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

| January 15, 2014
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Strings of mother shells for growing oysters at Drakes Bay Oyster Co., in 2007 photo. (Justin Sullivan/Getty Images)

Strings of mother shells for growing oysters at Drakes Bay Oyster Co., in 2007 photo. (Justin Sullivan/Getty Images)

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.

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About the Author ()

Dan Brekke has worked in media ever since Nixon's first term, when newspapers were still using hot type. He had moved on to online news by the time Bill Clinton met Monica Lewinsky. He's been at KQED since 2007, is an enthusiastic practitioner of radio and online journalism and will talk to you about absolutely anything. Reach Dan Brekke at dbrekke@kqed.org.
  • Steven Maviglio

    Bye bye business use of our natural resources and trying to change the rules after you bought the business. Hello wilderness!

    • srcarruth

      hear hear!

    • reverenddude

      Everyone needs to eat. These are local. Get real! WHERE DOES YOUR FOOD COME FROM!

      • Steven Maviglio

        Where more than 92 percent of the oysters on the west coast come from: oyster farms in non-wilderness areas.

        • reverenddude

          you should go down to the ritz in half moon bay. if you can not enjoy the wilderness due to the modest and delicious operation.

          • Steven Maviglio

            Drakes Bay Oyster Co. is a polluting industry in an area designed for wilderness. It has been repeatedly fined by the Coastal Commission and other agencies. It was purchased AFTER the owners knew the lease would expire. There are plenty of great places to enjoy oysters from other places (actually within miles) that we’ll all be able to enjoy. P.S. — Reverenddude, why don’t you have the courage to use your real name?

          • reverenddude

            Courage Steven? You will never be able to appreciate wilderness with that attitude. Wilderness is everywhere you just need to open your eyes. The drakes bay oyster farm provides oyster to you right at the attraction you seek. Why not enjoy the oysters instead of clenching about every trace of your own humanity.

            Our planet is already infected with more pollution then we can conceive. The Drakes is a modest opperation, they have been fined erroneously and with contempt.by people with a similar attitude to yours.

            If you are goal is to protect wilderness Drakes Bay oyster farm is not an institution which need reprimand.

            I am Joe Buty aka Reverend Dude aka Duderino
            Take a hike steven

  • Robert Thomas

    I’ve heard DBOCo described here as “famed”, “popular”, “family-owned” etc.

    My local 7 Eleven is a family-owned franchise and I daresay more “famed” and “popular”.

    I’m not sure whether I’m convinced that closing DBOCo is a good thing or not but beyond being absurd adjectives to use about this business, their use betrays sloppy bias and rube journalism.

    • Dan Brekke

      We may be sloppy, biased and rube-ish elsewhere, but we plead “not guilty” to using those adjectives. At least in this post.

      • Robert Thomas

        “Famed” I certainly heard, though it may have been in an earlier report today (and I’ve only listened to KQED) and so I beg your pardon. But “popular” I heard in the lead to this report, which prompted my response.

        • Dan Brekke

          OK — point taken. I can only warrant what’s written above. How do you feel about the adjective “controversial”?

          • Robert Thomas

            Certainly it is so.

            Look, my severe assessment of the ongoing coverage of this situation was due to the predictable casting of the story as one of a heartless, faceless, implacable, intransigent, banal and vindictive federal agency grinding honest hardworking yeoman bivalvers – innocently and nobly beach-combing their way through their sustainable, homely existence – in the bloodless gears of the war it wages to crush the dreams and aspirations of the striving everyman.

            I don’t write for a living. I can use as many ridiculous modifiers as I want.

            The story here is that some business people (who as far as I’m aware, admirably operate an admirable business) gambled that their sweet deal – a sweet deal which is SIGNIFICANTLY enhanced in its sweetness by the fact that no one else nearby gets the sweet deal – could be extended long after they had had it explained to them that it would turn into a pumpkin and gambled as well that the discomfort they could generate feigning persecution even though the feint would result in jeopardizing the integrity of both a fifty-year-old landmark piece of environmental legislation AND the preeminent exemplar of that legislation on the entire West Coast… would be sufficient to perpetually perpetuate their… what? Their SWEET DEAL.

            “…food security and the US balance of trade”? Bozhe moi.

            Still, it’s a shame if they lose their business.

          • reverenddude

            The legislation was trampled on when Hetch Hetchy was build…