Federal Judge Declines To Block Oyster Farm's Ouster From Point Reyes National Seashore

A federal judge, saying the owner of an oyster farm at Point Reyes National Seashore failed to accept the National Park Service's long-stated intention not to renew his lease, has refused to block the company's removal from the seashore.

In a 31-page ruling (attached below) handed down Monday, District Judge Yvonne Gonzalez Rogers held that Kevin Lunny knew as long ago as 2005 that the Park Service intended to let the lease lapse.

"The Lunnys' refusal to hear the message weighs against them," the judge noted in her ruling.

The judge's decision not to issue a temporary restraining order keeps the clock ticking on the removal of the Drakes Bay Oyster Co.'s operations within Drakes Estero in the national seashore. The company, which has sued the Interior Department over the matter, has until mid-March to move out of the national seashore's waters.

Interior Secretary Ken Salazar late in November refused to extend the lease the company held to cultivate oysters in the waters of Drakes Estero. At the time he ordered the operation to end operations on November 30, and gave the owners 90 days to remove its facilities from the seashore so the estero could be managed as official wilderness.

In seeking a TRO to prevent the farm's eviction, the company's lawyers argued that Secretary Salazar broke the Administrative Procedures Act and violated the National Environmental Policy Act when he decided not to extend the lease for 10 years. In denying the lease extension, the Interior secretary cited the value of wilderness and congressional intent. On the very next day, Park Service Director Jon Jarvis declared the estero part of the Philip Burton Wilderness at the Seashore, effective December 4.

In her ruling, Judge Rogers held that she had no jurisdiction to rule on whether the Interior secretary broke the APA, and even if she did, the Lunnys did not prove that he acted arbitrary or capricious, or abused his discretion, in his decision.

In tracking the history of the oyster operation in the estero, the federal judge noted that:

* the original lease given to the Johnson Oyster Co. carried a November 2012 expiration;

* that when the Lunnys moved to purchase the company in 2005 the Park Service provided him with a legal opinion from the Interior Department's that “the Park Service is mandated by the Wilderness Act, the Point Reyes Wilderness Act and its Management Policies to convert potential wilderness, i.e., the Johnson Oyster Company tract and the adjoining Estero, to wilderness status as soon as the non[-]conforming use can be eliminated," and that,

* the Park Service followed that up two months later with a letter to the Lunnys “'to reiterate our guidance to you regarding the transfer of the Johnson Oyster Company site to your family [and] . . . to ensure clarity and to avoid any misunderstanding.' Among other things, the letter stated that “[r]egarding the 2012 expiration date and the potential wilderness designation, based on our legal review, no new permits will be issued after that date."

Judge Rogers also noted that it clearly was Congress's intent to see the waters of the estero designated as official wilderness.

Given the content in the Secretary’s Decision, the Court would have to find that his consideration of the goals of the Wilderness Act was not legally proper or was in contravention to the law. Further, the Court would be forced to ignore Congress’ statement that “those lands and waters designated as potential wilderness additions [were to] be essentially managed as wilderness, to the extent possible, with efforts to steadily continue to remove all obstacles to the eventual conversion of these lands and waters to wilderness status.” Even a plain meaning interpretation of the phrase “potential wilderness” suggests on its face the appropriateness of full wilderness as the ultimate goal.

"The court rightly decided that Secretary Salazar had full discretion to let the oyster operation permit expire on its own terms and honor the 1976 wilderness designation for Drakes Estero," said Amy Trainer, executive director for the Environmental Action Committee of West Marin. "We are very grateful for this decision, which supports the estero's full wilderness protection, and we urge the company to fulfill its long-standing responsibility to its workers by assisting them during this time of transition."

At the National Parks Conservation Association, Neal Desai, Pacific Region associate director, said the ruling "affirms that our national parks will be safe from privatization schemes, and that special places like Drakes Estero will rise above attempts to hijack Americans' wilderness. Taxpayers can rejoice that the land they bought and own in Point Reyes National Seashore will now be protected as planned after 40 years of waiting."

At Cause of Action, the law firm that represented the Lunnys in their bid for the TRO, Amber Abbasi said the Lunnys were mulling their options.

"Without this injunction, not only will a small business close, but families will be forced out of their homes, and the community will lose a sustainable farming resource," she said in prepared comments. "The Lunnys are weighing their options for next steps and will make their decision known in the coming days."

AttachmentSize
PORE-Order Denying TRO.pdf337.46 KB

Comments

I'd like to understand who will pay for the removal of the oysters/oyster racks. From what I read, it cannot be done by the deadline given by the NPS, so what is going to happen?

The Feds are saying the Lunnys must pay for the destruction of this historic oyster farm they saved and nurtured. Apparently the plan is to kill all the oysters.

Nobody knows what will happen. Things here are not as they seem. For example, most people think the FEIS is a valid document, since NPS has created that impression. But it is actually defunct, as I reported here: http://russianrivertimes.wordpress.com/2013/01/23/salazar-oyster-farm-decision-hides-from-history-and-abandons-science/

My article also points out some reasons to be suspicious of NPS legal claims. They were not making those claims in 1998. Only in 2005 did the story change to the current one.

It's not over until it's over.

What if the Lunnys can't pay for it. The whole thing is so stupid, it's amazing.

Why would you purchase a business with the record showing since 1976 that the clock was ticking on its viability? What did they know or think they know? Or rather, who did they know, or who did they think they know?

Seems to me like this judicial decision reeks of common sense. Can't have that!!

Turn those questions around and ask whether your understanding of the facts makes sense. Indeed, why would anyone do that?

The answer is that this is not what happened.

There is no record showing that the clock was ticking.

Three senators who were directly involved in creating the Seashore have said there was never any intention to get rid of the oyster farm. See their letter to Salazar here: http://oysterzone.files.wordpress.com/2011/11/mccloskey-to-salazar-re-dboc-08-11-11.pdf

If you are interested in the actual history, please read my story at the link in my previous comment. As recently as 1998 the Park Service was assuring the Johnsons (former owners of the oyster farm), and the bank that was giving them a loan for a big new processing center/visitor center, that the oyster farm could be expected to stay. From my story:

" The NPS 1998 EA cited support for aquaculture in the NPS General Management Plan (GMP) for Point Reyes National Seashore, cited the county approvals as significant, stated that “no special-status species are found in the project site area,” and made no mention of a sunset date for the oyster farm—in fact, the EA cited as an issue to be addressed “the long-term status of the lease agreement past 2012.” "

The GMP has not changed. The 1976 law certainly has not changed since 1998. The county planning still calls for aquaculture. The only thing that has changed is the wishes of certain people at the Park Service.

The Lunny agreement had a renewal clause. Neubacher told the Lunnys he was leaning toward not renewing the agreement, but this was in the context of the previous owners having created pollution problems they could not afford to solve. The Lunnys had every reason to believe their agreement would be renewed if they cleaned up the operation. They spent hundreds of thousands of dollars of their own money to do that cleanup, and have been superb stewards of this area.

This new history and the letters "proving" it are relatively recent developments.

Ask yourself why the issue is now entirely about the law, when until recently it was all about the science. The false science has been thoroughly debunked--the EIS that was created to shore up that narrative (created with $2million of your and my tax dollars) has been shelved--because it is a fabric of lies. Then ask yourself if it really makes sense to trust that this federal agency is telling the truth about the law, when they spent several years and millions of dollars telling lies about the science.

Don't believe everything you hear. The anti-oyster-farm activists are paid PR professionals. They have created marketing campaigns to shape public opinion, and they are very good at that. This "deal is a deal" meme has been very successful. The false assertion that the oyster operation harms seals has also gotten quite a bit of traction. That doesn't mean it's true.


Why would you purchase a business with the record showing since 1976 that the clock was ticking on its viability?



Turn those questions around and ask whether your understanding of the facts makes sense. Indeed, why would anyone do that?


Why not invest in a business that will generate a profit for 8 years? And then, when the lease expires, why not fight it in order to get as much out of the investment as possible? From a business standpoint, it would seem to be a reasonable thing to do.

The owner thought he could play the federal government like a piano, but he ignored all the warnings.

Sarah-- May we ask how you are related to this oyster farming business?

Gutz54, sure. Sorry I didn't see your comment earlier--for some reason I'm not getting emails about the responses.

I'm a freelance writer working on a book about the Lunnys. I live in New England but I grew up in California and I have close friends in Marin County. I started visiting Point Reyes about 20 years ago and I fell in love with the area. I met Kevin Lunny in 2006, not long after the Park Service had started its misinformation campaign. We met just by chance--someone who was staying at the same B&B I was mentioned the situation and took me over to meet him. I've been following the story ever since.

I'm part of an informal group that is working to try to save the oyster farm. I do not receive any compensation for this, nor am I connected formally with the Lunnys or any other group. My primary interest is in learning the truth and writing about it. Given everything I have learned, I am definitely pro-Lunny at this point. They have done nothing wrong, and lots of things right.