Drakes Bay Oyster Company's Allies' Further Perjury

In the latest Drakes-Bay-Oyster-inspired lawsuit, Mr. Tom Moore (retired California Department of Fish and Game/Wildlife employee) attempts to rebut National Park Service (NPS) statements, but the evidence shows that Mr. Moore’s claims are false.

Mr. Moore claims to the Court that he is “competent to testify to the matter stated herein” because he states “Prior to my retirement [on Dec 16, 2009] I was continuously employed for 28 years as a California Department of Fish and Game… Marine Aquaculture Coordinator. In that position, I was responsible for overseeing aquaculture conducted in Drakes Estero…”

Mr. Moore then attempts two futile rebuttals of the NPS statement that “any loss of oysters produced in Drakes Estero is, at most a reduction in the supply of oysters produced in West Marin not a termination of a unique source of supply” and that “any such reduction in supply of locally produced oysters would only be temporary.”

1. Mr. Moore’s first attempt claims (emphasis ours), “Contrary to Defendants’ assertions, the growing conditions in Drakes Estero are unique… Drakes Estero is the only shellfish growing area in the State to have apportion of their lease classified as “approved” which allows unrestricted harvest of shellfish year-round regardless of rainfall.”

However, Mr. Moore withheld from the Court that the California Department of Public Health (CDPH) 2008 Management Plan for Drakes Estero (published January, 2008 , or 22 months before his retirement) flatly contradicted his testimony: “7-day rainfall in excess of 2.5 inches shall result in immediate closure of all growing areas, including the Approved area.”

Mr. Moore also withheld from the Court that the CDPH 2007- 2008 Annual Sanitary Survey Update Report (published October, 2008…14 months before his retirement) also flatly contracted his testimony (emphasis ours): “7-day rainfall in excess of 2.5 inches…under these conditions all parts of the Estero will be closed.

Mr. Moore further withheld from the Court that the CDPH 2009 Management Plan (January, 2009…11 months before his retirement) again flatly contradicted his testimony (emphasis ours): “7-day rainfall in excess of 2.5 inches shall result in immediate closure of all growing areas, including the Approved area.”

And lastly, Mr. Moore withheld from the Court that on October 19, 2009, (3 months before his retirement) the “Approved” area he now claims “allows unrestricted harvest of shellfish year-round regardless of rain” was in fact closed to harvest of shellfish because of rain, as reported in the CDPH 2009-2010 Sanitary Survey .

2. Mr. Moore’s second attempt is to rebut the NPS statement that the DBOC production planned-to-be-removed could be replaced by Humboldt production planned-to-be- expanded. But Mr. Moore’s own calculations do not support his rebuttal. Humboldt expansion, which Mr. Moore estimates at ~ 1 million pounds, can surely replace DBOC production of 450,000 lbs. (“15,000 lbs/acre…on 30 acres using hanging culture” ).

Further, Mr. Moore failed to disclose to the Court that the 2009 National Academy of Sciences (NAS) Report: Shellfish Mariculture in Drakes Estero noted (emphasis ours) “In Drakes Estero, the mariculture footprint is roughly 8 acres for racks predominantly in areas of eelgrass, (not 30 acres as Mr. Moore now claims).” DBOC argued to the NAS in 2009 that the impact from DBOC racks on eelgrass was minimal because DBOC had only 8 acres of racks, but now, DBOC’s allies (Mr. Moore) claim that the impact from DBOC’s racks on production is huge because DBOC has 30 acres of racks. DBOC and its allies cannot have it both ways.

Lastly, according to Mr. Moore’s own records when he was employed at the California Department of Fish and Wildlife (CDFW), total DBOC production 2007-2011 averaged only 513,000 lbs (Final Environmental Statement (FEIS) pg. 91) , which (by Mr. Moore’s recent calculation submitted to the Court) would mean that the racks produce almost 90% of DBOC’s total production, an unlikely high percentage, particularly when in a 11/15/10 letter to NPS, DBOC stated that the status of approximately 50% of the racks was “need repair-inactive.” (FEIS pg. 93) .

In sum, the testimony of Mr. Moore cannot be relied upon as either accurate or factual.

Similarly in the latest DBOC-inspired lawsuit, Mr. Charles (Tod) Friend, owner of Tomales Bay Oyster Company, makes numerous misleading statements that are contradicted by his own testimony to the Court or by other statements made by Mr. Friend.

1. Mr. Friend attempts to belittle the NPS statement that TBOC has stockpiled oysters by calling it “entirely incorrect…[because] no produce from Drake’s Bay is permitted to be kept in Tomales Bay…we hold Drakes Bay Oysters in our tank system….the maximum length of time we can hold them is 10 days.” But NPS did not make the claim that the stockpile consists of only oysters in the tank. Mr. Friend’s attempted rebuttal is wholly misleading because it does not account for the fact that by substituting sales of DBOC oysters for sales of TBOC oysters, TBOC stockpiles TBOC oysters in the Bay (“to conserve the supply of TBOC oysters”).

Since Mr. Friend admits that “no produce from Drake’s Bay is permitted to be kept in Tomales Bay” , these extra weekly purchases of DBOC oysters ( “35,000 to 40,000 oysters” ) had to have been sold. Thus DBOC’s oysters must have replaced virtually 100% of TBOC’s sales (which TBOC claims to be “25,000 to 30,000 oysters a week” ). Since early June, that 100% replacement would have created a “stockpile” of as much as 450,000 TBOC oysters in the Bay in addition to the 60,000 DBOC oysters in the tank. Together, that stockpile represents almost a 13-week supply (not a 10 day supply) to tide TBOC over from DBOCs closure to its new harvest supplies. However, only the stockpile in the tank is usable to tide TBOC over during harvest closures.

Lastly, Mr. Friend fails to disclose to the Court that TBOC could have a flow-through- high-filtration system, similar to what other oyster companies use, that would allow TBOC to store large quantities of live oysters to tide over them over longer rainfall closures longer than 10 -days. In contrast, when rain conditions in Tomales Bay force harvest closure, TBOC must immediately shut off the intake to its wet storage tanks and switch to recirculating mode (per the CDPH 2014 Management Plan). That switch to recirculating mode triggers a 10-day limit, so it would make no sense for TBOC to build a larger tank because the limiting factor is not the size of the tank, but rather that 10-day sales expectation.

According to Mr. Friend, this 10-day limited is mandated by regulations on recirculating systems. Thus to supplement the oysters needed to bridge closures that may use up the 10-day supply, TBOC buys DBOC oysters when DBOC harvest is open but TBOC harvest is closed. But rather than trying to undermine the Wilderness Act by TBOC staying under its present 10-day limit for recirculating wet storage, TBOC could instead expand its wet storage to become flow-through even during closures.

A permanent flow-through system could be accomplished with a filtration system that would clean incoming water to “Approved standards” as done at other oyster companies and as outlined in National Shellfish Sanitation Program’s Chapter VII .04 C (2)(a)(ii). A permanent flow-through system would eliminate the 10-day recirculating limit by allowing TBOC’s wet storage tanks for the first time to take in Tomales Bay water even during closure periods.

A permanent flow-through system would allow TBOC to expand its storage by many more than ten days and would end the buying of DBOC oysters during rain closures. But Mr. Friend never discloses this flow-through-high-filtration storage option that other oyster companies use to the Court and instead claims that DBOC’s oysters are “irreplaceable” during rain closures.

2. Mr. Friend also attempts to belittle the NPS statement that TBOC’s increased plantings will replace lost supply from DBOC. Mr. Friend’s claimed to the Court that (emphasis ours): “Due to the OsHV-1 virus alone, over 50% of all of the seeds planted in Tomales Bay perish. Thus of the 5 million seeds I planted in 2013, I would be fortunate to harvest 2 million oysters).” However, Mr. Friend misleads the Court by withholding his explanation in official reporting to the California Department of Fish and Wildlife (emphasis ours): “There was a large herpes [OsHV-1 virus] die off in July 2012 which killed nearly a million young oysters. The results of this die off will play out in this year in 2014 (two years later).”

But this 50% die off was a one-time 2012 event that Mr. Friend tells CDFW did not occur in 2013, but now tells the Court that it nevertheless will magically play out two years later in 2015 as if it had occurred in 2013. Mr. Friend’s current claim of only 2 million oysters in 2015 from the 5 million seeds in planted 2013 is flatly contradicted by his official reporting to the California Department of Fish and Wildlife (emphasis ours): “Having planted over 5 million seed in 2013…This makes the total production number expected for 2015 to be about 4.5 million.”

3. Mr. Friend also attempts to belittle the NPS statement that TBOC has possible alternative local suppliers, but does not explain to the Court that it is likely that no alternative suppliers will be needed because TBOC will begin to harvest its additional 2013 plantings in 2014 (not 2015) and that harvest is expected to more than satisfy TBOC sales ( “we may be forced to expand into wholesale in 2014 as our production will increase and our retail is nearly at its limit” ). Further cushioning the change-over from DBOC oysters is the previously estimated roughly 13 weeks of TBOC oysters stored in the Tomales Bay. Further still, Mr. Friend’s claims to the Court are flatly contradicted by his own statements to the California Department of Fish and Wildlife (emphasis ours): “All our product is sold here at TBOC at the retail. We may be forced to expand in wholesale during 2014 as our production will increase.” Lastly, Mr. Friend does not acknowledge that another local supplier, Hog Island, has significantly expanded its formerly-limited seed supply. Assuming Hog Island’s prior seed limitations were similar to those described by TBOC (“Really, it’s all about seed”) , then Hog Island, like TBOC, should also be expanding oyster harvests in Tomales Bay once it harvests its additional seed planted.

4. Mr. Friend attempts to belittle the NPS statement (that alternative oyster suppliers are available) by his totally unsupported claim that rain closures mandate retaining DBOC, which (he claims) would be the only source of supply during rains. But, as previously pointed out, in addressing the same false claim by Mr. Moore (that DBOC can harvest…shellfish year-round regardless of rain” ), Mr. Friend’s claim is also false. In fact, all U.S. shellfish operations have rain closures of different durations triggered by different rainfall events. Mr. Friend claims that “given weather patterns those closures are generally at the same time we experience them.” But park volunteer "> Richard James , has picked up debris around TBOC that has the tags of some of the shellfish growers that ship into Tomales Bay from Washington State. Many of these fourteen suppliers below have their wet storage and further it is very unlikely that all would have the exact same rain-closure triggers and durations as TBOC. These companies include:

a. Padden Seaford Hammersley Inlet, WA b. Admiralty Seafoods, Hood Canal WA c. Gold Coast Seafoods, Shelton WA d. Northwest Shellfish Co, Oakland Bay WA, e. Penn Cove Shellfish, Port Gamble, WA f. Schreiber Shellfish, Shelton, WA g. Tom Farmer Oyster, Allyn, WA h. Nisbet Oyster Willapa Bay, WA i. Chelsea Farms Eld Inlet, WA j. Sound Shellfish, Olympia WA k. Quilcene Bay Shellfish, Quicene Bay, WA l. Nisqually Tribe Shellfish, Henderson Inlet, WA m. Taylor Shellfish , Totten Inlet, WA n. Cold Creek Oysters, Union, WA

5. Mr. Friend also attempts to belittle the NPS statement (that TBOC has a possible non-local supply from Humboldt Bay) by claiming to the Court that “it is very unlikely that they could be relied on as a replacement supply source” [because] he tried to buy from Coast Seafoods in Humboldt Bay, but was told “I don’t have anything.” But Mr. Friend failed to disclose to the Court that it appears evident from the previously referenced shellfish tab debris recovered by Richard James that shellfish companies in Tomales Bay have been buying from a least 14 different non-local oyster companies, albeit perhaps not from Coast Seafoods or from other oyster companies in Humboldt Bay.

6. Mr. Friend also attempts to belittle the NPS statement (that TBOC has a possible non-local supply from Humboldt Bay) by claiming to the Court that Humboldt permits will not be completed until 2015 and that “it would be two or three years (later) before shellfish grown pursuant to new permit will be available.” However, this claim attempts to mislead the Court because it ignores both the previously documented increase in Tomales Bay harvests beginning in 2014 and the current availability of oysters from at least 14 different sources in Washington State. Further, even if it were true that the Humboldt oyster harvest would be delayed 2016 or 2017, this only points out that any unlikely shortage due to DBOC’s closure is indeed temporary, not permanent.

7. Mr. Friend also attempts to belittle the NPS statement that the availability of oyster seed has a great deal to do with how many oysters can ultimately be harvested. Mr. Friend then attempts to mislead the Court by claiming that “a shellfish hatchery produces seeds…it does not produce oysters” … thus his statement to the Court that oyster seeds “have nothing to do with limitations on the supply of oysters.” But Mr. Friend’s argument strains credulity. Seeds are clearly not harvestable oysters, but just as clearly those seed produce harvestable oysters 12-18 months after being planted. This connection again points out that any unlikely shortage due to DBOC’s closure is indeed temporary, not permanent. Lastly, Mr. Friend’s current statement to the Court is flatly contradicted by his 2013 official reporting to the California Department of Fish and Wildlife: “Really, it’s all about the seed.”

In sum, the newly submitted testimony of Mr. Friend can at best be described as misleading, desperate, and confused.