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Drakes Bay oyster farm files new appeal of shutdown order

  • Rogelio Camacho, left, and Francisco Manzo pull up bags of oysters from the Drakes Bay Oyster Company's oyster farm in Drakes Estero in 2012. (PD FILE, 2012)

The owner of Drakes Bay Oyster Company asked a federal appeals court Friday to reconsider his bid to continue harvesting shellfish in the Point Reyes National Seashore.

Lawyers for Kevin Lunny filed a 22-page request with the 9th Circuit U.S. Court of Appeals, a move that could potentially delay a court-ordered shutdown for up to a year.

Federal judges twice have rejected Lunny's bids since last November, when former Interior Secretary Ken Salazar refused to renew his permit to grow oysters in the federally protected waters of Drakes Estero, a 2,500-acre Pacific Ocean estuary teeming with wildlife.

By appealing both decisions, Lunny has gained the right to continue his business, which employs about 30 people and harvests $1.5 million worth of oysters a year from the estero.

In September, a panel of three 9th Circuit judges rejected his latest bid on a 2-1 ruling, giving Lunny a 45-day window for requesting a rehearing before a panel of 11 judges.

The decision noted that Lunny, who bought the oyster farm in 2005, was “not likely to succeed” in his underlying claim that Salazar's action was “arbitrary and capricious and an abuse of discretion.”

A rehearing is needed, Lunny's lawyers asserted Friday, because the September ruling “conflicts with several decisions of the United States Supreme Court, and of this Court, on questions of exceptional importance.”

The filing also contends that the National Park Service “sustained a vendetta against the oyster farm,” citing allegations of scientific misconduct in an assessment of the oyster farm's environmental impact.

The farm's supporters, including the Sonoma County Farm Bureau, have called it a model of sustainable agriculture. Republican lawmakers and conservative groups have also weighed in on Lunny's side.

Wilderness advocates say the estero belongs to the public and commercial activity should be removed.

Amy Trainer, executive director of the Environmental Action Committee of West Marin, said she hopes the previous court rulings will be enforced.

“The fact is they have no lease and no permit to operate in Drakes Estero,” she said. “The public deserves its marine wilderness area.”

Peter Prows, a San Francisco attorney who is part of Lunny's legal team, said the appeals court could take a few months to decide on Lunny's latest request to stay in business.

If a rehearing is granted, it would “almost certainly” take a year or more to reach a decision, Prows said.

Lunny's attorneys have worked for free since he filed his first challenge to Salazar's decision in December.

(You can reach Staff Writer Guy Kovner at 521-5457 or guy.kovner@pressdemocrat.com.)

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