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Drakes Bay Oyster Farm Staves Off Closure With Injunction

Judge allows Point Reyes oyster farm stay open while it appeals federal government's decision to deny a permit extension and allow the estuary to return to wilderness.

By Bay City News Service

An oyster farm in the Point Reyes National Seashore won an order from a federal appeals court in San Francisco today allowing it to stay open for the time being during its longer-term battle against closure.

The Drakes Bay Oyster Co. has sued to challenge a November decision by U.S. Interior Secretary Kenneth Salazar to deny the farm a permit extension and to allow its site along a Drakes Bay estuary to return to wilderness.

In today's order, the 9th U.S. Circuit Court of Appeals granted the farm an injunction allowing it to continue operating while it appeals a lower court order that denied a preliminary injunction.

A three-judge panel said it was granting the temporary order because "there are serious legal questions and the balance of hardships tips sharply" in the farm's favor.

Owner Kevin Lunny and the company had argued in their bid for an emergency injunction that being forced to close while they appeal the lower-court decision would cause severe hardship by destroying the current oyster crop and causing 31 people to lose their jobs.

The appeals court put the case on a fast-track schedule and said arguments will be heard at its San Francisco courthouse during the week of May 13. The court has no deadline for issuing a ruling, however.

"We are beyond thrilled that our business will now remain open while we continue to fight the decisions from the court and Secretary Salazar that have put our business at risk," Lunny said.

Lunny said his company is "an innovative sustainable farm, an educational resource, and part of the economic fiber of Marin County."

The decades-old farm had had a deadline of Thursday to cease operations and March 15 to remove all equipment.

It grows oysters on 1,000 acres of submerged lands in Drakes Estero and packages them on 1.5 acres of land along the shoreline.

The company is appealing a decision in which U.S. District Judge Yvonne Gonzalez Rogers of Oakland on Feb. 4 declined to issue a preliminary injunction that would have enabled it to stay open until a full trial is held on the lawsuit.

Gonzalez Rogers said the farm is unlikely to win its lawsuit because Congress in a 2009 law gave Salazar "complete discretion" to decide whether to renew a permit that enabled the private company to operate on land within the national park system.

Neal Desai, the Pacific region associate director of the National Parks Conservation Association, said his group will file papers opposing the appeal and emphasized that today's order is not a final decision in the case.

"We are confident the district court got it right when it decided that the Interior secretary had full discretion to let the lease expire and that the oyster company was unlikely to win its lawsuit," Desai said.

"The 9th Circuit Court's decision today unfortunately delays by two months the ability for Americans to enjoy their national park wilderness," Desai said.

Lunny and his wife, Nancy Lunny, bought the oyster farm from a predecessor company in 2004 and took over a 40-year permit that expired in 2012.

A spokeswoman for the Interior Department, which manages the national park system, was not immediately available for comment.

Copyright © 2013 by Bay City News, Inc. -- Republication, Rebroadcast or any other Reuse without the express written consent of Bay City News, Inc. is prohibited.

Steve Perry February 28, 2013 at 06:50 AM
@Steve B Compare: The Bay Area: 6,984 sq. miles U.S. minus Bay area: 3,787,117 sq. miles 542 times the area. Population Bay Area: 7,015,000 (est 2012) U.S. Minus Bay Area: 308,560,000 (est 2012) 44.5 times the population
Robert Del Secco February 28, 2013 at 10:03 AM
First of all Steve, you are ignorant in your assumptions that the Oyster Farm is a tenant. They were there before the National Park came into being. Second, it is not an imbecilic comment to portray the NPS as a "Jack Booted Heel" when they have behaved with callous disregard for historic and cultural practices. In fact, they (the NPS) have misconstrued the facts and science to portray the Oyster Farm as a negative impact operation to further their stance. This was clearly identified by the National Academy of Science and reviewed by the Inspector General. The NPS has acted with malice and impropriety in an effort to portray the oyster operation as a negative impact to further their effort to remove the aquaculture from the estero. These are not disputable FACTS. Your persistence in justifying this aberration shows that you; 1) have no understanding of what a real "Wilderness" is, 2) have no respect for cultural and historical practices in Marin, 3) Choose to attack the language of the issue rather than the merits. Your perspective is one of a national consensus based upon ethic over merit. In your view the NPS has the right and unquestioned duty to take the land and attempt to restore it to a state preceding Sir Francis Drakes arrival. You would like to see it returned to a state before the arrival of the first Europeans. Is that correct? You seem to have no concept of what the National Park Service was created for by Congress.
Robert Del Secco February 28, 2013 at 10:04 AM
Please review the language of the Organic Act established in 1916 which clearly states "The service thus established shall promote and regulate the use of the Federal areas known as national parks, monuments, and reservations hereinafter specified by such means and measures as conform to the fundamental purpose of the said parks, monuments, and reservations, which purpose is to conserve the scenery and the natural and historic objects and the wild life therein and to provide for the enjoyment of the same in such manner and by such means as will leave them unimpaired for the enjoyment of future generations." This means to me, that such historic and cultural activities, as established prior to designation as a National park, shall be preserved and promoted. The NPS at Point Reyes National Seashore has clearly twisted this language to further its desire to forever remove this historic and cultural practice from the park. The NPS has further employed politics to to portray this operation as a violation of what they have now designated as a "Wilderness" and have sought comment from a national base which is unaware of the past practices.
Robert Del Secco February 28, 2013 at 10:05 AM
The NPS has gone so far as to attempt to erroneously portray the oyster farm as violating numerous compacts relating to wilderness and ecology of the estero in this effort. This is reprehensible as a steward of our nation lands and stands to defame the scientific process by which they make their decisions. It is correct that the courts review this process and make a decision based upon factual data and information regarding the arbitrary decision set down by the past Secretary Salazar. It seems clearly to have been a political decision made by an agency mandated directive.
tom martell March 09, 2013 at 03:49 PM
It must be nice to have a ton of money like the Lunny's, friends in high political office like Diane Feinstein and financial backing from a conservative Washington think tank. These are not just ordinary people looking to maintain jobs for a few unfortunate souls. Follow the dollar my friends, there are big plans afoot if they get to stay there.

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