Oyster Farm Facing Shutdown Wins Reprieve

SAN FRANCISCO (CN) - The 9th Circuit blocked the shutdown of a California oyster farm that is fighting a permit denial from the U.S. government.

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 gave the National Park Service 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 earlier this month after finding a lack of jurisdiction under the Administrative Procedures Act "to provide any meaningful review of Section 124, given its discretionary character."

Late Monday, a three-judge panel of the 9th Circuit granted the motion for an injunction pending appeal. The order notes that "serious legal questions and the balance of hardships tips sharply in appellants' favor."

A hearing on the preliminary injunction appeal will occur during the week of May 13, 2013, in San Francisco, according to the order.

The court also permitted an amici curiae response opposing the injunction from the Environmental Action Committee of West Marin, the National Parks Conservation Association, the Natural Resources Defense Council, and Save Our Seashore.

"If these entities seek leave to file an amici curiae brief on the merits of this appeal, a separate motion is required," the judges wrote.

Subscribe to Closing Arguments

Sign up for new weekly newsletter Closing Arguments to get the latest about ongoing trials, major litigation and hot cases and rulings in courthouses around the U.S. and the world.

Email *

Submit