An embattled oyster farm in the Point Reyes National Seashore is a legitimate exception to the Wilderness Act, a San Rafael attorney asserted.
"Savoring a Drakes Estero oyster is a wilderness experience," concluded the federal court brief filed by James Linford, representing a nonprofit group that supports an historic cabin in the Eldorado National Forest.
For ranchers grazing on 8 million acres of federally owned land in California, the oyster company's case raises "a question of exceptional importance," said lawyers for the Pacific Legal Foundation, a nonprofit advocacy group that favors "limited government" and "a balanced approach to environmental regulation."
Jorge Mata and Isela Meza, employees at Drakes Bay Oyster Company represented by a Legal Aid of Marin lawyer, said that closing the farm would be "devastating" to about 30 workers and their families.
The diverse arguments come from eight "friend of the court" briefs filed in the last three weeks in support of oyster company owner Kevin Lunny's request for a rehearing by the 9th Circuit U.S. Court of Appeals in San Francisco.
The briefs, totalling 150 pages, are intended to convince the appeals court to reconsider its 2-1 decision in September rejecting Lunny's bid to continue harvesting oysters from the 2,500-acre estero in Marin County's Point Reyes Peninsula.
A majority of the 9th Circuit's 28 judges must vote to accept a case for rehearing by a panel of 11 judges, which Lunny requested in mid-October.
If the court is so inclined, it will ask the Interior Department to submit a response, likely within 45 days, said Peter Prows, a San Francisco attorney who is one of the lawyers providing Lunny with free legal services.
The eight briefs, technically known as amicus briefs, were filed by people "who came to us asking how they could help," Prows said.
It could take months for the court to decide on Lunny's request, he said, noting that no decision has been made on similar requests made in April and June.
The 9th Circuit received 12,684 appeals in the last fiscal year, more than half related to immigration matters, and settles cases in a median time of 15.3 months.
Lunny is fighting former Interior Secretary Ken Salazar's decision a year ago not to renew the oyster farm's 40-year permit, contending the action was "arbitrary, capricious and an abuse of discretion."
His company harvests $1.5 million worth of oysters from the estero, a Pacific Ocean estuary where shellfish have been raised since the 1930s.
Wilderness advocates maintain that "a deal is a deal," asserting that Lunny knew when he purchased the farm in 2005 that the federal permit would expire in 2012.
Friend of the court briefs are "not at all uncommon" in the appeals court's civil cases, said David Madden, spokesman for the 9th Circuit.
Civil cases typically involve "some sort of political or public interest," said Heather Bussing, an Occidental attorney and Empire College of Law instructor.
The appellate judges are not obliged to read the briefs but usually do so, or at least receive a synopsis from their assistants, she said.
"This is absolutely a case where reasonably minds could differ," Bussing said, regarding the oyster company case.
The other briefs were filed by:
; Corey Goodman, a former Stanford and UC Berkeley biology professor, asserting that oysters filter and clean estero waters and accusing the National Park Service of "scientific misconduct" in assessing the oyster farm's impact.
; Laura Watt, a Sonoma State University associate professor of environmental studies and planning, contending that the seashore was established with "the explicit intention" to protect agriculture and aquaculture rather than to "erode or remove it."
; Sarah Rolph, a Massachusetts freelance writer working on a book about Lunny's legal battle, asserting that form letters circulated by four "activist organizations" accounted for about 90 percent of the 52,473 public comments submitted to the park service for the environmental impact report.
; The Pacific Coast Shellfish Growers Association, asserting that oysters are a "healthy, sustainable, and 'green' food source" and that closing Lunny's farm would have an negative impact on California's $25 million commercial shellfish industry.
; Former Rep. Pete McCloskey and former Marin Assemblyman William Bagley, contending that creation of the Point Reyes seashore in 1962 was intended to preserve the oyster farm and that Salazar lacked the authority to halt Lunny's operation under a state lease of the estero's water bottoms.
No amicus briefs have been filed in support of the government's case.
Amy Trainer, executive director of the Environmental Action Committee of West Marin, said if the court asks the Interior Department to file a brief on the rehearing, her organization will decide whether to support it.
(You can reach Staff Writer Guy Kovner at 521-5457 or guy.kovner@pressdemocrat.com.)
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