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Shellfish Mariculture in Drakes Estero, Point Reyes National Seashore, California
included the waters of the Drakes Estero and the adjoining inter-tidal land and upon which Johnson Oyster Farm operates a commercial oyster business.1 (map attached)
This Congressional designation of the wilderness and potential wilderness (see the House and Senate discussions of the legislation in the Congressional Record -copy attached) was made notwithstanding a September 8, 1976 letter written by John Kyl, Assistant Secretary of the Interior, to James A. Haley, Chairman of the Committee on Interior and Insular Affairs wherein he stated the Department’s position on the Point Reyes Wilderness Act. While DOI was largely supportive of the Act, Mr. Kyl’s letter said that the Department did not recommend the inclusion of the tidelands extending one-quarter mile offshore within the boundaries of Point Reyes, as granted by the State of California as potential wilderness. According to the Kyl’s letter, the State’s retention of mineral and fishing rights rendered this area “inconsistent with wilderness.” This letter is the only record in the legislative history that raises this point in the area’s wilderness and potential wilderness designation. After review of the 1965 State Act, the Wilderness Act, Point Reyes Wilderness Act, case law and present day NPS Directors’orders and Management Policies, it is the view of this office that the remarks in the Kyl letter are not only inaccurate but overridden by the Congressional action, as explained below.
The 1965 State Act is very limited in its two reservations of rights, i.e., public right to fish and severely restricted mineral exploration access, i.e., no surface disturbance of any kind. Both reservations would not conflict with the Secretary converting the potential water area and shore land wilderness acres into designated wilderness. Further, notwithstanding the Departments’ letter, the Congress ultimately designated 25,370 wilderness and 8000 potential wilderness acres which exceeded the acreage recommended by the Administration. This reflects that Congress did not heed Mr. Kyl’s recommendation and conclusions and enacted its preferred wilderness act.
Addressing the potential wilderness lands and water, the House Report 94-1680, accompanying the eventually enacted Bill (HR 8002) states that it was its intent that there be “efforts to steadily continue to remove all obstacles to the eventual conversion of these lands and waters to wilderness status.” (copy attached) The designations are implemented by the Park Service’s 2001 Management Policies on wilderness which state that “[I]n the process of determining suitability, lands will not be excluded solely because of existing rights or privileges (e.g., mineral exploration and development, commercial
It is noted that the State continues to issue to Johnson Oyster Company commercial allotments in Drakes Estero which seem to be in conflict with the 1965 State legislative grant and 1976 Congressional mandate to convert the bays of the Estero into wilderness status. On the other hand, the continued public fishing in the Estero is consistent with the State legislative grant and the conversion to wilderness status.
Further, since the United States owns the tide and submerged lands in Drakes Estero, it clearly follows that permission of NPS is appropriate for commercial activities taking place on those granted lands.