Marin Oyster Farm Appeals to U.S. Supreme Court

Top producer Drakes Bay Oyster Co. wants to continue farming on Pt. Reyes.

Credit: Drakes Bay Oyster.
Credit: Drakes Bay Oyster.
As promised, a Marin County oyster farm appealed to the U.S. Supreme Court today to allow to it to continue operating at Point Reyes National Seashore.
The Drakes Bay Oyster Co. claims in its petition to the high court that its case is a "dispute between modern environmentalists and wilderness extremists."

"Petitioner Drakes Bay Oyster Co. is supported by modern environmentalists who believe that people can, through sustainable agriculture, develop a close and symbiotic relationship with the environment," the farm's lawyers wrote in its appeal.

"They see no good reason why respondent National Park Service should eliminate the oyster farm or create an artificial wilderness in the middle of an important and historic farming area," the attorneys said.

The oyster farm and owner Kevin Lunny are appealing a federal appeals court ruling that refused to block a 2012 decision in which former Interior Secretary Kenneth Salazar declined to grant the company a lease extension.

If upheld, Salazar's decision would force the oyster farm to close and allow the site to return to wilderness, a status that applies to nearly half of the national seashore's 72,000 acres.

The company has been allowed to remain open while it completes its appeal. The private farm grows oysters on 1,000 acres of submerged land in Drakes Estero, an estuary of Drakes Bay, and packages them on 1.5 acres of land along the shoreline.

It supplies between 16 and 35 percent of the oysters harvested in California, according to the petition. Kevin and Nancy Lunny bought the operation from a predecessor company in 2004 and took over a 40-year permit that expired in 2012.

"If this judgment is not overturned, government agencies will have the power to deny a permit to any individual or business for any reason, without judicial review," Lunny said in a statement today.

The appeal claims that Salazar's decision was contrary to the policy in a 2009 law in which Congress gave the secretary the authority to extend the lease, and that he relied on flawed data in an environmental impact study on the effects of closure.

A panel of the 9th U.S. Circuit Court of Appeals in San Francisco rejected those arguments by a 2-1 vote last year, saying that the 2009 law gave Salazar the discretion either to renew or not to renew the lease.

It said Lunny took over the lease with "full disclosure" that the National Park Service and its parent agency, the Interior Department, did not intend to renew it.

The appeals court majority also said an environmental study was not needed because the planned closure was a "conservation effort," and said Salazar had announced he was not relying on the allegedly flawed data.

The appeal to the Supreme Court is the final step in a lawsuit filed in late 2012 by the company and Lunny, who have lost three previous federal court rulings.

In earlier decisions, U.S. District Judge Yvonne Gonzalez Rogers of Oakland in February 2013 refused to grant a preliminary injunction blocking Salazar's decision.

The three-judge appeals court panel upheld her ruling by a 2-1 vote in September, and in January, the full 9th Circuit court declined to have the case reviewed by an expanded 11-judge panel.

Lunny and the company announced the planned Supreme Court appeal in January.

 The U.S. Interior Department now has 30 days to file a response to the petition.

Amy Trainer, executive director of Environmental Action Committee of West Marin, called the petition "a last-ditch move full of desperate arguments" and disputed the characterization of wilderness proponents as extremists.

"We're following federal law and policy," she said.

"We're trying to honor and uphold the 1964 Wilderness Act on its 50th anniversary," Trainer said.

For more info, visit:  www.savedrakesbay.com

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bluecollardoctor April 15, 2014 at 12:42 PM
This Salazar character should step down in disgrace
Barry Bussewitz April 15, 2014 at 01:09 PM
I have been a fan of Drakes Bay oysters for more than half of their now-expired lease. I would love to think that their continued operation could be compatible with the health of the ocean and the larger ecosystem. Ascertaining the feasibility of this is sufficiently complex that I have spent several hours studying various perspectives, and I have friends with varied positions. Just because the "wise use" extremists funded by Dupont, Chevron, Exxon, the NRA, etc., have taken on this case does not nullify the possible validity of the Lunnys' claims, but it probably does push the polarization of this issue, as evidenced in the comments above. There is a good deal more to consider than arguing that the purpose of the sea is to feed humans, whose food cannot grow at all without a healthy ocean ecosystem. The ecology is not shoddy, not has it been conducted from high towers in the USSR. Rigorous study, thinking and informed debate are critical to this issue and essential to government of, by and for the People. In this case the democratic process has brought this into the courts, where I hope and expect the Lunnys will continue to get a full and fair hearing, despite the fact that they want to get out of complying with a contract from which they have benefitted tremendously on public lands for decades, with a number of mitigated and unmitigated direct costs to the health of Drakes Bay.
Murray Suid April 15, 2014 at 06:32 PM
What is the value of labeling the Lunny's appeal to the Supreme Court "a last ditch move"? To my mind, "last ditch" has a negative connotation. One function of the Supreme Court is to provide a final consideration of the facts. Certainly, there have been many occasions when the Supreme Court's decision reversed lower court decisions. No one denigrates the Court's decision just because it came at the end of the road. I suspect that Ms. Trailer will applaud the Supreme Court if it agrees that the Lunny's must go. As for the Lunny's using "desperate arguments," what is the point of someone not on the court labeling the arguments as "desperate"? Does that make the arguments less compelling? I feel that language like that stirs the pot. It does not contribute to healing the badly wounded community. Much better, I think, to stick to the facts ("desperate" is a judgment, not a fact) or simply wait for the Court to decide. I believe the time has come for us to use our rhetoric to build bridges, not to continue the war.


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