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.