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National Park Service Enjoined By Court From Forcing Oyster Farm Out Of Point Reyes National Seashore


An oyster company's legal battle to continue operations in Drakes Estero in Point Reyes National Seashore will continue into the spring following an appellate court's ruling. NPS photo of Drakes Estero.

The 9th U.S. Circuit Court of Appeals has blocked the National Park Service from forcing an oyster farm out of Point Reyes National Seashore and scheduled a hearing on the dispute for May.

In a terse order filed Monday, the appellate court granted the request for an emergency injunction from the Drakes Bay Oyster Co., whose lease to operate in the national seashore's waters expired in November. The appellate court was asked to consider the motion after a lower court denied the same request.

"Appellants’ emergency motion for an injunction pending appeal is granted, because there are serious legal questions and the balance of hardships tips sharply in appellants’ favor," the order read.

On February 4, a U.S. District Court judge declined to issue a temporary restraining order that would have allowed the oyster farm to continue operations in Drakes Estero while its owner, Kevin Lunny, pursued a lawsuit against the federal government.

In seeking the TRO, the company's lawyers argued that Interior Secretary Ken Salazar broke the Administrative Procedures Act and violated the National Environmental Policy Act when he decided last November 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 Yvonne Gonzalez Rogers held that she had no jurisdiction to rule on whether the Interior secretary broke the APA, and even if she did, Mr. Lunny did not prove that Secretary Salazar acted arbitrary or capricious, or abused his discretion, in his decision.

Drakes Bay Oyster Co. also is facing a cease-and-desist order handed it by the California Coastal Commission last month. That order cited unpermitted operations in the seashore's waters by the oyster company, land alterations, debris from the farming operations, violations of previous cease-and-desist orders, and company boats operating in waters that were supposed to be closed to traffic due to harbor seal pupping.


I'd like to add to my previous comment... the attached is a valuable trait, commonly shortsighted by both sides in our hyper-charged political environment. I'd like to suggest that we all consider this in both our comments and our responses to others.....

Open mindedness is when even if you think you are right, you know that you can be wrong and are always willing to listen to and hear an opposing or contradictory view.

Open minded people have views but know that their views do not have to be held by everyone. Open minded people also know that their views can be wrong.

From: The Urban Dictionary.

Kurt and Mike G...Very nice comments.I agree the comments should be constructive and helpful.

In this issue I feel the land owner should be able to not renew a lease if they so choose as long as they give the tennant adiquate notice. (which was done long ago). I would hate to be a landlord and have the tennant tell me I have to continue a lease until they are ready to leave.

I worked for the NPS at Point Reyes as a plant ecologist from 1998 to 2002. At that time, the oyster farm was under different ownership and the operation created a lot of environmental impacts--sewage treatment problems, disturbance to wildlife, disturbance to rare plants, etc. I haven't been there since the Lunny's took over, but the Coastal Commission's cease and desist order indicates there are still problems. The Lunny's knew the lease for the oyster farm was due to expire, yet they bought it anyway, probably figuring they had enough political clout to keep the operation open. Putting the legal arguments aside for the moment, I think this really comes down to deciding whether the best and highest use of this land is for food production and modest economic gain, or wilderness, wildlife habitat, and outdoor recreation. Based on the high quality of this coastal habitat, I vote for the latter. There are other places to farm oysters.

Barbara, what other places do you have in mind to farm oysters? I'm gonna go out on a limb and guess there aren't any. If there were, Lunny would have moved in rather than getting into this mess.

For me, the issue is what kind of wilderness do we want? One that's a living museum where humans come in on the w-e, gawk at for a few minutes and leave, or one where humans work and live in harmony with nature. I like the latter better. The idea of a wilderness where humans don't belong is a farce and one that never really existed until 1964.

Barbara's comment above cuts to the heart of this whole debate:

"The Lunny's knew the lease for the oyster farm was due to expire, yet they bought it anyway, probably figuring they had enough political clout to keep the operation open."

What makes you think they were relying on political clout? Who did they supposedly have clout with?

I think more likely the were relying on the fact it was "potential wilderness" and that the lease could have been renewed and kept as "potential wilderness" as has occurred in other potential wilderness areas and they were relying on the language of the act itself:

In section 6(a) insert iinmediately after the words “shall be admin-
istered by the Secretary,“ the words “without impairment of its
natural values, in a manner which provides for such recreational, edu-
cational, historic preservation, interpretation, and scientific research
opportunities as are consistent with, based upon. and supportive of
the maximum protection, restoration,and preservation of the natural
environment within the area,”.

Given that the oyster farming has been going on more than 100 years in this Bay and predates the Wilderness Act by a half century I certainly believe it is historic and deserves preservation.

I normally don't weigh in on these discussions, but I'll make an exception. If this isn't political clout, I don't know what is...

Did he have a relationship with Fienstien before he bought? Was that the basis of his purchase? There is nothing to indicate that here.

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