Supreme Court rejects plea from oyster farm

07/03/2014

On Monday morning the United States Supreme Court rejected a plea from Drakes Bay Oyster Company to hear its case for remaining in operation while it battles the Interior Department’s decision not to renew its lease, almost certainly ending over 80 years of commercial oyster operations and eliminating a quarter of California’s oyster supply. 

The Supreme Court decision, made without comment by the justices, leaves standing a lower court ruling siding with the federal government. Though the courts have allowed Drakes Bay to remain open during the appeals process, the Ninth Circuit said that allowance would end once the Supreme Court determined whether it would hear the request for injunction. 

The denial came just days after the farm received a favorable ruling in its suit against the California Coastal Commission: a Marin Superior Court judge last week said the commission violated state environmental law when it issued certain orders without first completing an environmental impact report.

Kevin Lunny, a third generation Marin rancher, purchased the remainder of the oyster farm’s 40-year reservation of use and occupancy in 2005. In the ensuing years, while Mr. Lunny invested in cleanup and expanded a business that would gain wide recognition for its sustainability, the park service began making a case for the farm’s closure. Ultimately the park published an environmental impact report that found the farm caused significant harm to the soundscape and wilderness aspect of Drakes Estero, and moderate harm to seals, eelgrass and birds.  

Over a year and a half after the Secretary of the Interior declined to offer the farm a new lease, Mr. Lunny said he is looking at possible ways to preserve the operation. But he has not explained what course of action he could pursue, and it appears that barring highly unlikely intervention from Congress, the farm’s closure is imminent. 

In an update both parties submitted on Monday to a federal district court in Oakland, the government said it was preparing to send Drakes Bay a letter “requesting that the parties enter into discussions concerning the prompt and orderly wind-down of Plaintiffs’ operations.”

The parties will meet in court this Monday for a case management conference to discuss the next steps. In the meantime, Ginny Cummings, Mr. Lunny’s sister and the farm’s manager, said they were “getting ready for a robust Fourth of July.”

Isela Meza, the farm’s marine biologist for the past seven years—her first job after graduating from college in Baja—said employees were still waiting to hear exactly what would happen. “But we were kind of prepared for this possibility,” she said while curled up on a bench during a break on Tuesday.

A visitor sitting at a nearby picnic table, Robert Neumann, a Woodacre resident who lectures at the California Maritime Academy on ethics and business, said four of his students recently studied the Drakes Bay controversy and competed in an ethics competition in late April. They talked both to the farm owners and leading advocates for wilderness protection, and one student took water samples to test for pollutants. Two argued each side of the debate in the competition, but by the end they all sided with the farm, he said. 

“This is the end of it. It’s really sad,” added Mr. Neumann, who was at the farm to take pictures for an article he was writing about the debate for the school’s newspaper. “I’m not really that crazy about oysters,” he admitted, though he was considering buying some that afternoon.

Advocates for the farm’s removal have asserted that a commercial business “just doesn’t fit” in the estero, and claim the business harms the environment. This week, they are celebrating. “The Court made the right decision in upholding the long-anticipated oyster lease expiration that protects Drakes Estero, the wild ecological heart of Point Reyes National Seashore, which is particularly important on the eve of the 50th Anniversary of the Wilderness Act,” said Amy Trainer, the executive director of the Environmental Action Committee, in a statement posted to indybay.com. 

At a press conference on Monday morning, oyster farm owner Kevin Lunny and his lawyers wouldn’t specify how the farm would proceed, though they noted that they have long had the support of Sen. Dianne Feinstein and had met with her office that morning. (“Is it true you’re taking your case to The Hague?” someone joked before the conference began.)

On Tuesday, Mr. Lunny told the Light he was grateful for the years of support his family had received from the community. “The Supreme Court outcome, of course, wasn’t what we’d hoped for. But really, it made an enormous difference to be able to travel that path with the community. We never felt alone. And we just knew we needed to do everything we could because we know how passionate our entire community is.”

In a statement to the Light, Sen. Feinstein did not comment on her staff’s discussion with Drakes Bay, but criticized the justices for declining to consider the litigation. “The Supreme Court’s decision not to review the Drakes Bay Oyster Company case is a tragedy for the Lunny family and for the oyster farm’s employees. It’s particularly unfortunate because I firmly believe, and the legislative record clearly shows, a working landscape has always been a part of Point Reyes National Seashore’s identity. The area designated as ‘potential wilderness’ is surrounded by working ranches and has hosted the oyster farm for generations.”

The bad news for the farm came just days after a ruling in Marin Superior Court—part of a separate legal battle with the California Coastal Commission—that the farm described as having vindicated its position. Late last week, Judge Roy Chernus agreed with the oyster farm that the commission erroneously sidestepped the California Environmental Quality Act when it issued enforcement orders requiring the farm to remove manila clams, tunicate, abandoned equipment and unpermitted structures from in or near the sensitive estero, saying there was a “fair probability,” supported by the commission’s own orders, that those actions themselves could have environmental impacts. 

Judge Chernus did allow other portions of the orders to stand, including the creation of a debris management plan, an invasive species management plan, a manila clam removal plan and a plan to remove any bags placed within eelgrass areas. (These orders, however, now appear moot.)

The commission had argued that Drakes Bay’s complaints should be dismissed because the farm didn’t raise its concerns about the lack of a CEQA review at the hearing. However, Judge Chernus said Drakes Bay had adequately aired its complaints. 

He also found the commission had “abused its discretion” when it excluded evidence submitted by Drakes Bay from the administrative record of the commission hearing last year regarding the orders. (The commission had said the evidence the farm submitted regarding the environmental consequences of the orders were too late and too voluminous.) 

The farm dropped the claim it had made that the commission violated its right to due process.

Although the coastal commission ruling won’t save the farm, it could have broader ramifications. Last fall, during a debate over a state bill that would have given the commission the authority to levy fines without a court order, commission spokesperson Sarah Christie told the Light that the state agency had never had enforcement orders overturned in court, a point of pride it appears the commission can no longer claim. 

The commission did not return requests for comment by press time.

In his ruling, Judge Chernus said that the commission was correct in its assertion that state agencies typically qualify for exemptions from CEQA. But there is a loophole if someone can prove the presence of “unusual circumstances” in a particular case; then, state environmental law is triggered. Mr. Chernus wrote that he was “hard-pressed to conceive of a more unusual set of circumstances” given “the delicate nature of the Estero and the unique habitat for plants, seals, migratory birds and other species that it provides.”

Many parts of the orders, such as the creation of the management plans and adherence to seal protection zones, should not have triggered CEQA. But Judge Chernus said the orders to remove tunicate, abandoned equipment and manila clams from the estero were likely enough to cause environmental impacts that the commission should have undertaken a review. The judge said those orders cannot be enforced until the commission completes an environmental impact review.

He did, however, reject Drakes Bay’s arguments that the commission had no authority to issue the orders in the first place because of its lease with the California Fish and Game Commission, which is good through 2029. Both state agencies have jurisdiction over the area, Judge Chernus wrote; the aquaculture leases authorized by Fish and Game don’t preclude the commission’s authority to issue cease and desist orders, which enable the commission to fulfill its mission of protecting the coast.