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Monday, July 15, 2024 | Back issues
Courthouse News Service Courthouse News Service

Oyster Farm Can’t Stay Open While Fighting Feds

(CN) - A federal judge ordered a California oyster farm shut down and cleared out while she decides whether the U.S. government properly refused its permit request.

When Kevin Lunny bought the 1.5-acre oyster farm from its previous owner in December 2004, the deed came with a 40-year reservation of use and occupancy set to expire on Nov. 30, 2012.

The deal National Park Service had the right to issue a special use permit at the end of the term, but it instead left the fate of Drakes Bay Oyster Co. in the hands of U.S. Secretary of the Interior Ken Salazar.

On Nov. 29, Salazar refused to grant Lunny a 10-year special use permit to continue cultivating approximately 1,060 acres of underwater oyster beds.

Lunny and Drakes Bay filed suit and sought an restraining order as a Feb. 28, 2013, deadline loomed for them to leave the 1.5-acre site on the shores of Drakes Estero in Point Reyes National Seashore.

Oyster farming has occurred there for the last 85 years, and Drakes Bay purports to supply 40 percent of the California cultivated oyster industry.

Lunny said the National Park Service reported inflated environmental impacts and that Salazar relied on this flawed science, as well as a misguided interpretation of federal environmental law, in making his decision.

U.S. District Judge Yvonne Gonzalez Rogers refused to issue an injunction Monday after finding a lack of jurisdiction under the Administrative Procedures Act "to provide any meaningful review of Section 124, given its discretionary character."

The court cannot determine, "on the record before it, that the adverse environmental consequences of denying an injunction and allowing the removal of the company's personal property from the site weigh more strongly than the environmental consequences of enjoining the removal," she wrote. "Finally, the court has no basis upon which to weigh the relative public interest in access to local oysters with the public's interest in unencumbered wilderness."

Rogers noted that the Point Reyes Wilderness Act of 1976 designated 25,370 acres of seashore as "wilderness" and over 8,000 acres, including Drakes Bay, as "potential wilderness."

The 1976 House Committee Report, which accompanied the Point Reyes Wilderness Act, states that: "As is well established, it is the intention that those lands and waters designated as potential wilderness additions will be essentially managed as wilderness, to the extent possible, with efforts to steadily continue to remove all obstacles to the eventual conversion of these lands and waters to wilderness status."

Congress added the Point Reyes National Seashore to the national parks system in 1962. It consists of 80 miles of coastline managed by the National Park Service under the direction of the U.S. Department of the Interior.

In a separate ruling, Rogers also refused to permit intervention by Environmental Action Committee of West Marin, the National Parks Conservation Association, the Natural Resources Defense Council and Save Our Seashore on behalf of Salazar and the Interior.

While the "proposed intervenors may have a unique point of view and expertise, intervention as a part will not necessarily facilitate resolution on the merits, but is likely to result in duplicative briefing adding a layer of unwarranted procedural complexity," she wrote.

The groups can still request permission, however, to file an amicus brief on specific issues related to the lawsuit, according to the ruling.

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