Archives for April 2013

Amber Abbasi: The Curious Case of Trent Arsenault: Questioning FDA Regulatory Authority Over Private Sperm Donation

Amber Abbasi, chief counsel for regulatory affairs at Cause of Action, wrote an article for the Annals of Health Law, the Health Policy and Law Review of Loyola University of Chicago School of Law:


The Curious Case of Trent Arsenault: Questioning FDA Regulatory Authority Over Private Sperm Donation


Cause of Action Statement on Senate’s confirmation of Sally Jewell for Secretary of the Interior

Cause of Action on the Senate’s Confirmation of Sally Jewell for Secretary of the Interior

Yesterday, the Senate voted to confirm the nomination of Sally Jewell for Secretary of the Interior.

Executive Director Dan Epstein:

“As the new Secretary of the Interior, we expect Sally Jewell to bring the accountability, transparency and oversight the Department of Interior desperately needs. We have seen the overreaching effects from Secretary Salazar’s decision to shut down the Drakes Bay Oyster Company and we ask that Secretary Jewell re-evaluate the future of this sustainable, family-run business. The Department of Interior cannot continue a pattern of corruption and abuse of power and we hope Secretary Jewell can hold this agency accountable going forward.”

For more information on Drakes Bay Oyster Company and their lawsuit against Secretary Salazar, the National Parks Service, and the Department of the Interior, click here.

New York Times: Oyster Farm Caught Up in Pipeline Politics


Oyster Farm Caught Up in Pipeline Politics


POINT REYES NATIONAL SEASHORE, Calif. — Seen from a nearby hilltop, the Drakes Bay Oyster Company is a cluster of shacks with faded white walls. One patched roof appears at risk of being blown away by the next Pacific squall. A dozen workers on a small weather-beaten dock were busy handling a batch of oysters harvested on a recent morning, separating the mollusks on a single rusty conveyor belt.

But this modest, family-run business just north of San Francisco lies at the center of an increasingly convoluted battle pitting longtime allies against one another and uniting traditional foes. Its fate — whether Drakes Bay will be allowed to remain on public land here or forced to close, as demanded by the federal government — has drawn the attention of a little-known, well-financed watchdog group in Washington, a United States senator from Louisiana, Tea Party supporters, environmentalists, sustainable-food proponents and celebrity chefs.

Ken Salazar, the secretary of the interior, decided against extending the oyster farm’s lease in November, and gave the Lunnys, the owners, 90 days to shut down. The Lunnys and their supporters sued, eventually winning a reprieve from a federal appeals court to continue operating until mid-May; the court is expected to decide then whether the lawsuit can move forward.

With the deadline looming, the battle has only intensified. On Friday, Representative Doc Hastings, a Washington State Republican who is chairman of the House Natural Resources Committee, addressed a letter to Mr. Salazar requesting documents related to his decision and questioning its basis. A couple of weeks earlier, Alice Waters, the owner of Chez Panisse in Berkeley, Calif., and the pioneer of the locavore movement, led a food group in filing an amicus brief urging the court to allow the farm to stay in business.

Patricia Unterman, co-owner of the Hayes Street Grill in San Francisco, a restaurant that serves local seafood and endorsed the brief, said the oyster farm was “such a rare and beautiful use of land and water” in an area with a long history of agriculture.

Ms. Unterman said she and other proponents of sustainable food had long enjoyed good relations with environmentalists, another powerful group in Northern California. “That’s why I was so astounded by what seemed to me a very doctrinaire and unnuanced approach to the Drakes Bay Oyster Company,” she said of the environmental groups’ opposition to the oyster farm.

Neal Desai, an associate director of the National Parks Conservation Association, a longtime opponent of the oyster farm, said he did not object to ranching in the park, which the government allows. But the oyster farm has no legal standing, he said, adding, “There are rules, there are policies and there are contracts.”

The Lunnys have kept on farming, though they have slowed down production because of the uncertainty and reduced their work force to 21 from 30. As a busload of visitors descended on the oyster shack, Kevin Lunny, who owns the farm with his siblings, said he had been taken aback by developments in the case, particularly the recent inclusion of his farm in a Republican energy bill in Congress.

Under the bill, the Energy Production and Project Delivery Act of 2013, permits for the nearly 2,000-mile Keystone XL pipeline would be expedited, the Arctic National Wildlife Refuge in Alaska would be opened for gas and oil development, more offshore drilling would be allowed — and the oyster farm’s operating permit would be extended for at least 10 years.

“Now people are saying we’re connected to right-wing groups, that we’ll have offshore drilling and it’ll be Drakes Bay Oyster’s fault that the Keystone pipeline gets built,” Mr. Lunny said. “And we’re saying: ‘Where does this come from? Oh, my gosh.’ Other groups that we may or may not agree with have taken up the cause.”

Mr. Lunny’s grandparents moved to Point Reyes in the 1940s to start a cattle ranch business that the family still runs, two decades before a national park was created here. Then in 1972, as Congress mandated that parts of the park be designated as wilderness, the federal government paid the oyster farm’s previous owners $79,200 for their property; they were allowed to continue farming for 40 more years, until last November, after which the area would become the first marine wilderness on the West Coast.

The Lunnys bought the oyster farm in 2004 and soon began lobbying to have the lease extended beyond 2012. Senator Dianne Feinstein of California, a Democrat, championed their cause, writing a bill in 2009 that gave the interior secretary the authority to extend the farm’s permit for 10 years.

Scientists at the National Park Service criticized the Lunnys’ environmental record, particularly in a 2007 report that indicated that the farm had harmed a nearby colony of harbor seals. But the Park Service backpedaled after outside scientists pointed out flaws in its research.

Cause of Action, a government watchdog group in Washington, quickly became the main supporter of the Lunnys’ lawsuit to reverse the interior secretary’s decision. Dan Epstein, the organization’s executive director, said he had been drawn to the case because of the Park Service’s problematic science, and decided to lead the lawsuit as a matter of government overreach and accountability.

“Oftentimes, the regulatory state has impacts that affect small businesses potentially more than big businesses,” he said. “The Drakes Bay Oyster Company, they’re not like a big company that can just afford to hire lawyers when dealing with government decision-making.”

Opponents of the farm, however, dismiss any talk of the little guy versus the state. Cause of Action, they say, is a stalking horse for big business interests, pointing out that Mr. Epstein once briefly worked for a charitable foundation run by Charles G. Koch, one of the two billionaire brothers who have financed many conservative causes.

Mr. Epstein said the donors to Cause of Action, which was founded in 2011 and recognized as a nonprofit in May, “choose to remain anonymous.” The organization does not receive money directly or indirectly from the Koch brothers, he said.

To opponents, suspicions of a broader agenda were fueled when a provision to save the oyster farm was included in the Republican energy bill. Senator David Vitter of Louisiana, who introduced the bill, became interested in the oyster company because of his background in investigating the Interior Department’s scientific conclusions on offshore drilling, said a spokesman, Luke Bolar.

Amy Trainer, executive director of the Environmental Action Committee of West Marin, a local group, said the farm’s inclusion in this “drill, baby, drill piece of legislation” was very “telling.”

As for Mr. Lunny, some of his new allies, especially the big-government opponents and Tea Party supporters drawn to his fight against the federal government, make him uncomfortable. He was surprised, he said, when his oyster farm ended up in an energy bill promoting the Keystone XL pipeline.

“We realize that’s not really in our best interest,” he said.

Photo Credit: Jim Wilson/New York Times

CoA letter to OPM, DOJ, OLC re: Hatch Act Guidelines

2013 4 8 CoA to OPM OSC OLC re Hatch Act

Leading the Way in Scientific Misconduct

The Department of the Interior recently proclaimed in a blog that the agency is “Leading the Way in Scientific Integrity.”

“The Department of the Interior (DOI) has a unique role as one of the United States Government’s leading creators and consumers of scientific data and research. Ensuring the integrity of scientific research and data relied upon by the Department is critical. Policymakers rely on this science to inform policy decisions. The public counts on DOI for trustworthy scientific data, research, and analysis related to everything from earthquakes and endangered species to the environmental impacts of human activities.”

Despite the spin from the Deputy Secretary of the Interior David Hayes, the DOI’s record shows that it values politics more than scientific integrity.  In our report, “Keeping Entrepreneurship at Bay”, we explain how multiple offices within DOI “significantly lack oversight, accountability, and transparency, and as a result have gone unchecked in their manipulation of scientific data.”

The use of bad science informed the decision of former Secretary Salazar to shut down Drakes Bay Oyster Company, a small, family-run, environmentally sustainable farm located inside the Point Reyes National Seashore.

How has the DOI distorted science to fit their political agenda and try to shut down a sustainable small business? Let us count the ways:

Distort Data

  • In the draft environmental impact statement (DEIS), the National Parks Service (NPS) used data from a 1995 study on the sound impact of a 70 horsepower (HP) jet ski at the distance of two feet to make conclusions on the noise level of 20 and 40 HP oyster skiffs at fifty feet.
  • In the same DEIS, NPS used data from a 400 HP cement mixer truck that can be heard for 2.4 miles to misrepresent a ¼ HP oyster tumbler than can be heard for only 150 feet.
  • The DOI Office of Inspector General found no misconduct and declared that the data was “reasonable and justified based on mechanical similarities.”

Cover Up

  • DOI Field Solicitor Gavin Frost wrote a report that found NPS scientists violated the NPS Code of Scientific and Scholarly Conduct by “blurring the line between exploration and advocacy through research.”
  • Specifically the report found that NPS employees “mishandled” data and “refus[ed] . . . to modify their intuitive, but statistically and scientifically unproven, belief that DBOC mariculture activities” disturbed harbor seals in Drakes Estero.
  • The Frost Report concluded that NPS scientists showed “bias,” “advocacy,” a “troubling mind-set,” and a “willingness to allow subjective beliefs … to guide scientific conclusions.”
  • Frost excused the employees by labeling these actions as “administrative misconduct” instead of scientific misconduct.

Change: From “No Evidence” to “Directly Connected”

  • Even after independent analysis by Dr. Brent Stewart, an independent harbor seal behavior specialist at Hubbs SeaWorld Research Institute contracted by NPS, concluded there was “no evidence of disturbance” of harbor seals by the oyster skiffs in Drakes Bay, the U.S. Geological Survey issued a public report stating that the oyster skiffs could be directly connected, or at least associated with a flushing level of disturbance” in some seals, and the NPS in their Final EIS misrepresented Dr. Stewart’s report to conclude cause-and-effect.

Politics over Integrity

Despite the attempted victory lap by DOI on its website, the evidence shows that the only thing they are leading in is the Orwellian doublespeak they use to cover up their scientific misconduct.


As of May 24, 2013, Cause of Action no longer represents Drakes Bay Oyster Company, the Lunny family, or Dr. Corey Goodman and will be withdrawing as counsel from the litigation.

Senator Unveils “Victims of Government”

Senator Ron Johnson has released “Victims of Government”; a project dedicated to exposing the unintended consequences of federal regulations.

The Small Business Administration Office of Advocacy estimates that it costs Americans $1.75 trillion to comply with federal regulations each year.  To put $1.75 trillion into perspective, that amount is larger than all but eight economies in the world.  It also means that over 10% of the U.S. economy is spent on trying to satisfy rules issued by Washington bureaucrats. That doesn’t even include federal, state, and local taxes.

This heavy regulatory burden diverts resources from innovation to compliance, discourages business investment, and chills job creation. It is no accident that as Washington adds new regulations, more and more Americans are unemployed and underemployed.

Elected leaders need to carefully consider the costs and negative unintended consequences of unnecessary federal regulations.  They need to remember that real people must comply with these regulations and that making them overly burdensome stifles American growth.  This blog features just some of the victims of government.

According to the study commissioned by the Small Business Administration Office of Advocacy, “had every U.S. household paid an equal share of the federal regulatory burden, each would have owed $15,586 in 2008.”

Cause of Action is well aware of how the federal government can clamp down on economic opportunity. We represent Drakes Bay Oyster Company; a small, family-run, sustainable oyster farm located in Point Reyes National Seashore in a lawsuit against the Department of the Interior (DOI). DOI is using bad science to make false claims about the oyster company’s impact on the environment. If Interior succeeds, 30 jobs would be destroyed, and 40 percent of California’s oyster market would disappear. Most recently, Drakes Bay Oyster Company has been granted an emergency Injunction pending appeal keeping the farm open until the 9th circuit rules on DBOC’s injunction appeal.

Cause of Action Commends House Committee on Oversight and Government Reform on Oversight Agenda

Cause of Action Commends House Committee on Oversight and Government Reform on Oversight Agenda

WASHINGTON – On April 2, Gibson Dunn released their assessment  of the submitted oversight agendas of the 113th Congress.  Gibson Dunn outlined key areas of oversight that they considered noteworthy in these submissions, including the Department of Energy.

Cause of Action has repeatedly drawn into question the accountability at the Department of Energy, particularly with the Loan Guarantee Program which has awarded more than $9 billion in grants.

Dan Epstein, executive director:

“Under the Department of Energy, millions of taxpayer dollars have been wasted on grants and loans to companies that failed to produce the promised results, were not innovative in technology, and in some cases ultimately declared bankruptcy. We believe that the DOE engaged in arbitrary and capricious methods when awarding loan guarantees through the Advanced Technology Vehicle Manufacturing program and that certain qualified candidates—like XP Vehicles—were not evaluated on their merits, and were essentially overlooked for less qualified and politically-connected candidates.  As Cause of Action continues our investigation into how these loans were awarded, we look to OGR to continue their oversight of the DOE Loan Guarantee Program, and look forward to helping them fulfill their mission to work, ‘in partnership with citizen-watchdogs, to deliver the facts to the American people and bring genuine reform to the federal bureaucracy.’”

To learn more about Cause of Action, and their lawsuit against the Department of Energy, click here.