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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.


Regarding the contract Kurt... i sure don't know the answer. The NPS may very well be entirely within the rights of the contract. I think the question is a little larger than just the contract. If this were a private transaction, I think the answer might be different than acquisition of private property or a private lease for public purposes.

While I don't know the percentage of the property impacted by the oyster farm, the farm provides jobs and quality oysters, a rare product. I don't see that the benefits from removal outweigh those considerations.

While wilderness is important to many does it have to be here? Can't the wilderness accomodate the use ala Frank Church or Grand Teton? What does the public (the ones paying for all this) lose if the farm is continued within the park or wilderness?

Congress can do whatever it likes here. I'd like to see legislation introduced and passed that would permit the farm to exist within to the park.

That would be a great idea. I had a question about SEKI the other day and couldn't quite find the right place for it.

Yep, it's on the drawing board. Tried it once years ago and was inundated by spam. Believe we've found a way around that; now it's just a matter of manpower and affording it;-)

Thanks Lee and Kurt.

BTW Kurt, have you thought about sponsoring a park Q&A section on this blog where people could ask questions like mine and get answers?

The contract in the '70s put a 40-year length on the lease, and contained a "may renew" option. But the Congress through the Point Reyes National Seashore Wilderness Act also directed the Park Service to phase out non-conforming uses in the estero.

Lee & EC: Canoe/kayak access via the Yampa is best after July 1, I believe, when the river flows ebb and the rapids aren't as nasty. However, I understand the bugs become nastier after July 1;-) That said, perhaps the easiest access for fishing would be to go to the Jones Hole Fish Hatchery and hike down to the river from there. There are a number of campsites right along the Yampa at that point.

ec -- in most places in Dinosaur, access to the river by anything other than some kind of floating device is going to be very difficult. But I think (although am not certain) that a limited number of non-commercial permits are available. So if you have a kayak or your own raft . . . . .

It also appears that at least along the Yampa, there are a number of large inholdings lining the river that may also limit access.

Check with the park and see if I'm correct.

Before I go (you dragged me back, Kurt:), The contract back in the 70's (we are all part owners of Point Reyes) from what I've gathered did not include the verbage that Drakes will vacate. The culture, particularly the ultra environmentalists (I hate the way the term has been hijacked) have moved the goal posts to exclude ventures other than their own. In this case raising oysters for a grateful community. Hollistically raising them for the benefit of the environment raises questions as to their (the anti-Drakes Bay Oyster Co. folks) true motivations. Lets look at that aspect.We are all owners of Point Reyes NRA so the analogy to private property rights seems flawed to me.

Kurt, I understand your "contract" point. And generally, landlords have the right not to renew. Whether that was the right thing to do in this case is the primary disagreement as opposed to whether the government has the authority. As to suing, certainly not my preferred recourse. On the other hand, the government has established its own set rules for considering whether to lease. As I understand it, the suit is based on the claim the government didn't follow the rules. I don't know the answer to that question. I do know the government could have renewed the lease, kept a historic operation in place, kept people employed and avoided this whole controversy without detrimental effect to the area.

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