Environmental groups urge federal court to deny Drakes Bay Oyster Company's case

A commercial oyster farm that operates motorboats six days a week has no place in an area designated by Congress as potential wilderness, four environmental groups said in the latest federal court brief filed in the Drakes Bay Oyster Company case.

Citing the company's use of 95 wooden racks that cover seven acres of Drakes Estero, motorboat use and the planting of "millions of non-native oysters and clams," the 22-page brief urged the 9th Circuit U.S. Court of Appeals in San Francisco to deny a rehearing of the long-running case.

"It is beyond question that these structures and commercial activities are incompatible with wilderness status," said the brief filed by the Environmental Action Committee of West Marin, Save Our Seashore and two national organizations.

The filing, known as a "friend of the court" brief, opposes oyster company owner Kevin Lunny's bid for a second appellate court hearing before 11 judges.

Lunny's company sells $1.5 million a year of oysters harvested from the 2,500-acre estero in the federally protected Point Reyes National Seashore.

A federal district court judge and a panel of three 9th Circuit judges have rejected the oyster company's case, which challenges former Interior Secretary Ken Salazar's year-ago decision not to renew the company's permit, initially granted in 1972.

Eight friend of the court briefs have been filed on behalf of Lunny, whose case against the federal government has been handled for free by several teams of lawyers.

Congress defined wilderness as land that retains "its primeval character," expressly prohibiting "use of motor vehicles, motorized equipment or motorboats," the environmentalists' brief said.

"Our brief supports the straightforward concept that the company's lease expired on its own terms, as planned, and all Americans should be able to enjoy a protected National Park wilderness," said Neal Desai, associate director of the Pacific Region for the National Parks Conservation Association.

A majority of the 9th Circuit's 28 judges must agree to rehear the case, and the court is under no deadline to make such a decision.

If the rehearing is denied, Lunny's case would likely to be appealed to the U.S. Supreme Court, one of his attorneys has said.