About the lawsuits

M E M O R A N D U M

September 17, 2023

TO:         savemarincountyag.org

FROM:   Judy Teichman

               Point Reyes Station

SUBJECT:   Resource Renewal Institute et al. v. NPS

                     2016 and 2021

In 2016 the Resource Renewal Institute, Center for Biological Diversity and Western Watersheds Project [Resource Renewal] sued the National Park Service [NPS] under the Administrative Procedure Act for allowing agriculture to continue in the Point Reyes National Seashore despite an out-of-date General Management Plan.  The Point Reyes Seashore Ranchers Association, other ranch/dairy lessees and the County of Marin intervened. The case settled and the ranches and dairies continued to operate under short term permits while NPS prepared a General Management Plan Amendment [GMPA] pursuant to the National Environmental Policy Act. The GMPA was finalized with a Record of Decision on September 13, 2020.

In January 2021 the same plaintiffs sued the NPS, this time alleging that the GMPA/EIS violated NEPA.  Resource Renewal Institute et al. v. National Park Service, U.S.D.C., N.D, CA, Case No: 4:22-ev-145-KAW.   The ranches and dairies promptly intervened to assert their interests.  All the parties have been participating in confidential mediation sessions. Unlike in the 2016 litigation, the County currently has no representation in the mediation/settlement discussions that have been going on for almost 18 months. 

Questions:

Are Marin County’s interests in having agriculture continue in the Coastal Zone being given due regard in efforts to settle the 2021 Resource Renewal case? 

Should Marin County’s interests be represented in the mediation/settlement discussions?

The following information is offered to assist in answering these questions.

I.              County Intervention in 2016 Resources Renewal Litigation:

Plaintiffs, the Resource Renewal Institute, Center for Biological Diversity, and Western Watersheds Project, brought suit against the National Park Service under the Federal Administrative Procedure Act in February, 2016, alleging that the National Park Service failure to update the 1980 General Management Plan for the Golden Gate National Recreation Area and Point Reyes National Shore violated the federal Administrative Procedure Act in that it was failing to manage the parkland “through a current and valid General Management Plan . . . . Paragraph 2.  Continuing in Paragraph 3:

. . . such a badly outdated General Management does not serve its purpose as a strategic planning document that outlines future management and sets the basic philosophy and broad guidance for all activities at the National Seashore for a limited time.  Without an updated General Management Plan that reflects current conditions and needs, the agency cannot ensure that individual management decisions do not collectively impact the National Seashore’s resources.
  

The County intervened in the 2016 lawsuit "for the limited purpose of addressing the 'balance of harm.’”  The issues to be addressed were identified in the opening statement in the County’s brief in support of intervention:

As a California county with authority to exercise legislative and executive powers in many areas of public policy, the County of Marin offers its perspective on why a delay in range planning and a reduction of historic grazing within the Seashore’s “pastoral zone” would cause irreparable harm: First, it would be inconsistent with Marin’s Local Coastal Program that enjoys special protection under federal law; Second, it would adversely affect the agricultural economy throughout the County; and, Third, it would disrupt the careful balance of park benefits that have served the public well for many years. 

In support of its opposition to plaintiff’s motion for summary judgement, the County filed several declarations with information equally applicable to a lawsuit filed by the same plaintiffs on January 10, 2022, alleging similar factual objections to the basis for the General Management Plan Agreement finalized in a Record of Decision on September 13, 2021. They are:

Declaration of Jack Liebster: as a Planning Manager for the Community Development Agency [CDA], Liebster relates the history of both State and County support for agriculture in the Coastal Zone generally and specifically on lands managed by the PRNS.  He cites County commissioned “Agricultural Economic Analyses” background reports to assist the Board in “formulating policies and programs that will maintain and support the future of Marin County’s agriculture.” [Paragraph 6]  He observes that at about the same time the County was adopting its Countywide Plan in 1973 “to protect agriculture in western Marin County, the State and Federal governments were adopting far reaching ‘Coastal’ Acts. [Paragraph 8]

Declaration of David Lewis: As the Director of UC Cooperative Extension assigned to Marin County as the Farm Advisor, Lewis recites relevant facts and concludes that the loss of agricultural lands within the Seashore would have a devastating effect on agriculture throughout Marin and a significant impact on the Marin economy,  Products produced on Seashore ranches are used by other agricultural operations outside the Seashore for processing as foods that find their way to stores, restaurants and households throughout Marin County and beyond.  Services provided to the ranches in the Seashore are often provided by businesses that are located outside the Seashore.  Ranching in the Seashore has a strong connection to agriculture and other economic activities elsewhere in Marin. [Paragraph 8]

Declaration of Laura A. Watt, PhD: for her doctoral research at the University of California, Dr. Watt, a Professor in the Department of Environmental Studies, and Planning at Sonoma State University, examined the evolution of the working pastoral landscape at the PRNS after it became a National Seashore in 1962.  Her research has been extended into a book, The Paradox of Preservation: Wilderness and Working Landscaped at Point Reyes National Seashore.” 

Declaration of Lynn Huntsinger, PhD: A tenured professor of rangeland ecology at the University of California, Berkeley, Huntsinger addresses several issues raised by plaintiffs in both the 2016 and the current lawsuit.  Huntsinger visits the PRNS with her “graduate and undergraduate students to learn about the complexities of wildlife reintroductions, plant ecology, recreation, the ocean, and traditional agriculture. . . . The interactions  between traditional agriculture and undeveloped ecosystems offer an incredibly valuable opportunity to demonstrate how agriculture can be conducted in an environmentally sustainable manner and can complement natural landscapes.” [Paragraph 4].

Declaration of Jeffrey Croque, PhD: A founding member of the West Marin Carbon Project and Director of Rangeland and Agrosystem Management at the Carbon Cycle Institute, Creque addresses concerns about agriculture’s contribution to global warming. He reports on peer-reviewed, published research that demonstrates the potential for grazed rangelands to be actively managed for enhanced carbon sequestration in both plant biomass and soil organic carbon. He addresses the concern with dairies as a significant source of GHG emissions, offers information on how dairies can become carbon neutral and points out that if the dairies at PRNS are closed, it will not reduce the demand for dairy products.

Settlement of the 2016 lawsuit led to the NPS granting the existing Seashore ranches and dairies additional short-term leases so they could continue to operate while the NPS did a full-scale environmental review process, which resulted in the 2021 General Management Plan Amendment [GMPA] and Environmental Impact Statement that is the subject of the National Environmental Policy Act [NEPA] challenge filed on January 10, 2022.

II.            Proposed Intervention in 2021 Resources Renewal Litigation

Relevant to this litigation, the California Coastal Act provides:

. . . lands suitable for agricultural use shall not be converted to nonagricultural uses unless continued or renewed agricultural use is not feasible . . . .

As explained in the Liebster Declaration, above, the California Coastal Act, California Public Resources Sections 3000, et seq., constitutes California’s “Coastal Management Plan,” which “was approved by the federal government in 1977 pursuant to the [Coastal Zone Management Act, Section 16 U.S.C. 1451et seq.)]  As such, NPS is required to comply with it. 

Further, all the ranches and dairies on land managed by the PRNS are in districts designated “historic” by the NPS pursuant to its responsibility to administer the National Historic Preservation Act.  They are the Point Reyes and Olema Valley Ranch Historic Districts.

Similarly, to the 2016 lawsuit, the suit filed January 20, 2021, challenges the NPS’ decision to continue to allow beef and dairy ranching on PRNS managed land. In an Initial Joint Case Management Statement filed for hearing on April 12, 2022,   Plaintiffs summarized their action, alleging that the environmental review process:

. . . ignored evidence that ranching has impaired and will continue to impair the environment and public uses of the Seashore and imposed insufficient mitigation measure to ensure the maximum protection of natural resources. In so doing, NPS prioritized the commercial needs of a select number of private ranchers at the expense of Plaintiffs, their members, and the millions of people who use and enjoy the National Seashore each year. [p. 3, lines 13-18]

The NPS summary essentially states that the GMPA was prepared in compliance with NEPA “and other applicable laws.”  The NPS statement of facts concludes:

. . . As explained in the ROD, the Selected Action will result in a number of improved natural and cultural resource conditions and will not impair park resources.  The Selected Action is consistent with the NPS’s statutory mission and responsibilities. Neither the federal Coastal Zone Management Act nor Historic Preservation Act are identified specifically. [Initial Joint Case Management Statement p.5, lines 1-5]

In this context, the recent NPS proposal to remove the Tomales Point elk fence, and to replace the 1998 Elk Management Plan without considering the impact of allowing the elk to free range in the pastoral zone is of great concern. 

If the terms of the GMPA and leases to be granted are being negotiated in the mediation, and the NPS is about to make a change in elk management that will impact the terms of the GMPA, the County should be represented to ensure that due consideration is given to its interests under the California Coastal Act, the Historic Preservation Act and that whatever terms come out of the lawsuit, that the land in the PRNS is managed to reduce the likelihood of a disastrous fire blowing into the rest of Marin County.

III.           Federal Rule on Intervention

The District Court may grant a timely motion to intervene under Rule 24(b) of the Federal Rules of Procedure.  Intervention in the 2016 Resource Renewal case is precedent for allowing intervention in the current litigation. The only question is whether intervention in a case filed in January 2022 is “timely.”

In this instance, the NPS proposal to take down the Tomales Point elk fence releasing additional tule elk into the pastoral zone to compete with the dairies and ranches for suitable forage, an event likely to render them unable to comply with U.S.D.A. requirements for organic operations, is a change in circumstances that justifies seeking to intervene even though the mediation has been underway for many months. 

Furthermore, although the parties have been in confidential mediation virtually since the suit was filed, there has been no discovery and there have been no motions filed. In fact, the NPS has voluntarily held up granting the ranches and dairies other than short term permits to continue occupancy and operation. In short, the parties’ interests would not be prejudiced by the County intervening in the suit under these circumstances.