Because the bottomlands of Drakes Estero are under the jurisdiction of the State of California, which by law must forever protect them for fishing, including aquaculture, they can never become part of a Wilderness Area of the National Park Service.

This legal fact may in the long run be the main obstacle to the Point Reyes National Seashore administration’s machinations to close Drakes Bay Oyster Company three years from now.

In an historical and legal analysis posted Wednesday on the Community Conversations page of the Marinwatch website, attorney Sandy Calhoun writes, “When the State of California transferred the submerged lands in Point Reyes National Seashore to the United States in 1965, the State Legislature… retained for the people of California fishing rights on and over submerged lands.”

Nor did the Legislature have the power to transfer those rights to the federal government, even if it had wanted to, although in the last couple of years, the acting director of the State Department of Fish and Game has acted as if he could cede “primary management authority” over the estero to the park. In fact, the acting director also lacks the legal ability to do so, attorney Calhoun writes.

“The California Constitution prohibits the State Legislature from transferring away the public ‘right to fish,’ which includes oyster cultivation,” Calhoun notes, and “what the California Legislature cannot do directly cannot be done indirectly by an administrative interpretation of an act of the State Legislature.

“In short, it would be unconstitutional for the California Department of Fish and Game to administratively cede jurisdiction over oyster cultivation in Drakes Estero [below] to the National Park Service.”

In 1974, when the Park Service wrote an environmental-impact statement for the proposal to designate 10,600 acres of the Point Reyes National Seashore as wilderness, the park noted that “control of the [oyster company] lease from the California Department of Fish and Game, with presumed renewal indefinitely, is within the rights reserved by the state on these submerged lands.”

When the Sierra Club broke with other environmental groups and complained about the bottomlands not being also designated as wilderness, the Park Service responded, “It has been the policy of the National Park Service not to propose wilderness for lands on which the United States does not own full interests.”

Nor is the state government’s interest in leasing bottomlands to the oyster company merely a matter of regulating operations and collecting fees.

The California Aquaculture Promotion Act of 1995 proclaims: “The Legislature finds and declares that while commercial aquaculture continues to provide considerable benefit to people of the state, the growth of the industry has been impaired in part by duplicate and costly regulations and illegal importation and trading in aquaculture products.

“The Legislature further finds and declares that commercial aquaculture shall be promoted through the clarification of respective government responsibilities and statutory requirements.”

As part of the state’s policy of promoting aquaculture, Drakes Bay Oyster Company is required to meet minimum production goals established by the California Fish and Game Commission. It can lose its lease to use the estero’s bottomlands if it doesn’t.

“These lease provisions, which confirm the state’s compelling interest in preserving and increasing the productivity of shellfish cultivation in Drakes Estero, demonstrate that oyster cultivation under state permits is not a commercial operation in the usual sense,” attorney Calhoun writes.

“Rather, in this context, ‘commercial’ is a shorthand term for private development of a state-retained, approved, and regulated use of a state resource, i.e. the bottomland in Drakes Estero.”

National Seashore Supt. Don Neubacher would like to shut the oyster company down in 2012 when the use permit for its onshore facilities (at right) comes up for renewal, but the onshore facilities are also protected.

While the State of California doesn’t own any part of the oyster company’s onshore facilities, Section 16 of the federal Wilderness Act requires the Secretary of the Interior to provide “adequate access” to private or state-owned land within wilderness areas.

In 1997, before the Johnson family sold the oyster company to its present owners, the Lunny family, the park proposed the oyster company’s old buildings be replaced, and Supt. Neubacher himself signed a building permit application to add 3,500 square feet to the facilities.

In the environmental assessment prepared by Neubacher, the park superintendent argued that the new buildings were needed. “Because the aquaculture operation will be allowed to continue,” Neubacher wrote, “the proposed project will preserve aquaculture, specifically oyster processing and harvesting at Drakes Estero.”

Neubacher added that the “project will positively impact the local economy. Johnson Oyster Company accounts for 39 percent of the State of California’s commercial oyster harvest.”

But officialdom is always capricious. Less than a dozen years later, Neubacher and his bosses have changed their minds and now want to destroy the historic oyster company. In the past three years they’ve lined up a Bush-era lawyer for the Park Service, a faceless state bureaucrat, and a handful of environmental zealots to help rationalize the destruction.

Should all this end up in court some day, one key issue will be what Congress intended when it designated Drakes Estero “potential” wilderness back in 1976.

The field representative for Congressman John Burton (at left), who sponsored the legislation in the House of Representatives, was the  late Jerry Friedman of Point Reyes Station, chairman of the county planning commission and co-founder of the Environmental Action Committee of West Marin.

Writing on behalf of Congressman Burton and half a dozen environmental groups, Friedman told senators holding hearings on the wilderness bill that it was written so as to “allow the continued use and operation of Johnson’s Oyster Company in Drakes Estero.”

Alan Cranston and John Tunney co-sponsored the wilderness legislation in the Senate. In written testimony, Senator Tunney noted that under the bill, “the existing agricultural and aquacultural uses can continue.” Senator Cranston took the same position both orally and in writing, as records of the hearings show, attorney Calhoun writes.

In separate legislation, Congress in 1980 declared that “encouraging aquaculture activities and programs in both the public and private sectors” was federal policy. Like the State of California, Congress complained that jurisdictional questions and misplaced government regulations were interfering with “the potential for significant growth” in US aquaculture.

In short, even if the Park Service decides to unilaterally reinterpret the concept of “potential wilderness,” Congress and the Legislature have already declared that more, not less, aquaculture is needed. Supt. Neubacher may want to defy Congress, the Legislature, and the state constitution, but it’s doubtful that any court will let him.

Most West Marin residents want the oyster company to survive, and because the State of California has an established interest in promoting aquaculture in the estero, it’s time for Assemblyman Jared Huffman and State Senator Mark Leno to join US Senator Dianne Feinstein in coming to the aid of Drakes Bay Oyster Company.

And if you have the time, attorney Sandy Calhoun’s 28-page analysis of all this is a good read. Its file can be found under “Drakes Estero: Historical Analysis of Oyster Cultivation and Wilderness Status by Alexander D. Calhoun” on Marinwatch’s Community Conversations page (near the bottom).

“Badger hates Society, and invitations, and dinner, and all that sort of thing,” Kenneth Grahame wrote in The Wind in the Willows. “The badger is a wary animal,” concurs Point Reyes Station naturalist Jules Evans in his book The Natural History of the Point Reyes Peninsula.

Badgers dig a “wide, oblong burrow,” Evans notes. The burrows are often easy to locate by mounds of dirt around their entrances. It’s not uncommon for new badger burrows to be excavated overnight in my field or in the Giacomini family’s field next door. A friend once spotted a badger on a mound outside my window, but it scrambled into its burrow before I caught a glimpse of it.

I was naturally envious of my friend, and for more than 10 years since then, I’ve been trying see one of this hill’s badgers for myself. I never managed to do so, however, until this week.

My first glimpse of a badger here occurred Monday when I spotted one about 150 yards away in the Giacomini field. I tried to get a picture of the badger, but that meant zooming my little Kodak’s telephoto to the max. Keeping the telephoto steady while fully extended required using a tripod, and by the time I got mine out, the badger was gone. Tuesday I was better prepared, but this time before I could snap a photo, two deer ran past the burrow, prompting the badger to dart inside.

Around noon Wednesday, I once again spotted the badger sunning itself on its mound, and this time my camera and tripod were ready. I had been thrilled just to finally see the badger, but to also be able to photograph it made my week.

Who knows how long the badger will stick around, but I now feel confident I will see it again. As Badger remarks in The Wind in the Willows, “We are an enduring lot, and we may move out for a time, but we wait, and are patient, and back we come. And so it will ever be.”

Ratty, as he is called in The Wind in the Willows, showed up on my deck Tuesday to take a drink from the birdbath and eat whatever birdseed he could find.

Our local roof rats, rattus rattus, are native to southern Asia and are the same rats whose fleas spread the Black Death through Europe in the 1340s, killing off half the population in many places.

Although roof rats can carry murine typhus in the South, in West Marin, the main danger they pose is to dishwashers. You can read all about it at Posting 13. Roof rats can measure a foot long, including their tails, which are longer than their bodies.

Nor were Badger and Ratty the only sightings of Spring on my hill this week. Wild turkeys are back. All week I’ve been able to hear them gobbling, and periodically I’ve seen a tom fanning its tail feathers for three hens. Back after a longer absence, possums have twice visited my deck recently, and on two other occasions, gray foxes have paid calls on me.

About three weeks ago, in fact, I witnessed a confrontation on my deck between two raccoons and a fox. The fox pulled up short when he spotted the raccoons, and when one raccoon growled at it, the fox made a quick departure. Unfortunately, all this happened so fast I didn’t have a chance to even reach for my camera.

In Spring a young raccoon’s fancy lightly turns to thoughts of love, to paraphrase Tennyson.

Indeed on Tuesday evening when I looked out my kitchen door, two young raccoons were making love on my deck.

As is de rigueur among animals other than humans and bonobos, the male raccoon was mounting the female from the rear.

My surprise came when the young male suddenly rolled his mate onto her back, and they continued on face to face.

Even more of a surprise was that they sometimes appeared to be actually making love.

I expected the male to behave more roughly, but these two raccoons were relatively sensual, at times both hugging each other as they rolled around my deck.

I’ve never read much about raccoon passion, which makes me wonder: The Sensual Raccoon, doesn’t that sound like the title of a bestseller?

However, there was — much as I’m loath to acknowledge it — a brazen aspect to the raccoons’ mating. They saw me taking pictures yet they kept right on performing.

Windstorm destruction. The historic house where Dave Dinsmore lives on Nicasio Square has withstood more than a couple of blows over the years from speeding southbound vehicles. Coming at the end of a long straightaway into town, Nicasio Valley Road’s 90-degree turn in front of the house has sent nighttime speeders flying off the road and into the fence and porch. This week, however, the blow came from a gale that sent half a tree crashing down onto the porch’s roof. No doubt the resilient residence will recover from this blow too.

West Marin’s gales of Spring are back. In response to last week’s posting about Google’s inaccurate current-weather reports for Point Reyes Station, reader Linda Sturdivant phoned me around 3 p.m. Tuesday to talk about the weather.

Linda, who lives on Portola Avenue in neighboring Inverness Park, was concerned about the gathering windstorm, for she could hear limbs cracking in the bishop pine canopy over her home. Linda’s partner Terry Gray told me he too was concerned and then went outside to move his pickup truck. A large branch had broken and momentarily was caught in other branches, but it was hanging over the truck.

When the winds finally knocked the broken limb to the ground, Terry later told me, it turned out to be about 13 feet long and about 10 inches in diameter at the break. That’s enough to dent the roof of a truck’s cab or break a windshield or both.

Less fortunate were at least one or two birds that apparently could not get out of the way in time when branches snapped, or flew into something while trying to escape the chaos. Leo Gilberti of Woodacre, who was doing some cleanup work for Linda Wednesday, found two dead little birds on the ground outside her home.

One had a broken neck, which can happen when a bird flies into a window pane, but the right side of the other bird’s chest was crushed although there were no puncture wounds.

Point Reyes Station naturalist Jules Evans has tentatively identified the birds as pine siskins based on this bird’s “cleft tail, streaked breast, and finch-like bill.” I had emailed Jules the photo above, which he viewed on his handheld BlackBerry, leading him to caution that the bird was “kind of hard to ID on my phone.”

As it did elsewhere in West Marin, Tuesday’s gale brought down limbs all along Portola Avenue in Inverness Park, keeping part of the road closed throughout Wednesday.

Although gales blow through West Marin every spring, I’m not particularly fond of them. Wildlife and livestock obviously aren’t either.

Life looked pretty tranquil for cows along the Point Reyes-Petaluma Road until this week’s windstorm.

Reflected in the windows of neighbors Dan and Mary Huntsmans’ potting shed, a cat that could never have perched on their gatepost in this week’s gale could sit there nonchalantly last week.

In a gale, there is no such thing as “straight as the crow flies.” These feathered flying machines may not be as fast as fighter jets, but they’re even more maneuverable. Once the gusts built up, the crow approach to the birdbath on my deck resembled dogfight maneuvers more than a landing pattern.

In San Anselmo last Thursday, an SUV parked near my car caught my attention because its tailgate was plastered with bumper-stickers, some of which had a Stinson Beach or other West Marin theme.

When the driver returned to the vehicle, I asked if he was from Stinson Beach. No, he replied before driving off, the car belongs to his sister, and she often goes to Stinson to walk her dog. As the SUV disappeared, I wondered about “Save a Cow, Eat a Vegetarian.” It’s obviously a jab at political correctness, but what exactly does it imply? That bovine and hominid vegetarians compete for ruffage?

Most of us have seen bumper-stickers that boast, “My Child is an Honor Student at St. Swivens High [or whatever] School,” and it was this sassy spoof that prompted me to start snapping pictures of the tailgate’s humor.

Here’s a poke at the kind of personal ads that show up locally in The Bay Guardian or on Craigslist.

In the unlikely event that some drivers actually find their inamoratas through ads on bumper-stickers, the SUV also offers this caution.

And should any reader in Stinson Beach spot this red Nissan Xterra, please ask the driver to explain the cow-and-vegetarian joke — and then forward her answer to this blog.

Before signing off, I have one last question. What are we to make of the weather boxes that are now offered on Google homepages? Shingles can be blowing off roofs around here, and Google will report a windspeed of 3 mph for Point Reyes Station. Usually, Google’s current temperature bears a closer resemblance to reality than its windspeed, but recently even its current-temperature reports for Point Reyes Station have been goofy.

Skies were mostly overcast at noon Tuesday with a light drizzle, but the air was neither still nor 51 degrees below freezing. With all its technical expertise, you’d think Google would realize its system was crashing when it reported Arctic air in Point Reyes Station.

Just to see if the goofy temperature Google had listed around noon Tuesday was merely a brief aberration, I checked again at 2:22 a.m. Wednesday. By now the air outside had warmed up some, according to Google, but our springtime night was still 12 degrees below freezing. Meanwhile, my own outdoor thermometer showed an air temperature of just over 50 degrees.

By 2 p.m. Wednesday, my thermometer indicated the air outdoors had risen to 60 degrees, so I checked what Google was reporting and this time found Point Reyes Station sounding like a town in the tropics. If I were to believe Google, the temperature here had soared by 113 degrees in 26 hours. What is going on?

Addendum: By Friday, Google was reporting that in Point Reyes Station’s zip code, current temperature “information is temporarily unavailable.” I’d like to think that this blog had something to do with that, but I doubt it.