Drakes Bay Oyster Company et al v. Salazar et al, No. 4:2012cv06134 - Document 157 (N.D. Cal. 2014)

Court Description: FINAL JUDGMENT, ORDER AND DECREE;STIPULATION AND ORDER RE APPROVAL OF SETTLEMENT AGREEMENT AND ENTRY OF CONSENT DECREE; FINDINGS OF FACT AND CONCLUSIONS OF LAW, re 156 STIPULATION WITH PROPOSED ORDER For Approval of Settlement Agreemen t and Entry of Consent Decree; [Proposed] Findings of Fact and Conclusions of Law Thereon filed by U.S. Department of the Interior, U.S. National Park Service, Drakes Bay Oyster Company, Kenneth L. Salazar, Jonathan Jarvis.. Signed by Judge Yvonne Gonzalez Rogers on 10/8/14. (fs, COURT STAFF) (Filed on 10/8/2014)

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Drakes Bay Oyster Company et al v. Salazar et al 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 Doc. 157 MELINDA L. HAAG (CSBN 132612) United States Attorney ALEX TSE (CSBN 152348) Chief, Civil Division MICHAEL T. PYLE (CSBN 172954) Assistant United States Attorney SAM HIRSCH Acting Assistant Attorney General U.S. Department of Justice Environment and Natural Resources Division STEPHEN M. MACFARLANE (N.Y. Bar No. 2456440) Senior Attorney, U.S. Department of Justice Environment and Natural Resources Division 501 “I” Street, Suite 9-700 Sacramento, CA 95814-2322 Tel: (916) 930-2204/Fax: (916) 930-2210 Email: Stephen.Macfarlane@usdoj.gov JOSEPH T. MATHEWS (Colo. Bar No. 42865) Trial Attorney, U.S. Department of Justice Environment and Natural Resources Division P.O. Box 7611, Ben Franklin Station Washington, D.C. 20044-7611 Tel: (202) 305-0432/Fax: (202) 305-0506 Email: joseph.mathews@usdoj.gov E. BARRETT ATWOOD (Cal. Bar No. 291181) Trial Attorney, U.S. Department of Justice Environment and Natural Resources Division Natural Resources Section 301 Howard Street, Suite 1050 San Francisco, CA 94105 Tel: (415) 744-6480/Fax: (415) 744-6476 Email: barrett.atwood@usdoj.gov Attorneys for Defendants UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF CALIFORNIA OAKLAND DIVISION 20 21 DRAKES BAY OYSTER COMPANY et al. Plaintiffs, 22 23 24 25 26 v. S.M.R. JEWELL, in her official capacity as Secretary of the Interior, et al. Defendants. Case No. 12-cv-06134 YGR/DMR STIPULATED REQUEST FOR APPROVAL OF SETTLEMENT AGREEMENT AND ENTRY OF CONSENT DECREE; [PROPOSED] FINDINGS OF FACT AND CONCLUSIONS OF LAW THEREON. FINAL JUDGMENT, ORDER AND DECREE. Court: Hon. Yvonne Gonzalez Rogers, Courtroom 1 – 4th Floor 27 28 Stipulated Request for Approval of Settlement Agreement and Entry of Consent Decree; [Proposed] Findings of Fact and Conclusions of Law Thereon. Case No. 12-cv-06134YGR/DMR Dockets.Justia.com 1 2 3 Plaintiffs Drakes Bay Oyster Company and Kevin Lunny (“Plaintiffs”) and Defendants S.M.R. Jewell, in her official capacity as Secretary of the Interior, et al. (“Defendants”) (collectively, “the Parties”), through undersigned counsel, state as follows: 4 5 I. A. RECITALS Whereas Plaintiffs and Defendants have been engaged in settlement discussions 6 and have reached a final resolution of all of Plaintiffs’ claims in the above-captioned case as set 7 forth in the accompanying Settlement Agreement and [Proposed] Consent Decree (“Settlement”), 8 filed concurrently herewith and attached as Exhibit 1 to this Stipulation. 9 B. Whereas the Settlement has been approved by Plaintiffs and Defendants. 10 C. Whereas the Parties intend, and respectfully request, that the Court enter the 11 12 13 Settlement as a Consent Decree as set forth in the Settlement. D. Whereas the Court may enter the Settlement as a Consent Decree if the Consent Decree is fair, reasonable, and equitable, and does not violate the law or public policy. 14 Therefore, the Parties respectfully present this Stipulated Request for Approval of 15 Settlement and Entry of Consent Decree and [Proposed] Findings of Fact and Conclusions of Law 16 Thereon. II. STIPULATED [PROPOSED] FINDINGS OF FACT AND CONCLUSIONS OF LAW RE: SETTLEMENT AGREEMENT AND CONSENT DECREE 17 18 19 20 21 The Parties hereby stipulate and respectfully request that the Court find as follows: A. BACKGROUND 1. The Court has presided over this case since it was originally filed in December 2012 and is familiar with the facts and claims at issue. The Court previously summarized the 22 statutory and factual background of this case in its order denying Plaintiffs’ motion for 23 preliminary injunction. Drakes Bay Oyster Co. v. Salazar, 921 F. Supp. 2d 972, 976-83 (N.D. 24 Cal. 2013) (Drakes Bay I), aff’d sub nom. Drakes Bay Oyster Co. v. Jewell, 747 F.3d 1073 (9th 25 Cir. 2014) (Drakes Bay II), cert. den’d 134 S. Ct. 2877 (2014). 26 2. Following the issuance of the mandate by the Ninth Circuit, the Parties entered 27 into settlement negotiations. Counsel for Plaintiffs and Defendants advised the Court that they 28 were engaged in settlement discussions at a July 7, 2014, case management conference. See ECF Stipulated Request for Approval of Settlement Agreement and Consent Decree; [Proposed] Findings of Fact and Conclusions of Law Thereon. Case No. 12-cv-06134-YGR/DMR 1] 1 2 #136. The Court referred the case to the Hon. Donna M. Ryu, United States Magistrate-Judge, to conduct a settlement conference. Id.; see also ECF #137 (Notice of Settlement Conference and 3 Settlement Conference Order). On August 6, 2014, the Court approved a stipulated 4 confidentiality order proposed by the Parties, to assist them in their discussions. ECF #148. 5 Judge Ryu held settlement conferences on August 8, August 11, and August 19, 2014, in which 6 counsel for the Plaintiffs and Defendants participated. See ECF ## 151, 152, 153. 7 3. On September 30, 2014, the Parties, through their counsel, executed the 8 Settlement. The Settlement recites that counsel for Plaintiffs was authorized to enter into the 9 Consent Decree on behalf of Plaintiffs DBOC and Kevin Lunny. The Settlement further recites 10 that counsel for Defendants has been authorized to enter into the Consent Decree on behalf of the 11 United States. 12 B. STANDARDS FOR APPROVING A CONSENT DECREE 13 4. The Court may approve a consent decree when the decree is “’fair, reasonable and 14 equitable and does not violate the law or public policy.’” Turtle Island Restoration Network v. 15 United States Dep’t of Commerce, 672 F.3d 1160, 1165 (9th Cir. 2012) (quoting Sierra Club, Inc. 16 v. Elec. Controls Design, Inc., 909 F.2d 1350, 1355 (9th Cir. 1990)). In determining whether a 17 18 19 20 consent decree is fair, the Court considers both procedural and substantive fairness, including whether the decree is the product of good-faith, arms-length negotiations and is equitable. Turtle Island Restoration Network v. United States Dep’t of Commerce, 834 F. Supp. 2d 1004, 1016-17 (D. Haw. 2011), aff’d 672 F.3d 1160 (9th Cir. 2012); United States v. Chevron, 380 F. Supp. 2d 1104, 1110-11 (N.D. Cal. 2005). A consent decree that is the product of good faith, arms-length 21 bargaining is “presumptively valid.” United States v. Oregon, 913 F.2d 576, 581 (9th Cir. 1990). 22 With respect to substantive fairness, the Court’s task is not to determine whether the settlement is 23 24 25 “ideal” or one the court might have fashioned. Chevron, 380 F. Supp. 2d at 1111 (citing United States v. Cannons Eng’ing Corp., 899 F.2d 79, 84 (1st Cir. 1990). Rather, “the court’s approval is nothing more than an amalgam of delicate balancing, gross approximations and rough justice.” 26 United States v. Oregon, 913 F.2d at 581 (internal quotations omitted). “In addition, because it is 27 a form of judgment, a consent decree must conform to applicable laws.” Id. at 580. In making 28 Stipulated Request for Approval of Settlement Agreement and Entry of Consent Decree; [Proposed] Findings of Fact and Conclusions of Law Thereon. Case No. 12-cv-06134YGR/DMR 2 1 2 these determinations, the Court’s familiarity with the lawsuit “can be an important factor” in determining whether a hearing is necessary before approving a consent decree. Id. at 582. 3 C. THE CONSENT DECREE IS FAIR AND EQUITABLE. 4 5. The Settlement is the product of good-faith negotiations, reflects the advice of 5 experienced counsel for Plaintiffs and Defendants, and takes into account the possible risks 6 involved in litigation if the Settlement were not approved. This litigation has been hard fought all 7 the way to the United States Supreme Court. Plaintiffs vigorously pursued the claims in their 8 amended complaint, and settlement negotiations did not begin until after the Supreme Court 9 denied Plaintiffs’ petition for writ of certiorari on June 30, 2014. The Parties conducted arms- 10 length settlement negotiations, including intensive discussions between August 8 and August 19, 11 2014, which were presided over by Magistrate-Judge Ryu. The Settlement reached reflects a 12 reasonable compromise that considers both Plaintiffs’ prospects for success on the merits and the 13 time it would take to reach a final judgment on the merits, including any claims that might have 14 been brought through further amendment of the pleadings. See, e.g., ECF# 113 (Joint Case 15 Management Statement filed Sept. 16, 2013). Thus, the Settlement is procedurally fair. 16 17 18 19 20 6. The Settlement is also equitable and comports with substantive fairness for reasons which include the following: a. It provides DBOC and Mr. Lunny with a reasonable period of time to wind down shellfish harvesting from Drakes Estero to recover DBOC’s economic investment in shellfish planted before the Secretary of the Interior’s (“Secretary”) November 29, 2012, decision, consistent with Plaintiffs’ contention that the permit issued to DBOC by Defendants in 2008 21 allows the company a reasonable time to remove valuable property after the expiration of the 22 permit. Thus, the Settlement allows DBOC to harvest shellfish and sell them away from Point 23 24 25 Reyes National Seashore (“Point Reyes”) up to midnight on December 31, 2014. The Settlement allows DBOC to continue to use specified onshore facilities to remove and process shellfish for sale away from Point Reyes; Plaintiffs closed DBOC’s retail and canning operations on July 31, 26 2014. During the period between the execution of the Settlement and December 31, 2014, the 27 Settlement requires Plaintiffs to remove and dispose of all other shellfish from areas of cultivation 28 Stipulated Request for Approval of Settlement Agreement and Entry of Consent Decree; [Proposed] Findings of Fact and Conclusions of Law Thereon. Case No. 12-cv-06134YGR/DMR 3 1 2 in Drakes Estero according to an enforceable timetable. Plaintiffs are also required under the Settlement to vacate oyster racks in Drakes Estero on an enforceable schedule. However, the 3 National Park Service (“Park Service”) agrees in the Settlement to undertake the removal of 4 oyster racks from Drakes Estero, as well as all onshore and offshore property related to shellfish 5 cultivation remaining after December 31, 2014, at the Park Service’s sole expense and cost. The 6 Settlement requires Plaintiffs’ shellfish removal operations in Point Reyes to cease by December 7 31, 2014, and requires DBOC to permanently close its operations in Drakes Estero at that time. 8 9 b. The Settlement allows the Park Service to immediately begin the removal of specified onshore property not associated with shellfish removal, and to initiate oyster rack 10 removal and clean-up operations in Drakes Estero upon entry of the Settlement as a consent 11 decree, thereby advancing the Park Service’s goal of expeditiously transitioning Drakes Estero to 12 management as a marine wilderness. The Settlement allows the Park Service’s removal and 13 clean-up operations to occur concurrently with DBOC’s removal of shellfish from Drakes Estero. 14 The Parties agree to provide each other information and to communicate about each other’s 15 activities. 16 17 18 19 20 c. The Settlement terminates the litigation in this case and avoids future litigation. Plaintiffs dismiss all claims in their amended complaint with prejudice; waive and release all claims or causes of action for damages or equitable relief based on the alleged harms or violations relating to the United States’ management, oversight, or administration of Point Reyes and/or Drakes Estero; and further warrant and represent that they will not bring or cause to be brought any other action or suit related to the claims asserted, or that could have been asserted, in 21 the above-captioned case. Defendants covenant not to sue or take administrative action against 22 Plaintiffs for actions occurring prior to the execution of the Settlement, including trespass, 23 24 25 26 ejectment, unpaid rent, claims predicated upon DBOC’s commercial shellfish operations, and claims predicated on breaches or violations of the 2008 Special Use Permit issued to DBOC and Mr. Lunny. The Settlement is the result of a compromise and involves no admission of liability or wrongdoing on the part of any party. 27 28 Stipulated Request for Approval of Settlement Agreement and Entry of Consent Decree; [Proposed] Findings of Fact and Conclusions of Law Thereon. Case No. 12-cv-06134YGR/DMR 4 1 2 d. The Park Service will extend federal relocation benefits to all qualified employees of DBOC who live on-site. Regardless of whether employees who reside on-site 3 qualify for federal relocation benefits, they may continue to live on-site for not less than 90 days 4 following the closure of DBOC on December 31, 2014. The Park Service will continue to 5 provide those employees residing on-site with power, drinking water, and septic services meeting 6 health and safety requirements. 7 e. The entry of the Settlement as a consent decree will provide the Parties 8 with potential assistance from the Court in the event disputes arise over compliance with the 9 terms of the Settlement. Because DBOC will permanently close its Point Reyes operations on 10 December 31, 2014, the potential need for Court assistance will be of limited duration. 11 D. THE CONSENT DECREE IS REASONABLE 12 7. The reasonableness inquiry focuses on whether a consent decree is confined to the 13 dispute between the parties and accomplishes its purported goal. Envtl. Def. v. Leavitt, 329 F. 14 Supp. 2d 55, 71 (D.D.C. 2004); Turtle Island, 834 F. Supp. 2d at 1018. Here, the Settlement 15 resolves Plaintiffs’ challenge to the Secretary’s decision not to issue a new, ten-year special use 16 permit that would have allowed DBOC to continue commercial shellfish operations in Drakes 17 18 19 20 Estero. Plaintiffs’ prior federal authorizations to conduct shellfish operations having expired at the end of November 2012, the Settlement affords Plaintiffs a reasonable period of time to complete the wind-down of removal of their personal property, including shellfish, from Drakes Estero and adjacent onshore land. The Settlement does not affect Mr. Lunny’s continued use of G Ranch and does not prevent Mr. Lunny from conducting commercial shellfish operations 21 outside of Point Reyes. The Settlement facilitates the Park Service’s objective of managing 22 Drakes Estero as a marine wilderness through (1) the permanent closure of DBOC facilities and 23 24 25 operations in Drakes Estero and adjacent onshore land on December 31, 2014; and (2) Plaintiffs’ relinquishment of all asserted rights to conduct commercial shellfish operations in Point Reyes and their covenant not to operate or accept an authorization to operate a commercial shellfish 26 operation in Drakes Estero except according to the terms of the Settlement. Thus, the Settlement 27 is reasonable. 28 Stipulated Request for Approval of Settlement Agreement and Entry of Consent Decree; [Proposed] Findings of Fact and Conclusions of Law Thereon. Case No. 12-cv-06134YGR/DMR 5 1 E. THE CONSENT DECREE DOES NOT VIOLATE LAW OR PUBLIC POLICY 8. The Settlement does not violate any law, including but not limited to the 2 3 Wilderness Act. 16 U.S.C. § 1131 et seq. As noted above, the Settlement requires the permanent 4 5 6 7 closure of DBOC’s Point Reyes operations as of midnight December 31, 2014. By providing for removal of DBOC’s farmed shellfish, including shellfish too small to be sold commercially, the Settlement Agreement protects public health and furthers the Park Service’s management goals for Drakes Estero. On December 4, 2012, the Park Service published a Federal Register Notice 8 announcing the change in status of Drakes Estero from potential wilderness to wilderness. Drakes 9 Bay I, 921 F. Supp. 2d at 982. 10 9. The Settlement is consistent with the strong public policy favoring the settlement 11 of litigation, including through the use of consent decrees in appropriate circumstances. Cannons 12 Eng’ing, 899 F.2d at 84; Securities and Exchange Comm’n v. Randolph, 736 F.2d 525, 528 (9th 13 Cir. 1984). The Settlement here does not violate public policy. 14 15 F. CONCLUSIONS OF LAW For the foregoing reasons, the accompanying Settlement is fair, reasonable, and equitable, 16 and does not violate the law or public policy. The parties respectfully request that the Court 17 approve the Settlement and enter the Consent Decree as the final Order, Judgment, and Decree in 18 the above-captioned case. 19 Respectfully submitted this 6th day of October, 2014. 20 MELINDA HAAG United States Attorney 21 22 23 24 25 26 27 28 MICHAEL T. PYLE Assistant United States Attorney SAM HIRSCH Acting Assistant Attorney General By: /s/ Stephen M. Macfarlane STEPHEN M. MACFARLANE (N.Y. Bar No. 2456440) Senior Attorney JOSEPH T. MATHEWS (Colo. Bar No. 42865) E. BARRETT ATWOOD (Cal. Bar. No. 291181) Trial Attorneys Stipulated Request for Approval of Settlement Agreement and Entry of Consent Decree; [Proposed] Findings of Fact and Conclusions of Law Thereon. Case No. 12-cv-06134YGR/DMR 6 1 Attorneys for Defendants 2 BRISCOE IVESTER & BAZEL LLP 3 4 By: /s/ Lawrence S. Bazel (per authorization 10/06/2014) LAWRENCE S. BAZEL (CA Bar No. 114641) PETER PROWS (CA Bar No. 257819) 5 6 Attorneys for Plaintiffs 7 [PROPOSED] ORDER 8 9 THE COURT APPROVES THE TERMS OF THE STIPULATION AND ADOPTS THE FINDINGS OF FACT AND CONCLUSIONS OF LAW SET FORTH THEREIN. 10 11 12 The Court will enter the accompanying Settlement Agreement and [Proposed] Consent Decree as a final Judgment, Order, and Decree in this case. IT IS SO ORDERED. 13 14 15 October 8, 2014 DATED: ________________ ________________________________________ YVONNE GONZALEZ ROGERS UNITED STATES DISTRICT JUDGE 16 17 18 19 20 21 22 23 24 25 26 27 28 Stipulated Request for Approval of Settlement Agreement and Entry of Consent Decree; [Proposed] Findings of Fact and Conclusions of Law Thereon. Case No. 12-cv-06134YGR/DMR 7 1 2 3 CERTIFICATE OF ELECTRONIC SERVICE I hereby certify that on October 6, 2014, I electronically filed the “Stipulated Request for Approval of Settlement Agreement and Entry of Consent Decree; [Proposed] Findings of Fact 4 and Conclusions of Law Thereon” and “Settlement Agreement and [Proposed] Consent Decree” 5 6 7 with the Clerk of the Court using the ECF system, which automatically will send email notification to the attorneys of record. 8 9 10 /s/ Stephen M. Macfarlane STEPHEN M. MACFARLANE 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Stipulated Request for Approval of Settlement Agreement and Entry of Consent Decree; [Proposed] Findings of Fact and Conclusions of Law Thereon. Case No. 12-cv-06134YGR/DMR 8 1 2 3 4 5 6 7 8 Exhibit 1 9 10 Settlement Agreement and 11 12 [Proposed] Consent Decree 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Stipulated Request for Approval of Settlement Agreement and Entry of Consent Decree; [Proposed] Findings of Fact and Conclusions of Law Thereon. Case No. 12-cv-06134YGR/DMR UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF CALIFORNIA OAKLAND DIVISION Case No: 3:12-cv-06134-YGR DRAKES BAY OYSTER COMPANY,et al., Settlement Agreement and [Proposed] Consent Decree Plaintiffs, v. S.M.R. JEWELL,in her official capacity as Secretary, U.S. Department of the Interior, et al., Defendants. SETTLEMENT AGREEMENT AND (PROPOSEDI CONSENT DECREE For the purpose of settling and resolving the disputes that have arisen between and among them without there being any trial or adjudication of any issue of law or fact, and without constituting an admission of liability on the part of any party, and for no other purpose, Plaintiffs Drakes Bay Oyster Company("DBOC")and Kevin Lunny (collectively, "Plaintiffs") and Defendants S.M.R. Jewell, acting in her official capacity as Secretary of the Interior, United States Department of the Interior, United States National Park Service("NPS"),and Jonathan Jarvis, acting in his official capacity as Director of the National Park Service (collectively, "Defendants") recite and agree to the following: RECITALS (1) In 1962, the United States Congress("Congress") authorized the Point Reyes National Seashore ("Point Reyes") as a unit of the United States National Park System. Act of Sept. 13, 1962, Pub. L. No. 87-657, 76 Stat. 538, 538. Drakes Estero constitutes nearly 2,500 acres of Point Reyes. (2) DBOC. In 2008, NPS issued a Special Use Permit("2008 SUP"), attached as Exhibit 1, to (3) On December 3, 2012, Plaintiffs filed this action for declaratory and injunctive relief against Defendants. (4) On December 21, 2012, Plaintiffs filed their first amended complaint far declaratory and injunctive relief: (5) On July 31, 2014, DBOC terminated its retail and cannery operations at the onshore property adjacent to Drakes Estero. Plaintiffs have removed mobile trailers, shellfish Settlement Agreement and [Proposed] Consent Decree, Case No. 12-cv-06134-YGR bags, tubes, spacers, wires, and oyster shells from that location, and Defendants are not requesting that Plaintiffs remove any additional property from that onshore location. (6) Defendants represent that the NPS remains committed to providing relocation benefits to qualified employees and their families who live on the onshore property adjacent to Drakes Estero, and will be working with their legal representatives, such as Legal Aid of Marin, or directly with those employees that do not have representation. (7) Moreover, the Parties recognize, and by entering this Settlement Agreement and [Proposed] Consent Decree ("Consent Decree") this Court finds, that this Consent Decree has been negotiated by the Parties in good faith, will avoid litigation between the Parties, and is fair, reasonable, and in the public interest. CONSENT DECREE Therefore, with the consent of the Parties, it is hereby ADJUDGED,ORDERED,and DECREED as follows: 1. Retention of Jurisdiction. Plaintiffs and Defendants (individually, a "Party;" collectively, the "Parties") intend that this Consent Decree shall be approved by this Court and entered as a Consent Decree. The Court has jurisdiction over the subject matter of this action, pursuant to 28 U.S.C. § 1331, and the Parties. The Court shall retain exclusive jurisdiction over this Consent Decree for the purpose of resolving disputes arising under this Consent Decree, entering orders modifying this Consent Decree, or effectuating or enforcing compliance with the terms of this Consent Decree. The Parties agree that this Court shall have exclusive jurisdiction to hear and resolve any disputes between the Parties over the implementation of the terms of this Consent Decree. Venue lies in this District pursuant to 28 U.S.C. § 1391 because a Defendant is an officer of or employee of the United States and the violations alleged in the First Amended Complaint are alleged to have occurred, and Plaintiffs conduct business, in this District. For purposes of this Consent Decree, or any action to enforce this Consent Decree, the Parties consent to the Court's jurisdiction and to venue in this District. 2. Applicability. a. The obligations of this Consent Decree apply to and are binding upon the Defendants, and upon Plaintiffs and any assigns, corporate successors, or other entities or persons otherwise bound by law. If at any time before midnight on December 31, 2014, DBOC assigns or transfers any right or obligation under this Consent Decree to any third party, Plaintiffs shall provide assignee or transferee with a copy of this Consent Decree no later than. the date the assignment or transfer becomes effective, and shall within 2 days after the date the assignment or transfer becomes effective provide Defendants with notice ofthe assignment or transfer. b. Plaintiffs and Defendants shall provide a copy of this Consent Decree to all their respective officers, managers, and agents whose duties might reasonably include compliance with any provision of this Consent Decree, as well as to any contractor retained to perform work required under this Consent Decree. Settlement Agreement and [Proposed] Consent Decree, Case No. 12-cv-06134-YGR 2 Plaintiffs and Defendants shall condition any such contract upon performance of the work in conformity with the terms of this Consent Decree. c. In any action to enforce this Consent Decree, Plaintiffs and Defendants shall not raise as a defense the failure by any of its officers, directors, employees, agents, or contractors to take any actions necessary to comply with the provisions of this Consent Decree. 3. Terms of Agreement and Compliance Requirements. The Parties have entered into settlement negotiations designed to amicably resolve this dispute, and any future disputes, between the Parties regarding commercial shellfish operations in Drakes Estero, and have agreed to settle these disputes by entering into this agreement, with each Party to bear its own costs, attorney fees, and litigation expenses: a. Identification of Oyster Racks and Initial Removal of Onshore Property. Immediately upon the Parties' execution of this Settlement Agreement and [Proposed] Consent Decree, and without requiring the Court's entry of this Consent Decree, the Parties agree that: i. Plaintiffs shall provide a map or aerial photograph to NPS showing the location of all oyster racks in the Estero, and identifying dilapidated or currently unused oyster racks and related offshore operational infrastructure (including anchors, lines, buoys and floating equipment) DBOC has used in its operations; and ii. NPS may remove all setting tanks, the structure known as the "punching shed," the structure known as the "stringing shed," and/or DBOC's office warehouse; and that NPS shall provide Plaintiffs with a minimum of 24 hours advance notice by telephone or electronic email according to the provisions set forth in Paragraph 14(Notice and Correspondence) before undertaking any such removal action. b. Concurrent Activities for Plaintiffs' Removal of Shellfish and Defendants' Removal of Offshore Property. Immediately upon the Court's entry of this Consent Decree, the Parties agree that: i. Plaintiffs shall provide an updated map or aerial photograph to NPS identifying dilapidated ar currently unused oyster racks and offshore operational infrastructure, and NPS may immediately commence actions to dismantle and/or remove such items and any items previously identified pursuant to Paragraph 3(a); ii. NPS shall have access to all oyster racks and operational infrastructure in Drakes Estero for purposes of inspection and information-gathering and Plaintiffs shall cooperate with NPS regarding reasonable requests for information regarding the location of oyster racks, offshore operational infrastructure, and/or other information relevant to NPS's activities made Settlement Agreement and [Proposed] Consent Decree, Case No. 12-cv-06134-YGR pursuant to this Paragraph to remove items from, or to clean up, the Estero; iii, Every month until December 31, 2014, Plaintiffs shall notify NPS of Plaintiffs' progress in removing shellfish from the Estero that month, and which oyster racks previously in use have been vacated or are no longer in use. Of the 95 oyster racks believed to be present in Drakes Estero as of the date of the Parties' execution of this Settlement Agreement and [Proposed] Consent Decree, Plaintiffs shall vacate one quarter of such oyster racks every month, with the first quarter due to be vacated by September 30, 2014. As oyster racks and any offshore operational infrastructure are vacated or no longer used by Plaintiffs pursuant to this Paragraph 3(b), NPS may commence any actions to dismantle and/or remove such items; iv. Consistent with applicable law, NPS may commence, in Drakes Estero, surveys, information-gathering, and/or the removal. of marine debris and invasive species. Unless otherwise agreed to in writing by the Parties, said "marine debris" excludes Hazardous Materials as defined by paragraph 1(h) of the 2008 SUP; v. Plaintiffs shall remove bags of manila clams lacking harvestable manila clams from areas under cultivation in Drakes Estero (without regard to year of planting) by October 1, 2014. Not later than November 1, 2014, Plaintiffs shall remove all oysters under cultivation that they planted in Drakes Estero after November 30, 2012. On a monthly basis, Plaintiffs shall provide inventories or reports on the quantities of oysters and manila clams removed from the Estero. All manila clams and oysters removed during this time shall be transported outside the boundaries of Point Reyes and may be disposed of according to applicable law; vi. Plaintiffs shall remove shellfish under cultivation that they planted in Drakes Estero prior to November 30, 2012, and may continue to do so until midnight on December 31, 2014. All such shellfish removed during this time shall be transported outside the boundaries of Point Reyes and may be sold. Before midnight on December 31, 2014, Defendants shall not remove any harvestable shellfish from areas under cultivation that Plaintiffs may be able to sell. During this time, no shellfish that were not present in Point Reyes prior to June 30, 2014, may be planted, seeded, or placed in Drakes Estero; however, pacific oysters placed in Drakes Estero prior to November 30, 2012, and which are currently on strings or tubes, may be placed in bags for beach hardening prior to removal from Drakes Estero; vii. The foregoing activities in this Paragraph 3(b) may proceed concurrently, and each Party shall use its best efforts to avoid impeding or interfering with these activities taken by the other Party; and Settlement Agreement and [Proposed] Consent Decree, Case No. 12-cv-06134-YGR 4 viii. Not later than midnight on December 31, 2014, Plaintiffs shall permanently cease all shellfish removal activities in, and shall vacate, Drakes Estero and the adjacent onshore areas previously occupied by DBOC. Nothing in this Consent Decree shall prevent Plaintiff Kevin Lunny or any shareholder, director, officer, manager, agent, or employee of DBOC,current or former, from exercising any right or privilege related to Point Reyes that he or she may have as a member ofthe public or, except as provided in Paragraph 3(h), in association with any group or entity other than Plaintiffs. c. Additional Conditions and Authorizations for Plaintiffs' Shellfish Removal Activities. The Parties agree that Plaintiffs' shellfish removal activities pursuant to Paragraph 3(b} are subject to the following additional conditions and authorizations: i. Plaintiffs' onshore activities shall be limited to those facilities, equipment, and activities reasonably necessary to accomplish the purpose of removing shellfish from Drakes Estero in approximately the same manner in which Plaintiffs have been harvesting shellfish to date; and ii. The onshore facilities and equipment Plaintiffs may use to remove shellfish include but are not limited to the dock, conveyor belt, washing system, walk-in refrigerator, pneumatic system, onsite power, and the running water, bathrooms, septic system, telephone, and management space in the oyster shack. Defendants shall not remove these facilities and equipment before midnight on December 31, 2014. Nothing in this Paragraph shall limit the Defendants' right to remove the onshore property identified in Paragraph 3(a). iii. Not later than the date specified in Paragraph 3(b)(viii), Plaintiffs may remove any personal property used for the removal of shellfish as provided in Paragraphs 3(b) and 3(c). iv. Nothing in this Consent Decree is intended to preclude Plaintiffs, while removing shellfish in accordance with Paragraphs 3{b) and 3(c), from taking samples, and otherwise complying with requirements of the California Department of Public Health, the Food and Drug Administration, and any other agency with jurisdiction over the safety and quality of oysters and clams that may be consumed by the public. d. Defendants' Additional Removal Activities and Plaintiffs' Relinquishment of Related Obligations and Rights. The Parties agree that: i. As specified in Paragraphs 3(a) and (b), Defendants may remove and dispose of any property, valuable or otherwise, remaining on the onshore property or adjacent to or in the waters of Drakes Estero, including but not limited to oyster racks, shellfish, and apparatus or facilities not. used. to Settlement Agreement and [Proposed] Consent Decree, Case No. 12-cv-06134-YGR 5 remove shellfish. After December 31, 2014, Defendants may remove all remaining offshore and onshore property. Defendants will undertake such removal and disposal actions at their sole expense and cost, will not seek reimbursement for said costs from Plaintiffs, and will exercise their discretion as to the timing of the removal of said property and its disposal. Plaintiffs agree to relinquish and will not assert any claims, whether administrative, in law, or in equity, relating to the removal or disposal of said property; ii. Except as provided in this Consent Decree, Plaintiffs shall have no obligation to remove, and after December 31, 2014, will have no authority to remove, any onshore or offshore structures or apparatus, oyster racks, shellfish, equipment used for growing or harvesting shellfish, shells, trash, dirt, or Didemnum or other biological material in or from Drakes Estero or the onshore area adjacent to Drakes Estero. Except as provided in this Consent Decree, Plaintiffs shall have no obligation to grade, re-vegetate, sample, or analyze, and after December 31, 2014, will have no authority to, grade, re-vegetate, sample, or analyze any land or water in or from Drakes Estero or the onshore area adjacent to Drakes Estero; and iii. After the Parties' execution of this Settlement Agreement and [Proposed] Consent Decree, or at some other time as the Parties may agree in writing, NPS will transmit to the California Coastal Commission a letter referencing the foregoing terms of this Paragraph 3(d) and expressing NPS's intent to undertake the removal of facilities set forth herein. e. Plaintiffs' Covenant Not to Conduct Certain Activities within Point Reyes. Immediately upon the Parties' execution of this Settlement Agreement and [Proposed] Consent Decree, and without requiring the Court's entry of this Consent Decree, the Parties agree that: i. Plaintiffs shall not conduct retail sales or canning on lands or waters within Point Reyes; and ii. No shellfish shall be transferred to any customer, retail or wholesale, within Point Reyes. f. Plaintiffs' Cessation of, and Relinquishment of Right to, Remove Shellfish. Immediately upon the Court's entry of this Consent Decree, Plaintiffs, and any of their assigns and corporate successors, shall relinquish any and all asserted right to conduct commercial shellfish operations in Point Reyes, and further covenant not to operate, and not to accept an authorization to operate, a commercial shellfish operation in Drakes Estero except as provided in this Consent Decree. Not later than midnight on December 31, 2014, Plaintiffs shall permanently cease shellfish removal in Drakes Estero, and vacate Drakes Estero and the adjacent onshore area previously occupied by DBOC. This vacating and Settlement Agreement and [Proposed] Consent Decree, Case No. 12-cv-06134-YGR 6 relinquishment includes any claim by DBOC,its assigns or corporate successors, to any property, tangible or otherwise, remaining in Point Reyes. g. Full Settlement; Plaintiffs' Waiver, Release, and Covenant Not to Sue; and Defendants' Covenant Not to Sue. This Consent Decree constitutes a complete and final settlement and is in full satisfaction of all claims asserted, or that could be asserted, by Plaintiffs against Defendants in this action or in any federal court, state court, or administrative agency. Upon the entry of this Consent Decree, the Parties agree that: This Consent Decree shall constitute a stipulation of dismissal with prejudice of all claims alleged in Plaintiffs' First Amended Complaint, which include but are not limited to (1) violations of the National Environmental Policy Act("NEPA")and the Administrative Procedure Act("APA");(2) violation of the Data Quality Act("DQA")and the APA;(3) violations of the APA and Section 124 of the Department of the Interior, Environment and Related Agencies Appropriations Act for Fiscal Year 2010(Pub. L. No. 111-88);(4) violations of the Due Process Clause of the Fifth Amendment to the U.S. Constitution;(5)violations of the Takings Clause of the Fifth Amendment to the U.S. Constitution; and (6) alleged unlawful interference with agency functions. ii. Plaintiffs further waive, release, and covenant not to sue in any administrative or judicial forum on any and all claims, causes of action, obligations, and/or liabilities of any kind or nature whatsoever, known or unknown, regardless of legal theory, for any damages or any equitable or specific relief, that are based on the alleged harms or violations occurring before the entry of this Consent Decree and that relate to the United States' management, oversight, or administration of Point Reyes and/or Drakes Estero, including but not limited to the property upon which DBOC operates; iii. California Civil Code Section 1542 provides: "A general release does not extend to claims which the creditor does not know or suspect to exist in his or her favor at the time of executing the release, which if known by him. or her must have materially affected his or her settlement with the debtor." Plaintiffs having been apprised of the statutory language of Civil Code Section. 1542 by their attorney(s), and fully understanding the same, nevertheless elect to waive the benefits of any and all rights they may have pursuant to the provision of that statute and any similar provision of federal law. Plaintiffs understand that, if the facts concerning Plaintiffs' alleged injuries and any alleged liability of the United States for damages pertaining thereto are found hereinafter to be other than or different from the facts now believed by them to be true, the Consent Decree shall be and remain effective notwithstanding such. material difference; Settlement Agreement and [Proposed] Consent Decree, Case No. 12-cv-05134-YGR 7 iv. For the claims specifically identified in this Paragraph 3(g)(iv), Defendants covenant not to sue or take administrative action against Plaintiffs or any of their shareholders, directors, officers, employees, agents, corporate successors, or assigns, arising from actions occurring prior to the Parties' execution of the Settlement Agreement and.[Proposed] Consent Decree. These specific claims are: (1)trespass;(2)ejectment; (3) unpaid rent;(4)claims predicated on sound created by DBOC's commercial shellfish operations;(5)claims predicated on breaches or violations of the 2008 SUP or National Park Service regulations with regard to 2008 SUP paragraph 2(General Conditions), paragraph 3(Use of Premises), paragraph 4(Special Permit Conditions), paragraph 6 (Constructions of Improvements or Alterations), paragraph 7(Treatment of Refuse), paragraph 8 (Pesticide or Herbicide Use), paragraph 9(Fire Prevention and Suppression), paragraph 10 (Excavation., Site and Ground Disturbance), paragraph 11 (Nonpoint Source Pollution), paragraph 12 {Tree and Vegetation Removal), paragraph 13 (Wildlife Protection), paragraph 15 (Insurance), paragraph 18 with respect to Rents (excluding Taxes and Assessments), paragraph 19(Cyclic Maintenance), paragraph 20(Compliance with Applicable Laws: NEPA,NHPA), paragraph 22 {Penalty), paragraph 23 (Surrender and Vacate the Premises, Restoration), Exhibit C (Drakes Estero Aquaculture and Harbor Seal Protection Protocol), manila clams, oysters, Didemnum, eelgrass, harbor seals, and/or marine debris (as defined in Paragraph 3(b){iv));(6) taking action within Point Reyes without a permit or other authorization required by NPS regulations; and/or(7) violations of'the National Park Service Organic Act, the Point Reyes National Seashore Act, or the Wilderness Act; v, For the claims specifically identified in this Paragraph 3(g)(v), Defendants covenant not to sue or take administrative action against Plaintiffs or any of their shareholders, directors, officers, employees, agents, corporate successors, or assigns, arising from actions occurring after the Parties' execution of the Settlement Agreement and [Proposed] Consent Decree and before midnight on December 31, 2014. These specific claims are: (1)trespass;(2)ejectment;(3) unpaid rent;(4) claims predicated on sound created by DBOC's activities under Paragraph 3(a),(b), and (c); and/or (5) claims predicated on the presence of manila clams, oysters, or Didemnum in Point Reyes; vi, Defendants covenant not to sue Plaintiffs for claims predicated on breaches or violation of the 2008 SUP paragraph 16(Indemnity)for any claims that arise for events occurring after December 31, 2014; vii. Notwithstanding any provision of this Consent Decree, nothing in this Decree releases any Party from any liability arising under the Comprehensive Environmental Response, Compensation, and Liability Act,42 U.S.C. §§ 9601 et seq. Settlement Agreement and [Proposed] Consent Decree, Case No. 12-cv-06134-YGR h. Commitment to Effectuate Settlement. Within 7 business days of the Parties' execution of this Settlement Agreement and [Proposed] Consent Decree, the Parties shall jointly move the Court for the entry of this Consent Decree. The Parties agree that Plaintiffs shall not bring,join. in, or financially support any other party in bringing or joining in any judicial or administrative proceeding that concerns the Secretary's memorandum, andlor NPS's written notification, dated November 29, 2012, and/or any actions contemplated by Paragraphs 3(a), 3(b), andlor 3(d). Nothing in this provision shall prevent the Parties from seeking judicial modification or enforcement of this Consent Decree in accordance with the terms of the Consent Decree. i. No Limitation on Applicable Federal Authority and Notice Requirements. Nothing in this Settlement Agreement and [Proposed] Consent Decree, regardless whether the Court has entered the Consent Decree, shall limit the authority of Defendants to inspect, oversee, or administer Point Reyes, including DBOC's activities therein, pursuant to federal law, except that Plaintiffs may enforce the terms of this Consent Decree. The Parties, however, agree that, prior to midnight on December 31, 2014: i. NPS shall provide Plaintiffs 24 hours' advance notice, by e-mail, of any removal of onshore infrastructure; ii. NPS shall provide Plaintiffs 24 hours' advance notice, by e-mail, of the use of boats by NPS or its agents in Drakes Estero; iii. NPS shall provide Plaintiffs seven days' advance notice, by e-mail, of removal of oyster racks; iv. Such notices included in this Paragraph 3(i) shall include the expected location and extent of the NPS activity; Any notice requirements of this Paragraph shall be sent to the persons identified in Paragraph 14(Notice and Correspondence); v. In response to the notices provided by Defendants under this Paragraph 3(i), Plaintiffs shall promptly inform Defendants whether Plaintiffs expect to be wanking in the same location. j. Onsite Residents. Except as may be necessary to protect public health or welfare in an emergency, the Parties agree that NPS will take no action to disturb the occupancy of DBOC employees and their families currently residing in housing located on the onshore property adjacent to Drakes Estero. This limitation shall remain in effect through December 31, 2014, and for not less than 90 days thereafter. The Parties shall work together to transfer to Defendants the provision. of power, water, and septic services currently provided by Plaintiffs to residents living on the onshore property adjacent to Drakes Estero. This transfer shall occur by November 15, 2014. Defendants represent that the NPS remains committed to providing these residents power, drinking water, and septic services Settlement Agreement and [Proposed] Consent Decree, Case No. 12-cv-06134-YGR 9 that meet public health and safety requirements. Nothing in this Paragraph shall limit Defendants' authority to address unlawful activity occurring onsite. k. No Effect on G Ranch. Nothing in this Consent Decree, regardless whether the Consent Decree has been entered by the Court, shall affect the terms of the Letter of Authorization issued for the G Ranch by NPS on December 23, 2013. 4. Approval and Effective Date. This Settlement Agreement and [Proposed] Consent Decree has been approved by the designated representative of the Attorney General of the United States, and by DBOC and Kevin Lunny. Except as explicitly stated otherwise herein, the terms of this Consent Decree shall become effective upon the Court's entry of this Consent Decree. 5. Settlement without Admission of Liability or Wrongdoing. This Consent Decree is the result of compromise and settlement between the Parties. It is not an admission of liability or wrongdoing by any Party, and it shall not be utilized for or admissible as precedent, evidence, or argument in any other proceeding, except as may be necessary to ensure compliance with or to carry out its terms and conditions. This Consent Decree shall not constitute an admission or evidence of any fact, wrongdoing, misconduct, or liability on the part of the Plaintiffs or the United States, including, without limitation, the Secretary, the NPS, its officers, or any other person affiliated with it, or an interpretation of any applicable provision of law. 6. Use of Agreement. This Consent Decree is for the purpose of settling the abovedescribed disputes, and for no other. Accordingly, this Consent Decree shall not bind the Parties, nor shall it be cited or otherwise referred to, in any proceedings, whether judicial, legislative, or administrative in nature, in which the Parties or counsel for the Parties have or may acquire an interest, except as is necessary in an action to modify or enforce this Consent Decree in accordance with the terms of this Consent Decree. 7. Plaintiffs' Representations. Plaintiffs warrant and represent that they will not bring, or cause to be brought, or will file in or submit to any other court or administrative agency, any other action or suit against the United Sates, its officers or agencies related to the claims advanced in this action. Plaintiffs further warrant and represent that they have made no assignment or transfer of all or any part oftheir rights arising out of or relating to the claims asserted, or that could be asserted, in this action. Plaintiffs further warrant and represent that they have not otherwise assigned or transferred, whether by contract, operation of law, or otherwise, the corporate interests of DBOC since the filing of this lawsuit. 8. Force Majeure. The Parties recognize that the Defendants' performance under this Consent Decree is subject to fiscal and procurement laws and regulations of the United States which include, but are not limited to, the Antideficiency Act, 31 U.S.C. § 1341, et seq. A force majeure event may arise, due to circumstances outside the reasonable control of Defendants, that could delay compliance with the obligations set forth in this Consent Decree. Such force majeure events include, but are not limited to, a government shutdown, such as occurred in 2013, or catastrophic environmental events requiring immediate and/or timeconsuming response by the United States. Should a delay occur due to a force majeure event, Settlement Agreement and [Proposed] Consent Decree, Case No. 12-cv-06134-YGR 10 any resulting failure of Defendants to fulfill any obligations set forth herein shall not constitute a failure to comply with the terms of this Consent Decree, and any deadlines so affected shall be extended one day for each day of delay attributable to such force majeure event. As soon as possible under such circumstances, Defendants will provide Plaintiffs with notice invoking the relief provided for under this Paragraph 8, along with an explanation of the Defendants' basis for invoking this relief. Defendants shall also provide Plaintiffs with reasonable notice of the ternnination of the force majeure event upon which Defendants invoked this relief. 9. Dispute Resolution. Unless otherwise expressly provided for in this Consent Decree, the dispute resolution procedures of this Paragraph 9 shall be the exclusive mechanism to resolve disputes arising under or with respect to this Consent Decree. Before filing any motion to enforce the terms of this Consent Decree, the Parties shall confer about the nature of the alleged breach and how it might informally be resolved. The dispute shall be considered to have arisen when a Party provides notice by telephone or electronic mail pursuant to Paragraph 14(Notice and Correspondence). If the Parties do not resolve their dispute, any Party may seek appropriate judicial relief from this Court; provided, however, that the Party raising the dispute simultaneously provides written notice to the other Parties pursuant to Paragraph 14(Notice and Correspondence). 10. Applicable Law. This Consent Decree shall. be governed by and construed under the laws of the United States. 11. Entire Agreement. This document constitutes a complete integration of the Consent Decree between the Parties and supersedes any and all prior oral or written representations, understandings or agreements among or between them. No modification to this Consent Decree shall. be valid unless written and executed by all Parties; and, to the extent required by law, approved by the Court. 12. Mutual Drafting. The Parties agree that this Consent Decree was jointly drafted by them. Accordingly, the Parties agree that any and all rules of construction that ambiguity is construed against the drafting Party shall be inapplicable in any dispute concerning the terms, meaning, or interpretation of this Consent Decree. 13. No Third Party Beneficiaries. This Consent Decree is binding upon and shall inure to the benefit of DBOC, Mr. Lunny, and Defendants. This Consent Decree is not intended to and shall not be interpreted in a manner so as to confer rights on persons or entities who are not Parties hereto, or to create intended or expected third party status on any such non-party. 14. Notice and Correspondence. Unless explicitly provided otherwise herein, any notice, including correspondence, required with respect to this Consent Decree, shall be in writing and sent by U.S. Mail, Federal Express, or courier, and in addition by e-mail, as follows. Notice to Plaintiffs shall be sent to: Lawrence S. Bazel and Peter S. Prows Briscoe Nester & Bazel LLP 155 Sansflme St, 7~' Floor San Francisco CA 94104 Settlement Agreement and [Proposed) Consent Decree, Case No. 12-cv-06134-YGR 11 415 402 2700 Il~azel~~briscoelaw.n~t ~~~ro~~s!u,briscoelaw.net Drakes Bay Oyster Company and Kevin Lunny P.O. Box 730 Nicasio CA 94946 kevin@drakesbayoyster.com Notice to Defendants shall be sent to: Cicely Muldoon, Superintendent Point Reyes National Seashore 1 Bear Va11ey Road Point Reyes Station, CA 94956 415-464-5101 Cicely Mlzldoon%r n ~s.~o~~ Barbara Goodyear Field Solicitor U.S. Department of the Interior Solicitor's Office 333 Bush Street, Suite 775 San Francisco, CA 94104 415-296-3380 Barbara.Goodyear@sol.doi.gov Stephen M. Macfarlane U.S. Department of Justice Environment and Natural Resources Division 501 I Street, Suite 9-700 Sacramento, CA 95814 916-930-2204 Stepl~ez7.M~cfat•Iane~~i~sdo'.~o~~ Michael T. Pyle Assistant United States Attorney 150 Almaden Blvd., Suite 900 San Jose, CA 95113 408-535-5087 ~lichael.T.P~le~i%usdoj.~ov For those notice provisions contained in this Consent Decree which allow for notice to be provided by telephonic or electronic means, such notice shall be provided t~ Plaintiffs at the telephone numbers and e-mail addresses identified above, and/or to Defendants at the telephone numbers and e-mail addresses identified above. Settlement Agreement and [Proposed] Consent Decree, Case I~1o. 12-cv-06134-YGR 12 15. Counterparts. This Consent Decree may be executed in any number of counterparts, each of which shall be deemed to constitute an original, and all of which, taken together, shall constitute one and the same document. The execution of one counterpart by any Party shall have the same force and effect as if that Party had signed all other counterparts. 16. Consistency with other Law. The Parties agree that the specific procedures required and authorizations provided by this Consent Decree, and in particular the provisions of Paragraph 3{b), are not in contravention of NEPA,the APA,the Endangered Species Act, or any other federal or state law or regulation, either substantive or procedural. No provision of this Consent Decree shall be interpreted as, or constitute a commitment or requirement that Defendants take actions in contravention of NEPA,the APA,the Endangered Species Act, or any other federal or state law or regulation, either substantive or procedural. Plaintiffs recognize that Defendants have asserted that no provision of this Consent Decree shall be interpreted as, or constitute a commitment or requirement that Defendants obligate or pay funds in violation of the Antideficiency Act, 31 U.S.C. §1341, or any other law or regulation. 17. No Restriction of Federal Authority. Nothing in this Consent Decree shall be construed to deprive any federal official of the authority to revise, amend, or promulgate regulations. Nothing in this Consent Decree shall be deemed to limit the authority of the executive branch to make recommendations to Congress an any particular piece of legislation. 18. Representative Authority. Counsel for Plaintiffs represents that he or she has been and is authorized to enter into this Consent Decree on behalf of DBOC and. Mr. Lunny. Counsel for the Defendants represent that he or she has been and is authorized to enter into this Consent Decree on behalf of the United States. 19. Final Judgment. Upon approval and entry of this Consent Decree by the Court, this Consent Decree shall constitute a final judgment of the Court under Rules 54 and 58 of the Federal Rules of Civil. Procedure. FOR PLAINTI ~~~+1~, LAWRENCE S. BAZEL PETER S. PROWS BRISCOE NESTER & BAZEL LLP Counsel for Plaintiffs DRAKES BAY OYSTER COMPANY and KEVIN LUNNY ///// ///// ///// Settlement Agreement and [Proposed] Consent Decree, Case No. 12-cv-06134-YGR 13 FOR DEFENDANTS: MELINDA L. HAAG United States Attorney ALEX TSE Chief, Civil Division ~Cf' ~/'" MICR EL T. PYLE Assistant United States Attorney SAM HIRSCH Acing Assistant Attorney General Environment and Natural Resources Division ~~~~~ . MACFARLANE,Senior STEPHEN Attorney E. BARRETT ATWOOD,Trial Attorney JOSEPH T. MATHEWS,Trial Attorney Environment and Natural Resources Division United States Department of Justice ORDER APPROVING CONSENT DECREE THE COURT APPROVES THE TERMS OF THIS SETTLEMENT AGREEMENT AND CONSENT DECREE. IT IS SO ORDERED. llZ~~~YVONNE GONZALEZ ROGERS UNITED STATES DISTRICT JUDGE Settlement Agreement and [Proposed] Consent Decree, Case No. 12-cv-06134-YGR 14 Exhibit 1 to Settlement Agreement and [Proposed] Consent Decree Settlement Agreement and jProposed] Consent Decree, Case No. 12-cv-06134-YGR Foam 10-114 Rev. Jan.00 Page i of 17 UNITED STATES DEPARTMENT OF THE INTERIOR National Park Service Special Use Permit Name of Use: Aquaculture Long Term X Short Term Date Permit Reviewed Reviewed Reviewed Expires 2008 24 20 November 30,2012 Permit # MISG8530-6400-SOQ2 Type Pazk Code No.# Point Reyes National Seashore Drakes Bay Uyster Compaay 17171 Sir Francis Drake Blvd. Inverness,CA 94937 (41~ 669-119 is hereby authorized for a period("Term")commencing on April .2008("Commencement Date")and terminating on November 30,2012 {"F.~cpiration Date")to use the foIIowing described land, improvements, and waters in the following area: the lands and improvements at Drakes Bay Estero atthe former Johnson's Oyster Site consisting of approximately I.1 acres ofland and improvements designated as the"SUP Area" on the map attached hereto as Exhibit B("Drake's Estero Oysters —SUP & ROP"); the waters designated as the "SUP Area" on the map attached hereto as E3chibit A {"Drake's Estero Aquaculture & CDFG Leases: NPS Resources and SUP Area"); tl~e Iand designated as the "Well Area" on the map attached hereto as Eathibit D("Dratces Bay Oyster Company WeII Area"); and the land designated as the"Sewage Area" on the map attached hereto as E~ubit E {"Drattes Bay ~ysier Company Sewage Area"). Collectively, the areas so designated shall be referred to as the "Premises." The Premises governed by this Permit do not include the area designated as the ROP Area on the map attached hereto as Exhiibit B. For the purposes)of• Use ofthe azea designated as the"SUP Area" on the map attached hereto as Exhibit$ for the purpose of processing shellfish, the interpretation ofshsllfish cultivation to the visiting public, and residential purposes reasonably incidental thereto. Use ofthe area designated as the"SUP Area" on the map attached hereto as Exhibit A for the purpose ofshellfish cultivation. Use ofthe aria designated as the"Well Area" on ire map attached hereto as Exhibit D for the purpose ofsupplying water for the Drakss Bay Oyster Company faciiiries using Permittee well, pump,and pipelines. Use of the area designated as the "Sewage Area" on the map attached hereto as Exhibit E far the purpose of use and maintenance ofexisting sewage pipeline and sewage leacbfieid to service the Drakes Bay Oyster Company facilities. Collectively, the uses set forth in this paragraph shaiI be referred to as the "Permitted Uses." Authorizing legislation or other authority(RE — DC? -53): 16 U.S.C. 1, I a-1, 3 & 4S9c; the Reservation NEPA & NHPA Compliance: NEPA compliance pending PERFORMANCE BOND: Required Not Required X LIABILITY INSURANCE: Required X Not Ret~uired of Use and. Occupancy. Amount: Amount: As set forth in Article 15 ofthis Permit. ISSUANCE ofthis Permit is subject to the terms,covenants, obligations, and t~servations, expressed or implied herein and to the payment to the U.S. Dept. ofthe Interior, National Pazk Service ofthe sum of$2,80~.d0 per year, plus an amount to be determined by appraisal for the use ofthe Sewage-,¢area and the Well Area including water use. r•~ Authorizing 2 Beputy Regi~ai Director COND{T10NS OF TtilS PERA~9iT 1) DEFINITIONS As used in this Permit, the fo8owing terms shall have the following meanings: a) "'Agency" means any agency, department, commission, board, bureau, office or other governmental authority having jurisdiction. b} "AppCicable Laws" inc9udes, without limitation all present and future statutes, regulations, requirements , Environmental Requirernsr~ts, guidelines,judgments, or orders of any Agency or judicial body, whether nrnw existing or hereafter established, relating to or affecting the Premises or the use or occupancy of the Premises. c) "Camrr~ncsment Date" is as defined on fhe Cover Page of this Permit. d) "Cyclic Maintenance" means (i) the performance by Permiftee of ail repairs, maintenance, or replacement-in -kind necessary to maintain the Premises and the existing improvements thereon in goad order, condition, and repair, (ii) housekeeping and routine and periodic worn scheduled to mitigate wear and deterioration without materially altering the appearance of the Premises; {iii) ttie repair or replacement-in-kind of broken or worn-out elements, darts or surfaces so as to maintain the existing appearance of the Premises; and {iv) scheduled inspections of a(I building systems on tine Premises. e) "Default' means Permittee's failure to keep and perform any of the~'Provisions of this PeRnit. #j "Environmental Requirements" means, without limitation, all standards or requirements relating to the protection of human health or the environment such as: a. standards or requirements pertaining to the reporting, permitting, management, monitoring, investigation or remediation of emissions, discharges, reteases, or threatened emissions, releases or discharges of Hazardous Materials into the air, surface water, groundwater, or land; b. standards or requirements relating to the manufacture, handling, trea#ment, storage, disposal, or transport of Hazardous AA~taterials; and c. standards or requirements pertaining to the health and safety of employees or the public. g) "~cpiration Date" is as defined on the Cover Page of this Permit. h) "Hazardous Materials" means, without(imitation, any material or substance, whether solid, liquid, or gaseous in nature, a. the presence of which requires repotting, ~ermi#tir~g, management, monitoring, investigation or remediation under any Environmental Requirement; b. #hat is or becomes defined as a "hazardous waste,""e~rerrie(y hazardous waste," "restrieteri hazardous waste,""hazardous suhs#ancs,""pollutant,""discharge,""waste,""contaminant," or "toxic contaminant" under any Environmers#a1 Requirement, or any above-ground or underground storage containers for the foregoing; c, that is toxic, explosive, corrosive,flammable, infectious, radioactive, reactive, carcinogenic, mutagenic,or atherv+rise hazardous to human health or the environment and is or becomes regulated under any Environmental Requiremerrt; d, #hat contains gasoline, diesel fuel or other petroleum hydrocarbons or derivatives or volatile organic compounds, or is an above-ground or underground storage container for same; Page 2 e. #hat contains po(ychfarinated biphenyis {PCBs), asbestos, asbestos-containing materials or urea formaldehyde foam insulation; or f. that contains radon gas. i) "Hazardous Materials Occurrence" means any uss, generation, treatment, keeping, storage, transport, release, disposal, migration, or discharge of any Hazardous Materials from, on, under or into the Premises or Point Reyes National Seashore("Point Reyes")that causes any environmental contaminatian. j) "Improvemen#s or Alterations" means any construction that does not fall within the definition of Cyclic Maintenance. k) "NPS" means the management officials in charge of the administration and operation ofi Point Reyes, inciading the Superintendent or his/her designee{s). 1) "~a~lc" means, without limita#ion, ail lands, waters and structures within the legislative boundaries of the Point Reyes National Seashore, ail natural anti cultural-resources writhin such boundaries, and any otfier pra~rry within such boundaries belonging to Paint Reyes. As appropriate given the context, this term also includes the visiting public and/or Point Reyes employees. m) "Permit' means this ins#rument which contains(hose certain termination and rev~ation provisions as provided for herein. n) °Permitted Uses° is as defined on the Cover Page of this Permit. o) "Personal Property" means al( furniture, fi~ctures, equipment, appliances and apparatus ptaced on the Premises that neither are attached to nor form a part of the Premises. Personal Property also includes any trailers, modular units, andlor temporary structures oumed by Perrnittee. p) "Point Reyes° means Point Reyes National Seashore. q) "Premises" is as defined on the Cover Page of this Permit. r) "Provision" shall mean any term, agreement, covenant, condition or provision of this Permit or any combination of the foregaing. s) "ROP" or "Reservation of Use and Occupancy" means the Rssenration of Use and Occupancy purchased by the Permittee in 2005. In 7972 the United States ofAmerica purchasQd dahnson Oyster Company's property, subject to a Reservation of Use and Occupancy an approximately 1.5 of those acres for a period offorty {40) years. This Reservation of Use and Occupancy expires on November 30, 2012. t) "SUP° means this Permit. u) 'Term" is as defined on the Cover Page of Phis Permit. v) °Termination Date" means the Expiration Date or such earlier date as this Permit is termina#ed ar revoke pursuant to any Provision of this Permit. 2) GENERAL CONOtTiONS a) The Permittee shall exercise this privilege subject to the supervision of the Superintendent, and shall comply with all Applicable Laws. b) Permit and Approvals —Except as otherwise provided in this Permit, Permittee shall be responsible for obtaining, at its sole cost and expense, al( necessary permits, approvals or other authorizations relating to Permi##ee's use and ~cupancy of the Premises. Page 3 c) Damages -The Perrriittee shall pay the United States for any damage resulting from this use which wauid no# reasonably be inheren# in the use which the Permittee is authorized to make of the land and areas described !n this Permit. d) Benefit - Nei#her Members of, nor Delegates to Congress, or Residen# Commissioners shall be admitted to any share or part of this Perrnit or derive, either directly or indirectly any pecuniary benefrts to arise therefrom: Provided, however,that no#hing herein contained sha!! be conshued to extend to any incorporated company if the Permit be for the benefit of such corporation. e) Assignment and Subletting -This Permit may not be transferred or assigned withaut the conserrt of the Permitter, in writing. Permittee shall no# suble# the Premises or any part thereof ar any property thereon, nor grant any interest, privilege or license whatsoever m connection with this,Permit without the prior wrii#en approval o#the Permitter. fl Revocation -This Permit may be terminated upon Qefault or a# the discretion of the Permi##er. g) Tire Permittee is prohibited from giving false information; to do so wil! be considered a breach of conditions and be grounds for revocation (Re: 36 CFR 2.32{4)J 3) I~SE OF PREMISES a) Permittee is authorized to use the Premises only for the Permifted Uses. b) Permittee sha11 not engage in any activity that may be dangerous or harmful to persons, property, or the Park; #hat constitutes or results in waste or unreasonable annoyance {including, without limitation, signage and the use of loudspeakers or sound or light apparatus that could disturb park visitors and wildlife outside the Premises); #hat in any manner causes or results in a nuisancQ; or that is of a nature that it involves a substantial hazard,suer as the manufacture or use of explosives, chemicals or products #hat may e~lode. c) The Parties hereby acknowledge and agree that Permi#tee's covenant that the Premises shall be used as se# forth in #his Article 3 is ma#erial consideration for Permitter's agreement to eater into this Permit. The Parties further acknowledge and agree that any vroia#ion of said covenant shalt constitute a Default under this PeRnit and #hat Permitter may inspec# the premises at any time. d) This PeRnit is subject to the right of the NPS to establish traits and other improvements and be#terments over, upon, or #hrough the Premises and further Yo the use by travelers and others of such established or existing roads and trails. The Permittee understands that occasional park visitors are authorized #a walk, use non-motorized watercraf#, or hike in #h~ various areas included in this Permit even though no trails are farmaAy established. e) Permitter resarves the righ# for Permifter, its employees, contractors and agents to enter and to permit any Agency to enter upon the Premises for the purposes o#inspection, inventory or when otherwise deemei! appropriate by the Permi#ter for the pra#ec#ian of the interests of Permi#ter, including Permitter's interests in any natural or cultural resources located on, in ar under the Premises. Permi#ter reserves the right at any time to close to travel any of its lands, to erect and maintain gates at any point fhet~eon, to regulate or prevent #rafFic of any kind thereon., to prescribe the metfiods of use theret~f, and to maintain aamplete dominion over the same; provided, however, that at al!times during tfie Term, Permitter shall provide Permittee and Permittee's invitees with reasonable access to the Premises 5ubjec# only to in#emaptions caused by ~~~~~~~~~~~maintenance or administrative operations or by maters beyond Permitter's control. g) Permitfe~ hereby waives any claim for damages for any injury, inconvenience to or in#erference with Permittee's use and occupancy of the Premises, any loss of occupancy ar quiet enjoyment of ttre Premises, or any o#her loss occasioned by Permitter's exercise of its rights under this Article 3 except to the extent that the damages, expenses, claims or suits result firom the willful misconduct or gross negligence of Permi#ter, i#s employees, contrackors or agents; provided, further, that Permitter shall be liable only to the extent such claims are allowed Page 4 under the Federal Tort C(aims Act. h) Mem68rs ofthe genera! public visiting the Drakes Bay Oyster Company operation may park in the adjat~nt NPS parking area and walk over to the SUP or ROP areas. r) VUt~ile Permiitee is permitted to ease and operate motored wa#ercraft in Drakes Estero for the purpose of conducting daily business operations, which can includa occasional inspectiflns required by Agencies, no other use of Permittee's motorized watercraft is authorized.(Vo motorized watercraft may enter the designated wilderness boundary {See °Existing Wilderness" cin map;attached hereto as Exhibit A). To pro#ect wrater quality in the Estero, any additional or replacement boat motors obfainecl by Permittee must bs four stroke motors. j) Due to a lack of adequate parking space and restroom facilities for fhe public, barbecuing is not permi#ed in the Special Use Permit Area. To comply with this paragraph, Permi##ee will not encourage barbecuing in the SUP Area. Picnic tables will be provided by the NPS at the adjacent parking area. k) Unauthorized discharge into fhe estuary is prohibited. This prohibition includes any discharge ftom processing facilities. Nofwithstanding the foregfling, discharge of oyster wash water from dock and from hatchery operations is allowed if authorized by relevant Agencies. 1) to order fo ensure public health and safety, Permittee will ensure that Permittee and Permittee's officers, agents, employees, and contractors comply with Appiicab(e Laws regarding pets, including the 1VPS regulation at 36 GF.R.§ 2.15. m) In order to ensure public health and safety, Permittee shall allow ail appropriate Federal, State andJ or County agencies; including the United Slates Department of Health and Human Services, the State of California Departmen# of Health Services and Mann County Community Development Agency Environmental Health Services, fo conduct inspections on a routine basis. 4) SPECIAL PERA9IT CONDITIONS a) If Permittee and Permit#er disagree about an issue related to this Permit, they will first make a good faith effort to resolve such issue at the Park level. if they are unable to resolve the issue at the Park level, Permittee may request a review of the issue by the Regional Director. b) Based upon the findings of an independent science review and/or NEPA compliance, Permitter reserves its right to modify the provisions of this Article 4. Permitter further reservves its right to incorporate nevu mitigation provisions based upon the findings of an independent science review. Production of aQ shglffish species shall be capped at the "current production level' as deterininEd under the California Coastal Commission Consent Order Flo. CCC-07-CD-04. ii) No additional aquaculfure racks andlor cultivation infrastructure wilt 6e constructed without the prior approval ofthe Permitter. Operation, repair, and maintenance of infrastnscture currently being used for oyster cultivation is permit#ed. iii) Permi#tee and Permi#ter acknowledge the importance of eelgrass wi#hin the ecology of the estuary. Permiftee will no# place bags for shel~sh produc#ion onto eelgrass. iv) Within sixty {60) days following the signing of this interim Permit, Permutes will submit for Nafional Park Service approval a boating opera~ons plan, which wilt indicate dedicated navigation routes, chosen to minimize impacts to eelgrass beds when accessing aquacul#ure racks and/or cutpva#ion equipment u) To minimize the chances of introducing invasive species or pathological microorganisms to Drake's Es#ero, Permittee will only import shellfish in the form of larvae and sped. Within 30 days ofthe Commencemen# Date, Permi#tee shall produce sufficient ev~lence,for the review and approval of the Permitter, that larvae and seed from oatside sources have been cert~ed by the California Qepartment of Fish and Game(°CDFG"} Page 5 to be free o#pathogens. If the Permitter determines that the documentation is insufficient , Pe~rnittee shall cease from imparting larvae within 3Q days of receiving notification ofthe determ+na# ion from the Permitter. wi) Permittee wiU not introduce species of shellfish beyond #hose described in fhe e~s#ing leases from fhe CDFG. Pe~rnittee may seek to conform and/or modify these leases wi#h fhe CDFG. Any modifications approved by CDFG wi!! be considered by Permitter on acase-by-case basis, and Petmittee may rat implement any such modifica#ions wi#haut the prior written approval of the Permitter. vii) Permitfee must avoid disturbance to marine mammals and marine mammal haul-ou#si tes. The Marine Mammat Protectian Acf, 161J.S.C. 13F1 et seq., includes a prohibition against any ac# of pursuit, torment or annoyance that has fhe po#entiat to injure or dis#urb a marine mammal or marine mamma! stock in the wild by causing disruption of behavioral patterns, including, but not Limited to, migration, breathing, nursing, breeding, feeding, or sheltering. The Natianat Oceanic and Atmospheric Administratian (NOAA) recamm~ds maintaining a distance of at least 100 yards to avoid disturbance fo seals. ~~~~~~~~~~ will maintain a distant e of at least 100 yards from hauled out seals tfiroughouf the year. Perrrtitter wrill monifor marine mammal populations in Drakes Estero. !n addi#ion, during the pupping harbor seal closure period, March 1-June 30, the designated wilderness area {outside of Permit area) is closed to al! boats. Permittee will fallow "Drakes Estero Aquaculture and Harbor Sea(Rrotection Protocol" attached here#o as Exhibi# C. If required by CDHS, wa#ercraft may use fhe Main Channel iderif fled in Exhibit C during the pupping harbor seal dasure only to access CDNS's sentinel monitoring s#ation for marine biotoxins. Boats shall be operated period at low speed, near the eastern shore,#o minimize chance of disturbance to harbor seals. No ofher use of the Main Channel is authorized during the pupping harbor seal closure period. c) Permittee's agreement to fhe provisions of #his ~~~~~~~~does not waive Permit#ee's ability to take contrary positions with regard to similar provisions with other Agencies. 5) ACCEPTANCE OF PREMISES a) Priar to entering into this Permit, Permittee has made a thorough, independent examination of the Premises and al! matters relevant to Permittee's decision to enter in#o this Permit, and Permittee is thoroughly familiar with all aspects of the Premises and as satisfied That they are in an acceptable condi~on and meet Pesmittee's needs, provided that Permittee and Permitter acknowledge that certain repairs are necessary to comply with Applicable Laws. Permiftee will make such repairs at its sole cast and es~ense in compliance with Applicable Laws. b) Permittee expressly agrees fo use and occupy the Premises and at! improvements thereon in their exisfing "AS IS" condition "tMTH ALA FAULTS" and ~~~~~~~~~~~~~~~~that in enfering into this Permit, Permittee does no# rely on, and Permitter does no# make, any express or implied representations or warranties as to any matters including, without limitation, the suitability of the soil or subsoil; any charac#eris#its of the Premises or improvements thereon; the suitability of the Premises for the approved use; the aconomic feasibility of Permitfee's use and occupancy of tMe Premises; title to the Premises; the presence of Hazardous Ma#erials in, on, under or in the vicinity of the Premises; or any other matter. Perrnitt~ has satisfied i#sel~ as to such suitabilify and other pertinent matters by Permittee's ~rvn inquiries and Pests in#o atl matters relevan# to determinin g whether to enter into this Permit and Pe~niftee hereby adepts the Premises. 6) CONSTRUCTION OF liUlPROVEMENTS QR ALTERATIONS a) Permiftee may only make #hose Improvements or Alterations fo the Premises thaf relate to Permitfee' s use ~f the Premises as specified in Article 3,"Use of~he Premises." b) Permi#tee shall rat undertake any Improvemenfs or Alterations to the Premises (including installation of temporary equipment or facili~es) wifhout the prior writfen approval a# Permi#ter. c) As a prerequisite to obtaining approval for Improvements or Alterations, Pet~mittee, at Permittee's sole cost and expense, shall submit design plans and any other relevant data for Permitter's approval. d) Constnac#ion of Improvements or Alterations by Permittee staall be performad in accordance wi#h all Applicable Page 6 Laws, including but not limited to general planning, building, and environrnen#al laws and approved design plans and shall be undertaken and camplsted at Perrnittee's sole cost and expense. s) Permittee shall, upon request, famish Permitter with a trite and ~rrect copy of any contract, and any modification or amendment thereof, with Permittee's contractors, ar~hifects, or any other consultants, engaged in connection with this Permit. ~ Any Improvernerrts or Alterations undertaken by Petmittee shall be perfoRrted in a good and workmanlike manner and with materials of a quality and standard acceptable #o Pe~rnitter. Permittee shall also construct, install and maintain equipment and any construction facilities on the Premises in a sate and orderly manner. g) Permittee shall not construct any lmprovernents ar Alterations outside the boundaries of the Premises. h) Pennifter in its discretion is entitled to have on the Premises at any time during the construcfian of Improvements or Alterations an inspector or representative who shall be entitled to observe all aspects of the constructio n on the Premises. i) A!I lumber utilized at the site will be processed in compliance with current laws and regulations regarding wood treatments. This includes lumber utilized in assembly and repair of aquaculture racks. j) As set forth in Article 17, title to any Improvements or Alterations to the Premises shall be and remain solely in the Permitter. 7) ~ TREATMENT QF REFUSE a) Refuse shall be promptly removed from within the boundaries of Point Reyes National Seashore and shall be disposed of in accordance with Applicable Laws. b) Permittee will make best effiorts to remove debris associated with aquacufture production operations including wood from racks, plastic spacers, unused shellfish bags, shellfish shells, and any other associated items. 8) PESi1CIDE AIUD FlER81CIDE t1SE a) The National Park Service utilizes Irrtegrated Pest Management("IPM")to treat pest and vegetation problems. '('t~~ goal of IPM is to use the least-to~c, effective methods of controlling pests and vegetation. Except for normal household purposes, PeRnittee shah riot use any pesticides tfiat do not comply with the IPM program. To this end, Permittee shall submit in writing to Permitter, a request for the use of pesticide{s) or herbicides )and sha11 not use any pesticides) or herbicides) until Permitter has received an express written authorization f~erefor from Permitter. b) Permitter shah manage, treat, generate, handle, store and dispose of all pesticides and herbicides in accordance with Applicable Laws, including reporting requirements. 9) F1RE PREVENTION AND SUPPRESION a) Permitter and its employees, agents, and con#racfors shalt, in Permittee's use and occupancy of the Premises, take ail reasonable precautions to prevent forest, brusE~, grass, and structural fires and shall, if safety permits, assist the Permitter in eutinguishing such fires on the Premises. 10) FJCCAVATION, SITE AND GROUND DISTURBANCE a) Permittee shall not cu#, remove or titter any timber or any other landscape feature; conduct any mining or drilling operations; remove any sand, grave! or similar substances from the ground or wa#ercourse; commit waste of any kind; or in any manner change the contour or condition of the Premises without the prior writtsn approval of the Permitter. Excep# in emergenci$s, Petmi#tee shall submit requests to conduct such activities in writing to the Permitter not less #han sixty {6Q) days in advance of the proposed commencement date of any such activities. Page 7 b) If approval of activities referenced above in Secfion10{a)is granted, Permittee shall abide by all the terms and roriditions of the approval, including provisions pertaining fo archaeabgical resources. c) No soil disturbance of any kind may occur in the vicinity of a known archeological site, without the presence of an NPS archealagical mvnifor. 11) NONPOlNT SOURCE POLLUTION a) The Perrnittee shall comply with all Applicable i..aws regarding non-point source pollution (including the protection of beneficial uses of waters as designated by the State of California). Further,.Petmittee's use and occupancy of the Premises shall be designed to minimize,fo the greatest e~ctenf f~asibie, non-poinE source pollution within National Pa~c Service boundaries or on adjacent lands. b) Except as set for#h in Section 3{k} of this Permit, no discharge into the estuary is perrnitfed. This prohibition includes any discharge from processing facilities. 72) TREE AND VEGETATION REMOVAL a) The Permitfee may not remove free{s) or vegetation uNess expressly approved in writing by the Permitter. The Permi#tee shall provide specific plans fo the Permitter for desired trees} and vegetafion removal during the annual meeting or in writing during the Term of this Permit. b) Removal of non-native invasive vegetafi~n such as non-native thistles, trimming and vegetation removal around struc#ures is permissible. 13) WI~D~IFE PROTEC110N a) Wildlife is an integral par# of Point Reyes National Seashore and must be managed in accordance wiEh all Applicable haws, including but oat limited to NPS laws, regulations, and policies. b) Permittee shall not engage in any activity that purposely causes harm or destroys any wildlifie. Conversely, Permiftee shall not engage in any activity that purposely supports or increases populations of non-native or invasive animal species, except for the cuftiva#ion of the shellfish species authorized by this Pe~mi~. c) On a case by case basis, the Perrnitter wip evaluate incidences of depredation caused by Perrnittee and choose a cx~urse of ac#ion. The nature of the course of action wilt be determined by the extent and frequency of the damage, the wildlife species, and park-wide management objectives. 14) HAZARDOUS MATERIALS; ENVIRONMENTAL HEALTH AND SAFETY a) In connection with this Perrnit, Permittee, its officers, agents, employees and contractors, shall not use, generate, sell, treat, keep,or store any Hazardous Materials on, about, under or into the Premises or elsewhere in Poin# Reyes except in compliance with al! Applicable Laws and as approved in writing by Permitter. However, Pecmittee shall not be obligated to obtain ~~~~~~~~~~~~approval to use, keep, or generate Hazardous Materials as necessary for tine normal op~rafian or maintenance of vehicles or for standard household cieat~rs. Permit#ee agrees to be responsible far timely acquisition of any permit{s) required for its Hazarclous Materials-related acctivviEi~s, and shall provide to the Permitter, upon request, inventories of all such Hazardous P~Aaterials and any supporting documentation, including but not limited to material safety data sheets, uniform waste manifest forms, and/or any other pertinent permits. b) Permittee, its officers, agents, employees and contrac#ors, shat! not release, discharge or dispose of any Hazardous Materials from, on, about, untter or into the Premises or elsewhere in Point Reyes, except as authorized by Applicable Laws. cj If Permittee knows of or reasonably suspec#s or receives notice or o#her communication concerning any pas#, Page 8 ongoing, or po#ential violation of Environmental Requirements in connection with the Pcernises or Permittee's ac#ivities, Perrnittee sha!! immediately inform Permitter and shall provide copies of any relevant documents to Permitter. Receipt of such information and documentation sha!! not tte deerr:ed to create any obtigatian on the part of the Permitter to defend or o#herwise respond to any such not cation. d} If any Hazardous Materials Occurrence is caused by, arises from, or is exacerbated by the activities authorized under this Permit or by the use of the Premises by Permittee, its officers, agents, employees or contractors, Permittee sha{l promptly take afl actions at its sole cost and expense as are required to comply uvith Applicable Laws and to allow the Premises and any other afFect~d property to be used free of any use restriction that could be imposed under Applicable Laws; provided thaf, except in cases of emergency, Permitter's approval of such actions sha!! first be obtained. e) The Permitter shall have the right, but not the duty, at a!! reasonable times and, except in tfie case of emergency, following at least lwenty~our(24) hours advance notice to Pennittee, to enter and to permit any Agency, public or private utilities and other entities and persons to enter upon the Premises, as may be necessary as deteRnined by the Permit#er in its sole discretion, to conduct inspections of the Premises, including invasive tests, to determine whether Permittee is complying with a!I Applicable Laws and fo investigate the e~astence of any Hazardous Materials in, on or under the Premises. Tha Permitter shat! have the right, but no# the duty, to retain independent profiessional consultants to enter the Premises to.conduct such inspections and to review any final report prepared by or for Permittee concerning such compliance. Upon Permittee's request, the Pem~itterwiH make available to Pe~rnittee copies of aA final reports and written data obtained by the Permitter from such tes#s and investigations. permi#tee shall have na claim for any injury or inconvenience to or interference with Permittee's use of the Premises or any other loss ocxasioned by inspections under this Section 14{e). Notwithstanding the foregoing, neither Permitter nor Permit#er shalt be required to provide a report under this Section 14(e) if such report is protected byattorney-client privilege. ~ Should Permittee, its officers, agents, employees or contractors, fail to perform or observe any of the obligations or agreements pertaining to Hazardous Materials or Environmerrtat Requiremerrts for a period of thirty(30)days {or such longer period of time as is reasonably required} after notice, then Permit#er shall have the right, but not the duty, without limitation of any ofher rights of PeRnitter under thEs Permit, personally or through its agents, consultants or contractors to enter the Premises and perform the same. Permittee agrees to reimburse Permitter for the costs thereof and to indemnify Permitter as provided for in this Permit. g) Permit~ee understands and acknowledges that the Premises may contain asbestos and lead-based paint tf Permiftee pe~#orms any Improvements or Alterations, permittee shall comply with all Environmental #2equirements related to ashes#os and lead-based paint and shall solely bear aU costs associated therewith. Nothing in this Permit shall be construed to require Pe~rnittee to remove asbestos or lead-based paint unless Environmental Requirements require such removal. h) Permittee shall indemnify, defiend, save and hold Permitter, its employees, successors, agents and assigns, harmless from and against, and reimburse Permitter for, any and a!I claims, demands, damages, injuries, fosses, pena~ies,fines, cos#s, liabilities, causes of ac#ion,judgment, and expenses, including without limits#ion, consultant fees and expert fees, that arise during or after the Term as a result of any violation of any Environmental Requirement in connection with this Permit or any Hazardous l~Aaterials Occurrenr~ in connection with this Permit. i) The provisions of this Article 14 shall survive airy termination or revoca#ion of this Permit. Art'sde T5(Insurance} of this Permit shall not lirrtit in any way Permittee's or Permitter's obligations under this Article 94. 95) tNSURANCE a} Permittee shall purchase the #ypes and amounts of insurance descr+bed herein before the Commencemen# Date of this Pe~'nit unless otherwise specified. At the time such insurance coverage is purchased, Permitfee shall provide Permitter with a statement of Permittee insurance describing the insurance coverage in effect and a Certificate of Insurance covering each policy in effect as evidence of compliance with this Permit. Permittee shall eJso provide the Permitter thirty {30)days advance written notice of any ma#erial change in the Permittee's Page 9 insurar~tce program hereunder. Permitter shat! not be responsible for any omissians or inadequacies in insurance coverage or amounfs in the event such coverage or amounts prove to be inadequate or otherwise insufficient for any reason whatsoever. b) From fime to time, as conditions in the insurance industry warrant, the Permitter reserves the right to revise the minimum insurance limits required in this Permit. c) All insurance policies t~equired by this Permif shop specify that,the insurance comparry shall have no right of subrogation against the ~~~~~~~~States, excep# forclaims arising sorely from fhe negligence of the United States or its employees, or shall provide that fhe United Stafes is nameii as an additional insured. d) All insurance policies required herein shall contain a lass payable clause approved by the Permitter wfiich requires insurance proceeds to be paid directly to fhe Permittee without requiring endorsem$rrt by the United States. Insurance proceeds covering any loss of the Premises but not used to rep{ace such bsses shall be promptly paid by Permiffee to Permitter. The use of insurance proceeds forthe repair, restoration or replacemerrt of the Premises shall not give any owne~ip interesf therein to Permit#ee. e) Property Insurance: At a minimum,the Permittee shall be required to purchase Basic Form Actual Cash Value {replacement cost less depreciation)insurance coverage fora!! residence on the Premises. Within thirty days of issuance of the Permit, the Permittee shall submit a report from a ~epufable insurance company which provides a full range of options for insurance coverage on all nonresidential structures on the Premises. Within thirty days of receipt of this report, the Permifter, in its sale discretion, will review and specify the type and level of insurance coverage which shall be required. The Petrnitterwiil provide the Permittee wriften nomcation of insurance requirements and the Permittee shall be required to have the specified Level{s) of insurance in place within thirty days of such nofification. The cost ofthe insurance will be deducted ftom the appraised fair market value for the Premises; this adjustment artd the insurance requirements will be addressed in an amendment to the Permit. Permitter shall, in the event of damage or destruction in whole or in part to the Premises, use all proceeds from the above described insurance policies to repair, restore, replace or remove those buildings, stn,ctures, equipment, furnishings, betterments or improvements de#ermined by the Permitter, in Permitte~'s sale discretion, to be necessary to satisfactorily discharge the Perrnittee's obligations under this Permit ~ Public Liability: The Permiftee shall provide Comprehensive General Liability insurance against claims arising from or associated with Permit#ee's use and occupancy of the Premises. Such insurance shag be in the amount commensurate with the degree of risk and the scope and size of such use and occupancy, but in any everrt, the limits of such insurance shall not be less than $1,000,OOOAO per occurrence covering both bodily injury and property damage. ff claims reduce available insurance below the required per occurrence limits, ttte Permittee shall obtain additional insurance #o restore the required limits. An umbrella or excess liability policy, in addition to a Comprehensive General Liability Policy, may bs used to achieve the required limiks. g) Permittee shall also obtain. the fo(lovuing additional coverage: f) Automobile Liability — To cover a!I owned, non-owned, and hired vehicles in the amount of $30Q,Ofl0.Od. ii) Workers' CompensafioR —The amount shall be in accordance v+iith that which is required by the State of California. 96} fNDEMNtTY a) In addition to the indemnifica#ion con#ained in Article 14, Permittee shall indemnify, defend, save and hold Permitter, its employees, successors, agents and assigns, harmless from and against, and reimburse Permitter for, any and all claims, demands, damages, injuries, Fosses, penalties, fines, costs, liabili#ies, causes of action, judgments and e~enses and the like incurred in connection with or arising in any Wray out of this Perini#; the use or occupancy of the Premises by Permit#ee or its o#Ficers, agents, employees, or confrac#ors; the design, construction, maintenance, or condition of any Improvements or Alterations; or any accident or occurrence on the Premises or elsewhere arising out of the use or occupancy of the Premises by Permittee or its officers, agents, employees, or contractors. Permittee's obligations hereunder shall include, but no# be limited to, the burden and Page 14 e~nss of defending al! claims, suits and administrative proceedings {with counsel reasonably approved by PeRnitter), even if such claims, suits or proceedings are groundless, false or fraudulent, and conducting all nego#lotions of any description, and paying and discharging, when and as the same become due, any and all judgments, penalfiss or ofher sums due against the United Sfates. b) PeRnitter agrees to cooperate, to the event allowed by law, in the submissian of claims pursuanf the to Federal Tort Claims Act against the United States by third parties for personal injuries or pro~rty damage resulting from the ctegiigent act or omission o#any employee of the United States in the course of his or her emp~oymer~t . c) This Ar#icle 16 shall survive any termina~on or revocation of this Permit. Tha provisions of Article 15(insurance) of this Permit steal! not limit in any way PermitEee's obligations under this Article 16. 17)PROPER7YtNTERES7 a) This Permit shall vesf in Permiftee no property interest in the Premises or in the improvements thereon. Ti#ie fo real proper#y and improvements(hereon, ictcluding any Improvements or A}terations construc#ed by Permittee, shall be and remain solely in Permifter. Faccept as provided in Paragraph 3{g), Permiftee steal! have no claim for any compensation or damages for the Premises, the improvemertfs thereon, or any improvements or Alterations constructed by the permittee. b) Nafhing in this Permit shall give or be deemed #o give Pem~iftee an independent righf to grant easemenfs or other rights-of-way over, under, on, or through the Premises. c} Permitter hereby retains the sole and exclusive right to oil, gas, hyc#rocarbons, and other minerals {of whafsaever character) in, on, or under the Premises. 9$)RENTS. TAXES AND ASSESSMENT$ a) The annual ren#al rate for this Permit shall be established by Permitter and is set for#h on the Cover Page of this Pemtsf. b) i'he annual renf under this Permit is payable in advance on asemi-annual basis. Therefore, Permiftee hereby agrees to pay fifty percent of the annual rate on or before November v++ith the remaining fifty percent payable on or before May of each year during the Term. c) Permittee shall pay the proper Agency, when and as the same become due and.payable, ail taxes, assessment s, and similar charges which, at any time during the Term of this Permif, are ievi~ or assessed against the Premises. d) Renfs due hereunder steal! be paid without assertion of any counterclaim, se#off, derlucfion or defense and without abatement, suspension, deferment or reduction. 19) CYCLIC NfA1NTENANGE a) Permitfee shall per#orm ail Cyeiic Maintenance in accordance with the Provisions of this Permit and at Permittee's sole cost and expense. Perrr~ittes is responsible for the main#enance of ail fences, buildings, and other improvements upon the Premises. AI! improvements and fac7ities used and occupied by Permit#ee sha1J of a!! #imes be protec#ec{ and maintained in a safe, sanifary and sightly condition. b) Specific maintenance requirements may be negotiated with Permiftee each year as ou#lined in Article 21 jAnnual AJlesting). c) Docks and Fences shall be maintained in good condition and shoe be timely repaired in conformance with Applicable laws. Abandons fences and other decrepit improvements shall be removed from the Premises-and shall be disposed of outside the Park or as direc#ed by Permitter after review and approval tsy the NPS Histar~an. Page '11 d) New lighting under Permittee's control of the Premises shall be redesigned to protect and preserve the night sky/darkness and minimize ligh# poputian in Drakes Estero. e) Parfdng areas shall be maintained in a safe condition and no new roads or truck trails shall be established without prior writ#en pe~rnission of the Permitter. The main en#ranee road from Sir Francis Drake 8aulevard #a the SUP Area wil! be maintained by the NPS. The Park will respond in a timely manner to Permittee and/or visitor complaints regarding the condition of the main entrance road. Noiwithstanding the foregoing, PermiEter may enter into a road maintenance contract with Permitter. ~ Existing water reservoirs shall be maintained in a safe and secure t~ndition fo pre en# washouts and erosion and no new reservoirs steal! be constructed or established withou# prior written approval of the Permitter. g) Pecmittee steep maintain the wa#er, well, pump and al! pipelines within the Premises. Permitter shall replace or repair any damage or loss ofi the water system within the Premises. h) Permittee sha11 maintain the sewage pipeline oral sewrage leachfisld in the "Sewage Area." i) Permii#ee shalt be responsible for removing slash buildup arounr3 fences or other facilities within the Premises so as #o prevent fire and egress hazards. Pe~rniftee shall also be responsible for removing litter and trash from the Premises. 20) COMPLIANCE WITH APPLICAS~E LAWS• NEFR NHPA a) General Compliance: As provided for in this Permit, Permittee at i#s sole cost and e~ense shall promptly comply with all Applicable Laws as required by law, permittee shall immediately no#ify Permi#ter of any notices received by or on behalf of Permittee regarding any alleged or actual violati~n(s) of ornon-compliance with Applicable Laws. Permittee shall, at its sole cast and sxpense, promptly remediate or correc#any violations) of Applicable laws. b) iVational Environmen#a! Policy Ac# and National Historic Preservation Act: Where activities undertaken by Permittee rela#e to the preparation of compliance d~uments pursuanf to the iVational Environmental Policy Acf ("NEPA°) or the National Historic Preservation Act {"NHPA°), Permittee sha11 supply all necessary information to Permi##er and any Agency in a timely manner. Permitter will pay for the preparat+on of NEPA or NHPA documents. !f there is litigation regarding NEPA or NHPA compliance, it will not trigger the indemnification requirements of Atticie 76. 21) ANNUAL t~AEETING a) The Parties steal! meet annually each year during the Term of this Permit for the purposes of discussing and resolving-.issues of mutual concern and ensuring that Permittee is complying wi#h the Provisions of#his Permit.. 22) PENALTY a) A# the option of the Permitter, Permitter may, in lieu of voiding and terminating this Permit, assess a penalty of $50.00 per day for any failure by Fe~rnit#ee to keep and pe~forrn any of the Provisions of this Permi#~ In such case, Permittee shalt be given no#ice in writing of a grace period {af from one to thirty days) to remedy the situation be€ccsre a penalty will be assessed. Paymen# of any penal#y under this provision shall not excuse Permittee from curing the Default. Tfiis provision shall not be construed as preverrting Permitter ftom issuing citations or initiating enforcement proceedings under Applicable laws. 23) SURRENDER ANb VACATE THE PREMISES RESTORATION a) At the conclusion of Permittee's authorization to ass the Premises far the Permitted Uses, Permi#ee steal( surrender and vacate the Premises, remove Permit#ee's Personal Proper#y #her~efrom, and repair any damage Page 12 resulting from such removal. Subjec# to the approval of the Pesmit#er, Permit#ee shalt also return the Premises to as good order and condition (subject to ordinary wear and tear and damage that is not caused dir+ec#ly or indirectly by Permiftee) as that existing upon the Effective Date. b} All Permittee's Personal Prope~t}r shall remain the property of Permi#tee. However, if after the conclusion of Permittes's authorization to use the Premises for the Permitted Uses, Permittee sha!(fail satisfacforily remove to Pestnitfee's Personal Property and so repair the Premises, Then, a# the Permitte~'s sole option, after no#it;e to Permittee, Perrnittee's Personal Property+, sha(! either become.the property o#the Permitter without compensation therefore, or the Permitter may cause if #o be removed and the Premises to be repaired at the e~ense of Permittee, and no claim for damages against Permitfer, its employees, agents or contraafors shall be created or made on account of such removal or repair work. 24) LIMlTAT(ON ON EFFEC€ OF APPROVALS a) AiE rights of Permitter to review, comment upon, approve, inspec# or take any other action with respect to the use and occupancy of ffie Premises by Permi#tee, or any other matter, are expressly for the benefit of Permitter and no other party. No review, comment, approval or inspection, right or exercise of any right to perform Permitter's obligations, or similar action required or permitted by, of, or to PeRnit#er under this Permit, or actions or omissions of Permitter's employees, contractor, or other agents, or other circumstances shall give or be deemed to give Permitter any liability, responsibility or obliga#ion for, m connec#ion ~ivith, or with respect to the operation of the Premises, nor shall any such approval, ac#ians, information or circumstances relieve or be deemed to relieve Permittee of its obligations and responsibilities for the use and occuupancy a#the Premises as ssf for#h in this Permi#. 25)1NAIVER NOl'CONTWUING a) The waiver of any Default, whether such waives be expressed or implied, shall not be construed as a continuing waiver, or a wavier of or consent to any subsequent or prior breach of the same or any outer provision of this Permit. No waiver of any Default shall affec# or after this Permit, but each and every Provision of this Permit shall continue in full #orce and efFec# with respect to any other then existing or subsequen# Default. 26) LEEKS a) Permittee shall have n+o power to do any ac# or to make any contract that may create or bs the foundation for any lien, mortgage or other encsambrance upon- the reversion,fee interest or other estate of the Permitter or of any interest o#the Permitter in the Premises. If any such flan shall at anytime ~filed against the Premises or any portion thereof, Permittee shall cause ttte Permitter to be dischaeged from the lien. 27) Ha~DlNG OVER a) This Permi# shall terminate upon the Termination Date and any holding over by Permittee after the Termination Date shall not constitute a renewal of this Permit or give Permittee any rights under this Permit or in or to the Premises. 28) NOTICES a) Any notice or other communication required or permitted under this Permit shall be in writing and shall be delivered by hand or cer#ified mail with re#um receipt reques#ed, Notices and o#her communica#ions shall be addressed as follows: Page 13 If to Permitter. Superinfenrisnt Point Reyes Natianai Seashore Point Reyes Station, CA 94956 if #o Permiftee: Mr. Kevin Lunny Drakes Bay Oyster Company 17171 Sir Francis Drake invemess, CA 94937 29) NO PARTNERShi1P OR JOINT VENTURE a) Perm~#er is not for any purpose a partner or join# venturer of Permittee in the development or operation of the Pr~rnises or in any business conducted on the Premises. Permitter shalt not under any circums#ances 6e responsible or obligated for any losses or Iia6iEities of Permittee. 30) ANTI-DEFICIENGY~C7 a) Permiftee and Permitter agree that nothing contained in this Permit shall be construed as binding Permitter to expend, in any fiscal year, any sum in excess of the appropriation made by Gongress for that fiscal year in furtherance of the subject matter of this Permit, of to invoh~e Permitfer,in any contractor other obligation for the future expenditure of money in excess of such appropriations. 31) COMPLIANCE WITH EQUAL OPPORTUM'fY LAWS a) Permittee agrees that in undertaking all activi~es pursuant to this Permit, Permittee wi11 comply with all Applicable haws relating to non-discrimination. 32) ENTIRE AGREEMENT AND AMENDMENT a) This instrument, together with the e~ribits here#o, aA of which are incorpora#ed in this Permit by reference, constitutes the entire agreement be#ween Permitter and Permittee with respect to the subjec# mater of this PeRnit and supersedes atl prior offers, negotiations, oral and written. This Permit may not be amended or modified in any respect whatsoever except by an instrument in wii#ing signed by Permitter and Permittee. 33) NO PAYMENTS BY PERMlT('ER a) Under no circumstances or conditions, whether now existing or hereafter arising, and whether or not beyand the present contemplation of the Par#ies, shall Permitter be expected oc required to make any payment o#any kind whatsoever with respect to the Premises or 6e under any obligation or liability except as expressly set forth in this Permit 3~) NO THIRD PARTY BENEFICiARlES a) Except as expressly set forth in this Permi#, this Permit shall not be deemed to confer upon any person or entity, other than the parties to this Permit as expressly se# forth in this Permit, any third party beneficiary status, any right to enforce any Provision of this Permit, or any other right or interest. 35) NO PREFERENTlA~ RENEWAL AND RELOCATION ASSISTANCE a) Permittee hereby agrees that Permiftee is not a cvRcessioner and that the provisions of taw regarding National Park Service concessionaires do not apply to Permittee. No rights sha}i be acquired by virtue of this Perrnit entitling Permitte+e to claim benefits under the Uniform Relocation Assistance and Real Proper#y Acquisition Page 14 Policies Act of 1970, Public haw 91-646. 36) SEi/ERABlLlIY a) In case any one or more at the provisions of this Permit shall far any reason be held to be invalid, iilega! or unenforceable in any respect, such invalidity, illegality or unenforceability shall not affect any other provision of this Petmit, and this Permit shat! be construed as it such invalid, illegal or unenforceable peovisions had not been corrtainect in this Permit. 3~ EXHIBITS a) Each of the exhibits referenced in this Permit is attached hereto and incorporated herein. 3$) TIME OF THE ESSENCE a) Time is hereby expressly declared to bs of the essence of this Permit and of each and every Provision of this Permit. 39) HEADINGS a) Article, Section and Subsec#ion headings in this Permit are for convenience only and are nat to be construed as a part of this Permit or in any way limiting or amplifying the P~avisions of this Permit. 40) PERMlT CONSTRUED AS A WHOLE a) The language in al! parts of this Pem~it shat) in all cases be construed as a whole according to its fair meaning and not strictly for or against either Permi#ter or Permittee. The Parties acknowledge that each par#y and its counsel have reviewed this Permit and participated in its drafting and therefore that the rule of construction that any ambiguities are to be resolved against the dra#~ing party shat! not be employed or applied in the interpretation of this Perrnit. 41) MEANING OF TERMS a) Whenever the contexf so requires, the neuter gender shat! include the masculine and the feminine, and the singular shall include the plural and vice versa. 42),F€DERAL LAW a) 7'he laws of the United Sta#es shall govern the validity, construction and effect of this Fermi#. Page 15 LIST OF EXHIBITS EXHIBIT A: Map --Drake's Estero Aquacul#ure & CDFG Leases: NPS Resources and SUP Area EXHIBIT B: Map —Drake's Estero Oysters —SUP & ROi' EXNlBIT C: Drakes Estero Aquaculture and Harbor Seal Protection Protocol ~XHi81T D: i~ap —Drakes Bay Oyster Company Weil°Area EXHIBIT E: Map —Drakes Bay Oyster Company Sewage Area EXHlSiT A Map —Drake's Estero Aquacul#ure & CDFG Leases: NPR Resources and SUP Area Drakes Estero Aquaculture & CaFG Leases ~c clf~C .~ 7 r"' ~'~:r._:Y~a ~ _. a . ~eaarx•, ~ ~_ ±~C' '~~"~~° ~° ~_ %"~' .rC _ ~. _ ...~ C_ ... ~'€i;f'~Flt`Ill Gi E~~r ,'•~Ve' ~~ 4:.~ ~_, .. ~...~. e ti ~.~~. , tIr CC1: I• ~ .~.ean.'..7R~+I _. .~ ,.;...,.:,. ~~' Y~ ,,.. .: ~ e.~~ .. s+~ Yy . . .. .. . ;... ,,;., 4, ...>„~ ,::~ .,... '. .., .. ~ -: r,.? s~ e~:. :.:_ ,?~ ..; v~.... .... ,y. ... .: .. '„ k~x 4'• ' ~ .. ..., :S~ .r, ... .... ~~ . .. ;.:' 6' 3 ..f. .... ,, ~~. - .. ' .,, Y sty...: :'k• a: ' ~,,.. 4 5 $,~ ~ r:. T: t: .~L~'l~-.~x'v,.~: _ c; ;: g r ~. .~ t ' '. .. • ~_e 'Y~` ~• 5. ::. ::~. .. :~: r.:~' :. .4' •.~: •; ... ,.. ,, ..t.'„ !an .. F~ .~ '` .af mss: i ,. ,, ... .~ i~.. . w . . ~~ ~. ~. - g~, . ~~ w5,~'~ ~` ~ ~. a ~• .e~'.:: ~. ... •., .~ ;,'%V, .. =tom' ~.~~„i,: E r.' :.`r `n - ..~=rre`, ..y .. " ,. .~~~~'Ei 7 +..~ ~ .. .. ~. ~ + ~ x.~ ,, _ <. ~` ~a' F ~~C~: , ! , ~ ~j~tiv ` f~ + C'~~gai ~ ;`i ~ r ~A ' ~~~ F P s'~ ,.~sClb'~~_'.$y 1Y' . ~Si~~_ -. al'''t ~ ~:K!^L`_Y~4'~~'.fY~ ~.y_.. .•~a~. R ~ f ~ ~~ ..~ ~ 4 ~? ~id~R~e 'i~i::~ ~ 1 ', s `~' :Soy , :Sod '~~ ~_` EXHIBIT B Map —Drake's Estero Oysters — SUR & ROP :~,' ~ Jy, :., s ~ ~ ~x~ ; z. ~~~~ : <°a ~ P .'~ .'~~~ .: ,~~ A; 4,~;,,~,y ~ } .. ff' .. ~~x F ~~: '~° ~y r;4"' : tom .. •1 : .. ~ .. ~i ti .. :~: }~~ ...<. .. s ... . y ~.~'Fn3~V . .~ , 'Y,i ~~~ ~`. ~`+~.y ~ ., EXHIBIT C Drakes Estero Aquacui#ure and Harbor Seal Protection Protocol Drakes Estero Aquaculture and Harbor Seai Protection Protocol The following items are mutually agreed to for protecrion of harbor seals in and adjacent to the Harbor Seal Protection Areas identified in the Map,attached. hereto and incorporated herein by reference {"Protocol Map"): 1. During the breeding season, Match 1 through June 30,the "Main Channel" and "Lateral Channel" of Drakes Estero will be closed to boat traffic. During the remainder ofthe year, the Lateral Channel and Main Channel are open to boat traffic outside ofthe protection zone. 2. During the breeding season, Permittee boas may use the "West Channel" at low speed while maintaining a distance of at least 100 yards from hauled out seals. 3, Throughout the year, alI of Permittee's boats, personnel, and any structures and materials owned ar used by Permittee shall be prohibited from the harbor seal protection areas identified on the Pzotocol Map. 7n addition, all ofthe Permittee's boats and personnel shall be prohibited from conning within 100 yards of hauled out harbor seals, EXHIBIT D Map —Drakes Bay Oyster Company,Vltell Area ~_ S 8 `~ c~~ q ~ o-9p~~ S ' ~. ti ~ Q ~ ,,,, 0 , F 00 PR 02-106 JOHl~SOE~ OYSTER N r~-d ba lJ+ —• w~ ~ ?9ss. '~ a .~ ti JS 4/14/94 ~~ 0 ,~ ~ O Q ~ _ *.~~?• 1"= t q0 Fi'. ~ o Some dimensions opproximote ., a o Q ~ Reserved Aree ?~oQo, Permit , ~A62~ ~ Areo 95707 sf 2.2 Acres ~ v ^~, ~ ~n `'~ 6403U s t =1.47 acres 'S ~~o' `s000, ~, o ~o moo. c~' o• '~ 9 p~ 9Q0'' ~6p, F 3 ~ dOp, S n~ ~~~~~ ~ Approximate l.ocotions: Mobile Nome M o Weli ~Cabiri' C Carrier at ~e~ree ,,,,.,,~ :.......... Permit Area Fence Remnonts X ~ 9~?~,:, ~'p ~ 6 , ;3 ~, 86~, oo W FJCHtBlT E Map —Drakes Bay Oyster Company sewage Area ~.. - -~ ,~ '~~ •.. - r ~e°r ~7#~~ ~ij~+r ~t , '~t .a' ~ ~~•~~~ C. fry=.q ,'.' ~I4 S , ;~I "fi~b.. 3 4. ~~ ~ .; ~ - ~ s,rY; ~ 7i -~- 5~ k ~ ~E'~tc ~,,~..~24M ~ 1~. Sr,'' 4 #.7~.?Y. 1 ~, ~ k ~,S .`` 4 ~ f r~ r ;r, te i q~n ~~~' ..~ r ;;,~, j~ F i"- QQy 6~. ,~ ~ 1 ~ e .~~ ~.. i :~ ~T ~ i ~K ~ ` { ~~~~~w • k 1'i + 3 n ~. ~f _ +' _ Loce2ion `"~` Na#ional Park Service ;, ~, ;'°~ , ~-~• ~~ ~ Point Reyes National Seashore ~~~~~~~~County, CA ~`. y '~ f 0 175 35U 525 700 Fee# n '. ~...- .~ }'~4F, .. 4. .4,. it s 2 'N 4 E ..~ f ~ + ~~ .~ 3 ~v~ 9~ K4 ~ ,Zx s ~`~ y a ~~~`C ' f E i t + I~ ;t `~3 .:,~ ~, ~ ~ - ~~ ,p :~ -~ Oyster Farrn l.ea~ Fisld ~ k S;

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