A critical controversy continues to simmer unnoticed on the West Coast. The question of how to administer one national park, and by extension how to manage public lands, is as-we-speak being answered at Point Reyes National Seashore, just north of San Francisco. So far, the answer ventured has been per the druthers of the ranches and dairies which occupy a third of the park. But so far, the basic facts of the matter have remained under that simmering pot’s wobbling lid, out of sight and of no concern to the people who own the land – the American public. This series of blogs aims to boil-over what should already be front-page news: a few influential businesses and their in-tow politicians are planning to enshrine a wildly unpopular, environmentally irresponsible, and socially unjust policy under the radar of those directly affected.
This is part one of a three-part series on this multi-faceted and important issue. Part one introduces the subject with context, and treats the myths of Stewardship, Perpetuity, and Creation. Part two will explore the myths of Legality, Special Jurisdiction, History, and Economy. Part three will explore the myths of Popularity, Local Authority, and Process.
Sorting the facts from mythology
British crime author and poet Dorothy L. Sayers is credited with saying, “Facts are like cows. If you look them in the face long enough, they generally run away.” It’s one of those quotes that suffers without context; what does she mean? Running away doesn’t really seem to be a habit of facts or cows. Maybe I haven’t spent enough time with either, but I prefer a different quote from politician and diplomat Daniel Patrick Moynihan, which emphasizes the obdurateness of facts: “You are entitled to your opinion. But you are not entitled to your own facts.”
There is no shortage of opinions on ranching in Point Reyes National Seashore (PRNS), 71,000 acres — two thirds of it profoundly beautiful —an hour away from San Francisco, the only National Seashore on the west coast, home to nearly half of North American bird species, 750 flora species, and over 50 species registered as threatened, rare or endangered at the state or federal level.[i] But there may be a shortage of unshy and durable facts. About a third of the seashore is dedicated to commercial ranches and dairies, whose future is being adjudicated right now, by the National Park Service (NPS) via an ostensibly public process. Should they stay or should they go? Some are passionately for perpetuating and some passionately for ending ranching in the park. There are those with a lot at stake personally and there are those who think the environment is at stake. There are ranchers and rangers, environmentalists and enthusiasts, tourists, reporters, lawyers, and politicians.
The NPS was sued in February of 2016, and in the settlement was compelled to produce an Environmental Impact Statement (EIS) and update its management plan for ranching at Point Reyes. The draft plan was released in August 2019, public comments collected, and a final plan published in September 2020. The EIS includes six management options, including Alternative B which extends 20-year leases to the ranches and expands and diversifies their permitted commercial activities, and Alternative F, which phases out all ranches and dairies over five years. Alternative B is identified as “preferred” by the NPS and is favored by the ranching community, whereas Alternative F is supported by various citizen and environmental groups. The final decision is due by July 14, 2021, per the court, and ahead of this, citizens and environmental groups are struggling to block or slow what by now seems inexorable.
It’s often said that reasonable people can reasonably disagree, but disagreements are fewer when a shared understanding of the facts is established. There are, of course, far too many relevant facts to even dream about collecting them in one place, but there are several persistent misstatements of fact or unsupported claims which one encounters when following the Point Reyes story. Below is a list of claims which are either false or are in the author’s judgement insufficiently substantiated to carry the burden of proof. The goal is to challenge the unsupported and disingenuous, disqualify stubborn, easily repeated obfuscations, and to fish out red herrings from the waters of debate.
Myth of Stewardship
It is frequently claimed that ranchers and dairymen in PRNS are good stewards of the land.
However, the park’s own EIS indicates otherwise.[ii] It evaluated each of the proposed go-forward management alternatives for certain environmental impacts, namely effects on the air, soil, water, vegetation, and wildlife, and with a special subcategory for the Tule elk. The “preferred” Alternative B includes some new rules and standardized guidelines designed to mitigate impacts under continued ranching operations, as compared to current conditions, and yet the EIS makes it obvious that even mitigated impacts – should those mitigations be successfully implemented – are detrimental, especially compared with cessation of ranching (Alternative F). In other words, the following citations generally compare the removal of ranching not to the existing practices, but to a hypothetical improved situation, reflecting even less well on what has been happening until now.
Ranching in the park generates the equivalent of 24,000 metric tons of CO2/year, six-and-a-half times the amount generated by all the car traffic of the over two million annual visitors. According to the EIS, under the preferred Alternative B, “activities associated with ranching would continue to emit criteria pollutants and greenhouse gases associated with cattle grazing, manure management on dairies, fugitive dust, and mobile source emissions,” whereas Alternative F “…would phase out ranching, ending ranching-related emissions of criteria pollutants.”
It is noteworthy that globally, the livestock sector requires a significant amount of natural resources and is responsible for about 14.5% of total anthropogenic greenhouse gas emissions.[iii]
Regarding soil quality, again Alternative B would extend the known adverse effects of ranching. Under B, “… activities associated with beef and dairy ranching would continue to affect soils because of erosion, compaction, and alteration of soil fertility, primarily from livestock grazing, forage production, high intensity use areas, and manure spreading,” whereas under Alternative F, “cessation of ranching would eliminate all impacts on soils associated with ranching activities.”
Globally, soil health and biodiversity are in crisis, and the main causes of damage are “intensive agriculture, with excessive use of fertilizers, pesticides and antibiotics killing soil organisms and leaving it prone to erosion.”[iv]
Spiking fecal coliform levels from livestock have resulted in human health hazards in seashore waters, and beach closures.[v] According to the EIS, “Alternative B would continue to contribute adverse impacts on water resources in the planning area from beef and dairy cattle ranching, Manure and Nutrient Management, and water consumption related to ranching activities,” whereas under Alternative F, “…impacts on water quality would be noticeable, long-term, and beneficial because ranching activities would be phased out across the entire planning area.”
Additionally, the over-five thousand cattle in PRNS use up to 78 million gallons of water per year, at a time of recurring drought in California, driven by the climate change which is exacerbated by the other impacts of those same cattle.
Nationally, the U.S. EPA determined in the 2000 National Water Quality Inventory that about 40 percent of rivers and streams are impaired, and the leading cause of pollution was agriculture, which is responsible for almost half of these compromised water sources. [vi]
More recently, Western Watersheds Project, one of the 2016 lawsuit plaintiffs, along with In Defense of Animals, conducted independent tests of water quality downstream from some of the ranches in PRNS, at popular public-accessed streams and beaches, including Kehoe Lagoon, which drains into the Pacific. NPS has not done water quality tests there since 2013, for reasons withheld, even though there were significant bacteria and other issues found at that time. The new results, published March 3, 2021, show 5X the safe human limit of coliform bacteria, 40X the safe limit for E. coli, and 300X the safe limit of enterococci. As of this writing, PRNS has acknowledged receipt of the study results but has not indicated any planned response, such as placing a sign to warn the public.[vii]The County of Marin, posted signs, and then removed them, citing jurisdiction concerns. Even though sampling after rain is the standard way to gauge the amount of contaminates leaving a study area, NPS shrugged off the tests, saying that sampling shortly after rains is not a reliable way to measure overall water quality. [viii] In fact, the Regional Water Quality Control Boards require dairies under its jurisdiction to take water quality measurements within 24 hours of the first three major storms each fall season.
The valleys, ridges, and coastal plains of Point Reyes National Seashore were once covered with lush coastal prairies consisting of deep-rooted native perennial grasses, wildflowers, mosses, lichens, and fungi. Historically, Tule elk herds roamed these grasslands and grazed them lightly before moving on. Many native grasses have been eliminated from the ranches and can now only be found on relict, ungrazed sites. European grasses, thistle, and other invasive are now prevalent in and around the ranches.
The EIS notes that “the total number of invasive plant species and the number of new introductions [is] high enough to warrant significant concern…livestock production has been implicated in the introduction of weeds… concentrated livestock use can increase exposed soil …using herbicides and biocides on cultivated or rangeland areas for purposes of weed management would continue as necessary…and could potentially affect non-target species.”
The EIS further notes that “Alternative F would eliminate adverse impacts on vegetation from the ranching activities across the entire planning area…currently unprotected riparian areas and those wetlands that are heavily grazed may also benefit from the removal of livestock grazing…beneficial impacts of terminating ranching include a possible initial increase in abundance of native perennial forbs and a reduction in bare ground and livestock fecal pats that serve as weed germination sites.”
Setting aside the direct habitat loss associated with utilizing potential wilderness for pasture and silage, the EIS makes it clear that Alternative B perpetuates additional harm on the native fauna, stating that under F, “…impacts on wildlife related to dairy and beef ranching would cease, including disturbance, trampling, erosion, and nutrient inputs” and that Alternative F “would eliminate impacts [on native wildlife] of forage production, manure spreading, and diversification and would reduce high-intensity-use areas compared to existing conditions.”
According to the United Nations, thanks to human pressures, one million species may be pushed to extinction in the next few years, with serious consequences for human beings as well as the rest of life on Earth. [ix]
In 1978, a small herd of Tule elk, a California endemic species once thought extinct, was brought to Point Reyes to establish a preserve inside the park on Tomales Point, behind an eight-foot fence stretching from the Pacific to Tomales Bay. Two free-ranging herds have since been established outside of the fenced reserve, in the southern part of the park. These animals, once numbering around 500,000, were reduced to only a dozen or so animals during the Gold Rush, when hunters decimated their population.
Alternative B would allow, “adverse impacts from fencing and hazing, consistent with existing conditions…while limiting the size of the Drakes Beach herd to 120 individuals through lethal removal,” whereas Alternative F “would eliminate impacts on elk related to hazing and fencing and would allow for the free-range population to expand across the planning area.” (The southern herds are currently well above 120 animals, meaning operationalizing Alternative B would result immediately in culling dozens of animals.)
Setting future management aside, in other words setting aside the plan to continually cull a native species in a national park on behalf of private interests, note that the fence is there in the first place to keep elk off cattle pasture, and that the fence is the cause of repeated die-offs and significant suffering. During the drought of 2013-2015, over 250 elk, roughly half the confined herd, died in the fenced preserve, whereas the free ranging herds grew over that time. In 2019 and 2020, the number of elk behind the fence fell from 445 to 293, meaning another third died, whereas the free-roaming herds were about stable over the same period. [x] [xi] [xii] The park service had steadfastly maintained that these die-offs are “natural and predictable,” although recently under increased public pressure, they finally brought water to some of the confined herds.[xiii] At this time, it’s unclear if they will continue to do so, or if they will also provide needed forage, or what, if any, policy changes triggered the intervention and will govern future management actions.
PRNS is the only national park with Tule elk. Currently there are approximately 500-600 elk in total (with a die-off in progress) in PRNS and about 5,500 cows, and there are about as many cows in PRNS as there are Tule elk in existence. A lawsuit was filed by the Harvard Law Clinic in June 2021 over the NPS’s treatment of the elk.[xiv]
Some of the impacts listed above are practically unavoidable for beef and dairy ranches (or nearly so, especially for already-subsidized operations in economically suffering market segments ). Many people have romantic takes on the associated professions, booted ranchers and overalled dairymen, and prefer pastures over housing developments and strip malls. Sometimes you hear, “without the ranches, we wouldn’t have any park” (of course, arguably without the park, we wouldn’t have any ranches – see the Myths of Economy section in the next part of this series.) But none of these sentiments and caveats keep methane out of the air, E. coli out of the creeks, invasive species out of the fields, or bullets out of the elk. Given the above, it’s hard to accede to casual claims of stewardship.
Myth of Perpetuity
It is often claimed that legislators and other influencers to the formation of PRNS intended ranching to remain forever. The truth is the 1962 Legislation (PUBLIC LAW 87-657-SEPT. 13, 1962), also called the “founding” legislation makes no mention of this, nor, as far as the author is aware, is there any written evidence cited from the relevant timeframe (from “back then”).
One possible source of confusion is that the original 1962 legislation does say, “No parcel … shall be acquired without the consent of the owner so long as it remains in its natural state, or is used exclusively for ranching and dairying purposes including housing directly incident thereto.” But this is explicitly about lands not brought into the park, and whether landowners might be forced to sell (say through eminent domain). It is not about what would be permitted on the land if it were to be bought by the government and made part of the national park.
Another possible source of confusion is that the founding legislation, which allows the Secretary to purchase private, residential parcels but not ranching properties (Sec. 6), was amended in 1978 with language that allows for the issuance of ranch leases:
“Where appropriate in the discretion of the Secretary, he or she may lease federally owned land (or any interest therein) which has been acquired by the Secretary under this Act, and which was agricultural land prior to its acquisition. Such lease shall be subject to such restrictive covenants as may be necessary to carry out the purposes of this Act.” PUBLIC LAW 95-625—NOV. 10, 1978
But this came later, merely permits leases, and does not mandate or even recommend them. The same Amendment has verbiage about retention of use and occupancy, but this is explicitly time-boxed:
The owner of improved property or of agricultural occupancy rights, property on the date of its acquisition by the Secretary under this act may, as a condition of such acquisition, retain for himself and his or her heirs and assigns a right of use and occupancy for a definite term of not more than twenty-five years, or, in lieu thereof, for a term ending at the death of the owner or the death of his or her spouse, whichever is later.” PUBLIC LAW 95-625—NOV. 10, 1978
U.S. Representative Jared Huffman, in whose district the seashore lies, refers to “congress’s longstanding intent” on the matter, but it’s not clear how long he means by longstanding nor is it clear on what this claim is based. U.S. Senator Diane Feinstein is also an advocate of continued ranching in PRNS and has made similar claims. Early in 2019, Rep. Huffman included a “joint explanatory statement” in a House spending bill [xv] which asserted Congress’s desire for ranching to continue. But when Rep. Huffman and Senator Feinstein refer to Congress’s intent, surely, they can’t be referring only to themselves.
In the absence of any recorded evidence regarding use in perpetuity, it is reasonable to put the burden of proof of those making the positive claim (i.e., it was intended from the inception that ranching should carry on in perpetuity). Land use, leases, property rights and the like are not normally left as gentlemen’s agreements, and Congress is not normally shy about writing things down.
Furthermore, in Managing a Land in Motion: An Administrative History of Point Reyes National Seashore, prepared for the NPS in 2007, author Paul Sadin summarizes as follows:
Legislators paid close attention to property owners’ rights, but the ranches and dairies were not elements that the NPS, park supporters, or legislators sought to protect as part of the larger national seashore idea.” Sadin, p 89.
Later Sadin elaborates:
The authorizing act did not mandate the ranch owners, or the NPS, to keep the land in agricultural use; they did want to maintain undeveloped open space, the pastoral scene, and rights of the original property owners. Many NPS officials and members of Congress assumed that once the government purchased the land in the pastoral zone, it would eventually be allowed to return to its natural state, as that term was then understood. When the government purchased from ranch owners the land needed to create the national seashore, the NPS granted reservations of use and occupancy (ROPs), or in some cases, life estates, to landholders who wanted to continue their dairy or cattle grazing businesses. The ROPs gave the ranchers and their descendants, generally for a period of twenty-five years, the right to continue living and working on their former properties, as long as they continued their traditional agricultural operations. By the early 1990s, the terms of the ROPs began to expire, leaving park administration to determine how to proceed. (Sadin, p177)
Ranchers and politicians often refer to the park statutes, as amended up to the present, as the “enabling” legislation (as opposed to the “founding” legislation which is the original 1962 law.) This is a legally correct usage but is easily confused with the founding legislation. Enabling statutes are published with all amendments included and it is difficult to sort out the dates for each provision. In this way, the advocates of ranching create the false impression that the founding statute allowed leasing. It did not.
Indeed, if anecdote is admissible, the Berkeley-based environmental writer Ken Brower, who as a teenager read in draft the 1962 legislation for his father, David Brower, the first Executive Director of the Sierra Club who was instrumental in forming the park, insists that ranching was known to be temporary, and that what allowances there were for retention of use and leases were transitional, part of the deal struck between the government and the ranches to form the park in the first place. This agrees with the Sadin account and is not contradicted by any law.
Myth of Creation
Some go as far as saying the original Point Reyes ranching families were the driving force behind the creation of PRNS. But the administrative history and congressional record shows that developers and speculators were showing increased interest in the peninsula. In fact, some land was already purchased by developers and buildings already constructed. These parcels and structures were acquired by the federal government along with the ranchlands to comprise the seashore. Twelve ranchers, including Joseph Mendoza and Alfred Grossi, whose decedents still hold leases in the park (see the Myth of Poverty section in the next part of this series), testified against the park’s formation to Congress in 1961, the year before the park was formally authorized. Letters protesting the park were submitted by “Nunes and Mendoza,” Waldo Giacomini, and Margaret, David, John, and James McClure.[xvi] The administrative history credits only non-ranchers as park supporters:
The key individuals who helped propel the seashore bill from its introduction in 1959 to enactment in 1962 included Congressman Clem Miller, Senators Clair Engle and Thomas H. Kuchel, legislative assistants William “Bill” Duddleson and Philip Dickinson, field representative William “Bill” Grader, NPS administrators Conrad Wirth and George L. Collins, Secretary of the Interior Stewart L. Udall, journalist and author Harold Gilliam, Sierra Club leader Edgar Wayburn, and such local citizen-activists as Barbara Eastman, Richard and Doris Leonard, and Bertram and Verna Dunshee, to name just a few.[xvii]
Secretary Udall bestowed credit on David Brower, Executive Director of the Sierra Club at the time.
“We called it the Third Wave, and the older I get, the more I believe it was a powerful third wave of the conservation movement. But it also wrapped in the environmental ecological concerns raised by Rachel Carson…There were two giant figures out at the grass roots – David Brower and Rachel Carson were very influential.”[xviii]
Brower’s contribution is further elaborated:
Another Sierra Club publication, Gilliam’s 1962 Island in Time, made an even greater impact in the struggle to create a national seashore at Point Reyes. The book came about when Sierra Club Executive Director Dave Brower, having had read many of Gilliam’s conservation-minded articles in the San Francisco Chronicle and having contracted with Gilliam to write an article for the Sierra Club Bulletin, asked him to do a book on Point Reyes using the “island in time” phrase as the title. The book’s objective
was to help bring publicity to the authorization campaign and to give people (especially legislators) who could not travel there a glimpse of the peninsula’s rugged beauty. Brower, as with most of his preservation work, threw himself wholly into the publication effort. He designed it, recruited Secretary of the Interior Stewart Udall to write the foreword, and wrote a poetic epigraph of his own without attaching his byline. [xix]
[xvii] Managing a Land in Motion: An Administrative History of Point Reyes National Seashore, prepared for the NPS in 2007; Paul Sadin, p72.
[xviii] Managing a Land in Motion: An Administrative History of Point Reyes National Seashore, prepared for the NPS in 2007; Paul Sadin, p 87.
[xix] Managing a Land in Motion: An Administrative History of Point Reyes National Seashore, prepared for the NPS in 2007; Paul Sadin, p 62.