The owner of Drakes Bay Oyster Company said Wednesday he will seek a rehearing of the federal appeals court ruling Tuesday that would force him to shut down.
Kevin Lunny, who runs the oyster farm in the Point Reyes National Seashore, said that within 45 days his attorneys will file a petition for a hearing before an 11-judge panel of the 9th Circuit U.S. Court of Appeals in San Francisco.
In a 2-1 ruling, a panel of three 9th Circuit judges rejected Lunny's bid for permission to continue oyster farming operations in Drakes Estero pending resolution of his case against the Department of Interior.
“After reading the court's decision ... we are more convinced than ever that we will prevail based on the merits of our case,” Lunny said in written statement.
Lunny said he was relying on the dissent by Judge Paul J. Watford, who wrote that the majority decision was wrong, largely due to what he wrote was misinterpretation of the 1976 law that established wilderness areas on the Point Reyes Peninsula in Marin County.
“That was what we've been arguing all along,” said Peter Prows, a San Francisco attorney who is one of the lawyers providing Lunny with free legal services.
Lunny's company harvests $1.5 million worth of oysters a year from the estero, a 2,500-acre estuary protected by the federal government.
His lawsuit, filed in December, alleged that former Interior Secretary Ken Salazar's decision in November not to renew the oyster farm's permit was “arbitrary and capricious and an abuse of discretion.”
The merits of his suit have yet to be adjudicated, as both a federal district court in Oakland and the 9th Circuit have now refused to allow Lunny to stay in business until the matter is resolved.
Lunny has 45 days from the date of Tuesday's ruling to seek a rehearing and may continue harvesting oysters during that period, Prows said.