Oyster fans hold vigil as lawyers appeal

02/21/2013

After lawyers submitted what could be their most consequential arguments yet to an appeals court, supporters of Drake’s Bay Oyster Company prepared to gather Friday at an around-the-clock vigil for the embattled cannery and its 31
employees.

An eleventh-hour appeal to save the oyster farm rests on three judges agreeing that Secretary of the Interior Ken Salazar did not have unassailable discretion to deny Kevin Lunny’s request for a permit to continue his operations in Point Reyes National
Seashore.

Lawyers on both sides were scheduled to submit arguments and rebuttals to the United States Court of Appeals for the Ninth Circuit this week. Mr. Lunny has been asked by the National Park Service to unwind his offshore activities by next Thursday.

“I haven’t given up hope,” farm manager Ginny Cummings, a sister of Mr. Lunny, said on Wednesday. “I truly believe that the goodness of food production should prevail.”

Drake’s Bay employees, local businesses and residents who support the oyster farm will gather for 24 hours—from 6:45 p.m. Friday to 6:45 p.m. Saturday—at a latitudinarian vigil with “prayer, meditation, music, song and food” at Sacred Heart Church in Olema.

Organizer Jane Gyorgy said the vigil was intended “to pray for a reversal of the decision to close Drake’s Bay Oyster Company; save the jobs and livelihood of the workers.”

“Hopefully our prayers will reach the hearts and minds of the judges so they will grant an injunction,” Ms. Gyorgy said. She also said she was hoping for an executive order “or an act of Congress.”

“I just want everybody to feel welcome,” she added. “You don’t even have to have a belief in God to have an intent for social justice and common sense.”

Lawyers representing Mr. Lunny filed a brief last Tuesday saying that District Court Judge Yvonne Gonzales Rogers decided incorrectly that Mr. Lunny’s legal arguments would not prevail and that her court lacked jurisdiction to even hear those arguments in the first place.

“Unless this Court issues an injunction before February 28, 2013, DBOC’s oyster farm will be permanently destroyed,” the lawyers said. “This means the loss of a family-owned, environmentally-sustainable small business; thirty-one full-time jobs; and irreparable environmental harm.”

The lawyers said that the National Environmental Policy Act and Interior Department regulations granted court jurisdiction and that Mr. Salazar’s decision violated at least three federal laws.

The 31-page brief also argues that the congressional intent of Section 124, a 2009 appropriations bill amendment intended by Senator Dianne Feinstein to place Mr. Lunny’s lease extension on solid legal footing, allows judicial review and demonstrates the public interest in keeping the farm open.

Mr. Lunny’s lawyers also debated a conclusion by Judge Gonzales Rogers that Drake’s Bay’s “failure to conduct due diligence” after purchasing the property in 2004—and learning their permit was unlikely to be renewed—weighed against them. “But the purchase of the farm and [the National Park Service’s] expressions of intent to allow the existing permit to expire occurred prior to the game-changing enactment of Section 124, which was intended to (and should have) completely superseded any legal conclusions or positions based on the previous statutory backdrop,” the lawyers wrote. “It is undisputed that Section 124 authorized the Secretary to issue a new [permit] that would allow DBOC to continue operations until 2022 under the same terms as its original permit … For the district court to hold against DBOC a ‘refusal to hear the message’ from Defendants that no [permit] could issue, when that message had been explicitly overruled by Congress, is reversible error.”