Drakes Bay Oyster Co. Owner Says He'll Take Case to High Court

Update Wednesday 10:15 a.m.: The owner of the Drakes Bay Oyster Co. says he'll appeal his imminent eviction from Point Reyes National Seashore to the U.S. Supreme Court. A three-judge panel of the 9th U.S. Circuit Court of Appeals in San Francisco on Tuesday rejected Kevin Lunny's request for a rehearing of his case. Lunny has been seeking to overturn a 2012 decision by former Interior Secretary Ken Salazar to end the oyster operation's lease at the seashore and allow the National Park Service to proceed with plans to convert the property to wilderness uses. But Lunny says he isn't finished yet.

As the Marin Independent Journal reports:

Lunny said in a statement late Tuesday he will take his fight to the Supreme Court.

"We believe the court's decision not to rehear our case is incorrect, and that the dissenting opinion from Judge Watford will prevail," Lunny said. "Because of that, we are requesting our case be heard by the U.S. Supreme Court. We are grateful for our thousands of supporters, partners, customers and patrons that have supported our small, family-owned farm for four generations. We remain committed to succeeding in our fight to remain open and serve our community."

In a September ruling 9th Circuit Judge Paul J. Watford wrote in a dissenting opinion Lunny's request for an injunction should have been granted. That provided the oyster company's supporters hope the court might re-consider that 2-1 ruling."

Original post (Tuesday): The 9th U.S. Circuit Court of Appeals has closed another legal door on the Drakes Bay Oyster Co.'s bid to reverse a federal decision that will force it to shut down.

The court today announced that a three-judge panel voted 2-1 against Drakes Bay's request for an en banc hearing of its case, which challenges former Interior Secretary Kenneth Salazar's refusal to grant an extension of the oyster operation's lease at Point Reyes National Seashore. By the same vote, the same panel last September rejected an appeal from Drakes Bay owner Kevin Lunny for a preliminary injunction to head off the eviction.

At issue in the case is the conflict between Lunny's decade-old campaign to win an extension to the oyster company's lease and National Park Service plans to designate Drakes Estero, the operation's site, as wilderness. Lunny has long maintained that the park service not only could but should extend the 40-year "reservation of use and occupancy" first granted in 1972 when the government bought the property from the operation's previous owner. The National Park Service, operating under provisions of the 1976 Point Reyes Wilderness Act, informed Lunny in 2005 of its intention not to extend the lease beyond its expiration date in 2012.

One of Lunny's chief allies, Sen. Dianne Feinstein, lobbied for an extension of the lease and in 2009 managed to win approval of legislation authorizing the secretary of the Interior to grant a 10-year extension to the Drakes Bay Oyster Co. After a long review process marked by charges that the National Park Service had manipulated data to show the oyster farm was harmful to the environment, Salazar declined to extend the lease.

Among other reasons, Salazar cited the government's original agreement to purchase the oyster farm's property, Park Service policy limiting commercial operations in national parks and wilderness areas, and the requirements of the 1976 Point Reyes law. He also acknowledged the scientific uncertainty over the oyster operation's environmental and recreational impacts, but said in his view that studies backed the view that letting the lease expire "would result in long-term beneficial impacts to the estero’s natural environment."

Salazar's decision required Drakes Bay Oyster Co. to vacate its premises within 120 days, a departure delayed when Lunny filed suit in December 2012 to block the Interior secretary's action. The lawsuit alleged that Salazar had violated the National Environmental Policy Act, which requires an assessment of agency impacts on the human environment, and the federal Administrative Policy Act, which guides government decision-making policies. Ultimately, a federal judge in San Francisco rejected Lunny's request for a preliminary injunction to halt the Department of Interior's action, leading to the 9th Circuit appeal and today's decision denying a rehearing.

The case has caused a split between environmental groups that support wilderness restoration at Point Reyes and leaders of the sustainable food movement, who praise Drakes Bay as a model operation. Both sides submitted "friend of the court" briefs during the Drakes Bay appeal. A group of local restaurateurs were among those who filed a brief arguing that closing the operation "would have a broad, negative and immediate impact, on the local economy and the sustainable agriculture and food industry in the San Francisco Bay Area, on the school children of the workers who live in the housing units onsite, and, in the longer term, on food security and the U.S. balance of trade."

Today's decision to deny the en banc review, in which a larger panel of 9th Circuit judges would have considered Lunny's request, leaves just one option for a further appeal: The U.S. Supreme Court.

Peter Prows, one of several lawyers who has represented Lunny in fighting the Interior Department's decision, said in December that he was prepared to take the case to the nation's highest court if the en banc hearing was denied. "I don't see any reason why we wouldn't take it to the Supreme Court," he told the Santa Rosa Press Democrat. "It's a bigger issue than just the oyster farm."

The San Francisco Chronicle reports the company is considering further legal action:

Spokeswoman Tina Walker said the company is "strongly considering" a Supreme Court appeal, and disagrees with the Ninth Circuit's decision to "eject our historic, family-owned oyster farm."

Drakes Bay Oyster Co. has been allowed to continue operating while its case has been litigated. It would need to seek another court order to remain open while appealing to the Supreme Court.

Here's the ruling released today by the 9th Circuit:

Reporting on California land policy, planning and conservation is supported by a grant from the S.D. Bechtel Jr. Foundation.