Judges grill both sides of the oyster

David Briggs
Kevin and Nancy Lunny (center) with Amber Abbasi (right) after Tuesday’s hearing.
05/16/2013

Lawyers faced rounds of tough questioning from appellate court judges on Tuesday as the battle between the federal government and oysterman Kevin Lunny reached a decisive moment in which a court will decide if farming can continue while litigation continues.

An emotionally pitched battle for the future of Drakes Estero has turned almost completely to the legal arena, with lawsuits pending in several courts contesting overlapping legal issues that one judge who heard the case on

Tuesday said were analogous to a Rubik’s cube or Russian matryoshka dolls. “Everything seems to be wrapped up inside each other,” Ms. Margaret McKeown said.

Ms. McKeown and Paul J. Watford, who sit on the U.S. Court of Appeals for the Ninth Circuit, joined by Algenon L. Marbley, a district court judge from Ohio, peppered lawyers in front of West Marin residents and advocates from around the nation. At the end of the hearing the over-capacity audience spilled out on to the streets and exchanged impressions of the argument, and both sides expressed guarded optimism about the court ultimately favoring their case.

“We’re confident that the courts have jurisdiction and that they’re going to correct this mistake,” Mr. Lunny said. “We didn’t know that we’d ever have to go through a political battle, not only to protect our way of life but to protect sustainable agriculture in West Marin from government abuse and misuse of science driving some sort of agenda for a human-less landscape that we think is going to benefit very few people.”

Wilderness advocates read judges differently. “The court rightly understands that this is a public policy matter,” Amy Trainer of the Environmental Action Committee of West Marin said, paraphrasing a remark Mr. Watford made during the hearing, in an interview. “They asked great questions.”

Mr. Lunny was represented by Amber Abbasi of the advocacy group Cause of Action and the government by Department of Justice lawyer David Gunter. Both lawyers faced skeptical questions from judges, who probed a decision last year by then-Secretary of the Interior Ken Salazar to deny Mr. Lunny a permit. The government said that decision was in the best interest of wilderness and the public good. Mr. Lunny’s lawyers said the decision was made illegally.

“What [the Lunnys] were entitled to was a decision about whether a permit would be granted in 2012 on the basis of facts and science,” Ms. Abbasi said in court. “That is not what they got. They got an arbitrary decision.”

The government says that Congress in 2009 gave Mr. Salazar complete discretion to decide whether to allow or end oyster farming “notwithstanding” other laws and that his decision was made on the basis of law and public interest. But Mr. Lunny’s lawyers say that 2009 legislation, Section 124 of an appropriations bill designed by California Democratic Senator Dianne Feinstein to help Drakes Bay, was “asymmetrical”: it only gave Mr. Salazar free reign to grant the permit, not to deny it. When Mr. Salazar denied the permit, those lawyers argue, he violated laws that require a proper environmental review.

In February a lower court judge denied Mr. Lunny’s request to continue his operations on the basis that the court lacked jurisdiction and that Mr. Lunny would not prevail in his lawsuit against the National Park Service and the Department of the Interior even if it did. The appellate court decided to delay Mr. Lunny’s eviction while it reviews that lower-court ruling.

On Tuesday judges asked Ms. Abbasi a series of questions about the meaning of several federal laws, including whether the National Environmental Policy Act, which requires environmental review of government actions, applied to Mr. Salazar in this case.

Part of that question hinges on whether Mr. Salazar’s denying the permit is interpreted as government action, and whether Section 124 removed requirements that Mr. Salazar adhere to an environmental review process.

While making his argument for the government Mr. Gunter faced a set of questions from Mr. Watford, who said that part of the government’s argument gave him “pause.” Mr. Watford said he found “somewhat persuasive” Mr. Lunny’s lawyer’s argument that Section 124 gave Mr. Salazar full leeway to “take the thumb off the scale” and consider bypassing any prior congressional intent to return Drakes Estero to wilderness. “I can’t reconcile that with the Secretary’s decision,” Mr. Watford said, pointing to a part in the Nov. 29 decision, in which Mr. Salazar said he “gave great weight” to past congressional intent to support wilderness, particularly the 1976 Wilderness Act, a law that declared parts of Drakes Estero as “potential wilderness.”

“I think you may be over-reading what the Secretary said there,” Mr. Gunter responded. Mr. Gunter said that Mr. Salazar took into account a public interest in wilderness that came not just from congressional intent in 1976 but also from a raft of park service policies and federal and state laws favoring wilderness. (Drakes Bay advocates point to other signatures of legislative intent that indicate a desire to allow continued oyster harvesting.)

“I think the Secretary looked at the decision before him and said, ‘Congress has cleared away legal concerns that I must respect, so what is the best use of the park,’” Mr. Gunter said. “‘What is the best experience not just for the 50,000 visitors a year that visit [Drakes Bay Oyster Company], but the two million visitors a year that visit Point Reyes National Seashore and how do I give them the best visitors’ experience I can, which after all as the Secretary of the Interior is my mission.’ It’s what Congress had asked him to do and wilderness is necessarily an important value.”

Tuesday’s hearing drew more than a hundred advocates on both sides of the issue, many of whom were seated in “overflow” rooms. Wilderness advocates showed up in the early morning hours on the gritty streets outside of the James R. Browning United States Court of Appeals Building in the Mid Market area of San Francisco. Later a group of Drake’s Bay devotees, including eight employees, alighted from a large bus. Both groups held signs or wore stickers, but guards forced those to be abandoned on entering the ornate Beaux Arts courthouse.

Mr. Lunny, in a suit and tie with his silver hair trimmed, and his wife, Nancy, and sister, Ginny, were joined by a small group of supporters in the front row of the small courtroom gallery of carved marble and stained glass, including longtime Lunny consultant David Weiman as well as Donna Yamagata and Michael Greenberg of the Alliance for Local Sustainable Agriculture. They watched the hearing intently, breaking their gazes to laugh once when the Department of Justice lawyer was stung by a critical remark by Mr. Watford.

Just two rows behind them, on a crowded bench, sat Ms. Trainer, who took copious notes on a yellow legal pad, beside other environmental advocates.

It is unclear when the court will issue a ruling.