals in the State of California, and accounts for approximately 20% of the mainland molting population (Lowry et al. 2005). Much of the Point Reyes coastal zone remains relatively pristine and provides good marine and terrestrial habitat for seals to rest, molt, feed, and breed where human encroachment is minimal. The inaccessibility of much of the area has historically afforded some protection from human disruption during the seals' terrestrial resting periods; hoWever, some pinniped populations in Califomia are still recovering from a long period of exploitation that did not end until the passage of the Marine Mammal Protection Act in 1972 (Carretta et al. 2005). Human disturbance of seals at colonies is of interest to the National Park Service (NPS) because nearly 2.4 million visitors visit Point Reyes annually (Statistical Report, PRNS, 2007) and several million more visit the Golden Gate National Recreation Area, many of whom visit the tidepools, beaches and estuaries of the parks. The parks may implement management actions to reduce disturbance to . seals at colonies, if appropriate. Objectives Long-term monitoring studies of harbor seals have been conducted at the largest colonies in Point Reyes National Seashore and Golden Gate National Recreation Area since 1976 (Allen and Huber 1984, Allen et al. 1989; Sydeman and Allen 1999; Allen et al. 2004). The objectives of monitoring each site and the population as a whole are to i) detect changes in population size, ii) detect changes in reproductive success by way of pup production, and iii) identify anthropogenic or environmental factors that may affect the condition of the population. The monitoring objectives and protocol are described in detail in the draft San Francisco Bay Area Network Pinniped Monitoring Protocol, scheduled for completion in 2008.

1

2

Methods Study Area The study area extends from Tomales Point south to San Francisco Bay. The Point Reyes peninsula extends from the mouth of Tomales Bay (Lat. 38° 30'N) south to Bolinas Lagoon (Lat. 37° 30'N). Point Bonita is located in the Marin Headlands, at the mouth of San Francisco Bay in the Golden Gate National Recreation Area. For this paper, the Point Reyes sites and Point Bonita are collectively referred to as Marin County locations. Point Reyes National Seashore, Golden Gate National Recreation Area, Gulf of the Farallones National Marine Sanctuary, the California State Parks, and the county parks share jurisdiction over segments of this coastline (Figure I). The topographic diversity of this coastal zone provides a broad range 'of substrates for harbor seals to come ashore. These include tidal mud flats, offshor~ and onshore rocky tidal ledges, and sandy beaches. A "haul out site" is defined as a terrestrial location where seals aggregate for periods of rest, birthing, and nursing of young (Harvey 1987, Thompson 1987). Each site, or location, is comprised of several "subsites", or distinct areas of beach, rock outcrops, or sandbars where harbor seals haul out. Coastal embayment sites include Tomales Bay, Drakes Estero, Bolinas Lagoon, and San Francisco Bay. Coastal sites surveyed include Tomales Point, Point Reyes Headlands, Duxbury Reef, Double Point, and Point Bonita (Figure I). The sample design and methods for this program were developed so that the data could be integrated with other regional surveys, allowing for the results to be interpreted in a regional context. Annually, the National Park Service participates in regional harbor seal breeding season surveys sponsored by NOAA, with the Point Reyes National Seashore Science Advisor as the coordinator for the central coast breeding season survey. Regional survey sites include colonies in San Francisco Bay (A1catraz, Mowry Slough, Castro Rocks, Yerba Buena ISland, and Newark Slough), Sonoma County (Sea Ranch, South Sonoma sites, Fort Ross, and Jenner) and San Mateo County (Fitzgerald Marine Reserve, Pescadero, Pebble Beach, Point San Pedro, Bean Hollow, and Cowell Ranch Beach (Figure 1)).

3

Sea Ranch

Sonoma Coast

Sonoma Coast

San Pedro Point

Legend

Pescadero Creek Bean Hollow

Golden Gate National Recreation Area

~ Point Reyes National Seashore

Figure 1. Regional survey sites in Sau Francisco Bay and Sonoma, Marin, and San Mateo counties, California. Map does not present all of the regional survey locations included in Sonoma and San Mateo counties. TB=Tomales Bay, TP=Tomales Point, DE=Drakes Estero, PRH=Point Reyes Headland, LE=Limantour Estero, DP=Double Point, DR=Duxbury Reef, BL=Bolinas lagoon, PB=Point Bonita, CR=Castro Rocks, YBI=Yerba Buena Island, MS=Mowry Slough.

4

·Surveys Voluuteer observers were traiued to monitor harbor seals at designated sites within Point Reyes and at Point Bonita during two classroom and three field sessions in March 2007. The majority of the volunteers had been previously trained and returned to the 2007 season with many years of experience. New volunteers were required to be mentored by returning volunteers at a site before they conducted a survey alone. Harbor seal surveys were conducted throughout the breeding (March 1" through May 31 ") and molting (June 1" through July 31 ") seasons once to twice per week at each Marin County location. Surveys were conducted at medium to low tides (below 3ft) during the day. Surveys were not conducted in heavy fog because of poor visibility and they were not conducted in the rain because harbor seals haul out in lower numbers in the rain (Jemison and Pendelton 2001). Volunteers surveyed for 2 hours from fixed observation points with all subsites counted approximately every 30 minutes for a total of 4 counts each survey. Subsites were counted and recorded separately on pre-formatted datasheets and then added for site totals every half hour. Three locations often had only two counts each survey due to hiking/traveling time between subsites: Tomales Point, Bolinas Lagoon, and Duxbury Reef. For each subsite the observer recorded the time, number of adult and immature seals, pups, dead pups, red-pelaged seals, and fresh shark-bitten seals. Red pelage is easily identifi,ed and results from the deposition of iron oxide precipitates on the hair shaft; it usually extends from the head down to the shoulder and is of interest due to its rarity outside of the San Francisco Bay Area. (Allen et al. 1993). During the molting season (June-August) all animals were counted as adults and immature seals because of the difficulty in distinguishing large pups from immature seals. Disturbances and potential disturbances were recorded as they occurred on a data form separate from seal numbers. Disturbances included any events that caused the seals to lift their head (head alert), flush, or flush into water, while potential disturbances were defined as any anthropogenic event within a defined haul out zone that had the potential to flush seals. Observers recorded the time, source, and effect of each disturbance. The information on the effect included the reaction of the seals, the numbers of. seals that reacted, and when and where they re-hauled if they were flushed into the water. In some cases the disturbance was not directly observed, but surveyors recorded the number of animals affected with an "unknown" disturbance. Disturbances were recorded by fixed categories to assist with summary analyses. The categories were:

Source Motor-boat Non Motor-boat Vehicle Dog Aircraft Human Bird Other

Example Motorboat, Jet ski Canoe, Kayak, Sailboat, Wind surfer Car, Bus, Motorcycle Dog, Dog barking Airplane, Helicopter, Hang glider, Ultralight Clammer, Researcher, Oyster Worker, Hiker, Horse rider Turkey Vulture, Gull, Raven Coyote, Other Pinniped, Rock Slide, etc.

5

On alternating weekends, regional surveys were conducted at all sites included in regional counts (see Figure I). Participants in the region-wide surveys included various organizations and volunteers. Regional counts could be conducted at anytime between Thursday and Monday over the selected regional survey weekends. All count and disturbance datasheets completed during harbor seal surveys were entered into a relational Microsoft Access database during the course of the field season. At the end of the season, the database records were error-checked against the paper datasheets for accuracy. The records were further reviewed to ensure that only accurate and complete count data were used for analysis (see draft pinniped protocol for more details). For example, incomplete counts or counts that may have been hampered by poor weather conditions were noted in the database as poor quality surveys.

Data Management and Analysis Although harbor seal data were collected according to subsites at each monitoring location, subsite data are not reported or analyzed within this report. By summing the subsite counts for each survey time interval, the maximum site total was identified for each survey and used for data summaries and analyses. The maximum total site count for each survey was then split into the adult/immature and pnp age categories during the breeding months of March, April, and May. ' The maximum number of seals counted at a site over the course of the entire season is often used for comparisons between years and sites. Because there is little to no movement of harbor seals between sites during the pupping and molting seasons, it was assnmed that individual animals were not counted at more than one site (Harvey and Goley 2005). The maximum total count for each year within the study area was determined by taking the sum of the maximum count at each location. The maximum total count was determined separately for the breeding and molting seasons. Maximum connts at each location may have occurred on separate days (see Barlow et al. 2002). When compiling count summaries from the harbor seal data, only records noted as high quality counts were included. During the regional survey weekends, it was not nncommon for a site to be surveyed more than once. In these cases, the snrvey with the greater seal count was used for any regional summaries. The total maximum count of breeding season adults/immatures, pups, and molting harbor seals were averaged separately across survey years 2000 to 2007 and compared to the 2007 data. Inclusion of all survey years in the average calculation accounts for the inherent inter-annual variability in the harbor seal population and reproductive output. Declines below one standard deviation from the mean, especially over the course of a few years, may merit further analysis of the data for statistical significance, additional research, or management actions. When looking at disturbance events, only actual disturbances, those that elicited a head-alert or flush reaction from the seals, were used for analysis. Disturbance tallies were based on disturbance sources rather than the number of subsites or seals affected. Disturbance rates were calculated as the number of disturbance events that occurred during the time period from the first observation to the end of the final observation period. Because the disturbance data were not analyzed for effects on the seal count data in this report, all actual disturbance data were used for

6

analysis regardless of the qnality of the associated seal count data. Potential disturbances (events that could potentially elicit a reaction from seals) were recorded by volunteers to quantify any given type of disturbance recurring at a particular site, but this information is not analyzed in this report. These data may be used to understand potential emergiug disturbance issues at each location. Please note that data quality standards and analysis procedures enacted in 2007 in preparation for this report have been applied to all data within the current monitoring database, which extends back to 2000. For this reason, summary data reported here for 2000 to 2006 may differ from data summaries published in previous harbor seal reports.

7

8

Results Overall

In 2007, 36 volunteers completed 252 surveys at Marin County locations between March 1" and July 31 ", completing an estimated 2152 hours. Each location was surveyed between 15 and 50 times, which includes 13 regional surveys. During the breeding season (March-May), a maximum of 2771 adults and 903 pups were observed in Marin locations, with the numbers growing to 4218 individuals during the molting season (June-July) (Table 1).

Table 1. Summary data of harbor seal colonies for the 2007 season. All reported numbers reflect the maximum number seen during a single census . Max # Max # . Max # Max # Max # adults in Pnps in seals in breeding breeding molting Max # Shark Dead Bites' Pups' Location seasonl season season2 # Surveys Reds' Weekday: 30 Bolinas Lagoon 262 126 448 12 3 Weekend: 8

20

Double Point

469

215

1190

Weekday: Weekend:

759

273

1005

Weekday: Weekend:

22

Drakes Estero

81

7

56

Weekday: Weekend:

25

Duxbury Reef Headlands

119

46

312

Tomales Bay

481

72

Tomales Point

374 226 2771

5

5

18

15

2

5

8

o

I

. 0

Weekday: Weekend:

15 I

1

o

o

415

Weekday: Weekend:

12

14

1

2

626

Weekday: Weekend:

13

158

7

3

2

6

166

Weekday: Weekend:

41 9

o

4218

5 59

2

903

17

28

Point~eyes

Point Bonita TOTAL 1. 2.

10

18

11

9

252

Max # Breed - adults and immatures during the breeding season, March 1 to May 31. Max # Molt = all age classes during the molting season, June I to July 31. 3. The Max # Red, Shark Bites, and Dead Pups are the maximum number observed March 1 to July 31.

9

Adult and Pup Counts During the Breeding Season Adults: The maximum uumber of adults hauling out during the 2007 breeding season was 2771 for 2007 (Table 1). This fell below but within one standard deviation of the mean uumber observed from 2000-07 (2954.8 ± 353.7, Figure 2). Drakes Estero had the most adults (759), followed by Tomales Bay (481) and Double Point (469).

4000.---------------------------------------------------------. 3500 3000 2500 2000 1500 1000 500

o 2000

2001

2002

2003

2004

2005

2006

2007

Figure 2. Maximum counts of harbor seal adults and immatures during the breeding season (March-May) at Marin County locations ..The solid line on the graph represents the mean of the maximum adult counts from 2000-07 (2954.8), and the dashed lines represent one standard deviation from the mean (353.7). Pups: The combined maximum pup count for all Marin County locations during the 2007 breeding season was 903 pups (Table 1). The 2007 maximum pup count was 21 % lower than the mean maximum pup count from 2000-2007 (1154.5 ± 153.0). The maximum pup counts for 2006 and 2007 fell below one staildard deviation from the mean maximum pup count from 20002007 (Figure 3). Since 2004 the maximum pup counts have decreased; however, further analyses are needed to determine if these decreases are statistically significant (Figure 3). Drakes Estero and Double Point accounted for 54% (488) of pups at Marin haul outs, which was consistent with the proportions of pups in the past.

10

1600 1400 1200 1000 800 600 400 200 0 2000

2001

2002

2003

2004

2005

2006

2007

Year

Figure ::\. Maximum harbor seal pup counts for 2000-07 at Marin County locations. The solid line on the graph represents the mean-of the maximum pup counts from 2000-07 (1154.5), and the dashed lines represent one standard deviation from the mean (153.0).

The first pup observed has been documented since 2000, and there was no apparent trend in the date or location of the first pup observed from 2000 to 2007 (Table 2). In 2007 three pups were observed at Tomales Bay on February 14th but were not seen after that date. It is suspected that these pups may have been premature. Because the pups were not observed closely and not confirmed, they were not included as the first date for the season. The first confirmed pup observed was at Double Point on March 2, 2007, within the normal birth date range.

Table 2. Date of first pup observed in the season by location, 2000-07. Year Date Location 2000 March 14 Point Reyes Headlands 2001 March 16 Tomales Bay 2002 March 3 Drakes Estero 2003 March 27 Bolinas Lagoon 2004 March 20 Double Point 2005 March 6 Drakes Estero 2006 March 9 Double Point 2007 March 2 Double Point

Of the dominant pupping sites (Bolinas Lagoon, Double Point, Drakes Estero, Tomales Bay, and Tomales Point), only Tomales Point did not have a decline in pup numbers from 2006 to 2007 (Figure 4). Tomales Bay experienced the biggest difference (33%) in pup numbers from 2006 to 2007. However, in the past, seals have shifted annually between Tomales Bay and Tomales Point (Allen 2004), and the combined maximum pup counts for 2006 and 2007 were comparable (212 versus 230).

11

500~--------------------------------------------~

450 +----------------------1 400

+1- - - - - - - - - I

350

+1- - - - - - - - - I

300

+1- - - - - - - - - I

250

+1------c------I

200

+1- - - - - - - - - I

150

+1- - "

100 50

o

Bolinas Lagoon

Double Point

Drakes Estero

1111 2000 f?&l2001 II!l 2002 tlillI 2003 lEI 2004

Tomales Bay

Tomales Point

~ 2005 E3 2006 1m 20071

Figure 4. Maximum harbor seal pup counts (Phoca vitulina richardii) at the dominant Marin County pupping locations, 2000-2007. The maximums of each site may have been observed on different days.

12

Molting Counts The maximum count of all seals during the 2007 molt season for all Marin County locations was 4218 seals. This fell below but within one standard deviation of the mean maximum molt count observed from 2000-07 (4331 ± 637.7, Figure 5). Similar to the pupping season, Drakes Estero and Double Point comprised 52% of the total seals counted during the molt season (Table 1).

6000

5000

4000

3000

2000

1000

0 2000

2001

2002

2003

2004

2005

2006

2007

Figure 5. Maximum harbor seal counts during the molt season (June-July) for 2000-07 at Marin County locations. The solid line on the graph represents the mean of the maximum molt counts from 2000-07 (4331), and the dashed lines represent one standard deviation from the mean (637.7). Disturbances At the Marin County locations in 2007, 215 disturbances were recorded that elicited a response from harbor seals, representing the greatest number in the study period of 2000-07 (Table 3). Further analysis is required to determine if this increase in disturbances is statistically significant or related to an increase in survey effort. The most common disturbance source (76) was humans, which could have been a c1ammer, researcher, angler, or hiker (Table 3). Motorboats and non-motorboats had 51 disturbances combined, and a large portion ofthem were associated with the c1ammers in Tomales Bay. Bolinas Lagoon had the most disturbances (61), but Tomales Bay and Drakes Estero were close with 45 and 57 disturbances, respectively. Bolinas Lagoon has a subsite (Hwy 1) that is adjacent to a major roadway. This site is subject to loud, sudden noises from vehicles, as well as visitors that approach the seals. The disturbances at Tomales Bay were

13

........ _.~._ ... ~. ___ ~ "..

~:J_._:

....'"" .. ~ .....

Table 3. Identified source~ of disturbances (head alert, flush, flush into water) for Marin County locations, from March I st to July 31 st, 2007. Motorboat # % 14 2000 10.6 2001 15 10.6 16 8.9 2002 11 7.9 2003 1 1.0 2004 7.4 2005 • 9 7.9 2006 13 31 14.4 2007 Average 13.8 8.6%

Non-Motor Boats # % 6.8 9 12.0 17 20 11.1 16.5 23 10.0 10 15 12.3 9.7 16 20 9.3 16.3 11.0%

Vehicle

# 0 2 8 3 7 1 4 11 4.5

%

0.0 1.4 4.4 2.2 7.0 0.8 2.4 5.1 2.9%

Dog # 0 0 0 0 2 2 1 2 0.9

%

0.0 0.0 0.0 0.0 2.0 1.6 0.6 0.9 0.6%

Aircraft # 14 4 9 10 3 11 8 14

9.1

%

10.6 2.8 5.0 7.2 3.0 9.0 4.8 6.5 6.1%

14

Human # 30 48 72 43 39 38 59 76 50.6

%

22.7 33.8 40.0 30.9 39.0 31.1 35.8 35.3 33.6%

Bird # 20 9 10 10 7 10 16 13 11.9

%

15.2 6.3 5.6 7.2 7.0 8.2 9.7 6.0 8.1%

Unknown # 41 32 38 32 24 30 36 45 34.8

%

31.1 22.5 21.1 23.0 24.0 24.6 21.8 20.9 23.6%

Other # 4 15 7 7 7 6 12 3 7.6

Total

%

3.0 10.6 3.9 5.0 7.0 4.9 7.3 1.4 5.4%

132 142 180 139. 100 122 165 215 149

mostly related to passing boat traffic and recreational clammers. Hundreds of people dig for clams on the mudflats in Tomales Bay during low tide weekends. The Farallones Marine Sanctuary Association (FMSA) formerly coordinated a program that situated docents on the mudflats during these high'visitation days to educate visitors and protect the seals, but this program was terminated in 2005. Disturbances at Drakes Estero, including Limantour Estero, resulted from hikers, clam diggers, and oyster operation activities. Tomales Point, Duxbury Reef, and Point Reyes Headlands received few to no disturbances (3, 0, 0) likely because of the inaccessibility of these sites. In 2007, Bolinas Lagoon had the greatest disturbance rate (0.75 disturbances per hour), followed by Tomales Bay (0.68) (Figure 6). Of the sites that regularly have more than five disturbances per season, Point Bonita experienced the greatest change compared with 2006 with a 76.1 % decrease in the disturbance rate (1.19 versus 0.28) (Figure 7). Double Point and Bolinas Lagoon saw a 67.2% and 16.7% increase in disturbance rates, respectively, while Tomales Bay and Drakes Estero had rates comparable to the previous season. The rates of disturbances vary greatly from year to year depending on activities at each location.

Rate of Disturbances per Hour 2007

..:- 0.80 ::J

0 .s::: 0.70 CI> c.. 0.60 ~

0

0.50 c: 0.40

'"

-

.a ~

0.30 .!I.! 0.20 't:1 ::J

~

.e

'"

0.10

0.00

0: 0.00

Bolinas Lagoon

Double Point

Drakes Estero

Duxbury Reef

Point Bonita

Tomales Bay

Tomales Point

Figure 6. Rates of disturbances per hour at Marin County locations from March through July 2007. Only actual disturbances (head alert, flush, flush water) were used, and survey time was based on observation time for all complete surveys (with or without disturbances).

Summary by Site Bolinas Lagoon Bolinas Lagoon had 38 complete surveys between March 1st and July 31st, 2007. Of those surveys, 30 were on weekdays and 8 were on weekends. The maximum count during the' breeding season had 262 adults and 126 pups. During the molting season, the maximum count was 448 seals (Table 1). Bolinas had the most disturbances of all sites in 2007 and the dominant

15

sources were humans and vehicles. This site is along scenic Highway 1 and many visitors stop to see the seals and approach them. Traffic noise also disturbs the seals. This was the only site that documented dog disturbances in 2007, and they were associated with human disturbances. One report documented visitors who drove by the haul-out site and "barked at seals". Bolinas Lagoon had the greatest disturbauce rate of all locations iu 2007 (0.75 disturbances per hour), and the rate increased 14.8% from 2006.

Rates of Disturbance per hour by Location -;:-

"0

oE: III CIl

1.40 1.20 1.00

(J

r:: os 0.80

-"

.Q ~

.!!l

~

0.60 0.40

CIl

OJ 0.20

a:

0.00

Bolinas Lagoon

Double Point

Drakes Estero

Duxbury Reef

Point Bonita

Tomales Bay

Tomales Point

1ill 2004 !l!I 2005 IliI 2006 D 20071

Figure 7. Rates of disturbances per hour at Marin County locations from March through July of 2004-2007. Only actual disturbances (head alert, flush, flush water) were used, and survey time was based on observation time for all complete surveys (with or without disturbances). Double Point Double Point had 30 complete surveys between March I st and July 31 st, 2007. Of those, 20 were on weekdays and 10 were on weekends. The maximum count during the breeding season was 469 adults and 215 pups. Molting season yielded a maximum count of 1190 seals (Table 1). Double Point's disturbances were moderate and came mostly from "unknown" sources and aircraft, which fly over the area at various heights. Rarely did the aircraft actually flush seals, but their noise at times elicited head alerts from the seals. Of the 25 actual disturbances, 14 were· from an unknown source from the subsite South Beach. The bluffs over this beach are actively crumbling and perhaps small rockslides that observers can't see or hear elicited the flushes. Only once this season were people observed on the beach; it was during a weekend survey and no seals were hauled out on that portion of beach. Double Point had a substantial increase in the disturbance rate from last year (2006: 0.23, 2007: 0.38, 67.2% increase) due to increases in both aircraft and "unknown" sources.

16

Drakes Estero The Drakes Estero complex which includes Limantour Estero had 40 complete surveys between March 1" and July 31",2007. Of those, 22 were on weekdays and 18 were on weekends. The maximnm count during the breeding season was 759 adults and 273 pups, and the maximum molt count was 1005 (Table 1). Next to Bolinas Lagoon, Drakes Estero had the second highest disturbance count, with 57 disturbances within the breeding and molting seasons. The disturbance rate, however, was moderate compared to other sites (Figure 6). Most of the disturbances (26) were from human sources and this included hikers, anglers, swimmers, horseback riders, and recreational clammers. Clamming is popular on Drakes Beach, where seals do not always haul out in large numbers, but the activities at times affect seals on nearby sandbars. Fishermen are frequently seen on the tip of Limantour Spit in the exact area where seals haul out during the molting season. In addition, activities associated with the oyster operation in Drakes Estero at times disturbed harbor seals at the upper estero subsites. The disturbance rate for 2007 and 2006 were identical, with 0.47 disturbances per hour (Figure 7). Duxbury Reef Duxbury Reef had 33 complete surveys between March 1" and July 31", 2007. Of those, 25 were on weekdays and 8 were on weekends. During the breeding season, the maximum adult count was 81 and the maximum pup count was 7, while during the molting season the maximum seal count was 56 (Table 1). Duxbury had the lowest number of seals and, as with the Point Reyes Headlands, no documented disturbances. Disturbances are rarely recorded at Duxbury Reef, possibly due to the low accessibility of the location. Point Bonita Point Bonita had 50 complete surveys between March 1" and July 31", 2007. Of those, 41 were on weekdays and 9 were on weekends. During the breeding season, the maximum adult count was 226 and the maximum pup count was 6 pups, while during the molting season the maximum seal count was 166. In an effort to better document the seal numbers and disturbances, more preseason surveys were conducted. The disturbances at Point Bonita were primarily from people on the beach, which often consisted of school groups. Because of repeated disturbances to harbor seals, the area below the paved walkway was closed to visitors in mid-June 2007. Future observations will tell the efficacy of this action. However, disturbance rates decreased substantially in 2007, with only 0.28 disturbances recorded per hour compared to the 2006 rate of 1.19 (76.1% decrease). Point Reyes Headlands Point Reyes Headlands had 16 complete surveys between March 1" and July 31", 2007, and all but one of them were completed during weekdays. During the breeding season, the maximum adult count was 119 and the maximum pup count was 46, while during the molting season the maximum seal count was 312 (Table 1). This site rarely has disturbances because of its remoteness and inaccessibility. Most of the harbor seals were seen at a large elephant seal colony pocket beach. There were some vacated spaces on the beach during the elephant seal molt, but harbor seals were also seen in extremely close proximity to the elephant seals. Some surveys were hindered by heavy fog that is usually present in the Point Reyes Headlands.

17

Tomales Bay Tomales Bay had 23 complete surveys between March 1" and July 31",2007. Of those, 11 were weekday and 12 were weekend surveys. During the breeding season, the maximum adult count was 226 and the maximum pup count was 72, while during the molting season the maximum seal count was 415 (Table 1). The pup count was the second lowest it has been since 2002 (Figure 4). There were 45 recorded disturbances, most of which were caused by boats and humans, iucluding recreational clammers. Tomales Bay had the second highest disturbance rate of all locations, with 0.68 disturbances per hour, which was consistent with last year's rate .. The increase in disturbances in 2006 coincided with the cessation of a FMSA docent program that educated clammers to avoid seals from 1997 through 2005. Tomales Point Tomales Point had 22 complete surveys between March 1" and July 31", 2007. Of those, 13 were on weekdays and 9 were on weekends. During the breeding season, the maximum adult count was 226 and the maximum pup count was 158, while during the molting season the maximum seal count was 626. Only three disturbances occurred at this location (human, bird, and unknown), and due to its remoteness, is not frequented by park visitors. Abalone divers were observed there during the breeding season, but they were never seen disturbing seals. , Regional Sites Thirteen regional surveys occurred between March lO'h and July 28'h, 2007 at 20 different locations. Not all sites were surveyed on all scheduled days. Some sites were surveyed on days other than regional survey days, and therefore could not be used in this summary. Other sites had difficulty with weather on certain days. During the breeding season, a maximum of 3979 adults and 974 pups were observed, although the maximum counts may have occurred on different days for each location (Table 4). During the molting season, the combined maximum of all seals from each site was 4787. Marin County locations accounted for 73.2% (2916/3979) of the maximum adult/immature breeding count, 84.4% (765/974) of the maximum pup count, and 74.1 % (3459/4787) of the maximum molt count. Within the San Francisco Bay, high counts for seals occurred at Castro Rocks and Mowry Slough, as has been observed in the past. In San Mateo County the highest concentration of seais was on the coast at Fitzgerald Marine Reserve, but the most pups occurred at Pebble Beach (20). In Sonoma County, the Sonoma Coast location accounted for the most seals this year, which is consistent with previous data. No counts were conducted this year at Yerba Buena Island (in San Francisco Bay), or Fort Ross (in Sonoma County). Disturbances in San Francisco Bay were only recorded at Castro Rocks, and it was from the CaITrans truck associated with the observers. At Fitzgerald Marine Reserve and Sonoma Coast, tide poolers and airplanes disturbed hauled out seals. At Jenner, kayakers, hikers, and div!"rs caused disturbances.

18

Table 4. Regional surveys of harbor seal numbers in central California, March I" through July 31 ", 2007. Thirteen surveys were scheduled on alternating weekends, eight during the breeding season and five during the molt. ND=No data.

Location Sonoma County Sonoma Coast

Fort Ross Jenner

n

Breeding Season Mean of Standard Max of adults error adults'

Max of eues '

Molting Season Mean of Standard adults error

n

Max of adults

146.4

18.33

190

35

3

203.7

23.84

NO

NO

NO

NO

NO

NO

NO

NO

NO

5

54.6

13.83

89

6

3

272.3

77.95

400

7 7

315.3 190

39.44 41.19

644 506

65 105

3 2

331 301.5

27.62 230.5

384 532

6 6

34.67 573

8.22 61.07

119 683

46 273

2 3

79 650.33

6 141.05

278 932

7 8

314.86 26.3

59.02 8.81

424 84

198 4

2 5

628 17.2

137 10.74

765 56

8

172.13

21.38

262

126

5

303.2

49.5

448

7

74.29

21.74

148

5

5

105.8

18.46

153

3

12

2.35

15

0

NO

NO

NO

NO

6

164

14.2

213

36

3

88.3

10.33

109

NO

NO

NO

NO

NO

NO

NO

NO

NO

2 3

14 32.3

3 10.11

17 50

8 5

0 15

0 0

0 15

5

14.4

2.46

22

2

2

15.5

3.5

19

4 5 5 5

70.3 32 75.6 6.8

10.94 4.22 13.22 2.63

86 41 117 15

18 6 20 1

2 3 3 3

79 29.7 95.3 13.3

1 12.25 4.37 2.91

80 54 104 18

7

174.9

8.52

208

15

4

153

13.8

189

3979

974

5

251

Marin County . Tomales Bay Tomales Point

Pt. Reyes Headland

Drakes Estero

Double Point Duxbury Reef

Bolinas Lagoon Point Bonita

San Francisco Bay Alcatraz Castro Rocks YBI Newark Slough Mowry Slough

San Mateo County Point San Pedro

Cowell Ranch Pescadero

Pebble Beach Bean Hollow Fitzgerald

Marine Reserve

ALL LOCATIONS IBased on the total for a single day 2Based on the total for the same single day as above

19

4787

20

Conclusion Highlights • 36 volunteers completed 251 surveys at Marin County locations between March 1st and July 31 st 2007, donating approximately 2152 hours of their time. •

A maximum of 2771 adults/immatures seals hauled out during the breeding season. o The 2007 maximum fell below but within one standard deviation of the mean number observed from 2000-07 (2954.8 ± 353.7). o The greatest number of adults hauled out at Drakes Estero (759), followed by Tomales Bay (481) and Double Point (469).



A maximum of 903 pups were born in Marin haul outs. o The 2007 maximum pup count fell below one standard deviation from the mean maximum pup count from 2000-2007 (1154.5 ± 153.0). o The greatest number of pups was born at Drakes Estero (273). follo'wed by Double Point (215).



A maximum of 4218 animals molted at Marin County sites. o The 2007 maximum molt count fell below but within one standard deviation of the mean maximum molt count observed from 2000-07 (4331 ± 637.7, Figure 5). o Double Point had the most molting seals (1190), followed by Drakes Estero (1005).



215 disturbances were recorded during surveys. o The most common categories of disturbances were human (35.3%), unknown . (20.9%), and motor boat (14.4%).



Regional surveys occurred 13 times throughout the season, which include Sonoma, Marin, San Francisco, and San Mateo counties. o Marin County locations accounted for 73.2% (2916/.3979) of breeding season adultslimmatures, 84.4% (7651974) of pups, and 74.1 % (3459/4787) of seals during the molting season.

21



22

Literature Cited Allen, S. G. and H. R. Hnber. 1984. Humanlpinniped interactions in the Point ReyeslFarallon Islands National Marine Sanctuary. Final Rpt. to U. S. Dept. of Commerce, Sanctuary Programs Office. 27 pp. Allen, S.G., H.R. Huber, C.A. Ribic, andD. G. Ainley. 1989. Popnlation dynamics of harbor seals in the Gulf of the Farallones, California. Calif. Fish & Game, 75:224-232. Allen, S. G., M. Stephenson, R. W. Risebrough, L. Fancher, A. Shiller, and D. Smith. 1993. Redpelaged harbor seals of the San Francisco Bay Region. J. Mamm. 74(3):588-593. Allen, S., S. Waber, W. Holter, and D. Press. 2004. Long-tenn monitoring of harbor seals at Point Reyes, five year annual report, 1997-2001. National Park Service, Point Reyes National Seashore. Barlow, J. 2002. Report of the California harbor seal workshop, March 28-29, 2002, Southwest Fisheries Science Center. National Marine Fisheries Service, Southwest Fisheries Science Center, 8604 La Jolla Shores Drive, La Jolla, CA 92037. Carretta, J. V., K A. Forney, M. S. Lowry, J. Barlow, J. Baker, B. Hanson, and M. M. Mnto. 2007. U.S. Pacific marine mammal stock assessments: 2007. U.S. Departtnent of Commerce, NOAA Technical Memorandum;NMFS-SWFSC-4l4. 320 p. Harvey, J. T. 1987. Population dynamics, ~lUnual food consumption, movements, and dive behaviors of harbor seals, Phoca vitulina richardsi, in Oregon. Unpub!. Ph.D. Dissertation, Oregon State University, Corvallis. l77pp. Harvey, J. T. and D. Goley. 2005. Detennining a correction factor for aerial surveys of harbor seals in California. Final Report to National Marine Fisheries Service and Pacific States Marine Fisheries Commission, PSMFC Contracts No. 03-19 and 04-33, NOAA Grant No. NA17FX1603. 35 pp. Jemison, L.A. and G.W. Pendelton. 2001. Harbor seal population trends and factors influencing counts on Tugidak Island, Alaska. Pages 31-52 in: Harbor Seal Investigations in Alaska. Annual Report for NOAA A ward NA87FX0300. Alaska Department of Fish and Game. Division of Wildlife Conservation, Anchorage, AK 356 pp. Lowry, M.S., J.V. Carretta, and KA. Forney. 2005. Pacific harbor seal, Phoca vitulina richardsi, census in California during May - July 2004. Administrative Report U-05-06, available from Southwest Fisheries Science Center, 8604 La Jolla Shores Drive, La Jolla, CA 92037. 38 p. Sydeman, W. J. and S. G. Allen. 1999. Pinniped population dynamics in central California: Correlations with sea surface temperature and upwelling indices. Marine Mammal Science 15(2): 446-461.

23

Thompson, P.M. 1987. The effect of seasonal changes in behavior on the distribution and abuudauce of common seals, Phoca vitulina, in Orkuey. Unpub!. Ph.D. Dissert., Univ. of Aberdeen, England. l67pp.

24

The Department of the Interior protects and manages the nation's natura1 resources and cultural heritage; provides scientific and other infonnation about those resources; and honors its special responsibilities to American Indians, Alaska Natives, and affiliated Island Communities. NPS D-553, June 2008

25

Natural Resource Program Center 1201 Oakridge Drive, Suite 150 Fort Collins, CO 80525 www.nature.nps.gov

EXPERIENCE YOUR AMERICA ™

.. Kevin Lunny"

10/16/2008 05:53 PM

To "'Roberts, Susan'" , "'Goodman, Corey'" , , , ee "'Thompson, Professor Paul M .... , "'WalSh, Jennifer'" , "'Chiarello, Heather L.'" bec Subject RE:'NRC st"dy of Drakes Estero

Dr. Roberts, DBoe will be happy to participate with the visit from Dr. Thompson as well as any others. Any time on the th th 29'" or the 30 is OK. Your later email mentions Thursday the 30 at 10:30 AM. This will work just fine. Please send me the entire schedule for the visit and let me know if we can help in any other way. Sorry for the delay with my response. Kevin

From: Roberts, Susan [mailto:[email protected]]

Sent: Tuesday, October 14, 2.008 2.:2.9 PM

To: Kevin Lunny; Goodman, Corey; [email protected]; [email protected];

[email protected]; [email protected]; [email protected]; [email protected]; gina..,:[email protected] Cc: Thompson, Professor Paul M.; David M. Weiman; Walsh, Jennifer; Chiarello, Heather L. Subject: NRC study of Drakes Estero

Greetings all, One of the new members of the committee, Dr. Paul Thompson, is an expert in harbor seals and he has kindly offered to take a few extra days to visit Pt. Reyes and meet with you since he was not present at the committee's first meeting. He will be in the Pt. Reyes area on October 29 and 30 and would like to visit Drakes Bay Oyster Company and Pt. Reyes National Seashore to leam more about the issues with the harbor seals in Drakes Estero. This is not a committee meeting and no formal presentations will be given (Dr. Thompson will have already reviewed the presentations from the September meeting and other written materials provided to the committee). The priority will be to give Dr. Thompson an opportunity to gather information through Q&A. However, to ensure transparency in these discussions, we will organize the visits to allow limited public attendance and we will record them so that they will be available to those unable to attend. I'm writing to ask for your cooperation in arranging these visits. For each viSit (OBOe and PRNS) we will need space to accommodate 10-12 people. Also, I ask that you cooperate in making it possible for us to record these sessions so that each speaker can be clearly heard - we will provide a digital recording device. Please let us know where and when on these two days you could host Dr. Thompson. Also, if you would like to be present during these discussions, please indicate that in your response. We will give you priority in the spaces made available for public attendance.

Thank you for your assistance in arranging these visits for Dr. Thompson. A staff member from th.e NRC will accompany Dr. Thompson for these visits and will record them for public access. -Susan **********************************

Susan Roberts, Ph.D. Director, Ocean Studies Board The National Academies 500 5th SI. NW, Keck 607 Washington, DC 20001 (202) 334-2714 OSB office (202) 334-1729 voice mail (202) 334-2885 fax [email protected] www.dels.nas.edu/osb

-

'-

,

,

,.

RECEiVED Point Reyes

Drakes Bay Oyster Company 17l7l Sir Francis Drake Boulevard Inverness, CA 94956 (415) 669-1149 kevinialdrakesbavovster.com nancyialdrakesbayoyster.com

October 6, 2008

Don Neubacher, Superintendent Point Reyes National Seashore National Park Service 1 Bear Valley Road Point Reyes Station, CA 94956 Dear Mr. Neubacher,

r!::tional S~~.~·hore

(:Cf 6 -' 'e.g v rsUPT.

/'

?'

SCIENCE 2."EC. PK. USES LAWENFORC. NAT. RES. : _

R.'<\lGE CONS. FIRE MGT. INTERP. CULT. RES. MAINT. CONTRACTING PERSONNEL BU®lW

,,..1:::::::: ~TRAlFILES

This letter requests that you affmn the application ,of law and policy in the preparation and presentation of the so-called "Becker Report" On September 4, 2008, the Ocean Studies Board of the National Academy ofScienceslNational Research Council (NASINRC) hl;ld its first panel meeting on "Best Practices for ShellfISh

Maricuiture and the Effects of Commercial Activities in Drakes Estero, PI. Reyes National Seashore, California." The first presentation on the panel's agenda was identified as "Models for Harbor Seal Counts in Drakes Estero." National Park Service (NPS) official, Dr. Ben Becker, presented the results of a new peer-reviewed report titled, "MODELING THE EFFECTS OF EL NINO, DENSITY·

DEPENDENCE, AND DISTURBANCE ON llARBOR SEAL (pHOCA VITUllNA) COUNTS IN DRAKES ESTERO, CALIFORNIA: 1997·2007" [Becker Report] authored by three members of the Point Reyes National Seashore (PRNS) staff-Dr. Ben Becker, Pacific Coast Learning Center, David Press, Inventory and Monitoring Program, and Sarah G. Allen, Lead Scientist Dr. Becker presented the report's results on behalf of the authors. Dr. Becker informed us that he was directed to initiate this paper in August 2007 - immediately after Senator Feinstein's meeting in Olema- and that the authors completed their work in

l-J

February 2008. It was then submitted to the Journal of Marine Mammal Science for peer review and, if and when approved, publication. On May 28, 2008, the Journal's editor, Dr. Daryl Boness, informed Dr. Becker that his revised Report was approved for publication. Several days later, On June 3, 2008, the Becker paper, now peer-reviewed and approved for publication, was submitted to the Ocean Studies Board (NASINRC), but not made public until the Board's September 4, 2008 hearing. At no time between August 2007 when work on this science at Drakes Estero was initiated until the present have you or anyone from your staff infonned Drakes Bay Oyster Company that this report was being prepared, underway or reviewed, consulted us about any aspect of it or invited us to review it as subsequently required by an agreement between DBOC and NPS when our current Special Use Permit (SUP) was executed. At the conclusion of the September 4 meeting, an exchange between Dr. Becker and Dr. Goodman, recounted in Dr. Goodman's letter to the Ocean Studies Board, revealed that you and your staff intended this study to remain secret until presented at the Board's recent meeting. Why, in direct conflict with our permit agreements, the Park Service would want to invoke secrecy regarding the Report's preparation and presentation is not understood. At and after the September 4 Ocean Studies Board meeting, the Becker Report and presentation generated a series. questions about it's accuracy, assumptions and data, first by Ocean Studies Board panel members, and then by Dr. Goodman and Mr. Hulls. Several days later, the Marine Mammal Science Journal's editor, Dr. Daryl Boness, informed us that he asked Dr. Becker to respond to the issues raised about his report. At DBOC and the Historic G Ranch, we grow oysters and we grow organic beef. We practice sustainable agriculture. We don't pretend to know much about computer modeling, regression analysis or a negative bionominal distribution - three teclmical concepts found in the Becker Report. But, we at DBOC know a whole lot about Drakes Estero, growing oysters and living respectfully with harbor seals. Since last year, we have had to work - repeatedly - to overcome false and contradictory statements in the five versions ofNPS Report, "Drakes Estero, A Sheltered Wilderness Estuary," in testimony and public statements, as well as in other documents. Now, the Becker Report

makes similar accusations of harm to harbor seals. The Federal government, the Department of Interior, and the National Park Service are goven:ted by a series oflaws, regulations, policies and procedures to ensure that you and your staff prepare science to the highest scholarly standards. According to the NPS Management Policies 2006, "the management ofthe national park system and NPS programs is guided by the Constitution, public laws, treaties, proclamations, executive orders, regulations and directives of the Secretary ofthe Interior and the Assistant Secretary for Fish, Wildlife and Parks. NPS policy must be consistent with these higher authorities and with appropriate delegations ofauthority. "

Issues pertaining to science, data, data analysis and data presentation regarding the Becker Report were addressed by Ocean Studies Board panel members as well as others. Given all that has occurred and various revelations about the Becker Report, we now ask about the applicable policies and procedures that governed its preparation and presentation in the first instance. Therefore, we ask the following: [1]

National Parks Omnibus Management Act of1998, P.L. 105-391. On January 27, 1998, Congress enacted this Management Act. Section 202 states that the "Secretary is authorized and directed to assure that the management ofunits ofthe National Park Service is enhanced by the availability and utilization ofa broad program ofthe highest quality science and information." DBOC believes that this statutory reguirement

applies to the Becker Report. If not, please explain why not. Assuming it does. will you please certify that the Becker Report meets the "highest quality science" requirement ofthis law? [2]

White House, Office of Science and Technology Policy Federal Policy 011. Research MiscondUct. On December 6, 2000, the Executive Office ofthe President, White House Office of Science and Technology Policy (OSTP) published in the Federal Register, the Final Policy, "Federal Policy on Research Misconduct." According to that Federal Register Notice, in part: Advailces in science, engineering, and all fields ofresearch depend on the reliability ofthe research record. ... Sustained public trust in the research enterprise also requires

guidelines identifY the ethical standards within which employees and volunteers will conduct NPS-sponsored scientific and scholarly activities.

This policy defines administrative review, distinguishing it from higher levels of review and states: The scientific and scholarly peer review process outlined here does not eliminate the needfor administrative review ofscientific and scholarly activities by managers. Managers conduct administrative review to ensure that proposed activities are compatible with Park Service policies and regulations... and proposed activities are pertinent to park purposes, programs, and needs...

Part ill of this NPS policy statement sets forth a 12-point "Code of Scientific and Scholarly Conduct," which states, "to enhance their contribution to quality, objectivity, utility, and integrity ofsuch information, all NPS employees working with scientific and scholarly information will, in performing their duties, " and is presented here, in full: act in the interest ofthe advancement ofknowledge and contribute the best, highest quality scientific and scholarly iriformation for the NPS; conduct, process data from, and communicate the results of scientific and scholarly activities honestly, objectively, thoroughly, and expeditiously; be responsible for the entrusted resources, including equipment, fonds, work time, employee work time, and prompt and accurate use and reporting offinancial resources and scientific and scholarly work; folly disclose all research methods used, available data, andjinal reports and publications in a timely manner and consistent'with applicable laws and policy; respect, to the follest extent permitted by law, confidential and proprietary information regarding interests and resources that are studied or affected by scientific or scholarly activities or the

resulting information; neither hinder the scientific or scholarly activities ofothers nor engage in dishonesty, fraud, deceit, misrepresentation, coercive manipulation, or other scientific or scholarly misconduct; welcome constructive criticism ofscientific and scholarly activities, welcome and participate in appropriate peer reviews, critique others' work respectfUlly and objectively, and substantiate comments with care; be diligent in creating, using, preserving, documenting, and maintaining collections and data, ensuring established quality assurance and quality control programs, follow the NPS's records retention policies, and comply with Federal law and agreements related to use, security, and release ofconfidential and proprietary data; adhere to appropriate standards for reporting the results of scientific and scholarly activities, including respecting the intellectual property rights ofothers; to the extent possible and practical, difforentiate amongfacts, opinions, hypotheses, and profossional judgment in reporting the results ofscientific and scholarly activities to others, including scientists, decision makers, and the public; be responsible for the quality of collected data and interpretations, andfor the integrity of conclusions drawn in the course of scientific and scholarly activities; and place integrity, utility, and objectivity ofscientific and scholarly activities and reporting oftheir results ahead ofpersonal gain or allegiance to individuals or organizations.

DBOC believes this policy applies to the Becker Report. If not. please explain why not. Assuming it does. will you please certify that the Becker Report fully adheres to each ofthe policies set forth in this "Interim Guidance Document?" Further, please certify that Becker and the co-authors, in the preparation. design. data management, completion and presentation of their Report followed each of the twelve requirements of the Code of Scientific and Scholarlv Conduct.

All information disseminated by the NPS must comply with basic standards ofquality to ensure and maximize the objectivity, utility, and integrity ofinformation disseminated to the public. A. Reliable Data. The National Park Service will ensure that information it releases will be developedfrom reliable data sources and will otherwise ensure information quality at each stage of information development. The NPS's methods for producing quality information will be made transparent, to the maximum extent practicable, through accurate documentation, use ofappropriate internal and external review procedures, consultation with experts and users, and verification ofthe quality ofthe information disseminated to the public. The NPS will also keep users informed about corrections and revisions. Information will be developed only from reliable data sources based on accepted practices and policies utilizing accepted methods for information collection and verification. It will be reproducible to the extent possible. B. Accuracy and Timeliness. All information will be accurate, timely, and reflect the most current information available. All information sources will be documented.

IV. POLICIES AND INSTRUCTIONS A. Information Approval. All information disseminated to the public must be approved by the appropriate program and/or regional office prior to its dissemination and must satisfY OMB and Departmental guidelines. The approval process will include documentation ofthe specific information quality standards used in producing the information in a wcry to substantiate the quality, utility, objectivity, and integrity ofthe information in a manner that conforms to OMB and Departmental guidelines.

DBOC believes that the Director's Order applies to the Becker Report. If not, please explain why not. Assuming it does. will you please certify that the Becker Report meets the "reliable data" standard aswell as the "information quality at each stage of information development" standard. Will you also certify that the standards for transparency. accurate documentation. appropriate reviews. consultation with experts and verification requirements



confidence in the research record and in the processes involved in its ongoing development. This policy applies to federally:funded research .. The policy establishes the scope ofthe Federal government's interest in the accuracy and reliability ofthe research record and the processes involved in its development. It consists ofa definition ofresearch misconduct and basic guidelines for the responses ofFederal agencies and research institutions to allegations ofresearch misconduct..

DBOC believes this policy applies to the Becker Report. lfnot, please explain why not. Assuming it does, will you please certify that the Becker Report meets the overarching accuracy and reliability standards and did not violate the Federal research misconduct policy? [3]

Data Quality Act. The Data Quality Act [DQA], P.L. 106-554, Section 515, December 21,2000, requires that guidelines be developed that provide guidance to Federal agencies ''for ensuring and maximizing the quality, objectivity, utility and integrity ofinformation (including statistical information) disseminated by Federal agencies... " In February, 2002, OMB published guidelines in the Federal Register and the DepartnJ.ent of the Interior did the same. DBOC believes that the DQA applies to the Becker Report. If not, please explain why not. Assuming it does. will you please certify that the Becker Report meets the DOA requirement of "maximizing qualitv" and. will you do the same for "objectivitv. utilitv ofinfOrmation (including statistical infOrmation). and integritv ?"

[4]

Director's Order # lIB, Pursuant to the DQA. According to NPS Management Policies 2006 source book, ''primary source ofpolicy is the publication, Management Policies 2006. Director's Orders supplement and m~ amend Management policies." On

October 16, 2002, then NPS Director, Fran Mainella, issued DIRECTOR'S ORDER #

lIB, "Ensuring Quality ofInformation Disseminated by the National Park Service. " According to this Order, in part and excerpted:

were fuDy met as required? And, will you also certify that. as required, the information was accurate, timely and reflected the most current information available? Finally. please certify that aD information publicly disseminated

.'!Y.!!! "approved by the appropriate program and/or regional office prior to its dissemination" and that it satisfled "OMB and Departmental guidelines," [5]

Peer Review Policy. OMB, Final Information Quality Bulletin for Peer Review, Office of Management and Budget, Executive Office of the President. Pursuant to the DQA, on January 15, 2005, OMB published the Federal Peer Review Policy Bulletin in the Federal Register. According to that formal Notice: Peer review is one ofthe most important procedures used to ensure that the quality ofpublished iriformation meets the standards ofthe scientific and technical community. It is aform of deliberation involving an exchange ofjudgments about the appropriateness ofmethods and the strength ofthe author's il?ferences. Peer review involves the review ofa drqfi product for quality by speCialists in the field who were not involved in producing the draft. The peer reviewer's report is an evaluation or critique that is used by the authors ofthe drqfi to improve the quality of the product. Peer review typically evaluates the clarity of the hypotheses, the validity ofthe research design, the quality ofthe data collection procedures, the robustness ofthe methods employed, the appropriateness of the methods for the hypotheses being tested, the extent to which the conclusions follow from the analysis, and the strengths and limitations ofthe overall product.

DBOC believes this policy applies to the Becker Report. If not, please explain wily not. Assuming it does, will you please certify that the Becker Report meets the standards of peer review as set forth in this policy? [6]

NPS Management Policies, 2006: Scholarly Analysis Standard. The Management Policies 2006, at Section 2.1.2, titled, "Scientific, Technical and Scholarly Analysis," states, "decision-makers and planner will use the best available scientific and technical information and scholarly analysis to identifY appropriate management actions for protection and use ofpark resources." DBOC believes this policy applies to the

Becker Report. If not. please explain why not. Assuming it does, will you please certify that the Becker Report followed the "scientifIC. technical and scholarlY analvsis" principles and standards set forth in this policy?

[7]

Kempthorne Ethics Policy, US Department of the Interior. On July 27, 2007, slightly more than a year after being confirmed, Dirk Kempthome, Secretary, US Department of the Interior, circulated a Memorandum to all 80,000 Interior Department employees titled, "Promoting EthicS, the Public Interest, and Respectful Behavior." Five "ideals" were cited, the third of which required, "compliance with applicable laws, policies and procedures regarding the development and disclosure ofscience." DBOC believes this policy applies to the Becker Report. If not, please explain why not. Assuming it does. will you please certify that the Becker Report properly adhered to the ethical standards pertaining to both the "compliance with applicable laws, policies and procedures" standard as well as the "development and disclosure" of scienec?

[8]

NPS Interim Guidance Document Governing Code of Conduct, Peer Review, and Information Quality Correction for National Park Service Cultural and Natural Resource Disciplines. The NPS, on January 31, 2008, issued a new comprehensive, 20page collection of policies detailing a scientific code of conduct, peer review standards and procedures, ethics policies and information quality policies and procedures to implement the requirements of the Data Quality Act. According to this NPS policy: The scientific and scholarly guidance presented in this document ensures that the review requirement is met using a consistent, conscientious, and appropriate level ofeffort. Such technical peer review is essential to demonstrate the professional stature and ensure the accountability ofthe National Park Service's acquisition and application ofscientific and scholarly information. Such scientific peer review complements, and is part of, administrative review.

Defining the scope of these policies, NPS states: These guidelines apply to all scientific and scholarly information and assessments produced, used, or sponsored by the NPS. These

[9J

Confirmation Hearings, Director Bomar. NPS Director, at the May 21,2006, Senate Confinnation hearing, in her prepared statement stated to the Senate Energy Committee, "while park superintendents and program managers are vested with much authority, it comes with an equal amount ofresponsibility that demands high quality results, stellar performance and the utmost levels ofaccountability." DBOC concurs with Director

Bomar's statement and believes it applies to directives given by you for the preparation and presentation oithe Becker Report. Please certify that responsibility, high quality results, stellar performance and the utmost accountability was achieved in the preparation and presentation of the Becker Report. [10]

Oversight Hearing, House Natural Resources Committee on Science Integrity. Assistant Secretary Laverty testified before the Committee last May. In response to a question from Parks Subcommittee Chair, Rep. Raul Grijalva who inquired about the scientific Code of Conduct, he stated, "/ would be happy to share with you the letter / sent to the Department folks, to both Fish and Wildlije Service and the Park Service that established my personal code ofconduct and how / was going to operate, how / was going to establish that set ofprinciples for my staff. / believe that we have a very, very solid platform to work .We can assure that." Please certify that the preparation and

presentation of the Becker Report fully met the principles and standards referenced by Assistant Secretary Laverty.

[11]

NPS Management Policies, 2006, Introduction, Law, Policy and Other Guidance. The very first page of the Introduction to "Management Policies, 2006," entitled "Law, Policy and Other Guidance," states, "this volume is the basic Service-wide policy docwnent ofthe National Park Service. Adherence to policy is mandatory unless specifically waived or modified by the Secretary, the Assistant Secretary, or the Director." Were waivers, at any time or in any

manner. issued by the Secretary, Assistant Secretary or the Director? [12]

Ethical Standards - Dignity and Respect. Finally, the Kempthome Ethics policy, July 2007, also states, "we also treat each other, and the public whom we

serve with dignity and respect. The Department's policy in this area is set forth at 43 CFR, Section 20.501." Will you please certify that. according to and

consistent with Interior Department ethics policy. the Lunny family was treated by you with "dignitv and respect?"

We respectfully request that responses be expedited. NPS made the Becker Report the centerpiece of your presentation to the Ocean Studies Board. Given the questions that have been raised about that report and in consideration of the Board's limited timetable, it is important that your responses be available as quickly as possible. Sincerely,

Kevin Lunny

cc:

Nancy Lunny

Dr. Susan Roberts, Executive Director, Ocean Studies Board Dr. Pete Peterson, Chair, Ocean Studies Board Panel . Jon Jarvis, Regional Director, Pacific West Region, National Park Service Dr. John Dennis, Deputy Chief Scientist, National Park Service Dr. Ben Becker, Pacific Coast Science and Learning Center, Point Reyes National Seashore

Dr. Sarah Allen, Lead Scientist, Point Reyes National Seashore David Press, Inventory and Monitoring Program, Point Reyes National Seashore Dr. Corey Goodman, Marshall, CA John Hulls, Point Reyes Station

Don Neubacher/PORE/NPS

To "Kevin Lunny"

08/26/2008 08:43 AM

cc "Susan Roberts" bcc Holly BundockiOAKLAND/[email protected]; Jon Jarvis/OAKLAND/[email protected] Subject Re: NAS 1 Drakes EsterolTII

Kevin, thanks for the offer and we appreciate you checking with us. Because of safety and other concerns--life jackets, etc, we are not sure about your offer. We are under the impression that the vessels for the public would have to be Coast Guard approved for transport. In addition, law enforcement staff have reviewed your operating permit and this type of NAS activity is not allowable under your current permit and the administrative law that governs the DBOC use of the area. Regardless, we have managed the areas as wilderness; thus, we would have to do a minimum tciol and NEPA compliance process because this activity may be scrutinized and would require issuance of a new permit. At this late date, as required by policy and law, it would not be possible to "make a diligent effort to involve any interested and affected public that exist" (Director's Order 12)(CEQ 1506.6). I told Susan we can explore other ways with you (kayaks, research trips, your operations) to get the committee out in the Estero at a later date. We agree getting a perspective from the water would be important for all parties. And, again, we appreciate you working on this access issue with us. Don

Don Neubacher Superintendent Point Reyes National Seashore Point Reyes Station, CA 94956 415-464-5101 (office) 415-663-8132 (fax) The National Park Service cares for special places saved by the American people so that all may experience our heritage. "Kevin Lunny" "Kevin Lunny" 08/21/200803:25 PM

To "Don Neubacher" cc "Susan Roberts" Subject NAS 1 Drakes Estero

Don. The Ocean Studies Board will be here in early September and have asked that we arrange an on-shore and off-shore tour. Board members indicated that a boat tour would be important. We are modifying our barges to accommodate the group and working out the off-shore logistics. Susan Roberts, who is copied by this email, will be contacting you as well.

Please provide the necessary permit (or waiver) as appropriate. This is, of course, a one-time event. Thank you.

Kevin Lunny

IIKevin Lunny"


r.com>

To: cc: Subject: RE: Oyster Farm Housing

08/21/200812:42 PM MST

Kevin, We got it.

Thank you very much.

Kevin -----Original Message----From: Kevin [email protected] [mailto:Kevin [email protected]] Sent: Thursday, August 21, 2008 12:10 PM To: Kevin Lunny Cc: Paul [email protected] Subject:-RE: Oyster Farm Housing Hi Kevin, No problem, we had planned to include the past i'nspection report along with the most recent inspection report however we have included it with a letter that went out earlier this week on the 18th. Let know if you have not received the letter.

me

Regards, Kevin Kevin E. McKay Special' Park Uses Coordinator National Park Service Point Reyes National Seashore Point Reyes, CA 94956 (415) 464-5111 Fax (415) 464-5182

"Kevin Lunny"

yster.com>

To:

cc: Subject:

Housing 08/18/2008 08:04 PM MST

"Kevin McKay"

RE: Oyster Farm

Kevin, We plan to submit our CDP application this week. It is very important that we have the JOC housing inspection records to refer to in this submittal. As you know, a portion of the Cease and Desist Order that was issued by the CCC against the JOC was related to the housing. Please forward these as soon as you can. You first agreed to get these to me two months ago. I don't want to delay our application submittal. (Sorry about the deadline.) Kevin

From: Kevin Lunny [mailto:[email protected]] Sent: Sunday, August 10, 2008 7:55 PM To: Kevin McKay (Kevin [email protected]) Subject: Oyster Farm Housing Hi Kevin, As you recall, on June 18th, you and Paul Robinson inspected the housing at the oyster farm. Both you and Paul agreed that the worker housing has improved significantly since the Lunnys took over the operations of the oyster farm. I asked for, and you agreed to provide, all the insp,ection reports of the Johnson Oyster Company housing prior to 2005. We are re'ady to re-submit our Coastal Development Permit application to the California Coastal Commission and we need these annual records to proceed. You also told me that you would get back to me about transitioning to the new oyster SUP signed in April. Last I spoke with you; you were unaware that the Yovino-Young appraisal included the well in its valuation of the property. There is no real hurry on this one - we'll just keep paying the invoices that we receive for the old SUPs until you make the change. Hopefully, you can just go to the files for the Johnson housing inspections that we need soon. Let me know if we can stop by and pick them up Thank you, Kevin Lunny

(b) (6)

/ UnIted States DepattmeIit oftli¢ Interior NATIONAL PARk SERYlCE

':~:{;:~!:~~~~~~~~!3;:

])5031 . AUgtl&t

J8, 2008

_

L1425 02-106 December 7, 2004

Mr. Tom Johnson Johnson Oyster Company P. O. Box 69 Inverness, CA 94937 Dear Mr. Johnson: On November 23, 2004, US Public Health Service consultant Paul Robinson conducted a public health evaluation ofthe employee housing and commercial facilities at the Johnson Oyster Company. Chief Ranger Colin Smith represented the Point Reyes National Seashore and assisted with the evaluation. Inspection ofthe employee housing at Johnson's Oyster Company included observing the structural condition of the residences and examining the water and wastewater systems. The commercial oyster harvesting and processing facility was also evaluated. Mr. Robinson strongly recommend that the homes be revisited in 30 to 45 days to ensure that deficiencies are corrected in a timely manner. Main House I. 2. 3.

The electrical outlets in the kitchen within four feet of the sink must be GFCI protected. Provide a battery for the smoke detector. Consider installing smoke alarms in all bedrooms. Install a GFCI protected electrical outlet in the bathroom.

House on the Hill 1. Check the kitchen window sill for rain water leakage and repair if necessary. 2. Repair the severe water damage observed around the bathtub. 3. Install at least one smoke alarm in the honse. Consider installing smoke alarms in all bedrooms. 4. Install a GFCI protected electrical outlet in the bathroom. 5. Install plate on living room light switch.

Trailer 1. This entire structure is in a poor state of repair and would require major work to bring it up to acceptable standards. Water damage was apparent in numerous places in the ceiling and around windows throughout the trailer. Window glass was broken in several windows. The front entry porch consists of rotting wood boards. 2. Check the kitchen window sill for leakage and repair if necessary. 3. Install at least one smoke alarm in the house. Consider installing smoke alarms in all bedrooms. 4. While the gas stove burners worked, the knobs to each burner were extremely difficult to tum. These should be repaired.

5. 6. 7. 8. 9. 10. II.

Repair the light fixture in the bedroom. Install another hinge on the bedroom door-so that it can open properly. Replace the missing glass in the bedroom window. The shower was severely water damaged requiring extensive repair. Install plates on electrical outlets in the living room. Replace the missing glass in the blue bedroom window. Repair the leaking shower fixture.

Thank you for your attention to these matters. Sincerely,

Don L. Neubacher Superintendent

United States Department of the Interior NATIONAL PARK SERVICE Point Reyes National Seashore Point Reyes, California 94956

D5031 May 19,2008

Mr. Kevin Lunny 17171 Sir Francis Drake Inverness, CA 94937 Dear Kevin: CAPT. Paul Robinson with the United States Public Health Service has scheduled to conduct on site inspections ofthe ranch and oyster operation employee residential units within Point Reyes National Seashore on June 17ili and 18th of2008. The inspections will last approximately one to two hours and will include an evaluation of ranch water and wastewater systems. National Park Service Staff will accompany CAPT. Robinson during the inspections. We will be contacting you prior to June 17, 2008 to inform you of a scheduled time of arrival. If you have questions or concerns please contact Kevin McKay, Special Park Uses Coordinator, at (415) 464-511l. Thank you for your help and cooperation in keeping Point Reyes National Seashore Ranches safe. Sincerely,

Don L. Neubacher Superintendent

KEMcKay:kem 5/19/08

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George Turnbull Deputy Regional Director National Park Service 1111 Jackson Street Suire 700 Oakland, CA. 94607·4807

New YOlk Orange County Palo Alia

Re:

Drakes Bay

Dear Mr. Turnbull: On behalf of Drakes Bay Oyster Company, please fmd enclosed documents as required by section 3.2.10 of the Consent Order. Should you hav"t; any qutl:jdc)ns

()T

concerns, please d(~ not ht;sitatc to contact me.

Sincerely,

Michael Sharpless Senior Environmental Paralegal Enclosures cc: Zack \);;alton \V / a Enclosures l.l!GAkU$.W # S8!J2312.1

FEB-07-2008

10;33

5108171485

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George Turnbull/OAKLAND/NPS 01/29/200805:35 PM

To [email protected], "Kevin Lunny" , "Walton; Zachary R." cc bcc Subject Draft supffij

Kevin/Zach, Attached is a redline draft SUP with the revisions we agreed upon Friday. I assume you'll get us the oyster poundage figure so we can complete the signable document? Let me know if you need anything else .... George T.

~

DBDe Draft SUP 1.28.08· redline shows differences with NPS 1.11.08 version.doc

Form 10-114

Pagel of17

Rev, Jan, 00

UNITED STATES DEPARTMENT OF THE INTERIOR National Park Service

Special Use Permit Date Permit Reviewed Reviewed Reviewed Expires

Name of Use: Aquaculture

2007 20 20 November 30, 2012

Permit # MISC-8530-6000-8002 Long Term ShortTenn

Type

X

Park Code

:·rro.'#

POint Reyes National Seashore Name or Area

Drakes Bay Oyster'~6mpany 17171 Sir Francis Drake Blvd. Inverness, CA 94937 (415) 669-1149

(''Term'')'c.9.~~~~:~i':~W;{··'

is hereby authorized for it period . 200:]-8 ("Commencement Date'-') ,:and terminating on November 30 2012 ("Ekp4"ation Date") to us:e'ili~:f~'fo~~~£i,~SCribed land, improve~ents, and waters in t~~., following ar.ea: the lands and improvements at Drake~:I:3ay::.:q,~fe.f~iZ~fth.~former lOMson's Oyster Site consisting of approximately 1.1 acres of Iand!~d.,improvements.d~si~n~tf(4;i~~.~~.~~;Sl):e.-AI~~>' o~.tlie'map attached hereto as E:X}iibit B ("Drake's Estero Oysters - SUP.& ROP"); the wate(s:q.esignated)ls.the "SUP Area" on the map attached herl;ltb as Exhibit A (''Drake's Estero AquaQulture & CDF.G L~!l.s.~~;· ..NP~.~esources and SUP Area"); the limd'_~e~igri~ted as the "Well Area" on the map atta.ched-hereto as E'0ihit'.D._, (~'Drakes Bay Oyster Company WelI Area"); and.Jhe land designated as the "Sewage Area" on the map auache'd 6e~eto as Exhibit E ("Drakes Bay Oyster Company Sewage Area"). Collectively, the areas so l:iesignatea.'s~ali..b~}eferred to as the "P~eiriise~.': The Premises governed by this Pennit do not include the area des!gitated as"theRb.p:Afea'~l} .th.e map atta.~~.e·~:,~e(etl)..~'~xbibitB ... _"_" _,.. .. __ .. __ ._ For the purpose(s) of: . . . . . ,: .,:~(."" .._, ..... ,.:.. >.>:.::..... ,' . :'.. .-': Use of the area designated 'as the "SUP Area" on the 'map attacliea'}iereto as Exhibit.:.E~ for the purpose of processing shellfish, the interpretation ofshellfish cultivation to the visiting public, and residential'purposes reasonably incidental thereto. Use of the area'gesignated as.the·'!'$W ~~" Ort'~~ map attached'Fereto as Exhibit A for the purpose of shellfish cultivation. Use. of the area d~signat~d ~s the "Well Area" on,~~e map attached hereto as Exhibit D for the purpose of supplying water for the Drakes Bay Oyster Comp!U1y facilitjjfs'using Permittee welI, pump, and pipelines. Use of the area designated'.f,lS·the "Sewage..Ar~a" on the map attac~.~~;,liereto as ExhibitE for the purpose of use and maintenance of existing sewage pipeliIli::'and sewage I.eachfield to serVice the Drakes Hay Oyster Company facilities. Collectively, the uses set.fortb:'jrt this p~agritph sha,ll"b-e referred to' as the ''Permitted Uses." Authorizing legislation or other authority (RE-

DO-53):·'I6·:U.S:,C;'1·,';I~~1, 3 .~::4~~C; the Reservation of Use and Occupancy.

NEPA & NHPA Compliance: NEPA compliance pending Required .... _ _Ho_t_R~g!th~9- _._~. Amount: PERFORMANCE BOND: LIABILITY INSURANCE: Required x... }l~t_Rf!g!l.4"~9-_ --- -:.t.:~q~~; "~~:~etf~~~"-i~!\~!~(e i"~·,~f~~.is:~~ryni~ISSUANCE of this Pennit is subject to the terms, covenants, obligations, and reservations, expressed or implied herein and to the payment to the U.S. Dept of the Interior, National Park Service of the sum of$2,800.00 per year, plus an amount to be determined by appraisal for the use of the Sewage Area and the Well Area including water use. PERNnTTEE: __________~----------------------------~~~--------------~~--Signature

- ,( Field Code Changed

Organization

Date

" t~ield Code Changed .{ Field Code Changed

Authorizing Official: _ _ _ _--;;c_:-_______________---:G~'ao~'~g'o:_"T~um"':b~u~ll_:_-_ _ _ _ _---,;:-,_ _ Signature

Deputy Regional Director

Date

Additional Authorizing Official: _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ __ (If Required) Signature Title Date

LIST DF EXHIBITS EXHIBIT A:

Map - Drake's Estero Aquaculture & CDFG Leases: NPS Resources and SUP Area

EXHIBIT B:

Map - Dra"ke's Estero Oysters - SUP & ROP

EXHIBITC:

Drakes Estero Aquaculture and Harbor Seal Protection Protocol

EXHIBITD:

Map - Drakes Bay Oyster Company-We:!1 Are.8

EXHIBITE:

Map - Drakes Bay Oy.stEU: Company Sewage Area

CONDITIONS OF THIS PERMIT 1)

DEFINITIONS

As used in this Permit, the following terms shall have the following meanings: a)

"Agency" means any agency, department, commission, b_oard, bureau, office or other governmental authority having jurisdiction.

b)

"Applicable Laws" includes, without limitation all present and future statutes,_regulations, requirements, Environmental Requirements, g~idellnes, judgments, or orders of any Agenqy"or judicial body, whether now existing or hereafter E!stabUsh~d, relating to or affecting the Premises or th~:bse or occupancy of the Premises.

c)

"Commencement Date" is.as,-defined-,oii:the Cover Page of this Permit.

d) "Cyclic MaintE;!nance" means (i) the perf6onanc~-by Permittee of ~II rep~irs, maintenance, or replacement-in-kind necessary to maintain the Premises arrd-.thEl~'e¥t~ti!1g improvements'ther~on in good 'order, co~dition, and repair; (ii) housekeeping and routine and per!_q_~ic ~~r._~::,scheduled-'to mitigate wear and deterioration_v;.:itJ,out materially altering the appearance of the Pre,~_is~EI,i ,(j(jnt.~e:repair or repl?cement~in~kind_of broken or wClrn-out elements, parts or surfaces so as to main~.ir{the:_:~xisH9'g:,appearance of the Premises;-and (iv) schedule'~ inspections of all building systems on the Premises:', "",,' ,,_;e)

f)

faHLJ;~',ibL~~'~:-:~b:~~'perf~'rm ,any of the Provisions of.this-Permit. " "Environmental 'Requirements" ~~~':~'~',:"~;i~6~~:hf!1itation, all standards or requirements relating to the protection of "Default" means ;Permittee's

human health or j~e environment-sUqli'as:", ",

"

'

tp

a.

standards onequirements pertaining, 'the-reporting, permitting;·management,.. monltQring, investigation or remediation of'~ITJJssions,. disrchar~~,St.t~I~:a,s~~, or threatened emissions, release,S or_d'lscharges of Hazardous Materi.als into the ain surf?ce water, groundwater, or land; ,

b.

standards or requirements retating ~Q .the manufacture, handling, treatment, storage, disposal, or transport of Hazardous Materials; and '

C.

standards or requirements pertaining to-tne heaith and safety of employees

or the public.

g)

'Expiration Date" is as defined on the ,Cover Page of this Permit

h)

"Hazardous Materials", means, without limitation,-'any material or substance, whether solid, liquid, or gaseous in nature, a.

the presence of which requires reporti.ng-, p'ermittirm, -managem'i:mt; monitoring, investigation or remediation , ." :, under any Environmental Requirement;

b.

that is or becomes defined as a "hazardous waste," "extremely hazardous waste," "restricted hazardous waste," "hazardous substance," "pollutant," "~ischargei~' "waste," "contaminant," or "toxic contaminant" under any Environmental Requirement, or any above;;.grouhd or underground storage containers for the foregoing;

c.

that is toxic, explosive, corrosive, flammable, infectious, radioactive, reactive, carcinogenic, mutagenic, or othelWise hazardous to human health or the environment and is or becomes regulated under any Environmental Requirement;

d.

that contains gasoline, diesel fuel or other petroleum hydrocarbons or derivatives or volatife organic compounds, or is an above-ground or underground storage container for same; Page 2

e.

that contains polychlorinated biphenyls (PCBs), asbestos, asbestos-containing materials or urea formaldehyde foam insulation; or

f.

that contains radon gas.

i)

"Hazardous Materials Occurrence" means any use, generation, treatment, keeping, storage, transport, release, disposal, migration, or discharge of any Hazardous Materials from, on, under or into the Premises or Point Reyes National Seashore ("Point Reyes") that causes a,n1. enviroomenJ.a1 contamination.

j)

"Improvements or Alterations" ,m~aris any construction that does 'not-fall.'i-'ithin the definition of Cyclic Maintenance.

k)

"NPS" means the [lli!nagement qffjcials in charge of the administration and·¢peration of Point Reyes, including the Superintendent or' his/tier _design.ee(s).. -

I)

"Park" means~ ·without limitation, aij':la'ii,d~.:.'~aters and structures within the legislative bouncfarie~ of the Point Reyes NatioriFlI Seashore, all natural :a,~a::pu[t~tat resources within such ,boundaries, and any oth_er property within such boundari~s belonging to Point ReY~s:rA,s;~'ppropriate gj;ven·the~ontext,_thjs:term also iri6iGdes the visiting . . ,.: public and/or Point Reyes employ~es;<+,~r _(:>~~::<:>.

m) "Permit" means this instrument herein.

W~,;~h'cO!1~:'f~~)hose certain termination and revocation provi~fbns as provided for '.

fut~it'~_fe~I~~~~;e~~:'_'E!qUipment,

0) "Personar Property" means aU appliances and apparatu:;; PIElced on the Premises that neither are,att.ached to nor f?rrrf~J)~ri.~9f!_~_~·_p_remises. Personal'Property also includes any trailers, modular units, and/or temporary structures owned by:perrriittee. .

-'.

-,-,---.,

,

p) "Point Reyes meaDs Point R~y~$;NatidnafSe~shore. D

q)

"Premises" is as defined on the c:overPag~ of this Permit. ", -.'-,

r) s)

"Provision" shall mear! any te:fm".ag't~em~n~-_co~~na~t, the foregoing. -' ,.'" ,.. , - - ,

co~¥H~o,n' or provision of this '-Permit or any combination of .'

,

"ROP" or "Reservation of U~e_ and OCCURC!~CY" means t~e Reservation of USE!..aild Occupancy purchased by the Permittee in 2005. In 1972 the United States:qfAinerica purchased Johnson'Oyster Company's property, subject to a Reservation of Use and dc~):Jpancy on approxil1;1",tejy, 1._50fthose acr~s for a period of forty (40) years. This Reservation of Use and Occupan,cy:_,sxpi"res on November' 3ci, -201"2.

t) . "SUP" means this Permit. u) "Term" is as defined on the, Cover Page of thi~--pe~mi{ v) 2)

"Termination Date" means the Expiration Date or such ear,Jier:date as this Permit is terminated or revoked pursuant to any Provision of this Permit. -' . ,- .

GENERAL CONDITIONS a) The Permittee shall exercise this privilege subject to the supervision of the Superintendent, and shall comply with all Applicable Laws. b)

Permit and Approvals - Except as otherwise provided in this Permit, Permittee shall be responsible for obtaining, at its sole cost and expense, all necessary permits, approvals or other authorizations relating to Permittee's use and occupancy of the Premises. Page 3



c)

Damages ~ The Permittee shall pay the United States for any damage resulting from this use which would not reasonably be inherent in the use which the Permittee is authorized to make of the land and areas described In this Permit.

d)

Benefit ~ Neither Members af, nor Delegates to Congress, or Resident CommisSioners shall be admitted to any share or part of this Permit ar derive, either directly ar indirectly any pecuniary benefits to arise therefrom: . Provided, however, that nothing herein contained.shaU .be"con$trued to extend to any incorporated company if the Permit be for the benefit of such carporation: ...

e) Assignment and Subletting ~ T.his.Permit may not be transferred or assigned without the consent of the Permitter, in writing. Permittee shall not sublet the Premises ar any part the~e6f ar any prap'erty therean, nor grant any interest, privilege or license whats6ever in connection with this P.e'itnit without the prior written . ' approval of the_perm.rtter. f)

Revocatian' - This Permit may be t'e~riiih~t~a.upan Default or at the discretioh of the ':-:',::::<~':'

., -,.,,",

Pemiitter~

g) The Permittj;!e is prahibited from givingJal,$~JntOrmati6n; to. do. so will be considered a breach"of conditions and be grounds for'r,e'it,acatian [Re: 36 CFR 2:32-(.ii.}J . ,.-

3)

'-~'"

-

USE OF PREMISES

~uthorized to. use tbe:;~~~~i~~~~:~~,jifQr,Jhe Perrrjitted Us'es.

a)

Permittee is

b)

Permittee shall not engage in b'e dangerous ar' to persans, proj).eity, or the Park; that constitutes or results in waste or unr.~-i3,~On.!1~[e_a[l~oyance ~ncludi,ng'i,.without fimitatian, sighage and the use of loudspeakers or sound ar light app,a,~atu:~:U'ia(co.uJd., distl,lfb.p~rk'vjsitois· and wildlife outsid.e' the Premises); that in any manner cause's or results in a'ni1lsan~e;,:oi,,'th,atJs'oJ a nat!,Jr~ that it involves a substantial hazard, such as the manufacture or use of explosives, che-ri\(c;~Js':o(p'rodijcts tilat may expJode. ' '

c)

The Parties hereby acknowledge an~., ag.ree:that Permittee's covenant that the Premis~'s--shall be used as set forth in this Article 3 is material consic!.E;l:ra,til:ln}O~: Permitter's agreem,\3:nt to. enter into this Permit. The Parties further acknowfedge and ag'ree, that ~nfVio.l);it.i.Qn:F)t,said covenant',sha.fl' C9l1stitute ,a Default I,.uicer this Permit and that time. .~, Permitter may inspect the premises"at

anii,~'~t~~;tyJ6~{~~;

any·

the'righ~ the'N~s\(ye'~;tOati!i~h;~;~i'I'C'~nd

har~ful

impro\l~rr,ents

d)

This Permit is subject to. of ather and betterments over, upon, or through the Premises and further to the ~se by. travelers and others af.~uch established or existing raads and trails. The Permittee understands that -Occasianal park visitdrs are auth~(ized to walk, use nan~motorized watercraft, or hike in the various 'areas included in this Permit even though.no trails are formally established.

e)

Permitter reserves the right for Pemi'itter, its emplayees, contractars and':,agents to enter and to permit any Agency to enter upon the Premises for the 'p.urpl;lses,;o{J0spectian; jnvento~,.d(~hen othelWise deemed appropriate by the Permitter for the protectian of the inter~t~. of- permitter,)ncluding--,~ermitter's interests in any natural ar cultural resources located an, in ar under the Preml.ses; " ,':;" ,.' - :. ' Permitter reserves the right at any time to clo.~e tp Yavel av,y:of- its lands, to. erect and maintain gates at any point thereon, to regulate or prevent traffic af any kihdJherepn;·t6;'prescribe the 'methods af use thereof, and to maintain complete dominion aver the same; provided, howe'iler:;','£hat at all times during the Term, Permitter shall'provide Permittee and Permittee's invitees with reasonable access to the Premises subject only to interruptians caused by . necessary maintenance or administrative operatians ar by matters beyand Permitter's control.

g)

Permittee hereby waives any claim far damages for any injury, inconvenience to or interference with Permittee's use and occupancy of the Premises, any loss of occupancy or quiet enjoyment af the Premises, ar any other loss occasioned by Permitter's exerc"lse of its rights under this Article 3 except to. the extent that the damages, expenses, claims ar suits result from the wil!ful misconduct ar gross negligence af Permitter, its employees, contractors or agents; provided, further, that Permitter shall be liable only to the extent such claims are allowed Page 4

under the Federal Tort Claims Act, h)

Members of the general public visiting the Drakes Bay Oyster Company operation may park in the adjacent NPS parking area and walk over to the SUP or ROP areas.

i)

While Permittee is permitted to use and operate motorized watercraft in Drakes Estero for the purpose of conducting daily business operations, which can include occasional inspections required by Agencies, no other use of Permittee's motorized watercraft is authorjze.d . .No. motqrized watercraft may enter the designated wilderness boundary (See "Existing WilderJiess" ".QO rvap,9.ttacllei:fh'ereto as Exhibit A). To protect water quality in the Estero, any additional or replace-rnent bbannotors qbtained'by PenJ1ittei;t.must be four stroke motors.

j)

Due to a Jack of adequate parking space and restroom facilities for the pub1i6tbarbecuing is not permitted in the Special Use Permit Area. To '9omply wi.th this paragraph, Permittee will nof~ncourage barbecuing in the SUP' Area. Picnic tables wjll"be p.rovided by t~'e NPS,at the adjacent parking areit·.. ·

k)

Unauthorized discharge into the estu·a:i:y~'j{'~rohi?jted. This prohibition includes any dlscnarge from processing facilities. N.otwithstanding the foregoi,t{~i:..afsc::t)arge of oyster wash water from dock and from h"a~chery operations is allowed if authorized by relevant Age~pi~#:.i' . "

l)

In order to ensure public health an.ct:~af~t~i·,~e~ittee will ensure,that Permittee and Permittee'~ officers, agents, employees, a.ndcontractors cornply.~jttr:AppJ(cable Laws regarding.pe(srh;:luding the NPS regl,lJation at 36 C.F.R. § 2.15, c•• .;: ~,\<);~,/ .

:';;·~'::':;;·;i·.\'>·;'·;·'

:--.. :. . - : : ' ' .

healt~.- ~~~;'~~f~~:~'g~~mitt~e

' :':'.

Stat~.:·and/

m) In order to ensure public shall allow all appropriate'Federal, or County agencies; including the United ~ta.t~~;.Q.~p-.?ttm.~nt of Health and Human Services, the State.~9f.Californja Department on-iealth Services:and:M~fln ~6D.~,~.Gommunity Development Agency Envir6nfnental Health Services, to conduct inspections ~.~;:~~.~p.~,ti~:~i~~,~,i,~;: 4)

SPECIAL PERMIT a)

C~NDITIONS m _____ ~·~~.~S~::~~~~'·~·~."'------------nnm--mm---m-----r ____ c.-_m ___________________ n __________1Formatted: No underline

Permitter'di~~gree ~~88i;~'~'{i~'~i.Je-

If Permittee and related to this Permit they will first make a good faith effort to .. resolve such issue anhe Park le'¢efi·:.'lf are unable to resol5ie the issue at the ParlClevel Permittee may reguest a review ofthe1ssue by:-tne:'Region'al Director. '

{net

.:.. ":,,.,.!.,"'.'

------i Formatted: Bullets and Numbering

"''';'-%1

ab) Based upon the findi~g~ 6f.,an·''j~d·~'P~'ri8~Hr~,hi,~.hce;·~~Vie:#:'~:ri,~/~(N'EPk6~ti1PJian~, Permitter reserves its right - to modify the provisions offhis Article 4. Pe'rrnittei:'fbtther 'j-ese'rVe's its rightto incOrporate new mitigation provisions based upon f~r\dJngs, of an ,independent science r~view,

the

i)

The maximum annual prod.u9tion lirfli~ for .oysters,. ropk scallops and cl~tris will be approximately pOl,lnds;' .

-7OO;GOO ii)

No additional aquaculture racks, ~'nd/or c;u1',lyation: infra$:tructure ,~iltbe constructed without the prior approval of the Permitter. Operation, repai(, and ~ajmena~~. ofinfra~tr.ucti.Jre currenUy being used for oyster cultivation is permitted.

iii)

Permittee and Permitter acknowledge the importance pr~elgrass within the ecology of the estuary. Permittee will not place bags for'shellfish production'obfo"ee!gras:S:

iv) Within sixty (60) days following the signing of this interim Permit, Permittee will submit for National Park Service approval a boating operations plan, which will indicate dedicated navigation routes, chosen to minimize impacts to eelgrass beds when accessing aquaculture racks and/or cultivation equipment. v)

To minimize the chances of introducing invasive species or pathological microorganisms to Drake's Estero, Permittee will only import shellfish in the form of larvae and seed. Within 30 days of the Commencement Date, Permittee shall produce sufficient evidence, for the review and approval of the Permitter, that larvae and seed from outside SOl!rces have been certified by the California Department of Fish and Game ("CDFG") to be Page

5

Formatted: Indent: Left: 0.5", Hanging: 0.25"

free of pathogens. If the Permitter determines that the e"iseAse documentation is insufficient, Permittee shall cease from importing larvae within 30 days of receiving notification of the determination from the Permitter. vi) Permittee will not introduce species of shellfish beyond those described in the eXisting leases from the CDFG. Permittee may seek to conform and/or modify these leases with the CDFG. Any mocfifications approved by CDFG will be considered by Permitter on a case·by·case basis, and Permittee may not implement any such modifications without the prior written approval of the Permitter. vii) Permittee must avoid di.S;~~~:~9t;t~:~~ri::s~~'~;~~,d!~~:~:B'~':~b~~~~~~ haul·out sites. The Marine Mammal Protection c1 i i against any act of pursuit, torment or annoyance that has a marine mammal' or;rnarine mammal stock in the wild by causing diS"UI)tlon in.cludino. but not limited to, rriI~'ration, breathing, nursing, breeding, i Atmospheric Admini_~tration (NOAA) recommends to avoid disturbance to se~J~:;,: p;E!rf'!li~_pe 'If)!!, maintain a distance m",ug,no'u[ the year. Permitter wiILmpi1it!?~_ fTlarlne mammal the pupping harbor seal closure period; March 1·June 30, ?tJ~er.mit area) is closed to all boats. Permittee wiUJolJow "Drakes US"

~

tile I~ain

!~~:i\~~~;:~~~~~~ inPro~?c9i;'·_a~c~ed her~to;alfl~)dJibit C. It;r~'quired by CDHS, Exhibit C ouring the pupping tiarbor seal:dosure period only f~'~s~:~~,~~[,~i~'~O;:;r~'

If

Boats ,shall be operated at Jow speed, ha~bor seals, No other use':pf_ the Main Channel

Formatted: Indent: Left: 0", Hanging: 0.5", Tab stops: 0.25", Left + OS', Left

5) ACCEPTANCE OF PREMISES a)

Prior to entering into-this Permit, Permi~~_~);as -il;a~~ a thorough, jndep'endent'exa,;nina~pn of the Premises and all matte~ relevant to Permitt~e's,'detisioD.l
u~e'.anci':~~'uPY:~_!9,',~.r.fi!rrijS~'~'-!3'~Cfaij·;irn~rb-~~mentsj'hereon

b). Permittee expressly agrees to in their existing "AS IS" condition "WITH ALL FAULTS" and acknowledge's:tnat in enterin-g into this perlTjiti Permittee does not rely on, and Permitter does not make, any, express or)mpJied representations or warrantie~~-as to any matters including, without limitation, the suitability qf the soif. or subspifi any characteristics of th€!_ Premises or improvements thereon; the suitability of the Premises fcrthe.approyed _use; the economic__feasibiJity of Permittee's use and occupancy of the Premises; tit!e~:td't\1e'P.remis'es;':the p'tesen'i::e';ot'Hazardqus Materials in, on, under or in the vicinity of the Premises; or any otlier'matter. _i=>ermittee has satisfied itf:;_~lt'as to such suitability and other pertinent matters by Permittee's own inquirie's im9 tes~AhJo aJrmattEl,fs relevant to'determining.whether to enter into this Permit and Permittee hereby accepts the,PrernJ$es. '

OR'ALTE~I\TiONS' Permittee may only makE? those Improveme~fs;Q~ Alter~~o~~-'~~ the Premises that relate to Permittee's use of the

6) CONSTRUCTION OF IMPROVEMENTS a)

Premises as specified in Article 3, "Use of the Premise~;-»'

b)

Permittee shall not undertake any Improve.ments or Alterations to the Premises (including installation of temporary equipment or facifities) without the prior written approval of Permitter.

c)

As a prerequisite to obtaining approval for Improvements or Alterations, Permittee, at Permittee's sole cost and expense, shall submit design plans and any other relevant data for Permitter's approval.

d) Construction of Improvements or Alterations by Permittee shall be performed in accordance with all Applicable Page 6

Laws, including but not limited to general planning, building, and environmental laws and approved design plans and shall be undertaken and completed at Permittee's sole cost and expense. e)

Permittee shall, upon request, furnish Permitter with a true and correct copy of any contract, and any modification or amendment thereof, with Permittee's contractors, architects, or any other consultants, engaged in connection with this Permit.

f)

Any Improvements or Alterations undertaken by P_~.rmittee_shpJl be performed in a good and workmanlike manner and with materials of a quality and st:;mdah:f"acc~ptaple-toJ~.er~·ittet; Permittee shall also construct, install and . maintain equipment and any cC?nstructlon facilitIes on the Premises in._~.saf~_and orderly manner.

~'6_ahdaries of the Premises.

g)

Permittee shall not construct any Improvements or Alterations outside the

h)

Permitter in its ,discretti'on is_entitled to)]~ye on the Premises at any time d~-t!~g;,!he,GOrl~tr~~tion of Improvements or Alterations an'inspector or -repre$el1,f~tive who shall be entitled to observe- all a~pects Joe j:;onstruction on the Premises. . -,

of

i)

All lumber utili?-ed at the site will be prb8_~~~e,qjh-,pompliancewith C4rr'ent I~Y{~ a,rid regulations_regarding wood treatments. This includes lumber utili~e_cf,in-_~s_s~mbly and re'pair of aquaculture:racks:

j)

As set forth hi Article 17, title to Permitter. . "-

a~Y'-I~'~f;'~_~'%:¥~ts or AlteratiO,(1S't(ithe,P~emises shall be and,::r~main solely in the .,' . 'j-.-



7) TREATMENT OF REFUSE· a) b)

8)

'~romptlY remov~d"~l~;::t~~;K'i-h~.QOUndaries of Poiht Reyes National Seas,hore and shall be

Refuse shall be disposed of in aCbordance with Ap'pl.f~,~6,le ~-awk>

. Permittee will make Qest efforts to ;e~~~~tJ:~~~i~ia~s'ociated with aqUa¢uitllre,production;:6~e;ations including

wood from racks, plastic spac~r~, unus~~-s_h,~Ufis.h_bags, shellfish shells, and anYotli?r.~ssociated items.

PESTICIDE AND HERBICIDE USE.

,.

.

'

a) The National Park SeI"Yib.e utiJ,izeS intWr~t~~_'P.e,~t}yt_anag~lTi~nt: ,_!'IPM") .to_, treat pest'and vegetation problems. The goal of IPM is to us~ trye least-toxic;, effe;ctl_ve)~l~_tnp:d~:'iifC9r~rotiing pe.sts an(tvegetation. Except for normal household purposes, Permi~ee shall not ahY'p'esttcides-fliat'do n-ottompIY,-wjth the IPM program. To this end, Permittee shall submit in writing to Permi~t~r, a request for the use of pesticid~(~} or herbicide(s) and shall not use any pesticide(s) or herbicide-(s)'until Permittee has-received an express writt~,ri"authorization therefor from Permitter.

us'e

b)

9)

Permittee shall manage, treat, gener~te, handle, sto~e and dispose of_a,lLpesticides and herbicides in accordance with Applicable Laws, including repl:!rting requir~men~s. .

FIRE PREVENTION AND SUPPRESION a)

Permittee and its employees, agents, and contractors sha,~I;'-.i.o;Permittee's use and occupancy of the Premises, take all reasonable precautions to prevent forest, brush,-:' gh:iss, and structural fires and shall, if safety permits, assist the Permitter in extinguishing such fires on 'the Premises.

10) EXCAVATION SITE AND GROUND DISTURBANCE a)

Permittee shall not cut, remove or alter any timber or any other landscape feature; conduct any mining or drilling operations; remove any sand, gravel or similar substances from the ground or watercourse; commit waste of any kind; or in any manner change the contour or condition of the Premis~s without the prior written approval of the Permitter. Except in emergencies, Permittee shall submit requests to conduct such activities in writing to the Permitter not less than sixty (60) days in advance of ~he proposed commencement date of any such activities. Page 7

b)

If approval of activities referenced above in Section1 O(a) is granted, Permittee shall abide by all the terms and conditions of the approval, including provisions pertaining to archaeological resources.

c)

No soil disturbance of any kind may occur in the vicinity of a known archeological site, without the presence of an NPS archeological monitor.

11) NON POINT SOURCE POLLUTION a)

The Permittee shall comply w.jth ..all'~pplicable laws regarding non:'point.so'urce pollution (including the protection of beneficial uses of waters a~.de_signated by the State of California). Further;:.Permittee's use and occupancy of the Premises shall be designed Jo minimize, to the greatest extent feasiblei,~on-point source pollution within National Park ServiqE3 bounda~ies or on adjacent lands.

b)

Except A§s se~ forth 'In Section 3{k);.()f·_th.f~. Fermit, no discharge into the estu"ary is.pe;rmitte.d.'This prohibition includes anY,discharge from processin~rfa~ilities.

12) TREE AND VEGETATION REMOVAL

Permitte~

trE3;!2l(slQf,-",~9~~tion

w~iting t~.~

a) The rray not remove unless expressly app'royed in by Permitter. The Permittee shall provide specificp'-~hs.tO:, th.e.:p,e:rmitter for desired treE;l(s)'and v.~getation removal during the annual meeting or in writing during the -Teim',of.th!~' P.ermit. b)

Removal of non-native invasive structures is permissible.

veg~tati'~h':~iJ.cfi':~~· non-native .thistles,' trim'ming a'nct vegetati~~ removal around

13) WILDLIFE PROTECtiON a) Wildlife is an integral part of Point Reyes.-N.?l-tionaI'Seashore and must,r5e managed.in accbrdancewith all Applicable Laws, inclu.ding but nqt timitedJq.NF;l~Jaws, regulations, and policies. ",

b)

.

.

Permittee shall not eng-age in any.:a.8ivitY)t!.at· purposely caus~§: harm or destroys an~''I\'ildJife. Conversely, Permittee shall not engage in ani~Ct)yitf\hat purposely supP,,6rt§,p[.increa.ses popu,la.tions of non-native or invasive animal species, except for tl:lf:l:.c.ultivatipn..of the sh~!lijsh- speci~ ,authorized;by this Permit.

c)/'.s set feFtt:l iA

~ectieA 3m sf tAie PerFAit, per~i~~e \~'1~~~'avei~"~i5tblr9aMe t9,'mariAe FAaFAFAals aRE! mariRe

f'fh9FRffl~l-GtJt..sites.,.

EijdOn a case by case basis, the 'PeFj11itterwili eval.uate)ncigE!!n~s 9t.depreda.tiori caused by Permittee and choose a course of action. The nature of t~e ~urse of attion:Will be' determined by -the extent and frequency of the damage, the wildlife species, and 'Ratk-wide m,!:!nagement objectives. 14) HAZARDOUS MATERIALS- ENVIRONMENTAL HEALTH AND SAFETY a)

In connection with this Permit, Permittee, ·j~s o.fflcefisi,agellts, erm;loyees and contractors, shaH not use, generate, sett, treat, keep, or store any Hazardous M'aterials on, abou.f,Under or into the Premises or elsewhere in Point Reyes except in compfiance with alt Appticable.(;;l'vVs-a(1(;tas approved in writing by Permitter.' However, Permittee shall not be obligated to obtain Permitter's approval to use, keep, or generate Hazardous Materials as necessary for the normal operation or maintenance of vehicles or for standard household cleaners. Permittee agrees to be responsible for timely acquisition of any permit(s) required for its H.azardous Materials-related activities, and shall provide to the Permitter, upon request, inventories of aU such Hazardous Materials and any supporting documentation, including but not limited to material safety data sheets, uniform waste manifest forms, andlor any other pertinent permits.

b)

Permittee, its officers, agents, employees and contractors, shall not release, discharge or dispose of any Hazardous Materials from, on, about, under or into the Premises or elsewhere in Point Reyes, except as Page 8

.--____ E""""~=~~-~ and Formatted: Indent: Left: 0.25"

Formatted: Bullets

Numbering

-0----,--1 Formatted: Bullets and Numbering

authorized by Applicable Laws. c)

If Permittee knows of or reasonably suspects or receives notice or other communication concerning any past, ongoing, or potential violation of Environmental Requirements in connection with the Premises or Permittee's activities, Permittee shan immediately inform Permitter and shall provide copies of any relevant documents to Permitte'r. Receipt of such information and documentation shall not be deemed to create any obligation on the part of the Permitter to defend or otherwise respond to any such notification.

d)

If any Hazardous- Materials Occurrenge·is" caose.cJ qy, arise.~ frq~, or· is-,eXacerbated by the activities authorized under this Permit or by the use of. th$.Premises °by Permittee, its officers,. ag~nts, employees or contractors, Permittee shall promptly tak~ :?!!.actions at its sole cost and expense as are r~quired to comply with Applicable Laws and to allow the Premises.,and any other affected property to be used_: ffee of any use restriction that could be imposed under Appl,iqable Laws;'providEjld that, except in cases cif emergenCY, Permitter's approval of such actions shall first b~,pbta.ined.

e)

The Permitfer'~haJl have the i following at.!east twenty-four private utilities. and other entities the ': in its sole "'j'o,;'O""" whether Pe"ri',;ff"e ;~~~~:~~;:~~o' Materials in, ,';

profeSSiOlrn::a'~f,~~;i:~":~~,,~~~~ i

by or for F

at all reasonable times and, except in the'c?se of emergency,

fj~"D~~;'QtiC~t? fPermi~~e, t() enter and to permit arly':Agency, public or

:W;:~~:,;':isv~ifh: Premises, astnay be necess~ry_'as determined by s~

!

~~~~g,~Sl\U~lC~hf-i:n~S~PJe~ct~io~n~s~a~~nd review any final report prepared the to Permitter wiii
a~I~~:~~~ft~~~:1~~~~~~ii~~1

of no Permittee copies sh~11 have Premises or any other neither Permittee"nor protected by attoniey~client ~;;,,,,,:,~i;'

1)

Premises, InCluding 'invasive tests, to determine

inve,~tigate t~e,existence of a~y,-Hazardous h~ve the right, but-not the duty, t(fr.~tain independent

La'Nsand to

tests·-.~:nd

fron1,such with Permitte,e's useinvestigationso of the Se"ction 14(e). Notwithst~'.6ding the foregoing, repbrt under this Section 14(~) if such report is

Should Permittee, 'its officers",'agents;,.,,'€!rnRloyee~})r contractors, fail to perform Or'"~bS~_r;re any of the obligations or agreements pertaining' to Hazar~,9~S)~1~,tedal-s or Environmental Requirements for ~~period of thirty (30) days (or such longer period of time as)s're,a_s-qn_~bly required) after notice, then Permitter s,h:~11 have the right, but not the duty, without limi~tion of ~_~~:'81J\~_[ E~;~!!\t.~., of Permitter U;n8~r;::t~I~,: P~rmni, person~!,I¥.-·or through its agents, consultants or contractCi~ to::_~m~.Lth~~;Pte.mjsE3"S_,G\r)~ ,Rerf91:rft~~::!?~'1l~;,~,~~rl1littee;Clgrees to reimburse Permitter " for the costs thereof and to. indemnify pehni~~r:,a~.·prqvi(:f~d}oll'1.t~is"Perm·if~

g)

Permittee understands and a~.J~nowiedge§o,~hatthe Pr~mises mC!y contain asb~~tos and lead-based paint. If Permittee performs any Improvements or Alterations,;Perniittee"shall comply:_with all Environmental Requirements related to asbestos and lead-based paint and shall solely bear aU costs aS~:OQj~ted therewith. Nothing in this Permit shall be construed to require. Perrtiittee" to' remove asbestos or lea&based paint unless Environmental Requirements require such removal.'

h)

Permittee shall indemnify, defend, sav~ and Ii,Qi.d,PerrTl.ttt~~;-its el!!ployees, successors, agents and assigns, harmless from and against, and reimbu(sePermitte~.fof, ,ai1Y and;all claims, demands, damages, injuries, losses, penalties, fines, costs, liabilities, causes of ~c~on,·:jyqgme"rits" a,n~ expenses, including without limitation, consultant fees and expert fees, that arise 'dlJ[jn~.!:lr after tl}!ji,,ferm as a result of any violation of any Environmental Requirement in connection with this'Pe~l)J,irbYany Hazardous Materials Occurrence in. connection with this Permit. .

i)

The proviSions of this Article 14 shall survive any termination or revocation of this-Permit. Article 15 (Insurance) of this Permit shall not limit in any way Permittee's or Permitter's obligations under this Article 14.

15) fNSURANCE a)

Permittee shall purchase the types and amounts of insurance described herein before the Commencement Date of this Permit unless otherwise specified, At the time such insurance coverage is purchased, Permittee shall Page 9

"

provide Permitter with a statement of Permittee insurance describing the insurance coverage in effect and a Certificate of Insurance covering each policy in effect as evidence of compliance with this Permit. Permittee shall also provide the Permitter thirty (30) days advance written notice of any material change in the Permittee's insurance program hereunder. Permitter shall not be responsible for any omissions or inadequacies in insurance coverage or amounts in the event such coverage or amounts prove to be inadequate or othelWise insufficient for any reason whatsoever. b)

From time to time, as conditions in the insurance, industry warrant, the Permitter reseNes the right to revise the minimum insurance limits required in this'Permit:

c)

All insurance policies required by this Permit shall specify that the insurance company shall have no right of subrogation against the United ~tates, except for claims arising solely from,,:fui:fnegligence of the United States or its employees, or shall provide, tliat the l,1nited States is named as an addiHollal insured.

d) All insuran~' pplicies required- her~iQ' ~_~a!19ontain a loss payable clause app'i·ove.d, ~_y-;'t,he Permitter which requires insurance proceeds to be paid directlY,tp. the: Permittee without requiring endorsement by the Lfpited States. Insurance prQceeds covering any loss-{;,f the _Pr~mises but n()t us_ed to repI~ce such losses sha,(f:.be promptly paid by Permittee·to Permitter. The use o{lnsyrah,Ceyroceeds for the repair, restoration br replacement of the Premises snail not give any ownership-,iiitete'!?t'therein-tci Permittee: ' ,

e)

,

,

,

Property Insurance: At a minimum/ the_l:'e~tttee shall be required to purohase Basic Form Actual Cash Value (replacement,cost less depreciation}inSU~a_(l~:C9\1~:rage for all residence 'on the Premises. yvithin thirty days of issuance of the Permit, the per'!litt~e~~ti"!.rr~,~~rrit?reporj: frqm a reputable insuran'ce company which provides a full range of optiQns for insuranc~_-¥v~r,~~-~:6_i:i:'~jl nonresidential structures o'n the Premises ..'\Within thirty days of receipt of this report, the Permiti~r,',' ib- ,its :s.o)e~pjl?~retion, will review and specify the type and h~vel of insurance coverage whith'shall be required:'fh~ _~\9rrtii~#~~fwil,1 provide the Permittee written notificati~n of insurance requirements alJd:_!he Permittee sb?If.Q~re~,u,ir:e,d::J9 have.the spe~jfjed'ievel(s) of insurance_ in place within thirty days of such noti,fiqation, The cost 'oft~~'}~s,Ytar:q.~'~ilr be de,gu'Ctep from the,appraised f~.ir market value for the Premises; this adjust,ment and the insw?in:9.e?requireinents will be addr.ess·ed in an.amendment to the Permit. Permittee shalf, in t.he, event of d.<;I,mage,9r ~~_S:,tr,4.9ion in whole or in pa'rt to the 'Premjse~, 'use all proceeds from the above describeo, insurahce pon~.i.es'-.r();_r~pa·ir, restore, replace or remove those buiJdirigs, structures, equipment, furnishirigs;_ bettermerytS__p_r i~r!rovements determiryed by the Permitter, in:P~rmitter's sale discretion, to be necessary to satisfactori!y:dJs~argf3-the Permittee's obligations und~r this Permit.

-~~'a;'~ ~~O~~fq~,Cofi:,wehehsiV~ _-~~,~.~ral

insll~~~ce

public Liability: The Permittee Liabi;rty, against claims arising from or associated with Permittee's use and"occupancy 'of the- 'Premises. 'S'uch ,iqsurance shall be in the amount commensurate with the degr~e of risk and the scope and size of such use and,oi::c,upancy, but in any event, the limits of such insurance shalf not be l\9sS than $1,000,'000,0'0 per occurrence _covering both bodily injury and property damage, If claims redu'9€ avajl~ble,in·su.rance qe:low the required 'p~r occurrence limits, the Permittee shall obtain additional insurance,to' restore the req'uked limits. An·umbrelfa'or excess nability policy, in addition to a Comprehens,ive General Liability_Policy, may be uS\9d to achieve the r~quired limits. g)

Permittee shalf also obtain the following apditio,rial coverage: i)

Automobile UabiJity- To cover all ownetl,.nQn:pwned,--and hired vehicles in the amount of $300,000.00 .

ii)

Workers' Compensation - The amount snail tie"in accOrdance with that which is required by the State of California.



16) INPEMNITY a)

In addition to the indemnification contained in Article 14, Permittee shaH indemnify, defend, save and hold Permitter, its employees, successors, agents and assigns, harmless from and against, and reimbUrse Permitter tor, any and aU claims, demands, damages, injuries, losses, penalties, fines, costs, liabilities, causes of action, judgments and expenses and the like incurred in connection with or arising in any way out of this Permit; the use or occupancy of the Premises by Permittee or its officers, agents, employees, or contractors; the deSign, Page 10

construction, maintenance, or condition of any Improvements or Alterations: or any accident or occurrence on the Premises or elsewhere arising out of the use or occupancy of the Premises by Permittee or its officers, agents, employees, or contractors. Permittee's obligations hereunder shall include, but not be limited to, the burden and expense of defending all claims, suits and administrative proceedings (with counsel reasonably approved by Permitter), even if such claims, suits or proceedings are groundless, false or fraudulent, and conducting all negotiations of any description, and paying and discharging, when and as the same become due, any and all judgments, penalties or other sums due against the United States. b)

c)

Permitter agrees to cooperate, to the extent aHoyJed.bY law, -iri·th~ submission of claims pursuant to the Federal Tort Claims Act against the United States by "third parties ·for personal injurjes or property damage resulting from the negligent act or omissio"'-~f-any' employee of the United States it:! the co~rs_e of his or her employment. This Article 16 sh,,!.II._s4JVive arJy t~rminaJion or revocation of this Permit. TH~ provisions of Article 15 (Insurance) of this Permit sh"aJrnoJ IimitJn alJY wa'{p::~~mittee's obligations under this ArtiCle-16.

17) PROPERTY INTEREST

no-<~fbk:~:riyJn~,erest th~'Pre:mises

a) This PermitshaH vest in Permittee in or iri'the.-impJ:"Ovementsthereon. Title to real propertY·ahd improvements th_~re()_n/ i,;'§Ii:R:lIng any Improvements or Alterations constructed by Permittee, shall be and remain solely in perl")1itt~r~:;,:,E~ceRt,as provided in. Paragraph 3(g), Permittee shali",bave no claim for any compens'ation or damages fo(the,Premise;, the improvements thereon, Of any Improvements or Alterations ' . constructed by the Permittee. b)

Nothing in this Permit shall give,ofbe":9~;e:tn:E!~Jo-glve Permittee an ·independent right to granfeasements or other rights-of-way ov~r, under, on, or--thro~gh-the Premises.

c)

Permitter hereby retains the sole,.~.rt~te.xq,I~_~_~,'{e:-rjght to oil, gas; ttydrocarbQns, and other n:i,iherals (of whatsoever character) in, on, o"r under the Prerriise~: '.

18) RENTS TAXES AND ASSESSMENTS a) The annual rental rate for this Permit shall be established by Permitter and is set forth- on the Cover Page of this Permit. '. b) The annual rent under tbis,Permit is'paYabl¢;iD:_adv~Q<:)e:p.Q a:,~_emj-.Glnri.Jal,basis._}herefore, Permittee hereby· agrees to pay fifty percent ofthe annual rate on 0''- before November with the fernalning fjfty percent payable on or before May of each year duljng.the Term. c)

Permittee shafl pay the proper'Agency, when ?Od as,tO.e san)e b!390me due}3:nd payable, all taxes, assessments, and similar charges which, at any,fime during the 1"erm ofthis'Per'mit, ar~)evied or assessed against the Premises.

d)

Rents due hereunder shall be paid witl:1ou~ ass~rtion of ani counteidaim, setoff, deduction or defense and without abatement, suspension, deferment or re9uqtion.' .

19) CYCLIC MAINTENANCE a)

Permittee shall perform all Cyclic Maintenance in a'ccordance with the Provisions of this Permit and at Permittee's sole cost and expense. Permittee is responsible for the maintenance of all fences, buildings, and other improvements upon the Premises. All improvements and facilities used and occupied by Permittee shall at all times be protected and maintained in a safe, sanitary and sightly condition.

b)

Specific maintenance requirements may be negotiated with Permittee each year as outlined in Article 21 (Annual Meeting).

c)

Docks and Fences shall be maintained in good condition and shall be timely repaired in conformance with Page 11

Applicable laws. Abandoned fences and other dacrepit improvements shall be removed from the Premises and shall be disposed of outside the Park or as directed by Permitter after review and approval by the NPS Historian. d) New lighting under Permittee's control of the Premises shaU be redesigned to protect and preserve the night sky/darkness and minimize light pollution in Drakes Estero. e) Parking areas shall be maintained in a safe condition and no new roads or truck trails shall be established without prior written permission of the Permitter. The main,entrance (pad from Sir Francis Drake Boulevard to the SUP Area will be maintained by the NPS. The Park~JII r~.spond_in,~-umely,manner to Permittee and/or visitor complaints regarding the condition of the niain 'entrance road. Not\Nithsta'n'Wnq the foregoing, Permitter may enter . into a road maintenance contract with Permittee. Existing water reservoirs shai"1 be, maintained in a safe and secure conditio-n:'fo prevent washouts and erosion and no new reservoirs :;;;hall"Qe _constructed.9f established without prior written aRprqyal. ~f t~e Permitter. g) Permittee s:halJ maintain the water,"W~II~:p'ump and all pipelines within the Premises. Permittee shall replace or repair any qamage or loss of the water-.sys,tl¥l1J within the PrelT]ises. h) Permittee shall maintain the sewage'piR~ljrie,'an!i~ewage leachfield in ttie ~S~W'a-ge Area." i)

fo!>¢m',J$f~'~:;;la~~ bUild~P

Permittee sh$!I pe responsible around fen.ces.6r ,Pther facilities within the Premises so as to prevent:fi~e and egress haz~rds>, PeJmJ~e\'l:-~I:1_all also be responsIble for removing litter'and trash from the . Premises " ,

20) COMPLIANCE WITH APPLICABLE

J;;sA~~~'~~~A

a) General Compjl~nce: As provided,f9,r-inJ~i,sP~rm'ikPer[]litt.~e,a~:its, sale c~st and expens€l,:shall promptly comply with all AppJicaole Laws as required b'(law: ~~errilitte:e .sh~n,ilJJniedjately'·n6tifY., Permitter 0rany notices received by or on behalf of-J'ermittee regarding',a:hy,alleg->ed:o,l'.-'actu
a) At the conclusion of Permittee's authorization to use the Premises for the Permitted Uses, Permittee shall surrender and vacate the Premises, remove Permittee's Personal Property therefrom, and repair any damage resulting from such removal. Subject to the approval of the Permitter, Permittee shall also return the Premises to as good order and condition (subject to ordinary wear and tear and damage that is not caused directly or indirectly by Permittee) as that existing upon the Effective Date. b) All Permittee's Personal Property shall remain the property of Permittee. However, if after the conclusion of Permittee's authorization to use the Premises foethe Permitted.. Uses, Permittee sha!! fail satisfactorily to remove Permittee's Personal Property and so repairthe pn3rnises. tl1en, the. Permitter's sale option, after notice to Permittee, Permittee's Persona!. Prci"p.erty, shalreither become the proper~y":of the Permitter without compensation therefore, or the Permitter may..cause it to be removed and the Premises to be. repaired at the expense of Permittee, and no claim for d.amages against Permitter, its employees, ageri~s'or contractors shall be created or made on account .C!f ~uch rem<;w'al or repair work.

at

24) LIMITATION ON·EFFEC'r OF APPROVALs· .

,. -,

-,

-,

-~

comrri,;'~ht:)Qn,

with-:r~:spect

a) All rights of,p'ermitter to review, _approve, inspect or take any other action to the use and occupancy of the Premises by peril]-i~e~-r qr,..a~y ot~er matter, are;lexpressly, for the benef~ _of Permitter and no other party.' No review, commentr}p~~p~var;_ot~ir~~pection; right or eJi:erGise ofany right·to perfq;rm Permitter's obligations, or similar action requir~~d;~ri:P.~_r.rn.W~d by, of, or to.permitteruQdJ3r..this Permit, or_~9tions or omissions of Permitter's.'employees, contra_¢t.c)rs;.8~:ci~~~r-~agents, or othe,i'-circurn$ta:nqes.shall give or b~:#eemed to give Permitter any_nability, responsibility-::O(bb,lig,a,tioll,:for, i,n connection"with, or with 'respect to the__~peration of the Premises, nor-shall any such appr~;~!?a,~~iq,n:§;:'fnformatiQn or'circlir:ns!a,nces reliEive'or be dEi:~ined to relieve Permittee of its obligations and resP"9hsibilities for the use,and_occupanc"y dtne Premises as' forth in this .. Permit.

set

25) WAIVER NOT CONTINUING

sUCh:"'~$i~~r-~~_,~xpressed

a) The waiver of any Default, whether or implied, sHaH'rot Qe CQri,strued as a continuing waiver, or a wavie'r.,of or cO!ls~nno any,::s
or

26) LIENS

a)

Permittee shall have no P9w~r to do any '~'(£6~'td ;i~ki~ri~~C6ht~~ct that ma'y crgate or be the foundation for any lien, mortgage or other encufi:lbrance UpOI) the reversion, fee interest or otherEistate of the Permitter or of any interest of the Permitter in the Premises. If a_!l9.sucfi lieh ·sh_an"at anytime be:flled against the Premises or any lien. portion thereof, Permittee shall cause the ,pern\itter to !Je d!s~harg~d from

the

27) HOLDING OVER

g

a) This Permit shall terminate upon the Term.ination Date abd.-any holdi'ri over by Permittee after the Termination Date shall not constitute a renewal of thi.s ·Permit or give P~rmitte'e"any rights under this Permit or in or to the Premises. 28) NOTICES a) Any notice or other communication required or permitted under this Permit shall be in writing and shall be delivered by hand or certified mail with return receipt requested. Notices and other communications shall be addressed as follows:

Page 13

If to Permitter: Superintendent Point Reyes National Seashore Point Reyes Station, CA 94956 If to Permittee: Mr. Kevin Lunny Drakes Bay Oyster Company 17171 Sir Francis Dr~ke Inverness, CA 94937 29) NO PARTNERSHIP'OR JOINT VENTURE. a)

~~~~T:1r:-ioin~\,tenturer

Permitter i§ f'!cit for any purpose a of Perrl)ittee in the deveiopmerit or operation of the Premises or in any business conductei::t on theYremises. Permitter shall not under any circumstances be responsible or obligated for any 10sses:br.jiabiJiti'es of Permittee.

30) ANTI-DEFICIENCY ACT a)

.

,.,-"

:,:

'

Permittee anq. Permitter agree thatr1o.tD.in~,C6nt.a.ined in this Permit shall be construed as binl~fi.ng Permitter to expend, in any fiscal year, any su.m-in-,~~~ss,ofthe;apprdpriati9n made .by, C6ngre9s for thatfiscal year in furtherance of,the subject matte~'of t,t)is',pe,fJ11,it,.O:f to involve Permitter in any contract or other obligation for the future expenditure of money in e~ce:s.s, ~f.s.u,?,h,appropriations. .

31) COMPLIANCE WITH EQUAL OPPORTUNITY LAWS a)

Permittee agrees that in undertaking Laws relating to non-discriminatiQn;

an".~J;iV;ti~~::~ursuant to this Permit. Permi,ttea..wiH comply with all Applicable

32) ENTIRE AGREEMENT AND AMENDMENT a) This instrument, togethe~ with'the. exhibits:'herete:, .all,.of wh,iqt:t,::ar~(jncorRor~t~d in thi,~.Permit by reference, constitutes the entire agreement betweer{P~rm'itter..arid.p!?rmfttee. witt-i:resP,ect to~tne subject matter of this Permit and supersedes aU prior offers, negotiations, oral'and written:' This Permit-maY}Jot be amended or modified in any respect whatsoever except by an instrum~nt in writing, signed by Permitter aOl;l.permittee. 33) NO PAYMENTS BY PERMITTER' a)

Under no circumstances or condition::;;, whether now. existing or hereaft!3r.arising, and whether or not beyond the present contemplation of the Parties, shall P~tm:!tter qe'exp':ected or .r:~qu'ired to make any payment of any kind whatsoever with respect to the Premis.eS -9r be:under I?~y.obligatiorl.ot liability except as expressly set forth in this Permit. . ""

34) NO THIRD PARTY BENEFICIARIES a)

Except as expressly set forth in this Permit, this p·ermit~h·all not be deemed to confer upon any person or entity, other than the parties to this Permit as expressly set forth in this Permit, any third party beneficiary status, any right to enforce any Provision of this Permit, or any other right or interest.

35) NO PREFERENTIAL RENEWAL AND RELOCATION ASSISTANCE a)

Permittee hereby agrees that Permittee is not a concessioner and that the provisions of law regarding National Park Service concessionaires do not apply to Permittee. No rights shall be acquired by virtue of this Permit entitling Permittee to claim benefits under the Uniform Relocation Assistance and Real Property Acquisition Page 14

Policies Act of 1970, Public Law

91~646.

36) SEVERABILITY a)

In case anyone or niore of the provisions of this Permit shall for any reason be held to be inyalid, illegal or unenforceable in any respect, such invalidity, illegality or unenforceabitity shall not affect any other provision of this Permit, and this Permit shall be construed as if such invalid, illegal or unenforceable provisions had not been contained in this Permit.

37) EXHIBITS a)

Each of the exhibits referenc~d In this Permit is attached hereto and incor8?rated herein.

38) TIME OF THE ESSENCE a)

Time is herebY' expressly declared to:ti,8_of- the essence of this Permit and of each and everj PtQvision of this Permit. '

39) HEADINGS a)

Article, Section and Subsection [email protected]~,9'S'i~'_'tfiIS "Permit are for:,converience dnly and are not tO'be construed as a part of this Pe:rmit or in any waY:lim,i:ti,~gcp~:~_ nJ,p_iifYJr1g the Provisions cif this Permit.

40) PERMIT CONSTRUED AS A WHOLE,: ...

~~;~~;~:~h:~jn~:,;~ILqases

a) The language in all parts of this be construed as a whole accordin,g to its fair meaning and not strictly for or against either PE!!mfit~F-:O["f?ir_Iil(~~e. The ,P<;lrties acknowledge that eadfparty and its counsel have reviewed this'.?ermit and partICipaiei:n.6"lf~_',~ia~iri~·-and therefore th<;lt the: fule of coristruction that any ambiguities are to-be. resolved against th~;;~rafti'~9_ party shall not be 'eqlployed or·,applied',jn'the interpretation of this Permit. 41) MEANING OF TERMS a) Whenever the conteXt so.. requkes,'-' the: _ n~uter ,gender shalf hldude- the masculine and the feminine, and the singular shall include the plural and vice',ve'rsa;, -, 42) FEDERAL LAW a) The laws of the United States 'Shall govern the va]idity, construct!on and effect of this Permit.

Page 15

EXHIBIT A Map - Drake's Estero Aquaculture & CDFG Leases: NPS Resources and SUP Area

EXHIBITB

Map - Drake's Estero Oysters - SUP & ROP

\

EXHIBITC

Drakes Estero Aquaculture and Harbor Seal Protection Protocol

EXHIBITD Map - Drakes Bay Oyster Company Well Area

EXHIBIT E Map - Drakes Bay Oyster Company Sewage Area

United States Department of the Interior ,"

..-

'~

NATIONAL PARK SERVICE Pacific West Region 1111 Jackson Street, Suite 700 Oakland, California 94607-4807

JAN 152008 . .

····-···-"·~t·· .-...

IN REFLY REFER TO:

A7221 (PWR-RD)

.~:TL-·

Kevin and Nancy Lunny Drakes Bay Oyster Company 17171 Sir Francis Drake Blvd Inverness, CA 94937

-

.... ",.- .. '".-.' . ;:: j,:,;'; i. -.,'"'" . ~.

-~~.

--~

'.

.<'!

,·",n" _,.

..

"

I

....-." ..,...... ,'.

".

· ·.....',.·f;. : -.;.>;': ....' ... :-'- . -'.

~,

.........,......,""..

,.-.~.

" ..

/

.

. ,~-...., ~ !;~~;~~.:" ;'-

, .. ~

Dear Mr. and Mrs, Lunny:

.

Thank you for your long and detailed letter of December 31, 200i'feg'arding'theDrakes Bay Oyster Company. This issue has been dominating all of our time and in keeping with our mutual discussion with Senator Feinstein on Monday, January 7, I think it is in all of our interests that we try to bring it to a mutually agreeable solution as soon as possible. You have a legitimate business to run and r have the public trust responsibility to operate a unit of the National Park System. I do not think long detailed, point by point responses are productive, but rather a focus on the three key issues as follows: 1. The Science: Our scientists and those employed by the Califomia Coastal Commission agree that there are negative effects on the environment from oyster fanning in Drakes Estero. You and your associates, such as Dr. Goodman, disagree with that assessment. In order to resolve those disagreements, the National Park Service is prepared to contract with the National Research Council (NRC) to produce two reports, one specific to Drakes Estero as a "case study" and the other to look more broadly at the ecological effects ofmariculture. It is my understanding that you, and Dr. Goodman have concurred with the NRC on the scope ofthis review. I suggest that we all, including the California Department ofFish and Game, actively participate in this review and trust the highest scientific body in the US to give us their objective analysis. 2. The allegations of scientific validity in the report "Drakes Estero, A Sheltered Wildemess": Allegations are just that, not proof of anything, and we await independent confirmation or dismissal. This is being thoroughly investigated by the Department of the Interior's Office of the Inspector General. 3. The Special Use Permit: DBOC is currently operating a commercial business within a unit of the National Park System without any permit. Our regulations require that any

TAKE PRIDE"il:=-

INAMERICA~

j

special use permit to carry out any activity in a unit of the National Park System to have speci fie provisions to protect the environment. You are not being singled out in any way. You need the NPS Special Use Permit to be in compliance with the California Coastal Commission. As discussed with the Senator, we have structured the permit to be nearly identical to the dairy permits in the insurance and other "boiler plate" pr~visions. These should be very familiar to you. We have offered the permit until 2012, when the Reservation of Use and Occupancy expires and stated that we would only reopen the environmental provisions based on NEP A and the results of the NRC review of the science. That offer gives you full assurance you can fully operate until 2012, without having to come back for another permit. As for the environmental provisions, they are nearly identical to those required by the California Coastal Commission's Consent Cease and Desist Order, which you signed in December of2007 (see attachment). At your request, we have incorporated the Consent Order Harbor seal map as the basis for operational protocol. These provisions are designed so that you can conduct your business and the natural resources of Drakes Estero are protected. That is our public responsibility and consistent with the commitment we made at the meeting in Olema. Kevin, you have stated many times that you would like to go back to a former time, when the relations with the NPS were cordial. I agree. Unfortunately, this issue now involves attorneys, reporters, DC lobbyists, environmental and agriculture constituency groups, elected officials, scientists, investigators, state regulators and now the highest scientific body in the United States. Each of them has interests that will not always lead to a mutual resolution and a re-establishment of a working relationship on the ground at Point Reyes National Seashore. The best way we can bring back that relationship back is for you to negotiate in good faith. We have attached a permit that meets all the points we discussed with the Senator and it is my hope you will-sign it. With your signature, we can move this back to an on-going operation and collaborative relationship. I look forward to meeting with you later this month.

~~-~~ Jo athanB.U

STATE OF CAUFORN!A-THE RESOURCES AGENCY

C

Drake's Bay Oyster Co. CCC-07-CD-ll Page 17 of 34

ARNOLD SCHWARZENEGGER, GOVERNOR

MMISSION

CONSENT ORDER NO. CCC-07-CD-04 (DRAKE'S BAY OYSTER COMPANY)

1.0 General Pursuant to its authority under Public Resource Code §30810,I the California Coastal Commission ("Commission") hereby orders and authorizes Drake's Bay Oyster Farm, run by Drake's Bay Oyster Company (hereinafter referred to as "Respondent"), its employees, agents, contractors, and anyone acting in concert with any of the foregoing, and successors in interest and future owners/operators of the business or lessees to comply with the terms and conditions of this Consent Cease and Desist Order (hereinafter referred to as "Consent Order"). Respondent agrees to undertake the following, pursuant to this Consent Order and in the interest of resolving and settling this matter: 2.0 Further Unpermitted Development Respondent agrees to cease and desist from performing any new development, as the term "development" is defined in Coastal Act §30106, on the property, which is defined in Provision 10.0 of this Consent Order, and from expanding or altering the current development that exists on the property. Nothing in this Consent Order prohibits the Respondent from continuing current operational activities, provided that all protective measures set forth in Provision 3.0 of this Consent Order are implemented as required and that the current activities are not expanded. 3.0 Resource Protection Measures Respondent agrees to implement the following measures to minimize potential resource impacts to onshore and offshore areas caused by the operation of the facility. Nothing in this Consent Order shall be construed to authorize the corresponding development or the operations. 3.1 Onshore Conditions 3.1.1

Additional Str.uctures. Construction andlor placement of any additional onshore structures are prohibited until Respondent obtains a coastal development permit. Nothing in this Consent Order precludes Respondent from seeking a waiver for de minimis development, as set forth in Coastal Act §30624.7, or from seeking a CDP for development on the property.

The Coastal Act is codified in sections 30,000 to 30,900 of the California Public Resources Code. All further section references are to that code, and thus, to the Coastal Act, uniess otherwise indicated.

1

Drake's Bay Oyster Co. CCC-07-CD-ll Page 18 of34 3.1.2

Water QuaIitylHazardous Waste. Within 60 days of the issuance of this Consent Order, Respondent shall submit a hazardous materials/discharge management plan which: I) identifies and outlines procedures for the removal or replacement of any receptacle for oil, paint, or other hazardous materials that is leaking or could leak in the near future; 2) identifies current and potential polluted discharges and outlines protocols for addressing the discharges; 3) provides a contingency plan for potential leaks; 4) states that Respondent shall take all necessary measures to prevent leaks or spills; and 5) states that all adequate or new receptacles shall be moved at least 100 feet from sensitive areas, or to paved areas or inside structures, securely stored, and properly labeled. If the information required under this provision has been provided to a county or state agency in order to comply with that agency's regulations or requirements, the information supplied to that agency may be submitted in lieu of the hazardous materials/discharge management plan.

3.1.3

Thermal Discharges and Seawater Use. Elevated temperature waste discharges shall comply with limitations necessary to ensure protection of marine resources and biological productivity. The maximum temperature of waste discharges, as measured from the point of discharge of the "incubation area", shall not exceed the maximum temperature of the receiving waters by more than 20 degrees F. In addition, all seawater intake structures shall be designed to ensure that maximum through-screen intake velocity does not exceed 0.5 feet per second. Measures shall be adopted to minimize the facility's intake and use of seawater, including the use of a seawater collection and re-circulation system in the grow-out room.

3.2 Offshore Conditions 3.2.1

Additional Structures. Construction and/or placement of any additional offshore aquaculture racks/cultivation infrastructure is prohibited until Respondent obtains a coastal development permit.

3.2.2

Future Abandonment and Removal of Equipment. To prevent the degradation of oyster cultivation apparatus and the release of debris into Drake's Estero, within 30 days of the cessation of harvesting on any plot that is being temponirily taken out of production, Respondent shall remove oyster culture apparatus from that plot except for permanent structures including oyster racks located within certified harvest areas. Notwithstanding the foregoing, Respondent may resume harvesting on any plot temporarily taken out of production. Within 30 days of the cessation of harvesting on any plot that is being permanently taken out of production, Respondents shall remove all oyster cultivation apparatus from that plot, including permanent structures such as oyster racks, stakes, and pallets.

Drake's Bay Oyster Co. CCC-07-CD-1l Page 19 of 34 3.2.3

Removal of Abandoned Equipment. All currently abandoned materials including cultivation equipment/apparatus, including those stakes and racks not currently and actively being used to produce shellfish, except those plots that are identified for repair, shall be removed. Within 90 days of the issuance of this order, Respondent shall submit a Debris Removal Plan to the National Park Service and Executive Director of the Coastal Commission for approval. The plan shall include location of debris identified for removal, proposed techniques and eqUipment to be used for debris removal, and identification of the debris disposal facility. Within 60 days of approval by the Executive Director and National Park Service of the Debris Removal Plan, Respondents shall remove all debris as approved in the Debris Removal Plan. Within 30 days of completing debris removal, Respondent shall submit to the Ex.ec.utive Director and National Park Service a final report detailing the material that was removed, the locations from which this material was removed, the techniques and equipment used, and the location of the disposal facility.

3.2.4

Invasive Species. To minimize the chances of introducing invasive species or pathOlogical microorganisms to Drake's Estero, Respondent will only import shellfish in the form oflarvae and seed. Within 30 days of the issuance of this Consent Order, Respondent shall produce sufficient evidence, for the review and approval of the Executive Director, that larvae and seed from outside sources have been certified by California Department of Fish and Game to be free of pathogens. If the Executive Director determines that the evidence is insufficient, Respondent shall cease from importing larvae within 30 days of receiving notification of the determination from the Executive Director.

3.2.5

Boat Transit. Boat traffic shall be limited to established channels that do not violate the protective measures set forth in this Consent Order. In situations where visibility is poor, Respondent will make every effort to use only the established channels. Within 60 days of the issuance of this order, Respondent shall submit to the National Park Service and the Executive Director a Vessel Transit Plan for review and approval. This plan shall include proposed access lanes (distinguishing between commonly-used channels and channels only used when certain racks/bags . are active) and mooring areas for maintenance and harvesting of oysters, clams, and scallops. Once approved, only the vessel lanes and mooring areas described and mapped in the Vessel Transit Plan shall be used by Respondent and Respondent's employees.

3.2.6

Harbor Seal Protection Areas. All of Respondent's boats, personnel, and any structures and materials owned or used by Respondent shall be prohibited from the harbor seal protection areas defined on the map, which is attached to this Consent Order as Figure 1. Within 60 days of issuance of this Consent Order, Respondents shall submit a plan outlining the removal of all equipment and materials located in these areas. Within 60

Drake's Bay Oyster Co. CCC-07-CD-ll Page 20 of 34 days of the approval o[this plan by the Executive Director, Respondents shall implement the plan as approved. In addition all of Respondent's boats and personnel shall be prohibited from coming within 100 yards of hauled out harbor seals. 3.2.7

Pacific Oyster and European Flat Oyster. Cultivation of Pacific oyster (Crassostrea gigas) and European flat oyster (Ostrea edulis) shall only occur in the "cultivation area" defined in Provision 3.2.11 of this Consent Order. Cultivation of additional oyster species within this area shall not be allowed and cultivation of these oyster species outside of this lease area shall also not be allowed. Within 60 days of the issuance of this Consent Order, Respondent shall submit a plan outlining the removal of all shellfish and equipment from prohibited areas, as defined in this provision, and setting forth protocols for cultivation of allowable species and prevention of intrusion by prohibited species in the areas defined in this provision. Within 30 days of the approval of this plan by the Executive Director, Respondent shall implement the plan as approved.

3.2.8

Non-Oyster Species Areas. Cultivation of manila clams (Venerupis phillipinarum formerly Tapes japonica) and purple-hinged rock scallops (Crassodoma gigantean formerly Hinnities tnultirugosus) shall only occur where currently cultivated in the "cultivation area" defined in Provision 3.2.11 of this Consent Order. Cultivation of additional non-oyster species shall not be allowed. Within 60 days of the issuance of this Consent Order, Respondent shall submit a plan outlining the removal of all clams, scallops or any unpermitted species and any associated cultivation equipment located outside of the cultivation area. Within 30 days of the approval of this plan by the Executive Director, Respondent shall implement the plan as approved.

3.2.9

Use of Bottom Bags. Bottom bags shall only be placed in intertidal areas devoid of eelgrass. No eelgrass shall be removed to create additional areas for bottom bags. Within 60 days of the issuance of this Consent Order, Respondent shall submit protocols for the location and practices regarding the use of bottom bags according to this provision and the terms and conditions of this Consent Order.

3.2.10 Maximum Annual Production Limit. Within 60 days of the issuance of this Consent Order, Respondents shall provide documentation showing the "current production level," including the amount harvested in the last year and any projected increases in yield for the coming year. Production of all shellfish species shall be capped at this "current production level." 3.2.11 Cultivation Area. All cultivation shall be confined to areas which are; 1) currently included in the CaI'ifornia Department of Fish and Game lease numbers M438-01 and M438-02; 2) consistent with the California Department of Health, the Food and Drug Administration, and the

Drake's Bay Oyster Co. CCC-07-CD-ll Page 21 of34 National Shellfish Sanitation Program approved shellfish harvest areas within Drakes Estero; and 3) specified as oyster beds or primary water quality sites on the map attached to this Consent Order as Figure 1. 4.0 Plan Revisions If the Executive Director detennines that any immaterial modifications or additions to the plans submitted under Provision 3.0 ofthis Consent Order are necessary, he shall notify Respondent. Respondent shall complete the requested modifications and resubmit the plan(s) for approval within 10 days of the notification. 5.0 Com pletion of Coastal Development Permit (CDP) Application 5.1 Within 60 days from the issuance date of this Consent Order or within such additional time as the Executive Director may grant for good cause, pursuant to Section 18.0 ofthis Consent Order, Respondent shall revise the project description in Coastal Development Permit (CDP) application No. 2-06-003 to include all unpermitted onshore and o(fshore development, as that tenn is defined and addressed in the Coastal Act and Commission's regulations (California Code of Regulations (CCR), Title 14, Division 5.5), subject to Respondent's reservation of rights, positions and defenses as specified in Provision 13.0. 5.2 Within 120 days from the date of issuance of a National Park Service Special Use Permit for the operations on the property, or within such additional time as the Executive Director may grant for good cause, Respondent shall submit all materials which are required to complete CDP application No. 2-06-003, to: California Coastal Commission Energy, Ocean Resources, and Federal Consistency Division Attn: Cassidy Teufel 45 Fremont St., Suite 2000 San Francisco, CA 94105-2219 The application shall address all existing development, as that term is defined and addressed in the Coastal Act and Commission's regulations (Title 14 of the California Code of Regulations), that is unpermitted, including but not limited to the development identified in Provision 11.0, on the property identified in Provision 10.0, subject to Respondent's reservation of rights, positions and defenses as specified in Provision 13.0. If Respondent believesthat one or more items of development listed in Provision 11.0 do not exist on the property, Respondent shall submit evidence supporting the claim(s) to the Executive Director. If the Executive Director determines that the claim is valid, this Consent Order shall not apply to that portion of cited development. 5.3 Respondent shall not withdraw the application submitted under Provision 5.1 and shall allow the application to proceed through the Commission permitting process

Form

1O~1

14

Page I of i7

Rev. Jan. 00

UNITED STATES DEPARTMENT OF THE INTERIOR National Park Service Special Use Permit Date Pennit Reviewed Reviewed Reviewed Expires

Name of Use: Aquaculture

2007 20 20 November 30, 2012

Permit # MISC-8530-6000-8002 Type

LongTelm X Short Term

Park Code

No. fl·

Point Reyes National Seashore Name of Area

Drakes Bay Oyster Company 17171 Sir Francis Drake Blvd. Inverness, CA 94937 (415) 669-1149 is hereby authorized for a period ("Term") commencing on ,2007 ("Conunencement Date") and termina.ting on November 30. 2012 ("Expiration Date") to use the following'described land, improvelnents, and waters in the following area: the lands and improvements at Drakes Bay Estewat'the'former Johnson's Oyster Site cousisting of approximately 1.1 acres of land and improvements designated as·the '''SUP Area" on the map attaohed hereto as Exhibit B ("Drake's Estero Oysters - SUP & ROP"); the waters designaiedas the "SUP Area" on the map attached hereto as Exhibit A ("Drake's Estero Aquaculture & CDFG Leases: NPS Resources and SUP Area"); the land designated as the "Well Area" on the map attached hereto as Exhibit D ("Drakes Bay Oyster Company Well Area"); ancl the land designated as the "Sewage Area" on the map attachel,thereto as Exhibit E ("Drake~ Bay Oyster Company Sewage Area"). Collectively, the areas so designated shall be referred to as the "Premis,s," The Premises governed by this Permit do not include the area designated as the ROP·Area on the map attached'iJ#et9asExji~bit B. For the purpose(s) of: Use of the area designated as the "SUP Area)) on- the map atta9h~d·hereto as ExhiQit E ·for the purpose of processing shellfish, the interpretation of shellfish cultivation to the visiting public, and residential purp'oses reasonably incidental thereto. Use of the area designated as the "SUP Area" au the·map attached liereto as Exhibit A for the purpose of shellfish cultivation. Use of the area designated as the "Well Area" on the map attached hereto as Exhibit D for the purpose of supplying water for the Drakes Bay Oyster Company facilities .using Permittee well, pump, aLd pipelines. Use of the area designated as the "Sewage Area" on the map attached hereto as Exhibit E for the purpo~;,:! of use and maintenance of existing sewage pipeline and sewage leachfield to service the Drakes Bay Oyster Company facilities. Collectively, the uses set forth in .this paragraph shall be referred to as the "Permitted Uses."

Authorizing legislation or other authority (RE - DO-53): 16 U.S.C. I, la-I, 3 & 459c; the Reservation of Use and Occupaney. NEPA & NHPA Compliance: NEPA compliance pending PERFORMANCE BOND: Required Not Required X Required X Not Required LIABILITY INSURANCE:

Amount: Amount: As set forth in Article 15 ofthis Permit.

ISSUANCE of this Pennit is subject to the terms, covenants, obligations, and reservations, expressed or implied herein and ;:0 the payment to the U.S. Dept. of the Interior, National Park Service ofthe sum of$2,800.00 per year, plus an amount to be determined by appraisal for the use of the Sewage Area and the Well Area including water use.

PERMITTEE: _ _ _ _ _-;:c-_ _ _ _ _ _ _ _ _ _ _ _ _ _-:::-_-,-..,.--_ _ _ _ _ _ _ _ __ Signature

Organization

Dace

A uthorizing Official :_ _ _ _ _c-_ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _G""e"'o!.jrg"'e':-T"'-"u!.!m!.!b"u"ll!-. _______ -:::-_ _ Signature

Deputy Regional Director

Additional Authorizing Official: _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _-'_ (If Required) Signalme Title

Date

Date

CONDITIONS OF THIS PERMIT 1)

DEFINITIONS

As used in this Permit, the following terms shall have the following meanings: a) : b)

"Agency" means any agency, department, commission, board, bureau, office or other governmental authority having jurisdiction. "Applicable Laws" includes, without limitation all present and future statutes, regulations, requirements, Environmental Requirements, guidelines, judgments, or orders of any Agency or judicial body, whether now existing or hereafter established, relating to or affecting the Premises or the use or occupancy of the Premises.

c)

"Commencement Date" is as defined on the Cover Page of this Permit.

d)

"Cyclic Maintenance" means (i) the performance by Permittee of all repairs, maintenance, or replacement-in-kind necessary to maintain the Premises and:the existing improvements thereon in good order, condition, and repair; (ii) housekeeping and routine and periodic work scheduled to mitigate wear and deterioration without materially altering the appearance of the Premises·; (iii) the repair or replacement-in-kind of broken or worn-out elements, parts Or surfaces so as to maintain the existing appearance of th" Premises; and (iv) scheduled'inspections of all building systems on the Premises.

e)

"Default" means Permittee's failure .to 'keep and p.erfdrm any ofthePrbvi~ibn's of this' Permit.

f)

"Environmental Requirements" means, without !'Imitation, all standards or requirements relating to the protection of human health or the environment such as: a.

standards or requirements pertaining to the reporting, permitting, management, monitoring, investiga:ion or remediation of emissions, discharges, releases, or threatened emissions, releases or discharges of Hazardous Materials into the air, surface water, groundwater, or land;

b.

standards or requirements relating to. the manufacture, handling, treatment, storage, disposal, or transport of Hazardous Materials; and

c.

standards or requirements pertaining to the health and safety of' employees or the public.

g)

"Expiration Date" is as defined on the Cover Page of this Permit.

h)

"Hazardous Materials" means, without limitation, any material or substance, whether solid, liquid, or gaseous in nature, a.

the presence of which requires reporting, permitting, management, monitoring, investigation or remeciiation under any Environmental Requirement;

b.

that is or becomes defined as a "hazardous waste," "extremEily hazardous waste," "restricted hazardc-us waste," "hazardous substance," "pollutant," "discharge;" "waste," "contaminant," or "toxic contaminant" under any Environmental Requirement, or any above-ground or underground storage containers for the fore'!loing;

c.

that is toxic, explosive, corrosive, flammable, infectious, radioactive, reactive, carcinogenic, mutagenic, or otherwise hazardous to human health or the environment and is or becomes regulated under any Environmental Requirement;

d.

that contains gasoline, diesel fuel or other petroleum hydrocarbons or derivatives or volatile organic . compounds, or is an above-ground or underground storage container for same'; Page 2

e.

that contains polychlorinated biphenyls (PCBs), asbestos, asbestos-containing materials or urea formaldehyde foam insulation; or

f

that contains radon gas.

i)

"Hazardous Materials Occurrence" means any use, generation, treatment, keeping, storage, transport, release, disposal, migration, or discharge of any Hazardous Materials from, on, under or into the Premises or Point Reyes National Seashore ("Point Reyes") that causes any environmental contamination.

j)

"Improvements or Alterations" means any construction that does not fall within the definition of Cyclic Maintenance.

k)

"NPS" means the management officials in charge of the administration and 'operation of Point Reyes, including the Superintendent or hislher designee(s). . .

I)

"Park" means, without limitation, all lands, waters and structures within the legislative boundaries of the IOoint Reyes National Seashore, all natural and cultural resources within such boundaries, and any other proper:ywithin such boundaries belonging to Point Reyes. As appropriate given the context, this term also includes the Visiting public andlor Point Reyes employees.

m) "Permit" means this instrument which contains those certain termination and revocation provisions as provided for herein.

2)

n)

"Permitted Uses" is as defined on the Cover Page of this Permit.

0)

"Personal Property" means all furniture, fixtures, .equipment, appliances and apparatusplaced on the Premises that neither are attached to nor form a part of the premises. Personal Property also includes any trailers, modular units, andlor temporary structures owned by Permittee.

p)

"Point Reyes" means Point Reyes National·Seashore.

q)

"Premises" is as defined on the Cover Page ofthis Permit.

r)

"Provision" shall mean any term, agreement,covenant, conditiOn or provision of this Permit or any combination of the foregoing.

s)

"ROP" or "Reservation of Use and Occupancy" means the Reservation of Use and Occupancy purchased by the Permittee in 2005. In 1972 the United States of America purchased Johnson Oyster Company's property, subject to a Reservation of Use and Occupancy on approximately 1.5 of those acres fot a period of forty (40) years. This Reservation of Use and Occupancy expires on November 30,2012.

t)

"SUP" means this Permit.

u)

"Term" is as defined on .the Cover Page of this Permit.

v)

"Termination Date" means the Expiration Date or such earlier date as this Permit is terminated or revoked pursuant to any Provision of this Permit.

GENERAL CONDITIONS a)

The Permittee shall exercise this privilege subject to the supervision of the Superintendent, and shall comply with all Applicable Laws.

b)

Permit and Approvals - Except as otherwise provided in this Permit, Permittee shall be responsible for obtaining, at its sole cost and expense, all necessary permits, approvals or other authorizations relating to Permittee,'s use and occupancy of the Premises. ' Page 3

3)

c)

Damages· The rermittee sllall pay the United states for any damage resulting from this use which would not reasonably be inherent in the use which the Permittee is authorized to make of the land and areas described In this Permit

d)

Benefit - Neither Members of, nor Delegates to Congress, or Resident Commissioners shall be admitted to any share or part of this Permit or derive, either directly or indirectly any pecuniary benefits to arise therefrom: Provided, however, that nothing herein contained shall be construed to extend to any incorporated company if the Permit be for the benefit of such corporation.

e)

Assignment and Subletting - This Permit may not be transferred or assigned without the consent of the Permitter, in writing. Permittee shall not sublet the Premises or any part thereof or any property thereon, nor grant any interest, privilege or license whatsoever in connection with this Permit without the prior written approval of the Permitter.

f)

Revocation - This Permit may be terminated upon Default or at the discretion of the Permitter.

g)

The Permittee is prohibited from givingfalse.ioformation; to do so will be c.onsidered a breach of conditions and be grounds for revocation [Re: 36 CFR 2.32(4)]

USE OF PREMISES a)

Permittee is authorized to use the Premises only for the Permitted Uses.

b)

Permittee shall not engage in any activity that may be dangerous or harmful to persons, property, or the f'ark; that constitutes or results in waste or unreasonable annoyance (including, without limitation, signage and the use of loudspeakers or sound or light apparatus that could disturb park visitors and wildlife outside the Premises); that in any manner causes or results in a nuisance; Or that is of a nature that it involves a substantial hazard, such as the manufacture or use of explosives, chemicals or prod'uds that may explode.

c)

The Parties hereby acknowledge and agree· that Permittee's covenant that the Premises shall be used as set forth in this Article 3 is material consideration for Permitters agreeme.nt to enter into this Permit The Parties further acknowledge and agree that any violatiqm.of said covenant shall'constitute a Default under this Permit and that Permitter may inspect the premises at'any time.

d)

This Permit is subject to the right of the NPS to establish trails and other improvements and betterments over, upon, or through the Premises and further to the use by travelers and others of such established or existing roads and trails. The Permittee understands that occas'lonal park visitors are authorized to walk, use non-motorized watercraft, or hike in the various areas included in this Permit even though no trails are formally established.

e)

Permitter reserves the right for Permitter, its employees, contractors and agents to enter and to permit any Agency to enter upon the Premises for the purposes of inspection,inventory or when otherwise deemed appropriate by the Permitter for the protection of the interests of Permitter, including Permitter's interests in any natural or cultural resources located on, in or under the Premises.

f)

Permitter reserves the right at any time to close to travel any of its lands, to erect and maintain gates at any point thereon, to regulate or prevent traffic of any kind thereon, to prescribe the methods of use thereof, and to maintain complete dominion over the same; provided, however, that at all times during the Term, Permitter shall provide Permittee and Permittee's invitees with reasonable access to the Premises subject only to interruptions caused by necessary maintenance or administrative operations Or by matters beyond Permitter's control.

g)

Permittee hereby waives any claim for damages for any injury, inconvenience to or interference with PerrnUee's use and occupancy of the Premises, any loss of occupancy or quiet enjoyment of the Premises, or any otller loss occasioned by Permitters exercise of its rights under this Article 3 except to the extent that the damages, . expenses, claims or suits result from the willful misconduct or gross negligence of Permitter, its employees, contractors or agents; provided, further, that Permitter shall be liable only to the extent such claims are allowed Page 4

under the Federal Tort Claims Act. h)

Members of the general public visiting the Drakes Bay Oyster Company operation may park in the adjacent NPS parking area and walk over to the SUP or ROP areas.

i)

While Permittee is permitted to use and operate motorized watercraft in Drakes Estero for the purpose 01' conducting daily business operations, which can include occasional inspections required by Agencies, no other use of Permittee's motorized watercraft is authorized. No motorized watercraft may enter the designated wilderness boundary (See "Existing Wilderness" on map attached hereto as Exhibit A). To protect water quality in the Estero, any additional or replacement boat motors obtained by Permittee must be four stroke motors.

j)

Due to a lack of adequate parking space and restroom facilities for the public, barbecuing is not permitted in the Special Use Permit Area. To comply with this paragraph, Permittee will not encourage barbecuing in the SUP Area. Picnic tables will be provided by the NPS at the adjacent parking area.

k)

Unauthorized discharge into the estuary is prohibited. This prohibition includes any discharge from processing facilities. Notwithstanding the foregoing, discharge of oyster wash water from dock and from hatchery operations is allowed if authorized by relevant Agencies.

I)

In order to ensure public health and safety, Permittee will ensure that Permittee and Permittee's,officers, agents, employees, and contractors complywi!h Applic
m) In order to ensure public health and safety, Permittee shall allow'allappropriate Federal, State andl or County agencies; including the United States Department of Health and Human Services, the State of California Department of Health Services and Marin County Community Development Agency Environmental Health Services, to conduct inspections on a routine basis. 4)

SPECIAL PERMIT CONDITIONS a)

Based upon the findings of an independent science review andlor NEPA compliance, Permitter reserves its right to rnodify the provisions of this Article 4. Perhlitter further reserves its right to incorporate new mitigation prOVisions based upon the findingsotan .independent science review. i)

The maximum annual production limit for oysters, rock scallops andclahls will be 700,000 pounds.

ii)

No additional aquaculture racks andlor cultivation infrastructure will be constructed. Operation, repail', and maintenance of infrastructure currently being used for oyster cultivation is permitted.

iii) Permittee and Permitter acknowledge the importance of ee.lgrass within the ecology of the estuary. F'ermittee will not place bags for shellfish production onto eelgrass. iv) Within sixty (60) days following the signing of this interim Permit, Permittee will submit for National Park Service approval a boating operations plan, which.wil/'indicate·dedicated navigation routes, chosen to rninimize impacts to eelgrass beds when accessing aquaculteire racks andlor cultivation equipment. v)

To minimize the chances of introducing invasive specjes or pathological microorganisrns to Drake's Estero, Permittee will only import shellfish in the form of larvae and seed. Within 30 days of the Commencement Date, Permittee shall produce sufficient evidence, for the review and approval of the Permitter, that larvae and seed from outside sources have been certified by the California Department of Fish and Game ("CDFG") to be free of pathogens. If the Permitter determines that the evidence is insufficient, Permittee shall cease from importing larvae within 30 days of receiving notification of the determination from the Permitter.

vi) Permittee will not introduce species of shellfish beyond those described in the existing leases from the CDFG. Permittee may seek to conform andlor modify these leases with the CDFG. Any modifications approl/I,d by CDFG will be considered by Permitter on a case-by-case basis, and Permittee may not implement any such Page 5

modifications without the prior written approval of the Permitter. vii) Permittee must avoid disturbance to marine mammals and marine mammal haul-out sites. The Marine Mammal Protection Act, 16 U.S.C. 1361 et seq., includes a prohibition against any act of pursuit, torment or annoyance that has the potential to injure or disturb a marine mammal or marine mammal stock in the wild by causing disruption of behavioral patterns, including, but not limited to, migration, breathing, nursing, breeding, feeding, or sheltering. The National Oceanic and Atmospheric Administration (NOAA) recommends maintaining a distance of at least 100 yards to avoid disturbance to seals. Permittee will maintain a distance of at least 100 yards from hauled out seals throughout the year. Permitter will monitor marine mammal populations in Drakes Estero. In addition, during' the pupping harbor seal closure period, March 1-June 30, the designated wilderness area (outside of Permit area) is closed to all boats. Permittee will follow "Drakes Estero Aquaculture and Harbor Seal Protection Protocol" attached hereto'as Exhibit C. If required by CDHS, watercraft may use the Main Channel identified in Exhibit C during the p~pping harbor seal closure p,oriod only to access CDHS's sentinel monitoring station for marine biotoxins. Boafssh.all be operated at low speed, near the eastern shore, to minimize chance of disturbance to harbor seals. NooHie! use of-the Main Channel is authorized during the pupping harbor seal closure period. 5)

6)

ACCEPTANCE.OF PREMISES a)

Prior to entering into this Permit, Permittee has made a thorough, independent examination of the Premises and all matters relevant to Permittee's cjecision toe.nter into this Permit, and Permittee is thoroughly familiar with all aspects of the Premises and is satisfied· that ilieyare in an acceptable conditi'on and meet Permittee's needs, provided that Permittee and Permitter acknowledge. that certain repairs are necessary to comply with Applicable Laws. Permittee will make such rep13irscat.itssole"cost and expens'e in compliance'with Applicable Laws.

b)

Permittee expressly agrees to use and oc.eupy'the Premises and all improvements thereon in their existinq "AS IS" condition "WITH ALL FAULTS" and8cknowledgesthat in entering into this Permit, Permittee·does not rely on, and Permitter does not make, any expres.s.:o[ impliedTepresentationsor warranties as to any rnatters including, without limitation, the suitability of the soil or subsoil;. any characteristics of the Premises or improvements thereon; the suitability of the Premises for the approved use; the economic feasibility of Permittee's use and occu",ancy of the Premises; title to the Premises; the presence of Hazardous Materials in, on, under or in the vicinity of the Premises; or any other matter. Permittee has satisfied itself as. to such suitability and other pertinent matters by Permittee's own inquiries and tests into all matters relevant to d€it.ermining Whether to enter into this Permit and Permittee hereby accepts the Pre.mises.

CONSTRUCTION OF IMPROVEMENTS OR ALTERATIONs a)

Permittee may only make those Improvements or Alterations·to the Premises that relate to Permittee's Premises as specified in Article 3, "Use of the Premises."

b)

Permittee shall not undertake any Improvements or Alterations to the Premises (including installation of twnporary equipment or facilities) without the prior written approval of Permitter.

c)

As a prerequisite to obtaining approval for Improveme.nts or Alterations, Permittee, at Permittee's sole cost and expense, shall submit design plans and any other rel"vant data for Permitter's approval.

d)

Construction of Improvements or Alterations by Permittee shall be performed in accordance with all Applicable Laws, including but not limited to general planning, building, and environmental laws and approved design plans and shall be undertaken and completed at Permittee's sole cost and expense.

e)

Permittee shall, upon request, furnish Permitter with a true and correct copy of any contract, and any modification or amendment thereof, with Permittee's contractors, architects, or any other consultants, engaged in connection with this Permit.

f)

Any Improvements or Alterations undertaken by Permittee shall be performed in a good and workmanlike manner and with materials of a quality and standard acceptable to Permitter. Permittee shall also construct, install and Page 6

USE,

of the

maintain equipment and any construction facilities on the Premises in a safe and orderly manner.

7)

8)

9)

g)

Permittee shall not construct any Improvements or Alterations outside the boundaries of the Premises.

h)

Permitter in its discretion is entitled to have on the Premises at any time during the construction of Improvements or Alterations an inspector or representative who shall be entitled to observe all aspects of the construction on the Premises.

i)

All lumber utilized at the site will be proce$sed in complialice with·aurf.,nt laws and regulations regarding wood treatments. This includes lumber utilized in assembly-and repair ofa'quaclliture racks.

j)

As set forth in Article 17, title to any Improvements or Alterations to the Premises shall be and remain sobly in the Permitter.

TREATMENT OF REFUSE a)

Refuse shall be promptly removed from within the boundaries of Point Reyes National Seashore and shaH be disposed of in accordance with Applicable·Laws.

b)

Permittee will make best efforts to rembvedebris.associated with aquaculture production operations including wood from racks, plastic spacers, unused shellfish bags, shellfish shells, and'ahy other associated items.

PESTICIDE AND HERBICIDE USE a)

The National Park Service utilizes Integrated Pest Management (".1 PM") to treat pest and veg~tation problems. The goal of IPM is to use the least-toxic, effective methods of controlling pests and vegetation. Except for normal household purposes, Permittee shall.n.ot"use.any 'pesticides that do not comply with. the IPM program. To this end, Permittee shall submit in writing top'emiitter,a reqllestfor the use of pesticide(s) or herbicide(s) and shall not use any pesticide(s) or herbicide(s) until Perm!ttee.has rec.eivedan expres~ written authorizatio'nthereforfrol1l Permitter.

b)

Permittee shall manage, treat, generate, handle, store and dispose of all pesticides and herbicides in accordance with Applicable Laws, including reporting requirements.

FIRE PREVENTION AND SUPPRESION a)

Permittee and its employees, agents, and contractors shall, in Permittee's use and occupancy of the Prerr.ises, take all reasonable precautions to prevent forest, brush, grass, and structural fires and shall, if safety permits, assist the Permitter in extinguishing such fires on the Premises.

10) EXCAVATION. SITE AND GROUND DISTURBANCE a)

Permittee shall not cut, remove or alter any' timber or any other landscape feature; conduct any mining or drilling operations; remove any sand, gravel or similar substances from the ground or watercourse; commit waste of any kind; or in any manner change the contour or condition of the Premises without the prior written approval of the Permitter. Except in emergencies, Permittee shall submit requests to conduct such activities in writing to the Permitter not less than sixty (60) days in advance of the proposed commencement date of any such activities.

b)

If approval of activities referenced above in Section10(a) is granted, Permittee shall abide by all the terms and conditions of the approval, including provisions pertaining to archaeological resources.

c)

No soil disturbance of any kind may occur in the viCinity of a known archeological site, without the presencr" of an NPS archeological monitor.

11) NONPOINT SOURCE POLLUTION Page 7

a)

The Permittee shall comply with all Applicable Laws regarding non-point source pollution (including the protection of beneficial uses of waters as designated by the State of California). Further, Permittee's use and occupancy of the Premises shall be designed to minimize, to the greatest extent feasible, non-point source pollution within National Park Service boundaries or on adjacent lands.

b)

As set forth in Section 3(k) of this Permit, no discharge into the estuary is permitted. This prohibition includes any discharge from processing facilities.

12) TREE AND VEGETATION REMOVAL a)

The Permittee may not remove tree(s} or vegetation unless expressly approved in writing by the Permitter. The Permittee shall provide specific plans t.o the Permitter for desired tree(s) and vegetation removal during the annual meeting or in writing during the Term of this Per,mit.

b)

Removal of non-native invasive vegetation such as non-native thistles, trimmirigand vegetation removal ground structures is permissible.

13) WILDLIFE PROTECTION a)

Wildlife is an integral part of Point Reyes National Seashore and must be managed in accordance with all Applicable Laws, including but not"limited'to'NPS laws, regulations, and policies.

b)

Permittee shall not engage in any activity that purposely causes harm or des.troys any wildlife. Conversely, Permittee shall not engage in any activity tha!'purposely suppo.rts or increases populations of no.n-native I)r invasive animal species, except for the cultivation of the shellfish species authoiized by this Permit.

c)

As set forth in Section 3U) of this Permit, Pen:nittes :must avoid disturbance to marine mammals and marine mammal haul-out sites.

d)

On a case by case basis, the Permitter wIJI evaluate incidences of depredation caused· by Permittee and choose a course of action. The nature onhe course of action will be determined by tile extent and frequency of thE! damage, the wildlife species, and park'wids' management objectives.

HEALTH AND SAFETY 14) HAZARDOUS MATERIALS; ENVIRONMENTAL . . . a)

In connection with this Permit, Permittee, its· officers, agents, 'employees and',contractors, shall not use, generate, sell, treat, keep, or store any Hazardous Materials on, about, under or into the Premises or elsewhere in f'·:>int Reyes except in compliance with all Applicable Laws and as
b)

Permittee, its officers, agents, employees and contractors, shall not release, discharge or dispose of any Hazardous Materials from, on, about, under or into the Premises or elsewhere in Point Reyes, except as authorized by Applicable Laws.

c)

If Permittee knows of or reasonably suspects or receives notice or other communication concerning any past, ongoing, or potential violation of Environmental Requirements in connection with the Premises or PermittE,e's activities, Permittee shall immediately inform Permitter and shall provide copies of any relevant documents to Permitter. Receipt of such information and documentation shall not be deemed to create any obligation on the part of the Permitter to defend or othe.rwise respond to any such notification.

d) . If any Hazardous Materials Occurrence is caused by, arises from, or is exacerbated by the actiVities authorized Page 8

under this Permit or by the use of the Premises by Permittee, its officers, agents, employees or contractors, Permittee shall promptly take all actions at its sale cost and expense as are required to comply with Applicable Laws and to allow the Premises and any other affected property to be used free of any use restriction that could be imposed under Applicable Laws; provided that, except in cases of emergency, Permitter's approval of such actions shall first be obtained, e)

The Permitter shall have the right, but not the duty, at all reasonable times and, except in the case of emmgency, following at least twenty-four (24) hours advance notice to Permittee, to enter and to permit any Agency, public or private utilities and other entities and persons to enter upon the Premises, as may be necessary as determined by the Permitter in its sale discretion, to conduCt inspections of the Premises,including invasive tests, to determine whether Permittee is complying wiih all Applicable Laws and to investigate'the, existence of any Hazardous Materials in, on or under the Pre'mises, The Permitter shall have the right, bWliot the duty, to retain independent professional consuttants to enter the Premises to conduct such inspections and to review any final report prepared by or for Permittee concerning such compliance, Upon Permittee's request,~he Permitter will make available to Permittee copies of all final reports and written data obtained by the Permitter'from such tests and investiqations, Permittee shall have no claim for any injury or inconvenience to or interference with Permittee's use of the Premises or any other loss occasioned by inspections under this Section 14(e), Notwithstanding the foregoing, neither Permittee nor Permitter shall be required to provide a report under this Section 14(e) if SUch report is protected by attorney-client privilege,

f)

Should Permittee, its officers, agents;,emproye~s'or contractors, fail to perform or observe any of the obli9ations or agreements pertaining to Hazardbus:M
g)

Permittee understands and acknowledges that the Premises may contain asbestos and lead-based paint If Permittee performs any Improvements or Alterations, Permittee shall comply with all Environmental Requirements related to asbestos and lead-based paint and shall solely bear all costs associated therewith, Nothing in this Permit shall be construed to require Permittee to remove asbestos or lead-based paiotunless Environmental Requirements require such removal.

h)

Permittee shall indemnify, defend, save and liold Permitter, itsempjoyees, s,uccessors:" agents and assigns, harmless from and against, and reimburse,Permitter'for,13ny
i)

The provisions of this Article 14 shall survive any termination or revocation 'Of this Permit Article 15 (Insurance) of this Permit shall not limit in any way Permittee's,or Permitters obligatioris under this Article 14,

15) INSURANCE a)

Permittee shall purchase the types and amounts cif insurance described herein before the Commencement Date of this Permit unless otherwise specified, At the time such insurance coverage is purchased, Permittee shall provide Permitter with a statement of Permittee insurance describing the insurance coverage in effect and a Certificate of Insurance covering each policy in effect as evidence of compliance with this Permit Permitlee shall also provide the Permitter thirty (30) days advance written notice of any material changE) in the Permittee's ins,urance program hereunder, Permitter shall not be responsible for any omissions or inadequacies in insurance coverage or amounts in the event such coverage or amounts prove to be inadequate or otherwise insufficient for any reason whatsoever,

b)

From time to time, as conditions in the insurance industry warrant, the Permitter reserves the right to revi"" the minimum insurance limits required in this Permit Page 9

c)

All insurance policies required by this Permit shall specify that the insurance company shall have no right of sUbrogation against the United States, except for claims arising solely from the negligence of the United States or its employees, or shall provide that the United States is named as an additional insured.

d) All insurance policies required herein shall contain a loss payable clause approved by the Permitter which requires insurance proceeds to be paid directly to the Permittee without requiring endorsement by the United Statlls. Insurance proceeds covering any loss of the Premises but not used to replace such losses shall be promptly paid by Permittee to Permitter. The use of insurance proceeds for the repair, restoration or replacement of th,' Premises shall not give any ownership interest therein to Permittee. e)

Property Insurance: At a minimum, the Permittee shall be required to purcha$.:e,Basic Form Actual Cash Value (replacement cost less depreciation) insurance coverage for all residence on·the Premises. Within thirty days of issuance of the Permit, the Permittee shaH submit a report from a reputable insurance company which provides a full range of options for insurance coverage on all nonresidential structures on'the Premises. Within thirty days of receipt of this report, the Permitter, in Jts'solediscretion, will review and specify the type and level·of insurance coverage which shall be required. The'Permitter will provide the Permittee written notification of1nsurancIl requirements and the Permittee shall be required to have the specified level(s) of insurance in place within thirty days of such notification. The cost of the insurance will be deducted from the appraised fair market value for the Premises; this adjustment and the insurance· requirements will be addressed in an amendment to the Permit. Permittee shall, in the event of dam\lge or destruction in whole or in part-.lo:th'e,Premises, use qll:proceeds from the above described insurance policies to :repair,'restore, replace or remove those buildings, strllttures, equipment, furnishings, betterments· or irilproveme,nts' determined by the Permitter"in Permitterls sale discretion, to be necessary to satisfactorily dischprge the Permittee's obligations under this Permit.

f)

Public Liability: The Permittee shalVprovideConiprehensive Generall.iability insurance against claims arising from or associated with Permittee's use· and 'Qcclipii'ncy of the Premises', Such insurance sh:all be in the amount commensurate with the degree of risk and the scope and size of such uSe and occupancy, but in any eve·nt, the limits of such insurance shall not be less than $1,0.0.0.,0.0.0..0.0. per occurrence covering both bodily injury and property damage. If claims reduc.e availabje insurance below the required per occurrence:lirilits, the Permittee shall obtain additional insurance to restore-the-Tequired limits. An umbrella or excess liability policy, in addition to a Comprehensive General Liability Policy, may be used to achieve the required limits.

g)

Permittee shall also obtain the following additional coverage: i)

Automobile Liability - To cover all' owned;. nOrl'owned; and hiredvehicles·in the'amount of $30.0.,0.0.0..00.

Ii)

Workers' Compensation - The amount shall bein accordance with that Which is required by the State of California.

16) INDEMNITY a)

In addition to the indemnification contained in Article 14, Permittee sba/Lindemnify, defend, save and holel Permitter, its employees, successors, agents and assi.gnS, harmles·s.-'from and against, and reimburse Permitter for, any and all claims, demands, damages, injuries,losses, penalties, fines, costs, liabilities, causes of action, judgments and expenses and the like incurred in connection. with or ariSing in any way out of this Permit; the use or occupancy of the Premises by Permittee or its officers, .agents, employees, or contractors; the design, construction, maintenance, or condition of any Improvements or Alterations; or any accident or occurrence on the Premises or elsewhere ariSing out of the use or occupancy of the Premises by Permittee or its officers, agents, employees, or contractors. Permittee's obligations hereunder shall include, but not be limited to, the burden and expense of defending all claims, suits and administrative proceedings (with counsel reasonably approved by Permitter), even if such claims, suits or proceedings are groundless, false or fraudulent, and conducting all negotiations of any description, and paying and discharging, when and as the same become due, any and all judgments, penalties or other sums due against the United States.

b)

Permitter agrees to cooperate, to the extent allowed by law, in the submission of claims pursuant to the Federal Page 10.

Tort Claims Act against the United States by third parties for personal injuries or property damage resulting from the negligent act or omission of any employee of the United States in the course of his or her employment c)

This Article 16 shall survive any termination or revocation of this Permit. The provisions of Article 15 (Insurance) of this Permit shall not limit in any way Permittee's obligations under this Article 16.

17) PROPERTY INTEREST a)

This Permit shall vest in Permittee no property interesl'ih the premis.es or in the improvements thereon. Title to real property and improvements thereon, inCluding any Improvements or Alterations constructed by Permittee, shall be and remain solely in Permitter. Except as provided in Paragraph 3(g), Permittee shall have no claim for any compensation or damages for the Premises, the improvements thereon,' orany Improvements or Alt
b)

Nothing in this Permit shall give or be deemed to give Permittee an independent right to grant easements or other rights-of-way over, under, on, or through the Premises.

c)

Permitter hereby retains the sole and exciusivetight to oil, gas, hydrocarbons, an60th.er minerals (of whatsoever . character) in, on, or under the PremisEls.

'18) RENTS, TAXES AND ASSESSMENTS a)

The annual rental rate for this Permit shall be established by Permitter and is set forth on the Cover PagE' of this Permit.

b)

The annual rent under this Permit is payable in advance on a semi-annual basis. Therefore, Permittee hereby agrees to pay fifty percent of the annual rate on or before November with the remaining fifty percent payable on or before May of each year during the Term.

c)

Permittee shall pay the proper Agency, when and as the same become due and payable, all taxes, asse~,';ments, and similar charges which, at any time during the Term of this P!,rmit, are levied or assessed against the Premises.

d)

Rents due hereunder shall be paid without assertion of any eounterCiaim, setoff, dedoction or defense and without abatement, suspension, deferment or reduction.

19) CYCLIC MAINTENANCE a)

Permittee shall perform all Cyclic Maintenance in accordance with the Provisions of this Permit and at Permittee's sole cost and expense. Permittee is responsible for the maintenance of all·,fences, buildings, and other improvements upon the Premises. All improvements and facilities used alid occupied by Permittee shall at all times be protected and maintained in a safe, sanitary and sightly condition:

b)

Specific maintenance requirements may be negotiated with Permittee each year as outlined in Article 21 (Annual Meeting).

c)

Docks and Fences shall be maintained in good condition and shall be timely repaired in conformance with Applicable Laws. Abandoned fences and other decrepit improvements shall be removed from the Premises and shall be disposed of outside the Park or as directed by Permitter after review and approval by the NPS Historian.

d)

New lighting under Permittee's control of the Premises shall be redesigned to protect and preserve the night sky/darkness and minimize light pollution in Drakes Estero.

e)

Parking areas shall be maintained in a safe condition and no new roads or truck trails shall be established without prior written permission of the Permitter. The main entrance road from Sir Francis Drake Boulevard to tile SUP Area will be maintained by the NPS. The Park will respond in a timely manner to Permittee and/or visitor Page 11

complaints regarding the condition of the main entrance road. f)

Existing water reservoirs shall be maintained in a safe and secure condition to prevent washouts and erosion and no new reservoirs shall be constructed or established without prior written approval' of the Permitter.

g)

Permittee shall maintain the water, well, pump and all pipelines within the Premises. Permittee shall replace or repair any damage or loss of the water system within the Premises.

h)

Permittee shall maintain the sewage pipeline and sewage leacbfieldin the "Sewage Area."

i)

Permittee shall be responsible for removing slash buildup around fences or other facilities within the Prernises so as to prevent fire and egress hazards. Permittee shall also be responsible for rl'lmoving litter and trash from the Premises.

20) COMPLIANCE WITH APPLICABLE LAWS; NEPA NHPA a)

General Compliance: As provided for in this Permit, Permittee at its sale cost and expense shall promptll' comply with all Applicable Laws. Permittee shall immediately. notify Permitter of any notices received by or on behalf of Permittee regarding any alleged or actual violation(s) of or non'compliance with Applicable Laws. Permittee shall, at its sale cost and expense, promptly remediate·or correct any violation(s) of Applicable Laws.

b)

National Environmental Policy Act and National Historic Preservation Act: Where activities und"rtaken by Permittee relate to the preparation of compliance documents pursuant to the National Environmental Policy Act ("NEPA") or the National Historic Preservation Act ("NHPA"), Permittee shall supply all necessary informmion to Permitter and any Agency in a timely manner. Permitter will pay for the preparation of NEPA or NHPA documents. If there is litigation regarding NEPA or NHPA compliance, it will not trigger the indemnification requirements of Article 16.

21) ANNUAL MEETING a)

The Parties shall meet annually each year during the Term of this Permit for the purposes of discussing and resolving issues of mutual concern and ensuring that Permittee is complying with the Provisions of this P'3rmit..

22) PENALTY a)

At the option of the Permitter, Permitter may, in lieu of voiding arid terminating this Permit, assess a penalty of $50.00 per day for any failure by Permittee to keep and perform any of the Provisions of this Permit. In such case, Permittee shall be given notice in writing of a grace period (of from one to thirty days) to remedy the situation before a penalty will be assessed. Payment of any penalty under this provision shall not excuse Permittee from curing the Default. This provision shall not be construed as preventing Pennltter from issuing citations or initiating enforcement proceedings under Applicable Laws.

23) SURRENDER AND VACATE THE PREMISES, RESTORATION

a)

At the conclusion of Permittee's authorization to use the Premises for the Permitted Uses, Permittee shall surrender and vacate the Premises, remove Permittee's Personal Property therefrom, and repair any damage resulting from such removal. Subject to the approval of the Permitter, Permittee shall also return the Prernises to as good order and condition (subject to ordinary wear and tear and damage that is not caused directly or indirectly by Permittee) as that existing upon the Effective Date.

b)

All Permittee's Personal Property shall rernain the property of Perrnittee. However, if after the conclusion of Permittee's authorization to use the Premises forthe Permitted Uses, Permittee shall fail satisfactorily to remove Permittee's Personal Property and so repair the Premises, then, at the Permitter's sale option, after notice to Permittee, Permittee's Personal Property, shall either become the property of the Permitter without compensation therefore, or the Permitter may cause it to be removed and the Premises to be repaired at the expense of Page 12

Permittee, and no claim for damages against Permitter, its employees, agents or contractors shall be created or made on account of such removal or repair work. 24) LIMITATION ON EFFECT OF APPROVALS a)

All rights of Permitter to review, comment upon, approve, inspect or take any other action with respect to the use and occupancy of the Premises by Permittee, or any other matter, are expressly for the benefit of Permitler and no other party. No review, comment, approval or inspection, right or exercise of any right to perform Permitl:'3r's obligations, or similar action required or Rermitted by, of, or to Permitter under this Permit, or actions or omissions of Permitter's employees, contractors', or other agents, or other circumstances shall give or be deemed to give Permitter any liability, responsibility or obligation for, in connection with, or with respect to the operation of the Premises, nor shall any such approval, actions, information or circumstances.relieve or be deemed to relieve Permittee of its obligalions and responsibilities for the use and occupancy of the Premises as set forth in ':his Permit.

25) WAIVER NOT CONTINUING a)

The waiver of any Default, whether such waiver be expressed or implied, shall not be construed· as a continuing waiver, or a wavier of or consent to any subseqUent or prior breach of the same or any other provision of this Permit. No waiver of any Default shall affecLor alter this Permit, but each and every Provision of this Perrnit shall continue in full force and effect with respect·toany other then existing or subsequent Default.

26) LIENS a)

Permittee shall have no power to do any act or to make any contract that may create or be the foundation for any lien, mortgage or other encumbrance Upon the reversion, fee interest or other estate of the Permitter or of any interest of the Permitter in the Premises. :lJ any such lien shall at anytime be filed against tM'Premises or any portion thereof, Permittee shall caUSe the Permitter to be discharged from the lien.

27) HOLDING OVER a)

This Permit shall terminate upon the Termination Date and any holding over by Permittee after the Termination Date shall not constitute a renewal of this Permit or give Permittee any rights under this Permit or in or to the Premises.

28) NOTICES a)

Any notice or other communication required or permitted under this Permit shall be in writing and shall be delivered by hand or certified mail with return receipt requested. Notices and . oth·er communications shall ;~e addressed as follows: If to Permitter: Superintendent Point Reyes National Seashore Point Reyes Station, CA 94956 If to Permittee: Mr. Kevin Lunny Drakes Bay Oyster Company 17171 Sir Francis Drake Inverness, CA 94937

29) NO PARTNERSHIP OR JOINT VENTURE Page 13

a)

Permitter is not for any purpose a partner or joint venturer of Permittee in the development or operation (If the Premises or in any business conducted on the Premises. Permitter shall not under any circumstances be responsible or obligated for any losses or liabilities of Permittee.

30) ANTI-DEFICIENCY ACT a)

Permittee and Permitter agree that nothing contained in this Permit shall be construed as binding Permittl'lf to expend, in any fiscal year, any sum in excess of the appropriation made by Congress for that fiscal year in furtherance of the subject matter of this Permit, 0((0 involve Permitter in any contract or other obligation for the future expenditure of money in excess of such appropriations.

31) COMPLIANCE WITH EQUAL OPPORTUNITY LAWS a)

Permittee agrees that in undertaking all activities pursuant to this Permit, Permittee will comply with all Applicable Laws relating to non-discrimination.

32) ENTIRE AGREEMENT AND AMENDMENT a)

This instrument, together with the exhibits·heretd., 'all of which are incorporated in this Permit by reference, constitutes the entire agreement betweeri.P.ermitter and Permittee with respect to the subject matter of this Permit and supersedes all prior offers, negotiations, oral and written. This Permit may not be amended or modified in any respect whatsoever except by an,instrW)1ent in writing signed by PerniHter and Permittee.

33) NO PAYMENTS BY PERMITTER a)

Under no circumstances or conditions, whether now existing or hereafter arising, and whether or not beyond the present contemplation of the Parties, shall Permitter be expected or required to make any p'ayment of any kind whatsoever with respect to the Premises or be under any obligation or liability except as expressly set forth in this Permit.

34) NO THIRD PARTY BENEFICIARIES a)

Except as expressly set forth in this Permit, this Permit shall not.bedeemed to confer upon any person or entity, other than the parties to this Permit as ,expressly set forth in this Permit, any third party beneficiary status, any right to enforce any Provision of this Permit, or any otherright or interest

35) NO PREFERENTIAL RENEWAL AND RELOCATION ASSISTANCE a)

Permittee hereby agrees that Permittee is not a concessioner and that the p,6visions of law regarding National Park Service concessionaires do·not apply to Permittee. No rights shall be.a:¢quired by virtue of this Perrnit entitling Permittee to claim benefits unc:ier the Uniform Relocation Assistance and Real Property Acquisition Policies Act of 1970, Public Law 91-646.

36) SEVERABILITY a)

In case anyone or more of the provisions of this Permit shall for any reason be held to I)e invalid, illegal Cor unenforceable in any respect, such invalidity, illegality or un enforceability shall not affect any other provision of this Permit, and this Permit shall be construed as if such invalid, illegal or unenforceable provisions had not been contained in this Permit.

37) EXHIBITS a)

Each of the exhibits referenced in this Permit is attached hereto and incorporated herein.

38) TIME OF THE ESSENCE Page 14

a)

Time is hereby expressly declared to be of the essence of this Permit and of each and every Provision of this Permit.

39) HEADINGS a)

Article, Section and Subsection headings in this Permit are for convenience only and are not to be construed as a part of this Permit or in any way limiting or amplifying the Provisions of this Permit.

40) PERMIT CONSTRUED AS A WHOLE a)

The language in all parts of this Permit shall in all cases be construed as a whole according to its fair meaning and not strictly for or against either Permitter or Permittee. The Parties acknowledge that each party and its counsel have reviewed this Permit and participated in its drafting and therefore that the rule of construction that a-y ambiguities are to be resolved against the drafting party shall not be employed or applied in the interpretacion of ,this Permit.

41) MEANING OF TERMS a)

Whenever the context so requires, the neuter-gender sh,iII include the masculine and .the feminine, and the singular shall include the plural and'vice versa.

42) FEDERAL LAW a)

The laws of the United States shall govern the validity, tonstruction and effect of this Permit.

Page 15

LIST OF EXHIBITS

EXHIBIT A:

Map - Drake's Estero Aquaculture & CDFG Leases: NPS Resources and SUP Area

EXHIBIT B:

Map - Drake's Estero Oysters - SUP & ROP

EXHIBIT C:

Drakes Estero Aquaculture and Harbor Seal Protection Protocol

EXHIBIT D:

Map - Drakes Bay Oyster Company Well Area

EXHIBIT E:

Map - Drakes Bay Oyster Company Sewage Area

EXHIBIT A

Map - Drake's Estero Aquaculture & CDFG Leases: NPS Resources and SUP Area

Permit Type _ROP .SUP

1':-:. ·1 Aquaculture Lease/SUP Area

E:.:3J Potential Wildemess E2SJ Existing Wilderness

Oyster Racks --Active - - Dilapidated

,•-0___===:;0.5·Miles

EXHIBIT B

Map - Drake's Estero Oysters - SUP & ROP

National Park Service

Point Reyes National Seashore Marin County, CA

Permit Type

___===-__===1 50

100

150

200 Feet

DI ROP - 1.5 acres ID SUP -1.1 acres

EXHIBIT C

Drakes Estero Aquaculture and Harbor Seal Protection Protocol

HARBOR SEAL PROTECTION AREA

Drakes Estero Aquaculture and Harbor Seal Protection Protocol

The following items are mutually agreed to for protection of harbor seals in and adjacent to the Harbor Seal Protection Areas identified in the Map, attached hereto and incorporated herein by reference ("Protocol Map"): 1. During the breeding season, March I through June 30, the "Main Channel" and

"Lateral Channel" of Drakes Estero will be closed to boat traffic. During the remainder of the year, the Lateral Channel and Main Ch81mel are open to boat traffic outside of the protection zone. 2. During the breeding season, Permittee boats may use the "West Channel" at low speed while maintaining a distance of at least 100 yards from hauled out seals. 3. Throughout the year, all of Permittee's boats, personnel, and any structures and materials owned or used by Permittee shall be prohibited from the harbor seal protection areas identified on the Protocol Map. In addition, all of the Permittee's boats and personnel shall be prohibited from coming within 100 yards of hauled out harbor seals.

EXHIBIT D

Map - Drakes Bay Oyster Company Well Area

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EXHIBIT E

Map - Drakes Bay Oyster Company Sewage Area

National Park Service Point Reyes National Seashore Marin County, CA 175

Plot Date: 117/08

350

525

700 Feet

S;/GIS/projecls1/Aange/SpeciaIParkUseslDBOLeachReld.mxd

c:::J

Oyster Farm Leach Field

.. Kevin Lunny" 12/31/200711 :43 AM

To "Jon Jarvisl1 cc "Kevin Lunny" , "Lesley Guth" , "Peter Fimrite" , I1John Diaz" bcc Subject SF Chronicle article - 12/28/07

Jon, Attached is a letter seeking clarification of statements recently made to the SF Chronicle. As indicated in the letter, we are at a loss to understand what you said or why. The signed orginal is being put in the mail today. The calendar tells our family that 2007 comes to a close without resolution on our permits and with every accusation made by NPS from last April and May Itrs as if you hit the "refresh lt button on the keyboard. back on the table.

It is our sincere hope that 2008 brings us resolution and to achieve it, your leadership is required. The National Park Service has been part of my life since I was in tlshort pants. II Our mutual relationship, until recent times, has always been excellent. We speak for the entire family when we say that we long for a return to those times. On behalf of the Lunny family, we extend best wishes for a happy and healthy New Year.

Kevin and Nancy Lunny

~

Lunny to Jarvis re SF Chron.pdf

Drakes Bay Oyster Company 17l7l Sir Francis Drake Boulevard Inverness, CA 94937 (415) 669-1149 [email protected] [email protected]

December 31, 2007

Jon Jarvis Regional Director, Pacific West Region National Park Service 1111 Jackson Street, Suite 700 Oakland, CA 94607 Dear Mr. Jarvis. National Park Service (NPS) accusations of environmental harm by Drakes Bay Oyster Company (DBOC) in Drakes Estero made by you in an article published by the San Francisco Chronicle ("Dispute Over Oysters in Drakes Bay Pits Harvester Against Park Service," December 28, 2007) require explanation and clarification. Your statements contradict retractions you issued last September. As you are aware, on May 8, 2007 the Marin County Board of Supervisors adopted Agenda Item No.7, "Supervisor Kinsey requesting approval of a letter to Senator Dianne Feinstein regarding management ofDrake's Bay Estero." The Senator's assistance was requested after Don Neubacher, Point Reyes National Seashore Superintendent, informed Board President Steve Kinsey on April 5, 2007 that NPS was halting all work on permits for DBOC because of "criminal and civil" acts - green crimes and other violations of law and policy against the environment in Drakes Estero. In particular, Neubacher told Kinsey that NPS had overwhelming evidence that DBOC was hanning harbor seals, a federally-protected marine mammal. The Marin Board "Recommendation Memorandum" from Board President Kinsey states, "Recently, I met with Superintendent Don Neubacher of the Point Reyes National Seashore and he shared his belief that the environmental consequences, of the operation do not warrant facilitation of the necessary permits and regulatory actions required for the current owner to operate." Given the serious and sweeping nature of these accusations, the Marin Board sought Senator Feinstein's·involvement and assistance. At that hearing, Superintendent Neubacher led a delegation of four NPS officials who submitted reports, maps and made new and still more serious allegations. Harm to harbor seals was called a

"national issue" and a recently-received letter from the Marine Mammal Commission was cited as "another reason why the permit (to DBOC) is not available at this time." Another NPS official testified declaring "this year, chronic disturbance and placement of bags on the nursery area has caused an 80% reduction in the seals... " These provocative charges were quickly picked up and repeated by various environmental groups and now, were repeated once again in the December 28, 2007 issue of the San Francisco Chronicle.

The only problem - these accusations were, and still are, false. Immediately upon receipt of the Marin Board letter, Senator Feinstein formally asked the NPS to provide her with full and complete administrative record of recorded ecological and environment harm by DBOC. Under the circumstances, one would expect NPS to rush forward with evidence of criminality and other wrong-doing. It did not happen. NPS took almost two months to respond to the'Senator and when they did, there was nothing in that record. No letters. No violations. No citations. No record of meetings or telephone calls advising us of any wrong-doing. No administrative record of ecological or environmental harm to the Estero or its resources by DBOC. Similarly, California Department ofFish and Game, who owns the lease by which we operate in Drakes Estero, had not heard one word from NPS that substantiates NPS claims of ecological harm. The Senator convened a meeting at Olema on July 21, 2007 attended by the representatives from the California Coastal Commission and California Department ofFish and Game (CDFG), Supervisor Kinsey and a delegation from NPS led by Director Bomar and Deputy Director Wenk, Superintendent Neubacher, you and others. r was present as was Dr. Goodman. At the conclusion of the meeting, Senator Feinstein and all parties agreed to, among other things: •

remove the NPS Report, "Drakes Estero, A Sheltered Wilderness Estuary," from the Point Reyes National Seashore web site;



collaborate with Dr. Goodman in the preparation of a statement of correction for positing on the Point Reyes National Seashore web site;



arrange, in collaboration with Dr. Goodman and CFDG's Tom Moore, for an independent outside scientific review of the NPS Report, "Drakes Estero, A Sheltered Wilderness Estuary," related public presentation and underlying NPS science to be undertalcen;



release all the harbor seal data to Dr. Goodman by August 6;



respond to all outstanding FOIA requests;



withhold the is.suance of a Point Reyes National Seashore ready-tobe-released "rebuttal" paper to Dr. Goodman's testimony until the independent science review is completed; and, -2-



provide copies o[peer reviews of the Drakes Estero Report to Dr. Goodman.

On September 19, 2007, you sent Dr. Goodman a NPS peer-reviewed document entitled, "Clarification ofLaw, Policy and Science in Drakes Estero" dated September 18, 2007 in which every major accusation made by Superintendent Neubacher and his staff against the Drakes Bay Oyster Company and its operations was retracted. •

NPS Accusations about Impacts to Fish - RETRACTED.



NPS Accusations about Impacts to Sediment -RETRACTED.



NPS Accusations about Impacts to Harbor Seals - RETRACTED.



NPS Accusations about Impacts from Oyster Feces - RETRACTED.

Notwithstanding these retractions prepared by you and sent to Dr. Goodman, you now tell the San Francisco Chronicle that:

"There are some inherent differences of opinion about whether there is a positive or negative effect on eelgrass, harbor seals and general water quality," said Jon Jarvis, the regional director for the Pacific West division of the National Park Service. "Our research would indicate there are some negative effects. " Yet, 90 days ago, in your formal "Clarification" document, you stated: With regard to eelgrass:

The current level of impact to eelgrass beds by the oyster operation may Of may not be significant to the overall persistence of eelgrass within Drakes Estero. With regard to oyster feces:

The Eliott-Fisk et al (2005) report notes oyster feces are not a problem in Drakes Estero. With regard to water quality:

The extent of in direct adverse impacts from boat operations or changes to water quality has not been measured and further research is clearly needed to determine the extent -3-

and persistence of these impacts. With regard to harbor seals:

More focused analyses are required to determine if oyster operations are affecting se.al distribution and productivity within Drakes Estero. The overall Drakes Estero and regional population declined in 2007, but not necessarily in response to the oyster farming operations. Each of these retractions reversed accusa.tions made byNPS during April and May 2007 in NPS Reports, NPS testimony or in NPS statements in the media. IfNPS determined in December 2007, as you have informed the Chronicle, that negative impacts are occurring, then such a determination could only come from new, undisclosed research conducted by or at the direction ofNPS sometime after September 19, 2007. (1)

With regard to this new research, please provide a description of the scope and magnitude of it, and which issues were included or not, and kindly provide full and complete responses to the following questions: (a)

Identify the new research.

(b)

Identify the author(s) of the new research.

(c)

Did you contract for this new research or conduct it in-house?

(d)

Provide the work plan for this new research.

(e)

In the preparation of both the work plan and the resulting research, did NPS adhere to the DOl and NPS requirements for "scholarly analysis" as provided for in the NPS 2006 Management Policy? If so, please indicate how this was accomplished.

(f)

Did you adhere to the Federal policies for peer-review of this new research?

(g)

Provide a copy of the peer-review work plan and resulting recommendations as specified and described in your Clarification document.

(h)

Provide a copy of the research product or products.

(i)

Was the research, when completed, peer-reviewed to ensure conformity with the required peer-review plan? -4-

(j)

Since this research, based on your statement to the Chronicle, concluded there were negative impacts, why haven't you or staff from Point Reyes contacted us so that whatever problems were identified could be addressed?

(k)

Why weren't we notified that this research was underway?

(1)

Why weren't we informed when results were available?

(m)

,When and how did you notifY CDFG?

With regard to harbor seals, the Chronicle story goes on to say:

"Park service officials recently complained that Lunny expanded his operation to an area historically used by female harbor seals and their pups and that oyster boats were observed scaring off seals in the area. The park service said harbor seals declined from 250 to 50 in the area Lunny recently developed." These statements conflict with two very specific retractions made by you in your Clarification document from 90 days prior. At the end of September, the National Park Service, in its Clarification document did not know whether or not oyster operations were having any negative impacts to harbor seals and acknowledged that other factors may and likely do impact the harbor seal colony (ocean conditions, climate change, food availability, etc.). Yet, by December, NPS informs the Chronicle that (a) Park Service officials recently complained about the oyster farm; (b) we expanded our operation; (c) we expanded it into areas historically used by seals and pups; (d) oyster boats were observed scaring off seals; and (e) harbor seals declined five-fold - from 250 to 50 in the area specifically "developed" by our company (DBOC). Presumably, to support these accusations, NPS developed new information and new documentation. With regard to these NPS accusations: (2)

The Chronicle story states that "Park Service officials recently complained... " (a)

To whom did NPS complain?

(b)

Why did NPS fail to complain to us?

(c)

Did NPS complain to anyone else associated with DBOC? If so, please identifY to whom and when?

(d)

Provide the record made of that communication. -5-

(3)

(e)

Did NPS complain to CDFG? If so, please identify to whom and when.

(f)

Provide the record made of the communication with CFDG.

(g)

Did NPS file an official complaint to anyone who could have made a change in protocols during the 2007 harbor seal pupping season?

The Chronicle story, in the same paragraph, goes on to state, "... that Lunny expanded his operation to an area historically used by female harbor seals and their pups ... " (a)

Precisely to where did we expand our operation to areas "historically used by female harbor seals and their pups"?

(b)

We and CDFG are certain that oysters are being grown only in historically utilized oyster beds. IfNPS is aware of any newly developed oyster beds, please show on a historic 1992 map into which historic harbor seal haul-out area you are claiming that we expanded our operation.

(c)

We are unaware of any change to the location of our oyster bags in 2007. Is NPS aware of any change in location outside or beyond historic growing beds?

(d)

The oyster bags are on the island/sandbar DEN. The harbor seals are on the east side of island/sandbar DEN. Oysters have be.en grown this way, in the same places, for many decades. Explain what change in operations took place this year that is inconsistent with historic use.

(e)

We are, however, now aware ofa change to your harbor seal haul out map. This new haul out map, which was never provided to us, was included with the April 13 and 26, 2007 NPS Trip Reports and submitted to the Marin County Board of Supervisors on May 8, 2007. When was this new map created?

ef)

Why was this new map created?

(g)

Provide the new "science" to support the redrawing and expallsion of harbor seal haul out boundaries.

(h)

Harbor seals are known to stay near the edge of a sandbar and at an edge or lip immediately adjacent to deep water (to avoid danger and facilitate immediate escape). The new map extends the haul out area to the interior of an approximately 4,000' by 3,000' island sandbar. Does NPS have new science that now shows that harbor seals prefer the interior of sandbars away from the safety of immediate accesS to deep water? .

-6-

(4)

(5)

(i)

Why was the haul out map altered - redrawn - in the middle of the harbor seal pupping season?

G)

Is the only change this year a boundary change on your new map or do you have evidence that oyster bags were moved into pupping areas or areas outside our CFDG designated growing areas?

(k)

Did you mean to say that the NPS expanded the boundary on the harbor seal haulout map and that this new altered map now included the historic oyster bag area?

(1)

Why did NPS withhold this newly prepared seal haul out map from us?

(m)

When did you provide this altered map to CDFG? And ifit was not provided, why not?

(n)

Did you infonn the Marin County Board of Supervisors that the map submitted to them at a,fonnal hearing deviated from the 1992 map used to establish protocols?

With regard to the NPS statement that "",oyster boats were observed scaring ojJseals in the area." (a)

Please provide the data to support this statement. Indicate time, date and all relevant infonnation pertaining to each incident.

(b)

Provide all data in the NPS Inventory and Monitoring Harbor Seal database to support this statement.

(c)

In the two and one-half years ofDBOC ownership by our family, leading up to April 24, 2007, provide all records of harbor seal flushes (most serious ofNPSdefined disturbances) by the oyster company operations during the March-to-May pupping season in the NPS database,

(d)

During the two and one-half year period cited above to April 24, 2007, there were, according to the NPS database (to which NPS has restricted access by your decision) more than 2,000 recorded sightings of harbor seals getting flushed into the water by kaya1cers, hikers, recreational clammers, airplanes, predators and other sources. Provide, for that same period, the NPS database records that document harbor seals being flushed into the water by the DBOC oyster operation.

With regard to the NPS statement that "The park service said harbor seals declined from 250 to 50 in the area Lunny recently developed."

-7-

(a)

Does this statement refer to sandbar A?

(b)

Do you have any data to show that this alleged decrease in harbor seals on sandbar A had anything to do with our oyster operation?

(c)

Do you have any evidence to show that our oyster bags are located on sandbar A?

(d)

Do you have any evidence to show that we recently developed our oyster operations on sandbar A?

(e)

Are you aware that sandbar A is connected to the mainland?

(f)

What are the major sources of disturbances, and in particular seal flushings, on sandbar A?

(g)

Did you tell Peter Firnrite, the Chronicle reporter, that sandbar A is far outside the oyster operation's lease?

(h)

Did you tell the reporter that we have never cultured oysters of any kind on sandbar A?

(i)

Are you aware that our crews, boats and equipment have never been anywhere near sandbar A?

0)

Are you aware that, according to NPS records, park visitors, airplanes, and predators are the major source of disturbances at sandbar A? Was the reporter informed about this?

(Ie)

Are you aware that, according to NPS records, the seals that abandoned sandbar A . in 2007 appear to have moved a few hundred yards to the east side of sandbarlisland DEN, the sandbar/island that they share with the oyster bags?

(I)

Are you aware and did you inform the Chronicle that there is approximately 1,000' between oyster bags placed in the inter-tidal zone on sandbar DEN and where the harbor seals haul out (on the eastern lip of that same sandbar) - a distance of more than three football fields?

(m)

Are you aware that, with regard to harbor seals and placement of oyster bags, we operate pursuant to a 1992 Federal-State, multi-agency set of protocols and those protocols allow us to operate within 100 yards of harbor seals during pupping season - and we maintain, as a practical operational matter, a distance that is more than three times greater than required?

.

-8-

(6)

(n)

Did the harbor seal populaliun decline 80% in an area where we operate - or, where we recently developed as NPS testified and reported in May 2007 and NPS has since repeated elsewhere?

(0)

Don't the NPS records show that one sandbar declined by 80%, but the adjoining sandbar increased by a similar percentage?

(P)

Aren't the overall harbor seal population numbers from 2005 to 2006 and then 2007 within the management objectives of the Pinniped Long-Term Monitoring Program protocols?

(q)

A 25% harbor seal population reduction should have triggered a "management action." With your report of a purported 80% reduction, was a "management action" initiated last May? Are you directing that one be triggered today?

A short time ago, you provided ABCIKGO Channel 7 in San Francisco, pursuant to a FOIA request, a copy of a one-page email dated April 24, 2007, from NPS to NOAA, copied to Superintendent Neubacher, stating that NPS had no direct observations of the DBOC oyster operation disturbing harbor seals. (a)

Did you provide that email to the Chronicle reporter? Ifnot, why not?

(b)

Did you inform the reporter that NPS had "no observations" of harbor seal disturbances through April 24, 2007 by DBOC recorded in the NPS Inventory and Monitoring database?

(c)

Given the statement in the April 24 email, why did Superintendent Neubacher fail to include this critical piece of information to the Marin County Board of Supervisors at the May 8, 2007 hearing?

(d)

As the Superintendent's direct supervisor, didyou know that this information was being withheld from the Board of Supervisors and the public?

(e)

Did your Regional Chief Scientist, David Graber, clear or approve Mr. Neubacher's testimony to the Board, and if so, was he aware of that, as of April 24, NPS had no observations of harbor seal disturbances?

(f)

In retrospect, do you believe it was appropriate to withhold this information from the Board of Supervisors?

(g)

Why did Superintendent Neubacher testify that this was a "national issue" if it was not, according to documents provided to him fourteen days prior to the hearing?

-9-

(7)

(h)

Why was this infonnation withheld from our company?

(i)

Why is NPS, pursuant to your direction, insisting on "mitigation" in our pending Permit for impacts to harbor seals while, at the same time, you are releasing emails pursuant to FOIA requests that reveal NPS had "no observations?"

G)

What was NOAA's response to the NPS April 24 email?

(k)

Why was this infonnation withheld from CDFG?

What infonnation and documents did NPS provide to the Chronicle reporter and specifically, did that infonnation include the NPSIPRNS Trip Reports of April 13 and April 26 both of which contain copies of the altered seal haul out map? (a)

If you did provide the Chronicle reporter with the April 13 or 26, 2007 Trip Reports, did you infonn him that serious questions have been raised by us as to their authenticity?

(b)

Did NPS also provide the Chronicle with the 1992 inter-agency harbor seal haulout map?

(c)

Did you tell him that you were provided a copy of a letter sent to the Coastal Commission which sets forth why the April 26 Trip Report cannot possibly be accurate.

(d)

Did you tell him that you were infonned that our white <1lyster boat was broken and was not on the Estero that day?

(e)

Did the Chronicle reporter Imow that our employees had already clocked out for the day when some of these observations were supposedly being made?

(f)

Was the reporter told that the April 26 Trip Report contains claims concerning seals getting flushed into the water that were not entered into the official NPS harbor seal database in violation ofNPS protocols?

(g)

Did the Chronicle reporter Imow that the NPS never mentioned this April 26 Trip Report in its May 8th testimony to the Marin County Board of Supervisors or in its May 11 th version of the NPS Drakes Estero Report?

(h)

Did you tell the reporter that the first time the April 26 Trip Report was referenced was in the September 11 report to the California Coastal Commission by Dr. John Dixon?

-10-

(i)

Was the Chronicle reporter informed that the now-qnestionable April 26 Trip Report is the only harbor seal data referenced by Dr. John Dixon in the California Coastal Commission report of September 11 ?

(j)

Moreover, did he know that Dr. John Dixon was apparently unaware that he too had been given a new map with an altered harbor seal hanl-ont boundary?

One final question - do you stand by the NPS Clarification letter from last September or are you withdrawing the retractions you made public at that time? The NPS statements to the Chronicle are needlessly inflammatory, contradictory, and plainly wrong. You are either unfamiliar with your own NPS record in this matter or your actions are deliberate. We don't know which and will reserve judgment. You issued the Clarification document; the so-called "rebuttal" to Dr. Goodman, even though Senator Feinstein directed you not to do so. In it, speaking for NPS, you retracted every categorical major accusation made against the Drakes Bay Oyster Company. Today, you overturn that which is already discredited - NPS statements, NPS testimony, and NPS reports. We are at a loss to understand what you are doing and saying, or understand why. We candidly admit - it makes no sense to us. One thing is clear - theseNPS management inconsistencies are harming our company and have repeatedly interfered with our ability to finalize action on pending permits or to move forward. You are overturning or undermining almost every agreement reached at Olema. And, we are the object ofNPS accusations, one after another. None right. None justified. To what end? The Freedom of Information Act requests we submit to NPS are rarely answered, and if they are answered, are late and incomplete. You continue to withhold the 1973 - 1996 harbor seal data from Dr. Goodman incorrectly invoking inappropriate exemptions. In one, sent last October, we inquired as to the date the NPS' Drakes Estero Report was first published as it is undated. It was a simple, straight-forward uncomplicated and non-controversial inquiry. Two months later, the NPS response, signed by you, was, "we are uncertain o/what you mean by the word, publication"'. And most recently, you submitted a proposal for an independent scientific review to the National Academy of Sciences that overturned the Olema directive. First, you excluded CDFG's Tom Moore. Then, after telling Dr. Goodman that all parties would go to the National Academy of Sciences together, you ignored that too. You submitted the NPS proposal without telling Dr. Goodman for two weeks. As for DB DC in the process, you elected to exclude us altogether. Worst of all, instead of an independent scientific investigation into the Drakes Estero Report, presentations and underlying science as directed at Olema and agreed to by all parties, you asked the National Academy of Sciences to investigate the Drakes Bay Oyster Company. -11-

We are third generation family farmers at Drakes Estero. I have lived my entire life and we have raised our triplets here. Our love for the Point Reyes National Seashore is complete and total. This truly is one of the most beautiful places on this planet. It is also an ideal place to grow oysters and practice sustainable agriculture. Oysters are being reinstated and restored in Washington state, up and down the Atlantic Coast (especially in the Chesapeake Bay), and in the Gulf Coast. The "ecological services" provided by oysters are being recognized throughout our Nation except here. Three years ago, January 2005, our family purchased the oyster farm and spent a third of a million dollars cleaning up numerous problems at the farm and surrounding areas, including the Estero. These were legacy problems from the previous owner, not from the Lunny ownership. Prior to that purchase, we never had a cross word with the National Park Service. That changed shortly after the purchase in January 2005. Since then, we feel like we have been constantly under attack. Something is terribly wrong. Instead of resolving our differences, you are working overtime to make them worse. For that, our hearts are heavy. We are being treated unjustly. Our family is intimidated and fearful for our future and our financial survival. If these questions are answered, fully and completely, it can be a starting point for progress. The choice is up to you. Sincerely,

Kevin Lunny

cc:

Nancy Lunny

Peter Fimrite, San Francisco Chronicle Lesley Guth, San Francisco Chronicle John Diaz, San Francisco Chronicle -12-



George Turnbull/OAKLANO/NPS 12/21/200704:04 PM

To Jon Jarvis/OAKLANO/[email protected], "Kevin Lunny" , "Walton, Zachary R." cc bcc Subject Next OBOe meeting reo SUp!]

Kevin/Zach, Based on our most recent discussions, attached is a redline version of the current draft of the special use permit to reflect changes in "onshore" provisions. Hopefully you are available for our January 25 face-to-face meeting in Oakland (at 10 am). I also propose we have another conference call on either Monday January 14 (after 2 pm) or Tuesday January 15 (after 1 pm) to continue our "onshore" dialogue. Let me know if either of these dates work. Hope you both have happy holidays .... George

~

DrakesBayOysterSUP Draft 12.21.07 .. redline shows difference with NPS 11.27.07 drafLpdf

Form 10-114 Rev. Jan. 00

Page I ofl?

UNITED STATES DEPARTMENT OF THE INTERIOR National Park Service Special Use Permit Date Permit Reviewed Reviewed Reviewed Expires

Name of Use: Aquaculture

2007 20 20 November 30, 2012

Permit # MISC-8530-6000-8002 Type

Long Term Short Term

Park Code

No. #

X Point Reyes National Seashore Name of Area

Drakes Bay Oyster Company 17171 Sir Francis Drake Blvd. Inverness, CA 94937 (415) 669-1149 ,----,'

.

is hereby authorized for a.period ('~Tenn") C·OplljI~n:Cjri~:.IJ~;':,~:::_ _ .2007 ("Commencement Date") arid terminating on November 30. 2012 ("Expiration Date") to use:the:;fJi.l9~Wg~fiescribed land, improveJUents, and waters in the following area: the lands and improvements at Drakes,!3aX!:F~!e~9,~t't?"former Johnslin's Oystel Site consisting of approximately 1.1 acres of land and improvements d¢_sjgii~Je4~~~,:,th,¢ '~:~$pgArea"" ~n the map at1:ached hereto as Ex!J.lbit B

as

("Drake's Estero Oysters - SUP & ROP"L~~~(~~wate,s,desigriatea the "SUP Area" on the map attached hereto as Exhibit A ("Drake's Estero Aquaculture&QIlfG LeaSes: NPS Resources and SUP Area"): the land designated as the "\VeJl Area" on the map attached ~ereio_}s'~E~hjbit D ("Drakes Bav Ovster Company Well Area"); and the Jand desigl1ated as tbe "Sewage Area',':on:the:ln-~p attached hereto as Exhibit E ("Drakes Bav Oyster Companv Se\vage Area"), In aE-lElitieA, tHe Pe~lBitl,*JI1t¢¢:'~s te WHee effs8ffi8 eft:R~ I3sl±Haaries eftAe S~!"p Area SHewn en 1?dlieit B, atld in the 6"/eHt ofaI'lY",eeB:fli~_ ,e.~h\:,e,e~ exhieit g aBEl 'feH~,iBg pre:yide,~ by tAB PenHitter, the fuf1sing 'Nill eefltl'el. Collectively;_the,areas so d~sigpa#!~_"sh~~I.-.b~r~fe:rred-:tq::~.:J.J:Ie-"P:remises," Tbe Premises governed by tillS Permit do not include the area designated'"as-the Rep Area oid:1H~,nlitp·attached hereto-as Exhibit g. For the purpose(s) of: . Use of the area designated as the,"$UP Area" oil thel1lap atta~hed hereto as Exhibit Bioi: the purpose of processing shellfish, the interpretation of shellfish cultivation to the visiting public; and residen1ial purposes reasonably incidental thereto, Use of the area designate,d as the "SUP A(e~"oI;l the map attached hereto as Exhibit A for the purpose of shellfish cultivation. Use oflhe area designated as the ·'Well Area" mJihe map attached hereto as Exhibit D for the pumose of supplying water for the Drakes-Bav Ovster Compa']lv facilities using Pennirtee well. pump. and pipeJines. Use of the area designated iIi-.tile_·«Sewa!:!e Area" on~the map attached hereto as ExhibIt E for the purpose afuse and maintenance of existing sewage'-pipelihe-'ahd sewage leachfield ta service the Drakes Bav

Ovster Company fucilities, Collectively, the uses set fortYCinthisparagiaph shall be referred to as the "Permitted Uses,"

Authorizing legislation or other authority (RE - DO-53): 16 U.S:C.l,la-l, 3 & 459c; the Reservation of Use and Occupancy, NEPA & NHP A Compliance: NEPA compliance pending PERFORMANCE BOND: Required Not Required X Required X Not Required LIABILITY INSURANCE:

Amount: Amount: As set forth in Article 15 of this Permit,

ISSUANCE of this Permit is subject to the terms, covenants, obligations, and reservations, expressed or implied herein and to the payment to the U.S. Dept. of the Interior, National Park Service of the sum of$2,800.00 per year, plus an amount to be determined by appraisal for the use afthe Sewage Area and the '\fell Area including water use.-;-

PERMITTEE:

Signature

Organization

Signature

Deputy Regional Director

Date

Title

Date

Authorizing Official:

Additional Authorizing Official: Signature (If Required)

Date

George Turnbull

LIST OF EXHIBITS

EXHIBIT A:

Map - Drake's Estero Aquaculture & CDFG Leases: NPS Resources and SUP Area

EXHIBITB:

Map - Drake's Estero Oysters - SUP & ROP

EXHIBITC:

Drakes Estero Aquaculture and Harbor Seal Protection Protocol

EXHIBIT D:

Map - Drakes Bay Oyster Company Well Area

EXHIBITE:

Map - Drakes Bay Oyster Company Sewage Area

CONDITIONS OF THIS PERMIT 1)

DEFINITIONS

As used in this Permit, the following terms shall have the following meanings: a)

"Agency" means any agency, department, commission, board, bureau, office or other governmental authority . . having jurisdiction.

b)

"Applicable Laws" includes, WithoulJiriiilation all present and future statutes, regulations, requirements, Environmental Requirements; guidelines, judgments, or orders of any AgencY or judicial body, whether now existing or hereafter established, relating to or affecting the Premises or the"Use or occupancy of the Premises.

c)

"Commencement.Dale" is. as defined6Holne, Cover Page of this Permit.

d) "Cyclic Maintenance" means (i) the p~rf§rf:ilahc~,by Permittee of all repairs, maintenance, or r"I)!.acement-in-kind necessary tO,maintain the Premises anq;lg~i~i\l~lil1g irnProv'!f)1ents theieoningood qrder, con(jJ!ion, and repair; (ii) housekeeping and routine and qerig\li9i.f19tK~~heduled to mitigate wearan'ddeterioration y/Ifhout materially altering the appearance of the Pr"f!1ip~~i'@),.lh~I:~pair or replal'emE)nt-ip,kInp of broken or worn-out elements, parts or surfac"s so as to maintaipthe'el\i&tiiig;'~ppearance of the Premises; and (iv) scheduledjnspections of all building systems. on the Premise$."),,

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failurha!k~f~.~6·d,p~ii6rm any of the Provisions qlthis Permit.

e)

"Default" means Permittee's

f)

"Environmental Requirements" of human health.orthe environmentslJcn·a~:··

me
pert:;nl~g"!~;the;iepoAing,

a.

standards or requirements permitting, manag"ment, monitoring, investigation or remediation of emlssions,discliargEls;'tel~9~~'7' or threatened emissions, releases or discharges of Hazardous Materia'is into the air,surf~c::,en,.;ater, groundwater, or land;

b.

standards or requirements reiiltiii~fto'tB~manufacture, hand.li.nQ, treatment, storage; disposal, or transport of Hazardous Materials:' and" . . ..

c.

standards or requirem
pertaining't~tn~~ealth.end~~(etY()fempIOyeeS qrtlie pllblic.

g) "Expiration Date" is as defined,on. the Cover Pa$eofthis'Perrliit. h)

"Hazardous Materials" means, withbut limitation,. any 'material or substanc!",whether solid, liquid, or gaseous in nature, .

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a.

the presence of which requires reporting, pe'imitting,managem"lli, monitoring, investigation or remediation .' ... under any Environmental Requirement;'

b.

that is or becomes defined as a "hazardous waste," "extremely hazardous waste," "restricted hazardous waste," "hazardous substance," "pollutant,,,·,,lIdjschar9¢i,·!"iwaste,n "contaminant," or "toxic contaminantrl under any Environmental Requirement, or any above~groLJrid or underground storage containers for the foregoing;

c.

that is toxic, explosive, corrosive, flammable, infectious, radioactive, reactive, carcinogenic, mutagenic, or otherwise hazardous to human health or the environment and is or becomes regulated under any Environmental Requirement;

d.

that contains gasoline, diesel fuel or other petroleum hydrocarbons or derivatives or volatile organic compounds, or is an above-ground or underground storage container for same; Page 2

e.

that contains polychlorinated biphenyls (PCBs), asbestos, asbestos-containing materials or urea formaldehyde foam insulation; or

f.

that contains radon gas.

i)

"Hazardous Materials Occurrence" means any use, generation, treatment, keeping, storage, transport, release, disposal, migration, or discharge of any Hazardous Materials from, on, under or into the Premises or Point Reyes National Seashore ("Point Reyes") that causes any environmental contamination.

j)

"Improvements or Alterations" meansanyconstrudi6fl that does'not fafr within the definition of Cyclic Maintenance.

k)

"NPS" means the management officials in charge of the administration and operation of Point Reyes, including the Superintendent or his/her designee{s).

I)

"Park" means,without limitation, allra.~~.li,)"i'lters and structures within the legislative boundaries of the Point Reyes Natidpal Seashore, all natural§ri©LSyltur~L.resources within such boundaries, and any o!h~r property within such boundaries belonging to Point ReW~'iip\$'appropriat"e givenjh$ conteXt, lhisterm also includes the visiting public and/orPoint Reyes employees, .., ..... . . . .

m) "Permit" means this instrument ~n.

which"Sl)nti3i~sthose certain termination and revocation provis;"ons as provided for . .. ' , . \.;_' ,i-:'-_'-~,-

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n) "Permitted Uses" is as defined on thet;6(;$fp~ge()fthis Permit. ,,_,::,_,- 'c',·";

0) "Personal Property' means all fur,1ifiIre,fi~tlJrers{"quipment, appliances and apparatus pla~ed on the Premises that neither are attached to nor fOrln.~Li;i~n~Jih~j.pr.emises, Personal ProRerty also includes any trailers, modular units, and/or temporary structures owne~gy':~errJiitfeej ... p) "Point Reyes" means Point Reyes NatiOrf~1gea~hpre. q) "Premises" is as defined on the CoverPageof this Permit.

agre.emE>~f,CoVl9n!3nt, conqitiOr] or provision of this Permit or any combination of

r)

"Provision" shall mean ..any term; the foregoing.

s)

"ROP" or" Reservation of Use and Occupancy" means the Reservation of Useal1d Occupancy purchased by the Permittee in 2005. In 1972 thE! Upited Staie.s of America purcnased Johnson Oyster Company's property, subject to a Reservation of Use and Occupancy on approximately 1.5 of those acre(>.for a period of forty (40) years. This Reservation of Use and OccupancY E!xplres on November 3b; 2012.

t)

"SUP" means this Permit.

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u) "Term" is as defined on the Cover Page-of.!his Permit v)

"Termination Date" means the Expiration Date or·such earlierdaie as this Permit is terminated or revoked pursuant to any Provision of this Permit. "

2) GENERAL CONDITIONS a) The Permittee shall exercise this privilege subject to the supervision of the Superintendent, and shall comply with all Applicable Laws. b) Permit and Approvals - Except as otherwise provided in this Permit, Permittee shall be responsible for obtaining, at its sole cost and expense, all necessary permits, approvals or other authorizations relating to Permittee's use and occupancy of the Premises. Page 3

c)

Damages - The Permittee shall pay the United States for any damage resulting from this use which would not reasonably be inherent in the use which the Permittee is authorized to make of the land and areas described In this Permit.

d)

Benefit - Neither Members of, nor Delegates to Congress, or Resident Commissioners shall be admitted to any share or part of this Permit or derive, either directly or indirectly any pecuniary benefits to arise therefrom: Provided, however, that nothing herein contained shall be construed to extend to any incorporated company if the Permit be for the benefit of such corporation.

e) Assignment and Subletting - This Permit may not be transferred or assigned without the consent of the Permitter, in writing. Permittee shall not sublet the Premises or any part ther6()f or any property thereon, nor grant any interest, privilege or license whatsoever in connection with this P",fmit without the prior written approval of the permitter. f)

Revocation - This Permit may be termiR~f"'.d'~pon Default or at the discretion of the Perlnitter.

giVin>U~)~i;jbfOimatiOri; to do so will be consiaered a breach of'conditions and

g) The Permitte,eis prohibited from be grounds for revocation [Re: 313 CF~2':32(Ml . '_'-;,h'

3) USE OF PREMISES

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theP1.~rti(~~i;;bhIYforthe Permitted ·Uses.

a)

Permittee is authorized to use

b)

Permittee shall not engage in be dangerous or harmful to persons, proPr.rty, or the Park; that constitutes or results in waste ofunre~s?nabli!iiiQn.?yance (includi9g, without limitation, sigQilge and the use of loudspeakers 0(s6.und or light appa,r?tJf§Jti)3i:{Ci(J~pisturbpark \;t!$jjorsaQd wildlife outsiderihe Premises); that in any manner causes or results in a nufsil~tei;pl)iMati~.o(anatur,e 'th~t it ihvolves a substantial hazard, such as the manufacture or use of explosives, chel)'1ii;~Jforpr6(lycts that may explo~e. '

c)

The Parties hereby acknowledge ~~d;agre~;lh?t Permittee's covenant that the Premises shall be used as set forth in this Article 3 is material Consiq;§ra!ii:m for Permitter's agreement to enter into this Permit. The Parties further acknowledge and agree tharaJ'lyviol';ltion of said coveri"ntshall constitute a Default under this Permit and .... . that Permitter may inspect thepremi~es.~?\';ln¥Jil1)}'"

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d) This Permit is subject to the fight of 811dother improv"'J11imts and betterments over, upon, or through the Premises and further to the use by travelers and others ot.'sUch established or existing roads and trails. The Permittee understands that bcea.sional par,K vi.sitors are authorIzed to walk, use non-motorized watercraft, or hike in the various a[~as i~c1uded'in this Permilev.ElnthoughQptrails are formally e,stablished. e)

Permitter reserves the right for Permitter, its employees, contractors an<:ti~gents to enter and to permit any Agency to enter upon the Premises forthe purW~es o,f insp~ction, inv~(ltory or when otherwise deemed appropriate by the Permitter for the pro!eCtion()fthe intex~sts of Perrriitter, including Permitter's interests in any natural or cultural resources located on,"·in·or undet,thePrel)1ises;

f)

Permitter reserves the right at any time to close'toJravel any.QHts lands, to erect and maintain gates at any point thereon, to regulate or prevent traffic of any kind.tbereonl~l9·prescribe the methods of use thereof, and to maintain complete dominion over the same; provided, however, t~at at all times during the Term, Permitter shall provide Permittee and Permittee's invitees with reasonable access to the Premises subject only to interruptions caused by necessary maintenance or administrative operations .or by matters beyond Permitter's control.

g)

Permittee hereby waives any claim for damages for any injury, inconvenience to or interference with Permittee's use and occupancy of the Premises, any loss of occupancy or quiet enjoyment of the Premises, or any other loss occasioned by Permitter's exercise of its rights under this Article 3 except to the extent, that th.e damages, expenses, claims or suits result from the willful misconduct or gross negligence of Permitter, its employees, contractors or agents; provided, further, that Permitter shall be liable only to the extent such claims are allowed Page 4

under the Federal Tort Claims Act. h)

Permittee's operations are 10 ee seleaol, on lAo sAare a minimum of §G feellfom the mean high lide marl(, excepling that area which is the su9ject of this Permit and that is descrieed in the altached map ("')(AiM l>tMembers of the general public visiting the Drakes Bay Oyster Company operation may park in the adjacent NPS parking area and walk over to the SUP or ROP areas.

i)

While Permittee is permitted to use qnd operate motorized watercraft in Drakes Estero for the purpose of conducting daily business operations, which can indudeoccasionalinspections reguired by Agencies, no other use of Permittee's motorized wate~crafiis.authoriied. No molo~rizedwalercraft may enter the designated wilderness bounda~ (See "Existing,Wifderness" on map attached hereto as E~hibit A). To protect water quality in the Estero, any additional or replacement boat motors obtained by Permittee'~rr1ust be four stroke motors.

j)

Due to a lack of adequate. parking space and restroom facilities for the public, ba~becuing isnot permitted in the Special Use permitArea.To coriiplvwitli'this paragraph. Permittee will notenc'Ouragebarbecuing in the SUP Area.; visitors may ee directed to fariiliiios'fesateEi at Drakes Beaoh. Picnic tables will be'prcivided by the NPS at .. ~. . the adjacenfparking area.

k) NeUnauthorized discharge into the estul'lrY isprohibitedermilted. This prohibitionihcludes any discharge from processing facilities. Notwithstandinglljeto'7gDing, discharge of oyster .wash water from dock-and from hatche~ oper.ations is allowed if authorized'by.rejill.lahIAgEmcies. . ' . I)

andi~~;f~~X~~hnifteewill

In order to ensure public health ensuretha! Permittee and Permittee'sofficers, agents, employees, and contractors compIYwiit'i'HQ;p;~lg;'iriGluElingoogs:aniloats: shall ge. permilteElihthe Speoial Use Permit AreaApplicable Laws regardingbefs;including the NPS regulation at 36 C.F.R. § 2.15;,

mtln order to ensure public health andsafe!5!;Porrrlittef;shalialiow aWapproprjate Federal, Sta.t~ andl or County agencies; including 'the United StatesDeil§lrl0~m'DfHealtl) and Ruman Sefvic!'s, the Statepf California Department of Heqlth,Services and Marlr'i'CBilnfj!Community DeveldpmenlAg<;incy Envjrohmental Health Services, to conduct irispection~ ona (pqllho.~asjs. m) 4)

SPECIAL PERMIT CONDITIONS a)

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findingSOfqni~dep~~d~rits~i~h~eXe,vjaVl'.a'(ldjiJ(~EPACOmpliance,

Based upon the Permitter reserves its right to modify the provisions of th'is Arlicle 4. Permitter 'flirtl1er'reseNesiis right to' incorporate new mitigation provisions based upon the fin~irlgs of an iQPependent science review. . i)

The maximum annual production limit for oysters, rock scallops and clari)s will be 700,000 pounds.

ii) No additional aquaculture racks ahd/or cultivation. infrastructure willb~ constructed. Operation, repair, and maintenance of infrastructure currently beingq~~d for oyster cultivation)s permitted.

iii) Permittee and Permitter acknowledge the impo~C!h;2eof.eelgr
Permittee and Permitter acknowledge the importance of preventing the introduction of invasive species into the estua~. In order to control invasive species, Permittee will make eve~ effort to ensure that no new species enter the estua~ and to minimize the spread of invasive species as a result of Permittee's operations. Within sixty (60) days following the signing of this interim Permit, Permittee will submit for National Park Service approval an invasive species mitigation plan that includes best management practices (BMP's). Page 5

vi) Permittee will nat intraduce species 'of shellfish beyand thase described in the existing leases fram the Califarnia Department 'of Fish and Game ("CDFG"). Permittee may seek ta canfarm and/ar madify these leases with the CDFG. Any madificatians appraved by CDFG will be considered by Permitter an a case-bycase basis,and Permittee may not implement any such madificatians withaut the prior written approval of the Permitter. vii) Permittee must avaid disturbance to marine mammal,s al).9"marine mammal haul-aut sites. The Marine , Mammal Protection Act, 16 U.S.C. 1;l61etseq" 'ihCi~des ~ proi)ibltion against any act 'of pursuit, torment or annayance that has the potential to inju·re.,ar·distUrb arnarine-mamm~rbr marine mammal stock in the wild by causing disruption 'of behaViora!p'alferns, including, but nat limitedlo, migrfltian, breathing, nursing, breeding, feeding, or sheltering. TheNatianal Oceanic and Atmospheric Administ[i!1)6n (NOAA) recommends maintaining a distance of at least 100 ta avoid disturbance to seais'Permittee wi)1 maintain a distance of at least 1go r the year. Permitter will marii!()rJ})arine mammal populatians in Drakes Estero: ,,',. harbor seal clasure period','M~rch 1"Jun~' 30, the designated wilderness.area'(outside of to all boats. Permittee will follow "maRes'Estero Aquacultllre and Harbor Seal attached hereta as Exhibit C. If requirecJ;by CDHS, watercraft[l1ay use the Main " in'Exhibit C during, the pupping h?rbor seal,closure periad 'only to acce,ss CDHS's I ' (armarlneibiotoxins. B6ats shall. be 'operated at low speed, near 'the eastern 'of disturp.ance toharpor seals. Na ath~r use of the Main Channel or any ather the puppingharbor,'seal closure period," viii) In order taavoid 'only 'oyster "seed" andrj6t whale 'oysters may be imp.orjed. Seed m i':'fi';,irm~, ' byPeimilter.AlissuancW6f this Permit Washington, Oregan, and Calliftr~iii!a~;iiil,'e~:~ltlsi\,ely appraved regians far 'obtaining aystEifieed. 5) ACCEPTANCE OF PREMISES a) Priar to entering int
inciepen
b) Permittee expressly agrees!ause a,~~.~;~~~fi"\~~f~£~~.~~e,~. in their existing "AS IS" canditian "WITH ALL FAULTS" , Permittee daes nat rely an, ana Permitter daes nat mak,?,\pny express.or implied r!"presenta\ians new.,rr.,n' ta any matters including, withaut limitatian, the suitabiliiy 6fthe soil pr'suo~d:n; 'aoycharacteristics afthe'P'r'elTlii!les or improvements 'of Permittee's use and thereon; the suitability of the Plenlises for the, appraved use; the 'occupancy 'of the Premises; title'lo,!h,? p'rElmilies;'ihe'presence'6! in, an, under 'or in the vicinity 'of the Premises; 'or any ather matter. P~r[l1itte,e has satisfied to such suitability and ather pertinent matters by Permittee's awri,iri'qyirie~;~pp tesjsinta,all, ta determining whether taenter inta this Permit and Permittee hereby 'a~cepts !l1~'.Pre[l1i§~s!· 6) CONSTRUCTION OF IMPROVEMENTS

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a) Permittee may only make thase Impravements oi,f\[terEj!jpris'ta the Premises that relate to Permittee's use of the Prem,ises as specified in Article 3, "Use 'of the Premisesi' b)

Permittee shall not undertake any Impravements or Alterations to the Premises (including installation of temporary equipment or facilities) withaut the priar written approval of Permitter.

c)

As a prerequisite to 'obtaining approval for Improvements or Alterations, Permittee, at Permittee's sale cost and expense, shall submit design plans and any other relevant data far Permitter's approval.

d) Canstructian 'of Improvements 'or Alteratians by Permittee shall be perfarmed in accardance with all Applicable Page 6

Laws, including but not limited to general planning, building, and environmental laws and approved design plans and shall be undertaken and completed at Permittee's sole cost and expense. e)

Permittee shall, upon request, furnish Permitter with a true and correct copy of any contract, and any modification or amendment thereof, with Permittee's contractors, architects, or any other consultants, engaged in connection with this Permit.

f)

Any Improvements or Alterations undertaken by Permittee shall be performed in a good and workmanlike manner and with materials of a quality and standard·acce.ptablef6Permitter, Permittee shall also construct, install and maintain equipment and any constr.uctiollJacilities 6h'lhePremisesin a s
g)

Permittee shall not construct any Improvements or Alterations outside the boondaries of the Premises.

h)

Permitter in its discreti.on is entitled tohaYiO on the Premises at any time duiIht/th.e construction of Improvements or Alterations an. inspector or representaiiY<;lwho shall be entitled to observe all aspectsof'the.~onstruction on the Premises. .'

i)

All lumber utjlized at the site will be ret/ulatibns,tJgarding wood . . treatments. This,includes lumber utilize~Xin~~§
j)

As set forth in Article 17, title to Permitter..··"",·'

prCl~~~~~Q;\W~c()mpli~riCeWith.cLirrentla).\(s.ancl

ani'lhie~~y~g:~~i~ or Alterations.tothe pr"mjs'esshall be andi~rnain solely in the

7) TREATMENT OF REF.'USE a)

Refuse shall be promptly remoVEid.fro\tl·Wit~i?Si~~bOUndaries of Point..Reyes National SeasHore and shall be disposed of in accQrdance with Apillis.~tll~~~y;iili,> .

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Permittee will make' Dest efforts to remQy~i8ir6ii$;~~~hciatedwith aquaqultureproductionoperations including wood from racks, plastic spap,~rsiunlls"d;s~elJijsJ)6ags, shellfish shells, and any other associated items.

PESTICIDE AND HERBICloE USE

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a) The National Park Service utili#~sirite:gJ~'!~9F'~.st.M"n"gelJl.\'ll)t'Y'I~M")JO trllat pest"hd vegetation problems. The goal of IPM is to useJhe least-to)5ic,·e:ffe:ctiy~·m€l!ttQij§.Qf:ebqtr()lIiiigpestsang.Vegetation. Except for normal household purposes, Permittee shall not usinii\~lpestii:ides than:fb hbtccimply with the IPM program. To this end, Permittee shall submit in 'writing to Permitter, a request for the use of pestipide(s) or herbicide(s) and shall not use any pesticide(s) or herpicjde(s) un'tiIPe(mitleehas'received an expr,,!IS'written authorization therefor from Permitter. ' b)

Permittee shall manage, treat, generate, handle,store and dispose of all pesticides and herbicides in accordance ," ',,', with Applicable Laws, including repdrti~g reqYi,e~i'jlents': ~.

9) FIRE PREVENTION AND SUPPRESION a)

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Permittee and its employees, agents, and con!ras\ors shaH;i.9ipermittee's use and occupancy of the Premises, take all reasonable precautions to prevent forest;,prush"grass, and structural fires and shall, if safety permits, assist the Permitter in extinguishing such fires on the Premises.

10) EXCAVATION, SITE AND GROUND DISTURBANCE a) Permittee shall not cut, remove or alter any timber or any other landscape feature; conduct any mining or drilling operations; remove any sand, gravel or similar substances from the ground or watercourse; commit waste of any kind; or in any manner change the contour or condition of the Premises without the prior written approval of the Permitter. Except in emergencies, Permittee shall submit requests to conduct such activities in writing to the Permitter not less than sixty (60) days in advance of the proposed commencement date of any such activities. Page 7

b) If approval of activities referenced above in Section10(a) is granted, Permittee shall abide by all the terms and . conditions of the approval, including provisions pertaining to archaeological resources. c)

No soil disturbance of any kind may occur in the vicinity of a known archeological site, without the presence of an NPS archeological monitor.>

11) NONPOINT SOURCE POLLUTION a) The Permittee shall comply with all ARpli,cable.i.;aws regarding non"pginl source pollution (including the protection of beneficial uses of waters as"qesignaled by the State of California).i=urther, Permittee's use and occupancy of the Premises shall be designe,a:ip minimize, to the greatest extent feasible, non-point source pollution within . National Park Service boundari,esor on adjacent lands. b) As set forth irrS~ction'3(JskLoMtiis~~r\~jr".no discharge into the estuary is permitted. ThiS prohibition includes . . any discharge from processing faciilti~~i\<' 12) TREE AND VEGETATION REMOVAL a) The Permittee, mn unless ex~ressly apprpyeq. in writing by th~ Permitter. The Permittee shall provide specific pl~psitbii~'.~i~.~ri)ijtter for desinidtrEie(s),andvegetation remo\i?tduring the annual meeting .or in writing [email protected]:j,tjgj'grmf9t'Ib!".permil. .' ',- -':--:""--':' -';':;:; '--"~V::-"-~---;"'~- '-,. -:;-,'./,-

b) Removal of non-n~tive invasive ve~·€!1~~B~"~~§~!~*.~6n-na!ivet[jisfres, itimming ario vegetatiP't1'removal around .' . structures is permissible'··'·;;···)";t',:;'.:i.: 13) WILDLIFE PROTECTION

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a) Wildlife is an integral part of Point must be aCQo}Bance with all Applicable Laws, including butno!'Jill1it~.in(j;.f>lPS).EliiislalieR, IRe Cede ef Federal Reg\[email protected]~RS, aRE! NPg ~elisies, iRslytiin!J 8"1 nel limileE! lo~IPg Manag0h);tip{Polieies 2GQa, as sych may 8e ameRE!edl1l;Ws. regulations, and

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inany'~~ti~\YXl~~tPUrP9S~IYC?~~~~h"~6nqtq~stroys anY.~ildlife.

b)

Permittee shall not en9ag" Conversely, Permittee shall not engageifl any actiy.1Wj~~tip~fpp~~IY.~§i>R.Ciff~;~fifiCrel¥ses popylations of non-native or invasive animal species, except for the cultiVati6h'Of'tI1Ei·SflelffiSh sPecies'i3Uihorize'd by this Permit.,

c)

As set forth in Section 30l ofihisPermit, mammal haul-out sites.

P~fri)ittse hfust aVQjddisturbance t9;rn~rine mammals and marine .

d) On a case by case basis, the Permitter will eva,IVate iqcidences of deprf'9~\;on caused by Permittee and choose a course of action. The nature of the coor~e ota,stion wiWbe~~termin~q[by the extent and frequency of the damage, the wildlife species, and park,yviae rri"ni;lgementobjectiv¢s: 14) HAZARDOUS MATERIALS; ENVIRONMENTAL

H~~~1H~~[)SAF~+V _';C"

a) In connection with this Permit, Permittee, its otliCEl[~, '[email protected]!:ttsfemPloyeesand contractors,shall not use, generate, sell, treat, keep, or store any Hazardous Materials on;" ~pbut, under or into the Premises or elsewhere in Point Reyes except in compliance with all Applicable Laws and as approved in writing by Permitter. However, Permittee shall not be obligated to obtain Permitter's approval to use, keep, or generate Hazardous Materials as necessary for the normal'operation or maintenance of vehicles or for standard household cleaners. Permittee agrees to be responsible for timely acquisition of any permit(s) required for its Hazardous Materials-related activities, and shall provide to the Permitter, upon request, inventories of all such Hazardous Materials and any supporting documentation, including but not limited to material safety data.sheets, uniform waste manifest forms, and/or any other pertinent permits. Page 8

b) Permittee, its officers, agents, employees and contractors, shall not release, discharge or dispose of any Hazardous Materials from, on, about, under or into the Premises or elsewhere in Point Reyes, except as authorized by Applicable Laws. c)

If Permittee knows of or reasonably suspects or receives notice or other communication concerning any past, ongoing, or potential violation of Environmental Requirements in connection with the Premises or Permittee's activities, Permittee shall immediately inform Permitter and shall provide copies of any relevant documents to Permitter. Receipt of such information and documentation shall not be deemed to create any obligation on the part of the Permitter to defend or otherv.(j.se respo~dtci'al1y such notifiQation.

d)

If any Hazardous Materials Occ.urrElnceis caused by, arises from, or is exacerqated by the activities authorized under this Permit Or by the use of the Premises by Permittee, its officers, agents, employees or contractors, Permittee shall promptly take all actions at its sole cost and expense as arerequired to comply with Applicable Laws and to allqw th~ Pre l11 ises <\nd 2,lly.,?ther affected property to be usedfr"" of any use restriction that could be imposed una"rApplicable.kaws; proYi<:i"p that, except in cases of emergency,perinitter's approval of such '\:VP , actions shall/irst be obtained.

e) The Permitter.shall have the right, butri~;iJtei:{Llty; at a:llreasonabletirnes an':j; except in the c~~e of emergency, following at lepst twenty-four (24) hOUrS(,j~":~rr6~::nbticEi to Perlnit!ee, tb.enterand to permit any Agency, public or private utilities and other entities and)ge:r~o[!#\t?enter upon the, Premises, as may be necessary as determined by the Permitter in its sole discretion,'tq:c8ndlJ9fih~pections of thePrernises, including invasive tests, to determine whether Permitte,e is complying WiffiallJ.\ppli.c~bleL~ws and to investigate the existence of a?yHazardous Materials in, on 0): under the Premise~).'Ih];ig&riiiitll9(~hallhave the right, but-not the duty, to retain independent professional consultants to enter th~'R~en:1i*~~;fg:CO~ducts(JchJnspectibrisar\d"to review any final report prepared by or for Permittee concerni~g;'such,-c?l11pliance. Upon Permittee's request, the Permitter will make available to Permittee copies of ai(finil'frej:laM,8ndwritten data obtained by the permitterfriJi\, such tests and investigations. Permittee shall haV~n?\.91.ail11;fq(:.~·I)Xinjury orincolwenience to or interfereti~e with Permittee's use of the Premises or any other 10ss·oc,Sa,:~i:8iiE(dJ:)yi[)s'pectipns·under thi,s Section 14(e).:~otwithstanding the foregoing, neither Permittee nor Permilter.siicilrtfei',rechjired to provide a repcittunder this SeCtion 14(e) if such report is protected by attorney-client privilege, . , .' :,-,.,--,', .;> ~:-:~:' --,',; - , "- : -- -

'-

,

~,\

f)

Should Permittee, its officers, ag~rits;:'!lmpl(Jyees or contractors; fail to perform or obs$o/e any of the obligations or agreements pertaining to Hazardous~at~rials or Environmel'1t",LReqyirements fori~period of thirty (30) days (or such longer period~f timeR~.isr".
g)

Permittee understands and acknowledges th
h)

Permittee shall indemnify, defend, save an9.hqldPefmitteriit~,employees, successors, agents and assigns, harmless from and against, and reimburse Permitter for, aoy,ijrid all claims, demands, damages, injuries, losses, penalties, fines, costs, liabilities, causes of actiori,jud9'llElpis', and expenses, including without limitation, consultant fees and expert fees, that arise during or afte.! the Term as a result of arty violation of any Environmental Requirement in connection with this Permit or any Hazardous Materials Occurrence in connection with this Permit.

i)

The provisions of this Article 14 shall survive any termination or revocation of this Permit. Article 15 (Insurance) of this Permit shall not limit in any way Permittee's or Permitter's obligations under this Article 14.

15) INSURANCE Page 9

a) Permittee shall purchase the types and amounts of insurance described herein before the Commencement Date of this Permit unless otherwise specified, At the time such insurance coverage is purchased, Permittee shall provide Permitter with a statement of Permittee insurance describing the insurance coverage in effect and a Certificate of Insurance covering each policy in effect as evidence of compliance with this Permit. Permittee shall also provide the Permitter thirty (30) days advance written notice of any material change in the Permittee's insurance program hereunder. Permitter shall not be responsible for any omissions or inadequacies in insurance coverage or amounts in the event such coverage or amounts prove to be inadequate or otherwise insufficient for any reason Whatsoever, b)

From time to time, as conditions inthEilnsurance'lnduslry warraht; the., Permitter reserves the right to revise the minimum insurance limits required illiiris Permit.

c)

All insurance policies ree.uir'ed'b,'this Permit shall specify that the insuranc#'.!::()mpany shall have no right of subrogation for claims arising solely frorr{l.6.ex\egligence of the United States or its employee~:or States is named as an additionai1n~ured:

herei~;'·';··k···I·i·iilii,'Arlt~i'n ~ loss payable clause approved by the Perriiiiter which

d) All insurance policies required requires insurance proceeds to be States, Insurance proceeds ' promptly paid byPermittee to of the Premises ~hall not give

permitteeWithounequiring,endbrsemenl'.6Y. the United Premises. but rioi' used to reiplacesuch Iq~~'es shall be proceeds for the, repair, restoration or replaeement therein to·Permittee. '

e) Property Insurance: At a '~~l~~~,~I~I~be:reqUired to PUrch,a~e Basic Form Aplual Cash Value (replacement c 9 s t l e s s . ' / "feli alJr.egidi)nC.!l the·Ptemises, lIjIi!hin thirty days of issuance of the Permit, the from a reputable insurance comPl1PY which provides a full range of optlO'Qs for ( lDrlre:sidenllial on the Premise,sn'Within thirty days of receipt of this re'pg[!, the !i~'~~~~~;~~i~f!~~2:lrX, the type ari4;'level of insurance coverage which shall be :P[(~vicrl!!" , notificati\Jb of insurance II , (If.io.~urao.S~·in place within thirty requirements and days of such notificajio!1, lee;os(ol',tl}~\';!~;~k~iw~~;;;~~b~:e deducted from the app'ra(s'E1.qJ~ir market value for the Premises; this adjusiment If. will be addressed in an amen8ment to the Permit. Permittee shall, in the',event of in part to the Premis~$, use all proceeds from those b~iJdings, structures, the above described i equipment, I , jr(permitter's sole discretion, Peti:i1it. to be necessary to

on

f)

Permit\ee.~hall Provid,ecomprehenSiVeGeneral~iabilitYiQKJr~nce

Public Liability: The against claims arising from or associated with Permiitee's use arid'0.cGUp.ancy6rth~ Premises. Sugb'iiisurance shall be in the amount commensurate with the degree Of;risk and ,the scope and sjze of~~ch use~iW occupancy, but in any event, the limits of such insurance shall nofbiHess.ihan$l,bOO!Ooo.ob pe'r.Qccurrencefcovering both bodily injury and property damage. If claims reduce"\l~~ilable in~~rancE? below the requir£\~!per occurrence limits, the Permittee shall obtain additional insurance to re,store thEi?t~quire":limit~. An umi1fella or excess liability policy, in addition to F a Comprehensive General Liability POIi<;:Y',maypa'used,tq achieve:-fh6 required limits. ,.'<--___ . ',-," o

-

,, __ '_____

g) Permittee shall also obtain the following additional.coverage: i)

Automobile Liability - To cover all owned, Ilol),own~,l!;:'~nd hired vehicles in the amount of $300,000.00.

ii)

Workers' Compensation - The amount shall be in accordance with that which is required by the State of California.

16) INDEMNITY a) In addition to the indemnification contained in Article 14, Permittee shall indemnify, defend, save and hold Permitter, its employees, successors, agents and assigns, harmless from and against, and reimburse Permitter for, any and all claims, demands, damages, injuries, losses, penalties, fines, costs, liabilities, causes of action, Page 10

judgments and expenses and the like incurred in connection with or arising in any way out of this Permit; the use or occupancy of the Premises by Permittee or its officers, agents, employees, or contractors; the design, construction, maintenance, or condition of any Improvements or Alterations; or any accident or occurrence on the Premises or elsewhere arising out of the use or occupancy of the Premises by Permittee or its officers, agents, employees, or contractors. Permittee's obligations hereunder shall include, but not be limited to, the burden and expense of defending all claims, suits and administrative proceedings (with counsel reasonably approved by Permitter), even if such claims, suits or proceedings are groundless, false or fraudulent, and conducting all negotiations of any description, and paying and discharging, »,hen and as the same become due, any and all judgments, penalties or other sums due ag;3. insHh.!3 UhHe.cfStafes. ~>

b)

Permitter agrees to cooperate; to tbe extent allowed by law, in the submissiOn;.pf claims pursuant to the Federal Tort Claims Act against the U~iied States by third parties for personal injuri,,&'or property damage resulting from the negligent act or omission 01 any employee olthe United States in the cgliise of his or her employment.

c)

This Article t6 revocation olthis Permit. of this Permi! ~hall not limit in any 'NaYJ'~.liiiittee's obligations under this Article 16.

·shaHsuivive.anYtermifl~Jibnor

Theprovi~i6nsof Artic!e 15 (Insurance)

17) PROPERTY INTEREST a) This Permit shall· vest in Permitteep?Pfope.qYinterest in the Premises or in theimprovementsJhereon. Title to real property and improvements t.tJef;~6(l.;;.inFI.lJdipg any Improvements Of Alterations construct~d..by Permittee, shall be and remli'in solely in Perii1i!t~r;'Exc'epf;a~provided inParagniph 3(g), Permittee shall'~ave no claim for any compensatiol) or damages fQrt~~"P'(e(t\i~¥i~jt6e]rnproverJjent~the)"eoli; (jfany Improveri"~hts or Alterations constructed by the Permittee.:;.);'

ortJEfci~~~~~JqgiVe

b) Nothing in this Permit shall give Permittee an independent right to grariFeasements or other rights-of-way over, under, on, or throqgilth~j;?[erni~es. c)

ande~#difilt'rigRt't6 oil, gas, hydrocarbohs, and other ininerals (of whatsoever

Permitter hereby retains the sole character) in, on, OrUriger thePre[riises.··· .

.

18) RENTS, TAXES AND ASSESSMENTS . -, . "--

a) The annual rental rate Permit.

forthiSPe'i~it'$Ii-~lItJ$~~tabHShed9Y'PE)rmitiera~dis set forthbn the Cover Page of this ... ,.,.;.,." • . . . .. ' .. ..

b) The annual rent under this PerhJit is payal;>le in advanqe on a semi-annual basi#; Therefore, Permittee hereby agrees to pay fifty percent of til.e 'l1nnual rate onor·.cefore November with theremaining fifty percent payable on or before May of each year during·th~Terl1J.. '.. c)

Permittee shall pay the proper Agency, when apd as·th~ same becom~dJ,l.e and payable, all taxes, assessments, and similar charges which, at any time during.tt\e.Termcif thJs Permit; ~(e levied or assessed against the . .' . ..' . Premises.

d)

Rents due hereunder shall be paid withouiassertiorlot 811)icquriierclaim, setoff, deduction or defense and without abatement, suspension, deferment 6r·.~ei!uction. .

19) CYCLIC MAINTENANCE

a) Permittee shall perform all Cyclic Maintenance in accordance with the Provisions of this Permit and at Permittee's sole cost and expense. Permittee is responsible for the maintenance of all fences, buildings, and other improvements upon the Premises. All improvements and facilities used and occupied by Permittee shall at all times be protected and maintained in a safe, sanitary and sightly condition. b)

Specific maintenance requirements may be negotiated with Permittee each' year as outlined in Article 21 (Annual Page 11

Meeting). c)

Docks and Fences shall be maintained in good condition and shall be timely repaired in conformance with Applicable Laws-m~st be in good repair. Abandoned fences and other decrepit improvements shall be removed from the Premises and shall be disposed of outside the Park or as directed by Permitter after review and approval by the NPS Historian.

d) New hlighting under Permittee's control of the Premises shalL,be redesigned to protect and preserve the night sky/darkness and minimize light poliutiorHn.Drake$ Est$ro. . e) Parking areas shall be maintained ip·a safe condition and no new roads or'tr~ck trails shall be established without prior written permission of the permitter. The main entrance road from Sir FranCis Drake Boulevard to the SUP I:lli!.1!..will be maintained by the·NPS. The Park will respond in a timely mann'ar to Permittee and/or visitor f)

Existing water reservoirs shall be a safe and secure condition to prevent washouts,and erosion and no new reseNcirs shall be ('n'M!r""'"r''' ,~~,~~~~[,ed without prior written approval of the Perri]it\er.

g) Permittee shaUl)1aintain the water, str~et~re8 within Jhe Premises. the Premises.

w~'[email protected]~B~t[~i;'II.IPiPelirie!;.:!:!.l!!1!Jlnlb!li!illllli~fremthe Alain line to the

or repair~my, dam~ge or loss of the water system within

buildup around fences or other facilities wit.~in the Premises .so also be respon~ible for removing litter,;imdtrash from the

a) General Compliance;, As

experi§e shall promptly comply

Laws. Laws:~r~;;~~~X1~~~~~~I~:~~f~:~~~~~]~~~~t~~g(~~~;1~~:~)~~lr
Permittee regarding any with all Applicable at its sole cost and exp.ense, b) National Environmental

Natio"aIHI"to',:icPfl,serii",lib,!1'A.ct' Vllhe!feai;l:iviit ies undertaken by

Permittee ~1~~~~~:-~jiiiPc~~;a~:::~~;;;~~~;:;~::;6~ Policy Act ("NEPA") or the supply all necessary appropriate. I

.i

National Environmental I i Permittee shall If Permitter eetermines that the or NHPA documents-as I

21) ANNUAL MEETING

dUring'theT~ut{{;f;hiS

a) The Parties shall meet annually each year Permit for the purposes of discussing and resolving issues of mutual concern and ensuring thal'Reiinit!ee is complying with the Provisions of this Permit. Any proposed shanges or FAoeilisations to this Permit whiGh are req~ired in oreer to meet National Park geFliise req~irements or olljoeti'Jos shall be diss~ssed and negetiated at the Ann~al Meeting. If National Park geAAoo req~irements or olljeetives req~ire prompt attention, the date of the ,o,nn~al Meetin§! may reasonably be shan§!ee ~.

22) PROCEDURE IN CASE OF DEFAULT

[Drakes Bay Oyster Company to propose a provision.]

Page 12

a) This Permit is made upon the express condition that if Permittee fails to keep and perform any of the Provisions of this Permit, this Permit shall become void at the option of Permitter, provided that Permitter shall first give Permittee thirty days written notice ("thirty day notification period") of Permitter's intention to revoke this Permit and regain possession of the Premises. The notice shall describe the specific Default and shall state Permitter's intention to reenter the Premises and declare this Permit forfeited if such Default continues. Such notice shall be served in the manner provided in Article 29 of this Permit. b) The parties agree to meet promptly within·ti1e,thirtYdaYfi6tificationpe(iod to discuss the reasons for the notice . ,. . and to try to resolve their differences. ' c)

If Permittee does not cure theOefault or present a reasonable plan therefor.,within the thirty (30) day period, then Permitter shall be entitled to th'e p'ossession of the Premises, and may entefiiito and upon the same or any part thereof and repossesslhe,same ahd expel Permittee and those, claiming thr6ugh()r under Permittee and remove their effects without being·guilty 6f anY'¥<3pner of trespass and without any p~ejudiceto' any remedies that might otherwise be used for arrears:qf"i-~tlt or preceding Default.

d) At the option.pf the Permitter, permitt~r,i:&~~m~rU.~4 of voidingancl tElrl1.Jinati~gthi~Permit, ass§.~s a penalty of $50.00 per day for any failure by PTrri'!i!i~e t9&~<3P and perform any of the Provisions of this ~,t1
P~~~~~~?~EST0RATION ,-,',-,;'e:;,:;':;,.''''

;"~::._~

A) On the TerminationDate of this P~fn;i(:~%&!(t~~llh"llsurr~nder ang vacate th,; Premises,remove Permittee's Personal Property therefrom, and r\,pair::il'1:)YJ'lamage;resulting from slIch removal,. SUbjecfto the approval of the Permitter, permittee.sh'!llal~QTefu~n·tlieiBI:~'rl"lJ.se~}O as good order and condition' (sUbj~'9t to ordinary wear and tear and damage that isn6fcause.~ cllr\,cil~.prindirectly by Perr1)ittee) as that existing tippn the Effective Date. b) All Permittee's personalJ;'ropecty*ij~li:F~,jj~i~the propertYc>f&~rll1it!ee, However, i.fafter the Termination Date, Permittee shall fail satisfaclorilYtOfE:imqy,§F,'err1)i!t'-le;se~rs.Qn"l;I;>roP~rty:al)c;I.so repair the Premises, then, at the Permitter's sole option, afjernotice topermitl§e;eerrnitte.~~s·J;?$rS9ha,IProp.~rtY, siiall either become the property of the Permitter without coinp~nsation therefore: or the Permitter may causei! to removed and the Premises to be repaired at the expense of P"lrmittee, and 110 claim for damages against Perrnitter, its employees, agents or contractors shall be created or.made on accountbf suth remoVal or repair vyaf!<.

be

24) LIMITATION ON EFFECT OF APPRbVA~S

comm~htuPoh};~pprov<3,frispect ort;i~'~;~ny

a) All rights of Permttter to review, other action with respect to the use and occupancy of the Premises by Pefll2itiee,o(~ny 9!!J~trii~tter'i.~fe(expressly for the benefit of Permitter and no other party. No review, comment, approval ori~~8~s.tIQn"Jig.h,r6r exercise of any right to perform Permitter's obligations, or similar action required or pe'rmltt~d'Dyr6f,6i'ip;Bi1fmitter under this Permit, or actions or omissions of Permitter's employees, contractors, or otheLa,gents, or 9tl1~f'circumstances shall give or be deemed to give Permitter any liability, responsibility or obligationfor,J~c;"6rlriection with, or with respect to the operation of the Premises, nor shall any such approval, actions, information or circumstances relieve or be deemed to relieve Permittee of its obligations and responsibilities for the use and occupancy of the Premises as set forth in this Permit. 25) WAIVER NOT CONTINUING a)

The waiver of any Default, whether such waiver be expressed or implied, shall not be construed as a continuing waiver, or a wavier of or consent to any subsequent or prior breach of the same or any other provision of this Page 13

Permit. No waiver of any Default shall affect or alter this Permit, but each and every Provision of this Permit shall continue in full force and effect with respect to any other then existing or subsequent Default. 26) LIENS a)

Permittee shall have no power to do any act or to make any contract that may create or be the foundation for any lien, mortgage or other encumbrance upon the reversion, fee interest or other estate of the Permitter or of any interest of the Permitter in the Premises. If any such lien shall at anytime be filed against the Premises or any portion thereof, Permittee shall cause the.Permittar to be'dfsch.argedfrom the lien.

27) HOLDING OVER a) This Permit shall terminate upon the Termination Date and any holding overby Permittee after the Termination Date shall not cQnstitutearene'Nal ofthis,permit orgive Permittee any rights under this Permit or in orto the Premises. . .... . ,.~i··;;.

.. ,

28) NOTICES

communicationreq~J'f~a'btip~rrnitted

a) Any notice or other under this Permit shall tie in writing a[ld shall be delivered by h?nd or certified mail;wilt{[~turnxEj'c,:>ipt requested, Notices and other communicailons shall be addressed as follows: . ... ....... If to Permitter: SuperiQtehdent .. ,•.. Point Reyes National SeaSlidrs Point Reyes Station, CA 94~95(»i If to Permittee: .' Mr. Kevin Lunny Drakes Bay Oyster ComPEinY" 17171 Sir Francis Drake . Inverness, CA9493T· .

29) NO PARTNERSHIP OR JOINTV~NTURE a)

Permitter is not for any purpose a, partner brjCliT)f venturer ofPermittee in the ~evelopment or operation of the Premises or in any business conducted on the Premises. Permitter shall no\.uiider any circumstances be f responsible or obligated for any lOSSeS br:riabilities·of Permittee. . 0'_ " - ' "

30) ANTI-DEFICIENCY ACT a)

-"

-,

,"

-

,

'" --:'-"--,:

"

"".

,,'.

,

,'-,-,-

.~

Permittee and Permitter agree that nothihg'cont~i;'~dir1ti1i~,Permi\Shall be construed as binding Permitter to expend, in any fiscal year, any sum in exce"sQf.the·appr6pfi~!iQf!,made by Congress for that fiscal year in furtherance of the subject matter of this Permit, to involy" Permitter in any contract or other obligation for the future expenditure of money in excess of such ·apprcipri~ti9Iis.

or

31) COMPLIANCE WITH EQUAL OPPORTUNITY LAWS a)

Permittee agrees that in undertaking all activities pursuant to this Permit, Permittee will comply with all Applicable Laws relating to non-discrimination.

32) ENTIRE AGREEMENT AND AMENDMENT a) This instrument, together with the exhibits hereto, all of which are incorporated in this Permit by reference, Page 14

constitutes the entire agreement between Permitter and Permittee with respect to the subject matter of this Permit and supersedes all prior offers, negotiations, oral and written. This Permit may not be amended or modified in any respect whatsoever except by an instrument in writing signed by Permitter and Permittee. 33) NO PAYMENTS BY PERMITTER a)

Under no circumstances or conditions, whether now existing or hereafter arising, and whether or not beyond the present contemplation of the Parties, shall Permitter be expected or required to make any payment of any kind whatsoever with respect to the Premises ,or be under any obligation orliability except as expressly set forth in this Permit.

34) NO THIRD PARTY BENEFICIARIES. a) Except as expre!'slyset forth in this P~~l1)it, this Permit shall not be deemedlbqonfer upon any person or entity, other than the parties to this P.erniit.~t~~1iressIY set forth in this Permit, any third./?arty beriefici~ry status, any . right to enforce. any Provision of this·'Perm.it;'or - any other right or interest. ~-,;

35) NO PREFERENTIAL RENEWAL AND

her~by

;,

,.-.~.

RE{cl~AtloNASSISTANCE

permi!!~Eij'i~:;.~rll.cOnCeSsioner

a) Permittee agrees that and that the provisions of law regarding National Park Service cpncessionaires dO.Qqt:ap·Rfytlc:»?e'rmittee. No rights shall be acquired by virtue of this Permit entitling Permitte.e to claim benefit~iund¢J;!heLJniform Relocation Assistance arid Real Property Acquisition Policies Act of 1970, Public Law 9,fB:4S:\·,· . 36) SEVERABILITY a)

In-case any one or more of the Provi$iQo}\pfit/lisP(,rmit shall forahy reasqn be held to bein~alid, illegal or unenforceable in any respect, suchinvi;ili~it¥.ilreg~iit\,orupenforceabilityshall,not affect anY other provision of this Permit, and tilts Permit shall be conSlr.uedasifsuch invalid, illegal or unenforceable /Yrovisions had not been contained in this Permit. . . .

37) EXHIBITS a) Each of the exhibits referenced in t!1iSP
a) Whenever the context so requires, the neuter gender shall include the masculine and the feminine, and the Page 15

singular shall include the plural and vice versa. 42) FEDERAL LAW a) The laws of the United States shall govern the validity, construction and effect of this Permit.

Page 16

EXHIBIT A Map - Drake's Estero Aquaculture & CDFG Leases: NPS Resources and SUP Area

EXHIBITB Map - Drake's Estero Oysters - SUP & ROP

EXHIBITC Drakes Estero Aquaculture and Harbor Seal Protection Protocol

EXHIBITD Map - Drakes Bav Oyster Company Well Area

EXHIBITE Map - Drakes Bav Oyster Company Sewage Area

United States Department ofthe Interior NATIONAL PARK SERVICE Pacific West Region

1111 Jackson Street, Suite 700 Oakland, California 94607-4807 IN REPLY REFER TO:

11425 (PWR-DRD)

Kevin and Nancy Lunny 17171 Sir Francis Drake Boulevard Inverness, CA 94937

Dear Kevin and Nancy Lunny: Thank you for taking the time to speak with us on November 20, 2007 regarding fmalizingnegotiations for a special use permit for use of the estuary and shoreline in Drakes Estero. We are looking forward to meeting with you on December 3, 2007to continue our negotiations. As we discussed, please find enclosed a draft of the special use permit for your consideration. This permit includes a revised harbor seal protocol as well as a revised provision regarding the term of the pennit: We look forward to meeting with you next Monday. Sincerely,

cr.~

Regional Director, Pacific West Region

cc:

George Turnbull, 'PWR-DRD Don Neubacher, PWR-PORE Suzanne Boyce-Carlson, SOL

Fonn 10-114 Rev. Jan. 00

Page I ofl?

UNITED STATES DEPARTMENT OF THE INTERIOR National Park Service

Special Use Permit Date Permit Reviewed Reviewed Reviewed Expires

Name of Use: Aquacultnre

2007 20' 20 November 30, 2012

Permit # MISC-8530-6000-8002 Type

Park Code

No ..#

Long Term X Short Term

Point Reyes National Seashore Name of Area

Drakes Bay Oyster Company 17171 Sir Francis Drake Blvd. Inverness, CA 94937 (415) 669-1149 , 2007 ("Commencement Date") and termiOating on is hereby authorized for a period ("Term") cOimnenciOg on November 30, 2012 ("Expiration Date") to use thefollowiOg-described land, improvements, and waters iO the followiOg area: the lands and improvements at Drakes Bay Estero at the former Johnson's Oyster Site consistiOg of approximately 1.1 acres ofland and improvements designateqa~·\b,e·":;;UP Area" on the map attached hereto as Exhibit B ("Drake's Estero Oysters - SUP & ROP") and the water~ designat~d as the "SUP Area" on the map attached hereto as Exhibit A ("Drake's Estero Aquacultnre & CDFQ LeaSeS: NPS'Resources and SUP Area"). In addition,.tb.e Permitter intends to fence off some of the boundaries of,\fleSiJp.'Area shown ·on Exhibit B, and iO the event of any conflict between Exhibit B and fenciOg provided by th,,'Permitter, the fencing will control. Collectively, the areas so designated shall be referred to as the "Prenrises;" For the purpose(s) of: Use of the area designated as the "SUP Area":on:t!le.)hap attached hereto as Exhibit.B for the purpose of processing shellfish, the iOterpretation of shellfish (;ultivationtotlievisitmgpublic,. and resi.denti.al purposes reasonably incidental thereto. Use ofthe area designated as the "SuP AIea'" on the map attached her~tb as Exhibit A for the purpose of shellfish cultivation. Collectively, the uses set forth iO this paragraph shall bereferred to as the "Pennitted Uses." Authorizing legislation or other authority (RE - DO-53): 16 U.S.C. I, la-I, 3 & 459c; the Reservation of Use and Occupancy. NEPA & NHPA Compliance: NEPA compliance pending PERFORMANCE BOND:. Required Noi Required X LIABILITY INSURANCE: Required X Not Requfred

Amount: Amount: As set forth in Article 15 of this Permit.

ISSUANCE ofthis Permit -is subject to the terms, covenants, obligations, andreservations, expressed or implied herein and to the payment to the U.S. Dept. ofthe Interior, National Park Service of the sum of$2,800.00 per year. PERMITTEE:_ _ _ _ _--=:-_ _ _ _ _ _ _ _ _ _ _ _ _ _-::--,--:-_ _ _ _ _ _ _ _ _ __ Signature

Organization

Date

Authorizing Official:_ _ _ _ _ _ _ _ _ _~------------'=G"'e"'o!lrg;se'-T!!u"'m"""bu""I"-1_ _ _ _ _ _ _ _ _ __ Signature

Deputy Regional Director

Date

Additional Authorizing Official: _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ __



(If Required)

Signature

Title

Date

LIST OF EXHIBITS

EXHIBIT A:

Map - Drake's Estero Aquaculture & CDFG Leases: NPS Resources and SUP Area

EXHIBITB:

Map - Drake's Estero Oysters - SUP & Rap

EXHIBITC:

Drakes Estero Aquaculture and HarborBeal Protection Protocol·

CONDITIONS OF THIS PERMIT

1) DEFINITIONS As used in this Permit, the following terms shall have the following meanings:

ai

"Agency" means any agency, department, commission, board, bureau, office or other governmental authority having jurisdiction.

b)

"Applicable Laws" includes, withOut IirTlitation. all present and future staMes, regulations, requirements, Environmental Requirements; guidelines, judgments, or orders of any Agenqll §r judicial body, whether now existing or hereafter established, relating to or affecting the Premises or the use or occupancy of the Premises.

c)

"Commencement Date" is as defined on the Cover Page of this Permit..

d) "Cyclic Maintenance" means (i) the performance by Permittee of all repairs, maintenance, or replacement-in-kind necessary to maintain the Premises ancl;,t!'l~,e.)([~lrl),g improvements thereon in good order, condition, and repair; (ii) housekeeping and routine and perioqicw0(R'Jsqileduled to mitigate wear and deterioration wifhout materially altering the appearance of the PrelJ}\seslt\il),{t\$T6pair or replacement-in-kind of broken or worn~out elements, parts or surfaces so as to maintain theeXis!ih'g-flPpearance of the Premises; and (iv) scheduled inspections of all building systems on the Premises. e) "Default" means Permittee's failure to keep and perform any of the Provisions of this Permit. f)

"Environmental Requirements" means, without limitation, all standards or requirements relating to the protection of human health or t/le,environment such as: a.

standards or requirements pertaining tothe reporting, permitting, management, monitoring, investigation or remediation of emissions, discharge.s, releases, or threatened emissions, releases or discharges of Hazardous Materials into the air, surface water, groundwater, or land;

b.

standards or requirements relating to th.e manufacture, handling, treatment, storage, disposal, or transport of Hazardous Materials; and

c.

standards or requirements pertaining to the health and safety of employees or the public.

g)

"Expiration Date" is as defined on the Cover Page of this Permit.

h)

"Hazardous Materials" means, without limitation, any material or substance, whether solid, liquid, or gaseous in nature, a.

the presence of which requires reporting, permitting, management, monitoring, investigation or remediation under any Environmental Requirement;

b.

that is or becomes defined as a "hazardous waste," "extremely hazardous waste," "restricted hazardous waste," "hazardous substance," "pollutant," "discharge," "waste," "contaminant," or "toxic contaminant" under 'any Environmental Requirement, or any above-ground or underground storage containers for the foregoing;

c.

that is toxic, explosive, corrosive,flammable, infectious, radioactive, reactive, carcinogenic, mutagenic, or otherwise hazardous to human health or the environment and is or becomes regulated under any Environmental Requirement;

d.

that contains gasoline, diesel fuel or other petroleum hydrocarbons or derivatives or volatile organic compounds, or is an above-ground or underground storage container for same; Page 2

i)

j)

e.

that contains polychlorinated biphenyls (PCBs), asbestos, asbestos-containing materials or urea formaldehyde foam insulation; or'

f.

that contains radon gas.

"Hazardous Materials Occurrence" means any use, generation, treatment, keeping, storage, transport, release, disposal, migration, or discharge of any Hazardous Materials from, on, under or into the Premises or Point Reyes National Seashore ("Point Reyes") that causes any environmE;(,9tal contamination. "Improvements or Alterations" meaos'ianycbnstruttron [hat doe'$< not~fan Withip the definition of Cyclic Maintenance.

k) "NPS" means the management officials in charge of the administration and ol'reration of Point Reyes, including the Superintendent or his/her designee(s). I)

"Park" means, without limitation, alllifn:d~'W<;lters and structures within the legislative boundaries of the Point Reyes National Seashore, all natural
m) "Permit" means this instrument which'contains'those certain termination and revocation provisions as provided for herein. n) "Permitted Uses" is as defined on·th·e'Coverpage of this Permit. 0)

"Personal Property" means all furniture, fixtures, equipment, appliances and apparatus placed on the Premises that neither are attached to nor form a part Ofthe Premises. Personal Property also includes any trailers, modular· units, and/or temporary structures owned by Perl'nittf).e.

p) "Point Reyes" means Point Reyes NationalSeashore. q) "Premises" is as defined on the CoverPag'e ofthis Permit. r)

"Provision" shall mean any term; a!:lreement, covenant, conditibn 01' proVision of this Permit or any combination of the foregoing.

s)

"ROP" or "Reservation of Use and Occupancy" means the Reservation of Use and Occupancy purchased by the Permittee in 2005. In 1972 the United States of Americ'l purchased Johnson Oyster Company's property, subject to a Reservation of Use and Occupancy on approximately 1.5 of those acres'for a period of forty (40) years. This Reservation of Use and Occupancy· expires on November 30, 2012.

t)

"SUP" means this Permit.

u) "Term" is as defined on the Cover Page of this Rermit. v) 2)

"Termination Date" means the Expiration Date or such earlier date as this Permit is terminated or revoked pursuant to any Provision of this Permit.

GENERAL CONDITIONS a) Th.e Permittee shall exercise this privilege subject to the supervision of the Superintendent, and shall comply with all Applicable Laws. b) Permit and Approvals:- Except as otherwise provided in this Permit, Permittee shall be responsible for obtaining, at its sole cost and expense, all necessary permits, approvals or other authorizations relating to Permittee's use and occupancy of the Premises. Page 3

c)

Damages - The Permittee shall pay the United States for any damage resulting from this use which would not reasonably be inherent in the use which the Permittee is authorized to make of the land and areas described In this Permit. .

d) Benefit - Neither Members of, nor Delegates to Congress, or Resident Commissioners shall be admitted to any share or part of this Permit or derive, either directly or indirectly any pecuniary benefits to arise therefrom: Provided, however, that nothing herein contained shall be cO'1§trued to extend to any incorporated company if the Permit be for the benefit of such corporatiOl), e) Assignment and Subletting - This Permit may not be transferred or assigned Without the consent of the Permitter, in writing. Permittee 'snail not sublet the Premises or any part therapY;or any property thereon, nor grant any interest, privilege or license whatsoever in connection with this Petriiii without the prior written approval of the Permitter. f)

Revocation - This Permit may be termida.ted upon Default or at the discretion of the Permitter.

g) The Permittee is prohibited from giving fcli~ejnformation; to do so will be considered a breach ofconditions and be grounds for revocation [Re: 36 CFR 2.32(lfj) 3)

USE OF PREMISES a) Permittee is authorized to use the. Premises only for the Permitted Uses. b)

Permittee shall not engage in any activity that m,ay be dangerous or harmful to persons, property, or the Park; that constitutes or results in waste or unreasbnable annoyance (including, without limitation, signage and the use of loudspeakers or sound or light apparatus lhat Could disturb park visiiors and wildlife outside the Premises); that in any manner causes or results in a nuisanCE;!; or thans of a nature that it involves a substantial hazard, such as the manufacture or use of explosives, chemicals or products that may explode.

c)

The Parties hereby acknowledge and agreE;!Jh
d) ThiS Permit is subject to the right of the N'F'S·to establishlrails ah'd 'other .improvemE;!nts and betterments over, upon, or through the Premises and further to the use by travelers and others of such established or existing roads and trails. The Permittee understands that-occasional park visitors are authorize'd to walk, use non-motorized watercraft, or hike in the various areas. included in this Permit even though no' trails are formally established. e) Permitter reserves the right for Permitter, its employees, contractors and .
Permitterreserves the right at any time to close to travel any Of its lands, to erect and maintain gates at any pOint thereon, to regulate or prevent traffic of any kind thereon, to prescribe the methods of use thereof, and to maintain complete dominion over the same; provided, however, that at all times during the Term, Permitter shall provide Permittee and Permittee's invitees with reasonable access to the Premises subject only to interruptions caused by necessary maintenance or administrative operations or.by matters beyond Permitter's control.

g) Permittee hereby waives any claim for damages for any injury, inconvenience to or interference with P.ermittee's use and occupancy of the Premises, any loss of occupancy or quiet enjoyment of the Premises, or any other loss occasioned by. Permitter's exercise of its rights under this Article 3 except to the extent that the damages, expenses, claims or suits result from the willful misconduct or gross negligence of Permitter, its employees, contractors or agents; provided, further, that Permitter shall be liable only to the extent such claims are allowed . Page 4

under the Federal Tort Claims Act. h)

Permittee's operations are to be set back on the shore a minimum of 50 feet from the mean high tide mark, excepting that area which is the subject of this Permit and that is described in the attached map (Exhibit B).

i)

While Permittee is permitted to use and operate motorized watercraft in Drakes Estero for the purpose of conducting daily business operations, no other use of Permittee's motorized watercraft is authorized. No motorized watercraft may enter the designated wilderness boundary (S~!l "Existing Wilderness" on map attached hereto as Exhibit A). To protect water quality in th~);;~tero,.o/t5'"a-a,s!iti6n~or rePlacement boat motors obtained by Permittee must be four stroke m o t o r s . '

j)

Due to a lack of adequate parkmg space and restroom facilities for the publiq" Barbecuing is not permitted in the Special Use Permit Area; visitors may be directed to facilities located at DrakE!S Beach. Picnic tables will be provided by the NPS at the adjacent parking area.

k)

No discharge into the estuary is permlt1\1d.; [Qis prohibition includes any discharge from processing facilities. Notwithstanding the foregoing, dischar!l~.of'byster wash water from dock and from hatchery op.erations is allowed if authorized by relevant Agencies.

I)

In order to ensure public health and safety, riO'P!l!s, including dogs and cats, shall be permitted in the Special Use Permit Area. .'

m) In order to ensure public health aild'safe\y;.F(i)frnii(E!e;s.hall·allow all appropriate Federal, Stateand/ or County agencies; including the United Sti:ttesDeparttn.!lntbfHealthandHuman Services, the State of California Department of Health Services and Marin.County Community Development Agency Environmental Health Services, to conduct inspections on a routine Basis. 4)

SPECIAL PERMIT CONDITIONS a)

Based upon the findings of an indepenO.?i1JsGience review and/or NEPA compliance, Permitter reserves its right to modify the provisions of this Article 4.. rr~tmliferT{Jrther reserves its right to incorporate new mitigation . provisions based upon the findings ofc~n ji1~ependent science review. i)

The maximum annual produciiohlimifTtlt oysters, rock scai(E\psand clams will betOO,OOO pounds.

ii) No additional aquaculture racks and/or cultiliatlqri'.'infrastrudure will be constructed. Operation, repair, and maintenance of infrastructure currently being used for oyster cultivation is permitted. iii) Permittee and Permitter acknowledge the importance of eelgrass within the ecology of the estuary. Permittee will not place bags for shellfish production onto eelgrass, iv) Within sixty (60) days· following the·signing·of: this in.tarim Permit, Perniittee will submit for National Park Service approval a boating operations plan, Which willin~icate oeoicated navigation routes, chosen to minimize impacts to eelgrass beds when accessingaq(iaculture'tacks anO/or cultivation equipment. v)

Permittee anO Permitter acknowleoge tb.e importance of preventing the introduction of invasive species into the estuary. In order to control invasive species, PermJttile will make every effort to ensure that no new speCies enter the estuary and to minimize the spreatfof invasive species as a result of Permittee's operations. Within sixty (60) days following the signing of this interim Permit, Permittee will submit for National Park Service approval an invasive species mitigation plan that includes best management practices (BMP's).

vi) Permittee will not introduce species of shellfish beyond those described in the existing leases from the California Department of Fish and Game ("CDFG"). Permittee may seek to conform and/or modify these leases with the CDFG. Any modifications approved by CDFG will be considered by Permitter on a case-bycase basis, and Permittee may not implement any such modifications without the prior written approval of the Permitter. . Page 5

vii) Permittee must aveid disturbance to. marine mammals and marine mammal haul-eut sites. The Marine Mammal Pretectien Act, 16 U.S.C. 1361 et seq., includes a prehibitien against any act ef pursuit, terment er anneyance that has the petential to. injure er disturb a marine mammal er marine mammal steck in the wild by causing disruptien ef behavieral patterns, including, but net limited to., migratien, breathing, nursing, breeding, feeding, er sheltering. The Natienal Oceanic and Atmespheric Administratien (NOAA) recemmends maintaining a distance ef at least 100 yards to. aveid disturbance. to. seals. Permittee will maintain a distance ef at least 100 yards frem seals threugheut the year. Permitter will men iter marine mammal pepulatiens in Drakes Estero.. In additien, during th!,--~uppin9'trarllqr.searclesur~ peried, March 1-June 3D, the designated . wilderness area (eutside ef PerJTIifar!l.a}'is.Glo§~tl'to anb6afs.·perrriittlfEl>¥ViIf fellew "Drakes Estero Aquaculture and Harber Sear P(9~Ciien Protecel" attached hereto. as 'E~l1iqit C: If required by CDHS, watercraft may use the Maifi Channel identified in Exhibit C during the pu):l~ihg harber seal clesure peried enly to. access CDHS's sentinei menitering statien fer marine bietexins. Beat§':§hall be eperated at lew speed, near the eastern shere, to. minimize chance.ef disturbance to. harber seals. No. ether use ef the Main Channel er any ether channel is autherized dl1rrhgthe pupping harber seal clesure peribCi . . viii) In erder to. aveid intreductien ef ii1Y<'t$'iYll,·.$pecies to. Drakes Estero. enly eyster "seed" and net whele eysters may be imperted. Seed must be 6fif~iit~tkf~f1fh regiens approved by Permitter. Atissuance'Cifthis Permit Washingten; Oregen, and Califernia'i!iii'exdJuSively appreved regiens fer ebtaining eyster saed. 5)

ACCEPTANCE OF PREMISES a)

Prier to. entering into. this Permit, Permitteehas·mad&a thereugh, independent examinatien efthe Premises and all matters relevant to. Permittee's decisiOn to..e.nter'inte this Permit, and Permittee is theroughly familiar with all aspects ef the Premises and is satisfied tHat they are in an acceptable cenditien and meet Permittee's needs.

b)

Permittee expressly agrees to. use ande\lcupyJH~ Premises and all imprevements thereen in their existing "AS IS" cenditien "WITH ALL FAULTS" and acl
or

6)

CONSTRUCTION OF IMPROVEMENTS OR ALTERATIONS a)

Permittee may enly make these Improvements er Alteratiens to. the Premises that relate to. Permittee's use ef the Premises as specified in Article 3. '''Use ef. the Premises."

b)

Permittee shall net undertake any Imprevements er Alt~ratiens to. the Premises (including installatien ef temperary equipmente[ facilities) witheut the prierwritteil appreval ef Permitter.

c)

As a prerequisite to. ebtaining appreval fer Improvementser Alteratiens, Permittee, at Permittee's sele cest and expense, shall submit design plans and any ether relevant dat.rter Permitter's appreval.

d) Censtructien ef Improvements er Alteratiens by Permittee shall be perfermed in accerdance with all Applicable LaWs, including but net limited to. general planning, building, and envirenmentallaWs and appreved design plans and shall be undertaken and cempleted at Permittee's sele cest and expense. e)

Permittee shall, upen request, furnish Permitter with a true and cerrect cepy ef any centract, and any medificatien er amendment there.of, with Permittee's centracters, architects, er any ethercensultants, engaged in cennectien with this Permit.

f)

Any Improvements er Alteratiens undertaken by Permittee shall be perfermed in a goed and werkmanlike manner Page 6

and with materials of a quality and standard acceptable to Permitter. Permittee shall also construct, install and maintain equipment and any construction facilities on the Premises in a safe and orderly manner. g)

Permittee shall notconstruct any Improvements or Alterations outside the boundaries of the Premises.

h)

Permitter in its discretion is entitled to have on the Premises at any time during the construction of Improvements or Alterations an inspector or representative who shall be entitled to observe all aspects of the construction on the Premises.

i)

All lumber utilized at the site will be,pr6ce§skdin'compliance wTtheuheiit ta:w\1 and regulations regarding wood treatments. This includes lumber'utilized in assembly and repair of aqu'acliltute racks.

j)

As set forth in Article 17, title to any Improvements or Alterations to the Premises shall be and remain solely in the Permitter.

.

7)

.. v.;:....

..,''-

'"

TREATMENT OF REFUSE a) Refuse shall be promptly removed frohl,W[\t}iO
Permittee will ma,ke best efforts toreriiq,Yll'Mb;tis associated with aquaculture production operations including wood from racks, plastiC spacers,uhuse.a"siTei.lflsh bags, shellfish shells, and any other associ$tect items.

,

8)' PESTICIDE AND HERBICIDE USE

a) The National Park Service utilizes Integrated·pestManagement ("IPM")'to treat pest and vegetation problems. The goal of IPM is to use the least-toxic, effectiVe methods of controlling pests and vegetation. Except for normal household purposes, Permittee shall not use a'h9,"pEi$ljcides that do not comply with the IPM'program. To this end, Permittee shall submit in writing to Permitter; a-ri!i~ue5t fOr the use of pesticide(s) or herbicide(s) and shall not use any pesticide(s) or herbicide(s) until Permittee has received an express written authorization therefor froni Permitter. b) 9)

Permittee shall manage, treat, geoera\e; handle, store and dispose of all pesticides and herbicides in accordance with Applicable Laws, including:reI1ptting.te!1u.!rements.

FIRE PREVENTION AND SUPPRESION a)

Permittee and its employees,agents, and contractors shall, in Penmittee's use ,and occupancy of the Premises, take all reasonable precautions, to. prevent forest, brush, grass, and structural'fires and shall, if safety permits, assist the Permitter in extinguishing such fires on the Premises.

10) EXCAVATION, SITE AND GROUND DISTURBANCE a)

Permittee shall not cut, remove or alter any timber or any other landscape feature; conduct any mining or drilling operations; remove any sand, gravel or similar substances from.the ground or watercourse; commit waste of any kind; or in any manner change the contour or conditfon of the Premises without the prior written approval of the Permitter. Except in emergencies, Permittee shall submitreqiiests to conduct such activities,in writing to the Permitter not less than sixty (60) days in advance afthe.:proposed commencement date of any such activities.

b)

If approval of activities referenced above in Section10(a) is granted, Permittee shall abide by all the terms and conditions of the approval, including provisions pertaining to archaeological' resources.

c)

No soil disturbance of any kind may occur in the vicinity of a known archeological site.

11) NONPOINT SOURCE POLLUTION Page 7

a) The Permittee shall comply with all Applicable Laws regarding non-point source pollution (including the protection of beneficial uses of waters as designated by the State of California). Further, Permittee's use and occupancy of the Premises shall be designed to minimize, to the greatest extent feasible, non-point source pollution within National Park Service boundaries or on adjacent lands. b) As set forth in Section 3(m) of this Permit, no discharge into the estuary is permitted. This prohibition includes any discharge from processing facilities .. 12) TREE AND VEGETATION REMOVAL a) The Permittee may not remove,freeCsr or vegetation unless expressly apprmieQ in writing by the Permitter. The Permittee shall provide specific plans to the Permitter for desired tree(s) and.'\l,egetation removal during the annual meeting or in writing during the Term of this Permit. b)

Removal of non-native invasive vegetation such as non-native thistles, trimming and vegetation removal around structures is permissible.

13) WILDLIFE PROTECTION a) Wildlife is an integral part of Point RElya!;",N"lti<:1r1:a.i;;Seashore and must be managed in accordance with all Applicable Laws, including but nOf'lin\lt~l:t~,t~;~,~glegislation, the COtl6 of Federal Regulations, ahd NPS policies, including but not limited to NPS Mali;:igeii'\elll"Policies 2006, as such may be amended. b)

Permittee shall not engage in anyactiitity,tliatp)jrpo~ely cau!les harm or destroys any wildlife. Conversely, Permittee shall not engage in any,activity ihafpurposely supports or increases populations of non-native or invasive animal species.

c)

As set forth in Section 3U) of this Permit, PerrnittEle'ffiust avoid disturbance to marine mammals and marine ' mammal haulcout sites.

d)

On a case by case basis, the Permitter Will 'evaluate incidences of depredation and choose a course of action. The nature of the course of action willbedeifermined by the extent and frequency of the damage, the wildlife species, and park-wide management objectives.

14) HAZARDOUS MATERIALS; ENVIRCiNMENtALHEAlTHAND$~RiiTY a)

In connection with this Permit, Permittee, its officers, agents, employees and cOlJtractors, shall not use, generate, sell, treat, keep, or store any Hazardous Materials on, about, under or into thef,'t"emises or elsewhere in Point Reyes except in compliance with all Applicable Laws and as approved in writing by Permitter. However, Permittee shall not be obligated to obtain Permitter's approval to use" keep; or generi'lWHazardous Materials as necessary for the normal operation or maintenance of vehicles. Permittee agrees toJ3'e responsible for timely acquisition of any permit(s) required for its Hazardous Materials-related activities, and'si'lall provide to the Permitter, upon request, inventories of all such Hazardous Materials and any supporting documentation, including but not limited to material safety data sheets, uniform waste mali)iestfonns,and/orariy other pertinent permits.

b)

Permittee, its officers, agents, employees and contractors, shall hot release, discharge or dispose of any Hazardous Materials from, on, about, under or into the Premises or elsewhere in Point Reyes.

c)

If Permittee knows of or reasonably suspects or receives notice or other communication concerning any past, ongoing, or potential violation of Environmental Requirements in connection with the Premises o'r Permittee's activities, Permittee shall immediately inform Permitter and shall provide copies of any relevant documents to PermitteL Receipt of such information and documentation shall not be deemed to create any obligation on the part of the Permitter to defend or otherwise respond to any such notification,

d) If ariy Hazardous Materials Occurrence is caused by, arises from, or is exacerbated by the activities authorized under this Permit or by the use of the Premises by Permittee, its officers, agents, employees or contractors, Page 8

Permittee shall promptly take all actions at its sole cost and expense as are required to comply with Applicable Laws and to allow the Premises and any other affected property to be L1sed free of any Lise restriction that could be imposed under Applicable Laws; provided that, except in cases of emergency, Permitter's approval of such actions shall first be obtained. e)

The Permitter shall have the right, but not the duty, at all reasonable times and, except in the c:ase of emergency, following at least twenty-four (24) hours advance notice to Permittee, to enter and to permit any Agency, public or private utilities and other entities and persons to enter upon tQ~ Premises, as may be necessary as determinEOdby the Permitter in its sole discr~tion,. to con9~~tjnS~~tt0f!.~toflh~!,ref.!l'~s; including invasive tests, to determine whether Permittee IS complYing wltiJ,all Ap.plicable [tfWs and to Investlgat~h\! eXistence of any Hazardous' Materials in, on or under the PrEOrt1lses'. the Permitter shall have the rlgli"f,·b,ul.not the duty, to retain independent professional consultants to erttei"the Premises to conduct such inspections c[O~jto review any report prepared by or for Permittee concerning such compliance. Upon Permittee's request, th~,Permitter will make available to Permittee copies of-all final reports and written data obtained 'by the. PermittE!r. from such tests and investigations. Permittee shall have no claim for any itij"gf,y"or inconvenience to or interference with Permittee's use of the Premises or any other loss occasionecl}~~!i6!;pections under this Section 14(e).

f)

Should Permittee, its officers, agents, erpjil-9y¢i;ls:"Or contractors, fail to perform or observe any ofthe obligations or agreements pertaining to Hazardou§ 'M\~f~,tlars-:df EnVironmental Requirements for a period df-thirty (30) days (or such longer period of time as i~Heaspija.bIY·fequired) after notice, then Permitter shall have the right, but not the duty, without limitation of any 6tH.er: rl§hW,8t:P'ermitter under. this Permit, personally or through its agents, consultants or contractors to entE;!t'ille P1'errH§~$'and perform the same. Permittee agrees to rellhburse Permitter for the costs thereof and to indemhif'y.Perffiiffei'as' provided for in this Permit.

g)

Permittee understands and acknowledges that the Premises may contain asbestos and lead-based paint. If Permittee performs any Improvements orAlterations, Permittee shall comply with all Environmental Requirements related to asbestos and lead-based paint and shall solely bear all costs associated therewith. Nothing in this Permit shall be construed to require-Permittee:tO'femove asbestos or lead-based paint unless Environmental Requirements requir1l such removal.

h)

Permittee shall indemnify, defend, save and hold F>'ermitter, its employees, successors, agents and assigns, harmless from and against, and reimbursfr,Permitter for, any and all claims, demands, damages, injuries, losses, penalties, fines, costs, liabilities, ci!uses oMetion, judgments, and expenses, including Without limitation, consultant fees and expert fees, thalatiseduring or after the.terrrtas a result of any violation of any Environmental Requirement in conneciionWith.this l?errn,itpi:anyMazardous Materials Occurrence in connection with this Permit.

i)

The provisions of this Article 14 shall survive any·termination or revocation of this Permit. Article 15 (Insurance) of this Permit shall not limit in any way Permittee's or Permitter's obligations under this Article 14.

15) INSURANCE a)

Permittee shall purchase the types and amounts of insur'lnce described herein before the Commencement Date of this Permit unless otherwise specified. At the time SUCh insurance coverage is purchased, Permittee shall provide Permitter with a statement of Permittee insuf
b)

From time to time, as conditions in the insurance industry warrant, the Permitter reserves the right to revise the minimum insurance limits required in this Permit.

c)

All insurance policies required by this Permit shall specify that the insurance company shall have no right of subrogation against the United States, except for claims arising solely from the negligence of the United States or Page 9

its employees, or shall provide that the United States is named as an additional insured. d) All insurance policies required herein shall contain a loss payable clause approved by the Permitter which requires insurance proceeds to be paid directly to the Permittee without requiring endorsement by the United States. Insurance proceeds covering any loss of the Premises but-not used to replace such losses shall be promptly paid by Permittee to Permitter. The use of insurance proceeds for the repair,' restoration or replacement of the Premises shall not give any ownership interest therein to Permittee. e)

Property Insurance: At a minimum, the P.ermittee'llhall b~ reqliked'{o.purchase Basic Form Actual Cash Value (replacement cost less depreciatio~nYi~~U.rallC;:eGdVeragefbr-a1Tresidence:un,the Premises. Within thirty days of issuance of the Permit, the Permitlee"snall submit a report from a reputaElle,in'S!Hrance company which provides a full range of options for insurance coverage on all nonresidential structures o.thJfie Premises. Within thirty days of receipt of this report, the Permitter, in its sale discretion, will review and specifY the type and level of insurance coverage which shall be required. The Permitter will provide the Permittee written notification of insurance requirements and the Permittee shall be required to have the specified level(S) of insurance in place within thirty days of such notification. The cost dfthe:'in$urance will be deducted from the appraised fair market value for the Premises; this adjustment and the insurance-oreqllirements will be addressed in an amendment to the Permit. Permittee shall, 'in the event of damage dr'(!i;!~trilp!ion in whole or in part to the Premises, use al~proceeds from the above described insurance policies.Jo'r~~C!Jt\jr.estore, replace or remove those buildings, str,i;jctures, equipment, furnishings, bettermentllor iri)pr6Vll'mtmts determined by the Permitter, in Permitters sole discretion, to be necessary to satisfactorily discMfg):dhe"Permittee's obligations under this Permit.

f)

Public Liability: The Permittee sh~n.provi!:f~,C.omprE1hensive General Liability insurance against claims arising from or associated with Permittee!s use.eiidbccupant:y of the Premises. Such insurance shall. be in the amount commensurate with the degree of risk ami(lje.s'cope and size of such use and occupancy, but in any event, the limits of such insurance shall not be less thah.$1,OOO,OOO.OO per occurrence covering both bodily injury and property damage. If claims reduce available .insurance below the required per occurrence limits, the Permittee shall obtain additional insurance to restore the required limits. An umbrella or excess liability policy, in addition to a Comprehensive General Liability Policy, may be used to achieve the required limits.

g)

Permittee shall also obtain the following add/tionalcoverage: i)

Automobile Liability - To cover all oWned, non-owned, and -hired vehicles in the amount of $300,000.00.

Ii)

Workers' Compensation - The amollntshall be in accordance with thalWhich is required by the State of California.

16) INDEMNITY

a)

In addition to the indemnification contained in Article 14, Permittee shall indemnify, defend, save and hold Permitter, its employees, successors, .agents and assigns, harmless from;i3nd against, and reimburse Permitter for, any and all claims, demands, damages, injuries, losses, penalties, fines, costs, liabilities, causes of action, judgments and expenses and the like incurredin.. connection with or·arising in any way out of this Permit; the use or occupancy of the Premises by Permittee. or its'officers, agents, .employees, or contractors; the deSign, construction, maintenance, or condition of any Improvements or Alterations; or any accident or occurrence on the Premises or elsewhere arising out of the use or occupancy of the Premises by Permittee or its officers, agents, employees, or contractors. Permittee's obligations hereunder Shall include, but not be limited to, the burden and expense of defending all claims, suits and administrative.proceedings (with counsel reasonably approved by Permitter), even if such claims, suits or proceedings are groundless, false or fraudulent, and condUcting all negotiations of any description, and paying and discharging, when and as the same become due, any and all judgments, penalties or other sums due against the United States.

b) Permitter agrees to cooperate, to the extent allowed by law,in the submission of claims pursuantto the Federal Tort Claims Act against the United States by third parties for personal injuries or property damage resulting from the negligent act or omiss.ion of any employee of the United States in the course of his or her employment. Page 10

c)

This Article 16 shall survive any termination or revocation of this Permit. The provisions of Article 15 (Insurance) of this Permit shall not limit in any way Permittee's obligations under this Article 16.

17) PROPERTY INTEREST a) This Permit shall vest in Permittee no property interest in the Premises or in the improvements thereon. Title to real property and improvements thereon, including 'any Improvements or Alterations constructed by Permittee, shall be and remain solely in Permitter. Permittee shall have J)P claim for any compensation or damages for the Premises, the improvements thereon, or any.lmpr~verri~1fts orfA.lterqtions constructed by the Permittee. b)

Nothing in this Permit shall give or be'deemed to give Permittee an independ§nt right to grant easements or other rights-of-way over, under, on, or through the Premises.

c)

Permitter hereby retains the sole and exclusive right to oil, gas, hydrocarboi)'s,.and other minerals (of whatsoever character) in, on, or under the Premises;.

18) RENTS, TAXES AND ASSESSMENTS a) The annual rental rate for this Permit sniillbe'established'by Permitter and is set fo-rthon the Cover Page of this Permit. b) The annual rent under this PermiUS.payablefin advancEi on a semi·annual basis. Therefore, Permittee hereby agrees to pay fifty percent of the annval.rate onorb'efore November with the remaining fifty percent payable on or before May of each year during the Terin, c)

Permittee shall pay the proper Agency, whenand;3S the same become due and payable, all taxes, assessments, and similar charges which, at any time. during th$'Term of this Permit, are levied or assessed' against the Premises,

d)

Rents due hereunder shall be paid without assertion of any counterclaim, setoff, deduction.or defense and without abatement, suspension, deferment or reduCtion, .

19) CYCLIC MAINTENANCE a)

Permittee shall perform all Cyclic MainienProvisions olthis Permit and at Permittee's sole cost and expense, Permittee is responslole;for'tIleirnaifitehanceqtall.fence§!.:tJuildings, and other improvements upon the Premises. All improvements and facilities used and oc(;'Upied by Permittee shall at all times be protected and maintained in a safe, sanitalyand sightly condition.

b)

Specific maintenance requirements may be negotiated with Permittee each year as outlined in Article 21 (Annual Meeting).

c) . Docks and Fences must be in good repair. Abandoned fences and other decrepit improvements shall be removed from the Premises and shall be disposed of outside the Park or as,Mected by Permitter after review and approval by the NPS Historian. d)

Lighting of the Premises shall be redesigned to protect and preserve the night sky/darkness and minimize light pollution in Drakes Estero.

e)

Parking areas shall be maintained in a safe condition and no new roads or truck trails shall be established without prior written permission of the Permitter. The main entranCe road will be maintained by the NPS.

f)

Existing water reservoirs shall be maintained in a safe and secure condition to prevent washouts and erosion and no new reservoirs shall be constructed or established without prior written approval of the Permitter.

g)

Permittee shall maintain the water, well, pump and all pipelines from the main line to the structures within the Page 11

Premises. Permittee shall replace or repair any damage or loss of the water system within the Premises. h)

Permittee shall be responsible for removing slash buildup around fences or other facilities within the Premises so as to prevent fire and egress hazards. Permittee shall also be responsible for removing litter and trash from the Premises.

20) COMPLIANCE WITH APPLICABLE LAWS; NEPA. NHPA a) General Compliance: As provided for in tbis,Permit, Perijlittee ,atits'·~ole cost and expense shall promptly comply with all Applicable Laws. Permittee. strali irrimedialelYhOti"fyPermitter oTa(iy·qotices received by or on behalf of Permittee regarding any alleged or gottial violation(s) of or non-compliance with Applicable Laws. Permittee shall, at its sole cost and expense, promptly remediate or correct any violation(s) of",
National Environmental Policy Act and National Historic Preservation Act: Where activities undertaken by Permittee require the preparation of compliance documents pursuant to the National Environmental Policy Act ("NEPA") or the National Historic PreSarV,alipn Act ("NHPA") ("Compliance Activity"), Permittee shall supply all necessary information to Permitter andi;ii;\y,;ii;gency in a timely manner. If Permitter determines that the Compliance ACtivity is warranted, Perri1rtt~rvvilfprepare!NEPAor NHPA documents as appropri~le. Permittee shall not implement any aspect of the Compliance Activityuntif all applicable NEPA and NHPA requirements have been met.

21) ANNUAL MEETING a) The Parties shall .meet annually each yearduringithe Term of this Permit for the purposes of discussing and resolving issues of mutual conceml;lnd ensuring that Permittee is complying with the Provisions ofthis Permit. Any proposed changes or modifications to this PElrmit which are required in order to meet National Park Service requirements or objectives shall be discussed'and negotiated at the Annual Meeting. If National Park Service requirements or objectives require prompt attentiOn, the date of the Annual Meeting may reasonably be changed by Permitter. 22) PROCEDURE IN CASE OF DEFAULT a) This Permit is made upon the express condition that if Permittee fails to keep and perform any of the Provisions of this Permit, this Permit shall become void Citt.he option of Permitter, prOVided that Permitter shall first give Permittee thirty days written notice ("thirtyd~y (Iblific<;l.tion period;}ofPermitler's intention to revoke this Permit and regain possession of the Premises. The notlceshall'descriiitHha'speoific.p$fault·and shall stale Permitter's intention to reenter the Premises and declare. this Permit forfeited if such Defaultcontin·ues. Such notice shall be served in the manner provided in Article 29 of this Permit. b) The parties agree to meet promptly within the thirty day notification period to discuss the reasons for the notice and to try to resolve their differences. c)

If Permittee does not cure the Default or presenta reasonable plan therefor within the thirty (30) day period, then Permitter shall be entitled to the possession of the Premises, and may enter into and upon the same or any part thereof and repossess the same and expel Permittee and those Claiming through or under Permittee and remove their effects without being guilty of any manner of trespass and without any prejudice to any remedies that might otherwise be used for arrears of rent or preceding Default.

d) At the option of the Permitter, Permitter may, in lieu of voiding and terminating this Permit, assess a penalty of $50.00 per day for any failure by Permittee to keep and perform any of the Provisions of this Permit. In such case, Permittee shall be given notice in writing of a grace period (of from one to thirty days) to remedy the situation before a penalty will be assessed. Payment of any penaliy under this provision shall not excuse Permittee from curing the Default. This provision shall not be construed as preventing Permitter from issuing citations or initiating enforcement proceedings under Applicable Laws.

Page 12

23) SURRENDER AND VACATE THE PREMISES. RESTORATION A) On the Termination Date of this Permit, Permittee shall surrender and vacate the Premises, remove Permittee's Personal Property therefrom, and repair any damage resulting from such removal. Subject to the approval of the Permitter, Permittee shall also return the Premises to as good order and condition (subJect to ordinary wear and tear and damage that is not caused directly or indirectly by Permittee) as that existing upon the Effective Date. b)

All Permittee's Personal Property shall remain the property of permittee. However, if after the Termination Date, Permittee shall fail ~atisfactorily to rem~~~er.mitfi~~·.Plts~tl~!'pr0p~~ ~nd so repairthe Premises, then, at the Permitter's sole o~tlon, after notlc!:,to\F~Lmlltee;,·Permlffee's PerllOrlal!.'r~~y, shall either become the property of the Permitter Without comperjsatlqn therefore, or the Permitter may caus~: IHo be removed and the Premises to be repaired at the expense ofPeifrtiittee, and no claim for damages against 1;I,e:rihitter, its employees, agents or contractors shall be created or made on account of such removal or repair work.

24) LIMITATION ON EFFECT OF APPROVALS a)

All rights of Permitter to review, commeht'tjpbn, approve, inspect or take any other action with respect to the use and occupancy of the Premises by Pef'rU'ltt:~foln).r"$:Vy other matter, are expressly for the benefit;9!Permitter and no other party. No review, comment, appro':Vaftit(ri}~'Rection, rightor exercise of ahyrtght to perform;Permitter's obligations, or similar action required dr;B"e[lfil\t'e~;by, of, or to Permitter under this Permit, or adiJons or omissions of Permitter's employees, contracWts,(Jf.'~9t!ret'if~ents, or othercircuf(1stancesshall give or be· deemed to gille Permitter any liability, responsibili'tl! or d~1i9;l\i(jff'fQr, in connection With, or with respect to the operation of the Premises, nor shall any such approval; '~~fi9i\Sj.irlflirmation.6r circumstances relieve or be deemed to relieve Permittee of its obligations and responsibilitiesforthe use and ocyupancy olthe Premises as set forth in thJs Permit.

25) WAIVER NOT CONTINUING a)

The waiver Of any Default, whether such waive(beexpressed or implied; shall not be construed as a continuing waiver, or a wavier of or consent toanystli:),$equent or prior breach of the same or any other provision of this Permit. No waiver of any Default shallaffecloralter this Permit, but each and every ProiliSion of this Permit shall continue in full force and effect with respebtto any other then existing or subsequent Default.

26) LIENS a)

Permittee shall have no power to do any actCif'brrt.~ke;ahy·cc'mtract..thatmay.·crea}e or be the folJndation for any lien, mortgage or other encumbrance upon the reversion, fee interest or other esj'ate of the Permitter or of any interest of the Permitter in the Premises. If any such lien soal) at anytime be ijleil against the Premises Of any portion thereof, Permittee shall cause the Permitter to be discharged from th.e.iiien.

27) HOLDING OVER a) This Permit shall terminate upon the Termination.Date and any holding, over by Permittee after the Termination Date shall not constitute a renewal of this Permit,orgiyePermittee:any rights under this Permit or in or to the Premises. 28) NOTICES a)

Any notice or other communication required or permitted under this Permit shall be in writing and shall be delivered by hand or certified mail with return receipt requested. Notices and other communications shall be addressed as follows:

Page 13

If to Permitter: Superintendent Point Reyes National Seashore Point Reyes Station, CA 94956 If to Permittee: Mr. Kevin Lunny Drakes Bay Oyster Company' 17171 Sir Francis Drake Inverness, CA 94937 29) NO PARTNERSHIP OR JOINT VENTURE a)

Permitter is not for any purpose a partn$r or:joint venturer of Permittee in the development or operation of the Premises or in any business conductetto,nlfle Premises. Permitter shall not under any circumst~mces be responsible or obligated for any losses '9;ri @/;lJliliesof Permittee.

30) ANTI-DEFICIENCY ACT a)

Permittee and Permitter agree that'nClthing"c
31) COMPLIANCE WITH EQUAL OPPORTUNITY LAWS a)

Permittee agrees that in undertaking alla,ctivities'pursuant to this Permit, Permittee will comply with all Applicable Laws relating to non-discrimination.

32) ENTIRE AGREEMENT AND AMENDMENT a)

This instrument, together with the exhibit,S, hereto, all of which areinCorporated in this Permit by reference, constitutes the entire agreement betwe6n'P$rmiiter and Permif!~e With respect to the· subject matter Of this Permit and supersedes all prior offers, negotiations; 6ralimd·,wfitten.TnisPermitmay notbe amended or modified in any respect whatsoever except by an instrument in writing signed by Permitter and peirmittee.

33) NO PAYMENTS BY PERMITTER a)

Under no circumstances or conditions, whether now existing or hereafter ariSing, and whether or not beyond the present contemplation of the Parties, shall Permitter be expected or required to make any payment of any kind whatsoever with respect to the Premises or be Lihder any ollJigation or liability except as expressly set forth in this Permit.

34) NO THIRD PARTY BENEFICIARIES a)

Except as expressly set forth in this Permit, this Permit shall not be deemed to confer upon any person or entity, other than the parties to this Permit as expressly set forth in this Permit, any third party beneficiary status, any right to enforce any Provision of this Permit, or any other right or interest.

35) NO PREFERENTIAL RENEWAL AND RELOCATION ASSISTANCE a)

Permittee hereby agrees that Permittee, is not a concessioner and that the provisions of law regarding National Park Service concessionaires do not apply to Permittee. No rights shall be acquired by virtue of this Permit entitling Permittee to claim benefits under the Uniform Relocation Assistance and Real Property Acquisition Page 14

Policies Act of 1970, Public Law 91-646. 36) SEVERABILITY a)

In case anyone or more of the provisions of this Permit shall for any reason be held to be invalid, illegal or unenforceable. in any respect, such invalidity, illegality or unenforceability shall not affect any other provision of this Permit, and this Permit shall be construed as if such invalid, illegal or unenforceable provisions had not been contained in this Permit.

37) EXHIBITS a)

Each of the exhibits referenced in this Permit is attached hereto and incorporated herein.

38) TIME OF THE ESSENCE a) Time is hereby expressly declared to be:tiHhe essence of this Permit and of each and every Provision of this Permit. 39) HEADINGS a)

Article, Section and Subsection he"
40) PERMIT CONSTRUED AS A WHOLE a)

The language in all parts of this permit sl:laIHn·cj!l.cases be construed as a whole according to its fair meaning and not strictly for or against either Permittet'o"r Permittee. The Parties ackno\Nledge that each party and its counsel have reviewed this Permit and partiCipated.i,ii·'lfs..qrijfting and therefore thai the rule of construction that any. ambiguities are to be resolved against the~dfafli1jg Party shall' not be employed orapplied in the interpretation of this Permit.

41) MEANING OF TERMS a) Whenever the context so requi(es;the.n'euter gender shall include'the m<.lscUline and'the feminine, and the singular shalJ include the plural alidliicewersa; 42) FEDERAL LAW a) The laws of the United States shall govern the validity, construction and effect-of this Permit.

Page 15

Drakes Estero Aquaculture and Harbor Seal Protection Protocol

The following items are mutually agreed to for protection of harbor seals in and adjacent to the Harbor Seal Haul-Out Zones identified in the Map entitled, "Drake's Estero Aquaculture & Seal Protection Zones," attached hereto and incorporated herein by reference ("Protocol Map"): I. During the breeding season, March I tluough Jime 30, the "Main Channel" and "Lateral Channel" of Drakes Estero will be closed to boat traffic. a The channels and other areas discussed in this Protocol are identified on the Protocol Map. 2. During the breeding season, Pennittee boats may use the "West Channel" at low speed while maintaining a distance of at least 200 yards from seals. During the breeding season, Pennittee may maintain bags in the area labeled on the Protocol Map as "Breeding Season Area," provided that Pennittee boats and personnel maintain a distance of at least 200 yards from seals. 3. During the remainder of, the year outside the breeding season, from July 1st to the end of February, Permittee may use the tluee channels and may maintain bags in the area labeled on Protocol Map as "Non-Breeding Season Area," provided that Pennittee boats and personnel maintain a distance of at least 100 yards from seals. 4. Throughout the year, no motorized watercraft may enter the area labeled as "Existing Wilderness" on the Protocol Map. a The dates

March 1 and June 30 are based on the birthing dates of seals at haul out sites during the breeding season. Pregnant female seals usually arrive around a week before giving birth. The earliest dates of first pup observed in Drakes Estero over the past five years were March 3 and March 6. At Tomales Bay the earliest date in 2007 was 14 February.

United States Department of the Int~:riOI NATIONAL PARK SERVICE Pacific West Region

1111 Jackson Street, Suite 700 Oakland, California 94607-4807 ' IN REPLY REFER TO;

DEC 1 7 2O!l7

L1425 (PWR-C) Tract 02-106 PORE

ML and Mrs. Kevin Lunny Drakes Bay Oyster Company 17171 Sir Francis Drake Boulevard Inverness, CA 94937 Dear Mr. and Mrs. Lunny: This letter is in response to your October 23,2007, letter regarding c1arifitatiOll'dfTa{if;IffiTIc and science on Drakes Estero; We are providing answers to your questions in a table format for your perusal. We are doing so even though the Freedom ofInformation Act ("FOIA") does not require agencies to answer questions or to create documents in response to requests. By providing this information, the NPS has not waived its ability to 'invoke applicable FOIA exemptions for similar or related information in the future. We hope the information is helpful to you. Sincerely,

·1 uuti(

,.Jonath . Jarvis Regional Director, Pacific West Region

~.

Enclosure



Drakes Bay Oyster Company 17171 Sir Francis Drake Boulevard Inverness, CA 94937 (415) 669-1149 [email protected] [email protected]

October 23, 2007

Jon Jarvis Regional Director National Park Service Pacific West Regional Office One Jackson Center 1111 Jackson Center, Suite 700 Oakland, CA 94607

Re:

National Park Service, Clarification of Law, Policy and Science on Drakes Estero

Dear Mr. Jarvis. On September 18, 2007, you sent the document "Clarification ofLaw, Policy, and Science on Drakes Estero" to Dr. Goodman and have widely circulated it since. According to YOllr statement, at the bottom of page 5 and top of the following page: "With regards to NPS studies within the estero, we wish to clarify points regarding the independence and quality ofNPS data. Dr. Goodman questions the quality of the data collected by NPS biologists and others as not independent and not peer-reviewed through published scientific journals. It is true that much of the research within the NPS is applied and often not published in scientific journals; nevertheless, research projects within the NPS are submitted to a rigorous peer-review process that includes scientists from the NPS, other agencies, and academia. An implementation plan is required before a project can begin which requires a detailed description and peer-review of the methods. The protocol development, although not as rigorous as the journal publication process, nevertheless does subject NPS applied

research projects to a significant degree of review intended to insure the quality of the research and the integrity of the findings. The Point Reyes National Seashore Park News publication, "Drakes Estero - A Sheltered Wilderness Estuary," for example was reviewed by scientists from the U.S. Geological Survey and NPS." This clarification is instructive. To further assist our understanding ofthe NPS process regarding the preparation and presentation of research reports, would you provide the following: (1)

According to your letter and this NPS Statement, "research projects within the NPS are submitted to a rigorous peer-review process that includes scientists from NPS, other agencies and academia. "

(a)

When was this peer-review process initiated for the NPS report, "Drakes Estero. A Sheltered Wilderness Estuary?"

(b)

IdentifY each NPS scientist who participated in the peer-review process for this report.

(c)

IdentifY each scientist from other agencies who participated in the peer-review process for this report.

(d)

IdentifY each member of academia who participated in the peer-review process for this report.

(e)

Provide copies of the instructions and documents provided to each participant in the peer-review process.

(f)

Provide reviewer comments pursuant to this process.

(g)

Provide the dates of meetings, who attended and participated and copies of the agenda.

(h)

In the preparation and publication of the Drakes Estero Report, did NPS fully

adhere to Federal policy requirements for peer review? (2)

According to your Clarification letter, "an implementation plan is required before a project can begin which requires a detailed description and a peer-review of the methods."

(a)

When did this project - the preparation of this report - begin?

(3)

(4)

(5)

(b)

When was the required "Implementation Plan" initiated? Completed?

(c)

When completed, what was the Implementation Plan approval process and who approved it?

(d)

Provide a copy of the implementation plan.

According to your Clarification letter, "The protocol development, although not as rigorous as the journal publication process, nevertheless does subject NPS applied research projects to a significant degree of review intended to insure the quality of the research and the integrity of the findings." (a)

Describe the "protocol development" as applied to "Drakes Estero, A Sheltered Wilderness Estuary."

(b)

Provide copies (or results) ofthe "protocol development."

(c)

When were the protocols approved and who approved them?

According to the "Clarification" document cited above, at its conclusion, "The Point Reyes National Seashore Park News publication, "Drakes Estero - A Sheltered Wilderness Estuary, "for p;ample was reviewed by scientists from the U.S, Geological Survey and NPS. " (a)

IdentifY the "scientists" from the USGS who participated in the review.

(b)

At what point in the process did they initiate their review?

(c)

Provide copies oftheir review and/or their comments in whatever form they were provided.

(d)

IdentifY the "scientists" from the National Park Service in the same review.

(e)

When did this review occur?

(f)

Provide copies of their review and/or comments on the proposed research project in whatever form they were provided.

Did anyone else, outside ofthe NPS, other agencies and/or academia participate in the review and/or preparation of the Drakes Estero Report - at any time during the process? If so, please identify that individual or those individuals.

As you are aware, the NPS report, "Drakes Estero, A Sheltered Wilderness Estuary," is very important and we have spent considerable time and effort to fully understand it. Your responses to these questions assist us in that effort.

, ,"

"

Kevin Lunny

Nancy Lunny

To "Ben

"Kevin Lunny"
Becke~'



cc bee Subject FW: NPS Drakes Estero Report Reviewer Survey November 6, 2007

Dear Ben,

"OBoe has not received your response to the Peer-Review Survey, Drakes Estero, A Sheltered Wilderness Estuary. We ask that you take a few moments and respond." We thank you. Kevin and Nancy Lunny -----Original Message----From: Kevin Lunny [mailto:[email protected]] Sent: Tuesday, November 06, 2007 1:36 AM To: Ben Becker ([email protected]) Subject: NPS Drakes Estero Report Reviewer Survey - November 6, 2007 Dear Ben: Last July, NPS Regional Director, Jon Jarvis and PRNS Superintendent, Don Neubacher, announced, at a meeting called by Senator Feinstein that several scientists peer-reviewed the NPS Report, Drakes Estero, A Sheltered Wilderness Estuary. Regional Director Jarvis recently indicated that you were among those reviewers. So that we better understand the review, we ask that you take a few minutes to fill out the enclosed Survey on this NPS Report. The attached survey is computer based, and we recommend that you save the attachment to your hard drive, fill it out, then email it back to us as an attachment. If you would prefer to fill it out by hand and snail-mail it to us, you could do that as well. If you have any questions, or want additional information, please contact us at Drakes Bay Oyster Company at [email protected] or [email protected] OR (415) 669-1149. Our mailing address is 17171 Sir Francis Drake Boulevard, Inverness, CA 94937. Thank you.

Kevin Lunny

Nancy Lunny

~

NPS Drakes Estero Report Reviewer Survey· November 6, 2007.doc

United States Department ofthe NATIONAL PARK SERVICE .Pacific West Region 1111 Jackson Street, Suite 700 Oakland, California 94607-4807

IN REPLY REFER TO:

NOV 2 8 2!!87

Ll425 (PWROcDRD

()2.; '(Ob

Kevin and Nancy Lunny 17171 Sir Francis Drake Boulevard Inverness, CA 94937

~~~~;I~li~

Dear Kevin and Nancy Lunny: This letter is in response to your November 4, 2007 letter regarding Company and repairs to buildings. It is our preference to focus on a regarding a special use permit which would address repairs rather separate issue. To this end, we are sending under separate cover a draft of the special use permit for your consideration in advance of out meeting scheduled for December 3, 2007. Nevertheless, we are prepared to authorize minor repairs separately provided appropriate approvals are in place. As was previously stated in a June 19, 2007 letter to you, we are not opposed to allowing minor repairs to existing structures to occur once approval is received from the California Coastal Commission and any other relevant agencies. For the record, this June 19, 2007 letter also stated that we were prepared to apply the conditions in the Reservation of Use and Occupancy to the area located in the Stevens survey. We recently contacted the Coastal Commission staff, and they have informed us that either a Coastal Development Permit or a waiver still needs to be obtained from them before the repairs can be accomplished. If you have additional information regarding this issue, please contact us. As we stated in the above paragraph, we are prepared to authorize the repairs once you have the proper authorizations from relevant agencies. Finally, we want to reiterate our readiness to finalize negotiations for a special use permit, and we look forward to meeting with you on December 3, 2007. Sincerely,

___

C~) IJ,~/J~ /«ieorgeJ!fumbUll Deputy Regional Director, Pacific West Region Enclosure c:c:

jDon Neubacher, Superintendent, PORE . Suzanne Boyce-Carls"'F'~~ PRIOE®R:f=:t ~

INAMe:RICA~

United States Department of the Interior NATIONAL PARK SERVICE Pacific West Region

IIII Jackson Street, Suite 700 Oakland, California 94607-4807 IN REPLY REFER TO:

Ll425 (PWR-DRD)

Kevin and Nancy Lunny 17171 Sir Francis Drake Boulevard Inverness, CA 94937

Dear Kevin and Nancy Lunny: Thank you for taking the time to speak with us on November 20, 2007 regarding finalizing negotiations for a special use permit for use of the estuary and shoreline in . Drakes Estero. We are looking forward to meeting with you on December 3, 2007to continue our negotiations. As we discussed, please find enclosed a draft of the special use permit for your consideration. This permit includes a revised harbor seal protocol as well as a revised provision regarding the term of the permit: We look forward to meeting with you next Monday. Sincerely,

ct:~

Regional Director, Pacific West Region

cc:George Turnbull,PWR-DRD J Don Neubacher, PWR-PORE Suzanne Boyce-Carlson, SOL

Form 10-114

Rev.Jan,aO

Page lofl7

UNITED STATES DEPARTMENT OF THE INTERIOR National Park Service Special Use Permit Date Permit Reviewed Reviewed Reviewed Expires

Name of Use: Aquaculture

2007 20' 20 November 30,2012

Permit # MISC-8530-6000-8002 Type

Long Term Short Term

Park Code

No ..#

X Point Reyes National Seashore Name of Area

Drakes Bay Oyster Company 17171 Sir Francis Drake Blvd. Inverness, CA 94937 (415) 669-1149 is hereby authorized for a period ("Term") commencing on , 2007 ("Commencement Date") and terminating on November 30, 2012 ("Expiration Date") to use the following described land, improvements, and waters in the following area: the lands and improvements at Drakes Bay Estero at the former Johnson's Oyster Site consisting of approximately 1.1 acres ofland and improvements designated as the "SUP Area" on the map attached hereto as Exhibit B ("Drake's Estero Oysters - SUP & ROP") and the waters designated as the "SUP Area" on the map attached hereto as Exhibit A ("Drake's Estero Aquaculture & CDFG Leases: NPS Resources and SUP Area"). In addition, the Permitter intends to fence off some of the boundaries of the SUP Area shown on Exhibit B, and in the event of any conflict between Exhibit B and fencing provided by the Permitter, the fencing wiIl controL Collectively, the areas so designated shall be referred to as the "Premises." For the purpose(s) of: Use of the area designated as the "SUP Area" on the map attached hereto as Exhibit B for the purpose of processing shellfish, the interpretation of shellfish cultivation to the viSitmg public, and residential purposes reasonably incidental thereto. Use of the area designated as the "SUP Area" on the map attached hereto as Exhibit A for the purpose of shellfish cultivation. Collectively, the uses set forth in this paragraph shall be referred to as the "Permitted Uses." Authorizing legislation or other authority (RE - DO-53): 16 U.S.C. 1, la-I, 3 & 459c; the Reservation of Use and Occupancy. NEPA & NHPA Compliance: NEPA compliance pending PERFORMANCE BOND: Required Not Required X Required X Not Required LIABILITY INSURANCE:

Amount: Amount: As set forth in Article 15 of this Permit.

ISSUANCE of this Perrnitis subject to the terms, covenants, obligations, and reservations, expressed or implied herein and to the payment to the U.S. Dept. of the Interior, National Park Service of the sum of$2,800.00 per year. PERMITTEE: _ _ _ _ _--:c-_ _ _ _ _ _ _ _ _ _ _ _ _ _-::----:---,-_ _ _ _ _ _ _ _ _ __ Signature

Organization

Date

Authorizing Official:,_ _ _ _-.:c:-_ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _C'G"'e"'o"rg"e'-.T"-urn""''''b:'ug11------_,--_ __ Signature

Deputy RegionaJ Director

Date

Additional Authorizing Official:._ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ __

(IfRequired)

Signature

Title

Date

LIST OF EXHIBITS

EXHIBIT A:

Map - Drake's Estero Aquaculture & CDFG Leases: NPS Resources and SUP Area

EXHIBITB:

Map - Drake's Estero Oysters - SUP & Rap

EXHIBITC:

Drakes Estero Aquaculture and Harbor Seal Protection Protocol

CONDITIONS OF THIS PERMIT

1) DEFINITIONS As used in this Permit, the following terms shall have the following meanings: a)

"Agency" means any agency, department, commission, board, bureau, office or other governmental authority having jurisdiction.

b)

"Applicable Laws" includes, without limitation all present and future statutes, regulations, requirements, Environmental Requirements, guidelines, judgments, or orders of any Agency or judicial body, whether now existing or hereafter established, relating to or affecting the Premises or the use or occupancy of the Premises.

c)

"Commencement Date" is as defined on the Cover Page of this Permit.

d) "Cyclic Maintenance" means (i) the performance by Permittee of all repairs, maintenance, or replacement-in-kind necessary to maintain the Premises and the existing improvements thereon in good order, condition, and repair; (ii) housekeeping and routine and periodic work scheduled to mitigate wear and deterioration without materially altering the appearance of the Premises; (iii) the repair or replacement-in-kind of broken or worn-out elements, parts or surfaces so as to maintain the existing appearance of the Premises; and (iv) scheduled inspections of all building systems on the Premises. e) "Default" means Permittee's failure to keep and perform any of the Provisions of this Permit. f)

"Environmental Requirements" means, without limitation, all standards or requirements relating to the protection of human health or the environment such as: a.

standards or requirements pertaining to the reporting, permitting, management, monitoring, investigation or remediation of emissions, discharges, releases, or threatened emissions, releases or discharges of Hazardous Materials into the air, surface water, groundwater, or land;

b.

standards or requirements relating to the manufacture, handling, treatment, storage, disposal, or transport of Hazardous MaterialS; and

c.

standqrds or requirements pertaining to the health and safety of employees or the public.

g) "Expiration Date" is as defined on the Cover Page of this Permit. h) "Hazardous Materials" means, without limitation, any material or substance, whether solid, liquid, or gaseous in nature, a.

the presence of which requires reporting, permitting, management, monitoring, investigation or remediation under any Environmental Requirement;

b.

that is or becomes defined as a "hazardous waste," "extremely hazardous waste," "restricted hazardous waste," "hazardous substance," "pollutant," "discharge," "waste," "contaminant," or "toxic contaminant" under any Environmental Requirement, or any above-ground or underground storage containers for the foregoing;

c.

that is toxic, explosive, corrosive, flammable, infectious, radioactive, reactive, carcinogenic, mutagenic, or otherwise hazardous to human health of the environment and is or becomes regulated under any Environmental Requirement;

d.

that contains gasoline, diesel fuel or other petroleum hydrocarbons or derivatives or volatile organic compounds, or is an above-ground or underground storage container for same; Page 2

e.

that contains polychlorinated biphenyls (PCBs), asbestos, asbestos-containing materials or urea formaldehyde foam insulation; or

f.

that contains radon gas.

i)

"Hazardous Materials Occurrence" means any use, generation, treatment, keeping, storage, transport, release, disposal, migration, or discharge of any Hazardous Materials from, on, under or into the Premises or Point Reyes National Seashore ("Point Reyes") that causes any environm",n.tal contamination.

j)

"Improvements or Alterations" means any construdton that does not fall withilJ the definition of Cyclic Maintenance.

k)

"NPS" means the management officials in charge of the administration and operation of Point Reyes, including the Superintendent or his/her designee(s).

I)

"Park" means, without limitation, alilahds, waters and structures within the legislative boundaries of the Point Reyes National Seashore, all natural and cultural resources within such boundaries, and any other property within such boundaries belonging to Point Reyes. As appropriate given the context, this term also includes the visiting public and/or Point Reyes employees.

m) "Permit" means this instrument which contains those certain termination and revocation provisions as provided for herein. n)

"Permitted Uses" is as defined on the Cover Page of this Permit.

0) "Personal Property" means all furniture, fixtures, equipment, appliances and apparatus placed on the Premises that neither are attached to nor form a part of the Premises. Personal Property also includes any trailers: modular units, and/or temporary structures owned by Perrnitt<;>e.

2)

p)

"Point Reyes" means Point Reyes National Seashore.

q)

"Premises" is as defined on the Cover page of this Permit.

r)

"Provision" shall mean any term, agreement, covenant, condition or provision of this Permit or any combination of the foregoing.

s)

"ROP" or "Reservation of Use and Occupancy" means the Reservation of Use and Occupancy purchased by the Permittee in 2005. In 1972 the United States of America purchased Johnson Oyster Company's property, subject to a Reservation of Use and Occupancy on approximately 1.5 of those acres for a period of forty (40) years, This Reservation of Use and Occupancy expires on November 30, 2012.

t)

"SUP" means this Permit.

u)

"Term" is as defined on the Cover Page of this Permit.

v)

"Termination Date" means the Expiration Date or such earlier date as this Permit is terminated or revoked pursuant to any Provision of this Permit.

GENERAL CONDITIONS a)

The Permittee shall exercise this privilege subject to the supervision of the Superintendent, and shall comply with all Applicable Laws.

b)

Permit and Approvals - Except as otherwise provided in this Permit, Permittee shall be responsible for obtaining, at its sole cost and expense, all necessary permits, approvals or other authorizations relating to Permittee's use and occupancy of the Premises. Page 3

c)

Damages - The Permittee shall pay the United States for any damage resulting from this use which would not reasonably be inherent in the use which the Permittee is authorized to make of the land and areas described In this Permit.

d)

Benefit - Neither Members of, nor Delegates to Congress, or Resident Commissioners shall be admitted to any share or part of this Permit or derive, either directly or indirectly any pecuniary benefits to arise therefrom: Provided, however, that nothing herein contained shall be construed to extend to any incorporated company if the Permit be for the benefit of such corporatio(l.

e)

Assignment and Subletting - This Permit may not be transferred or assigned without the consent of the Permitter, in writing. Permittee shall not sublet the Premises or any part thereof or any property thereon, nor grant any interest, privilege or license whatsoever in connection with this Permit without the prior written approval of the Permitter.

f)

Revocation - This Permit may be terminated upon Default or at the discretion of the Permitter.

g) The Permittee is prohibited from giving false information; to do so will be considered a breach ofconditions and be grounds for revocation [Re: 36 CFR 2.32(4)] 3)

USE OF PREMISES a)

Permittee is authorized to use the Premises only for the Permitted Uses.

b)

Permittee shall not engage in any activity that may be dangerous or harmful to persons, property, or the Park; that constitutes or results in waste or unreasonable an'noyance (including, without limitation, signage and the Use of loudspeakers or sound or light apparatus that could disturb park visitors and wildlife outside the Premises); that in any manner causes or results in a nuisance; or that is of a nature that it involves a substantial hazard, such as the manufacture or use of explosives, chemicals or products that may explode.

c)

The Parties hereby acknowledge and agree that Permittee's covenant that the Premises shall be used as set forth in this Article 3 is material consideration for Permitter's agreement to enter into this Permit. The Parties further acknowledge and agree that any violation bf said covenant shall constitute a Default under this Permit and that Permitter may inspect the premises at any time.

.

d) ThiS Permit is subject to the right of the NPS to establish trails and other improvements and betterments over, upon, or through the Premises and further to the use by travelers and others of such .established or existing roads and trails. The Permittee understands that occasional park visitors are authorized to walk, use non-motorized watercraft, or hike in the various areas included in this Permit even though no··trails are formally established. e)

Permitter reserves the right for Permitter, its employees, contractors and agents to enter and to permit any Agency to enter upon the Premises for the purposes of inspection, inventory or whEm otherwise deemed appropriate by the Permitter for the protection of the interests of Permitter, including Permitter's interests in any natural or cultural resources located on, in or under the Premises.

f)

Permitter reserves the right at any time to close to travel any of its lands, to erect and maintain gates at any point thereon, to regulate or prevent traffic of any kind thereon, to prescribe the methods of use thereof, and to maintain complete dominion over the same; provided, however, that at an times during the Term, Permitter shall provide Permittee and Permittee's invitees with reasonable access to the Premises subject only to interruptions caused by necessary maintenance or administrative operations or by matters beyond Permitter's control.

g)

Permittee herebY waives any claim for damages for any injury, inconvenience to or interference with Permittee's use and occupancy of the Premises, any loss of occupancy or quiet enjoyment of the Premises, or any other loss occasioned by Permitter's exercise of its rights under this Article 3 except to the extent that the damages, expenses, claims or suits result from the willful misconduct or gross negligence of Permitter, its employees, contractors or agents; provided, further, that Permitter shall be liable only to the extent such claims are allowed Page 4

under the Federal Tort Claims Act. h)

Permittee's operations are to be set back on the shore a minimum of 50 feet from the mean high tide mark, excepting that area which is the subject of this Permit and that is described in the attached map (Exhibit B).

i)

While Permittee is permitted to use and operate motorized watercraft in Drakes Estero for the purpose of conducting daily business operations, no other use of Permittee's motorized watercraft is authorized. No motorized watercraft may enter the designated wilderness boundary (See "Existing Wilderness" on map attached hereto as Exhibit A). To protect water quality in the Estero .. ahy"a-agiti6n$1 or replacement boat motors obtained by Permittee must be four stroke motors.

j)

Due to a lack of adequate parking space and restroom facilities for the public, barbecuing is not permitted in the Special Use Permit Area; visitors may be directed to facilities located at Drakes Beach. Picnic tables will be provided by the NPS at the adjacent parking area.

k)

No discharge into the estuary is permitted. This prohibition includes any discharge from processing facilities. Notwithstanding the foregoing, discharge of oyster wash water from dock and from hatchery operations is allowed if authorized by relevant Agencies.

I)

In order to ensure public health and safety, no pets, including dogs and cats, shall be permitted in the Special Use Permit Area.

m) In order to ensure public health and safety,. Permittee shall allow all appropriate Federal, State and/ or County agencies; including the United States Department of Health and Human Services, the State of California Department of Health Services and Marin County Community Development Agency Environmental Health Services, to conduct inspections on a routine basis. 4)

SPECIAL PERMIT CONDITIONS a)

Based upon the findings of an independent science review and/or NEPA compliance, Permitter reserves its right to modify the provisions of this Article 4. F'$rmitter further reserves its right to incorporate new mitigation provisions based upon the findings of an independent science review.

i)

The maximum annual production limit for oysters, rock scallops and clams will be 700,000 pounds.

ii) No additional aquaculture racks and/or cultivation infrastructure will be constructed. Operation, repair, and maintenance of infrastructure currently being used for oyster cultivation is permitted. iii) Permittee and Permitter acknowledge the importance of eelgrass within the ecology of the estuary. Permittee will not place bags for shellfish production onto eelgrass.

iv) Within sixty (60) days following the signing of this interim Permit, Permittee will submit for National Park Service approval a boating operations plan, which will indicate dedicated navigation routes, chosen to minimize impacts to eelgrass beds when accessingaquacultureracks and/or cultivation equipment. v)

Permittee and Permitter acknowledge the importance of preventing the introduction of invasive species into the estuary. In order to control invasive species, Permittee will make every effort to ensuJe that no new species enter the estuary and to minimize the spread of invasive species as a result of Permittee's operations. Within sixty (60) days following the Signing of this interim Permit, Permittee will submit for National Park Service approval an invasive species mitigation plan that includes best management practices (BMP's).

vi) Permittee will not introduce species of shellfish beyond those described in the eXisting leases from the California Department of Fish and Game ("CDFG"). Permittee may seek to conform and/or modify these leases with the CDFG. Any modifications approved by CDFG will be considered by Permitter on a case-by- . case basis, and Permittee may not implement any such modifications without the prior written approval of the Permitter. Page 5

vii) Permittee must avoid disturbance to marine mammals and marine mammal haul-out sites. The Marine Mammal Protection Act, 16 U.S.C. 1361 et seq., includes a prohibition against any act of pursuit, torment or annoyance that has the potential to injure or disturb a marine mammal or marine mammal stock in the wild by causing disruption of behavioral patterns, including, but not limited to, migration, breathing, nursing, breeding, feeding, or sheltering. The National Oceanic and Atmospheric Administration (NOAA) recommends maintaining a distance of at least 100 yards to avoid disturbance to seals. Permittee will maintain a distance of at least 100 yards from seals throughout the year. Permitt!,r will monitor marine mammal populations in Drakes Estero. In addition, during th!,p'upping h"arbqr.sealdosure period, March 1-June 30, the designated wilderness area (outside of Permit area)'is.closedto all boats. Permltt~ewill follow "Drakes Estero Aquaculture and Harbor Seal Protection Protocol" attached hereto as Exhibit C. If required by CDHS, watercraft may use the Main Channel identified in Exhibit C during the pupping harbor seal closure period only to access CDHS's sentinel monitoring station for marine biotoxins. Boats shall be operated at low speed, near the eastern shore, to minimize chance. of disturbance to harbor seals. No other use of the Main Channel or any other channel is authorized during the pupping harbor seal closure period. viii) In order to avoid introduction of invasive-species to Drakes Estero only oyster "seed" and not whole oysters may be imported. Seed must be obtained from regions approved by Permitter. At issuance of this Permit Washington, Oregon, and California are exclusively approved regions for obtaining oyster seed. 5)

6)

ACCEPTANCE OF PREMISES a)

Prior to entering into this Permit, Permittee has made a thorough, independent examination of the Premises and all matters relevant to Permittee's decision to enter into this Permit, and Permittee is thoroughly familiar with all aspects of the Premises and is satisfied that they are in an acceptable condition and meet Permittee's needs.

b)

Permittee expressly agrees to use and occupy the Premises and all improvements thereon in their existing "AS IS" condition "WITH ALL FAULTS" and aCknowledges that in entering into this Permit, Permittee does not rely on, and Permitter does not make, any express or impliea representations or warranties as to any matters including, without limitation, the suitability of the soil or sUbsoil; any characteristics of the Premises or improvements thereon; the suitability of the Premises for the approved use; the economic feasibility of Permittee's use and occupancy of the Premises; title to the Premises; the presence of Hazardous Materials in, on, under or in the vicinity of the Premises; or any other matter. Permittee has satisfied itself as to such suitability and other pertinent matters by Permittee's own inquiries and tests into all matters relevant to determining whether to enter into this Permit and Permittee hereby accepts the Premises.

CONSTRUCTION OF IMPROVEMENTS OR ALTERATIONS a)

Permittee may only make those Improvements or.Alterations to the Premises that relate to Permittee's use of the Premises as specified in Article 3, "Use of the Premises."

b)

Permittee shall not undertake any Improvements or Alterations to the Premises (including installation of temporary equipment or facilities) without the prior written approval of Permitter.

c)

As a prerequisite to obtaining approval for Improvements or Alterations, Permittee, at Permittee's sole cost and expense, shall submit design plans and any other relevant data.for Permitter's approval.

d)

Construction of I mprovements or Alterations by Permittee shall be performed in accordance with all Applicable Laws, including but not limited to general planning, building, and environmental laws and approved design plans and shall be undertaken and completed at Permittee's sole cost and expense.

e)

Permittee shall, upon request, furnish Permitter with a true and correct copy of any contract, and any modification or amendment thereof, with Permittee's contractors, architects, or any other·consultants, engaged in connection with this Permit.

f)

Any Improvements or Alterations undertaken by Permittee shall be performed in a good and workmanlike manner Page 6

and with materials of a quality and standard acceptable to Permitter. Permittee shall also construct, install and maintain equipment and any construction facilities on the Premises in a safe and orderly manner.

7)

8)

9)

g)

Permittee shall not construct any Improvements or Alterations outside the boundaries of the Premises.

h)

Permitter in its discretion is entitled to have on the Premises at any time during the construction of Improvements or Alterations an inspector or representative who shall be entitled to observe all aspects of the construction on the Premises.

i)

All lumber utilized at the site will beprocess\ld incompliance with current lawl> and regulations regarding wood treatments. This includes lumber utilized in assembly and repair of aquaculture racks.

j)

As set forth in Article 17, title to any Improvements or Alterations to the Premises shall be and remain solely in the Permitter.

TREATMENT OF REFUSE a)

Refuse shall be promptly removed from within the boundaries of Point Reyes National Seashore and shall be disposed of in accordance with Applicable Laws.

b)

Permittee will make best efforts to removedebtis associated with aquaculture production operations including wood from racks, plastic spacers, unused shellfish bags, shellfish shells, and any other associated items.

PESTICIDE AND HERBICfDE USE a)

The National Park Service utilizes Integrated Pest Management ("IPM") to treat pest and vegetation problems. The goal of IPM is to use the least-toxic, effective methods of controlling pests and vegetation. Except for normal household purposes, Permittee shall not use any pesticides that do not comply with the IPMprogram. To this end, Permittee shall submit in writing to Permitter, a request for the use of pesticide(s) or herbicide(s) and shall not use any pesticide(s) or herbicide(s) until Permittee has received an express written authorization therefor from Permitter.

b)

Permittee shall manage, treat,. generate, handle, store and dispose of all pesticides and herbicides in accordance with Applicable Laws, including reporting reqUirements.

FIRE PREVENTION AND SUPPRESION a)

Permittee and its employees, agents, and contractors shall, in Permittee's use and occupancy of the Premises, take all reasonable precautions to. prevent forest, brush, grass, and structural fires and shall, if safety permits, assist the Permitter in extinguishing such fires on the Premises.

10) EXCAVATION. SITE AND GROUND DISTURBANCE a)

Permittee shall not cut, remove or alter any timber or any other landscape feature; conduct any mining or drilling operations; remove any sand, gravel or similar substances from the ground or watercourse; commit waste of any kind; or in any manner change the contour or condition of the Premises without the prior written approval of the Permitter. Except in emergencies, Permittee. shall submit requests to conduct such activities.in writing to the Permitter not less than sixty (60) days in advance of the proposed commencement date of any such activities.

b)

If approval of activities referenced above in Section10(a) is granted, Permittee shall abide by all the terms and conditions of the approval, including provisions pertaining to archaeological resources.

c)

No soil disturbance of any kind may occur in the vicinity of a known archeological site.

11) NON POINT SOURCE POLLUTION Page 7

a)

The Permittee shall comply with all Applicable Laws regarding non-point source pollution (including the protection of beneficial uses of waters as designated by the State of California). Further, Permittee's use and occupancy of the Premises shall be designed to minimize, to the grE!atest extent feasible, non-point source pollution within National Park Service boundaries or on adjacent lands.

b)

As set forth in Section 3(m) of this Permit, no discharge into the estuary is permitted. This prohibition includes any discharge from processing facilities.

12) TREE AND VEGETATION REMOVAL a)

The Permittee may not remove, tree(s) or vegetation unless expressly approveq in writing by the Permitter. The Permittee shall provide specific plans to the Permitter for desired tree(s) andNegetation removal during the annual meeting or in writing during the Term of this Permit.

b)

Removal of non-native invasive vegetation such as non-native thistles, trimming and vegetation removal around structures is permissible,

13) WILDLIFE PROTECTION a) Wildlife is an integral part of Point Reyes National Seashore and must be managed in accordance with all Applicable Laws, including but not limited to NPS legislation, the Code of Federal Regulations, and NPS policies, including but not limited to NPS Management POlicies 2006, as such may be amended. b)

Permittee shall not engage in any activity that purposely causes harm or destroys 'any wildlife. Conversely, Permittee shall not engage in any. activity that purposely supports or increases populations of non-native or invasive animal specie,s.

c)

As set forth in Section 30) of this Permit, Permittee must avoid disturbance to marine mammals and marine mammal haul'out sites.

d)

On a case by case basis, the Permitter will evaluate incidences of depredation and choose a course of action. The nature of the course of action will be determined by the extent and frequency of the damage, the wildlife species, and park-wide management objectives.

14) HAZARDOUS MATERIALS; ENVIRONMENTAL HEALTH AND SAFETY a)

In connection with this Permit, Permittee, its officers, agents, employees and contractors, shall not use, generate, sell, treat, keep, or store any Hazardous Materials on, about, under or into the premises or elsewhere in Point Reyes except in compliance with all Applicable Laws and as approved in writing by Permitter. However, Permittee shall not be obligated to obtain Permitter's approval to use,. keep; or generate Hazardous Materials as necessary for the normal operation or maintenance of vehicles, Permittee agrees to be responsible for timely acquisition of any permit(s) required for its Hazardous Materials-related activities, and shall provide to the Permitter, upon request, inventories of all such Hazardous Materials and any supporting documentation, including but not limited to material safety data sheets, uniform waste manifest forms,. and/or any other pertinent permits.

b)

Permittee, its officers, agents, employees and contraCtors, shall not release, discharge or dispose of any Hazardous Materials' from, on, about, under or into the Premises or elsewhere in Point Reyes.

c)

If Permittee knows of or reasonably suspects or receives notice or other communication concerning any past, ongoing, or potential violation of Environmental Requirements in connection with the Premises ot Permittee's activities, Permittee shall immediately inform Permitter and shall provide copies of any relevant documents to Permitter. Receipt of such information and documentation shall not be deemed to create any obligation on the part of the Permitter to defend or otherwise respond to any such notification,.

d) If any HazardOUS Materials Occurrence is caused by, arises from, or is exacerbated by the activities authorized under this Permit or by the use of the Premises by Permittee, its officers, agents, employees or contractors, Page 8

Permittee shall promptly take all actions at its sole cost and expense as are required to comply with Applicable Laws and to allow the Premises and any other affected property to be used free of any use restriction that could be· imposed under Applicable Laws; provided that, except in cases of emergency, Permitter's approval of such actions shall first be obtained. e) The Permitter shall have the right, but not the duty, at all reasonable times and, except in the case of emergency, following at least twenty-four (24) hours advance notice to Permittee, to enter and to permit any Agency, public or private utilities and other entities and persons to enter upon the Premises, as may be necessary as determined by the Permitter in its sole discretion, to con9uct inspectiortSofth~ Premises, including invasive tests, to determine whether Permittee is complying w~hall Applicable LaWs and toinvestigale.the existence of any Hazardous Materials in, on or under the Premises. the Permitter shall have the riglif, but not the duty, to retain independent professional consultants to enter the Premises to conduct such inspections and to review any report prepared by or for Permittee concerning such compliance. Upon Permittee's request, the Permitter will make available to Permittee copies of all final reports and written data obtained by the Permitter from such tests and investigations. Permittee shall have no claim for any injury or inconvenience to or interference with Permittee's use of the Premises or any other loss occasioned by inspections under this Section 14(e).

f)

Should Permittee, its officers, agents, employees or contractors, fail to perform or observe any of the obligations or agreements pertaining to Hazardous Materials.or Environmental Requirements for a period of thirty (30) days (or such longer period of time as is reasonably required) after notice, then Permitter shall have the right, but not the duty, without limitation of any other ri(Jhts of Permitter under this Permit, personally or through its agents, consultants or contractors to enter the Premises and perform the same. Permittee agrees to reimburse Permitter for the costs thereof and to indemnify Permitter as provided for in this Permit.

g)

Permittee understands and acknowledges that the Premises may contain asbestos and lead-based paint. If Permittee performs any Improvements or Alterations, Permittee shall comply with all Environmental Requirements related to asbestos and lead-based paint and shall solely bear all costs associated therewith. Nothing in this Permit shall be construed to require Permittee to remove asbestos or lead-based paint unless Environmental Requirements require such removal.

h)

Permittee shall indemnify, defend, save and hold Permitter, its employees, successors, agents and assigns, harmless from and against, and reimburse Permitter for, any and all claims, demands, damages, injuries, losses, penalties, fines, costs, liabilities, causes of action, judgments, and expenses, including without limitation, consultant fees and expert fees, that arise during or after the Term as a result of any violation of any Environmental Requirement in connection with this Permit or any Hazardous Materials Occurrence in connection with this Permit.

i)

The provisions of this Article 14 shall survive any termination or revocation of this Permit. Article 15 (Insurance) of this Permit shall not limit in any way Permittee's or Permitter's obligations under this Article 14.

15) INSURANCE a)

Permittee shall purchase the types and amounts of insurance described herein before the Commencement Date of this Permit unless otherwise specified. At the time such insurance coverage is purchased, Permittee shall provide Permitter with a statement of Permittee insurance describing the insurance coverage in effect and a Certificate of Insurance covering each policy in effect as evidence of compliance with this Permit. Permittee shall also provide the Permitter thirty (30) days advance written notice of any material change in the Permittee's insurance program hereunder. Permitter shall not be responsible for any omissions or inadequacies in insurance coverage or amounts in the event such coverage or amounts prove to be inadequate or otherwise insufficient for any reason whatsoever.

b)

From time to time, as conditions in the insurance industry warrant, the Permitter reserves the right to revise the minimum insurance limits required in this Permit.

c)

All insurance policies required by this Permit shall specify that the insurance company shall have no right of subrogation against the United States, except for claims arising solely from the negligence of the United States or Page 9

its employees, or shall provide that the United States is named as an additional insured. d)

All insurance policies required herein shall contain a loss payable clause approved by the Permitter which requires insurance proceeds to be paid directly to the Permittee without requJring endorsement by the United States. Insurance proceeds covering any loss of the Premises but not used to replace such losses shall be promptly paid by Permittee to Permitter. The use of insurance proceeds for the repair, restoration or replacement of the Premises shall not give any ownership interest therein to Permittee.

e)

Property Insurance: Ata minimum, the Permittee shall bll requfred-\o purchase Basic Form Actual Cash Value (replacement cost less depreciation)·ihSurance coverage for all residence.6nthe Premises. Within thirty days of issuance of the Permit, the Permi(tee shall submit a report from a reputable .insurance company which provides a full range of options for insurance coverage on all nonresidential structures on the Premises. Within thirty days of receipt of this· report, the Permitter, in its sale discretion, will review and specify the type and level of insurance coverage which shall be required. The Permitter will provide the Permittee written notification of insurance requirements and the Permittee shall be required to have the specified level(s) of insurance in place within thirty days of such notification. The cost of the insurance will be deducted from the appraised fair market value for the Premises; this adjustment and the insurance requirements will be addressed in an amendment to the Permit. Permittee shall, in the event of damage or destniction in whole or in part to the Premises, use all proceeds from the above described insurance policies toorepair, restore, replace or remove those buildings, struCtures, equipment, furnishings,. betterments or improvements determined by the Permitter, in Permitter's sole discretion, to be necessary to satisfactorily discharge the Permittee's obligations under this Permit.

f)

Public Liability: The Permittee shall provide Comprehensive General Liability insurance against claims arising from or associated with Permittee's use and occupancy of the Premises. Such insurance shall be in the amount commensurate with the degree of risk and the scope and size of such use and occupancy, but in any event, the limits of such insurance shall not be less than.$1 ,000,000.00 per occurrence covering both bodily injury and property damage. If claims reduce available insurance below the required per occurrence limits, the Permittee shall obtain additional insurance to restore the required limits. An umbrella or excess liability policy, in addition to a Comprehensive General Liability Policy, may be used to achieve the required limits.

g)

Permittee shall also obtain the following additional coverage: i)

Automobile Liability - To cover all owned, non-owned, and hired vehicles in the amount of $300,000.00.

Ii)

Workers' Compensation - The amount shall be in accordance with that which is required by the State of California. '

16) INDEMNITY a)

In addition to the indemnification contained in Article 14, Permittee shall indemnify, defend, save and hold Permitter, its employees, successors,agents and assigns, harmless from and against, and reimburse Permitter for, any and all ciaims, demands, damages, injuries, losses, penalties, fines, costs, liabilities, causes of action, judgments and expenses and the like incurred in connection with or arising in any way out of this Permit; the use or occupancy of the Premises by Permittee or its· officers, agents, employees, or contractors; the design, construction, maintenance, or condition of any Improvements or Alterations; or any accident or occurrence on the Premises or elsewhere arising out of the use or occupancy of the Premises by Permittee or its officers, agents, employees, or contractors. Permittee's obligations hereunder shall include, but not be limited to, the burden and expense of defending all claims, suits and administrative proceedings (with counsel reasonably approved by Permitter), even if such claims, suits or proceedings are· groundless, false or fraudulent, and conducting all negotiations of any description, and paying and discharging, when and as the same become due, any and all judgments, penalties or other sums due against the United States.

b)

Permitter agrees to cooperate, to the extent allowed by law, in the submission of claims pursuant to the Federal Tort Claims Act against the United States by third parties for personal injuries or property damage resulting from the negligent act or omission of any employee of the United States in the course of his or her employment. Page 10

c)

This Article 16 shall survive any termination or revocation of this Permit. The provisions of Article 15 (Insurance) of this Permit shall not limit in any way Permittee's obligations under this Article 16.

17) PROPERTY INTEREST a) This Permit shall vest in Permittee no property interest in the Premises or in the improvements thereon. Hie to real property and improvements thereon, including any Improvements or Alterations constructed by Permittee, shall be and remain solely in Permitter. Permittee shall have no claim for any compensation or damages for the Premises, the improvements thereon, or any.lmproVements orAlter"tions constructed by the Permittee. b)

Nothing in this Permit shall give or be deemed to give Permittee an independemt right to grant easements or other rights-of-way over, under, on, or through the Premises.

c)

Permitter hereby retains the sole and exclusive right to oil, gas, hydrocarbons, and other minerals (of whatsoever character) in, on, or under the Premises.

18) RENTS, TAXES AND ASSESSMENTS a) The annual rental rate for this Permit shall be established by Permitter and is set forth on the Cover Page of this Permit. b) The annual rent under this Permit is payable in advance on a semi-annual basis.' Therefore, Permittee hereby agrees to pay fifty percent of the annlJal rate on or before November with the remaining fifty percent payable on or before May of each year during the Term. c)

Permittee shall pay the proper Agency, when and as the same become due and payable, all t
d)

Rents due hereunder shall be paid without assertion of any counterclaim, setoff, deduction or defense and without abatement, suspension, deferment Or reduction.

19) CYCLIC MAINTENANCE a)

Permittee shall perform all Cyclic Maintenance in "ccordancewith the ProVisions of this Permit and at Permittee's sole cost and expense. Permittee is responsible·for the. maintenance of "II fences,. buildings, and other improvements upon the Premises. All improvements and facilities used and occllpied by Permittee shall at all times be protected and maintained in a safe, sanitary and sightly condition.

b) Specific maintenance requirements may be negotiated with Permittee each year as outlined in Article 21 (Annual Meeting). c)

Docks and Fences must be in good repair. Abandoned fences and oth.er decrepit improvements shall be removed from the Premises and shall be disposed of outside the Park or as directed by Permitter after review and approval by the NPS Historian.

d)

Lighting of the Premises shall be redesigned to protect and preserve the night sky/darkness and minimize light pollution in Drakes Estero.

e)

Parking areas shall be maintained in a safe condition and no new roads or truck trails shall be established without . prior written permission of the Permitter. The main entrance road will be maintained by the NPS.

f)

Existing water reservoirs shall be maintained in a safe and secure condition to prevent washouts and erosion and no new reservoirs shall be constructed or established without prior written approval of the Permitter.

g)

Permittee shall maintain the water, well, pump and all pipelines from the main line to the structures within the Page 11

Premises. Permittee shall replace or repair any damage or loss of the water system within the Premises. h)

Permittee shall be responsible for removing slash buildup around fences or other facilities within the Premises so as to prevent fire and egress hazards. Permittee shall also be responsible for removing litter and trash from the Premises.

20) COMPLIANCE WITH APPLICABLE LAWS; NEPA. NHPA a)

General Compliance; As provided for in this Permit, Permittee at its sole cost and expense shall promptly comply with all Applicable Laws. Permittee slmll immediately notify Permitter ofan)t notices received by or on behalf of Permittee regarding any alleged or actLial violation(s) of or non-compliance with Applicable Laws. Permittee shall, at its sole cost and expense, promptly remediate or correct any violation(s) of Applicable Laws.

b)

National Environmental Policy Act and National Historic Preservation Act Where activities undertaken by Permittee require the preparation of compliance documents pursuant to the National Environmental Policy Act ("NEPA") or the National Historic PreserVation Act ("NHPA") ("Compliance Activity"), Permittee shall supply all necessary information to Permitter and any Agency in a timely manner. If Permitter determines that the Compliance Activity is warranted, Permitter will prepare NEPA or NHPA documents as appropriate. Permittee shall not implement any aspect of the Compliance Activity until.all applicable NEPA and NHPA requirements have been met.

21) ANNUAL MEETING a)

The Parties shall meet annually each year during the Term of this permit for the purposes of discussing and resolving issues of mutual concern and ensuring that Permittee is complying with the Provisions of this Permit. Any proposed changes or modifications to this Permit which are required in order to meet National Park Service requirements or objectives shall be discussed and negotiated at the Annual Meeting. If National Park Service requirements or objectives require prompt attentibn, the date of the Annual Meeting may reasonably be changed by Permitter.

22) PROCEDURE IN CASE OF DEFAULT a) This Permit is made upon the express condition that if Permittee fails to keep and perform any of the Provisions of this Permit, this Permit shall become void at the option of Permitter, provided that Permitter shall first give Permittee thirty days written notice ("thirty day notificatio.n period") of Permitter's intention to revoke this Permit and regain possession of the Premises. The notice shall describe the specificDefault and shall state Permitter's intention to reenter the Premises and declare this Permit forfeited if such Default continues. Such notice shall be served in the manner provided in Article 29 of this Permit. b)

The parties agree to meet promptly within the thirty day notificationperiod to discuss the reasons for the notice and to try to resolve their differences.

c)

If Permittee does not cure the Default or present a reasonable plan therefor within the thirty (30) day period, then Permitter shall be entitled to the posseSSion of the Premises, and may enter into and upon the same or any part thereof and repossess the same and expel Permittee and those claiming through or under Permittee and remove their effects without being guilty of any manner of trespass and without any prejudice to any remedies that might otherwise be used for arrears of rent or preceding Default.

d) At the option of the Permitter, Permitter may, in lieu of voiding and terminating this Permit, assess a penalty of $50.00 per day for any failure by Permittee to keep and perform any of the Provisions of this Permit. In such case, Permittee shall be given notice in writing of a grace period (offrom one to thirty days) to remedy the situation before a penalty will be assessed. Payment of any penalty under this provision shall not excuse Permittee from curing the Default. This provision shall not be construed as preventing Permitter from issuing citations or initiating enforcement proceedings under Applicable Laws.

Page 12

23) SURRENDER AND VACATE THE PREMISES. RESTORATION A) On the Termination Date of this Permit, Permittee shall surrender and vacate the Premises, remove Permittee's Personal Property therefrom, and repair any damage resulting from such removal. Subject to the approval of the Permitter, Permittee shall also return the Premi.ses to as good order and condition (subject to ordinary wear and tear and damage that.is not caused directly or indirectly by Permittee) as that existing upon the Effective Date. b) All Permittee's Personal Property shall remain the property of Permittee. However, if after the Termination Date, Permittee shall fail satisfactorily to remov!' Permittee's Per$i:Jn?IProp~rty and so repair the Premises, then, at the Permitter's sole option, after notice to Permittee, Perrilitiee's Person'al Property, shall either become the property of the Permitter without compensation therefore, or the Permitter may cause it to be removed and the Premises to be repaired at the expense of Permittee, and no claim for damages against Permitter, its employees, agents or contractors shall be created or made on account of such removal or repair work. 24) LIMITATION ON EFFECT OF APPROVALS a) All rights of Permitter to review, comment upon, approve, inspect or take any other action with respect to the use and occupancy of the Premises by Permittee,or any other matter, are expressly for the benefit of Permitter and no other party. No review, comment, approval orinspection, right or exercise of any right to perform Permitter's obligations, or similar action required or permiited by, of, or to Permitter under this Permit, or actions or omissions of Permitter's employees, contractors, at other agents, or other circumstances shall give or be deemed to give Permitter any liability, responsibility or obligatiohfor, in connection with, or with respect to the operation of the Premises, nor shall any such approval, aciions; information or circumstances relieve or be deemed to relieve Permittee of its obligations and responsibilities for the use and occupancy of the Premises as set forth in this Permit. 25) WAIVER NOT CONTINUING a) The waiver of any Default, whether such waiver be expressed or implied, shall not be construed as a continuing waiver, or a wavier of or consent to any subsequent or prior breach of the same or any other provision of this Permit. No waiver of any Default shall affect or alter this Permit, but each and every ProVision of this Permit shall continue in full force and effect with respect to any other then existing or subsequent Default.

a)

Permittee shall have no power to do any act orto make any c6ntractthat may create or be the foundation for any lien, mortgage or other encumbrance upon the reversion, fee interest or other e&tate of the Permitter or of any interest of the Permitter in the Premises. If any such lien Shall at anytime be filed against the Premises or any portion thereof, Permittee shall cause the Permitter to be discharged from the lien.

27) HOLDING OVER a) This Permit shall terminate upon the Termination Date and any holding. over by Permittee after the Termination Date shall not constitute a renewal of this Permit or give Permittee any rights under this Permit or in or to the Premises. 28) NOTICES a)

Any notice or other communication required or permitted under this Permit shall be in writing and shall be delivered by hand or certified mail with return receipt requested. Notices and other communications shall be addressed as follows:

Page 13

If to Permitter: Superintendent Point Reyes National Seashore Point Reyes Station, CA 94956 If to Permittee: Mr. Kevin Lunny Drakes Bay Oyster Company 17171 Sir Francis Drake Inverness, CA 94937 29) NO PARTNERSHIP OR JOINT VENTURE a)

Permitter is not for any purpose a partner or joint venturer of Permittee in the development or operation of the Premises or in any business conducted on the Premises. Permitter shall not under any circumstances be responsible or obligated for any losses or liabilities of Permittee.

30) ANTI-DEFICIENCY ACT a)

Permittee and Permitter agree that nothing contained in this Permit shall be construed as binding Permitter to expend, in any fiscal year, any sum in excess ofthe appropriation made by Congress for that fiscal ye.ar in furtherance of th" subject matter of this Permit; or to involve Permitter in any contract or other obligation for the future expenditure of money in excess of such appropriations.

31) COMPLIANCE WITH EQUAL OPPORTUNITY LAWS a)

Permittee agrees that in undertaking all activities pursuant to this Permit, Permittee will comply with all Applicable Laws relating to non-discrimination.

32) ENTIRE AGREEMENT AND AMENDMENT a)

This instrument, together with the exhibits hereto, all of which are incorporated in this Permit by reference, constitutes the entire agreement between Permitter and Permittee with respect to th" subject matter of this Permit and supersedes all prior offers, negotiations, oral andwritten. ThisPermil may not.be amended or modified in any respect whatsoever except by an instrument in wrtting signed by Permitter and Permittee.

33) NO PAYMENTS BY PERMITTER a)

Under no circumstances or conditions, whether now existing or hereafter arising, and whether or not beyond the present contemplation of the Parties, shall Permitter be expected or required to make any payment of any kind whatsoever with respect to the Premises or be under any obligation or liability except as expressly set forth in this Permit.

34) NO THIRD PARTY BENEFICIARIES a)

Except as expressly set forth in this Permit, this Permit shall not be deemed to confer upon any person or entity, other than the parties to this Permit as expressly set forth in this Permit, any third party beneficiary status, any right to enforce any Provision of this Permit, or any other right or interest.

35) NO PREFERENTIAL RENEWAL AND RELOCATION ASSISTANCE a)

Permittee hereby agrees that Permittee is not a concessioner and that the provisions of law regarding National Park Service concessionaires do not apply to Permittee. No rights shall be acquired by virtue of this Permit entitling Permittee to claim benefits under the Uniform Relocation Assistance and Real Property Acquisition Page 14

Policies Act of 1970, Public Law 91-646. 36) SEVERABILITY a)

In case anyone or more of the provisions of this Permit shall for any reason be held to be invalid, illegal or unenforceable in any respect, such invalidity, illegality or unenforceability shall not affect any other provision of this Permit, and this Permit shall be construed as if such invalid, illegal or unenforceable provisions had not been contained in this Permit.

37) EXHIBITS a)

Each of the exhibits referenced in this Permit is attached hereto and incorporated herein.

38) TIME OF THE ESSENCE a) Time is hereby expressly declared to b.e of the essence of this Permit and of each and every Provision of this Permit. 39) HEADINGS a)

Article, Section and Subsection headings in this Permit are for convenience only and are not to be construed as a part of this Permit or in any way' limiting or amplifying the Provisions of this Permit.

40) PERMIT CONSTRUED AS A WHOLE a)

The language in all parts of this Permit shall in all cases be construed as a whole according to its fair meaning and not strictly for or against either Permitter or Permittee. The Parties acknowledge that each party and its counsel have reviewed this Permit and participated in its drafting and therefore that the rule of construction that any. ambiguities are to be resolved against the draftihg party shall not be employed or applied in the interpretation of this Permit.

41) MEANING OF TERMS a) Whenever the context so requires, the neuter gender shall include the masculine and the feminine, and the singular shall include the plural and vice vers<;l. 42) FEDERAL LAW a) The laws of the United States shall govern the validity, construction and effect of this Permit.

Page 15

Permit Type _ROP .SUP

-o~~ Aquaculture Lease/SUP Area

L:2SJ Potential Wilderness

E2SJ Existing Wilderness

Oyster Racks - - Active - - Dilapidated

""",,,===:::::;1

0.5 Miles

EXHIBIT B Map - Drake's Estero Oysters - SUP & ROP

National Park Service

Point Reyes National Seashore Marin County, CA

Permit Type DROP - 1.5 acres

100 ___50==:::. __150 -===,200Feet

ID SUP -1.1 acres

EXHIBITC Drakes Estero Aquaculture and Harbor Seal Protection Protocol

Drakes Estero Aquaculture and Harbor Seal Protection Protocol

The following items are mutually agreed to for protection of harbor seals in and adjacent to the Harbor Seal Haul-Out Zones identified in the Map entitled, "Drake's Estero Aquaculture & Seal Protection Zones," attached hereto and incorporated herein by reference ("Protocol Map"): I. During the breeding season, March 1 through June 30, the "Main Channel" and "Lateral Channel" of Drakes Estero will be closed to boat traffic. a The channels and other areas discussed in this Protocol are identified on the Protocol Map. 2. During the breeding season, Permittee boats may use the "West Channel" at low speed while maintaining a distance of at least 200 yards from seals. During the breeding season, Permittee may maintain bags in the area labeled on the Protocol Map as "Breeding Season Area," provided that Permittee boats and personnel maintain a distance of at least 200 yards from seals. 3. During the remainder of the year outside the breeding season, from July 1st to the end of February, Permittee may use the three channels and may maintain bags in the area labeled on Protocol Map as "Non-Breeding Season Area," provided that Permittee boats and personnel maintain a distance of at least 100 yards from seals. 4. Throughout the year, no motorized watercraft may enter the area labeled as "Existing Wilderness" on the Protocol Map. a The

dates March 1 and June 30 are based on the birthing dates of seals at haul out sites during the breeding season. Pregnant female seals usually arrive around a week before giving birth. The earliest dates of first pup observed in Drakes Estero over the past five years were March 3 and March 6. At Tomales Bay the earliest date in 2007 was 14 February.

National Park Service

Point Reyes National Seashore Marin County, CA

°

0,25

0,5 Miles

0,75

Potential Wilderness

::~ Existing Wilderness _

Harbor Seal Haulout Zone

Oyster Bag Zone

~ Breeding Season Area Non-Breeding Season Area

· :8]:4g$

.

Tril~t0tn09 P'O'R$

Response to Drakes Bay Oyster Company October 23, 2007 Letter 1. Whyis the map undated, unnumbered and without any GIS or other appropriate designation. 2. When-what day-was the map created? 3. Please provide the documentation requesting the new map be created and documentation showing which day it was created. 4. Who ordered the map to be created?

.

PDF map was created at Point Reyes National Seashore as an insert to the Trip Reports dated April 13 and 26,2007. Trip Reports and electronic files were dated. See #3 below. No documents exist. However, the document PDF files were created on April 27, 2007.

The map as an insert was created to illustrate the location of aquaculture areas and seal areas in Drakes Estero. The map was created by PRNS staff. S. W1l0 drew the lines or ordered the lines to be PRNS staff drew the line on the map based on drawn that depict the seal haul out pupping current harbor seal population and site area? info=ation. 6. The lines depicting the haul out area are PRNS staff update maps as info=ation is considerably different when compared to the 92 obtained as fluctuations occur in harbor seal pupping and haul out locations. NMFS-NPS Agreement or a map provided by Sarah Allen shortly after we took over the oyster farm. Why has the map changed? No fo=al document exists. The change was 7. Provide the documentation-reports, documents, memorandum, other info=ation- made based on field observations and expert which justifies the haul out boundary changes opmlOn. on tlus new map. 8. Presumably, there is new science which No fo=al document exists. The change was justifies this expanded haul out area. Please made based on field observations and expert .. provide a full and complete documentation of opmlOn. the new science? 9. Why was the new map created in the middle The map was created to illustrate conditions at the time the field observations where made in of a pupping season? the spring of2007. 10. This map this "aquaculture" map-was not This map was created as an insert to Trip provided to us-your leasee. Why not? Reports and was released as part of the Trip Reports. See #1 and #12 for further info=ation. 11. This new map was not provided to The NPS did not send the map to California California Department of Fish and Game, the Department ofFish and Game because the main purpose of the map was to illustrate the agency which manages the lease. Why not? , info=ation in the Trip Reports. 12, To whom did you provide copies of this There is no listing of individuals or agencies map? Federal agencies? State agencies? Local that exists regarding whom was given copies of government? Non-profits or NGOs? the map. The map was created as an insert to Trip Reports and was released as part of the Individuals? Provide names, affiliations, and Trip Reports. The Trip Reports were released contact info=ation. to anyone requesting them under a Freedom of

13. To whom did you provide copies of the April 13 and/or April 26 Trip Reports which contain this map? Provide names, affiliations, contact information.

Information Act (FOIA) Request and to anyone requesting the information. There is no listing of individuals or agencies that exists regarding whom was given copies of the Trips Reports. The Trip Reports were released to anyone requesting them under a FOIA Request and to anyone requesting the information.

Trip Report Drakes Estero 4/13/07 3:45-5:00 PM Sarah Allen,. Science Advisor I conducted a field survey of Drakes Estero on Friday during the afternoon low tide to count harbor seals and to determine the 'distribution and number of oyster bags on the seal haul out sites. I arrived at 3:40 PM and met a volunteer who surveys harbor seals who had been present since I :45 PM. She stated that she had observed 2 people in a boat tending oyster bags at the OB sand bar (see map) at around 2:30 PM. There were no seals present on the OB sand bar and the number at DEN was 133 with 21 pups, and the total count for the estero was 525, including 46 pups when she counted the seals at 2:20-30 PM. When I conducted the survey at 4 PM, there were 10 seals present and 2 pups at the OB sandbar and 117 seals and 54 pups on UEN sand bar, a 157% increase in seals on the UEN sandbar. These two sites have historically had the higher numbers offemales with pups likely because the pups are more protected from strong currents and the water is warmer in the middle of the estero. The total count for the estero was 618 including 88 pups, a 120% increase in pups after the boat left, even though it was late in the day. Seal numbers are highest mid day to mid-afternoon, depending on the tide level. The tide was low enough for the.seals to haul out at 1:00PM. For comparison of numbers on OB, in 2005 on Apd112, there were 105 seals and 62 pups, and in 2004 on April 11, there were 169, seals and 36 pups. I observed several rows of bags on both the OB and DEN sandbars where the seals haul out. Because of distance, I could not get an accurate count of bags, but the number of rows was around 20. The bags were adjacent to and directly on the haul put sites where the seals historically have hauled out in the past at OB and UEN (see map).

Trip Report Drakes. Estero 4/26/07 3:45-5:00 PM Sarah Allen, Science Advisor Iconducted a field survey of Drakes Estero on Thursday during the afternoon low tide to count harbor seals for the peak pupping season count. I arrived at 3:45 PM and began counting the seals at A and Al sandbars. At 3:50 PM 1 noted a white boat (@20 ft long) with outboard motor and two people aboard in the east end oftheOB seal haul out site. The boatwas fowled in eelgrass and the operators were poling through the eelgrass bed. Once halfway along the channel going west, they used the engine again. I did not s.ee the number of seals present before the boat was there; however there were only 5 (2 pups) when I began surveying and I saw seal heads in the water. There were seal drag marks on the sand bar indicating other seals may have been present and several fresh wet seals were hauling out on UEN, an adjacent sand bar. Also on previous day 4/25, a volunteer counted 21 (8 pups) on the OB haul out. When the boat went by the seals at 3:55 PM, all flushed into the water except one lone seal. Seals on UEN raised their heads but I did not see any enter the water. The boat continued west along the channel and flushed around 120 Black Brant that were in the eelgrass beds in the channel. The boat then landed at around 4:10 PM about 2/3 of the way along the channel going west on the OB channel on the north west side where many oyster bags are located. Two men got off the boat, one taller in a green slicker and another in yellow slicker pants. They remained on the site until around 4:38 OM. During this time, they cheCked bags and added around 30 more bags onto the sandbar on the north west side of the sand bar and closer to the seals. During the interim time, 6 (2) seals hauled out at OB. When the boat proceeded back down the.chanriel going east towards the seals at 4:55 PM, 5 seals flushed into the water included 2 mother-pup pairs at OB, another 3 mother pup pairs flushed at UEN sand bar, and around 75 seals alerted at UEN but did not enter the water. Additionally, around 200 black brant were flushed that were in the eelgrass beds in the channel after previously being flushed by the boat. At 4:58PM, the boat then proceeded up into Home Bay. I tenninated the survey at 5:00 PM. A total of around 90.seals including around 50 pups were disturbed by the boat, and of these, I observed 14 seals including 7 pups directly flushed into the water. From previous research, we know that females with pups are more disturbed than adult males or immature seals. Additionally, around 320 black brant were flushed while in eelgrass beds. During surveys ofthe estero,I again observed several rows of bags on both the OB and UEN sandbars where the seals haul out. Because this is the peak pupping season, mothers with pups are hauling out all over UEN, including near where the oyster bags are

located. There also appeared to be more bags on UEN, in addition to the bags added to OB today. Again, the bags were adjacent to and directly on the haul out sites where the seals historically hauled out in the past three decades of surveys that I have conducted .. Map of Drakes Estero -red circle indicates where seals and Black Brant were disturbed.

"Kevin Lunny"

11/16/2007 10:33 AM

To cc "Zachary Walton" bcc Subject RE: Proposed SUP Meeting

Thank you, Jon.

Is 2:00PM OK? Would you be willing to initiate a conference call?

I will be at (b) (6) Zack will be at 415-856-7076 Thank you, Kevin -----Original Message----From: Jon [email protected] [mailto:Jon [email protected] Sent: Friday, November 16, 2007 9:07-AM To: Kevin Lunny Cc: George Turnbull Subject: Re: Proposed SUP Meeting Sounds good. I will calIon tuesday. We had computer problems nationwide.

Sorry about the message issue.

Jon Sent from my BlackBerry Wireless Handbeld Jonathan B. Jarvis Regional Director Pacific West Region 510-817-1304 Oakland 206-220-4010 Seattle

Original Message ----From: II Kevin Lunny" '[[email protected] com) Sent: 11/16/2007 06:12 AM PST To: Jon Jarvis Cc: "Zachary Walton" Subject: FW: Proposed SUP Meeting

Jon, My last email to your address was returned. \ Kevin

-----Original Message----From: Kevin Lunny [mailto:[email protected]] Sent: Friday, November 16, 2007 5:43 AM To: Jon [email protected] Cc: Zachary Walton Subject: RE: Proposed SUP Meeting

We can be available any time after 1:00PM on Tuesday. Please feel free to pick a time that is convenient for you. Zack Walton will also be on the call. Thank you, Kevin -----original Message----From: Jon [email protected] [mailto:Jon [email protected]] Sent: Thursday, November 15, 2007 3:23 PM To: Kevin Lunny

Subject: RE: Proposed SUP Meeting

Kevin: Sorry I have been on travel. would be a good time to talk? Jonathan B. Jarvis Regional Director Pacific West Region 510-817-1304 Oakland

I left a voice mail today. When

United States Department of the Interior NATIONAL PARK SERVICE 1849 C Street, N.W. Washington, D.C. 20240

(0001)

fIlOV 1 32DD7 Mr. Kevin Lunny Drakes Bay Oyster Company 17171 Sir Francis Drake Boulevard Inverness, California 94937 Dear Mr. Lunny: Thank you for your letter dated October 5, 2007, which transmitted correspondence you sent to Congresswoman Lynn Woolsey. I apologize for the delay in responding to you. Your letter was not received by the National Park Service until October 18, 2007. As you may know, Senator Feinstein wrote to me regarding the follow-up to the meeting held in Olema in July. I recently responded to her letter and am including a copy of my response for your information. I assure you that I am committed to the National Park Service following through as was agreed to in Olema. As my letter to Senator Feinstein indicates, we are not seeking new scientific reviews, but rather, an independent review of what has already been done. , Thank you for your letter. I am copying Regional Director Jarvis as I have assigned him responsibility for managing this issue. He remains willing to meet with you at any time to resolve the remaining issues associated with the special use permit. Sincerely, .

Mary Director

Attachment

cc: Jon Jarvis, PWR

IIKevin Lunnyll

To cc bcc

11109/200703:11 PM

Subject RE: Proposed SUP Meeting

,.~=~~f~~.fF:=~:~iJ~i~~!~~~~~~~~~;~2A~~~1~~9~.fq~a(q~~,. Jon,

I would be happy to talk on the phone. As you know, we1re anxious to get the SUP completed as soon as possible. I am available anytime on Monday except lunch time, anytime Tuesday afternoon and anytime Wednesday afternoon. I look forward to hearing from you, Kevin

-----Original Message----From: [email protected] [mailto:[email protected]] Sent: Tuesday, November 06 1 2007 5:34 PM To: Kevin Lunny Subject, Re, Proposed SUP Meeting Kevin: we never really got this call set up and I would like to try again. As I said in Olema, I would like to get you a permit and want to figure out how we can make that happen. A phone call is a start. I do not plan to have my attorney on the call, but you may yours if you feel that is necessary. please let me know when you are available.

Jon Sent from my BlackBerry Wireless Handheld Jonathan B. Jarvis Regional Director Pacific West Region 510-817-1304 Oakland 206-220-4010 Seattle (~-)

Original Message ----From: lIKevin Lunny" [[email protected]] Sent, 09/14/2007 09,24 AM MST To: Jon Jarvis Cc: IIDavid M. Weiman II i IIZachary'Walton" Subject: RE, Proposed SUP Meeting

Jon I Sorry for the delay in my response. I would be happy to talk with you as soon as we can arrange a time. I have to leave right now and will be in the field most of the day today .. Monday or Tuesday could work. I

would like to have Zachery Walton, our attorney, join us for the call. Feel free to recommened a time. Thank you, Kevin -----Original Message----From: [email protected] [mailto:[email protected]] Sent: Thursday, September 13, 2007 7: 22 AM To: Kevin Lunny Subject: Re: Proposed SUP Meeting Kevin: any chance I could call you to talk briefly? for anything other than to listen to my perspective.

I will not ask you Friday?

Sent from my BlackBerry Wireless Handheld Jonathan B. Jarvis Regional Director Pacific West Region 510-817-1304 Oakland 206-220-4010 Seattle

Original Message ----From: "Kevin LunnyTl [[email protected]] Sent: 09/12/2007 03:50 PM MST To: George Turnhull Cc: Jon Jarvisi Holly Bundock; "'Walker, Michael \ (Feinstein\) tTl ; "'Walton, Zachary R. tIl i "'David M. Weiman'" Subject: RE: Proposed SUP Meeting

Dear George, Thank you for the note. available.

I will. talk to our team to see if they are

Please include David weiman and Zachary Walton in all your correspondence with us regarding the Drakes Bay Oyster Farm and the G Ranch. Thank you, Kevin -----Original Message-~--From: George [email protected] [mailto:George [email protected]] Sent: Tuesday, September 11, 2007 6:06 PM To: Kevin Lunny Cc: Jon [email protected] Holly [email protected] Walkeri Michael (Feinstein) Subject: Proposed SUP Meeting

Hi Kevin, Thank you for taking the time to meet with us on the Drakes Bay Oyster SUP and other issues yesterday. After further conversations with the Regional Director and Senator Feinstein's staff, I would like to propose meeting with you and your team again next week to see if we can finalize an SUP within the next couple of weeks. Once again, we do still feel NEPA compliance is required, but we would offer you a two year interim permit. We would like to specifica~ly discuss mitigation measures that might be included in the SUP, all of which we have discussed in our earlier session. Mr. Michael Walker from Senator Feinstein's office has offered to participate in the meeting to help broker an agreement. I am available all day September 18 (Tuesday) and September 20 (Thursday). Hopefully you are available one or both of these days so we can continue to make progress towards an ~greement on an SUP. Let me know either way about your availability. Thanks again. George Turnbull



~ .....•..

"Kevin Lunny" 11106/200701 :36 AM

To "Ben Becke~' cc bcc Subject NPS Drakes Estero Report Reviewer Survey - November 6,

2007

Dear Ben: Last July, NPS Regional Director, Jon Jarvis and PRNS Superintendent, Don Neubacher, announced, at a meeting called by Senator Feinstein that several scientists peer-reviewed the NPS Report, Drakes Estero, A Sheltered Wilderness Estuary. Regional Director Jarvis recently indicated that you were among those reviewers. So that we better understand the review, we ask that you take a few minutes to fill out the enclosed Survey on this NPS Report. The attached survey is computer based, and we recommend that you save the attachment to your hard drive, fill it out, then email it back to us as an attachment. If you would prefer to fill it out by hand and snail-mail it to us, you could do that as well. If you have any questions, or want additional information, please contact us at Drakes Bay Oyster Company at [email protected] or [email protected] OR (415) 669-1149. Our mailing address is 17171 Sir Francis Drake Boulevard, Inverness, CA 94937. Thank you.

Kevin Lunny

Nancy Lunny

~

NPS Drakes Estero Report Reviewer Survey· November 6. 2007.doc

United States Department of the In~~ri(jr''''""' NATIONAL PARK SERVICE Pacific West Region 1111 Jackson Street, Suite 700 Oakland, California 94607-4807 '

IN REPLY REFER TO:

A7221 (PWR-C)

NOV ()

I)

200]

Mr. Kevin Lunny 17171 Sir Francis Drake Boulevard Inverness, California 94937 Dear Mr. Lunny:

fOlt~llb~~1~rh~;;:=1

I have received your letter to Congresswoman Woolsey which asks questions concerning Drakes Estero,' A Sheltered Wilderness Estuary, I have spoken with the staff of Congresswoman Woolsey, and we agree it is most expeditious to reply directly to you,

As you know, the document known as Drakes Estero.' A Sheltered Wilderness Estuary ("Park News Document") was one of the subjects of the July 21, 2007, meeting we both attended, We discussed the questions you include in your letter on peer review and the postings of the document on the NPS website at the July meeting. You might recall the conversation between myself, Dr. Corey Goodman, and Mr. David Weiman before the full group in attendance. As a way to move forward, the NPS agreed at this meeting to remove the Park News Document from its website and arrange for an independent scientific review at NPS expense. The NPS has followed through on these commitments. The NPS removed the Park News Document from its website the next business day, and the NPS has submitted a proposal to the National Academy of Sciences for an independent review. Your letter now indicates that you believe you cannot move forward with Special Use Permit negotiations until the NPS provides answers to a detailed set of questions regarding the Park News Document. We are very interested in moving forward to complete the Special Use Permit negotiations. This is why I recently wrote to you following the last negotiation meeting to assure you that the NPS has every intention of allowing your operation to continue until November of 2012, under the terms of the Reservation of Use and Occupancy and in compliance with a valid special use permit. Because we would like to move forward, we are providing brief answers to your questions in a table format like that attached to your letter and enclosures. We are doing so even though the Freedom ofInformation Act ("FOlA") does not require agencies to answer questions or to create documents in response to requests. By providing this information, the NPS has not waived its ability to invoke applicable FOIA exemptions for similar or related information in the future.

2 Your letter to Congresswoman Woolsey indicates that lacking an understanding of our working process, you are unable to meet with us. We trust that by providing you with these answers about our process on information collection and delivery, you will be able to finalize your pending NPS permit. As you know, my Deputy Regional Director George Turnbull and our Solicitor, Suzanne Boyce-Carlson, are prepared to meet with you as soon as possible to complete negotiations on the much needed Special Use Permit for the Drakes Estero. Sincerely,

Regional Director, Pacific West Region Enclosures cc: Senator Dianne Feinstein Congresswoman Lynn Woolsey

Drakes Bay Oyster Company Requested Information Drakes Estero: A Sheltered Wilderness Estuary October 19, 2007 Draft, Privileged and Confidential-Not for public distribution

Information Requested

Park Service Response

l.

Date of Original Publication, Drakes Estero Report

2.

Drakes Estero Report First Uploaded to the NPSIPRNS Web Site

3.

Identify Author or Authors Who Contributed to Drakes Estero Report

4.

Provide Titles of Each Author Who Contributed to Drakes Estero Report Provide Qualifications for Each Author Who Contributed to Drakes Estero Report For Each Version of Drakes Estero Report, Identify All Reviewers (formal or informal, internal or external)

We are uncertain of what you mean by the word "publication." However, the NPS began working on the Park News Document in August of2006. The Park News Document was first posted on the Point Reyes National Seashore ("PRNS") NPS website on February 9, 2007. There is no document listing those who contributed to the Park News Document. It is common when producing information for the NPS website for various staff members to contribute to the information. NPS documents can go through various drafts with different staff members having different roles as relate to their particular duties. This Park News Document was developed through such a process involving NPS staff. The Park News Document was prepared by the NPS, aud the NPS takes responsibility for the . Park News Document. See answer to item 3.

5. 6.

See answer to item 3.

There is no document listing this information for the Park News Document. Various staff from . PRNS, USGS, and individuals from outside entities provided review. PRNS has in its files some documents related to review provided by individuals from outside entities in the context of reviewing the Park News Document and another publication entitled, "National Park Service Clarification ofLaw, Policy, and Science on Drakes Estero." We have previously sought the permission of these reviewers to release their comments. We are discretionarily releasing those documents to which the reviewers have consented to release.

Information Requested 7.

For Each Version of Drakes Estero Report, Provide Titles and Qualifications of Each Version

8.

Identify Each NPS Official Who Signed Off on and/or Approved Drakes Estero Report at NPS Regional Office Identify Each NPS Official Who Signed Off on and/or Approved Drakes Estero Report at NPS Headquarters Identify Each NPS Official Who Signed Off on and/or Approved Drakes Estero Report at Other NPS Offices Identify Each NPS Official Who Signed Off on and/or Approved Drakes Estero Report at NPSIPRNS Prior to Publication When Was the Drakes Estero Report Peer Reviewed Prior to Publication, Identify Each Peer-Reviewer{s) Specify Qualifications for Each Peer Reviewer Provide Copies of Peer Reviewer's Comments Itemize and List Each Version of the Drakes Estero Report, in Total, Exist

9.

10.

11.

12. 13.

14. 15. 16.

17. Itemize and List When Each Version of the Drakes Estero Report was Published

Park Service Response There is no document listing this information for the Park News Document. Titles and qualifications are contained in some of the information we are releasing as discussed in item 6. There is no document indicating "sign off' on the Park News Document.

See response to item 8.

See response to item 8.

See response to item 8.

See response to item 6. See response to item 6. See response to item 6. See response to item 6. There is no document listing this information. The NPS began working on the Park News Document in August of 2006. It was posted on' the PRNS NPS website on February 9 and May 11,2007. It was provided to the Marin County Board of Supervisors at a meeting held on May 8, 2007, It was revised in July 2007 but has not been publicly released because the NPS is committed to an independent review ofthe science related to this matter. There is no document listing this information. The Park News Document was posted on the PRNS NPS website on February 9 and May 11, 2007.

2

Information Requested 18. Itemize Each Change to Each . Version of the Drakes Estero Report

19. Itemize Each Change to Each Version of the Drakes Estero Report including Additions, Deletions and Modifications For Each Version of the Drakes 20. Estero Report, Provide a Full and Complete Explanation for Each (Estimated to be 25-30 Changes) 21. If New Data [for Drakes Estero Report] Was Obtained, Include that New Data and Provide a Full and Complete Analysis 22. If New Data [for Drakes Estero Report] Was Obtained, Indicate How the Data Was Obtained 23. If New Data [for Drakes Estero Report] Was Obtained, from Whom Was it Obtained If New Data [for Drakes Estero 24. Report] Was Obtained, When Was It Obtained 25. Explain why the [Drakes Estero] Report was republished so frequently

26. NPS management policy states, in part, "Decision-makers and Planners will use Best Available Scientific and Technical information and Scholarly Analysis ... " Affirm, in approval of Drakes Estero Report, the requirements of the policy were fully met. 27. Provide Policy Regarding Preparations and Publication of Drakes Estero Report 28. Provide Reviewer Comments for each Version of the [Drakes Estero] Report

Park Service Response There is no document containing this information, and we decline, to create such a document for the reasons stated in the cover letter accompanying this table. See response to item 18.

See response to item 18.

The Park News Document references the sources that were used in preparing the Park News Document. There is no document separately listing this information or providing analysis. See answer to item 21.

See answer to item 21.

See answer to item 21.

There is no document providing this information. The NPS periodically updates its website for a variety of reasons including the availability of new information. This issue is being handled separately through the complaint process provided under Director's , Order lIB.

There is no policy specific to this Park News Document. Director's Order lIB provides NPS policy regarding ensuring the quality of information disseminated bv the NPS. See response to item 6.

3

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Drakes Bay Oyster Company 17171 Sir Francis Drake Boulevard Inverness, CA 94937 (415) 669-1149 kevin0ldrakesbayoyster.com [email protected] November 4, 2007

Mr. George Turnbull Deputy Regional Director National Park Service US-CA-Pacific West Regional Office 1111 Jackson Street, Suite 700 Oakland, CA 94607 Dear Mr. Turnbull, In 2005, Drakes Bay Oyster Company (DBOC) submitted plans to Marin County Community DevelopmentAgency (CDA) for a permit to make repairs to the existing buildings at the oyster farm. Thls planned work would complete the requirements listed by the Point Reyes National Seashore (PRNS) and the California Coastal Commission (CCC) in their Cease and Desist Order (issued to the fonner owners of the farm, Johnson Oyster Company, in 2003). Since 2005, there has been a planning hold (attaChed) issued by the CDA. The last requirement, prior to permit issuance, is written authorization from the National Park Service, as property owner, to perform this work. Superintendent Neubacher has refused to give the CDA the authority to issue this permit to DBOC. Mr. Neubacher's refusal was based on his claim that the buildings were not located on the Reservation of Use and Occupancy, citing a drawing that was prepared for Johnson Oyster Company in 2003. It has since been agreed (at the 712\/07 m.eeting called by SenaTor Dianne Feinstein) that the buildings in question are indeed situated properly on the Reservation of Use and Occupancy. We, therefore, ask you to send the NPS authorization to process and approve the permit applied for in 2005 (plans prepared by William W. Kirsch, and submitted to the CDA, the NPS and the CCC, with revisions dated 7125/06) to Tod Carr, Marin County Community Development Agency, 3501 Civic Center Drive, #308, San Rafael, CA 94903-4157.

Kevin Lunny

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Alex Kinds, Director

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RE:

Assessor's Parcel # _->(.J,.(_'.. ; <..;f,;;"',,-'..;---,'",:3",-,0",'_"'_,_1"",_'~!..f,~______ A building permit application was received for the subject property. Upon customary transmittal of the t,uilding permit to the Planning Division, it was determined that your application does not conform to cerrain zoning and/or subdivision requirements. The item{sl checked below must be corrected before the Planning Division will approve your aoplication ard send it back to the Building Inspection Division for their review. If a Planning Div'isiorr permit is required, please attach a copy of this letter to the application. This letter will ass,S! in coordination of t'lJilding permit processing following Planning Division review,

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The plot plan is missing/incorrecrlhas no scale/otherwise incomplete or unclear (sge attached).

Frorit/side/strost-side/rear yard setbacKs for the house/accessory structure are less than permitted (see attached!. House/accessory structure exceeds maximum permitted height/number of stories.

Proposed work on the floating home exception (see attached).

home/ark' will require

approval of

an

architeCTural

deviation/floating

Ratio of floor area to 101 size (FAR) exceeds maximum permitted (30%), Second units not permitted by the zoning on your property. Existing structure}use is nonconforming and its expansion is restricted (see attached).

Due to the location and height of the retaining wall(s). a Design Review is required (see attached). A Master Plan is required, A Coastal Permit is required.

A Design Review (minor/exemption) is required.

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proposed development -is not single family residential.

your property is zoned planned district, your lot is lass than half the size required.

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Therefore. please submit theartached applicafion(s), $ _ _ _ _ __ plans fO the Planning Division,

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If we do not receive a response within fifteen days from the date of this letter, your building permit application will ba considered withdrawn, If an att35bm.e.nt is jPcluded, please read it carefully to determine what is needed for project conformance. Please contect l <8:)1 v>.rl' '-{Cf-] CO 7.- -Uif you have any questions regard,ng this letter, If you wish to meet with the planner, please call for an appointment. Drop-ins are not advised. Thank you, !'fOI
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3501 Civic Center D,ive, #308 -San Raf•• 1_ CA S4S03·4157· Telephone (415149S·62fi9· Fax (4151499·7880

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Drakes Bay Oyster Company 17171 Sir Francis Drake Boulevard Inverness, CA 94937 (415) 669-1149 [email protected] [email protected]

October 23, 2007

Jon Jarvis Regional Director National Park Service Padfic West Regional Office One Jackson Center 1111 Jackson Center, Suite 700 Oakland, CA 94607

Re:

National Park Service, Clarification of Law, Policy and Science on Drakes Estero

Dear Mr. Jarvis. On September 18, 2007, you sent the document "Clarification a/Law, Policy, and Science on Drakes Estero" to Dr. Goodman and have widely circulated it since. Ac:cording to your statement, at the bottom of page 5 and top of the following page: "With regards to NPS studies within the estero, we wish to clarify points regarding the independence and quality ofNPS data. Dr. Goodman questions the quality of the data collected by NPS biologists and others as not independent and not peer-reviewed through published scientific journals. It is true that much of the research within the NPS is applied and often not published in scientific journals; nevertheless, research projects within the NPS are submitted to a rigorous peer-review process that includes scientists from the NPS, other agencies, and academia. An implementation plan is required before a project can begin which requires a detailed description and peer-review of the methods. The protocol development, although not as rigorous as the journal publication process, nevertheless does subject NPS applied

research projects to a significant degree ofreview intended to insure the quality of the research and the integrity ofthe findings. The Point Reyes National Seashore Park News publication, "Drakes Estero - A Sheltered Wilderness Estuary," for example was reviewed by scientists from the U.S. Geological Survey and NPS." This clarification is instructive. To further assist our understanding of the NPS process regarding the preparation and presentation of research reports, would you provide the following: (1)

(2)

According to your letter and this NPS Statement, "research projects within the NPS are submitted to a rigorous peer-review process that includes scientists from NPS, other agencies and academia. " (a)

When was this peer-review process initiated for the NPS report, "Drakes Estero, A Sheltered Wilderness Estuary?"

(b)

Identify each NPS scientist who participated in the peer-review process for this report.

(c)

Identify each scientist from other agencies who participated in the peer-review process for this report.

(d)

Identify each member of academia who participated in the peer-review process for this report.

(e)

Provide copies of the instructions and documents provided to each participant in the peer-review process.

(f)

Provide reviewer comments pursuant to this process.

(g)

Provide the dates of meetings, who attended and participated and copies of the agenda.

(h)

In the preparation and publication of the Drakes Estero Report, did NPS fully adhere to Federal policy requirements for peer review?

According to your Clarjfication letter, "an implementatio'l plan is required before a project can begin which requires a detailed description and a peer-review of the methods." (a)

When did this project - the preparation of this report - begin?

(3)

(4}

(5)

(b)

When was the required "Implementation Plan" initiated? Completed?

(c)

When completed, what was the Implementation Plan approval process and who approved it?

(d)

Provide a copy of the implementation plan.

According to your Clarification letter, "The protocol development, although not as rigorous as the journal publication process, nevertheless does subject NPS applied research projects to a significant degree of review intended to insure the quality of the research and the integrity of the findings." (a)

Describe the "protocol development" as applied to "Drakes Estero, A Sheltered Wilderness Estuary."

(b)

Provide copies (or results) of the "protocol development."

(c)

When were the protocols approved and who approved them?

According to the "Clarification" document cited above, at its conclusion, "The Point Reyes National Seashore Park News publication, "Drakes Estero - A Sheltered Wilderness Estuary," for example was reviewed by scientists from the U.S. Geological Survey and NPS. " (a)

IdentifY the "scientists" from the USGS who participated in the review.

(b)

At what point in the process did they initiate their review?

(c)

Provide copies of their review and/or their comments in whatever form they were provided.

(d)

IdentifY the "scientists" from the National Park Service in the same review.

(e)

When did this review occur?

(f)

Provide copies of their review and/or comments on the proposed research project in whatever form they were provided.

Did anyone else, outside of the NPS, other agencies and/or academia participate in the review and/or preparation of the Drakes Estero Report - at any time during the process? If so, please identify that individual or those individuals.

As you are aware, the NPS report, "Drakes Estero, A Sheltered Wilderness Estuary," is very important and we have spent considerable time and effort to fully understand it. Your responses to these questions assist us in that effort.

"

Kevin Lunny

Nancy Lunny

Drakes Bay Oyster Company-, 17171 Sir Francis Drake Boulevard Inverness, CA 94937 (415) 669-1149 [email protected] [email protected]

October 23, 2007 (,r",\'.::.

Don Neubacher Superintendent

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One Bear Valley Road Point Reyes Station, CA 9 4 9 5 6 " Dear Don. With regard to the Sarah Allen Trip Reports of April 13 and 26, both include a~~p.-S~th~t we better understand the map - Drake's Estero Aquaculture and Seal Habitat - included in these trip reports, would you please respond to the following: (1)

Why is the map undated, unnumbered and without any GIS or other appropriate designation?

(2)

When - what day - was this map created?

(3)

Please provide the documentation requesting the new map be created and documentation showing which day it was created.

(4)

Who ordered the map to be created?

(5)

Who drew the lines or ordered the lines to be drawn that depict the seal haulout pupping area?

(6)

The lines depicting the haulout area are considerably different when compared to the 92 NMFS-NPS agreement or a map provided by Sarah Allen shortly after we took over the oyster farm. Why was this map changed?

(7)

Provide the documentation - reports, documents, memorandum, other information which justifies the haul out boundary changes on this new map?

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(8)

Presumably, there is new science which justifies this expanded haul out area. Please provide a full and complete documentation of that new science.

(9)

Why was a new map created in the middle of a pupping season?

(10)

This map - this "aquaculture" map - was not provided to us - your leasee. Why not?

(II)

This new map was not provided to California Department ofFish and Game, the agency which manages the lease. Why not?

(12)

To whom did you provide copies of this map? Federal agencies? State agencies? Local government? Non-profits or NGOs? Individuals? Provide names, affiliations and contact information.

(13)

To whom did you provide copies ofthe April 13 and/or April 26 Trip Reports which contain this map? Provide names, affiliations and contact information.

Thank you.

Sincerely,

Kevin Lunny

Nancy Lunny

United States Department of the Interior NATIONAL PARK SERVICE Pacific West Region

1111 Jackson Street, Suite 700 , Oakland, California 94607-4807 IN REPLY REFER TO:

A7221 (PWR-C)

Mr. Kevin Lunny Drakes Bay Oyster Company 17171 Sir Francis Drake Blvd Inverness, CA 94937 Dear Mr. Lunny: This letter transmits copies of Drakes ~stero: A Sheltered Wilderness that were sought under the Freedom of Information Act (ForA) by two other inquirers. During the ForA process and prior to our July 21,2007, meeting, Congresswoman Woolsey wrote this office asking specific questions concerning this documeRt on your behalf. The ForA process is now completed with the inquirers. We are providing you with these same documents in an effort to be transparent in the communications on the Drakes Estero. Sincerely,

Holly Bundock Freedom of Information Act Officer Enclosure cc:

Senator Dianne Feinstein Congresswoman Lynn Woolsey George Turnbull, PWR-DRB '-Bon Neubacher, Supt. PORE

TAKE PRJDE®iJ:::./> INAMERICA~.

.. Kevin Lunny"



09/18/200706:51 PM

To "Jon Jarvis" cc "Zachary Walton" , "George Turnbull" , "Lisa Bush" , "David M. Weiman" bcc Subject Oyster SUP Meeting

Dear John, Since we met last we received a number of communications that require review and clarification. We are very anxious to move forward, but in light of these recent communications, we will need a bit more time before we can meet. We will get back to you shortly to discuss an alternative time for our meeting. Thank you, Kevin Lunny

United States Department of the Interior NATIONAL PARK SERVICE Pacific West Region

1111 Jackson Street, Suite 700 Oakland, California 94607-4807 IN REPLY REFER TO:

A90 (PWR-C)

~142007

Mr. Kevin Lunny Drakes Bay Oyster Company 17171 Sir Francis Drake Blvd. Inverness, CA. 94937

Dear Mr. Lunny: It has been six weeks since our meeting at the Olema Inn and our· discussions concerning Drakes Estero and your oyster operation. I wrote to you on July 30, 2007 with our action items. It seems appropriate to provide an update ofthe actions the National Park Service has taken and to reassure yon of the positive direction we believe the negotiations for the special use permit are taking.

As you may remember, we agreed July 21 ttl: • • • • • •

remove Drakes Estero: A Sheltered Wilderness from the park website pending an independent review of scientists - completed release data collected at the Estero - completed provide chronology of legally significant events - completed develop process for an independent science panel- underway develop an interim special use permit nsingthe Stevens boundary survey -underway confirm that environmental compliance will be paid for by the NPS - confirmed

I remain very pleased with the positive flow of conversation and the willingness of everyone to freely discuss their concerns at our subsequent meetings. Deputy Regional Director George Turnbull and Assistant Field Solicitor Suzanne Boyce Carlson report healihy discussIons involving the special use permit for the oyster operation. They have suggested I assure you that we have every intention of allowing your operation to continue until November of2012, as provided under the terms ofthe Reservation of Use and Occupancy and in compliance with a valid special use permit. We recognize your right to operatenntil November of2012 under the terms ofthe Reservation of Use and Occupancy. For the portion of your operation that is outside the area governed by the Reservation, our laws and policies also require that a private activity like Drakes Bay Oyster Company operate under a special use permit to authorize the activity on park land while assuring the protection of the park's resources and values.

As we have discussed, we are prepared to offer you an interim permit while we complete the NEP A compliance required for the longer term permit. We are committed to completing the NEPA compliance as quickly as possible; but we are not certain how long it will take. Therefore, the term of the interim permit will be two years; uriless the longer-term permit is ready before that time. Senator Feinstein's staff has asked, too, that we explain to you that the mitigations we have been discussing in negotiations to date are based upon the known environmental conditions of which both you and the NPS are aware. The interim permit will require these mitigations and other provisions to assure compliance with applicable laws pending completion of the environmental compliance. Some of these mitigations include protection of harbor seals and eelgrass, control of exotic species, determination of an annual production limit, appropriate limits on new construction, and limits on the introduction of species of oysters and clams beyond those described in existing leases with the California Department ofFish and Game. To this end, we ask that negotiations continue based on the last draft of the interim permit that we sent to you on August 23, 2007. It is our intention to work with you within the parameters and time frame of the environmental assessment. As you know, in response to. your request we also are seeking an independent science review Of Drakes Bay Oyster Company oyster operations on Drakes Estero. It is our hope that this review will be completed by the summer and provide useful information for the envirorimental assessment.

Our public affairs office has fielded a number of questions concerning the compliance issue, the data collection complairit, the independent science review, as weJlas the various Freedom of Information Act requests. To help respond to these inquiries, we have produc·ed a "frequently asked questions" sheet, which we enclose for your reference. Inclosing; you have my commitment that the NPS will work fairly with you to respect the terms of the Reservation of Use and Occupancy and to complete the permitting process for activities on park property. We look forward to our next meeting and hope we will be signing the interim special use pennit for the oyster operation in the next two weeks.

Sincerely,

J'_:-~

egional Director; Pacific West Region

Enclosures (2)

cc:

Senato:r Dianne Feinstein Congresswoman Lynn Woolsey Don Neubachet, Superintendent, Point Reyes Suzanne Boyce Carlson, Assistant Field Solicitor

Frequently Asked Questions Oyster operations at Drakes Estero Point Reyes National Seashore

What triggers NEPA compliance? NEPA-the National Environmental Policy Act-is the basic national charter for environmental protection~ It requires· an interdisciplinary study of impacts associated with major federal actions, and it emphasizes public involvement. It ensures that federal agencies fully· consider the environmental costs and benefits of the proposed actions before they make any decision to undertake the actions. An Environmental Screening Form, attached, aids a National Park Service (NPS) manager in determining what level ofNEPA compliance must be completed: (1) categorical exclusion (for actions with no measurable impacts on the envITonment), (2) environmental assessment (to determine whether an action may have a significant ·impact and thus require preparation of an environmental impact statement), or {3) environmental impact statement (for actions with a potential significant impact). Some of the factors triggering preparation of an environmental assessment or environmental impact statement include whether the environmental effects ofthe proposed action are highly controversial or uncertain; whether the proposed action is in proximity to park lands, wetlands, wilderness areas, or floodplains; whether the action may affect endangered or threatened species; and whether the action may implicate non-native invasive species (see "Mandatory Criteria" in Environmental Screening Form, attached) ..

Why did NPS do an Environmental Assessment in 1998? The Johnson Oyster Company (JOC) operated the facility at Drakes Estero in 1998. JOC. proposed an expansion of their land based facilities on the JOC Reservation of Use and Occupancy at Point Reyes National Seashore (approximately 1. 5 onshore acres), including the construction of a new oyster processing plant, the replacement and rehabilitation of several accessory structures, and the moving of all facilities 100 feet back from the water. The NPS prepared the EA to analyze the impacts of this proposal.

Did the 1998 EA address production levels, seek a biological opinion, and outline impacts on estuarine and water quality? The proposal analyzed in the 1998 EA involved only land based facilities. Thus, when the 1998 EA examined impacts on water resources, it only looked at those impacts that might result from the. land-based activities. For example, the EAdiscusses impacts to the . estero that could result from runoff associated with ground disturbance and grading during construction, and it discusses construction of drainage systems to avoid contamination of the estero from the land-based facilities. However, the 1998 EA itself contains no analysis of the impacts of the water-based operations. For example, the 1998 EA does not discuss whether oyster growing operations in the estero had.impacts, whether positive or negative, on water quality, wildlife, or any other natural resources.

The "Finding .ofN.o Significant Impact" Dr FONSI d.oes c.ontain s.ome discussi.on .of pr.oducti.on le,tels in the ester.o in the context .of discussing public c.omments that were received during the public comment peri.od conducted by the NPS and Marin County.. The FONSI explains that three of the c.omment letters expressed concern that the prop.osed new facilities might create additional gr.owth in the .overall .oyster operati.on in the estero .. In the context.of discussing this public comment, the FONSI states that JOC had voluntarily agreed n.ot t.o exceed an annual production .of 700,000 Ibs of .oyster weight. Thus, the FONSI addresses producti.on levels in the context of discussing public c.omments, but the EA itself contains no analysis .of the water-based operati.ons.

Why is NEPA triggered as part of a Special Use Permit for the Drakes Bay Oyster Company? In 2005, the Drakes Bay Oyster Company (DBOC) purchased the remaining seven years .of the Reservation of Use and Occupancy fr.om the Johnson Oyster Company. NPS n.otified DBOC before the purchase that the commercial .oyster .operati.on allowed by the Reservation of Use and Occupancy could n.ot be extended beyond the expiration .of the Reservation of Use and Occupancy in 2012,.and various activities involved in the commercial oyster operation (particularly th.ose .on park lands outside the Reservation) would require a Special Use Permit. NEPA requires at least an envir.onmental assessment be conducted f.or two primary reas.ons. First, NEPA requires analysis .of the impacts .of the water-based operations. The California Department .ofFish and Game has recently rec.ognized that the Drakes Bay Oyster Company mariculture operation in the estero "is properly within the primary managementauth.ority of [Point Reyes Nati.onal Seashore], not the Department." CDF&G Letter,dated May 15,2007. Thus, an NPS Special Use Pennit is required for the water-based .operations. Because prior NEPA compliance did n.ot evaluate impacts fr.om the water-based .operati.ons, an environmental assessment is required to examine such impacts. Second, if any of the "Mandatory Criteria" set forth in the NPS environmental screening apply, the NPS cann.ot issue a categorical exclusion. As set forth above, Mandatory Criteria include Whether the environmental effects .of the proposed action are highly contr.oversial Dr uncertain; whether the prop.osed action is in proximity to park lands, wetlands, wilderness areas, or fl.oodplains; whether the action may affect endangered or threatened species; and whether the action may implicate n.on-native invasive species.

Why is a Special Use Permit proposed for an interim period? The NPS is resp.onsible for administering P.oint Reyes National Seashore and other units .of the Nati.onal Park System t.o pr.otect their res.ources and values and t.o pr.ovide for their enj.oyment. The NPS requires that a private activity .on park land, like DBOC's oyster business,. operate under a special use permit that auth.orizes the activity while assuring protection .of the park's values and purposes. DBOC does not currently have a permit

Therefore, to provide immediate authorization to DBOC and protection to the park, NPS has offered an interim permit to address key operational issues while NPS completes the required NEPA compliance for the longer term. An interim permit would also allow DBOC to move forward expeditiously with permits that it needs from State agencies.

What are Harbor Seal Protocols? In 1992, an agreement between the park and Johnson Oyster Company resulted in guidelines or a protocol for working in Drakes Estero and around pinnipeds (seals). There have been changes to the Estero animal populations since the protocol was developed fifteen years ago. As a consequence, visitor activities, commercial activities, and NPS activities have to adjust to these changes. 'The animals are protected by the Marine Mammal Protection Act. The 1992 protocol can be a start to developing a protocol for Working in Drakes Estero around pinnipeds today.

What standards does theNPS use to store scientific data? Microsoft Access is the NPS standard for natural resource data sets, adopted specifically by the Inventory and Monitoring Program, nationwide .. See http://www l.nature.nps.gov/irnlunits/sfanireports/Monitoring]lanlSFAN_DMP_v2.pdf

What is an independent science review? The NPS will seek and pay for a review by the National Academy of Science's Natural Research Council of the ecological effects ofDBOC's operations on Drake's Estero, Point Reyes National Seashore. It is expected that a review could take up to nine months to complete its analysis.

Whatisa complaint against Director's Order llB, Ensuring Quality Information Disseminated by the National Park Service? This is a complaint filed on August 23, objecting to a Park news report that is no longer on the Point Reyes National Seashore. website. NPS has acknowledged receipt of the complaint and will respond to the complaint within 60 days. This is the first complaint NPS has received under Director's Order lIB.

ENVmONMENTAL SCREENING FORM (ESF) (Revised June 2004, per DM) Thisform should be attached to all NEPA documents sent to the regional director's office for signature. Sections A and B should be filled out by the project initiator (may be coupled with other park project initiation forms). Sections C, D, E, and G are to be completed by the interdisciplinary team members. While you may modify thisform to fit your needs, you must ensure that the form includes information detailed below and must have your modifications reviewed and approved by the regional environmental coordinator. To access this form and other compliance project information, go to http://pepc.nps.gov..

A. PROJECT INFORMATION .PmkName ______.______________________--____ Project Type (Check):

ProjectIPMIS Number _____________

o Cyclic

o Cultural Cyclic 0 RepairlRehab oONPS oCRPP oFUlP DNRPP 'oFeeDemo o Concession Reimbursable o Line Item o Other (specify) _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ __ Project Location __________________________________________________________ Project Originator/Coordinator ______________---------------~------------------Project Title Contract # __________~_ _ _ _ Contractor Name ____________________________ Administrative Record Location ____________________________________-------Administrative Record Contact ______________________________________________~ B. PROJECT DESCRIPTIONILOCATION (To begin the statutory compliance file, attach to this form, maps, ~it~ visit notes, agency consultation, data, reports, categorical exclusionjarm (ifrelevant), or other relevant mat~rials.)

Preliminary drawings attached? O. Yes 0 No Date form initiated ____________________

Background info attached? "0 Yes 0 No Anticipated compliance completion date _ _ _ _~

Proj ected advertisementIDay labor start

Projected construction start _____________

.Is project a hottopic (controversial or sensitive issues that should be brought to attention ofRegiollal Director)? DYes oNo C. RESOURCE EFFECTS TO CONSIDER (Please see section F, Instructions for Determining Appropriate NEPA Pathway, prior to completing this sectfon. Also use the process described.jn DO-J2, 2.9 and 2.10; 3.5(G) to (G)(5) and 5.4(F) to help determine the context, duration, and intensity of effects on resources.) <:

1

Identify potential effects to the following physical, natural, or cultural resources Geological resources - soils, bedrock, streambeds, ,etc.

2

From geohazards

3

Air quality

4

Soundscapes

5

Water quality or qua·ntity

6

Streamflow characteristics

No Effect

Negligible Effects

Page I of5

Minor Effects

Exceeds· Minor Effects

Data Needed to Determine

ENVIRONMENTAL SCREENING FORM (ESF) (Revised June 2004, per DM) -continuedNo Effect

Identify potential effects to the following physical, natural, or

cultural resources

7

Marine or estuarine resources

8.

Floodplains or wetlands

Negligible Effects

Minor Effects

Exceeds

Minor

Data Needed to Determine

Effects.

Land use, including occupancy,

9

income, values, ownership, type of

10

Rare or unusual vegetation - old

use

.

growth timber, riparian, alpine

Species of spe"cial cO'1cern (plant or

11

animal; state or federallis~ed or proposed for listing) of their habitat

12

Unique ecosystems, biosphere reselVes, World Heritage Sites

13

Unique or"important wildlife or wildlife . habitat

14

. Unique, essential or important fish

fish habitat

or

·15

Introduce or promote non·native species (pl,ant or animal)

16

Recreation resources, including supply, demand, visitation, activities, etc.

17

Visitor experience, aesthetic resources

18 19 20 21

Archeological resources' Prehistoric/historic structures Cultural landscapes ~thnographiq

resources

22

Museum collections (objects, specimens, and archival and manuscript co"lIections)

23

Socioeconomics, including employment, occupation, income cha.nges, t~x base, infrastructure

24

Minority and low income popuiations, ethnography, size, migration patterns, etc.

25

Energy resources

26

Other agency or tribal use plans or policies

27

Resource, including energy, co~servation potential, sustainability

28

Urban quality, gateway communities, etc. Long~term



management of resources

29 ,or land/resource productivity ·30

Other important environmental resources (e.g., geothermal, paleontological resources)?

Comments

Page 2 of5

ENVIRONMENTAL SCREENING FORM (ESF). (Revised June 2004, per DM) -continued-

D. MANDATORY CRITERIA .

Mandatory Criteria: If implemented, would the proposal:

. Yes

No

Comment or Data· Needed to Determine

.

A. Have significant impacts on public health or safety? B. Have significant impacts on such natural resources and unique geographic· characteristics as historic or cultural resources; park, recreation, or refuge lands; wilderness a"reas; wild or scenic rivers; national-naturallandmarks; so[e or principal drinking water aquifers; prime farmlands; wetlands (Exe~tive Order 11990); floodplains (Executive Order 11988); na~onal monuments; migratory birds; and

other ecologically significant Of tritical. areas?

C. Have highly controversial environmental effects Of involve unresolved conflicts concerning alternative uses of available resources (NEPA section 102(2)(E»? D. Have highly uncertain and potentially significant eiwironmental effects or involve unique or unknown environmental risks?' E. Establish a precedent for future action or represent a decision in principle about . future .actions with pot~ntially Significant environmental effects? F. Have a direct relationship to other ac;tions with individually insignificant, but cumulatively significant, environmental effects? G. Have significant impacts on properties listed 'or eligible for listing on the National Register of Historic Places, as determined by either the bureau or office? H. Have significant impacts on species listed or p(oposed to be listed on the List of Endangered or Threatened Species, or have Significant impacts on designated Critical Habitat for these species?

I. Violate. a federal law, or a state, local, or tribal law or requirement imposed for the protectio." of the environment?

J. Have a disproportionately high and adverse effect on low income or minority populations (Executive Order 12898)?

K. Limit access to and ceremonial use of Indian sacred sites on federal lands by Indian religious practitioners or significantly adversely affect the physical Integrity of such sacred sites (Executive Order 13007)? L. Contribute to the.introduction, continued existence, or spread of noxious weeds or non·native invasive species known to occur in the area or actio.ns that may promote the introduction, growth, or expansion of· the range of such species (Federal Noxious Weed Contf(~1 Act and Executive Order 13112)?

For the purposes of interpreting these procedures within the NPS, any action that has the potential to violate the NPS Organic Act by impairing park resources or values would constitute an action that triggers the DOl exception for actions that threaten toviolate a federal law for protection of the environment.

Page 3 of5

ENVIRONMENTAL SCREENING FORM (ESF) , (Revised June 2004, per PM) -continuedE. OTHER INFORMATION (Please answer the following questionslprovide requested information.) Are personnel preparing this form familiar with the site? 0 Yos 0 No Did personnel visit site? 0 Yes 0 No (ifyes. attach meeting notes re: when site visit took place, who attended, etc.) Is the project in all approved plan such as a General Management Plan or an Implementation Plan with an accompanying NEPA document? 0 Yes 0 No lisa, plan name _ _ _ _ _ _ _~-----_---_,Is the project still consistent with the approved plan?

DYes DNa

(If no. you may need to prepare plan/EA or ElS.)

Is the environmental' qocument .accurate and up-ta-date?

DYes DNa

(If no. you may need to prepare plan/EA or EI8.)

FONSI

a ROD 0 (Check one)

Date approved _ _ _ _ _ _ _ _ _ _ _ _ _ _ _~

Are there any interested or affected agencies or parties? .

DYes DNa

Did you make a diligent effort to contact them?

0 Yes DNa DNA

Has consultation with all affected" agencies or tribes been completed? 0 Yos 0 No 0 NA (ifyes, attach additional pages re: consultations, including the name, dates, and a summary of comments from other agencies or tribal contacts.) Are there any connected, cUIhulative, or similar actions as parfofthe proposed action (e.g., other development projects in area or identified in GMP, adequate/available utilities to accomplish project)? 0 Yes 0 No (Ifyes, attach additional pages detailing the other actions.) F. INSTRUCTIONS FOR DETERMINING APPROPRIATE NEPA PATHWAY

First, always ·check DQ-12, section -3.2, "Process to Follow," in determining whether the action is categorically excluded from additional NEPA analyses. Other sections within Db-12, including sections 2.9 and 2.10; 3.5; 4.5(G) and (G)(5); and 5.4(F), should also be consulted in detennining the appropriate NEPA pathway. Complete the following tasks: conduct a site visit or ensure that staff is familiar with the site's specifics; consult with affected agencies, and/or tribes, and interested public; and complete this environmental screening fonn. If your action is described in DO-l2, section 3.3, "CEsfor Which No Fonnal Documentation is .Necessary," follow the instructions indicated in that section. If your action is not described in DO-12, section 3.3, and IS described in section3.4, AND you checked ·YES or identified "data needed to detennine" impacts in. any block in secti.on D (Mandatory Criteria), this is an indication that there is potential for significant impacts'to the human environment, therefore you must prepare an EA or EIS or supply missing information to determine <;:ontext, duration. and intensity. of impacts. If your action is described in section 3.4 and NO is checked for all boxes in section D (Mandatory Criteria), AND there are either no effects or all of the potential effects identified in Section C (Resource Effects to Consider) are no more than minor intensity, usually there .is no potential for significant impacts and an EA or BIS is not required. If, however, during internal scoping and further iiwestigation, resource effects still re:main unknown, or are at the minor to moderate level of intensity, and the potential for significant impacts may be likely, an EA or EIS is required." In all cases, data collected to detennine the appropriate NEPA pathway must be included in the administrative record.

Page 4 of5

ENVIRONMENTAL SCREENING FORM (ESF) (Revised June 2004, per DM) -continuedG. INTERDISCIPLINARY TEAM SIGNATORIES (All interdisciplinary team members must sign.) By signing this form,. you affirm the following: you have either completed a site visit or are familiar with the specifics of the site; you have consulted with affected agencies and tribes; and you, to the best ofyour knowledge, have answered the questions posed in the checklist correctly. Interdisciplinary Team Leader Name

Discipline/Field of Expertise

Date

Technical Specialists Names

Discipline/Field of Expertise

.Date

H. SUPERVISORY SIGNATORY Based on the environmental impact information contained in the statutory compliance files and in this environmental screening farm, environmental documentation for the subject project is complete. If the project involves hot topics or sensitive issues, 1 have briefed the deputy or regionardirector.

Recommended: Ci)mpliance Specialist

Telephone Number

Date

.

Approved: Superintendent

Telephone Number

Page 5 of5

Date

IIKevin Lunnyll



09112/200703:50 PM

To cc , , "'Walker, Michael \(Feinstein\)'" , "'Walton, Zachary bcc Subject RE: Proposed SUP Meeting

Dear George, Thank you for the note. available.

I will talk to our team to se-e if they are

Please include· David Weiman and Zachary Walton in all your correspondence with us regarding the Drakes Bay Oyster Farm and the G Ranch. Thank you, Kevin -----Original Message----From: George [email protected] [mailto:George [email protected]] Sent: Tuesday, September ll, 2007 6:06 PM To: Kevin Lunny Cc: [email protected] [email protected] Walker, Michael (Feinstein) Subject: Proposed SUP Meeting

Hi Kevin, Thank you for taking the time to meet with us on the Drakes Bay Oyster SUP and other issues yesterday. After further conversations with the Regional Director and Senator Feinstein's staff, I would like to propose meeting with you and your team again next week to see if we can finalize an SUP within the next couple of weeks. Once again, we do still feel NEPA compliance is required, but we would offer you a two year interim permit. We would like to specifically discuss mitigation measures that might be included in the SUP, all of which we have discussed in our earlier session. Mr. Michael Walker from Senator Feinsteinrs office has offered to participate in the meeting to help broker an agreement. I am available all day September l8 (Tuesday) and September 20 (Thursday). Hopefully you are available one or both of these days so we can continue to make progress towards an agreement on an SUP. Let me know either way about your availability. Thanks again. George Turnbull

George , Turnbull/OAKLAND/NPS 09/11/200705:40 PM PDT . '.'. ':'.

To "Kevin t..unny" cc Jon Jarvis/OAKLAND/NPS; Holly BundocklOAKLAND/NPS, "Walker, Michael (Feinstein)" bcc carlsondoi(b) (6)

SUbj~c,i.prpposed SUP Meetin!) Hi Kevin, Thank you for taking the time to meet with us on the D~a.kes Bay Oyster SUP and other issues yesterday. After further conversations with the Regional Director a'nd Senator Feinstein's staff, I would like to propose meeting with you and your team again next week to see if we can finalize an SUP within the next couple of weeks. Once again, we do still feel NEPA compliance is required, but we would offer you a two year interim permit. We would like to specifically disc;ussmitigation measures that might be included in the SUP, all of which we have discussed in our ear/jer,sessioit Mr. Michael Walker from Senator Feinstein's office has offered to participate in the meeting toltelii broker an agreement.i a,m available all day September 18 (Tuesday) and September 20 (Thursday). Hopefully you are available one or both of these days so we can continue to make progress towards an agreement on an SUP. Let me know either way about your availability. Thanks again. George Turnbull (;C

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United States Department of the Interior NATIONAL PARK SERVICE Point Reyes National Seashore Point Reyes, California 94956

D5031

)(L-{'t2S)" 02 ·lOG September 6, 2007 Mr. Kevin Lunny 17171 Sir Francis Drake Inverness, CA 94937 Dear Kevin: Paul Robinson with the United States Public Health Service (USPHS) conducted inspections ofranch employee housing units in Point Reyes National Seashore on June 13 th and June 14th 2007. Point Reyes National Seashore Special Park Uses Coordinator, Kevin McKay, accompanied CDR Robinson on the inspections. In a report submitted to the Park CDR Robinson noted that many recommendations and deficiencies from past ranch inspections had been addressed. We truly appreciate the efforts that have been made to improve the quality of ranch employee housing. This is an issue that we know to be important to the community in and around Point Reyes National Seashore and we ask that you continue to be diligent in devoting attention to the maintenance of safe and healthy employee housing. The inspection of employee housing at Drakes Bay Oyster Company revealed the following items requiring attention. Comments marked with an asterisk (*) indicate recommendations made in previous surveys that remain uncorrected. Additional asterisks indicate the number of years a deficiency has appeared in the inspection report. Drakes Bay Oyster Company Water and Wastewater Systems The water system provides potable water to theresidertces and.the packing house. It consists of a drilled well located on the slope above the residences, a hydropneumatic tank, and distribution piping. The well is reported to have an adequate sanitary seal, and there are no apparent sources of contamination within a 50 foot radius. Chlorination of the water is not done. Periodic bacteriological testing is done, with no positive results reported. A communal wastewater system serves the residences and the packing house toilet. The packing house currently does not have a means of disposing process waste, so no processing is done on-site. The wastewater system consists of gravity sewage collection lines, five septic tanks, two lift stations, forcemain, and gravity fed leachfield. Sewage flows by gravity from the homes to the septic tanks where solids are removed. The effluent is then pumped from the lift stations via forcemain to the leachfield. The leachfie1d consists of four separate





,-



In order to ensure that deficiencies are corrected in a timely manner, Point Reyes National Seashore Staff will be contacting you regarding progress on repairs and scheduling of any follow up visit. Please notify Kevin McKay, (415) 464-5111, if you have questions or concerns. Thank you for your continued efforts and cooperation. Sincerely,

Don L. Neubacher Superintendent KEMcKay:kem 9/4/07

To , "Kevin Lunny" cc "David M. Weiman" , , "Holly Bundock" , , "Kevin bcc

.. Kevin Lunny" 08/31/200701 :01 PM

Subject RE: Meeting on Special Use Permit

Sounds good.

See you on the 10th.

Kevin -----Original Message----From: George [email protected] [mailto:[email protected]] Sent: Friday~ August 31, 2007 12:43 PM To: Kevin Lunny Cc: David M. Weiman; Don [email protected] Holly Bundock; Jon [email protected]"Kevin LunnYi Lisa Bush subject: RE: Meeting on Special Use Permit Kevin, how about if Suzanne and I meet with you at II am on Monday, September 10 at your facility? Getting us your comments on the sup on Wednesday, September 5 would be great. Talk to you soon ... George

IlKevin LunnylT
yster.com>

08/31/2007 11:02 AM MST

IlKevin Lunnyll ,

To

cc IIDavid M. Weiman 11 , "Holly Bundock II , ( IILisa Bush!'(b) (6) , b ) Subject ( RE: Meeting on Special Use Permit 6 )

George, Any time on September lOth will work for us - after lO:OOAM preferred. will get our SUP comments to you by Wednesday the Sth.

We

Thank you, Kevin -----Driginal Message----From: [email protected] [mailto:[email protected]] Sent: Thursday, August 30, 2007 S:l7 PM To: Kevin Lunny Cc: agresourcesi [email protected] [email protected] Lisa Bushi Holly Bundock Subject: Re: Meeting on Special Use Permit Kevin, Suzanne Boyce Carlson and I are available to meet you Thu~sday September 6 in the morning or anytime Monday September 10. Let me know if either of these dates work. If not, give me a range of other dates that might work. Also, it would be helpful if you could provide us a list of any concerns you might have with the draft provisions of the SUP we provided you. We also look forward to an agreement soon. George Sent from my Blackberry George Turnbull SlO-8l7-143S Original Message ----From: IIKevin Lunny" [[email protected]] Sent: 08/29/2007 08:llAM MST To: Ge9rge Turnbull; uKevin Lunnyll Cc: i Don Neubacheri Jon Jarvis i "Lisa Bush l1 (b) (6) Subject: RE: Meeting on Special Use Permit

George, Thank you for giving us a few more days to go over the SUP. Please feel free to schedule a meeting at your earliest convenience. We look forward to an agreement on the SUP soon. A copy of .the liRe cord of Agreement Regarding Drakes Estero Oyster Farming

and Harbor Seal Protection" will be sent to you today_

Kevin -----original Message----From: George [email protected] [mailto,[email protected]] Sent: Friday~ August 24, 2007 4,03 PM To: Kevin Lunny Cc: [email protected] [email protected] [email protected]

Lisa Bush Subject: RE: Meeting on Special Use Permit Kevin, Thanks for letting me know. Keep me posted on when you might be available to meet. I am out of the office all next week but back September 4. George

"Kevin Lunnyll 08/24/2007 03:44 PM MST

To

"Lisa Bush n (b) (6) , ,

>,

cc

Subject RE: Meeting on Special Use Permit

Hello George, I'm sorry for taking all day to respond to your note. We have tried to meet with our attorney, Judy Davidoff, to review the proposed SUP. Unfortunately, she does not have the time to review the document before Monday. We have been advised to postpone our meeting that is scheduled for Monday 08/27/07 as we need time to review the SUP proposal. Thank you, Kevin

-----Original Mes.sage----From: [email protected] [mailto:[email protected]] Sent: Thursday, August 23, 2007 3:53 PM To: [email protected] C·c: Jon [email protected] Don [email protected] [email protected] Subject7 Meeting on Special-Use Permit Hi Kevin l



I'm back in the office and wanted to confirm that we are meeting at your si te 'on Monday, August 27 at 11 am to continue our discussion on spec-:: i. a 1 use permit terms. We are proposing to bring Suzanne Boyce Carlson (the attorney from our Solicitor's office), myself, and, as you requested at the last meeting! Don Neubacher. Jon Jarvis is out of town and will be unable to attend. Please let us know who. you plan to have in attendance. We would like to propose that since we will be at your site that we would initiallY tour your facility onshore. Because of NPS management policies regarding wilderness! we will not be able to go on a boat. After this, we thought we might break for lunch and then reconvene to discuss the permit. A conference room is available at Point Reyes NS headquarters if you would like to meet there. I have to catch a plane and will have to leave at 3 pm, as will Suzanne. Attached is a pdf file that represents the editorial changes we discussed at our last meeting. These changes should be shown in green. This document can be the starting point for our discussions. We were also hoping that you might send us the harbor seal monitoring protocol yo~ referred to in our discussions in section 3j. We look forward to seeing you Monday morning. George Turnbull (See attached file: DrakesBayOysterSUP Draft 8.22.07.pdf) :;.-

George Turnbull/OAKLAND/NPS

To "Kevin

irti&ii¥"

cc "David M. Weiman" , [email protected], "Holly Bundock" , [email protected], "Kevin bcc carlsondoi(b) (6)

08/31/200712:43 PM

Subject RE: Meeting on Special Use Permit~ Kevin, how about if Suzanne and I meet with you at 11 am on Monday, September 10 at your facility? Getting us your comments on the SUP on Wednesday, September 5 would be great. Talk to you soon ... George "Kevin Lunny" "Kevin @Dn~" 08/31/2007 11 :02 AM MST

To "Kevin Lunny" ,. cc "David M. Weiman" , "Holly Bundock" , "Lisa Bush" (b) (6) , Subject RE: Meeting on Special Use Permit

George,

Any time on September 10th will work for us - after 10:00AM preferred. will get our SUP comments to you by Wednesday the 5th.

We

Thank you, Kevin -----Original Message----From: [email protected],gov [mailto:[email protected]] Sent: Thursday, August 30, 2007 5:17 PM To: Kevin Lunny Cc: ~~a3",~~; Don [email protected]; [email protected]; Lisa Bush; Holly Bundock Subject: Re: Meeting on Special Use Permit

Kevin,

Suzanne Boyce Carlson and I are available to meet you Thursday September 6 in the morning or anytime Monday September 10. Let me know if either of these dates work. If not, give me a range of other dates that might work. Also, it would be helpful if you could provide us a list of any concerns you might have with the draft provisions of the SUP we provided you. We also look forward to an agreement soon.

George Sent from my Blackberry George Turnbull 510-817-1435

Original Message ----From, "Kevin Lunny" [keviniWa¥.a;lt~~¥,.s.~~Ji?i1l] Sent, 08/29/2007 08,11 AM MST To: George Turnbull; "Kevin Lunny!! i Don Neubacheri Jon Jarvis; "Lisa Bush 1T (b) (6) Subject, RE, Meeting on Special use Permit

George, Thank you for giving us a few more days to go over the SUP. Please feel free to schedule ;;:t meeting at your earliest convenience. We look forward to an agreement on the sup soon. A copy of the "Record of Agreement Regarding Dr-akes Estero Oyster Farming and Harbor Seal Protection" will be sent to you today.

Kevin -----Original Message----From, George [email protected] [mailto,[email protected]] Sent, Friday~ August 24, 2007 4,03 PM To: Kevin Lunny Cc: [email protected]~~6if;[email protected] com; [email protected]} [email protected] Lisa Bush subject, RE, Meeting on Special Use Permit Kevin, Thanks for letting me know. Keep me posted on when you might be available to meet. I am out of the office all next week but back September 4. George

lIKevin Lunny"
yster.com>

08/24/2007 03,44

PM MST

"Lisa Bush" (b) (6) , ,

To cc

Subject RE, Meeting on Special Use Permit

Hello George, I'm sorry for taking all day to respond to your note. We have tried to meet with our attorney, Judy Davidoff, to review the proposed SUP. Unfortunately, she does not have the time to review the document before Monday. We have been advised to postpone our meeting that is scheduled for Monday 08/27/07 as we need time to review the SUP proposal. Thank you, Kevin

-----Original Message----From: [email protected] (mailto:[email protected]] Sent: Thursday, August 23, 2007 3:53 PM To: [email protected] Cc: [email protected] [email protected]; [email protected]~rols.com Subject: Meeting on Special Use Permit Hi Kevin, I'm back in the office and wanted to confirm that we are meeting at your site on Monday, August 27 at 11 am to continue our discussion on special use permit terms. We are proposing to bring Suzanne Boyce Carlson (the attorney from our Solicitor's offiqe), myself, and, as you requested at the last meeting, Don Neubacher. Jon Jarvis is out of town and will be unable to attend. Please let us know who you plan to have in attendance. We would like to propose that since we will be at your site that we would initially tour your facility onshore. Because of NPS management policies regarding wilderness, we will not be able to go on a boat. After this, we thought we might break for lunch and then reconvene to discuss the permit. A conference room is available at Point Reyes NS headquarters if you would like to meet there. I have to catch a plane and will have to leave at 3 pmf as will Suzanne. Attached is a pdf file that represents the editorial changes we discussed at our last meeting. These changes should be shown in green. This document can be the starting point for our discussions. We were also hoping that you might send us the harbor seal monitoring protocol you referred to in our discussions in section 3j. We -look forward to seeing you Monday morning. George Turnbull (See attached file: DrakesBayOysterSUP Draft 8.22.07.pdf)

.. Kevin Lunny"



08/13/200704:58 PM

To cc bcc Subject RE: Drakes Bay Oyster Farm SUP

George, Thank you. We look forward to seeing the updated SUP as soon as it can be arranged so that we can have some time to review it before our meeting on the 27th.

Have "a great vacation! Kevin -----Original Message----From: [email protected] [mailto:[email protected]] Sent: Monday, August 13, 2007 4:15 PM To: Kevin Lunny Subject: Re: Drakes Bay Oyster Farm SUP Kevin! thanks for the email. As I think I mentioned the other day, I will be on vacation from today until next Thursday (August 23) when I return. I look forward to meeting with you on August 27. Your attorney is more than welcome to attend the meeting. Your three points are interesting. We can provide a fuller discussion of NEPA compliance at the meeting. As you may imagine! we take a different point of view on these issues. I was not at the ~eeting with Senator Feinstein! but I was told that it was agreed that some level of NEPA compliance was required as a condition of developing this permit. When I return! we will forward you a revised SUP based on the discussions last week. I look forward to further discussions with you on this matter George Turnbull

"Kevin Lunnyn 08/13/2007 02:38 PM MST

IIGeorge Turnbull"

To cc Subject

Drakes Bay Oyster Farm SUP

Dear George. This is a partial response to the new NPS' proposed permit. comprehensive response will be forthcoming as we proceed.

A more

Now that we better understand the new NPS permit proposal, we are beginning to review it. Last Tuesday's meeting helped explain your new proposal. with regard to the NPS' new requirement that an Environmental Assessment (EA) is required, our discussion concluded:

(1) None of the four draft SUPs previously prepared by the Superintendent required an EA. In fact, NPS, in each draft previously submitted, stated that (at the bottom of the first page) "NEPA & NHPA Compliance: CATEGORICALLY EXCLUDED ... lI is ·marked with an "XII indicating that it was not required. (2) NPS indicated that the justification for the EA was based on the NPS determination that Drakes Bay Oyster Company (DBOC) was Hexpandingll the oyster farm. As discussed in some detail, DBOC is not expanding production. As a general proposition, today (two and a half years after the purchase of DBOC), shellfish production is roughly one-third of that in the 1990's under the previous owner. (3) NPS further indicated that justification for the EA was based on the need for environmental review. As discussed, an EA was finalized in May 1998 in partnership with the County of Marin -- and a Finding of No Significant Impact (FONSI) W<;lS approved. This was initiated when the NPS proposed that the current site be rebuilt and redesigned, new buildings constructed and the entire oyster operation upgraded. We .showed you the document and, in particular, the drawings of the new building complex/ proposed to be 12/000 square feet (about three-to-four times the current onshore footprint). At our meeting, neither you/ Mr. Jarvis or the Solicitor were aware of these three matters ..

Based on the above, the provisions in the proposed SUP can now be deleted .. One additional matter. We were not informed that a representative of the Had we known, we Solicitor's Office would .be attending this meeting. would have had our attorney present. We appreciate the time and effort to discuss these many new provisions. Kevin and Nancy Lunny

George Turnbull/OAKLAND/NPS

To "Kevin Lunny" cc

08/13/200704:15 PM

bcc Jon Jarvis/OAKLAND/NPS Subject Re: Drakes Bay Oyster Farm supffilj

Kevin, thanks for the email. As I think I mentioned the other day, I will be on vacation from today until next Thursday (August 23) when I return. I look forward to meeting with you on August 27. Your attorney is more than welcome to attend the meeting. Your three points are interesting. We can provide a fuller discussion of NEPA compliance at the meeting. As you may imagine, we take a different point of view on these issues. I was not at the meeting with Senator Feinstein, but I was told that it was agreed that some level of NEPA compliance was required as a condition of developing this permit. When I return, we will forward you a revised .SUP based on the discussions last week. I look forward to further discussions with you on this matter George Turnbull "Kevin Lunny" "Kevin I§~ifrny." 08/13/2007 02:38 PM MST

To "George Turnbull" cc Subject Drakes Bay Oyster Farm SUP

Dear George. This is a partial response to the new NPS' proposed permit. comprehensive response will be forthcoming as we proceed.

A more

Now that we better understand the new NPS permit propo.sal, we are beginning to review it. Last Tuesday's meeting helped explain your new proposal. with regard to the NPS' new requirement that an Environmental Assessment (EA) is required{ our discussion concluded:

(1)

None of the four draft SUPs previously prepared by the superintendent

required an EA.

In fact, NPS,

in each draft previously submitted, stated

that (at the bottom of the first page) "NEPA

CATEGORICALLY EXCLUDED ... required.

(2)

II

is marked with an

&

NHPA Compliance:

lIXIl

.

indicating that it was not

NPS indicated that the justification for the EA was based on the NPS

determination that Drakes Bay Oyster Company (DBOC) was II expanding II the oyster farm. As discussed in some detail r DBOC is not expanding production. As a general proposition r today (two and a half years after the purchase of

DBOC) , shellfish production is roughly one-third of that in the 1990's under the previous owner.

(3)

NPS further indicated that justification for the EA was based on the

need for environmental review.

As discussed r an EA was finalized in May

1998 in partnership with the County of M.arin -- and a Finding of No Significant Impact (FONSI) was approved. This was initiated when the NPS proposed that the current site be rebuilt and redesigned, new buildings constructed and the entire oyster operation upgraded. We showed you the document and, in pa'rticular I the drawings of the new building complex, proposed to be 12,000 square feet (about three-to-four times the current onshore footprint) . At our meeting neither you,. Mr. Jarvis or the Solicitor were aware of these three matters .. J

Based on the above, the provisions in the proposed SUP can now be deleted ..

One additional matter. We were not informed that a representative of the Had we known, we would solicitorrs Of~ice would be attending this meeting. have had our attorney present. We appreciate the time and effort to discuss these many new provisions. Kevin and Nancy Lunny

George Turnbull/OAKLAND/NPS

To "Kevin Lunny" cc "David M. Weiman" . IIJon Jarvis"

08/0312007 03:48 PM

bcc



Subject Re: ~ Hi Kevin, Jon Jarvis (after discussions today with Mr. Weiman) asked that I set a meeting up for Tuesday, August 7 in the afternoon to 'go through provisions of the revised Special Use Permit (SUP) we have sent to you (sorry it was undated, it should have been dated July 30, 2007). We propose to meet with you in San Francisco on Tuesday at 2 pm at Building E in lower Fort Mason (San Francisco Maritime NHS headquarters - second floor). I can send you specific directions if you like. I am also working to provide the material you requested below, hopefully in advance of the meeting. I am assuming the earlier SUP you are referring to was the one sent to you on December 20, 2005? Please let me know if you are available. I know Jon's schedule is particularly challenging so hopefully the time/date will work. I look forward to meeting with you. George Turnbull Deputy Regional Director Pacific West Region

510/817-1435 "Kevin Lunny" "Kevin 'iruOAy."

08/03/200709:37 AM MST

To "Jon Jarvis" cc "David M. Weiman" , "George

Subject

Turnbull"

Dear Jon,

This will acknowledge receipt of your letter, undated (A90(PWR-C) which contained a draft SUP.

A quick read indicates that numerous changes have been made to this proposed SUP as compared to the SUP previously submitted. So that we have a comprehensive understanding of this new proposal, would you please itemize the changes, and provide an explanation for each. I would like to meet next week to discuss this proposal and therefore need the clarification about the new proposal as soon as possible. Thank you,

Kevin Lunny. Drakes Ba~ Oyster Farm

"Kevin Lunny"



08/03/2007 09:37 AM

To "Jon Jarvis" cc "David M. Weimann , "George Turnbull" bee

Subject

fifsiory:

~. This messag!)hasbeen t!,pliedto.and f9rwarded.

Dear Jon,

This will acknowledge receipt of your letter, undated (A90(PWR-C) which contained a draft SUP.

A quick read indicates that numerous changes have been made to this proposed SUP as compared to the SUP previously submitted.

So that we have a comprehensive understand"ing of this new proposal, would you please itemize the changes, and provide an explanation for each. I would like to meet next week to discuss this proposal and therefore need t"he clarification about the new proposal as soon as possible. Thank you t Kevin Lunny Drakes Bay Oyster Farm

,-/

I

/

United States Depart~ent of the Interior NATIONAL PARK SERVICE Pacific. West Region

1111 Jackson Street, Suite 700 Oakland, California 94607-4807 IN REPLY REFER TO:

A90(PWR-C) ~19

)<

~p

t.».it.d

L-.I .. "loS;-

0:>.- 1010

. Mr. Kevin Lunny Drakes Bay Oyster Company 17300 Sir Francis Drake Blvd. Inverness, CA 94937 Dear Mr. Lunny: This transmits a copy of the special use permit for the operation of the Drakes Bay Oyster Company. Once you have endorsed the permit, we will promptly sign it and complete the initial environmental compliance. You will have an interim special use permit to maintain ,md operate for a period of one year, as we agreed to on Saturday, July 21, 2007. Please return a fully executed copy to the NPS at the above address. During this period, however, .no additions to the facilities can be made. In addition, California Coastal Commission approval and permits must be secured for any actions they have jurisdiction over before site actions can be taken. This letter also summarizes our action items agreed to at the meeting on July 21. The NPS agreed to: • • • • • •

Remove Drakes Estero: A Sheltered Wilderness from the park website pending an independent review of scientists-report removed July 23 Release data collected at the Estero by August 6 Provide chronology oflegally significant events-attached Develop process for an independerit science panel-underway Develop an interim special use permit using Stevens boundary survey-attached Confirm that environmental compliance will be paid for by the NPS-confirmed

Deputy Regional Director George Turnbull is designated as your point of contact for the negotiations for the special USe permit. Please contact him at 510-817-1435 if you have any concerns about the enclosed copy of the permit. Sincerely,

JO~~

R gional Director, Pacific West Region '--.-~

Enclosures cc:

Don Neubacher, Superintendent, Point Reyes Barbara Goodyear, Field Solicitor

TA.KE PRIDE®"..., t INAMERICA~

Form 10-114 Rev. Jan. UU

Page 1 of 17

UNITED STATES DEPARTMENT OF THE INTERIOR National Park Service

Special Use Permit Name of Use: Aquaculture

Date Permit Reviewed Reviewed Reviewed Expires

2007 20 20 2008

Permit # MISC-8530-6000-7012 Type

Long Term X Short Term

Park Code

No. #

Point Reyes National Seashore Name of Area

Drakes Bay Oyster Company 17171 Sir Francis Drake Blvd. Inverness, CA 94937 (415) 669-1149 is hereby authorized for a period of one year ("Term") commencing on August I, 2007 ("Commencement Date") and terminating on July 31, 2008.("Expiration Date") to use the following described land, improvements, and waters in the following area: the lands and improvements at Drakes Bay Estero at the former Johnson's Oyster Site consisting of approximately I, I acres of land and improvements designated as the "SUP Area" on the map attached hereto as Exhibit B ("Drake's Estero Oysters - SUP & ROP") and the waters designated as the "SUP Area" on the map attached hereto as Exhibit A ("Drake's Estero Oysters: Aquaculture Lease/SUP Area and NPS Resources"). In addition, the Permitter intends tofence off some of the boundaries of the SUP Area shown on Exhibit B, and in the event of any conflict between Exhibit B and fencing provided by the Permitter, the fencing will control. Collectively, the areas so designated shall be referred to as the "Premises." For the purpose(s) of: Use of the area designated as the "SUP Area" on the map attached hereto as Exhibit B for the purpose of processing and selling wholesale and retail oysters, seafood and complimentary food items as set forth in Exhibit D, the interpretation of oyster cultivation to the visiting public and residential purposes reasonably incidental thereto. Use of the area designated as the "SUP Area" on the map attached hereto as Exhibit A for the purpose of oyster growing. Collectively, the uses set forth in this paragraph shall be referred to as the ~'Permitted Uses." Authorizing legislation or other authority (RE - DO-53): 16 U.s.C. I, la-I, 3 & 459c; the Reservation of Use and Occupancy. NEPA & NHPA Compliance: CATEGORICALLY EXCLUDED _ EAlFONSI _ EIS _ OTHER APPROVED PLANS PERFORMANCE BOND: Required Not Required X Amount: Required X Not Required Amount: As set forth in Article 15 of this Permit. LIABILITY INSURANCE: ISSUANCE of this Permit is subject to the terms, covenants, obligations, and reservations, expressed or implied herein and to the payment to the U.S. Dept. of the Interior, National Park Service of the sum of$2,800.00 per year. PERMITTEE:

Authorizing Official:

Signature

Signature

Additional Authorizing Official: Signature (If Required)

Organization

Date

George Turnbull

Deputy Regional Director

Date

Title

Date

LIST OF EXHIBITS EXHIBIT A:

Map - Drake's Estero Oysters: Aquaculture Lease/SUP Area and NPS Resources

EXHIBITB:

Map - Drake's Estero Oysters - SUP & ROP .

EXHIBITC:

Designated Retail Site

EXHIBITD:

Approved List of Complimentary Food Items

CONDITIONS OF THIS PERMIT

1) DEFINITIONS As used in this Permit, the following terms shall have the following meanings: a) "Agency" means any agency, department, commission, board, bureau, office or other governrnental authority having jurisdiction. b) "Applicable Laws" includes, without limitation all present and future statutes, regulations, requirements, Environmental Requirements, guidelines, judgments, or orders of any Agency or judicial body, whether now existing or hereafter established, relating to or affecting the Premises or the use or occupancy of the Premises. c)

"Commencement Date" is as defined on the Cover Page of this Permit.

d) "Cyclic Maintenance" means (i) the performance by Permittee of all repairs, maintenance, or replacement-in-kind necessary to maintain the Premises and the existing improvements thereon in good order, condition, and repair; (ii) housekeeping and routine and periodic work scheduled to mitigate wear and deterioration without materially altering the appearance of the Premises; (iii) the repair or replacement-in-kind of broken or worn-out elements, parts or surfaces so as to maintain the existing appearance of the Premises; and (iv) schedLiled inspections of all building systems on the Premises. e) "Default" means Permittee's failure to keep and perform any of the Provisions of this Permit. f)

"Environmental Requirements" means, without limitation, all standards or requirements relating to the protection of human health or the environment such as: a.

standards or requirements pertaining to the reporting, permitting, management, monitoring, investigation or remediation of emissions, discharges, releases, or threatened emissions, releases or discharges of Hazardous Materials into the air, surface water, groundwater, or land;

b.

standards or requirements relating to the manufacture, handling, treatment, storage, disposal, or transport of Hazardous Materials; and

c.

standards or requirements pertaining to the health and safety of employees or the public.

g) "Expiration Date" is as defined on the Cover Page of this Permit. h) "Hazardous Materials" means, without limitation, any material or substance, whether solid, liquid, or gaseous in nature, a.

the presence of which requires reporting, permitting, management, monitoring, investigation or remediation under any Environmental Requirement;

b.

that is or becomes defined as a·"hazardous waste," "extremely hazardous waste," "restricted hazardous waste," "hazardous substance," "pollutant," "discharge," "waste," "contaminant," or "toxic contaminant" under any Environmental Requirement, or any above-ground or underground storage containers for the foregoing;

c.

that is toxic, explosive, corrosive, flammable, infectious, radioactive, reactive, carcinogenic, mutagenic, or otherwise hazardous to human health or the environment and is or becomes regulated under any Environmental Requirement;

d.

that contains gasoline, diesel fuel or other petroleum hydrocarbons or derivatives or volatile organic compounds, or is an above-ground or underground storage container for same; Page 2

e.

that contains polychlorinated biphenyls (PCBs), asbestos, asbestos-containing materials or urea formaldehyde foam insulation; or

f.

that contains radon gas.

i)

"Hazardous Materials Occurrence" means any use, generation, treatment, keeping, storage, transport, release, disposal, migration, or discharge of any Hazardous Materials from, on, under or into the Premises or Point Reyes National Seashore ("point Reyes") that causes any environmental contamination.

j)

"Improvements or Alterations" means any construction that does not fall within the definition of Cyclic Maintenance.

k)

"NPS" means the management officials in charge of the administration and operation of Point Reyes, including the Superintendent or his/her designee(s).

I)

"Park" means, without limitation, all lands, waters and structures within the legislative boundaries of the Point Reyes National Seashore, all natural and cultural resources within such boundaries, and "ny other property within such boundaries belonging to Point Reyes. As appropriate given the context, this term also includes the visiting public and/or Point Reyes employees. '

m) "Permit" means this one year instrument which contains those certain termination and revocation provisions as provided for herein, n) "Permitted Uses" is as defined on the Cover Page of this Permit. 0)

"Personal Property" means ali furniture, fixtures, equipment, appliances and apparatus placed on the Premises that neither are attached to nor form a part of the Premises. Personal Property also includes any trailers owned by Permittee,

p)

"Point Reyes" means Point Reyes National Seashore,

q)

"Premises" is as defined on the Cover Page of this Permit.

r)

"Provision" shall mean any term, agreement, covenant, condition or provision of this Permit or any combination of the foregoing,

s)

''ROP'' or "Reservation of Use and Occupancy" means the Reservation of Use and Occupancy purchased by the Permittee in 2005. In 1972 the United States of America purchased Johnson Oyster Company's property, subject to a Reservation of Use and Occupancy on approximately 1,5 of those acres for a period of forty (40) years, This Reservation of Use and Occupancy expires in 2012,

t)

"SUP" means this Permit.

u) "Term" is as defined on the Cover Page of this Permit. v) 2)

"Termination Date" means the Expiration Date or such earlier date as this Permit is terminated or revoked pursuant to any Provision of this Permit.

GENERAL CONDITIONS a) The Permittee shall exercise this privilege subject to the supervision of the Superintendent, and shall comply with all Applicable Laws. b)

Permit and Approvals - Except as otherwise provided in this Permit, Permittee shall be responsible for obtaining, at its sole cost and expense, all necessary permits, approvals or other authorizations relating to Permittee's use and occupancy of the Premises. Page 3

c)

Damages - The Permittee shall pay the United States for any damage resulting from this use which would not < reasonably be inherent in the use which the Permittee is authorized to make of the land and areas described In this Permit.

d) Benefit - Neither Members of, nor Delegates to Congress, or Resident Commissioners shall be admitted to any share or part of this Permit or derive, either directly or indirectly any pecuniary benefits to arise therefrom: Provided, however, that nothing herein contained shall be construed to extend to any incorporated company if the Permit be for the benefit of such corporation. e) Assignment and Subletting - This Permit may not be transferred or assigned without the consent of the Permitter, in writing. Permittee shall not sublet the Premises or any part thereof or any property thereon, nor grant any interest, privilege or license whatsoever in connection with this Permit without the prior written approval of the Permitter. f)

Revocation - This Permit may be terminated upon breach of any of the conditions herein or at the discretion of the Permitter.

g) The Permittee is prohibited from giving false information; to do so will be considered a breach of conditions and be grounds for revocation [Re: 36 CFR 2.32(4)] 3) USE OF PREMISES a)

Permittee is authorized to use the Premises only for the Permitted Uses.

b) Permittee shall not engage in any activity that may be dangerous or harmful to persons, property, or the Park; that constitutes or results in waste or unreasonable annoyance (including, without limitation, signage and the use of loudspeakers or sound or light apparatus that could disturb park visitors and wildlife outside the Premises); that in any manner causes or results in a nuisance; or that is of a nature that it involves a substantial hazard, such as the manufacture or use of explosives, chemicals or products that may explode. c)

The Parties hereby acknowledge and agree that Permittee's covenant that the Premises shall be used as set forth in this Article 3 is material consideration for Permitter's agreement to enter into this Permit. The Parties further acknowledge and agree that any violation of said covenant shall constitute a Default under this Permit and that Permitter may inspect the premises at any time.

d) This Permit is subject to the right of the NPS to establish trails and other improvements a.nd betterments over, upon, or through the Premises and further to the use by travelers and others of such established or existing roads and trails. The Permittee understands that occasional park visitors are authorized to walk, use non-motorized watercraft, or hike in the various areas included in this Permit even though no trails are formally established . . e)

f)

Permitter reserves the right for Permitter, its employees, contractors and agents to enter and to permit any Agency to enter upon the Premises for the purposes of. inspection, inventory or when otherwise deemed appropriate by the Permitter for the protection of the interests of Permitter, including Permitter's interests in any natural or cultural resources located on, in or under the Premises. Permitter reserves
g) Permittee hereby waives any claim for damages for any injury, inconvenience to or interference with Permittee's use and occupancy of the Premises, any loss of occupancy or quiet enjoyment of the Premises, or any other loss occasioned by Permitter's exercise of its rights
contractors or agents; provided, further, that Permitter shall be liable only to the extent such claims are allowed under the Federal Tort Claims Act. . h)

Permittee's operations are to be set back on the shore a minimum of 50 feet from the mean high tide mark, excepting a portion of that area which is the subject of this Permit and that is described in the attached map (Exhibit B).

i)

While Permittee is permitted to use and operate motorized watercraft in Drakes Estero for the purpose of conducting daily business operations, no other use of Permittee's motorized watercraft is authorized. No motorized watercraft may enter the designated wilderness boundary (See "Existing Wilderness" on map attached hereto as Exhibit A). To protect water quality in the Estero, any additional or replacement boat motors obtained by Permittee must be four stroke motors.

j)

Permittee must avoid disturbance to marine mammals and marine mammal haul-out sites. The Marine Mammal Protection Act, 16 U.S.C. 1361 et seq., includes a prohibition against any act of pursuit, torment or annoyance that has the potential to injure or disturb a marine mammal or marine mammal stock in the wild by causing disruption of behavioral patterns, including, but not limited to, migration, breathing, nursing, breeding, feeding, or sheltering. The National Oceani.c and Atmospheric Administration (NOAA) recommends maintaining a distance of at least 100 yards to avoid disturbance to seals. Permitter will monitor marine mammal populations in Drakes Estero. In addition, during the pupping harbor seal closure period, March 1-June 30, the designated wilderness area (outside of Permit area) is closed to all boats. Permittee shall not place oyster and/or clam bags in seal haulout areas as identified in Exhibit A. Any bags or cultivation equipment currently placed in haul-out areas shall be immediately removed.

k)

In order to avoid introduction of exotic pests to. Drakes Estero only oyster "seed" and not whole oysters may be imported. Seed must be obtained from regions approved by Permitter. At issuance of this Permit Washington, Oregon, and California are exclusively approved regions for obtaining oyster seed.

I)

Due to a lack of adequate parking space and restroom facilities for the public, barbecuing is not permitted in the Special Use Permit Area; visitors may be directed to facilities located at Drakes Beach. Picnic tables will be provided by the NPS at the adjacent parking area.

m) No discharge into the estuary is permitted. This prohibition includes any discharge from processing facilities. n)

In order to ensure public health and safety,no pets, including dogs and cats, shall be permitted in the Special Use Permit Area.

0) In order to ensure public health and safety, Permittee shall allow all appropriate Federal, State and/ or County agencies; including the United States Department of Health and Human Services, the State of California Department of Health Services and Marin County Community Development Agency Environmental Health Services, to conduct inspections on a routine basis.

p)

4)

Permittee shall retail only those items that are approved by the superintendent in writing. Exhibit D sets forth the approved list of retail items. The designated retail site as set forth in Exhibit C is the sole building that can be used for retail items.

SPECIAL PERMIT CONDITIONS a) The maximum annual production limit for oysters, rock scallops and clams shall be 700,000 pounds. Oysters are limited in number to 9,000,000 and clams to 1,000,000. b)

No additional oyster racks and/or cultivation infrastructure shall be constructed during the term of this permit. Permittee shall remove abandoned oyster racks and/or cultivation infrastructure and equipment from Drakes Estero.

c)

Placement of bags for oyster and/or clam production is prohibited in eelgrass areas. Any bags currently placed in Page 5

eelgrass areas shall be removed immediately. d) Within sixty (60) days following the signing of this interim Permit, Permittee shall submit for National Park Service and California Coastal Commission approval a boating operations plan designed to mitigate impacts to eelgrass beds within Drakes Estero. This plan shall indicate dedicated navigation routes, chosen to minimize impacts to eelgrass beds when accessing oyster racks and/or cultivation equipment. e)

In order to control invasive species, Permittee shall make every effort to ensure that no new species enter the estuary. Within sixty (60) days following the signing of this interim Permit, Permittee shall submit for National Park Service and California Coastal Commission approval a concise invasive species mitigation plan that includes best management practices (BMP's).

f)

Permittee shall not introduce species of oysters and/or clams beyond those described in the existing leases from the California Department of Fish and Game.

g) This Permit is subject to the good faith participation of the Permittee in the environmental compliance process regarding the issuance of a Special Use Permit for the remainder of the term of the ROP. Such good faith partiCipation shall include complying with the requirements set forth in Section 20(b) of this Permit. 5) ACCEPTANCE OF PREMISES

6)

a)

Prior to entering into this Permit, Permittee has made a thorough, independent examination of the Premises and all matters relevant to Permittee's decision to enter into this Permit, and Permittee is thoroughly familiar with all aspects of the Premises and is satisfied that they are in an acceptable condition and meet Permittee's needs.

b)

Permittee expressly agrees to use and occupy the Premises and all improvements thereon in their existing "AS IS" condition "WITH ALL FAULTS" and acknowledges that in entering into this Permit, Permittee does not rely on, and Permitter does not make, any express or implied representations or warranties as to any matters including, without limitation, the suitability of the soil or subsoil; any characteristics of the Premises or improvements thereon; the suitability of the Premises for the approved use; the economic feasibility of Permittee's use and occupancy of the Premises; title to the Premises; the presence of Hazardous Materials in, on, under or in the vicinity of the Premises; or any other matter. Permittee has satisfied itself as to such suitability and other pertinent matters by Permittee's own inquiries and tests into all matters relevant to determining whether to enter into this Permit and Permittee hereby accepts the Premises.

CONSTRUCTION OF IMPROVEMENTS OR ALTERATIONS a)

Permittee shall not undertake any Improvements or Alterations to the Premises (including installation of temporary equipment or facilities) without the prior written approval of Permitter.

b) As a prerequisite to obtaining approval for Improvements or Alterations, Permittee, at Permittee's sole cost and expense, shall submit design plans and any other relevant data for Permitter's approval. c)

Construction of Improvements or Alterations by Permittee shall be performed in accordance with all Applicable Laws, including but not limited to general planning, building, and environmental laws and approved design plans and shall be undertaken and completed at Permittee's sole cost and expense.

d) Permittee shall, upon request, furnish Permitter with a true and correct copy of any contract, and any modification or amendment thereof, with Permittee's contractors, architects, or any other consultants, engaged in connection with this Permit. e) Any Improvements or Alterations undertaken by Permittee shall be performed in a good and workmanlike manner and with materials of a quality and standard acceptable to Permitter. Permittee shall also construct, install and maintain equipment and any construction facilities on the Premises in a safe and orderly manner. f)

Permittee shall not construct any Improvements or Alterations outside the boundaries of the Premises. Page 6

g) Permitter in its discretion is entitled to have on the Premises at any time during the construction of Improvements or Alterations an inspector or representative who shall be entitled to observe all aspects of the construction on the Premises. h) All lumber utilized at the site will be processed in compliance with current laws and regulations regarding wood treatments. This includes lumber utilized in assembly and repair of oyster racks. i)

As set forth in Article 17, title to any Improvements or Alterations to the Premises shall be and remain solely in the Permitter.

7) TREATMENT OF REFUSE a)

Refuse shall be promptly removed from within the boundaries of Point Reyes National Seashore and shall be disposed of in accordance with Applicable Laws.

b) Areas in Drakes Estero must be kept f(ee of debris associated with oyster production operations including wood from racks, piastic spacers, unused oyster bags, and any other associated items. 8)

PESTICIDE AND HERBICIDE USE a) The National Park Service utilizes Integrated Pest Management ("IPM") to treat pest and vegetation problems. The goal of IPM is to use the least-toxic, effective methods of controlling pests and vegetation. Except for normal household purposes, Permittee shall not use any pesticides that do not comply with the IPM program. To this end, Permittee shall submit in writing to Permitter, a request for the use of pesticide(s) or herbicide(s) and shall not use any pesticide(s) or herbicide(s) until Permittee has received an express written authorization therefor from Permitter. b)

9)

Permittee shall manage, treat, generate, handle, store and dispose of all pesticides and herbicides in accordance with Applicable Laws, inciuding reporting requirements.

FIRE PREVENTION AND SUPPRESION a) Permittee and its employees, agents, and contractors shall, in Permittee's use and occupancy of the Premises, take all reasonable precautions to prevent forest, brush, grass, and structural fires and shall, if safety permits, assist the Permitter in extinguishing' such fires on the Premises.

10) EXCAVATION, SITE AND GROUND DISTURBANCE a) Permittee shall not cut, remove or cilter any timber or any other landscape feature; conduct any mining or drilling operations; remove any sand, gravel or similar substances from the ground or watercourse; commit waste of any kind; or in any manner change the contour or condition of the Premises without the prior written approval of the Permitter. Except in emergencies, Permittee shall submit requests to conduct such activities in writing to the Permitter not less than sixty (60) days in advance of the proposed commencement date of any such activities. b) If approval of activities referenced above in Section10(a) is granted, Permittee shall abide by all the terms and conditions of the approval, including provisions pertaining to archaeological resources. c)

No soil disturbance of any kind may occur in the vicinity of a known archeological site.

11) NONPOINT SOURCE POLLUTION a) The Permittee shall comply with all Applicable Laws regarding non-point source pollution (including the protection of beneficial uses of waters as designated by the State of California). Further, Permittee's use and occupancy of the Premises shall be designed to minimize, to the greatest extent feasible, non-point source pollution within National Park Service boundaries or on adjacent lands. Page 7

b) As set forth in Section 3(m) of this Permit, no discharge into the estuary is permitted. This prohibition includes any discharge from processing facilities. 12) TREE AND VEGETATION REMOVAL a) The Permittee may not remove tree(s) or vegetation unless expressly approved in writing by the Permitter. The Permittee shall provide specific plans to the Permitter for desired tree(s) and vegetation removal during the annual meeting or in writing during the Term of this Permit. b)

Removal of non-native invasive vegetation such as non-native thistles, trimming and vegetation removal around structures is permissible.

13) WILDLIFE PROTECTION a) Wildlife is an integral part of Point Reyes National Seashore and must be managed in accordance with all Applicable Laws, including but not limited to NPS legislation, the Code of Federal Regulations, and NPS policies, including but not limited to NPS Management Policies 2006, as such may be amended. b)

Permittee shall not engage in any activity that purposely causes harm or destroys any wildlife. Conversely, Permittee shall not engage in any activity that purposely supports or increases populations of non-native or invasive animal species.

c) As set forth in Section 3(j) of this Permit, Permittee must avoid disturbance to marine mammals and marine mammal haul-out sites. d) On a case by case basis, the Permitter will evaluate incidences of depredation and choose a course of action. The nature of the course of action will be determined by the extent and frequency of the damage, the wildlife species, and park-wide management objectives. 14) HAZARDOUS MATERIALS; ENVIRONMENTAL HEALTH AND SAFETY a)

In connection with this Permit, Permittee, its officers, agents, employees and contractors, shall not use, generate, sell, treat, keep, or"store any Hazardous Materials on, about, under or into the Premises or elsewhere in Point Reyes except in compliance with all Applicable Laws and as approved in writing by Permitter. However, Permittee shall not be obligated to obtain Permitter's approval to use, keep, or generate Hazardous Materials as necessary for the normal operation or maintenance of vehicles. Permittee agrees to be responsible for timely acquisition of any permit(s) required for its Hazardous Materials-related activities, and shall provide to the Permitter, upon request, inventories of all such Hazardous Materials and any supporting documentation, including but not limited to material safety data sheets, uniform waste manifest forms, and/or any other pertinent permits.

b) Permittee, its officers, agents, employees and contractors, shall not release, discharge or dispose of any Hazardous Materials from, on, about, under or into the Premises or elsewhere in Point Reyes: c)

If Permittee knows of or reasonably suspects or receives notice or other communication concerning any past, ongoing, or potential violation of Environmental Requirements in connection with the Premises or Permittee's activities, Permittee shall immediately inform Permitter and shall provide copies of any relevant documents to Permitter. Receipt of such information and documentation shall not be deemed to create any obligation on the part of the Permitter to defend or otherwise respond to any such notification.

d) If any Hazardous Materials Occurrence is caused by, arises from, or is exacerbated by the activities authorized under this Permit or by the use of the Premises by Permittee, its officers, agents, employees or contractors, Permittee shall promptly take all actions at its sole cost and expense as are required to comply with Applicable Laws and to allow the Premises and any other affected property to be used free of any use restriction that could be imposed under Applicable Laws; provided that, except in cases of emergency, Permitter's approval of such actions shall first be obtained. Page 8

e) The Permitter shall have the right, but not the duty, at all reason
Should Permittee, its officers, agents, employees or contractors, tail to perform or observe any of the obligations or agreements pertaining to Hazardous Materials or Environmental Requirements for a period of thirty (30) days (or such longer period of time as is reasonably required) after notice, then Permitter shall have the right, but not the duty, without limitation of any other rights of Permitter under this Permit, personally or through its agents, consultants or contractors to enter the Premises and perform the same. Permittee agrees to reimburse Permitter for the costs thereof and to indemnify Permitter as provided for in this Permit.

g) Permittee understands and acknowledges that the Premises may contain asbestos and lead-based paint. If Permittee performs any Improvements or Alterations, Permittee shall comply with all Environmental Requirements related to asbestos and lead-based paint and shall solely bear all costs associated therewith. Nothing in this Permit shall be construed to require Permittee to remove asbestos or lead-based paint unless Environmental Requirements require such removal. h)

Permittee shall indemnify, defend, save and hold Permitter, its employees, successors, agents and assigns, harmless from and against, and reimburse Permitter for, any and all claims, demands, damages, injuries, losses, penalties, fines, costs, liabilities, causes of action, judgments, and expenses, including without limitation, consultant fees and expert fees, that arise during or after the Term as a result of any violation of any Environmental Requirement in connection with this Permit or any Hazardous Materials Occurrence in connection with this Permit.

i)

The provisions of this Article 14 shall survive any termination or revocation of this Permit. Article 15 (Insurance) of this Permit shall not limit in any way Permittee's or Permitter's obligations under this Article 14.

15) INSURANCE a)

Permittee shall purchase the types and amounts of insurance described herein before the Commencement Date of this Permit unless otherwise specified. At the time such insurance coverage is purchased, Permittee shall provide Permitter with a statement of Penilittee insurance describing the insurance coverage in effect and a Certificate of Insurance covering each policy in effect as evidence of compliance with this Permit. Permittee shall also provide the Permitter thirty (30) days advance written notice of any material change in the Permittee's insurance program hereunder. Permitter shall not be responsible for any omissions or inadequacies in insurance coverage or amounts in the event such coverage or amounts prove to be inadequate or oth.erwise insufficient for any reason whatsoever.

b)

From time to time, as conditions in the insurance industry warrant, the Permitter reserves the right to revise the minimum insurance limits required in this Permit.

c)

All insurance policies required by this Permit shall specify that the insurance company shall have no right of subrogation against the United States, except for claims arising solely from the negligence of the United States or its employees, or shall provide that the United States is named as an additional insured.

d) All insurance policies required herein shall contain a loss payable clause approved by the Permitter which requires insurance proceeds to be paid directly to the Permittee without requiring endorsement by the United Page 9

States. Insurance proceeds covering" any loss of the Premises but not used to replace such losses shall be promptly paid by Permittee to Permitter. The use of insurance proceeds for the repair, restoration or replacement of the Premises shall not give any ownership interest therein to Permittee. e)

Property Insurance: At a minimum, the Permittee shall be required to purchase Basic Form Actual Cash Value (replacement cost less depreciation) insurance coverage for all residence on the Premises. Within thirty days of issuance of the Permit, the Permittee shall submit a report from a reputable insurance company which provides a full range of options for insurance coverage on all nonresidential structures on the Premises. Within thirty days of receipt of this report, the Permitter, in its sole discretion, will review and specify the type and level of insurance coverage which shall be required. The Permitter will provide the Permittee written notification of insurance requirements and the Permittee shall be required to have the specified level(s} of insurance in place within thirty days of such notification. The cost of the insurance will be deducted from the appraised fair market value for the Premises; this adjustment and the insurance requirements will be addressed in an amendment to the Permit. Permittee shall, in the event of damage or destruction in whole or in part to the Premises, use all proceeds from the above described insurance policies to repair, restore, replace or remove those buildings, striJctures, equipment, furnishings, betterments or improvements determined by the Permitter, in Permitter's sole discretion, to be necessary to satisfactorily discharge the Permittee's obligations under this Permit.

f}

Public Liability: The Permittee shall provide Comprehensive General liabilitY insurance against claims arising from or associated with Permittee's use and occupancy of the Premises. Such insurance shall be in the amount commensurate with the degree of risk and the scope and size of such use and occupancy, but in any event, the limits of such insurance shall not be less than $1,000,000.00 per occurrence covering both bodily injury and property damage. If claims reduce available insurance below the required per occurrence limits, the Permittee shall obtain additional insurance to restore the required limits. An umbrella or excess liability policy, in addition to a Comprehensive General Liability Policy, may be used to achieve the required limits.

g) Permittee shall also obtain the following additional coverage:

i)

Automobile Liability - To cover all owned, non-owned, and hired vehicles in the amount of $300,000.00.

ii}

Workers' Compensation - The amount shall be in accordance with that which is required by the State of California.

16} INDEMNITY a}

In addition to the indemnification contained in Article 14, Permittee shall indemnify, defend, save and hold Permitter, its employees, successors, agents and assigns, harmless from and against, and reimburse Permitter for, any and all claims, demands, damages, injuries, losses, penalties, fines, costs, liabilities, causes of action, judgments and expenses and the like incurred in connection with or arising in any way out of this Permit; the use or occupancy of the Premises by Permittee or its officers, agents, employees, or contractors; the design, construction, maintenance, or condition of any Improvements or Alterations; or any accident or occurrence on the Premises or elsewhere arising out of the use or occupancy of the Premises by Permittee or its officers, agents, employees, or contractors. Permittee's obligations hereunder shall include, but not be limited to, the burden and expense of defending all claims, suus and administrative proceedings (with counsel reasonably approved by Permitter), even if such claims, suits or proceedings are groundless, false or fraudulent, and conducting all negotiations of any description, and paying and discharging, when and as the same become due, any and all judgments, penalties or other sums due against the United States.

b)

Permitter agrees to cooperate, to the extent allowed by law, in the submission of claims pursuant to the Federal Tort Claims Act against the United States by third parties for personal injuries or property damage resulting from the negligent act or omission of any employee of the United States in the course of his or her employment.

c)

This Article 16 shall survive any termination or revocation of this Permit. The provisions of Article 15 (Insurance) of this Permit shall not limit in any way Permittee's obligations under this Article 16. Page 10

17) PROPERTY INTEREST a) This Permit shall vest in Permittee nQ property interest in the Premises or in the improvements thereon. Title to real property and improvements thereon, including any Improvements or Alterations constructed by Permittee, shall be and remain solely in Permitter. Permittee shall have no claim for any compensation or damages for the Premises, the improvements thereon, or any Improvements or Alterations constructed by the Permittee. b)

Nothing in this Permit shall give or be deemed to give Perinittee an independent right to grant easements or other rights"of-wayover, under, on, or tlirough the Premises.

c)

Permitter hereby retains the sole and exclusive right to oil, gas, hydrocarbons, and other minerals (of whatsoever character) in, on, or under the Premises.

18) RENTS. TAXES AND ASSESSMENTS a) The annual rental rate for this Permit shall be established by Permitter and is set forth on the Cover Page of this Permit. b) The annual rent under this Permit is payable in advance on a semi-annual basis. Therefore, Permittee hereby agrees to pay fifty percent of the annual rate on or before August with the remaining fifty percent payable on or before December of each year during the Term. c)

Permittee shall pay the proper Agency, when and as the same become due and payable, all taxes, assessments, and similar charges which, at any time during the Term of this Permit, are levied or assessed against the Premises.

d) Rents due hereunder shall be paid without assertion of any counterclaim, setoff, deduction or defense and without abatement, suspension, deferment or reduction. 19) CYCLIC MAINTENANCE a)

Permittee shall perform all Cyclic Maintenance in accordance with the Provisions of this Permit and at Permittee's sole cost and expense. P.ermittee is responsible for the maintenance of all fences, buildings, and other improvements upon the Premises. All improvements and facilities used and occupied by Permittee shall at all times be protected and maintained in a safe, sanitary and sightly condition.

b) Specific maintenance requirements may be negotiated with Permittee each year as outlined in Article 21 (Annual Meeting). c)

Docks and Fences must be in good repair. Abandoned fences and other decrepit improvements shall be removed from the Premises and shall be disposed of outside the Park or as directed by Permitter after review and approval by the NPS Historian.

d) Lighting of the Premises shall be redesigned to protect and preserve the night sky/darkness and minimize light pollution in Drakes Estero. e)

Parking areas shall be maintained in a safe condition and no new roads or truck trails shall be established without prior written permission of the Permitter. The main entrance road will be maintained by the NPS.

f)

Existing water reservoirs shall be maintained in a safe and secure condition to prevent washouts and erosion and no new reservoirs shall be constructed or established without prior written approval of the Permitter.

g) Permittee shall maintain the water, well, pump and all pipelines from the main line to the structures within the Premises. Permittee shall replace or repair any damage or loss of the water system within the Premises. h) Permittee shall be responsible for removing slash buildup around fences .or other facilities within the Premises so Page 11

as to prevent fire and egress hazards. Permittee shall also be responsible for removing litter and trash from the Premises. 20) COMPLIANCE WITH APPLICABLE LAWS; NEPA. NHPA a)

General Compliance; As provided for in this Permit, Permittee at its sole cost and expense shall promptly comply with all Applicable Laws. Permittee shall immediately notify Permitter of any notices received by or on behalf of Permittee regarding any alleged or actual violation(s) of or non-compliance with Applicable Laws. Permittee shall, at its sole cost and expense, promptly remediate or correct any violation(s) of Applicable Laws.

b)

National Environmental Policy Act and National Historic Preservation Act: Where activities undertaken by Permittee require the preparation of compliance documents pursuant to the National Environmental Policy Act ("NEPA") or the National Historic Preservation Act ("NHPA") ("Compliance Activity"), Permittee shall supply all necessary information to Permitter and any Agency in a timely manner. If Permitter determines that the Compliance Activity is warranted, Permitter will prepare NEPA or NHPA documents as appropriate. Permittee shall not implement any aspect of the Compliance Activity until all applicable NEPA and NHPA requirements have been met.

21) ANNUAL MEETING a)

The Parties shall meet annually in the spring of each year during the Term of this Permit for the purposes of discussing and resolving issues of mutual concern and ensuring that Permittee is complying with the Provisions of this Permit. Any proposed changes or modifications to this Permit which are required in order to meet National Park Service requirements or objectives shall be discussed and negotiated at the Annual Meeting. If National Park Service requirements or objectives require prompt attention, the date of the Annual Meeting may reasonably be changed by Permitter.

22) PENALTY a) At the option of the Permitter, Permitter may, in lieu of voiding and terminating this Permit, assess a penalty of $50.00 per day for any failure by Permittee to keep and perform any of the Provisions of this Permit. In such case, Permittee shall be given notice in writing of a grace period (of from one to thirty days) to remedy the situation before a penalty will be assessed. Payment of any penalty under this provision shall not excuse Permittee from curing the Default. This provision shall not be construed as preventing Permitter from issuing citations or initiating enforcement proceedings under Applicable Laws. 23) TERM a)

Six months prior to the Expiration Date of this Permit, this Permit, or a similar permit, may be offered to Permittee for an additional period.

b)

If a subsequent permit is not entered into prior to the Expiration Date, the Provisions of this Permit regarding Permittee's obligations to surrender and vacate the Premises shall apply.

c)

The Permittee and Permitter acknowledge and recognize that the Reservation of Use and Occupancy referenced in the deed from Johnson Oyster Company to the United States of America, recorded on November 30, 1972, in book 2634, page 641 of the Official Records of Marin County, California, expires on November 9, 2012. The Permittee acknowledges that they have been informed about the Congressional designation in 1976 of Drakes Estero as potential wilderness and the statutory mandate that the Park be managed "in a manner ... supportive of the maximum protection, restoration, and preservation of the natural environment within the area." The Permittee also acknowledges that they have been provided the Office of the Solicitor legal opinion dated February 26, 2004 regarding the future of the potential wilderness area.

24) SURRENDER AND VACATE THE PREMISES. RESTORATION A) On the Termination Date of this Permit, Permittee shall surrender and vacate the Premises, remove Permittee's Page 12

Personal Property therefrom, and repair any damage resulting from such removal. Subject to the approval of the Permitter, Permittee shall also return the Premises to as good order and condition (subject to ordinary wear and tear and damage that is not caused directly or indirectly by Permittee) as tliat existing upon the Effective Date. b) All Permittee's Personal Property shall remain the property of Permittee. However, if after the Termination Date, Permittee shall fail satisfactorily to remove Permittee's Personal Property and so repair the Premises, then, at the Permitter's sole option, after notice to Permittee, Permittee's Personal Property, shall either become the property of the Permitter without compensation therefore, or the Permitter may cause it to be removed and the Premises to be repaired at the expense of Permittee, and no claim for damages against Permitter, its employees, agents or contractors shall be created or made on account of such removal or repair work. 25) LIMITATION ON EFFECT OF APPROVALS a) All rights of Permitter to review, comment upon, approve, inspect or take any other action with respect to the use and occupancy of the Premises by Permittee, or any other matter, are expressly for the benefit of Permitter and no other party. No review, comment, approval or inspection, right or exercise of any right to perform Permitter's obligations, or similar action required or permitted by, of, or to Permitter under this Permit, or actions or omissions of Permitter's employees, contractors, or other agents, or other circumstances shall give or be deemed to give Permitter any liability, responsibility or obligation for, in connection with, or with respect to the operation of the Premises, nor shall any such approval, actions, information or circumstances relieve or be deemed to relieve Permittee of its obligations and responsibilities for the use and occupancy of the Premises as set forth in this Permit. 26) WAIVER NOT CONTINUING a) The waiver of any Default, whether such waiver be expressed or implied, shall not be construed as a continuing waiver, or a wavier of or consent to any subsequent or prior breach of the same or any other provision of this Permit. No waiver of any Default shall affect or alter this Permit, but each and every Provision of this Permit shall . continue in full force and effect with respect to any other then existing or subsequent Default.

a)

Permittee shall have no power to do any act or to make any contract that may create or be the foundation for any lien, mortgage or other encumbrance upon the reversion, fee interest or other estate of the Permitter or of any interest of the Permitter in the Premises. If any such lien shall at anytime be filed against the Premises or any portion thereof, Permittee shall cause the Permitter to be discharged from the lien.

28) HOLDING OVER a) This Permit shall terminate upon the Termination Date and any holding over by Permittee after the Termination Date shall not constitute a renewal of this Permit or give Permittee any rights under this Permit or in or to the Premises. 29) NOTICES a) Any notice or other communication required or permitted under this Permit shall be in writing and shall be delivered by hand or certified mail with return receipt requested. Notices and other commynications shall be addressed as follows: If to Permitter: Superintendent Point Reyes National Seashore Point Reyes Station, CA 94956 If to Permittee:

Page 13

Mr. Kevin Lunny Drakes Bay Oyster Company 17171 Sir Francis Drake Inverness, CA 94937 30) NO PARTNERSHIP OR JOINT VENTURE a)

Permitter is not for any purpose a partner or jOint venturer of Permittee in the development or operation of the Premises or in any business conducted on the Premises. Permitter shall not under any circumstances be responsible or obligated for any losses or liabilities of Permittee.

31) ANTI-DEFICIENCY ACT a)

Permittee and Permitter agree-that nothing contained in this Permit shall be construed as binding Permitter to expend, in any fiscal year, any sum in excess of the appropriation made by Congress for that fiscal year in furtherance of the subject matter of this Permit, or to involve Permitter in any contract or other obligation for the future expenditure of money in excess of such appropriations.

32) COMPLIANCE WITH EQUAL OPPORTUNITY LAWS a)

Permittee agrees that in undertaking all activities pursuant to this Permit, Permittee will comply with all Applicable Laws relating to non-discrimination.

33) ENTIRE AGREEMENT AND AMENDMENT a) This instrument, together with the exhibits hereto, all 'of which are incorporated in this Permit by reference, constitutes the entire agreement between-Permitter and Permittee with respect to the subject matter of this Permit and supersedes all prior offers, negotiations, oral and written. This Permit may not be amended or modified in any respect whatsoever except by an instrument in writing signed by Permitter and Permittee. 34) NO PAYMENTS BY PERMITTER a)

Under no circumstances or conditions, whether now existing or hereafter arising, and whether or not beyond the _ present contemplation of the Parties, shall Permitter be expected or required to _make any payment of any kind whatsoever with respect to the Premises or be under any obligation or liability except as expressly set forth in this Permit.

35) NO THIRD PARTY BENEFICIARIES a)

Except as expressly set forth in this Permit, this Permit shall not be deemed to confer upon any person or entity, other than the parties to this Permit as expressly set forth in this Permit, any third party beneficiary status, any right to enforce any Provision of this Permit, or any other right or interest.

36) NO PREFERENTIAL RENEWAL AND RELOCATION ASSISTANCE a)

Permittee hereby agrees that Permittee is not a concessioner and that the provisions of law regarding National Park Service conceSSionaires do not apply to Permittee. No rights shall be acquired by virtue of this Permit entitling Permittee to claim benefits under the Uniform Relocation Assistance and Real Property Acquisition Policies Act of 1970, Public Law 91-646.

37) SEVERABILITY a)

In case anyone or more of the provisions of this Permit shall for any reason be held to be invalid, illegal or unenforceable in any respect, such invi:i1idity, illegality or unenforceability shall not affect any other provision of this Permit, and this Permit shall be construed as if such invalid, illegal or unenforceable provisions had not been Page 14

contained in this Permit. 38) EXHIBITS a)

Each of the exhibits referenced in this Permit is attached hereto and incorporated herein.

39) TIME OF THE ESSENCE a) Time is hereby expressly declared to be of the essence of this Permit and of each and every Provision of this Permit. . 40) HEADINGS a) Article, Section and Subsection headings in this Permit are for convenience only and are not to be construed as a part of this Permit or in any way limiting or amplifying the Provisions of this Permit. 41) PERMIT CONSTRUED AS A WHOLE a) The language in all parts of this Permit shall in all cases be construed as a whole according to its fair meaning and not strictly for or against either Permitter or Permittee. The Parties acknowledge that each party and its counsel have reviewed this Permit and participated in its drafting and therefore that the rule of construction that any ambiguities are to be resolved against the drafting party shall not be employed or applied in the interpretation of this Permit. 42) .MEANING OF TERMS a) Whenever the context so requires, the neuter gender shall include the masculine and the feminine, and the singular shall include the plural and vice versa. 43) FEDERAL LAW a)

The laws of the United States shall govern the validity, construction and effect of this Permit.

Page 15

EXHIBIT A

MAP

National Park Service Point Reyes National Seashore Marin County. CA

~_~5~O::::=1:i0.O_••15CO==2~~eet

Permit Type

I

I ROP - 1.5 acres

DI SUP - 1.1 acres

EXHIBITB

MAP

Astragalus Pycnostachys

i: : '. '; Aquaculture Lease~SUP Area . . Harbor Seal HauloutArea

!S2J Potential Vvllderness - Water -~ Existing Wilderness - Water

Permit Type _ROP SUP lot dale; Febuary I, 2007

a_ _ _ _ _.o=====.·Miles 0.5 0.4 miles

s:/gisiprojeClS llNeubaciler/JohnsonsiDrakes Estero oyester Lease & Drakes Estero4.mxd

EXHIBITC Designated Retail Site

EXHIBITC

Designated Retail Site

". I

U

PLOT PLAN

EXHIBIT 0 Approved list of Complimentary Food Items

• Limes • Sauces • . Sodas - Permittee may retail no more than four varieties of sodas. • Water • Ranch food products grown and or processed on adjacent ranches. The non-food items that the DBOC would like to continue to retail: • • • • •

Oyster knives Crab shell crackers Insulated containers Gloves Aprons



Drake's Bay Oyster Company's Reservation of Use and Occupancy Updated, NPS July 26, 2007 Chronology of Legally Significant Events 1934: According to State, earliest state water bottom leases at Drakes Estero 1962: . Enactment of Point Reyes National Seashore enabling act( codified at 16 U.S.C. § 459c - 459c-7), to include Drakes Estero. 1965: By act of the California Legislature, State grants to the United States "all ofthe right, title, and interest of the State of California ... in and to all of the tide and submerged lands or other lands beneath navigable waters situated within the boundaries of Point Reyes National Seashore .... " Thus, the tidal and submerged lands of Drakes Estero become NPS land, subject to the laws, regulations, and policies governing NPS land. • Because of this conveyance to the United States, the California Department of Fish and Game (CDF&G) recognizes that the Drakes Bay Oyster Company mariculture operation in the estuary "is properly within the primary management authority of [Point Reyes National Seashore], not the Department." CDF&G Letter to Supt. Neubacher, dated May 15,2007. The CDF&G water bottom lease is also expressly contingent on the 1972 Reservation of Use and Occupancy (described below) and subject to all NPS rules and regulations: Id. 1972: United States purchases Johnson Oyster Company's property ("five acres, more or less" onshore) for $79,200, subject to a Reservation of Use and Occupancy on approximately 1.42 ofthose acres for a period offorty (40) years-till 2012. • Thus, the Reservation of Use and Occupancy is not a lease. Rather, it is "a tenninable right to use and occupy" the 1.42 acres for a period of 40 years for specified purposes. See Reservation of Use and Occupancy, Exhibit "C" to the 1972 Grant Deed (copy attached). The United States owns the underlying fee, having purchased the property for a price that reflects the value of the 40-year reservation. • The Reservation of Use and O'ccupancy has 18 paragraphs oftenns and conditions, including but not limited to requirements that (a) the Oyster Company "abide by all rules and regulations pertaining to National Park System areas"; (b) "[t]he premises ... be maintained in a safe, sanitary, and sightly condition ... meeting all Federal, State, and County health, sanitation, and safety standards ... "; (c) "[n]o pennanent or temporary structure, sign or other improvement of any type whatsoever ... be erected ... in or upon the reserved premises or improvements without the prior written approval of the Director." • The Reservation of Use and Occupancy expires in 2012. 1976: Enactment of additional Point Reyes National Seashore legislation to designate wilderness and strengthen the enabling act (Pub. L. No. 94-544 (Oct 18, 1976):

1





Wilderness: Designates a~ wilderness, to be administered by the Secretary of the Interior in accordance with the Wilderness Act, 25,370 acres and potential l wilderness additions (including Drakes Estero) comprising 8,003 acres. The House Committee Report (H. Rep. No.'94-1680)2 states the following about potential wilderness additions: "As is well established, it is the intention that those 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." (Emphasis added.) Case law has made clear that commercial operations and structures and installations are not compatible with wilderness. Prioritization of natnral values: The Secretary shall administer the Seashore "without impairment of its natural values, in a manner which provides for such recreational, educational, historic preservation, interpretation, and scientific research opportunities as are consistent with, based upon, and supportive of the maximum protection, restoration, and preservation of the natural environment within the area." (Emphasis added.) The House Committee Report states that this language "underscores the intention that the Seashore is to be managedfor the protection of its natural environment and values." (Emphasis added.) The Report makes clear that the Seashore should be managed under the then existing NPS policies governing "natural" areas rather than the policies for "recreational" areas. These policies emphasize, among other things, the preservation of the total environment of natural areas, the removal of all inconsistent physical improvements or land uses on acquired property, and the elimination "as rapidly as possible" of nonpark uses and developments. SeeAdministrative Policies (Natural Area Category), revised 1970, at 16, 28, 62.

1985: Congress names the wilderness area in Point Reyes National Seashore the "Phillip Burton Wilderness" to recognize Congressman Burton's "dedication to the protection of the Nation's outstanding natural, scenic, and cultural resources and his leadership in establishing units of the National Park System and preserving their integrity against threats to those resources ... " Pub. L. No. 99-68 (July 19,1985). 1997 to present: Issues of authorization and compliance by Johnson Oyster Company and, since 2005, Drakes Bay Oyster Company with respect to County and State laws:

I "Potential wilderness additons" are lands that do not qualifY for immediate designation as wilderness "due to temporary nonconforming or incompatible conditions. See NPS Management Policies 2006,Ch. 6 ("Wilderness Preservation and Management"), especially 1)1) 6.2.1.2,6.2.2.1, and 6.3.1. Once these nonconforming or incompatible conditions have been removed or eliminated, the Secretary shall designate these lands wilderness by publishing a notice in the Federal Register. See Pub. L. No. 94-567, § 3 (Oct. 20,

.

ln~ 2

There is no Senate Committee Report.

2

1997 to present: Stipulated Agreement between Marin County and Johnson Oyster Company concerning various compliance and authorization requirements. Court continues to retain jurisdiction as all the requirements have not been met. 2003 to present: California Coastal Commission's Cease and Desist Order concerning various compliance and authorization requirements. This Order, and the continuing notices of violation, concern onshore development by the Oyster Company, which still does not have the required coastal development permit. On June 5, 2007, the California Coastal Commission wrote to Drakes Bay Oyster Company concerning "potential impacts to sensitive resources in Drakes Estero" and the need to obtain a coastal development permit for the offshore aquaculture operations as well. 2004: CalifOI;nia Department ofFish & Game renews water bottom leases for an additional 25 years, contingent on the Reservation of Use and Occupancy and compliance "with all rules and regulations now or hereinafter promulgated by any governmental agency having authority by law ... " The State has acknowledged that NPS has primary management authority over the subject tidal and submerged lands. CDF&G letter to Sup!. Neubacher (May 15,2007). 2005: Drakes Bay Oyster Company's purchase of Johnson Oyster Company for ali undisclosed price. • Mr, Lunny bought the remainder of the Reservation of Use and Occupancy with full knowledge of the 2012 expiration date, the Solicitor Office's opinion on termination in 2012, the Stipulated Agreement with the County, and the California Coastal Commission's Cease and Desist Order. • Extensive record of correspondence on this matter since 2005 regarding the National Park Service's concerns relating to the oyster farming operations in Drakes Estero, including impacts to the natural conditions. Park managers must take into consideration a multipliCity of environmental laws that govern these resources including the Point Reyes National Seashore Act, the National Park Service Organic Act, the Wilderness Act, the Endangered Species Act, and the Marine Mammal Protection Act.

Going Forward: The National Park Service will again provide Mr. Lunny a draft Special Use Permit for his review. This permit would authorize oyster farming operations on his Reservation and on the adjacent onshore and offshore parkland, subject to restrictions to protect sensitive resources. See, e.g., NPS regulations requiring such authorization at 36 C.F.R. §§ 5.3 (business operations), 5.6 (commercial vehicles), 5.7 (construction of buildings or other facilities). Issuance of Special Use Permits is subject to compliance with the National Environmental Policy Act, but the National Park Service believes that it can expedite such compliance to put in place an interim permit, and then complete compliance on a permit to cover the reqIainder of the Reservation of the Use and Occupancy in·a reasonable timeframe because of the 2012 termination of use. These NPS authorizations are also necessary for Mr. Lunny's compliance with State and local laws.

3

07/16/07 Don Neubacher Superintendent Point Reyes National Seashore Point Reyes Station, CA 94956 Dear Mr. Neubacher. We were just informed that you are planning to release "new" science in some form. We don't know whether or not it's another republished version of Drakes Estero, A Sheltered Wildemess Estuarv, letters and/or communications from other scientists or experts, or data or information in some other form. Regardless of the form, would you please provide the documents and supporting information by Thursday, July 19, so that it can be reviewed prior to Saturday's meeting with Senator Feinstein, National Park Service, Califomia Coastal Commission, Department of Fish and Game and the Marin County Board of Supervisors. This includes:

(i)

Document or Report containing new data, analysis and/or information.

(2) Indication if peer-reviewed, and if so, list of reviewers, reviews, responses and reviSions, and re-reviews. (3)

References and source material identification.

(4)

Complete primary database, including protocols, for all statements or conclusions.

(5)

Statistical analysis for all statements and/or conclusions.

(6)

Complete letters or documents for any unpublished references or quotations.

(7)

With regard to anyone who provides a letter or statement, provide credentials and expertise.

(8) And further, with regard to anyone who provides a letter or statement, indicate whether they have any primary data from Drakes Estero . Our ability to review and to analyze this new science will ensure a more productive meeting. Thank you.

{k~ Kevin Lunny

Nancy Lunny

Drakes Bay Family Farms 17171 Sir Francis Drake Blvd. Inverness, California 94937 t: 415.669.1149

f: 415.669.1262 w: drakesbayfamilyfarms.com

07/12107

Don Neubacher Superintendent Point Reyes National Seashore Point Reyes Station, CA 94956 Dear Mr. Neubacher, You have requested a meeting with Drakes Bay Oyster Company and advise that representatives of the National Park Service Western RegionalOffice, the Office of the Solicitor and the California Coastal Commission will participate. So that we can properly prepare for this meeting, the following is requested: [1J Please identify each individual that will attend the meeting, and include title, organization and complete contact information (address, telephone and email).

[2J Provide the proposed agenda, with specificity. If you have documents to

present or discuss, in draft or otherwise, we request that they be submitted sufficiently in advance so that they can be fully evaluated prior to the meeting. [3J If you have issued or received directives or guidance for this meeting, please provide copies so they can be fully evaluated prior to the meeting.

[4) With regard to permits or related documents, please highlight any proposed changes, and provide an explanation for each. [5] Your letter states: "regarding the Reservation boundary, as we stated previously, weare prepared to apply the conditions in the Reservation to the area located within the Stevens survey." Please confirm the Reservation now includes. all oyster farm buildings, including those near the water.

Mr. Neubacher, for more than two years, you insisted that a drawing, prepared for the Johnson Oyster Company in 2003, that was specifically prepared to meet a condition of the Califomia Coastal Commission Cease and Desist Order - the Lafranchi drawing - controlled all regulatory and permitting issues. You knew that the Lafranchi drawing was not a boundary survey. You knew the Lafranchi drawing was in error. You knew that the Lafranchi drawing was prepared for "appraisal~ and not "boundary" purposes. You knew that the Lafranchi drawing chopped the oyster farm in half. And you knew that any map that cut the farm in two made no practical sense. Notwithsta nd'109, you were adama nt The Laf ranchl. drawlng, . by your declaration, was controlling. .

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That decision on your part, as much as anything else, delayed this permit process, prevented us from resolving the Coastal Commission's Cease and Desist Order issues, interfered with our right to conduct business and cost our family farm significant amounts of time and money. At the May 8 Marin County Board of Supervisor's hearing, you testified that the Coastal Commission, not NPS, was the reason for these delays. Plainly, that was not accurate. Early on, when you raised this issue, you recognized the limitations of the Lafranchi plans and subsequently agreed to have the NPS prepare a formal boundary survey. Then a short time later, without explanation, you reversed from your own recommendation by saying that you would not spend any more money on this project and that if there was going to be a survey, "Lunny will have to pay for if'. We were left with no choice. The Drakes Bay Oyster Company then spent over $20,000 in direct costs and more than that in indirect costs and lost opportunities to have a formal boundary survey prepared. We contracted with L.A. Stevens & Associates, a well-known and highly regarded survey firm in Marin County. When completed, the boundary survey showed that all oyster farm buildings were on the Reservation and that the Lafranchi plans were not accurate. The survey - the Stevens surveywas submitted to you and your staff. Then, with an official survey in hand, one that showed all the oyster buildings on the Reservation, you rejected the formal boundary survey (Stevens) and instead declared that NPS would rely on the incorrect appraisal drawings (Lafranchi). Moreover, Lafranchi stated, in writing, that these drawings were not prepared for boundary purposes and should not be used for such. Your rejection of the Stevens survey, more than a half year ago, was both arbitrary and punitive. Today, some seven months later, in your letter of June 19, 2007, without explanation, you abruptly reversed yourself again and admit that the Stevens survey (a survey which is consistent with all prior appraisals, descriptions, maps, drawings and permits prepared for the oyster farm since the creation of the PRNS) is now the basis for NPS permits. Given this history, and to eliminate any possibility of misinterpretation, we request that you confirm, in writing, that (1) the Lafranchi plan was a drawing, not a property boundary survey, for appraisal purposes and not applicable, suitable or appropriate for boundary purposes; (2) that NPS no longer asserts that Lafranchi plans will be raised or considered in permit discussions; and (3) that the oyster farm buildings are properly within the Reservation. For two and a half years, since shortly after our family purchased the oyster farm, you have insisted that the boundaries would be determined by the Lafranchi drawing. These delays have served as a functional "surtax" on Drakes Bay Oyster Company that undermined our ability to conduct business. Thank you for your attention to these matters.

Kevin Lunny & Nancy

United States Department of the Interior

· 7

NATIONAL PARK SERVICE Point Reyes National Seashore

Point Reyes, California 94956

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L1425 Tract 02-106 PORE July 2, 2007

Mr. Kevin Lunny dba. Drakes Bay Oyster Company 17171 Sir Francis Drake Inverness, CA 94937 Dear Kevin: This document will serve as a "Letter of Authorization" (LOA) further extending the terms and conditions contained in Special Use Permit MSC-8530-6000-201O regarding the well and water system located at the current Drakes Bay Oyster Company Site. This Special Use Permit expired on June 30, 2006 and was previously extended by a "Letter of Authorization" dated June 16, 2006. The terms and conditions ofMSC-8530-6000-2010 are hereby extended for an additional period of one year until July 1,2008 or until such time as a Special Use Permit addressing Drakes Bay Oyster Company operations and use of non-reserved portions of Tract 02-106 is issued, whichever occurs first. Contingent upon successful resolution of remaining issues between the National Park Service, the California Coastal Commission and Drakes Bay Oyster Company, future Special Use Permits associated with the site will either be combined into a single document or issued for a concurrent period. For the period of this letter the annual fee of $2,925.00 will remain unchanged and the current quarterly billing schedule of $731.25 will be continued. If you have questions or concerns . regarding this "Letter of Authorization," contact Kevin McKay, Special Park Uses Coordinator, at (415) 464-5111. Sincerely,

Don L. Neubacher Superintendent KEMcKay:kem 7/2/07 bcc: Lynn Fosbender

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Dear Don, On June 16,2006, SUP #MSC 8530-6000-2010 "Water from Well" at the Drakes Bay Oyster Farm was extended for one year by a Letter of Authorization, until July 1,2007. Drakes Bay Oyster Company requests that another extension of this permitbe issued. Thank you,

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· Form 10-114 Rev. DEC. 99

Page 1 of ..2.-

UNITED STATES DEPARTMENT OF THE INTERIOR

National Park Service

Special Use Permit

Date Permit Reviewed 200205/08 Reviewed 20 _ __ Reviewed 20 _ __ Expires 2006 06/30

Name of Use Water from Well

LongTerm~

ShortTerm_

POINT RE¥-E£iiJAIIGNAl SEASHORE

., 'Name,ofAnia

. (415) 669-:&149 Phone " is hereby authorized during the period frQI"~~i1i.~~~~i~ilm. day 01 Mori.thJuly, 2000), through

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day 30 Month June, 2006),. to use·the Continuing tI;1e use of the water well. · base fee (~blished by appraISal adjust the annual, fee tQ.$'2,500.00.

n~;~:~:~~;*~~th~e;~a~bo:~ve~. area: ~i portion of Trqp: 02-106.

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· This pennit iscontinmmt QD.a. well' · Environmental Health'se,vices Dhrisil For the purpose(s) of:

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rii;~~"f.ii~'>r Company faali1ies tisirrgP~rmi~ well, pump and

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. of the well is,identified on theatta~ "Site Map_"

'Authorizing legisiation or otheF"iutlito~~ NEPA Compliance: CA·fE~;ORldrbJ.-;r.,'::Ka.uOeml~ · PERFORMANCE OOND: Required· uABIliTY INSURANCE: Required

,X' ,.' '. NQt Required_ -'-~ AliWuRt $ 500,1))00.00 per occurrence. ""'-'r:"'" . "

ISSUANCE of this permit is subjectto the Cti{jdloons oll4fil,e re~f5~ hereof and'llgpended pages and when appropriate to, the payment to the U.S. Dept. of the InterioJi}l3tion~!~ SeMce~f the ~_y~i9f $ 12,500.00. "'-:~'/.

The undersigned hereby accepts this permit subje<;:t to implied herein.

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JOHNSON OYSTE

PERMTIlEE~==~~~~~~~~~~~~~'~"~"'~'~~~_________ ~A-~~~~~~ Don L Neubacher Superintendent

Additional Authorizing Offidal _ _~~_ _.,--_ _ _~_~ ____=-:-_____________ (if Required) Signature . TItle Dale

DEPARTMENT OF FISH AND GAME

OFFICE OF THE GENERAL COUNSEL 1416 N.inth Street Sacramento, CA 95814 http: ((wWw~dfg.ca.gov (916) 654-3821

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May 15, 2007

Mr. Don Neubacher, Superintendent Point Reyes National .Seashore Point Reyes Station, California 94956 Re:

Drake's Bay Oyster Company

Dear Superintendent Neubacher: of Fish and The purpose of this letter is to memorialize the position Game (Department) regarding the lease status of the above-referenced mariculture . operation at Drakes Estero, within the Point Reyes National Seashore (PRNS). For the reasons discussed. below, we conclude that the mariculture operation in question is properly within the primary management authority of the PRNS, not the Department. By way of review, the leasing of state water bottoms at Drakes Estero dates to at least 1934. In 1965, the California Legislature granted to the United States, subjectto.certain limitations, "all of the right, title, and interest. ..to all ofthe tide and submerged lands or other lands beneath navigable waters" situated within the boundaries of the PRNS (Chapter 983, Statutes of 1965). The tidelands and submerged lands encompassed by this legislative grant include the leased state water bottoms. Consistent with article 1, section 25 of the California Constitution, this conveyance carried a reservation of the right to fish in the waters overlying these lands. Although the right to fish extends to both commercial and sport fishing, it does not extend to aquaculture operations. Regardless of whether its purpose is commercial or recreational, fishing involves the take of public trust resources and is therefore distinct from aquaculture, which is an agricultural activity involving the cultivation and harvest of private property (Fish and Game Code §§ 17,15001,15002, 15402). lri November 1972, the Johnson Oyster Company (Johnson) conveyed its property to the United States, subject to a reservation of occupancy and use in the grant deed, which provided: "Upon expiration of the reserved term, a special use permit may be issued for the continued occupancy of the property ... provided, however, that such permit will run concurrently with and
Conserving Carifomia's 'Wi{drije Since 1870

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, . DRAKES ESTERO MARICULTURE

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"¥l After that time, aquaculture operations must continue subject to a special use permit that would run concurrently with, and would terminate upon, the expiration of the assigned State water bottom allotments. Since such allotments are subject to a maximum lease term of 25 years, both the grantor and grantee apparently contemplated that the state water bottom leases then in effect could be renewed, and this was in fact done in 1979. In June 2004, the Fish and Game Commission (Commission) renewed the state water bottom lease for an additional twenty-five years, contingent on this reservation, and also required Johnson to comply "with all rules and regulations now or hereinafter promulgated by any governmental agency having authority by law... " In March 2005,the Commission authorized the assignment of the state water bottom lease to Johnson's successor, Drakes Bay Oyster Company. The 2004 lease renewal is expressly contingent upon the aquaculture facility's compliance with the 1972 grant reservation and, after its expiration, with any special use permit that PRNS may issue in its discretion. The reservation requires COmpliance with all applicable health and safety laws and, specifically, with all rules and regulations of the National Park Service. Conversely, the renewal imposes an additional requirement of compliance with all other applicable laws, which reasonably includes those of the National Park Service and of PRNS in particular. For these reasons, we believe the mariculture operation in Drakes Estero is properly within the primary management authority of the PRNS, not the Department. Should you or any of your staff require any additional assistance, please contact Senior Staff Counsel Joseph Milton, Office of the General Counsel, at(916) 654-5336 or [email protected]

Director

cc:

Mr. Ralph Mihan, Office of the Solicitor U.S. Department of the Interior Mr. Joseph Milton, Senior Staff Counsel Department of Fish and Game

2

Drakes Estero eelgrass, oyster bag, and oyster rack assessment Trip Report - 3/20/2007 Crew:

Don Brown, GIS Specialist, Point Reyes National Seashore Ben Becker, Marine Ecologist, Point Reyes National Seashore

Equipment:

13 ft Alumicraft skiff with 15 hp 4-stroke outboard motor. Trimble GeoExplorer3 GPS with reaI-t.ime differential correction.

03/13/2007 Oyster rack, bag, line and eelgrass assessment Objectives 1. Map all oyster racks in the.estero and categorize as active, inactive or dilapidated. Dilapidated racks were defined as those considered too deteriorated for use. 2. Document any apparently recent repair work done to racks. 3. Map all oyster bags and line systems. 4. Report eelgrass occurrence (dense/patchy/absent) both adjacent and beneath all racks, bags and lines. Field Methods: We launched from Drakes Bay Oyster Company (DBO) at-ll AM and '.' a + 3 ft tide, and traveled from North to South visiting ail racks in the Estero. At each rack, we recorded whether the rack was surrounded by 'dense or patchy eelgrass, if eelgrass was present beneath the rack, the percentage ofthe rack currently occupied with oysters (= percent active),and the percent of the racks dilapidated. We mapped all visible bag systems along the intertidal and investigated ail marker poles that are often used to mark where bags are kept. Survey was completed at -2:45 PM and tide appeared to be about 0 ft. Summary Results: There are a total of 93 oyster racks in varying states of integrity in Drakes Estero. On 03/1312007, 63 racks were usable and had some mariculture activity (2 of which were recently repaired), 3 appeared usable but had no mariculture activity on that day, and 27 racks were so dilapidated that they are unlikely to be usable without repair. The unusable racks ranged from frames with no cross members for hanging oysters to merely a set of old posts. A total of 89 of the 93 racks were in eelgrass beds, but no usable racks and very few dilapidated racks had eelgrass growth underneath, Seven of 27 dilapidated racks had some eelgrass regrowth, likely due to lack ofmariculture on the racks. The area of racks within eelgrass beds but no eelgrass growth underneath oyster racks was 8 acres. There were 12 areas where oyster bags are scattered in intertidal areas covering a total of approximately 10 acres (some site areas estimated from a distance). Since eelgrass does not grow in intertidal areas, these bag sites come up to the edge, but are not within eelgrass areas. There were also many anchored and floating oyster bag lines which were mapped. Two oyster bag arrays (approximately 5 acres) were within a regular harbor 1

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seal haul out site, and one other oyster bag site was within 50 meters of it regular harbor . seal haul out site, however, no hauled out seals were sighted on this survey. In total, all oyster growing activity covers -18 acres in the estero.

Most of the apparently older and larger oysters growing on racks had extensive nonnative, highly invasive tunicates (Didemnum Species A) growing on them (See images). This species is an aggressive invader that has had substantial ecosystem and financial impacts in New Zealand, several west coast estuaries and the Grand Banks off Newfoundland. Other fouling organisms (native and non-native sponges, tunicates, bryozoans, and mussels) were observed on both oysters and racks throughout the estuary.

03/20/2007 Eelgrass satellite imagery ground truthing Objectives 1. Ground truth satellite imagery classification of eelgrass beds. • Imagery used for classification was one-meter color digital orthophoto taken August 2005 at low tide classified using Erdas Imagine software. 2. Document any additional racks, bag or .line systems not seen on day 1. Field Methods: Beginning at - 10:30AM on 63/20/2007 at about a 0 ft tide, we surveyed the estero to ground truth a draft eelgrass bed map derived from satellite imagery. We traveled the perimeter ofthe eelgrass beds to verifY changes from eelgrass to bare substrate, as well as to verifY that eelgrass was dense or patchy within beds. We defined dense as close to 100% cover, patchy was considered down to 40% cover. We also verified that vegetation classified as eelgrass was not Sargassum muticum (as happened near the mouth of the estero) or enteromorphic algae (as occurred near some of the seal haul out sand flats in the middle of the estero). We took a total of243 points throughout the estero noting eelgrass presence/absence/ dense/patchy to reclassifY the satellite derived map to reflect actual field conditions. The survey was completed at -1 :30 PM and tide appeared to be about +3 ft. Summary Results: In the field, the vast majority of satellite derived eelgrass classification appeared correct. Two shortcomings were that (1) channels are too deep to see eelgrass, even at low tide and (2) that during high tide in waters> 4 ft deep with windy conditions, choppy waters, and low sunlight, it was often difficult to see past 3 ft from the surface. In these instances we traveled very slowly until we carne to an area shallow or calm enough to see bare. bottom: or eelgrass.

After analyzing ground truth data, - 95% of ground observations appeared to match to satellite image classification. Discrepancies mostly occurred in the southern part of the bay because of misclassification of Sargassum muticum and enteromorphic algae, as mentioned previously.

2

We calculated that 740 acres of the estero are covered by eelgrass, 355 acres dense, and 385 acres patchy. Oyster operations in eelgrass represent - 8.5 acres. We calculate that 8 acres (some dilapidated racks have patchy regrowth) of eelgrass beds are lost in Drakes Estero due to mariculture. Another factor affecting eelgrass beds which was noticed was boat propellers. It can be seen from aerial and satellite photos where regular boat paths have cut paths through eelgrass; these calculations do not reflect this factor which will necessitate further study. We also documented three additional intertidal oyster bag systems.not identified during the first survey.

Summary Statistics Total Oyster Racks Usable Oyster Racks Dilapidated racks Percentage of racks in eelgrass beds Percentage of usable racks with eelgrass underneath Percentage of dilapidated racks with eelgrass regrowth Acres of eelgrass lost to racks Number of intertidal oyster bag areas Acreage Of intertidal oyster bag sites Total eelgrass acreage in the Estero Images

3

93 66 27 96% (89 of 93) 0% 26% (7 of 27) 8 acres 12 10 acres 740 acres

NCill-loatlve tunicates (Didemnum spp. A) growing on oysters.

Floating bag system tethered by ropes.

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RECEIVED Point Reyes

National S03shore ; - -.'.; ') ':0 ,. 7

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SPEC.PK.USES LAWENFORC. j·:AT. RES. RANGE CONS. FIRE MGT. INTERP.

Don Neubacher Superintendent Point Reyes National Seashore Point Reyes Station, CA 94956

Hand-Delivered and Sent by US Mail

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Re: NPS Motorized Boat in Seal Pupping Area During Pupping Se Dear Mr. Neubacher,

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Drakes Bay Oyster Company is writing to find out why, on May 24, 2007, two National Park Service (NPS) officials launched a motorized boat into Drakes Estero, proceeding to the mouth of the Estero, traveling completely across the lateral channel at Barries Bar, at low tide, at high speed and did this during seal pupping season and at the precise time when s,eals and their pups are on the beaches. All of this violated NPS rules which ban going into this area of the Estero at this time. Please.provide responses to the following questions:

, '(1) Identify the two NPS officials in the boat. "(2) Identify the NPS official who gave them this assignment. (3) Provide us with a copy of the directive or assignment. (4) Why was the Drakes Bay Oyster Company manager, Jorge Mata, informed by your staff they were directed to "check eelgrass," when they passed the eelgrass areas in the Estero and proceeded directly to the seal pupping area? Why did the staff mislead our manager? (5) Why were they directed to inspect this area during a NPS rule forbidding such entry at this time? (6) Why did they go out at low tide, when seals frequently use the beaches? Drakes Bay Family Farms

17171 Sir Francis Drake Blvd. Inverness, California 94937 t: 415.669.1149 f: 415.669.1262 \hi: drakesbayfamilyfaims.com

(7) Why were they proceeding at too fast a speed? (8) Provide a copy of the trip report. (9) How many times has the NPS staff gone to the seal pupping area during pupping season? (10) Provide trip reports for each of the trips in 2006 and 2007 during pupping season.





United States Department of the Interior NATIONAL PARK SERVICE Point Reyes National Seashore Point Reyes, California 94956

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May 23, 2007

Mr. Kevin Lunny 17171 Sir Francis Drake Inverness, CA 94937 Dear Kevin: Paul Robinson with the United States Public Health Service has scheduled to conduct on site inspections of ranch employee residential units situated within Point Reyes National Seashore on June 13,2007 and June 14,2007. The inspections will last approximately one or two hours and will include an evaluation of water and wastewater systems. National Park Service Staff will accompany Mr. Robinson during the inspections. You will be contacted prior to June 13,2007 and informed ofa scheduled time of arrival. If you have questions or concerns please contact Kevin McKay, Special Park Uses Coordinator, at (41S) 464-S111. Thank you for helping to keep Point Reyes National Seashore Ranches safe. . Sincerely,

Don L. Neubacher Superintendent

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time, DBoe bas repeatedly failed to meet deadlines for the submission ofthe site plan, . . . detailed drawings, ana Project description. On Januaty 20, 2006, {he eec set a new deadline for thes]1bmission of th~ CDPA and . dIT~ctedDBOe to supmit a completeCDPAIlolater tllan .i:ailllmy27, 20M. While' '.' DBOe rn:etthe deadline for submitting the applicqtion,ltwasin()ornpletec Oh February 22; 2006, the eeC inforillcd DBOC that its project description;mil, site plan must bi)·. 'reVised.,' In asilQsequentlett~rd
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Don Neubacher 04/23/2007 05:53 PM PDT

To: [email protected]

cc:

Subject: Reponse to Letter

Kevin, the Seashore we will be responding to your April 18 letter pending staff input and legal review; I will be gone for several days this week and we will not be able get a response to you until next week. We are glad to see spring show up this week. Don

Don Neubacher Superintendent Point Reyes National Seashore Point Reyes Station, CA 94956 415-464-5101 (office) 415-233-0303 (cell) 415-663-8132 (fax) The National Park Service ~areS for. special places saved by the American people so' that all may experience our heritage: :

.RECEIVED

Point F.eyes Hattonal Setlthore

April 18,2007

Hand-Delivered and Sent by US Mail Don Neubacher Superintendent Pt. Reyes National Seashore 1 Bear Valley Road Pt. Reyes Station, CA 94956

Re: Nationl Park Service Failure to Approve County of Marin Permit Allowing Completion of Tasks to Comply with California Coastal Commission Cease and·Desist Order Against Johnson Ovster Company. Dear Mr. Neubacher On December 11,2003, the California Coastal Commission issued a Cease and Desist Order (CDO) against the Johnson Oyster Company, Inc. for a series of health, safety, enviromnental and Coastal Act violations at their Pt. Reyes oyster farm and aquaculture business l . This letter addresses the disposition of that Order.

Violations Leading to Coastal Commission Cease and Desist Order Existedfor More Than 15 Years - NPS, Coastal Commission and County Unable to Resolve - Previous Owners Refuse to Comply, Lunny's Move to Address and Finalize. Various health, safety, enviromnental and building code violations have been an issue for many years - more than a decade and a half and were well-known throughout the Pt. Reyes communit? Notwithstanding the California Coastal Commission's 2003 CDO, the problems and issues remained uncorrected and unresolved at the time the Drakes Bay Oyster Company purchased the Johnson Oyster Company, Inc., in See, California Coast Commission, Th-16a, Staff Report for Commission Cease and Desist Order, # CCC·03·CD-I2 and Violation File V-7-03-04. 2 According to various reports, including the California Coastal Commissiou, these problems were documented as far back as the late 1980's. These were chronic, persistent, unaddressed and unresolved until the Lunny Fanrily, dba, Drakes Bay Oyster Company acqnired the shellfish operation and innnediately began rectifYing each and every one of the outstanding health, safety, environmental and pennit issues.

Drakes Bay Family Farms

17171 Sir Francis Drake Blvd. Inverness, California 94937

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t: 415.669.1149 f: 415.669.1262 w: drakesbayfamilyfarms.com

January 2005, some 14 months after the COO was issued.

New Owners - 2005 - Voluntarily Agree to Address and Resolve All Issues in Cease and Desist Order. As part of the purchase, the Drakes Bay Oyster Company voluntarily agreed to accept responsibility for correcting these various issues, including bringing the co=ercial business buildings up to code. Immediately after purchase, the Drakes Bay Oyster Company began systematically correcting each and every one of the ten major items.

Within 24 Months, Cease and Desist Issues Resolved by New Owners - Drakes Bay Oyster Company. Within months, and consistent with a general timetable worked out with the California Coastal Commission, eight of the ten health, safety and environmental issues were fully resolved - by the Drakes Bay Oyster Company. For more than a decade and a half, the National Park Service, County of Marin, California Coastal Commission and the Pt. Reyes co=unity were unable to resolve health, safety and environmental issues at Drakes Estero with the Johnsons - the previous owners of the shellfish company. In less than 24 months, the Drakes Bay Oyster Company resolved each, except two in which the National Park Service blocked without reason or explanation.

New Owners Spend More Than A Third of a Million Dollars Correcting Preexisting Health, Safety and Environmental Problems. To date, Drakes Bay Oyster Company spent upwards of a third of a million dollars - correcting problems we had no role creating.

Superintendent Fails to Approve Permit Enabling Restoration of Commercial Buildings As Required to Comply with Cease and Desist Order. The last of these items in the Cease and Desist Order, bringing the co=ercial buildings up to code, was scheduled to be resolved more than a year ago. An evaluation was undertaken and completed. Planning was completed. A contract was issued and a contractor selected. In order to initiate construction activities, the County of Marin requires the written approval of the Superintendent, Pt. Reyes National Seashore Park, prior to issuing needed County permits. However, for more than a year, you, as Superintendent, refused to allow the County of Marin to issue the necessary building permits. Absent your concurrence, the County permit C!UlIlot be acted upon, the investment in bringing the co=ercial buildings up to code is blocked and the remaining issues in the Cease and Desist 3 Order cannot be corrected • As a result, the Cease and Desist Order remains in place.

Clarification - Coastal Commission Issued to Previous Owners, Not Drakes Bay Oyster Company (Lunny Family). Let me be clear here. The California Coastal Commission never issued a CDO to the Drakes Bay Oyster Company. The C&D was issued to previous owners more than a year prior to our purchase of the operation. 3

The County of Martin permit requrring your concurrence was first submitted to the Marin County Community Development Department more than a year ago. .

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Superintendent Fails to Approve Permit for Remaining Issues in Cease and Desist Order Imposing Severe Penalties on Drakes Bay Oyster Company, Undermining Integrity ofLease. Your decision as Superintendent, to block corrective action, has made it impossible for our company to correct structural deficiencies. Additionally, our inability to correct these structural deficiencies and fulfill the legal obligations of the CDO has harmed, and with each passing day, continues to harm, our Company in numerous instances, including, but not limited to:

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allowing the buildings to deteriorate further;

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increasing the cost of correcting these items;

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compelling customers and visitors to stand "inside" the building and be rained upon from holes in the roofs and structure - undermining our relations with customers and harming our business opportunities;

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denying us the right to our full leasehold interests;

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interfering with our valid contract rights;

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harming our name -local people, visitors are being told that we - the Lurmy's - created this problem and had the CDO slapped on us for mismanagement; and,

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exposing Drakes Bay Oyster Company, needlessly, to potential liabilities due to uncorrected CDO health and safety violations which would be fully corrected if you concurred with the pending County permit.

National Park Service Refuses To Explain Why Permit Unapprovedfor More than a Year. Neither you, as Superintendent, nor anyone else from the National Park Service provided a reason for this delay, or communicated with Drakes Bay Oyster Company regarding this matter. Other than NPS relying upon an inaccurate survey, no further information of any kind has been requested by you or your National Park Service staff. . Delay Inexplicable - Constitutes Hidden Tax on Drakes Bay Oyster Company. This delay is. inexplicable and now, punitive. Functionally, these actions, inactions as well as other decisions have imposed a hidden tax of tens - hundreds - of thousands of dollars and is undermining the integrity of Drakes Bay Oyster Company and its right to conduct business pursuant to a valid lease. Immediate Action Items - Execute the Permit, Provide Explanation and Issue Clarification. In light of all the above, the Drakes Bay Oyster Company respectfully requests that you approve,

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within five days of the receipt of this letter, the Marin County permit papers necessary to allow us to proceed with work to bring the several commercial buildings up to current building code and respond to the additional requests set forth below.

To that end, please provide the following:

(1)

A signed and properly executed letter or other appropriate documentation authorizing the County of Marin to issue a permit allowing the commercial buildings to be brought up to code;

(2)

A full and complete explanation as to why you withheld - blocked - concurrence on the County of Marin permit for now more than year, and by what authority was concurrence withheld;

(3)

A letter, signed by you, addressed to the Drakes Bay Oyster Company, acknowledging that the Lunny family, the owners of Drakes Bay Oyster Company, had no role or responsibility for creating these violations that led to the issuance of the CDO in the fIrst place, and that, with the purchase of the company, voluntarily accepted the responsibility for addressing and correcting the issues itemized in the CDO. Such a letter is required to clarify incorrect and erroneous and other misinformation that persists to the contrary; and,

(4)

Upon completion of the work on the commercial buildings, we request a letter from you indicating that all issues in the CDO are fully resolved - and again reiterating that the Drakes Bay Oyster Company had no role creating these various violations.

Lunny Family - Rich, Proud History in PL Reyes Community - Building on 500 Generations of Oystering in Drakes Ostero. The Luuny family - now four generations - has a rich history in our Pt. Reyes community. We're proud of our organic beef and sustainable farming and ranching practices. And today, we're proud to join the ranks of the 500 generations who came before us growing and harvesting oysters and other shellfish in Drakes Estero. Today, our Drakes Estero Oysters represent half of the State of California's shellfish growing area pursuant to our 2029 lease and that production serves markets and restaurants locally throughout the San Francisco Bay Area. Lunny Family - Resolving Conflicts that the National Park Service, Coastal Commission, County ofMarin and the PI. Reyes Community Evaded Resolution for More than 15 Years. And, finally, the Luuny Family- owners of Drakes Bay Oyster Company- are proud that we were able to resolve health, safety and environmental problems that confronted the various

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Federal and State agencies, everyone in our community and those who come to visit the Point Reyes National Seashore.

Summary Chart Displaying Completed Action Items from Cease and Desist Order by Drakes Bay Except Single Issue Blocked by Superintendent. Attached to this letter is a "Summary Chart" showing that all issues identified in the Cease and Desist Order have been complied with except that issue being blocked by the NPS.

Kevin Lunny Drakes Bay Oyster Company

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California Coastal Commission Cease and Desist Order # CCC-03-CD-12 Against Johnson Oyster Company, Inc. December 2003 This chart is included to provide a ready status for each of the major outstanding issues subject to the Cease and Desist Order issued by the California Coastal Commission against the Johnson Oyster Company in 2003.

Cease and Desist Action Item

Action

[1] Finish Septic System and Obtain Final Inspection from County and Bring Commercial Buildings up to code.

Resolved. Obtained final inspection and approval from Marin County Environmental Health Services.

[2] Remove Debris and Properly Fill Seepage Pit Area Where Oyster Processing Water Was Discharged.

Resolved. Cleaned up and filled pit area. Obtained necessary permits to construct oyster processing wastewater septic system and completed installation, final inspection and approval of new system.

[3] Clean Up Debris Adjacent to Operations.

Resolved. Removed approximately 1,800 cubic yards of debris.

[4] Obtain Food Establishment Permit Resolved. Not required by County as food facility is on federal property. from County of Marin. Drakes Bay Oyster Company food facility registration # 14916607102 is permitted by the US Food and Drug Administration, Dept. Of Health and Human Services.

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[5] Obtain Drinking Water Permit from the County of Marin.

Resolved. Not required by County as Drakes Bay Oyster Company is on Federal property. Public water system is permitted - # 211 0510 - by the California Department of Health Services.

[6] Obtain Housing Inspections.

Resolved. US Public Health Services performs routine inspections on all housing on premises [Note, we were advised that during the 30 years the Johnson's owned the shellfish farm, NPS did not inspect any of the worker housing - inspections only began after the Lunny's acquired the farm.]

[7] Remove IllegallUnauthorized development.

Resolved. All non-permitted housing, storage buildings, refrigeration units, additions and miscellaneous debris were removed from premises.

[8] Obtain County of Marin Building permits to repair buildings.

CANNOT PROCEED DUE TO FAILURE OF NPS PARK SUPERINTENDENT TO ALLOW MARIN COUNTY COMMUNITY DEVELOPMENT AGENCY TO ISSUE PERMITS.

[9] Submit Plans to NPS for Buildings to Remain.

Resolved.

[10] Bring Commercial Buildings Up to Code.

CANNOT PROCEED DUE TO FAILURE OF NPS PARK SUPERINTENDENT TO ALLOW NECESSARY REPAIRS.

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[11] Submit an application for a Resolved. Coastal Development Permit to authorize after-the-fact the unpermitted development that occurred after 1976.

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United States Departlllent of the Interior

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Page 8of8

L1425 Tract 02-106 PORE February 12, 2007 Mr. Kevin Lunny 17300 Sir Francis Drake Blvd. Inverness, CA 94937 Dear Kevin: We received your letter dated January 29,2007. We disagree with your statement that no permit is necessary from the National Park Service (NPS) to use estUary waters. We want to restate our position that a permit(s) will be required for the use of estuary waters, the well site, parking areas, and any area beyond the reserved lands. 36 Code of Federal Regulations 5.3 states: "engaging in or soliciting any business in park areas, except in accordance with the provision of a permit contract or other written agreement with the United States, except as such may be specifically authorized under special regulation applicable to a park area, is prohibited." As we have discussed, the tide and submerged lands in the Drakes Estero were ceded to the pnited States in 1965 by the California legislature and approved by the Governor. The Act requires the National Park Service to use such lands for public purposes. 36 Code of Federal Regulations 1.2 states: "Applicability and Scope: a) The Regulations contained in this chapter apply to all persons entering, using, visiting or otherwise within: (I) The boundaries offedetally owned lands and waters administered by the National Park Service." We want to reiterate that no new development may occur on the site until the current issues are resolved and Drakes Bay Oyster Company obtains a permit from the National Park Service. In addition, we want to let you know we are reviewing your current site drawing and the draft special use permit for compliance purposes under the National Environmental Policy Act and other regulatory laws. The NPS review should be completed in a couple of weeks. Sincerely,

Don L. Neubacher Superintendent DLNeubacher:an 02112/07

United States Department of the Interior NATIONAL PARK SERVICE Point Reyes National Seashore Point Reyes, California 94956

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Mr. Kevin Lunny dba. Drakes Bay Oyster Company 17171 Sir Francis Drake Inverness, CA 94937 Dear Kevin: This document will serve as a "Letter of Authorization" extending the terms and conditions contained in Special Use Permit MSC-8530-6000-2011 and the Letter of Authorization dated December 30, 2005 regarding the leach field and septic system located at the current Drakes Bay Oyster Company and former Johnson's Oyster Company Site. The Special Use Permit expired on November 30, 2006. The terms and conditions are extended for a period of one year until November 30, 2007 or until such time as a Special Use Permit addressing Drakes Bay Oyster Company operations and use of non-reserved portions of Tract 02-106 is issued, whichever occurs first. We intend to coordinate the Special Use Permits associated with the site to be issued on the same calendar schedule however, issuance of the Special Use Permits are contingent upon successful resolution of issues with the National Park Service and the Coastal Commission. The annual fee of $368.00 that was established on December I, 2001 has been adjusted for inflation to $419.00. This adjustment was calculated utilizing the Bureau of Labor Statistics, Consumer Price Index, inflation calculator. An annual billing schedule of $419.00 will be established. If you have questions or concerns regarding this Letter of Authorization, contact Kevin McKay, Special Park Uses Coordinator, at (415) 464-5111. Sincerely,

Don L. Neubacher Superintendent KMcKay:kem 1111/06

Drakes Bay Oyster CompaJJ"'Y~~,'.",",~--··.

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17171 Sir Francis Drake Boulevard, Inverness, CA 94.93

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January 29, 2007 Don Neubacher Superintendent Point Reyes National Seashore Point Reyes, California 94956

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Dear Mr. Neubacher, I received your letter dated January 25, regarding our meeting on January 12 with AI Wanger, Bill Kirsch, and Lisa Bush about Drakes Bay Oyster Company's (DBOC) Coastal Development permit (CDP). The meeting was held specifically to discuss the CDP for DBOC's upgrades to the oyster farm facilities. We did also briefly discuss a special use permit (SUP) for DBOC.

I have several comments in response to three of your four summary points listed in the letter. Regarding point number 1, the drawings have been finalized and copies have been sent to you and AI Wanger of the California Coastal Commission. Regarding point number 2, DBOC did not indicate its agreement with PRNS that an SUP for submerged lands would be necessary. You stated that an SUP would need to cover the waters of Drakes Estero, a point that we have not yet agreed on. This agreement may very well be reached in the near future when we meet to discuss the SUP. Point number 3, the land survey, was indeed discussed. We believe that the survey issue has been resolved, and that there is no need to "work around" it. The ROP boundary with the two additions that you requested, the eastern property lines and the 50' wide "unreserved" section on the northwest comer, are included on the current drawings. We look forward to meeting with you, AI Wanger, and Bill Kirsch very soon to complete the CDP application process.

Kevin Lunny cc:

Al Wanger Lisa Bush W.W. Kirsch

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We appreGiatey()UrtjIPeatid.efforttofiI)~li~e the&7issue~. Vie \Vililt to reiterate thatilO newdevelopnuiritmayoccUr ouill" site untiithecurrent issues are resolY~d. Sincerely,

pon L.Neu)5aGher super1ntend~nt .

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United States Departi1lelJ-t.of tllelnterior NAT10NAiPARk SERVICE Poi~it)~¥y:~s'_N-a~_o~(Se~~~Q~~' , Point Reyes. California 94956

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Tract 02-1 06 PORE June 19,2007 Mr. KevinLu:nhY

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.. United States Department of the Interior NATIONAL PARKSERVlCE Point Reyes National Seashore Point Reyes, California 94956.

L1425 Tract 02-106 PORE June 16, 2006

Mr. Kevin Lunny dba. Drakes Bay Oyster Company 17171 Sir Francis Drake Inverness, CA 94937 Dear Kevin: TIlls document will serve as a ''Letter of Authorization" extending the terms and conditions contained in Special Use Permit MSC-8530-6000-2010 regarding the well and water system located at the current Drakes Bay Oyster Company and furmer Iolmson's Oyster Company Site. TIlls Special Use Permit is set to expire on June 30, 2006. The terms and conditions are exterided for a period of one year until July 1, 2007 or until such time as a Special Use Permit addressing Drakes Bay Oyster Company operations and use of non-reserved portions of Tract 02-106 is issued, whichever occurs first. We intend to coordinate the Special Use Permits associated with the site to he issued on the same calendar schedule however, issuance of the Special Use Permits are contingent upon successful resolution of issues with the National Park Service and the Coastal Commission. The annual fee of$2,500.00 that was established on July 1, 2000 has been adjusted for inflation to $2,925.00. This adjustment was calculated utilizing the Bureau of Labor Statistics, Consumer Price Index, inflation calculator. A quarterly billing schedule of $73125 will be established. On another matter, we phoned last week regarding the drawings and infurmation you submitted to :the Coastal Commission as an application for a Coastal Development Permit. The Connnission staffhas asked for out comments and approval. As of the date of this letter, we have not received your submittal P!lckage. Please submit these drawings and the permit application to us as soon as possible.

If you have qUebiions or concerns regarding this Letter of Authorization, contact Kevin McKay, Special Park Uses Coordinator, at (415) 464-5111. We look forward to seeing you at the Rancher's Meeting on June 19, 2006. Sincerely,

Don 1. Neubacher Superintendent

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Kevin Lunny - National Park Service

Kevin Lunny" 07/20/201010:26AM To "Cicely Muldoon" cc bcc Subject Dear Cicely, The week before last, I was in San Diego attending a conferenc...

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