Appeals court takes up Marin oyster farm case Tuesday
Published: Monday, May 13, 2013 at 2:22 p.m.
Last Modified: Monday, May 13, 2013 at 2:22 p.m.
Drakes Bay Oyster Co.'s fight for survival, which has divided West Marin County neighbors and gained national attention, resumes Tuesday at a federal courthouse in San Francisco.
Three judges from the 9th U.S. Circuit Court of Appeals will hear 40 minutes of arguments from attorneys for oyster farm operator Kevin Lunny and former Interior Secretary Ken Salazar, who ordered the farm's closure in November.
Lunny's legal challenge, alleging that Salazar's decision was "arbitrary and capricious," has attracted support from Republicans in Congress and gained the free services of three private law firms and a Washington, D.C.-based nonprofit group with connections to the arch-conservative billionaire Koch brothers.
Supporters contend it's a case of the federal government riding roughshod over a small, family-owned farm, while critics say it has become a pawn of the movement to open public lands to commercial enterprise.
In court, the oyster farm case involves labyrinthine questions of law, public policy and allegations of scientific misconduct by the National Park Service in evaluating the impact of harvesting 8 million oysters a year from Drakes Estero, a federally protected estuary in the Point Reyes National Seashore.
But none of those issues will be resolved by the appeals court, at least not at this stage.
Instead, Lunny is seeking a court order allowing him to continue raising Pacific oysters in the 2,500-acre estero, a home to fish, migrating birds, bat rays, leopard sharks and one of California's largest harbor seal colonies.
Five miles of wooden oyster-growing racks also are spread around the shallow estuary, where the tasty mollusks, prized by Bay Area chefs, have been raised since the 1930s.
If at least two of the appellate judges agree, the case will be returned to a federal district court in Oakland, where a judge in February rejected Lunny's claims, prompting his appeal to the 9th Circuit.
But without the court order, which one of Lunny's attorneys said would "preserve the status quo," the case and his business may effectively come to an end.
Absent the order, known as an injunction, Lunny would likely be required -- as a consequence of Salazar's decision -- to remove from the water and destroy about 18 million oysters, lay off about 30 workers and possibly remove the oyster racks and other equipment, steps that his lawyers described as "irreparable harm."
"We're living day to day," Lunny said. "We're confident. We think the 9th Circuit will see it our way. But you never know."
The uncertainty comes at an inopportune time, when he would ordinarily be planting 200 million to 300 microscopic oyster larvae in the estero, due for harvest in a year or two. If he plants the oysters that he ultimately cannot harvest, Lunny said he could be forced into bankruptcy. If he forgoes the spring planting of his marine crop, he would be putting himself out of business.
"It's decision time," Lunny said.
On Tuesday, Lunny and his wife, Nancy, will be seated behind their lawyers in the federal courtroom facing 9th Circuit Judges Margaret McKeown, Paul Watford and Algenon Marbley, a visiting district court judge from Ohio.
Amber Abbasi, chief counsel for Cause of Action, the Washington-based nonprofit, will present the oyster farm's case; Department of Justice attorney J. David Gunter II, also based in D.C., will represent Salazar and the National Park Service.
Each side will have 20 minutes to present its case and answer questions from the judges, who will issue a written opinion following the hearing.
Environmentalists, oyster lovers, Marin residents and county officials, members of Congress and others are sharply divided by the yearslong controversy over the oyster farm, which sells $1.5 million worth of shellfish a year.
The farm's supporters see no reason why a sustainable aquaculture operation, with 80 years of history in the estero, shouldn't be allowed to continue, and many accuse the Park Service of an unethical campaign to terminate the farm with false assessments of its impact on the estero.
Critics assert that Lunny's family, which purchased the farm for $260,000 in 2004, knew that its government-issued lease would expire in November 2012 and should leave, allowing the estero to become pure wilderness, free of commercial activity.
But none of the legal details in the case are simple, including a fundamental disagreement over the interpretation of a 2009 law, authored by California Sen. Dianne Feinstein, that gave Salazar the sole discretion to renew the oyster company's lease for 10 years.
Federal District Judge Yvonne Gonzalez Rogers ruled in February that the courts had no jurisdiction over Salazar's decision and also held that Lunny was unlikely to prevail on the merits of the case.
Lunny's appeal to the 9th Circuit was granted three weeks later, setting the stage for Tuesday's hearing.
Meanwhile, the case has become a cause celebre for proponents of for-profit use of federal lands. William Robertson, dean of the Empire College School of Law in Santa Rosa, said a decision in Lunny's favor would be "worth a lot of money" to ranching, timber and mining interests.
A Republican bill in the Senate, aimed at creating 2 million jobs by approving the Keystone XL pipeline and expanded offshore oil drilling, included a provision granting the oyster company a permit for up to 20 years.
Rep. Doc Hastings of Washington, the Republican chairman of the House Natural Resources Committee, last month asked the Interior Department for copies of all the documents related to Salazar's decision.
The former Interior Secretary has since retired and been replaced by Sally Jewell, the former president of REI, the outdoor gear retailer.
If the appellate court sides with Lunny, the case will return for trial in the Oakland federal district court, presumably before Judge Rogers.
The losing side can appeal either to an 11-judge panel of the 9th Circuit or to the U.S. Supreme Court.
"Whichever side loses is going to have some difficult decisions to make," said Peter Prows, one of the San Francisco private attorneys representing the oyster farm.
Lunny's brief contends that Rogers' opinion "misread federal law" on multiple issues. If the appeals court judges agree, their decision will "explain why she was wrong," Prows said.
Amy Trainer, executive director of the Environmental Action Committee of West Marin and a former environmental attorney, said she believes the Oakland judge "got it right."
The Interior Department's appellate brief, she noted, said it would be "the essence of fairness" for the government to prevail, "enabling the American people to enjoy wilderness in Drakes Estero."
You can reach Staff Writer Guy Kovner at 521-5457 or email@example.com.
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