Drakes Bay Oyster Company Gets 30 More Days as Restaurants File Lawsuit to Keep Farm Going

Drakes Bay Oyster farmer Jorge Mata was devastated when he heard he had to start throwing away heaps of plastic poles with of hundreds baby oysters attached to them. Mata has worked harvesting oysters from Drakes Estero for over 30 years, currently for the Drakes Bay Oyster Company and previously for Johnson’s Oyster Farm. A few weeks ago, the farm received a final notice from the federal government that said they had to close their cannery and retail store, pack up their supplies and vacate their land by July 31. But thanks to a last minute lawsuit by a group of restaurants and local business owners who rely on the oysters from Drakes Bay, Mata and the rest of the farm get at least another month’s reprieve.

For decades, Drakes Bay Oyster Company had been leasing offshore seabeds from Point Reyes National Seashore and the U.S Department of the Interior. However, their 40 year lease expired in 2012, and the department said it would not renew the lease because it wants to include the over a thousand acres of land in a marine-wilderness property. The farm has been involved in legal battles and campaigns to keep it running for the past few years.

While owners Kevin and Nancy Lunny asked for an extension, earlier this month the Supreme Court refused to hear their appeal. Except for the lawsuit, the farm had exhausted most legal options to keep the company open while they continue litigation.

Lunny, who purchased the oyster farm eight years before the lease ended, says he knew the lease was expiring, but had hoped the government would realize how important the oyster farm is for the surrounding community.

“We get over 50,000 visitors a year and what’s most memorable and important is the direct connection to the public. We are living the dream producing high quality food and connecting with the public and sharing how to do it right. I can’t think of another way to have your cake and eat it too,” Lunny says.

The oysters the company plants and harvests are enjoyed by restaurants and families all over Northern California, and it’s this community that has granted Drakes at least another month of oyster production.

“The lawsuit fundamentally is about insuring and protecting to the maximum extent possible the supply of locally grown oysters in the Bay Area as well as California grown oysters for a lot of folks who are outside the Bay Area,” says Stuart Gross, the attorney representing the restaurants and the other businesses who are the plaintiffs.

The Tomales Bay Oyster Company, Osteria Stellina and Cafe Reyes in Point Reyes Station, Saltwater Oyster Depot in Inverness, The Sir and Star in Olema, and the Hayes Street Grill in San Francisco argue that having this local supply of oysters is key to their business.

“Their businesses depends on having local, sustainably grown oysters to sell,” Gross says. “For a number of these restaurants in addition to dollars, one of the main selling points is the farm to table setting that they’re able to provide and without Drakes Bay Oyster Company that’s not going include local oysters.”

Plaintiffs also include the Alliance for Local and Sustainable Agriculture (ASLA); ALSA board member and rangeland ecologist Jeff Creque; and oyster farm employee Loretta Murphy.

“From their perspective, the closure of Drakes Bay Oyster Company is an extremely wrongheaded action from an environmental perspective. These oysters are about the most sustainably grown source of protein that you could imagine. It’s about making sure that local source of protein that’s grown in a way that has very little environmental impact, doesn’t go away.”

Gross says they’ve challenged the U.S Department of the Interior’s decision to close the farm based on the fact that they didn’t follow procedural laws when making their decision.

They argue that the then-Secretary of the Interior - Ken Salazar did not follow proper procedure because he did not consult with a federal aquaculture coordinating group before making his 2012 decision to not renew the company’s permit. They say failure to do so violated the Administrative Procedures Act and harmed the interests of local businesses that rely on Drakes Bay. Gross says that another policy that wasn’t followed was California’s policy that coastal land that’s being used for agricultural use can not be converted to nonagricultural use unless its no longer practicable. Drakes is California’s last operating oyster cannery and restaurants cannot get shucked oysters from anywhere else in the state.

“I don’t know what we will do without the oysters on the menu,” says Patricia Unterman, the founder and co-owner of the Hayes Street Grill in San Francisco. “People love them on our menu, and people love that they come from only 45 minutes away. It’s a terrible, terrible loss if we couldn’t continue to serve these.”

Co-owner and Chef Daniel Delong of the Sir and Star in Olema says he and his partner Margaret Gradé use Drakes oysters in several popular dishes on the menu - served raw with pickled kelp and mustard seeds, fried with potatoes and duck egg hollandaise. DeLong says he not only is disappointed he may not be able to cook with them anymore; he’s also sad to be losing a local food source, that’s why they are part of the lawsuit.

“It would be like winning the lottery for them, we just don’t really think we are ready to give up. I think it’s too important to give up. I think to lose such a valuable piece of California’s history would be a shame.”

DeLong and Grandé say they’ll fight until the very last second to keep this important food supply running.

“Whatever you got, you may as well bring it now, because when it’s over, it’s over,” says Tod Friend, the owner of Tomales Bay Oyster Company (TBOC). TBOC buys a quarter million oysters from Drakes annually to supplement their demand. The alternative, Friend says, is getting them from the North West, which costs extra for transportation and packaging.

Kevin Lunny sees this new lawsuit as extremely important because he says it demonstrates a community sentiment that has been here since the beginning of the debate.

“There is this collective disbelief that we are actually closing, and this is just another example of the community coming together and saying this cannot happen. They raise some very sound arguments about the state’s right to grow selfish and I hope it will help sort out some important questions,” he says.

On Friday, the restaurants and business owners filed a motion for a temporary restraining order combined with a motion for a preliminary injunction.

“We basically went to the court and said we cannot wait for a full briefing because if we do wait, the farm will have already closed and we will suffer irreparable harm from not having that local supply of fresh protein,” Gross says.

Now, Drakes Bay can continue harvesting for thirty days while the plaintiffs pursue their case, and the government will not require Drakes Bay to remove any oysters or any of the frames in the Estero without giving them a 30-day notice.

“So every day that goes by there’s at least 30 more where Drakes Bay Oyster Company can harvest oysters. We hope that in September, we can litigate our case and have the courts set aside the decision that closed the oyster farm, and require the department of the Interior to revisit it but in compliance of the law and all of the procedures the failed to address. ”

Kevin Lunny says they are also trying to evaluate every possibility for keeping his staff employed, including looking at relocating to a small spot in Tomales Bay, an area of Humboldt Bay, or as far away as Baja California.

“We are keeping our eyes wide open. We need something to work so that we can keep these wonderful people on at work. They’ve known for years their job is on the line and they had every reason to find another job before this thing happened but they didn’t, they stuck with us. Their hope only makes us more hopeful.”

Drakes Bay Oyster Company will still close retail operations on Thursday, July 31, but will continue to harvest oysters. The group’s request for an injunction will likely be heard on September 9.

Listen to KQED News report on the closing of the retail operation at Drake's Bay Oyster Company:

Watch a KQED News video on last day of the retail operation at Drake's Bay Oyster Company: