Two former California lawmakers who helped establish Point Reyes National Seashore have filed a federal court brief supporting a commercial oyster farm's right to continue harvesting shellfish in the park's protected waters.
William Bagley, a former Marin County assemblyman, and Pete McCloskey, a former Bay Area congressman, filed a 26-page brief this week supporting Drakes Bay Oyster Company's bid for a rehearing by the 9th Circuit U.S. Court of Appeals, which rejected the company's case in September.
Their "friend of the court" brief challenged the legality of former Interior Secretary Ken Salazar's decision nearly a year ago not to renew oyster farmer Kevin Lunny's permit to raise oysters in Drakes Estero, a 2,500-acre Pacific Ocean estuary.
The brief, backed by 11 other parties including the Sonoma County Farm Bureau, also asserted that even without a federal permit for use of the estero shoreline, Lunny could continue oyster cultivation under a state lease of the estero "water bottoms."
Lunny, who plants and harvests $1.5 million worth of oysters a year from the estero, said he agreed with the brief's "legal analysis" but hasn't evaluated the prospect of working without a land base.
"We're still focused on getting the onshore permit," he said. "If it gets denied, we have to look at those other options."
Lunny's own lawyers last week asked the 9th Circuit to reconsider the 2-1 ruling that supported a government shutdown order based on Salazar's action last November.
The appeals court could take a few months to decide whether to submit Lunny's case to an 11-judge panel.
Bagley and McCloskey weighed in on the oyster company controversy in a 2011 letter to Salazar asserting that the Point Reyes seashore, created in 1962, was intended "to retain an oyster farm and California's only oyster cannery in the Drakes Estero."
Bagley authored the 1965 state bill that transferred the Point Reyes tidelands to the National Park Service, and McCloskey secured $35 million from the Nixon administration for the 1972 purchase of the ranch lands surrounding the estero.
Their letter noted that former Rep. John Burton and former Sen. John Tunney, testifying on a 1976 wilderness designation bill for Drakes Estero, said the oyster farm was to continue as a "non-conforming use."
McCloskey, who lives on a ranch in Rumsey, Yolo County, blamed park service bureaucrats for the change in direction regarding the estero.
"I'm pissed off," he said in a telephone interview. "I'm 86 years old and I wish I was young enough to get back into this fight."
McCloskey, a co-founder of the first Earth Day, received the Sierra Club's first "environmental hero" award in 2010.
The brief, written by San Francisco attorney Judith Teichman, asserted that Salazar's decision was "ultra vires," meaning beyond the power, by interfering with the state's leases and Lunny's rights under the leases.
A previous "friend of the court" brief, submitted in April by four environmental groups, rejected the argument that California could continue to lease the estero water bottoms for aquaculture without a federal permit for use of the shoreline property.
[END_CREDIT_0]You can reach Staff Writer Guy Kovner at 521-5457 or guy.kovner@pressdemocrat.com.
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