Drakes Bay asks to correct record

08/01/2013

Phyllis Faber and Drakes Bay Oyster Company filed a motion on Monday requesting that a Marin County judge reconsider a ruling, which they say is based on false information, that allows the California Coastal Commission to enforce a portion of an order that they also argue should be subject to environmental review. Judge Lynn Duryee ruled on July 11 that although litigation regarding the oyster farm and the commission must pause until the federal case between the oyster company and the Department of the Interior has been resolved, the commission could enforce a portion of a cease and desist order issued earlier this year. Section 5 of those orders require that the farm remove cultivated Manila clams and an invasive tunicate from the estero, among other things. Lawyers for Ms. Faber and the farm argue that they were unable to respond to what they call false statements made by commission lawyers that led to Judge Duryee’s ruling because they were prepared to argue whether or not a stay on the case should be granted, not on the merits of the case itself. Either the ruling on Section 5 should be reversed, they say, or a hearing on its merits should be held. Commission lawyers made claims the farm was exceeding allowable production levels, disposing of trash or debris in the estero, potentially violating harbor seal protections and harming the estero’s ecosystem. Drakes Bay lawyers also assert that enforcing Section 5 violates state environmental law because the potential environmental harms of the orders should be subject to review before enforcement, and that allowing enforcement rules against the petitioners without hearing their arguments. “Once the tasks demanded by Section 5 occur, they cannot be undone if a different decision is reached on the merits,” the motion says.