Court battle over Drakes Bay oyster farm set to resume

Drakes Bay Oyster Co.’s legal battle with the federal government is scheduled to begin round two Tuesday in the same Oakland courtroom where it began nearly two years ago.

Oysterman Kevin Lunny’s bid to continue harvesting bivalves from federally protected waters in the Point Reyes National Seashore came to an end June 30, when the U.S. Supreme Court declined to consider his case, which had been rejected three times by federal judges in California.

Lunny closed up his retail oyster sales shack and canning operation at the edge of Drakes Estero a month later, and his lawyers are negotiating a timetable with Department of Interior attorneys for ending harvest operations and clearing millions of mollusks from the cold, clear waters of the 2,500-acre Pacific Ocean estuary.

But Lunny’s challenge to the legality of former Interior Secretary Ken Salazar’s decision in November 2012 not to renew a 40-year-old oyster harvest permit was picked up on July 17 by a coalition of local farmers, foodmakers and restaurant owners, including a competitor, Tomales Bay Oyster Co. They assert the loss of Lunny’s enterprise would deal west Marin County an economic blow.

Federal District Judge Yvonne Gonzalez Rogers will hear arguments Tuesday from lawyers for the new plaintiffs and the Interior Department, who have submitted briefs that dispute, among other issues, whether the coalition’s lawsuit should have been filed long ago and whether the parties will actually suffer “irreparable harm” if Lunny’s business is terminated.

Lunny, who was born and raised on a cattle ranch next to the estero, bought the oyster business in 2005 knowing the lease was set to expire. His family harvests $1.5 million worth of oysters a year from the estuary, where the bivalves have been planted and raised since the 1930s.

Lawyers donated their services to Lunny’s legal battle, which gained national attention as a fight to preserve an organic, sustainable food provider from the National Park Service’s determination - backed by wilderness advocates - to remove the lone commercial operation from the publicly owned estero, home to extensive eelgrass beds and a harbor seal colony.

Legal experts said a ruling in Lunny’s favor would be valuable to proponents of for-profit use of federal lands, such as ranching, timber and mining interests.

Judge Rogers rejected Lunny’s case in February 2013, ruling she lacked jurisdiction to review Salazar’s decision and that even if she did, Lunny’s arguments were unlikely to prevail. In a judicial order released Friday, Rogers advised attorneys that arguments at the hearing will revolve around whether the plaintiffs in the case have legal standing to sue.

Judges with the 9th U.S. Circuit Court of Appeals twice upheld her decision before the Supreme Court declined to take the case.

The actual challenge to Salazar’s decision has never been tested, as the legal fight has focused from the start on Lunny’s request for a preliminary injunction, a court order allowing him to continue doing business pending a resolution of his case.

Government lawyers, in their latest filing, said that Tomales Bay Oyster Co.’s case is “identical to the relief unsuccessfully sought” by Lunny, noting that the 9th Circuit has “viewed similar attempts to conduct serial litigation as an abuse of the judicial process.”

The harms alleged by the Tomales Bay plaintiffs, largely businesses that purchase oysters from Drakes Bay, “are economic in nature and do not support” the need for legal relief, the government said. The brief also asserted that the long delay in seeking relief “implies a lack of urgency and irreparable harm.”

In response, the plaintiffs’ attorney, Stuart Gross of San Francisco, said the suit was not tardy because the alleged harms were “not imminent” until the Supreme Court rejected Lunny’s appeal. The decision to wait until that point “reflected a laudable desire to conserve judicial resources,” Gross said.

He also disputed the government’s assertion that Tomales Bay had planted more oysters in 2013 in anticipation of Drakes Bay’s closure, saying those oysters would not be harvested until 2015 nor would the crop match Tomales Bay’s sales in 2013 and 2014.

The Environmental Action Committee of West Marin, which wants Lunny’s business removed from the estero, submitted a friend of the court brief asserting that Tomales Bay Oyster Co.’s case, submitted “at the eleventh hour,” was a “rehash (of) the same arguments” rejected by the courts “while utterly ignoring the environmental harms” done by continued operation of the oyster farm.

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