Nell Green Nylen, Elisabeth Long, Mary Loum, Heather Welles,
Dan Carlin, Brynn Cook, and Sage Adams*
Introduction and Background
Drakes Bay Oyster Company (DBOC) runs a commercial shellfish farming operation in Drakes Estero, a 2,500-acre network of five finger-like bays that extend into the Point Reyes Peninsula, north of San Francisco, California. In 1976, Congress designated more than 25,000 acres of wilderness and 8,003 acres (including the Estero) of potential wilderness within the Point Reyes National Seashore. This marked the first time Congress used the “potential wilderness” designation, creating a new category for areas that would become full wilderness without further legislative action once temporary uses inconsistent with wilderness values ceased. Since that time, Congress has designated more than 250,000 acres of potential wilderness—referred to in this Article as “congressionally designated potential wilderness areas” (CDPWAs)—associated with twenty-nine different wildernesses in thirteen states. DBOC’s aquaculture business remains the sole nonconforming use preventing Drakes Estero from converting to full wilderness. Its authorization to operate is set to expire before the end of 2012.
Part of the onshore operations of Drakes Bay Oyster Company, which farms nonnative shellfish in Drakes Estero, an area Congress has designated as potential wilderness. Photo credit to Nell Green Nylen.
Commercial shellfish farming began at Point Reyes in the early 1900s. A 1935 survey found no oysters in Drakes Estero, but by 1938, nonnative Pacific oysters had been introduced into the Estero and were supporting a small processing plant at the northern end of Creamery Bay. Ownership of the Drakes Estero state water bottom leases that allowed shellfish farming changed hands several times during the 1940s and 50s, and in 1961, Johnson Oyster Company (JOC), which had taken over the leases, bought a five-acre parcel near the head of Schooner Bay and began operations.
The following year, Congress established Point Reyes National Seashore. In 1965, the National Park Service (NPS) acquired the land beneath Drakes Estero from the state of California. Then, in 1972, the agency purchased JOC’s five upland acres in an agreement that allowed the company to keep a forty-year reservation of use and occupancy (RUO) over 1.5 acres, so it could continue to process and sell “wholesale and retail oysters, seafood[,] and complimentary food items, [provide] interpretation of oyster cultivation to the visiting public, and [use the property for] residential purposes reasonably incidental thereto.” Four years later, Congress designated Drakes Estero as potential wilderness. JOC ended operations in 2003, following “numerous California Coastal Act, county building code, and NPS approval violations.”
When DBOC purchased JOC’s assets in late 2004, it assumed the remainder of the forty-year onshore RUO as well as a special use permit (SUP) for a septic leach field and well on adjacent property. At the time, DBOC reportedly understood that its right to operate in Drakes Estero would end in 2012. The current SUP, signed in 2008, allows DBOC to conditionally continue operations until the RUO’s November 30, 2012 expiration date. The SUP authorizes the company to operate onshore and within 1,050 acres of Drakes Estero, where it uses motorboats to maintain 142 acres of shellfish culture beds.
In 2009, after years of lobbying by DBOC, U.S. Senator Dianne Feinstein successfully placed a rider on the Senate appropriations bill for the Department of the Interior, authorizing Secretary of the Interior Kenneth Salazar (Secretary)—through delegation to NPS—to extend DBOC’s SUP for another ten years, through November 2022. The rider represented a controversial step in the ongoing conflict regarding the shellfish farm, which has included allegations of scientific misconduct by NPS officials and political maneuvering by DBOC’s current owners.
In response to the rider, NPS initiated environmental review under the National Environmental Policy Act (NEPA), publishing a Notice of Intent (NOI) to prepare an Environmental Impact Statement (EIS) to help it decide whether or not to issue a new SUP. The NOI initiated a scoping period for public comment on what specific issues the EIS should address in order to adequately evaluate the effects of permitting DBOC to continue its operations within the CDPWA for ten more years. After the scoping period concluded, NPS developed a Draft Environmental Impact Statement (DEIS) and sought public feedback during a sixty-day public comment period.
The DEIS analyzed four alternative scenarios: a no-action alternative and three action alternatives. Consistent with its stated purpose of “engag[ing] the public” to help inform its decision, NPS did not identify a preferred alternative. Under Alternative A, the no-action alternative, NPS would allow DBOC’s existing authorizations to expire on November 30, 2012, thereby ending the nonconforming use and allowing Drakes Estero to convert to full wilderness. Under the remaining three action alternatives, NPS would issue a new ten-year SUP, with varying “levels of onshore facilities and infrastructure and offshore operations.” Alternative B considered “a level of use consistent with conditions that were present in fall 2010”: the SUP would cover 1,083 acres and cap production at 600,000 pounds of shellfish per year. Alternative C considered a level of use “consistent with the conditions and operations that existed . . . in April 2008,” when the current SUP was signed, and the SUP covered 901 acres, capping production at 500,000 pounds per year. Alterative D considered “expansion of operations and development of new infrastructure as requested by DBOC,” so that the SUP would cover 1,087 acres and shellfish production would be limited to 850,000 pounds per year (reflecting DBOC’s maximum projected production).
A group of seven members of the University of California, Berkeley, School of Law Environmental Law Society (ELS) prepared and collectively submitted comments on the DEIS. In order to provide useful, previously unaddressed context for the DEIS to assist NPS in assessing the potential effects of issuing a new SUP on both local wilderness values and the integrity of the Wilderness Act in general, we attempted to conduct a comprehensive survey of nonconforming uses in all CDPWAs in the National Wilderness Preservation System. This involved cataloging the nature of nonconforming uses in each CDPWA, time limits placed on these uses, if any, and their history since designation. Additionally, part of the group analyzed the limitations of the scientific evidence cited by the DEIS.
Through our research, we sought to address three main questions:
- What implications would granting a new SUP (Alternatives B–D) have for local wilderness values and for wilderness more generally?
(Addressed in Part I and Appendix A)
- What are the likely environmental implications of granting a new SUP?
(Addressed in Part II and Appendix B)
- Based on these analyses, should the Secretary select the no-action alternative (A), or should he authorize one of the action alternatives (B–D) and issue a new ten-year SUP? (Addressed in Parts I–III)
The cover of the Draft Environmental Impact Statement prepared by the National Park Service to aid it in deciding whether to renew the Special Use Permit under which Drakes Bay Oyster Company operates in Drakes Estero shows the estuary at low tide. The dark linear objects are oyster racks, which may be entirely submerged during high tide.
I. The Wilderness Implications of Granting a New Special Use Permit
Without contextualizing a potential SUP extension, it is impossible to adequately assess the effects of the DEIS’s four alternatives on wilderness values at Point Reyes, the administration of CDPWAs around the nation, and the integrity of the Wilderness Act. Therefore, it is important to consider a new SUP in the broader context of the National Wilderness Preservation System. For example, in the event that DBOC’s current and proposed activities are representative of nonconforming uses in other CDPWAs—and there is already administrative precedent for extending or expanding these uses—then, arguably, selection of an action alternative might only minimally affect national CDPWA administration. However, if granting a new SUP would set new administrative precedent for extending (and, possibly, expanding) nonconforming uses, it could have significant impacts on national CDPWA administration going forward.
Therefore, to determine how DBOC’s current and proposed mariculture operations fit within the overall context of National Wilderness Preservation System management, we analyzed prohibited and allowed uses of full wilderness areas under the Wilderness Act and cataloged nonconforming uses present in CDPWAs across the nation.
A. Prohibited and Allowed Uses Under the Wilderness Act
Through the Wilderness Act, Congress sought to preserve and protect certain federally owned lands “in their natural condition” for the long-term “use and enjoyment of the American people.” To achieve this goal, the Act bars commercial enterprise, permanent or temporary roads, and motorized vehicles or equipment in designated wilderness areas and withdraws wilderness areas from mineral appropriation and leasing. “[S]ubject to existing private rights” and other limited exceptions enumerated in the Wilderness Act, Congress requires administering agencies to preserve the wilderness character of designated land, which must “be devoted to the public purposes of recreational, scenic, scientific, educational, conservation, and historical use.”
Most exceptions to these prohibitions are permissive (meaning the administering agency has authority to allow the exceptions, but is not required to do so); however, those allowing exercise of existing private rights are mandatory. For example, if temporary roads and motorized equipment are essential for meeting Congress’s minimum requirements for wilderness administration or to control insects, diseases, or fire, the administering agency may use them, but only so far as necessary. Similarly, agencies may permit certain established uses of aircraft or motorboats and may allow commercial services necessary to valid wilderness pursuits. On the other hand, state or private owners of inholdings that are surrounded by wilderness areas must be allowed access to their properties, and holders of valid mining claims, grazing permits, or other valid occupancy rights must be allowed to exercise those rights.
Table 1. Exceptions to prohibited uses in designated wilderness areas, as defined in sections 4 and 5 of the Wilderness Act (emphasis added).
Prior statutory exceptions in wilderness designation legislation evinced a logical connection to nonconforming uses explicitly authorized by the text of the Wilderness Act. For example, legislation has permitted the continuance of motorized vehicle use, aircraft access, and cultural activities in specific designated wilderness areas, along with other limited exceptions (such as insect and disease control and access to inholdings). Each of these statutory exceptions extends or echoes an exception made within the Wilderness Act.
The only additional commercial activity exception we identified was a timber harvesting exception, included in the original Wilderness Act, specific to the Boundary Waters Canoe Area (BWCA). The BWCA received this special provision because past timber harvesting in the area technically disqualified it from designation under the proposed statutory definition of wilderness, which Congress did not want to weaken. Following a subsequently overturned district court opinion banning logging in the area’s virgin forests, however, Congress directed the Secretary to end logging in the BWCA and cancel all timber sale contracts in the wilderness within one year, consequently resolving the inconsistency.
A commercial shellfish farming operation like DBOC, then, does not resonate with any of the established exceptions for nonconforming uses in wilderness areas. However, our inquiry does not end here. Since CDPWAs have yet to achieve full wilderness status, the agencies that administer them might have developed administrative precedent (whether justified by the text of the Wilderness Act or not) for allowing long-term maintenance or even expansion of nonconforming commercial uses within their borders under certain circumstances. Our research suggests this is not the case.
Tidal channels near the head of Home Bay on a foggy day, viewed from the Estero Trail. Photo credit to Nell Green Nylen.
B. The Difference Between CDPWAs and Undesignated Potential Wilderness
Potential wilderness areas, by definition, contain uses that are not compatible with full wilderness designation. They encompass:
lands that are surrounded by or adjacent to lands proposed for wilderness designation but that do not themselves qualify for immediate designation due to temporary nonconforming or incompatible conditions. . . . [W]ilderness recommendation[s] forwarded to the Congress by the President may identify these lands . . . for future designation as wilderness when the nonconforming use has been removed or eliminated.
Although the Wilderness Act contains no reference to “potential wilderness,” Congress officially codified the category when it first designated “potential wilderness additions” at Point Reyes in 1976. Federal land management agencies frequently use the “potential wilderness” label when evaluating wilderness suitability and when making recommendations to Congress; however, only Congress can take the final step of actually designating wilderness or CDPWAs.
Undesignated and designated potential wilderness share similarities (namely, the presence of temporary nonconforming uses). However, they are quite different in the eyes of the law. NPS management policies require potential wilderness, both before and after designation, “to be managed as wilderness to the extent that existing nonconforming conditions allow.” But, whereas an agency-proposed potential wilderness has not yet been evaluated and decided upon by Congress, CDPWAs are designated by statute and will automatically convert to full wilderness upon agency publication of a Federal Register notice that all nonconforming uses have ceased. After designation, nonconforming uses of NPS-administered CDPWAs must “be eliminated as soon as practicable,” with progress checked on a five-year inventory cycle and publication of notice of conversion to full wilderness required within one year of the time nonconforming uses cease.
Therefore, consistent with the purpose of the Wilderness Act, CDPWA management guidance reflects that these areas are on a one-way journey to becoming full wilderness. While no standard timeline exists, nonconforming uses must be phased out when practicable, rather than extended or expanded. As the Park Service notes in its Reference Manual, “[p]otential wilderness is not intended to be a permanent land status” but is instead “a ‘half-way house’ for lands that otherwise merit full wilderness designation except for temporary, nonconforming conditions.”
How has this guidance played out in practice? Table 2 summarizes nonconforming uses in CDPWAs, changes in use since designation, and approximate time frames expected for conversion to full wilderness. Appendix A describes these results in greater detail and provides additional information for each CDPWA, citing references for all material.
Table 2. Summary of nonconforming uses in congressionally designated potential wilderness areas (see infra Appendix A for details). Question marks (?) after values for "Current Size" denote assumed values based on the lack of Federal Register notices stating otherwise. Red text/pink shading = commercial use; brown text = road/motorized vehicle access; dark blue text = mining claim/mineral rights; gray-blue text = water storage/transmission lines; gray text = non-federal ownership; green text = degradation from former use; tan shading = removal of noncomforming use involves agency discretion/control (separate from acquisition).
By far the most common nonconforming use in CDPWAs is more accurately described as a nonconforming condition: non-federal ownership of lands surrounded by or adjacent to designated wilderness. Although administering agencies can pursue land purchases and exchanges, because they may not always find willing negotiating partners or may lack funds for acquisition, the time at which conversion becomes “practicable” is only partly under agency control. Private or state owners (and their successors in interest) could hold out indefinitely, all the while receiving the access guaranteed them by section 5(a) of the Wilderness Act. On the other hand, removal of some nonconforming uses, such as federally owned structures, may be directly within agency discretion and control (although Congress must appropriate funds for removal and, potentially, for ecological restoration activities). The right-most column in Table 2 emphasizes CDPWAs in which the administering agency likely has considerable power to influence the timing for conversion to full wilderness (tan shading). An intermediate category of nonconforming uses—for example, life leases—are necessarily time-limited but lack precise end dates.
DBOC’s existing RUO and SUP have a known, finite expiration date: November 30, 2012. Later this year, then, the primary obstacle to Drakes Estero achieving full wilderness status will evaporate—unless the Secretary uses his discretion to grant DBOC an extension and, potentially, (under Alternative D) an expansion. A decision that would result in cessation of DBOC operations and removal of DBOC facilities upon expiration of the RUO and SUP would align with NPS’s best management practices and the specific stated intent of Congress that the “land and waters designated as potential wilderness additions [at Point Reyes]. . . 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.”
C. Extension or Expansion of a Non-Recreation-Focused Commercial Enterprise in a CDPWA Appears to Be Unprecedented
These maps, from pages 9 and 28 of the Draft Environmental Impact Statement, show the areas of Drakes Estero used by Drakes Bay Oyster Company. The purple-shaded part of the estuary is congressionally designated potential wilderness, while the green-shaded part is already full wilderness. The yellow-green areas show the location of culture beds; orange areas represent oyster racks. Yellow hashed zones show the area of the offshore lease, while solid yellow areas at the head of Schooner Bay show the extent of onshore operations. Blue hashing shows the area of reported mariculture motor boat use in the estuary. Harbor seal protection areas are outlined in red.
Our findings suggest that granting a new SUP for DBOC’s shellfish farming business would represent a significant departure from accepted wilderness and CDPW management practices. Once Congress designates an area as potential wilderness, nonconforming uses that cannot be characterized as “valid existing rights” are generally phased out, not expanded or extended.
Our survey of CDPWAs indicates that DBOC’s operations constitute a highly unusual nonconforming use. While other CDPWAs contain documented nonconforming uses related to commercial activity, these are generally substantively related to one or more of the explicit exceptions in the Wilderness Act. Examples include established cattle grazing in the Joshua Tree potential wilderness, patented mining claims in the Stephen Mather potential wilderness, and Southern California Edison’s operation and maintenance of hydroelectric dams in the John Krebs potential wilderness. By contrast, DBOC’s mariculture business is a facially commercial production, harvesting, and retail operation without obvious ties to any Wilderness Act exceptions. Its closest analog is a set of four commercial fishing bases in the Isle Royale potential wilderness; however, all four of those bases ceased operations prior to 2005.
Furthermore, while the Act permits the Secretary to authorize park staff to operate motor vehicles in CDPWAs as necessary to complete essential wilderness management tasks, allowing a purely commercial operator to do so on a near-daily basis appears to be unique and without precedent. Although some established use of motorboats by private parties may be permitted to continue after wilderness designation, this exception appears limited to longstanding recreational and administrative uses of watercraft (as in the Boundary Waters Canoe Area Wilderness). Even well-established and widespread recreational motorboat use has now been completely phased out within Buffalo National River potential wilderness.
Finally, aside from section 124 of Public Law 111-88, our research found no other instances of congressional action to authorize extension of a nonconforming commercial use not previously contemplated by one of the established exceptions to Wilderness Act prohibitions.
Accordingly, our research suggests that granting DBOC a new SUP would be an unprecedented act.
II. Environmental Implications of Granting a New Special Use Permit to DBOC
The DEIS indicates that granting a new SUP would have significant negative impacts on environmental resources in Drakes Estero. These include “long-term major adverse impacts” to soundscapes and wilderness; “long-term moderate adverse impacts” to wetlands, eelgrass, benthic fauna, harbor seals, birds, coastal flood zones, and visitor experience and recreation; and “long-term minor adverse impacts” to fish, special-status species, water quality, and NPS operations. In fact, according to the DEIS, only one category analyzed—socioeconomic resources—would experience “long-term beneficial impacts” from a new SUP. The no-action alternative, however, is projected to have “long term beneficial impacts” for all resources except socioeconomic resources (projected to experience “long-term minor adverse impacts”) and NPS operations (for which all alternatives are projected to have “long-term minor adverse impacts”).
The likely negative impacts of extending or expanding DBOC’s operations in Drakes Estero raise concerns about the wisdom of discretionarily permitting continued disturbance to this unique estuarine system. Even highly regulated bivalve mariculture exposes an ecosystem to a number of risks, including greater susceptibility to disease and the proliferation “of non-native epibiotic organisms in soft-sediment environments” (like the Estero) when farmers use hard artificial substrates (like the racks used in the Estero).
It is important to note that in addition to officially permitted activities, unforeseen and unpermitted activities may have significant impacts on Drakes Estero. For example, DBOC has violated the terms of its RUO and SUP on a number of occasions by engaging in unpermitted septic discharges into the Estero, erecting unpermitted structures, and operating motorboats in off-limit areas protected for harbor seal breeding. Most recently, in late 2011 and early 2012, the California Coastal Commission sent DBOC letters of noncompliance with the California Coastal Act and a 2007 Consent Cease and Desist Order. The letters focused primarily on “marine debris in Drakes Estero and on nearby coastal beaches,  from abandoned, discarded, or fugitive plastic aquaculture materials” and motorboat “transit in the lateral sandbar channel near the mouth of the Estero during the seasonal restriction period established for harbor seal pupping sites.” While the extent of harm resulting from these violations may be difficult to quantify, they suggest the possibility of long-term cumulative impacts not fully assessed in the DEIS.
Furthermore, recent reports by the National Research Council (NRC) and Marine Mammal Commission (Commission), among others, concluded that the scientific record of DBOC’s environmental impacts suffers from substantial data gaps. These gaps contribute to uncertainty about the magnitude of DBOC’s impacts and call into question the strength of the evidence for causal links between specific DBOC activities and particular environmental changes in the estuary. Some of these outstanding questions are highlighted in Table 3 and discussed in Appendix B.
A 2009 NRC report found that “onsite investigations of potential impacts of DBOC operations on the Drakes Estero ecosystem . . . could be fairly characterized as preliminary results that would require additional focused research to allow definitive conclusions to be reached about the presence, absence, or magnitude of any ecological impacts.” The report noted that while studies of impacts in other locations “may help support results from initial studies in Drakes Estero, the comparability is not always sufficient to reach confident conclusions on the most important issues of relevance to management decisions.”
Similarly, a 2011 Commission report pointed out the many limitations of data linking changes in harbor seal population and distribution to a variety of influences, including DBOC’s activities in the estuary. The Commission found that:
- Although “the number of seals using [the oyster bar haulout] site declined substantially in 2007 . . . existing information is [not] sufficient to determine the factor(s) that caused the change.”
- “[D]ata . . . are not sufficient to support firm conclusions regarding the rate and significance of  disturbance” by mariculture activities.
- “[D]ata supporting the [statistical] analyses are scant and have been stretched to their limit. Nevertheless, . . . [they] provide some support for the conclusion that harbor seal habitat-use patterns and mariculture activities in Drakes Estero are at least correlated . . . [but] are not sufficient to demonstrate a causal relationship. Additional, carefully guided study would be required to determine if the apparent relationship is one of cause and effect.”
- “Improvements are needed in the procedures used to collect disturbance data and to characterize mariculture activities and effort in the upper estuary. Photographs taken between 2007 and 2010 warrant further review to assess their usefulness for characterizing the rates and consequences of disturbance. Also, studies are needed to characterize harbor seal haulout patterns in the absence of disturbance, and to assess the biological significance of disturbance when it occurs.”
A harbor seal floats at the fringe of a kelp bed in Drakes Estero. More and better data are needed to adequately evaluate the environmental impacts of DBOC's mariculture operations on Estero ecosystems. Photo credit to David Zinniker.
Without more complete data, the potential environmental repercussions of the Secretary’s decision remain unclear. The Commission notes that “whether and to what extent the above shortcomings are addressed will depend, in part, on the decision by the Secretary of the Interior.” However, turning the estuary into wilderness does not eliminate the need for more (and better) information: the Commission notes that “[i]f the Secretary determines that the estuary should be converted to full wilderness status, then the Park Service should continue to study the seals to determine if and how they may change in abundance or alter their habitat-use patterns.” On the other hand, if the Secretary selects one of the action alternatives and grants a new SUP, it will be crucial for the NPS to “address the various weaknesses and gaps in the available data” with a well-thought-out, long-term monitoring and adaptive management plan. The Commission gives detailed suggestions for such a plan. It cautions that:
[i]mplementing an adaptive management approach is not a simple or trivial matter. To be successful, . . . [it] would have to be well conceived, adequately supported, and responsibly implemented by all parties involved. Most importantly, it would have to be based on getting at the truth, rather than having those with conflicting viewpoints seeking simply to win the debate.
Due to NPS’s limited budget and the tight time constraints for preparing the final EIS, it is unlikely that sufficient data to adequately evaluate the potential impacts of DBOC’s proposed future activities will become available within the timeframe of NEPA review. Furthermore, adaptive management, which would be required for any of the three action alternatives, is expensive and labor-intensive. Selecting Alternative A would obviate the need for such a strategy.
When facing scientific ambiguity, some policymakers adopt the precautionary principle, placing the burden on the party proposing an action to affirmatively show a lack of negative impact on the environment. Given the uniqueness of Drakes Estero and our incomplete knowledge of the relationship between its complex ecology and DBOC’s activities, we would counsel the Secretary to adopt a precautionary approach in his decisionmaking and select the no-action alternative.
III. Adherence to the Purpose and Substance of the Wilderness Act and the Precautionary Principle Compel the Secretary to Select the No-Action Alternative
While section 124 of Public Law 111-88 authorizes the Secretary to grant a ten-year extension of DBOC operations, it does not mandate such an extension. The Secretary has discretion to grant or deny a new SUP on the basis of his expert opinion after reasoned analysis of all factors.
Our research demonstrates that approving a new SUP would result in significant negative impacts to wilderness values and uncertain—although likely negative—impacts to the Drakes Estero ecosystem. First, granting an extension or expansion of a non-recreation-focused commercial enterprise in a CDPWA appears to lack precedent and would contravene the designating legislation’s intent, the Wilderness Act’s purpose and substance, and NPS’s own management guidance. Second, even divorced from Drakes Estero’s wilderness context, existing scientific data fails to demonstrate that mariculture activities in Drakes Estero pose little risk of environmental harm. The lack of robust, relevant, temporally and spatially extensive scientific data bearing on the magnitude and extent of DBOC’s impacts demonstrates that the Secretary does not have the information necessary to make an informed decision about discretionarily extending (and, possibly, expanding) the sole nonconforming use in this CDPWA.
Cormorants rest on an oyster rack in Drakes Estero on a foggy day while white pelicans and other birds fish and float nearby. Photo credit to Nell Green Nylen.
Considerations of fairness to DBOC do not weigh against this outcome. DBOC took over JOC’s RUO and SUP in 2005 with full knowledge that the authorization for its nonconforming use would soon come to an end. While the 1972 RUO contains a renewal clause, it is not mandatory and predates the designation of Drakes Estero as potential wilderness. Therefore, it is unrealistic to think that, absent the 2009 rider providing congressional authorization to do so, the Secretary would have entertained the possibility of renewal.
Additionally, granting a new SUP could have long-term repercussions for CDPWAs around the country and, more generally, for maintaining our nation’s commitment to wilderness preservation. Although the 2009 rider denies that it will serve as precedent for administrative actions elsewhere within the National Wilderness Preservation System, this is a false promise. The explicit scope of section 124 limits its direct effects to Point Reyes National Seashore, but this language does nothing to limit potential indirect impacts in the event the Secretary chooses to approve a new SUP. The disclaimer does not preclude other members of Congress—noting the Secretary’s willingness to sacrifice wilderness values under political pressure—from seeking legislative (or legislatively authorized consideration of) extensions or expansions of nonconforming activities in CDPWAs in their own states.
This is precisely the type of intervention that Arthur Wright, President of The Wilderness Society, warned of at a U.S. Senate hearing in 1976—the year Congress began designating lands as potential wilderness. Wright explained that:
[w]e do not believe the legislative history of the [Wilderness Act] or the act itself is favorable to [the] idea of Congress delegating authority to make wilderness judgments [by designating potential wilderness and leaving the timing of its conversion to full wilderness up to an executive agency]. Moreover, we have a concern that something could happen to potential wilderness additions if they receive bad handling by the Department of the Interior or there are administrative or legal loopholes involved in potential additions and I think with strong economic pressures, somehow, someway, potential wilderness additions could find themselves in deep trouble, and not make this wilderness system as intended by the Congress.
Unlike many CDPWAs, which must wait an unknown length of time for an agency to acquire non-federal interests before conversion to full wilderness, Drakes Estero’s potential wilderness status had a known expiration date for the past thirty-five years. That date is at risk of being pushed, perhaps indefinitely, into the future because Congress has granted the Secretary new discretion. Whereas agency control over the time frame for ending nonconforming uses would normally expedite their removal (and, therefore, CDPW conversion to full wilderness), here, it could have the opposite effect.
A view looking northwest into Drakes Estero from Drakes Head, near the mouth of the estuary. Photo credit to David Zinniker.
If the Secretary grants DBOC a ten-year extension, what will change from one decade to the next? As 2022 draws near, DBOC will be at liberty to seek, and Congress to grant, authorization for another ten-year reprieve. In this circumstance, would the Secretary approve a second extension? If not, by what logic? From a big-picture perspective, a twenty-year delay in the conversion of CDPW to full wilderness does not seem so different from a ten-year delay. However, this brand of rationalization could earn Drakes Estero permanent status as a potential wilderness. This outcome, and its likely repetition across the country, would both harm local wilderness values and chip away at the integrity of the Wilderness Act itself.
In sum, to protect wilderness values at Point Reyes and the integrity of the National Wilderness Preservation System—and to avoid unnecessary risk to local ecosystems—we urge the Secretary to select Alternative A, the no-action alternative.
On November 29, 2012, Secretary of the Interior Ken Salazar issued a decision memorandum directing NPS to allow DBOC's SUP "to expire at the end of its current term." Secretary Salazar stated that
[s]ec. 124 does not require me (or the NPS) to prepare a DEIS or an FEIS or otherwise to comply with . . . (NEPA) or any other law. The "notwithstanding any other provision of law" language in Sec. 124 expressly exempts my decision from any substantive or procedural legal requirements. . . . The NEPA process, like Sec. 124 itself, does not dictate a result or constrain my discretion in this matter.
The Secretary identified "matters of law and policy," namely "the incompatibility of commercial activities in wilderness," as the basis for his decision.
For more on Secretary Salazar's decision, see our December 10, 2012, post on Legal Planet: "Contextualizing Secretary Salazar's Recent Decision on Oyster Farming at Point Reyes."
* The authors belong to the Environmental Law Society (ELS) at the University of California, Berkeley, School of Law. ELS, the Berkeley chapter of the National Association of Environmental Law Societies (NAELS), is a student group that engages its members in major environmental issues through advocacy campaigns, comments on administrative actions, and public events. Nell Green Nylen has a J.D. (2012) from Berkeley Law and a Ph.D. (2005) in Geological and Environmental Sciences from Stanford University. Elisabeth Long is a J.D. Candidate (2014) and former National Environmental Policy Act (NEPA) Planner for the U.S. Forest Service. Mary Loum is a J.D. Candidate (2014) with a B.S. (2008) in Marine Biology. Heather Welles is a J.D. Candidate (2014). Dan Carlin is a J.D. Candidate (2013). Brynn Cook is an undergraduate student in Environmental Sciences. Sage Adams is an Instructional Designer for U.C. Berkeley's Educational Technology Services. We submitted a version of this Article as a public comment on the Drakes Bay Oyster Company Special Use Permit Draft Environmental Impact Statement on December 8, 2011.
 See Nat’l Park Serv., Drakes Bay Oyster Company Special Use Permit Draft EIS iv–v (2011) [hereinafter DEIS].
 See An Act to Designate Certain Lands in the Point Reyes National Seashore, California, as Wilderness, Amending the Act of September 13, 1962 (76 Stat. 538), as Amended (16 U.S.C. 459c–6a), and for Other Purposes, Pub. L. No. 94–544, § 1, 90 Stat. 2515 (1976).
 See infra Appendix A, at 66–94 (listing all potential wilderness areas designated by Congress by year of designation and public law number and noting that the 8,003 acres at Point Reyes is associated with the Phillip Burton Wilderness, designated initially as the Point Reyes Wilderness); see also infra notes 61–63 and accompanying text (discussing the conversion process from CDPWA to full wilderness).
 See DEIS, supra note 2, at iv. Almost all of DBOC’s offshore activity takes place within the CDPWA. Its onshore facilities lie near, but outside the CDPWA, which encompasses the entirety of four of the fingerlike bays of Drakes Estero, excepting the head of Schooner Bay. See id. at vii, fig.ES-2, 9, fig.1-3. The southern portion of the Estero, including the fifth bay (Estero de Limantour), is designated wilderness. See id. at vi, fig.ES-1.
 See id. at 19.
 See id. at iv, 16 (explaining that “[m]ariculture entrepreneurs first planted oyster beds in the Tomales Bay area around the turn of the 20th century”).
 See id. For a detailed history of mariculture in Drakes Estero, see id. at 16–21.
 See id. at iv, 16–17.
 Id. at iv; see also Point Reyes National Seashore Act, Pub. L. No. 87-657, 76 Stat. 538 (1962) (codified as amended at 16 U.S.C. §§ 459c–459c-7 (2006)).
 DEIS, supra note 2, at iv. In the DEIS, NPS notes that,
[although] the water bottoms in Drakes Estero were conveyed to the United States in 1965, the state has continued to issue state water bottom leases for shellfish cultivation in Drakes Estero. The continued issuance of state water bottom leases has created confusion and is inconsistent with the NPS’s ownership and jurisdiction over Drakes Estero.
Id. at 17.
 DEIS, supra note 2, at iv–v.
 See supra note 3 and accompanying text.
 DEIS, supra note 2, at 18–19.
 See id. at 19; see also id. at 77–78, figs.2-3–2-4.
 See DEIS, supra note 2, at 19.
 See id. at 67, 72. This includes six racks outside the permitted area. See id. at 67. Boats sometimes travel outside the permitted area, where they may damage eelgrass beds or disturb harbor seals. See id. at 75. DBOC cultivates Pacific oysters (using both rack and bag culture) and Manila clams (using bag culture only). See id. at 61, 67. DBOC’s onshore operations include facilities that “support the processing, sale, and initial stages of shellfish culture.” Id. at 76. The company maintains a number of unauthorized land-based facilities, including storage, setting tanks, and picnic tables, both within and outside the boundaries of the SUP and RUO. See id. at 76, 77 fig.2-3. For more about DBOC’s activities, see generally id. at 60–82.
 See Ian Fein, Reassessing the Role of the National Research Council: Peer Review, Political Tool, or Science Court?, 99 Cal. L. Rev. 465, 496, 497 (2011); Greg Cahill, Putting the Oysters to Bed, Pac. Sun, (July 14, 2006).
 See Department of the Interior, Environment, and Related Agencies Appropriations Act, 2010, Pub. L. No. 111-88, § 124, 123 Stat. 2932 (2009).
 See Fein, supra note 20, at 502–04 (describing the history of the rider).
 See id. at 496–504 and references therein (recounting allegations that an NPS scientist’s report finding negative impacts from DBOC’s activities “fabricat[ed] environmental problems to justify removing the Oyster Company in 2012”); see also Peter Fimrite, Dispute over Oysters in Drakes Bay Pits Harvester Against Park Service, S.F. Chron., Dec. 28, 2007 (reporting that some “believe the accusations are a ploy by Lunny to turn people against the park service and win support for his plan to continue harvesting oysters past 2012” and “Lunny . . . plans to lobby Congress to pass legislation to allow him to do that”).
 NEPA requires preparation of an EIS to help inform major federal actions that may have a significant impact on “the quality of the human environment.” 42 U.S.C. § 4332 (2006). For a description of NEPA and NEPA process, see National Environmental Policy Act (NEPA), U.S. Envtl. Prot. Agency.
 See Notice of Intent to Prepare an Environmental Impact Statement for the Drakes Bay Oyster Company Special Use Permit, Point Reyes National Seashore, 75 Fed. Reg. 65373 (Oct. 22, 2010) [hereinafter NOI]. NPS solicited EIS scoping comments at public meetings and by mail. The NOI, scoping letter sent to interested parties, public scoping posters, and public scoping meeting handout are available here.
 See NOI, supra note 25; Drakes Bay Oyster Company Special Use Permit Environmental Impact Statement Initial Public Scoping, Nat’l Park Serv. (explaining that, through the NOI, the NPS “encouraged comments on the draft purpose and need, and requested that the public identify topics and concerns that should be addressed in the . . . EIS”).
 See Notice of Availability of Drakes Bay Oyster Company Special-Use Permit, Draft Environmental Impact Statement, Point Reyes National Seashore, CA, 76 Fed. Reg. 59423–24 (Sept. 26, 2011). NPS subsequently extended the comment period to allow commenters to take into account the findings of the Marine Mammal Commission’s harbor seal report, released in November. See Press Release, Nat’l Park Serv., Deadline for Public Comment on the Draft Environmental Impact Statement for Drakes Bay Oyster Company Special Use Permit Extended to December 9, 2011 (Nov. 17, 2011).
 See DEIS, supra note 2, at xxxv–xxxviii, tbl.2-5 (summarizing the alternatives).
 See DEIS, supra note 2, at 1.
 Id. at 58.
 Id. at 59.
 Id. at 60.
 See supra note *. Members of the group traveled to Drakes Estero to visit the estuary and DBOC’s land-based facilities on October 15, 2011 and attended the October 20, 2011, public hearing held in Mill Valley, California.
 The National Wilderness Preservation System comprises federally designated wilderness and potential wilderness areas managed by four agencies: the Forest Service, the National Park Service, the Bureau of Land Management, and the Fish and Wildlife Service. See 16 U.S.C. § 1131 (2006); The National Wilderness Preservation System, Nat’l Atlas.
 Wilderness Act of 1964, Pub. L. No. 88-577, §§ 1–7, 78 Stat. 890 (codified as amended at 16 U.S.C. §§ 1131–1136 (2006)).
 Id. § 2(a).
 Id. § 4(c).
 Id. § 4(d)(3).
 Id. §§ 4(b), (c).
 See infra Table 1 (summarizing exceptions to prohibited uses in designated wilderness areas as defined in the Wilderness Act).
 See id. § 4(d)(1).
 See id.
 See id. § 4(d)(6).
 See id. § 5(a).
 See id. § 5(b).
 See, e.g., Pub. L. No. 95-495, § 4(c)–(e), 92 Stat. 1649 (1978) (permitting indefinite continuation of motorboat use on nearly twenty lakes and one river within the Boundary Waters Canoe Area Wilderness, allowing mechanized portage, and permitting use of snowmobiles within certain areas in the wilderness); Pub. L. No. 108-447, § 140(d)(2), 118 Stat. 2809 (2004) (allowing continued snowmobile and motorboat usage on Lake Superior and maintenance and expansion of docks within the Gaylord A. Nelson Apostle Islands National Lakeshore Wilderness).
 See, e.g., Pub. L. No. 110-229, § 101(b)(3), 122 Stat. 758 (2008) (authorizing helicopter access to construct and maintain a telecommunications site; § 101(b)(4), authorizing continued use of floatplanes on a lake within the wilderness area). Statutorily designated access for emergencies and maintenance is common. See Ross W. Gorte, Cong. Research Serv., Wilderness Laws: Statutory Provisions and Prohibited and Permitted Uses 10, 19 (2011) [hereinafter Wilderness Laws].
 See Pub. L. No. 97-384, 96 Stat. 1942 (1982), and Pub. L. No. 101-633, 104 Stat. 4577 (1990) (providing access to cemeteries located within wilderness); Pub. L. No. 107-282, § 206, 116 Stat. 2004 (2002), Pub. L. No. 108-424, § 207, 118 Stat. 2411 (2004), Pub. L. No. 109-432, 120. Stat. 2958 (2006) and Pub. L. No. 111-11, § 851(d)(6), 123 Stat. 1066 (2009) (providing access to wilderness areas for Native American tribes).
 See Wilderness Laws, supra note 49, at 19–20.
 In other words, not related to the generally permitted nonconforming economic uses enumerated in the Wilderness Act: grazing, water/power developments in the public interest, mining, and recreation-related commercial activities.
 Pub. L. No. 88-577, § 4(d)(5), 78 Stat. 891 (1964). See also Minnesota Public Interest Research Group v. Butz, 541 F.2d 1292, 1297 (8th Cir. 1976) (stating “[i]t is undisputed that some commercial logging in the BWCA was contemplated by Congress”).
 Minnesota Public Interest Research Group v. Butz, 401 F. Supp. 1276, 1328 (D. Minn. 1975), rev’d, 541 F.2d 1292.
 See id.
 See Pub. L. No. 95-495, § 6(a), 92 Stat. 1649 (1978).
 An Act to Designate Certain Lands in the Point Reyes National Seashore, California, as Wilderness, Amending the Act of September 13, 1962 (76 Stat. 538), as Amended (16 U.S.C. 459c–6a), and for Other Purposes, Pub. L. No. 94–544, § 1, 90 Stat. 2515 (1976).
 See Wilderness Act of 1964, Pub. L. No. 88-577, §§ 2(a), 3, 78 Stat. 890; e.g., id. § 3(c) (explaining that “[a] recommendation of the President for designation as wilderness shall become effective only if so provided by an Act of Congress”).
 See Management Policies, supra note 57, at 6.3.1.
 See, e.g., National Parks and Recreation Act of 1978, Pub. L. No. 95-625, § 403, 92 Stat. 3467 (stating that “[a]ny lands which represent potential wilderness additions in this title, upon publication in the Federal Register of a notice by the Secretary that all uses thereon prohibited by the Wilderness Act have ceased, shall thereby be designated wilderness”).
 Nat’l Park Serv., Director’s Order 41: Wilderness Preservation and Management, at B(3)(d)(vi) (1999).
 Nat’l Park Serv., Reference Manual RM 41: Wilderness Presevation and Management, at 74 (1999) (emphasis added).
 Past federal land disposal policies contributed to an unwieldy patchwork of federal, state, and private ownership in many parts of the West. See, e.g., Angela Ballard, Closing the Checkerboard, Land & People, May 1, 2005; see also supra Table 2.
 See supra Part I.A and Table 1.
 See supra text accompanying note 18.
 H.R. Rep. No. 94-1680, at 3 (1976) (emphasis added).
 One of the few pieces of evidence for extension is a generic reference to SUPs coupled with a specific reference to SUPs “extending life lease use rights” to the children of leaseholders in Isle Royale potential wilderness. See Nat’l Park Serv., Wilderness and Backcountry Management Plan and Environmental Impact Statement, Isle Royale National Park 24 (2005) [hereinafter Isle Royale EIS]; see also supra Table 2; infra Appendix A, at 70. However, it is unclear whether these permits were issued prior to or after designation, or what the permits entail.
 See supra notes 42–47 and accompanying text.
 See Nat’l Park Serv., State of the Stephen Mather Wilderness 1-1 (1994),
http://wilderness.nps.gov/document/stephen_mather.pdf; see also supra Table 2; infra Appendix A, at 86.
 See Current National Parks Legislation: Hearing Before the Subcomm. on Nat’l Parks of the S. Comm. on Energy and Natural Resources, 110th Cong., at 12–24 (2008) (statement of Karen Taylor-Goodrich, Associate Director, Visitor and Resource Protection, National Park Service); see also supra Table 2; infra Appendix A, at 90.
 See, e.g., Haleakala Wilderness in Hawaii, where Congress affirmed the use of helicopters, if necessary, “for fence maintenance to control destructive invasive alien plants and non-native animals.” Notice of Conversion of Potential Wilderness as Designated Wilderness, Haleakala National Park, 67 Fed. Reg. 6944 (Feb. 14, 2002); infra Appendix A, at 69. Another example is Virginia’s Kimberling Creek Wilderness, where Congress allowed “motorized equipment and mechanized transport” to be used if “necessary to restore the natural ecosystems.” Pub. L. No. 111-11, § 1103(c)(1); infra Appendix A, at 91.
 See DEIS, supra note 2, at 72 (explaining that “boats operate up to 8 hours per day, 6 days per week, making approximately 12 round trips per day”).
 See supra note 48 and accompanying text.
 See supra note 21 and accompanying text.
 Some might argue that the uniqueness of DBOC’s nonconforming use cabins the potential effect of granting an extension because this management change is not readily transferable to other CDPWAs. However, this oversimplification ignores the probable precedential effect of granting an unnecessary extension/expansion on an especially nonconforming category of use.
 DEIS, supra note 2, at lii, liv (2011).
 Id. at xl, xlii, xliv, xlvi, xlviii, l, lv.
 Id. at xlv, xlix, li, lviii.
 Id. at lvii (explaining that continuing DBOC operations would “provide employment and housing to DBOC staff and their families . . . contribut[e] to the regional tax base . . . [and] provide a local food source for the region”).
 See sources cited supra notes 82–85.
 See Comm. on Best Practices for Shellfish mariculture and the Effects of Commercial Activities in Drake’s Estero, Nat’l Research Council, Ecosystem Concepts for Sustainable Bivalve Mariculture 3–8 (2010) (explaining that “from organism to ecosystem, there is no free lunch” so that “all impacts need to be considered in a policy context that appropriately weighs the values of seafood production and of changing ecosystem state so that the costs and benefits of choices about mariculture can be compared”). The Draft EIS also mentions these impacts. See, e.g., DEIS, supra note 2, at xliv.
 See, e.g., DEIS, supra note 2, at 46.
 See Letter from Jo Ginsberg, Enforcement Analyst, Cal. Coastal Comm’n, to Kevin Lunny, Drakes Bay Oyster Co. (Sept. 29, 2011) [hereinafter CCC Letter 1]; Letter from Jo Ginsberg, Enforcement Analyst, Cal. Coastal Comm’n to Kevin Lunny, Drakes Bay Oyster Co. (Feb. 1, 2012). [hereinafter CCC Letter 2].
 CCC Letter 1, supra note 89, at 1; see also CCC Letter 2, supra note 89, at 1 (expressing concern over continuation of the same offences described in the September 29, 2011, letter and explaining that “complete and consistent adherence to [required] measures is crucially important as they were not designed to provide a level of protection that would be considered adequate with only partial compliance”).
 See Comm. on Best Practices for Shellfish Mariculture and the Effects of Commercial Activities in Drakes Estero, Nat’l Research Council, Shellfish Mariculture in Drakes Estero, Point Reyes National Seashore, California 13 (2009) [hereinafter NRC Report]; Marine Mammal Comm’n, Mariculture and Harbor Seals in Drakes Estero, California i–iii (2011) [hereinafter Marine Mammal Comm’n].
 NRC Report, supra note 91, at 67.
 Marine Mammal Comm’n, supra note 91.
 Id. at i–iii.
 Id. at iii.
 See id. at 59–60 (including twenty elements the Commission sees as essential to successful adaptive management).
 Id. at 59.
 See supra note 24 and accompanying text. The handout provided at EIS public scoping meetings shows that NPS anticipated the entire process—from scoping through final decisionmaking—would take less than two years (fall 2010 to summer 2012). See You Are Invited to Participate, Nat’l Park Serv. (Oct. 2011). This window has almost expired.
 See, e.g., Communication from the Commission on the Precautionary Principle, at 3–4 COM (2000) 1 final (Feb. 2, 2000) (stating that the precautionary principle should be invoked when a “phenomenon, product or process” may have a dangerous effect, identified by a scientific and objective evaluation, if this evaluation “does not allow the risk to be determined with sufficient certainty”).
 See Pub. L. No. 111-88, § 124, 123 Stat. 2932 (2009) (providing that “notwithstanding any other provision of law, the Secretary of the Interior is authorized to issue a special use permit with the same terms and conditions as the existing authorization, except as provided herein, for a period of 10 years from November 30, 2012” (emphasis added)).
 See Johnson Oyster Company Grant Deed to the United States, Exhibit C, § 11 Reservation of Use and Occupancy (Nov. 9, 1972) (providing that “[u]pon expiration of the reserved term, a special use permit may be issued for the continued occupancy of the property” and that “[a]ny permit for continued use will be issued in accordance with National Park Service regulations in effect at the time the Reservation expires” (emphasis added)) (available in Appendix A to the DEIS, at A-45).
 See Pub. L. No. 111-88, § 124 (stating that “[n]othing in this section shall be construed to have any application to any location other than Point Reyes National Seashore; nor shall anything in this section be cited as precedent for management of any potential wilderness outside the Seashore”).
 Wilderness Additions—National Park System: Hearings Before the Subcomm. on Parks and Recreation of the S. Comm. on Interior and Insular Affairs, 94th Cong. 150 (1976) (emphasis added, original punctuation and spelling preserved).
 See supra Table 1.
 While we argue against it on multiple bases, if the Secretary selects an action alternative, we strongly recommend that he include explicit provisions to cure the information gaps currently plaguing analysis of DBOC’s impacts on the Drakes Estero ecosystem. This would require extensive, ongoing monitoring as part of a well-thought-out adaptive management system. Additionally, instead of expanding DBOC’s operations, the Secretary should demand a stepped phase-out of its “temporary nonconforming or incompatible conditions” over the next ten years. These include both DBOC’s direct activities (for example, the near-daily use of motorboats over a large portion of the estuary; the periodic import of out-of-state oyster seed potentially containing additional invasive species like the introduced tunicate Didemnum vexillum; and the maintenance of hard, benthic substrates in a traditionally mud and sand-dominated estuary) and its indirect impacts (for example, environmental loading of mariculture-associated viruses, parasites, and epibionts; competitive depletion of plankton and organic particulate matter; shifts in the overall nutrient cycling of the estuary; and unknown impacts on the recovery or persistence of native species in the estuary, like native oysters harbor seals). An adaptive, research-oriented approach to a DBOC extension would at least ensure that we know more about its impacts in ten years than we do today.
 We are not alone. Ninety-two percent (48,396 of 52,473) of the comments submitted during the DEIS public comment period supported Alternative A. See Nat’l Park Serv., Preliminary Content Analysis Report (Feb. 26, 2012). Individual public comments are accessible from DBOC SUP DEIS Public Comments, Nat’l Park Serv..
Copyright 2012 Nell Green Nylen, Elisabeth Long, Mary Loum, Heather Welles, Dan Carlin, Brynn Cook, and Sage Adams. All rights reserved.
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