Drakes Bay oyster farm fight headed for final chapter

The two-year legal battle over the future of Drakes Bay Oyster Co. appears headed for closure with U.S. Department of Interior attorneys seeking dismissal of a related case that a federal judge is virtually certain to grant.

Federal District Judge Yvonne Gonzalez Rogers invited the government to move for dismissal in September, when she slammed the door on a case brought by a coalition of Marin County interests, including the Tomales Bay Oyster Co. and several West Marin restaurants intent on extending Drakes Bay owner Kevin Lunny’s right to harvest oysters in the Point Reyes National Seashore.

The government’s request to dismiss the case, submitted last week, noted that Drakes Bay Oyster Co. had agreed to shut all operations at Drakes Estero by Dec. 31, according to a settlement agreement approved by Rogers in October.

“Plaintiffs’ claims are not redressable by the Court and are moot,” the brief said.

Wyn Hornbuckle, a Department of Justice spokesman, said in an email that the government would not comment on the case.

The coalition of farmers, food makers and restaurant owners stepped into the case in July, about two weeks after the U.S. Supreme Court terminated Lunny’s legal challenge to former Interior Secretary Ken Salazar’s decision in November 2012 not to renew a 40-year-old oyster harvest permit in the estero’s federally protected waters.

Rogers, who made the first of three federal court rulings against Lunny, bluntly rejected the coalition’s claim that putting Lunny out of business would deal an economic blow to West Marin. Immediately after hearing arguments in her Oakland courtroom, Rogers faulted the case for a “complete lack of merit.”

She told the group’s attorney, Stuart Gross of San Francisco, she had considered issuing sanctions for bringing a frivolous lawsuit.

Gross said in an email Wednesday that he was leaving for Hong Kong and could not comment.

The government’s motion said that the West Marin coalition members “purport to seek relief on behalf of a third party which no longer seeks that relief for itself” and are unable to harvest shellfish from Drakes Estero themselves.

Lunny, whose family-owned company collected $1.5 million worth of oysters a year from the estero, halted retail sales there in July and, after agreeing to the complete shutdown, announced plans to open a seafood restaurant in Inverness and continue distributing oysters raised elsewhere.

A hearing on the government’s motion to dismiss the Marin coalition’s case is scheduled for Feb. 10 in Rogers’ courtroom.

Should the coalition appeal an unfavorable ruling from Rogers, the 9th U.S. Circuit Court of Appeals would be obliged to consider it, said Heather Bussing, an Occidental attorney and Empire College of Law instructor. But the chances of success are negligible, she said.

“One of the things you have to have to get a ruling from the court is a live controversy,” Bussing said. “This case is dead in the water.”

Bussing said the coalition lacks the basis for intervening on Lunny’s behalf, likening it to a tenant suing a landlord over the eviction of another tenant from the same building.

You can reach Staff Writer Guy Kovner at 521-5457 or guy.kovner@pressdemocrat.com. On Twitter ?@guykovner.