Last week a coalition of restaurants and Drakes Bay Oyster Company supporters who filed a lawsuit against both the Department of the Interior and an office of the National Oceanic and Atmospheric Administration rescinded their request for an emergency injunction and restraining order to prevent the farm’s closure after the federal government said it would give a 30-day notice before asking the farm to cease harvesting. (Retail sales and cannery operations will still cease today, July 31.)
Though the plaintiffs plan to refile for the injunction today, in their quest to ensure the farm remains open for the entirety of their lawsuit, the 30-day notice itself gives them some relief, according to their lawyer, Stuart Gross. “The farm can operate. It gives some security to people. We know, and the plaintiffs know, that the harvesting of oysters will still continue in the estero and the appropriate facilities will be available…as long as that notice is not issued,” he said.
According to oyster farm owner Kevin Lunny, who is not part of the current suit, the allowance for harvesting and wholesaling means that about half of his 25 or so employees will be able to continue to work in their current jobs; the farm, he said, is working to find roles for the others so they will not have to be laid off.
In the lawsuit, the plaintiffs allege that then-Interior Secretary Ken Salazar did not follow proper procedures in November 2012 when he failed to consult with a coordinating group established by the National Aquaculture Act; analyze the decision’s consistency with the state’s Coastal Act, which the lawsuit says supports the continuation of agriculture in the Coastal Zone unless it is infeasible; or consider the decision’s effect on California’s publicly entrusted right to fish.
The plaintiffs also allege that N.O.A.A.’s Office of Ocean and Coastal Resource Management improperly determined the farm could have effects on coastal resources. Because that office is charged with ensuring that federal actions are consistent with state coastal plans, it therefore asked the farm to submit a “consistency certification” to the California Coastal Commission in 2010, after the farm requested a federal use permit, to determine if the farm’s activities were in line with the state’s Coastal Act. The plaintiffs argue that only the cessation of the farm, not its continuation, would have effects.