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.

hope herndon February 26, 2013 at 01:06 AM
Finally someone with some brains understands the importance not only of this remarkable business but it is good for the environment. Those who say otherwise do not know their science. HSHerndon
DonnaPullan February 26, 2013 at 01:09 AM
What wonderful news! I hope things go their way.
Stephen Nestel February 26, 2013 at 01:39 AM
1Yea! Sustainable aquaculture thrives!
Marshall's February 26, 2013 at 01:41 AM
No business what will the government tax. A step in the right direction good luck to the Lunny's. Where are our Senators and Assembly representatives?
Linda Rames February 26, 2013 at 01:57 AM
While I can see both sides of this issue, I have learned that the National Park Service is not to be trusted. A couple of examples: a few years ago, the park service tried every which way to force residents of Tam Valley to acccept a a4 story garage to be built at the Manzanita park and ride lot. This was stopped only because our supervisor at the time came up with a better, cheaper and much more palatable solution. In another case, the park service decided a herd of fallow deer in Point Reyes were not native so needed to be purged. To accomplish this sickening project, they hired professional hunters from the east coast who shot the deer at night using spot lights. The park servivce has not been honest or trustworthy. They are willing to kill millions of oysters, see many people lose their means of livelihood in a bid to turn this area back to nature. Can you guess who is next on their list? If I had one of the historic ranches, I would be seriously worried as their word is worth nothing.
Merry Alberigi February 26, 2013 at 02:28 AM
Thank you to the Lunny family for preserving this treasure in our midst for future generations!
Steve B February 26, 2013 at 02:24 PM
BTW, Kenneth Salazar is helping to pave the way for Indian casinos in Napa Valley's Agricultursl Preserve. His "complete discretion" is being abused as he is a hypocrite. Yes to Indian casinos (pollution, development, abuse of tax laws, drain on County resources) on pristine land and no to an existing farm (food source) is disgraceful.
Bob February 26, 2013 at 02:36 PM
IIt seems to me that there is a lot of local support to continue the oyster operation. We don't need someone from Washington coming here and dictating what is right for us. Interior Secretary Salazar is gone, perhaps the new Secretary of the Interior would have a more favorable opinion of the oyster farm. The dairy ranches in the GGNRA have been allowed to stay and don't appear to be a problem. As long as the farm meets environmental concerns, I would like to see their lease extended.
Steve B February 26, 2013 at 03:53 PM
More people enjoy the oysters from the park than visit the park. In fact, having seafood from Pt. Reyes is kind of like a mini-vacation in itself- it "takes you there." Just another faulty argument from a psudo-environmentalist. "The 9th Circuit Court's decision today unfortunately delays by two months the ability for Americans to enjoy their national park wilderness," Desai said.
Georgette Trees February 26, 2013 at 06:43 PM
Good news! Best of luck with the rest of the lawsuit to preserve a local resource, sustainably grown and harvested oysters.
Steve Perry February 26, 2013 at 10:18 PM
Since when does a National Park require local support of a business? BTW, the alphabet ranches are on leases that will eventually expire. It is a NATIONAL Park, not a park for local oyster consumers.
Ryan Ricco-Pena February 26, 2013 at 10:51 PM
What about this farm's intensive high yield method is ecologically sustainable? Is there any evidence for this other than comments on this page? Should we care about the reef that sits below the farm? Should we preserve wilderness for future generations? There is only a tiny tiny portion of the coast that is federally protected wilderness because it is so special. Why can't they farm oysters somewhere else? What about respect for contracts and the rule of law? The law says that the area should go back to wilderness, why not follow the law and take responsibility for completing a 40 yr old contract? if we make an acception for Lunny's company this time, what's to stop a future corporation from building on our National Parks?
valeri hood February 26, 2013 at 11:01 PM
I hope that someone from West Marin will point out to Steve Kinsey the positive comments on this page- he voted against the Lunny's as a member of the Coastal Commission. Let's keep track of votes here folks!
Deb Price February 27, 2013 at 04:03 AM
In addition to Valeri's excellent comment: Steve Kinsey is also on the Board of the Marin Agricultural Land Trust (MALT) which has the greatest influence over the historic W.Marin dairy ranches (among other things) which play a rich part of Marin/Sonoma history. If Kinsey couldn't even bring himself to be the one lone pro-oyster farm/sustainable aquaculture vote on the Coastal Commission (it wouldn't have changed the outcome), then I wonder what he REALLY brings to MALT's agricultural land preservation decisions? Also, Kinsey probably just got himself a shot at some future federal Interior Dept job by not rocking the boat with Salazar/NPS/Coastal Comm etc...
CDC February 27, 2013 at 06:59 AM
Sounds like you would jump off a cliff if somebody told you to. Try using logic for once! Should we care about getting rid of historical landmarks and businesses that are part of many parks? Should we listen to fanatic tree huggers who don't even know what this is about or live in the area? Should we let Government(National Park Service) lie to us and standby and do nothing? http://www.feinstein.senate.gov/public/index.cfm/op-eds?ID=5e5418c5-8bbf-4c58-82c3-f6c033c15a8e P.S - I take it you hate corporations. Want them to stop giving money to the parks for preservation? http://www.nationalparks.org/about-us/our-partners
Steve Perry February 27, 2013 at 06:19 PM
@CDC, it sounds like you would do anything that corporations want you to do. Apart from feeding a few people an exotic food in Marin, what is the greater good of Lunny's company? He had a lease, he and everybody else knew it was going to expire; if it was a case of eminent domain it would be different, but his lease is over. He can go up or down the coast and move his business. The PEOPLE as a whole asked that land to be put on a lease decades ago, now the PEOPLE, apart from a handful of entitled locals, are saying no. Your straw man argument holds no water. Based on your faulty logic we shouldn't have laws at all. If some messy corporation that hasn't even maintained its end of its contractual responsibilities says jump off a cliff, you will. Sorry, but sometimes the majority rules, Get over it.
Robert Del Secco February 28, 2013 at 04:49 AM
The most disturbing and alarming part of this is the NPS is trying to restore/recreate a "wilderness" area. This land, the Drakes Estero, has been used as dairy land for over a century and the Drakes Estero has had subdivisions (Limantour) and roads all around it for years. Look up the definition of wilderness and you will see that it is a sham that the NPS is pulling on Marin in the Uber-Psycho desire to set aside lands and forever protect them from, guess who, us!... the people who own and use the land. To make things worse they have engaged environmental groups to support their land grab (see Sierra Club, the National Parks Conservation Association and the Environmental Action Committee of Marin), which have jumped on the media spin bandwagon. The original intent of the Point Reyes National Seashore was to prevent subdivision and to preserve the Cultural and Historical land uses. See the truth at: http://oysterzone.wordpress.com/ Then you might realize how snaeaky and underhanded the NPS has behaved in this. I'm afraid the heavy hand, no change that to the "Jack Booted Heel" of the government will prevail in this senseless loss of Historical, Cultural, and vital environmental business. Its a sad day when the government becomes more important and powerful than the the people it represents...
Steve B February 28, 2013 at 05:19 AM
Stop being a dope! They serve much more than "a few people... in Marin!" Do a few seconds of research before barfing your naive opinions all over the place. http://drakesbayoyster.com/products/availability.html
Steve Perry February 28, 2013 at 06:35 AM
I guess if you leased your house to a tenant and decided to not renew the lease when it was over it would be a land grab when you took it back. "Jack Booted Heel", what an imbecilic comment. Historical, Cultural loss, please spare me...
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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