Drakes Bay Oyster Company not willing to give up despite U.S. Supreme Court decision

June 30, 2014

The U.S. Supreme Court refused Monday to take up the case of a Marin County oyster farm facing eviction from the Point Reyes National Seashore in what a lead opponent of the commercial operation called "the end of the road for this company."

Drakes Bay Oyster Co. owner Kevin Lunny struck a defiant position, however, and vowed to battle on, calling the high court's pass on his petition "a disappointment, but not really a setback."

"Today, we've been delivered news that's disappointing, but we'll get over it. It's not the end," Lunny said in a news conference hours after the high court made its decision public. "It's not over until the last oyster's shucked."

Lunny and his attorney, Peter Prows, said they are still evaluating additional legal and legislative remedies that might permit Lunny and his family to hang onto their successful shellfish concern in Drakes Estero, an area designated by a 1976 congressional act to become a marine wilderness as soon as the oyster farm's 40-year-lease expired in 2012.

Lunny's team was in touch with California Sen. Dianne Feinstein's office on Monday and met with Rep. Jared Huffman, D-San Rafael, as well. Neither lawmaker was available for comment.

Lunny's original federal lawsuit against the U.S. Department of Interior also is still pending in U.S. District Court, though its outlook is perhaps dimmed by a succession of federal court rulings that cast doubt on its potential for success.

The Supreme Court is just the latest — after the district court and the 9th Circuit Court of Appeal — to rebuff the Lunnys' bid for a court injunction that would legally permit them to continue their operations until the lawsuit is resolved.

Amy Trainer, executive director of the Environmental Action Committee of West Marin, said the Supreme Court's refusal to weigh in should mean quick action by federal officials on a timeline for the company's withdrawal from the Estero, which has supported oyster farming for more than 80 years.

Trainer said Lunny had resorted to "misinformation and spin and denial about reality and the facts" in his insistence that the high court's inaction was a mere hurdle.

"This is the end of the road for this company," she said. "They have no legal legs to stand on after this denial."

Lunny and his family, who harvest an estimated $1.5 million in shellfish annually from miles of submerged wooden racks in Drakes Estero, formed the company in 2004 after buying the former Johnson Oyster Co. and the seven years that remained on its 40-year federal lease.

Federal courts have referenced documents from the U.S. Department of Interior ensuring the Lunnys understood the lease was not to be renewed, in part because of a 1976 congressional act identifying the estero as potential marine wilderness that could be designated as soon as the oyster operation was shut down.

But the Lunnys sought to extend their right to continue farming the pristine waters and providing what Kevin Lunny said was a third of the oysters harvested in California, winning support in their bid from powerful allies such as Feinstein, foodies, agricultural interests and some environmentalists.

The Lunnys market their company as an ecologically friendly, sustainable operation that benefits the environment. The oysters filter some pollutants from the water, he said, and the shells yielded by his cannery operation are donated for habitat recovery programs.

The company also employs about 30 people, providing housing for many of them, he said.

The 1976 Congress and the National Park Service determined that commercial oyster farming was incompatible with a marine wilderness, however, and established the lease expiration as the trigger for conversion of the area into designated wilderness.

Feinstein intervened on the Lunnys' behalf in 2009 with legislation giving then-Interior Secretary Ken Salazar sole discretion to issue a new 10-year use permit to the oyster company, launching an environmental review process that the Lunnys and their attorneys say was flawed.

Salazar, conceding scientific views were somewhat mixed, refused to grant a new permit, giving the owners 90 days to shut down its operation and remove miles of wooden racks and equipment from the estero, prompting celebration on the part of some conservation agencies.

The Lunnys subsequently sued and now say they are fighting to protect continuing use of public lands by ranchers and others.

Kevin Lunny said he expects to discuss the next steps with federal officials in the coming weeks.

It remained unclear what action federal parks and Interior personnel were prepared to take.

Questions were referred to the U.S. Department of Justice, which released a brief statement expressing pleasure with the high courts' decisions.

"The 9th Circuit Court of Appeals held that the Secretary of the Interior acted appropriately in allowing the permit for Drakes Bay Oyster Company to operate in the Point Reyes National Seashore to expire," Justice spokeswoman Ellen Canale said via email. "Today, we're pleased the Supreme Court rejected the company's argument that this decision merits further review."


Source: By Mary Callahan