Drakes Bay Oyster Co. plans appeal after latest court defeat

A federal appeals court in San Francisco on Tuesday denied Drakes Bay Oyster Company's bid for a rehearing in the year-old case pitting the family-owned farm in Point Reyes National Seashore against the federal government.

The split ruling by three judges from the 9th Circuit U.S. Court of Appeals marked the third time that federal courts have rejected oyster farm operator Kevin Lunny's bid to continue harvesting $1.5 million worth of oysters a year from Drakes Estero, a federally protected 2,500-acre estuary.

But the controversy that roiled Marin County politics for years before gaining national attention as a test of preservation versus profit-making activity on federal lands is not over.

Lunny said he will will seek a hearing by the U.S. Supreme Court, the ultimate step in the judicial system.

"We remain committed to succeeding in our fight to remain open and serve our community," he said in a news release issued Tuesday evening.

The high court hears about 1 percent of the 10,000 cases it receives each year, said Heather Bussing, an Occidental attorney and Empire College of Law instructor.

Given those odds, Lunny might fare better by seeking congressional approval of a new permit, she said.

Wilderness advocates hailed the ruling, noting that it comes at the beginning of 2014, the 50th anniversary of the Wilderness Act approved by Congress in 1964.

"This is a great decision," said Amy Trainer, executive director of the Environmental Action Committee of West Marin, based in Point Reyes Station.

Renowned oceanographer and explorer Sylvia Earle of Oakland said the decision was "good news for upholding the law, for returning public waters to the public and for California's coastal wildlife to have a permanent safe haven."

In reaching Tuesday's decision, appeals court Judge M. Margaret McKeown voted to deny Lunny's request for a rehearing of the case before a panel of 11 judges and Judge Algenon Marbley agreed.

Judge Paul J. Watford voted to grant the rehearing.

In September, the three judges voted the same way in a 2-1 decision rebuffing Lunny's case and upholding a federal district judge's initial decision in February.

None of the 9th Circuit's 28 judges requested a vote on the oyster farm's bid for reconsideration, Tuesday's order said.

"No further petitions for en banc or panel rehearing shall be permitted," the order said.

Lunny's lawsuit challenges former Interior Secretary Ken Salazar's decision in November 2012 not to renew an expiring federal permit granted 40 years ago to the oyster farm's previous owner.

In Tuesday's 51-page ruling, McKeown said the appeal "pits an oyster farm, oyster lovers and well-known 'foodies' against environmentalists aligned with the federal government," adding the case "has generated considerable attention in the San Francisco Bay area."

Berkeley restaurateur Alice Waters, former lawmakers and the Sonoma County Farm Bureau are among the parties that filed briefs in support of Lunny's case.

Wilderness advocates argued that the estero belongs to the public and commercial operations should be removed.

Johanna Wald, a Natural Resources Defense Council attorney, said Tuesday the "preservation of Drakes Estero will be enjoyed by millions of Californians and visitors to wilderness and parks for generations to come."

In all three decisions, the federal judges held that Salazar had the authority to let Lunny's permit lapse and that the courts lacked authority "to second-guess the secretary," said Bussing, an attorney who is not involved in the case.

The 9th Circuit's latest decision is "an indication that they did not think it was worth their time" to rehear the case, she said.

Several teams of lawyers, all working for free, have handled the oyster farm's case.

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