Drakes Bay Oyster Co. can stay in business for at least 90 days and possibly for a year-and-a-half pending the outcome of its appeal to the U.S. Supreme Court, an attorney for the firm said Tuesday.
The controversial oyster farm in Point Reyes National Seashore has 90 days to file an appeal with the high court, giving it a mid-April deadline, attorney Peter Prows said.
Kevin Lunny, who runs the family-owned farm that harvests $1.5 million worth of oysters a year from Drakes Estero, opted for the appeal two weeks ago after losing for the third time in the federal courts.
The same three 9th Circuit Court of Appeals judges who twice ruled 2-1 against Lunny were unanimous in allowing him to stay in business while he pursues a judgment from the nation's highest court.
The court can either reject his appeal or agree to hear it during its next term, which runs from October 2014 to June 2015.
Prows said he did not know when the court will make a decision on the case that made waves locally for years before gaining national attention as a test of whether commercial activity is compatible with wilderness preservation.
Lunny initially filed a federal lawsuit in December 2012 challenging former Interior Secretary Ken Salazar's decision not to renew an expiring permit granted 40 years ago to the oyster farm's previous owner.
Federal judges have thrice rebuffed Lunny's claim that the secretary's action was arbitrary and capricious, but they have sustained his right to stay in business as the appeals run their course.
The latest ruling, filed Monday, was a one-page decision granting Lunny the 90-day extension with no discussion.
To reach that decision, the three judges had to find there is a "reasonable probability" that the high court would hear the case, Prows said.