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Wednesday, May 29, 2024 | Back issues
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Oyster Farmer Says Feds Are Killing Tradition

SAN FRANCISCO (CN) - Federal officials conspired to shut down a California oyster farm that produces nearly half of the state's supply, the company and its owner claim in Federal Court.

Kevin Lunny says he and his wife, Nancy, run Drakes Bay Oyster Co. on 1.5 acres of Drakes Estero in Point Reyes National Seashore, northwest of San Francisco. They bought the farm in 2004 from a company that cultivated oysters there since the 1950s.

California has allegedly leased the water bottoms of Drakes Estero to shellfish farmers since 1934.

Lunny says Drakes Bay Oyster employs 31 full-time workers and supplies 40 percent of the California cultivated oyster industry.

Though the 40-year Reservation of Use and Occupancy (RUO) that the Lunneys bought from the previous owner was scheduled to expire on Nov. 30, 2012, the deal allegedly contained a renewal clause that grants the National Park Service the right to issue a special use permit (SUP) at the end of the term.

Lunny says Congress authorized U.S. Secretary of State Ken Salazar in 2009 to issue his farm a 10-year permit with the Section 124 appropriations bill. This allegedly gave the National Park Service and the Department of the Interior three years to prepare an environmental impact statement, as required by the National Environmental Policy Act (NEPA).

But Lunny says the statements prepared by the Park Service nevertheless failed to comply with NEPA.

The "biases" of Park Service employees "tainted" the statements because the service wants to evict the farm and convert Drakes Estero into a protected wilderness area, according to the complaint

When Salazar issued a memorandum of decision on Nov. 29, 2012, informing Drakes Bay Oyster that it would not receive the anticipated permit, the secretary "asserted for the first time ... that his decision ... [is] not subject to any substantive or procedural legal requirements," according to the complaint.

Salazar allegedly said that Drakes Bay Oyster had 90 days to clear out its things.

Without an injunction and restraining order, the government will eviscerate dozens of jobs, ends an 85-year tradition of oyster farming and "hijack a property right of the state of California," according to the complaint.

Lunny says Salazar's decision relies on flawed science, misconstrues and ignores a congressional act, and tramples state rights.

Ignoring a report from the National Academy of Sciences that assessed the relationship between mariculture operations at Drakes Bay Oyster and the Drakes Estero environment, Salazar "instead ... stated that his decision was 'based on the incompatibility of commercial activities in wilderness' and suggested that the legislative purpose of the Wilderness Act of 1964 and Point Reyes Wilderness Act of 1976 trumped the congressional intent and language of Section 124," the complaint states.

Though Salazar said this reasoning "effectuates that [1976] Congressional intent," Lunny said the secretary blatantly misinterpreted past acts to justify his decision.

In addition to violations of the Administrative Procedures Act, the National Environmental Protection Act and the Data Quality Act, Lunny and Drakes Bay Oyster claim that the federal officials violated the takings and due process clauses of the Fifth Amendment, and that they unlawfully interfered with agency functions.

They sued Salazar, the Interior, the Park Service and Park Service director Jonathan Jarvis.

Amber Abbasi, a Washington, D.C., attorney with Cause of Action, and Wayne Rosenbaum, with Stoel Rives in San Diego, represent the oyster farmers.

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