Drake’s Bay to stay open until court hears appeal

David Briggs
Oyster farm employee Scott Yancy celebrated the decision on Monday by the Ninth Circuit Court of Appeals to allow farm owner Kevin Lunny to continue operating in Drakes Estero until May, when that court will hear Mr. Lunny’s request for an injunction.
02/28/2013

Drake’s Bay Oyster Company will live to fight another day. An appellate court on Monday ordered the Obama administration to allow oyster farming to continue in Drakes Estero just days before a government deadline would have forced the cannery to shut down. The U.S. Court of Appeals for the Ninth Circuit said it granted oysterman Kevin Lunny’s eleventh-hour request for the order “because there are serious legal questions and the balance of hardships tips sharply in [Mr. Lunny’s] favor,” according to a three-judge panel’s decision.

The emergency injunction is a crucial, though not decisive, last-resort victory for Mr. Lunny and his allies. It allows the cannery’s offshore operations to continue in Point Reyes National Seashore for at least three months while a lawsuit proceeds against Secretary of the Interior Ken Salazar, who let Mr. Lunny’s lease expire last November, and National Park Service Director Jon Jarvis. The government had ordered Mr. Lunny to unwind his offshore operations by today.

“We are beyond thrilled that our business will now remain open while we continue to fight the decisions from the court and Secretary Salazar that have put our business at risk,” Mr. Lunny said in a statement. “Our fight has always been about more than just our business. Our fight is, and will continue to be, about the great service Drake’s Bay Oyster Farm provides to the community as an innovative sustainable farm, an educational resource, and part of the economic fiber of Marin County.”

Earlier this month U.S. District Judge Yvonne Gonzalez Rogers ruled against Mr. Lunny, writing that even though closing Drake’s Bay was likely to cause “irreparable harm,” the claim that Mr. Salazar’s decision was illegal was unlikely to succeed in court. Mr. Lunny said that he will be put out of business—regardless of the outcome of the lawsuit—if he is forced to vacate Drakes Estero and destroy at least 19 million shellfish, worth an estimated $9.5 million, growing in the estuary.

Monday’s ruling showed that the appellate court agreed that the legal issues were compelling enough—and the harm done to Mr. Lunny so persuasive—to warrant an order allowing continued oyster harvesting and sale, in defiance of Mr. Salazar’s order, until the appeal is heard the week of May 13 in San Francisco.

Mr. Lunny’s lawyers believe the judges will issue another injunction because the legal standard they will consider is the same as the standard they considered this week. If another injunction is ordered, operations could continue as the lawsuit progresses.

The Interior Department has declined to comment on the lawsuit.

Neal Desai, Pacific region associate director of the National Parks Conservation Association, said he expected Monday’s ruling would only delay a legal outcome that protects the wilderness. “The Ninth Circuit Court’s decision today unfortunately delays by two months the ability for Americans to enjoy their national park wilderness,” he said in a statement.

The debate that has raged over Drake’s Bay’s prospective lease renewal since Mr. Lunny’s 2004 purchase of the decades-old oyster farm vexed scientists and environmental activists on opposite ends of the issue and convulsed a community torn between two of its hallmark pastoral values: local agriculture and untrammeled nature. Some environmental groups said that oyster farming is deleterious to the sensitive marine habitat and asked that the estuary be restored to wilderness. Mr. Lunny’s supporters—a strange-bedfellows coalition that includes West Marin residents, scientists, California Democratic Senator Dianne Feinstein and politically conservative groups—fought those claims and said the business was a boon to the local economy, the farm’s 31 employees and seafood consumers.

Mr. Salazar largely sidestepped the thorny environmental debate, justifying his decision in November to restore Drakes Estero to wilderness on the basis of “matters of law and policy” that he said favor wilderness. Mr. Lunny’s lawyers believe that decision violated multiple federal laws and the public interest in continued mariculture.

The Ninth Circuit decision came as a relief to many community members who were bracing for the loss of a local institution, and to Drake’s Bay employees, who were scrambling to find new work. Park service officials have promised relocation assistance to workers who live onsite and would be displaced by a potential closure, and West Marin Community Services established a fund to provide aid, such as training and job counseling, that may be requested by the workers.

“There are not many jobs,” said employee Leticia Martinez, who said she would turn to part-time housecleaning work if the oyster farm were to go out of business. “I have worked there a long time. I worked there a lot since 1982, and I like the job a lot. I like how the bosses and coworkers treat us.” Ms. Martinez and her husband, Jesus, were among at least 25 people who gathered to support the injunction late Friday night at a somber, bilingual vigil at Sacred Heart Church in Olema.