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.
Granting the extension is not an indication of whether Drakes Bay will ultimately prevail, but "simply an indication that it makes sense to keep everything as is until the case is finally decided," said Heather Bussing, an Occidental attorney and Empire College of Law instructor.
In the wake of Salazar's decision, the National Park Service ordered Lunny to shutter the business that harvests 8 million oysters a year from the 2,500-acre federally protected estero.
The Supreme Court hears about 1 percent of the 10,000 cases it receives each year, but Prows said the oyster farm has a much better chance at gaining review.
Attorneys from two San Francisco law firms and one San Diego firm are representing Lunny, all without compensation, Prows said.
Arguing a case before the Supreme Court is a "once in a lifetime" opportunity for most attorneys, Bussing said.
The U.S. Solicitor General's Office will respond to Lunny's request for high court review and handle the case if it goes to a hearing.
You can reach Staff Writer Guy Kovner at 521-5457 or firstname.lastname@example.org.