Appendix A
Wilderness Status

The National Park Service position that it cannot authorize continued operations beyond the expiration of the Reservation of Use and Occupancy in 2012 is primarily based upon the 1976 Point Reyes National Seashore legislation. National Park Service Reservations of Use and Occupancy (RUOs) are created as part of the real property transaction when the United States purchases the underlying land, and the National Park Service does not renew or extend expired RUOs. After the expiration of a National Park Service RUO, continued use and occupancy of the land is possible if a new authorizing instrument can be issued under applicable laws. The National Park Service and the Department of the Interior Solicitor’s Office read the 1976 legislation designating Drakes Estero as Potential Wilderness and strengthening the enabling act for Point Reyes National Seashore [P.L. 94-544 (Oct. 18, 1976) and P.L. 94-567 (Oct. 20, 1976), 16 U.S.C. § 1132 note] as eliminating the discretion of the NPS to authorize continued operations through a new authorizing instrument beyond the expiration of the RUO in 2012. In addition to the 1976 legislation, other legal requirements that the NPS has identified that would impact authorization of operations beyond 2012 include the National Environmental Policy Act, the National Park Service Organic Act, the Marine Mammal Protection Act, the Endangered Species Act, and the National Park Service regulations as set forth in Title 36 of the Code of Federal Regulations.

In this legal context, the decision on a renewal of the Reservation of Use and Occupancy for Drakes Bay Oyster Company to continue to oper-



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Appendix A Wilderness Status The National Park Service position that it cannot authorize continued operations beyond the expiration of the Reservation of Use and Occu - pancy in 2012 is primarily based upon the 1976 Point Reyes National Seashore legislation. National Park Service Reservations of Use and Occu- pancy (RUOs) are created as part of the real property transaction when the United States purchases the underlying land, and the National Park Service does not renew or extend expired RUOs. After the expiration of a National Park Service RUO, continued use and occupancy of the land is possible if a new authorizing instrument can be issued under appli - cable laws. The National Park Service and the Department of the Interior Solicitor’s Office read the 1976 legislation designating Drakes Estero as Potential Wilderness and strengthening the enabling act for Point Reyes National Seashore [P.L. 94-544 (Oct. 18, 1976) and P.L. 94-567 (Oct. 20, 1976), 16 U.S.C. § 1132 note] as eliminating the discretion of the NPS to authorize continued operations through a new authorizing instrument beyond the expiration of the RUO in 2012. In addition to the 1976 legis - lation, other legal requirements that the NPS has identified that would impact authorization of operations beyond 2012 include the National Environmental Policy Act, the National Park Service Organic Act, the Marine Mammal Protection Act, the Endangered Species Act, and the National Park Service regulations as set forth in Title 36 of the Code of Federal Regulations. In this legal context, the decision on a renewal of the Reservation of Use and Occupancy for Drakes Bay Oyster Company to continue to oper- 0

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0 APPENDIX A ate in Point Reyes National Seashore is subject to the U.S. Wilderness Act (P.L. 88-577, Sep. 3, 1964), which defines Wilderness as follows: A wilderness, in contrast with those areas where man and his own works dominate the landscape, is hereby recognized as an area where the earth and its community of life are untrammeled by man, where man himself is a visitor who does not remain. An area of wilderness is further defined to mean in this Act an area of undeveloped Federal land retaining its primeval character and influence, without permanent improvements or human habitation, which is protected and managed so as to preserve its natural conditions and which (1) generally appears to have been affected primarily by the forces of nature, with the imprint of man’s work substantially unnoticeable; (2) has outstanding opportunities for solitude or a primitive and unconfined type of recreation; (3) has at least five thousand acres of land or is of sufficient size as to make practicable its preservation and use in an unimpaired condition; and (4) may also contain ecological, geological, or other features of scientific, educational, scenic, or historical value. (16 U.S.C. 1131-1136, section 2©) Regarding prohibited and permitted uses of Wilderness areas, the Wilderness Act states: Except as specifically provided for in this Act, and subject to existing private rights, there shall be no commercial enterprise and no permanent road within any wilderness area designated by this Act and, except as necessary to meet minimum requirements for the administration of the area for the purpose of this Act (including measures required in emer- gencies involving the health and safety of persons within the area), there shall be no temporary road, no use of motor vehicles, motorized equip - ment or motorboats, no landing of aircraft, no other form of mechanical transport, and no structure or installation within any such area. (16 U.S.C. 1131-1136, section 4©) The Wilderness Act goes on to make special provisions regarding use: “the use of aircraft or motorboats, where these uses have already become established, may be permitted to continue subject to such restrictions as the Secretary of Agriculture deems desirable” (16 U.S.C. 1131-1136, sec - tion 4(d)(1)) and “[c]ommercial services may be performed within the wilderness areas designated by this Act to the extent necessary for activi - ties which are proper for realizing the recreational or other wilderness purposes of the areas” (16 U.S.C. 1131-1136, section 4(d)(6)). The Wilderness Act was amended as follows in the Point Reyes Wil - derness Act of 1976 (PL 94-544, Oct. 18, 1976):

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0 APPENDIX A SEC. 3. The area designated by this Act as wilderness shall be adminis- tered by the Secretary of the Interior in accordance with the applicable provisions of the Wilderness Act governing areas designated by that Act as wilderness areas, except that any reference in such provisions to the effective date of this Act, and, where appropriate, any reference to the Secretary of Agriculture, shall be deemed to be a reference to the Secre - tary of the Interior. SEC.4 (a) Amend the Act of September 13,1962 (76 Stat. 538), as amended (16 U.S.C. 459c-6a), as follows: In section 6(a) insert immediately after the words “shall be administered by the Secretary,“ the words “without impairment of its natural values, in a manner which provides for such recreational, educational, historic preservation, interpretation, and sci - entific research opportunities as are consistent with, based upon, and supportive of the maximum protection, restoration, and preservation of the natural environment within the area.” (PL 94-544, Oct. 18, 1976) At the request of the superintendent of the Point Reyes National Seashore and the regional administrator of NPS, the Office of the Solici - tor, San Francisco Field Office, in the Department of the Interior prepared memoranda on the status of Johnson Oyster Company (now DBOC) under the terms of sale of the property to NPS and the subsequent Potential Wil- derness designation of Drakes Estero under the Point Reyes Wilderness Act of 1976 (PL 94-544, Oct. 18, 1976). The memoranda are reproduced in their entirety on the following pages.

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0 APPENDIX A

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