SAN FRANCISCO - Drakes Bay Oyster Co. operator Kevin Lunny and his opponents emerged optimistic Tuesday from a federal appeals court hearing with the fate of the Marin County oyster farm at sake.
"I believe this court is going to come to a decision that will allow us to continue," Lunny said in a sidewalk press conference following a 50-minute hearing before the 9th U.S. Circuit Court of Appeals.
"We feel comfortable that we're doing the right thing," Lunny said, referring to his family-owned operation that harvests $1.5 million worth of oysters a year from Drakes Estero in the Point Reyes National Seashore.
The environmental damages alleged by the farm's critics "don't exist," Lunny said.
Lunny acknowledged that his livelihood depends on the granting of a court order, known as an injunction, allowing him to do business pending a hearing on his lawsuit challenging former Interior Secretary Ken Salazar's shutdown order issued in November.
Legislation by California Sen. Dianne Feinstein granted Salazar sole discretion to extend the permit - issued in 1972 - for 10 years.
The seven-year-old controversy over the oyster farm in the 2,500-acre estero has divided neighbors in West Marin County and gained national attention, with advocates for greater commercial use of public lands jumping in on Lunny's side.
A decision in Lunny's favor could bolster their cause, a legal expert said previously.
The three appellate judges did not indicate when they would issue a ruling, but Lunny and others said it should come within two months.
If the appeals court grants Lunny an injunction, his case - alleging Salazar's decision was "arbitrary and capricious" - would be returned to the federal district court in Oakland.
If he cannot continue selling oysters, Lunny said the case is most likely moot.
Amy Trainer, executive director of the Environmental Action Committee of West Marin, which wants the oyster farm eliminated, expressed satisfaction with the hearing.
"I think the court realizes this is a public policy matter," she said. The estero "is owned by all of us - it belongs in wilderness."
"It is time for this (oyster farm) operation to go," Trainer said outside the courthouse.
Amber Abbasi, chief counsel for Cause of Action, a Washington, D.C.-based nonprofit, presented the oyster farm's case, while Department of Justice attorney J. David Gunter II represented Salazar.
Most of arguments and the judges' questions focused on legal details, primarily the interpretation of Feinstein's legislation and how it affects the requirement for environmental assessments of federal action.
Abbasi argued that Salazar made his decision "on the basis of flawed data," a reference to criticism of the scientific assessment of the oyster's farm's impact on the estero, where oysters have been farmed since the 1930s.
Gunter asserted that Salazar's decision was based on federal policy that holds that non-conforming uses "should be removed" from wilderness areas.
Lunny's business and its predecessor held a permit for 40 years and "got everything they wanted out of that use," Gunter said.
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