Will the Wilderness Act Be Diluted in Drakes Estero?

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.[8] 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.[9] 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.[10]

The following year, Congress established Point Reyes National Seashore.[11] In 1965, the National Park Service (NPS) acquired the land beneath Drakes Estero from the state of California.[12] 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.”[13] Four years later, Congress designated Drakes Estero as potential wilderness.[14] JOC ended operations in 2003, following “numerous California Coastal Act, county building code, and NPS approval violations.”[15]

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.[16] At the time, DBOC reportedly understood that its right to operate in Drakes Estero would end in 2012.[17] The current SUP, signed in 2008, allows DBOC to conditionally continue operations until the RUO’s November 30, 2012 expiration date.[18] 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.[19]

In 2009, after years of lobbying by DBOC,[20] U.S. Senator Dianne Feinstein successfully placed a rider[21] 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.[22] 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.[23]

In response to the rider, NPS initiated environmental review under the National Environmental Policy Act (NEPA),[24] 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.[25] 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.[26] After the scoping period concluded, NPS developed a Draft Environmental Impact Statement (DEIS) and sought public feedback during a sixty-day public comment period.[27]

The DEIS analyzed four alternative scenarios: a no-action alternative and three action alternatives.[28] Consistent with its stated purpose of “engag[ing] the public” to help inform its decision, NPS did not identify a preferred alternative.[29] 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.[30] 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.”[31] 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.[32] 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.[33] 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).[34]

A group of seven members of the University of California, Berkeley, School of Law Environmental Law Society (ELS)[35] 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.[36] 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,[37] 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.”[38] To achieve this goal, the Act bars commercial enterprise, permanent or temporary roads, and motorized vehicles or equipment in designated wilderness areas[39] and withdraws wilderness areas from mineral appropriation and leasing.[40] “[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.”[41]

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.[42] 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.[43] Similarly, agencies may permit certain established uses of aircraft or motorboats[44] and may allow commercial services necessary to valid wilderness pursuits.[45] On the other hand, state or private owners of inholdings that are surrounded by wilderness areas must be allowed access to their properties,[46] and holders of valid mining claims, grazing permits, or other valid occupancy rights must be allowed to exercise those rights.[47]

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,[48] aircraft access,[49] and cultural activities[50] in specific designated wilderness areas, along with other limited exceptions (such as insect and disease control and access to inholdings).[51] Each of these statutory exceptions extends or echoes an exception made within the Wilderness Act.

The only additional[52] commercial activity exception we identified was a timber harvesting exception, included in the original Wilderness Act, specific to the Boundary Waters Canoe Area (BWCA).[53] 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.[54] Following a subsequently overturned district court opinion banning logging in the area’s virgin forests,[55] 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.[56]

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.[57]

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.[58] 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.[59]

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.”[60] 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.[61] 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.[62]

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.”[63]

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.[64] 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.[65] 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.[66] 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.”[67]

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.[68]

Our survey of CDPWAs indicates that DBOC’s operations constitute a highly unusual nonconforming use.[69] 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.[70] Examples include established cattle grazing in the Joshua Tree potential wilderness,[71] patented mining claims in the Stephen Mather potential wilderness,[72] and Southern California Edison’s operation and maintenance of hydroelectric dams in the John Krebs potential wilderness.[73] 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.[74]

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,[75] allowing a purely commercial operator to do so on a near-daily basis[76] appears to be unique and without precedent.[77] 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[78]). Even well-established and widespread recreational motorboat use has now been completely phased out within Buffalo National River potential wilderness.[79]

Finally, aside from section 124 of Public Law 111-88,[80] 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.[81]

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;[82] “long-term moderate adverse impacts” to wetlands, eelgrass, benthic fauna, harbor seals, birds, coastal flood zones, and visitor experience and recreation;[83] and “long-term minor adverse impacts” to fish, special-status species, water quality, and NPS operations.[84] In fact, according to the DEIS, only one category analyzed—socioeconomic resources—would experience “long-term beneficial impacts” from a new SUP.[85] 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”).[86]

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).[87]

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.[88] 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.[89] 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.”[90] 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.[91] 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.

 Table 3. Some relevant questions relating to DBOC's impacts that have not yet been satisfactorily answered (see infra Appendix B, at 95–99 for references.

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.”[92] 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.”[93]

Similarly, a 2011 Commission report[94] 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.”[95]

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.”[96] 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.”[97] 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.[98] The Commission gives detailed suggestions for such a plan.[99] 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.[100]

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.[101] 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,[102] 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.[103] 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,[104] 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,[105] 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.[106]

Unlike many CDPWAs, which must wait an unknown length of time for an agency to acquire non-federal interests before conversion to full wilderness,[107] 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?[108] 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.[109]