Drakes Bay will appeal to Supreme Court

01/16/2014

Drakes Bay Oyster Company will appeal to the United States Supreme Court a decision on Tuesday by the Ninth Circuit Court, which denied a request for a rehearing. The appeal to the nation’s highest court comes after a years-long debate between a historic shellfish farm that produces over a quarter of California’s oysters and a federal government that says the company must vacate the marine wilderness.

The petition for en banc hearing—which would have allowed the farm to make its case for staying open long enough to wage a lawsuit filed against the Interior Department and National Park Service—did not even achieve a vote by Ninth Circuit Appeals Court judges. The decision was issued in a brusque few sentences, saying no judge requested to rehear the matter en banc.

Drakes Bay lawyer Peter Prows said the decision to appeal to the Supreme Court was not taken lightly. “We still think we’re right and that the majority got it wrong, and that this is a very important case. Not just for the oyster farm, but for the ranchers and others who finds themselves in that position, whether they’re seeking a permit or any kind of authorization from the government,” he said. 

The farm’s legal team has three months to file the appeal.

In September, a three-judge panel of the Ninth Circuit voted 2-1 to deny Drakes Bay an emergency injunction so that it could continue operating as it fought a November 2012 decision by then-Secretary of the Interior Ken Salazar to close the farm in Drakes Estero, where oysters have been harvested commercially since the 1930’s. 

In October the farm asked the court to assemble a larger panel to review the 2-1 ruling; it was that request which was denied this week. 

The debate over the future of Drakes Bay Oyster Company has attracted widespread attention, raising questions about the ecological benefits and cultural value of the farm, as well as what is permissible in a designated wilderness area. In West Marin, a proliferation of Save Our Drakes Bay Oyster Farm signs—as well as brochures, T-shirts and occasional acts of vandalism—speak to the passions the debate arouses in locals who appreciate Drakes Estero’s pristine beauty and edible fecundity.

Drakes Bay has claimed the park has an irrational vendetta against the company, and many—including Mr. Prows, who co-authored an opinion piece in last week’s Light—think the closure of the farm would spell the beginning of the end of agriculture in Point Reyes National Seashore. 

Spokespeople for the seashore have said they support continued ranching, and are pursuing a new ranch and dairy management plan that would offer longer leases and an easier path to diversified food production.

Besides arguments over the best use of one of the seashore’s most prized resources, the case also raises a number of legal questions: To what degree can a court review a discretionary decision by cabinet-level officials? Do such discretionary decisions fall under the mandate of the National Environmental Policy Act? 

Mr. Prows said he was hopeful the Supreme Court would take the case: he believes judges will be interested in weighing in several issues, such as the parameters of the jurisdiction of federal courts.

And even if the court rejects the appeal, Mr. Prows said the farm can still return to the district court to pursue the original lawsuit. For now, oyster farm owner Kevin Lunny said, the farm is open for business, and hopeful it will remain open throughout the appeal.