On Tuesday afternoon an exasperated federal judge who said she considered sanctioning the plaintiffs for filing a frivolous lawsuit denied a request by Tomales Bay Oyster Company and a suite of West Marin restaurants for a preliminary injunction against the closure of Drakes Bay Oyster Company.
If the plaintiffs don’t appeal, the 80-year-old oyster farm can now only wait for the federal government to send a 30-day notice that it must stop harvesting—the only part of the business that remains open after retails sales and canning ended on July 31.
Whether the case will continue despite this week’s ruling is unclear; at the end of Tuesday’s proceedings, which focused on whether the businesses have the right to sue the government at all, Department of Justice lawyer Barrett Atwood confirmed Judge Yvonne Gonzales’s suspicions that the federal government would likely file a motion to dismiss the suit.
The plaintiffs have claimed that once the oyster farm stops harvesting, they will suffer economic hardships that weren’t properly analyzed before then-Interior Secretary Ken Salazar decided to close the farm in 2012. But Judge Gonzales—who ruled against Drakes Bay last year and who spent over an hour on Tuesday grilling the new plaintiffs’ lawyer, Stuart Gross—said the case seemed like a copycat of Drakes Bay’s case against the federal government. She said it “strains credulity” to think the plaintiffs met the litmus test for an injunction, such as proving irreparable harm and a likelihood of success on the merits of the case. Though she conceded at one point that Mr. Gross’s arguments “may have some pertinence in a larger context,” she didn’t see how they had standing in a case over a permit.
Judge Gonzales said she understood that the public had concerns about the closure of Drakes Bay. But, she added, “That does not justify a frivolous lawsuit.” In fact, she was so frustrated that afternoon that she warned Mr. Gross ahead of time that she would interrupt him—frequently.
She also questioned why the plaintiffs had brought the lawsuit so late in the debate over Drakes Bay, despite the fact that they must have known for years that they could be affected; the fate of Drakes Bay’s own case was irrelevant, she said. (The United States Supreme Court rejected the farm’s appeal at the end of June.)
Mr. Gross argued that the Coastal Zone Management Act, a federal law that protects coastal resources, required the government to obtain a consistency determination with the California Coastal Commission before it decided to close the farm. But Judge Gonzales said their claims to have standing under the act had an “absolute lack of merit,” in large part because allowing a permit to expire didn’t constitute an active conversion to a new use (though Mr. Gross argued that Drakes Estero had been actively converted to wilderness) and because the act was designed to protect states’ rights. Mr. Atwood added that the act aimed to protect natural resources, not farming.
The plaintiffs also said the National Aquaculture Act required the government to consult with a shellfish working group before closing the farm. But Judge Gonzales called the statute “grandiose” and seemed skeptical that it would have made any difference. Mr. Atwood argued that Mr. Gross had overstated the scope of the act and that it was meant to apply to broad programs, not specific decisions.
(He also added that in the over 30 years it had been on the books, no one had ever sued under it. Mr. Gross responded that that was irrelevant. “That does not make it less a law,” he said.)
After the hearing, Tod Friend, one of the owners of Tomales Bay Oyster Company, said he thought his lawyer had aptly handled the judge’s biting interrogation. “She was a little scary at first. I was scared for Stuart,” he said.
His business filed the lawsuit after Drakes Bay closed on July 31 with a slew of other local and Bay Area establishments and individuals, including restaurants Café Reyes, Osteria Stellina, Saltwater Oyster Depot and San Francisco’s Hayes Street Grill; Dixon Marine Services, an oceanographic and wetland restoration firm; Margaret Grade, the owner of Sir and Star; the Alliance for Local and Sustainable Agriculture; Patricia Unterman, the owner of Hayes Street Grill; Loretta Murphy, a manager of Drakes Bay Oyster Company; Jeff Creque, a rangeland ecologist; and Rosa Gamez, who owns a business called Nellie’s Oysters that sells oysters and fish tacos at farmers markets.