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9th Circuit Court Refuses To Consider Oyster Company's Bid To Remain At Point Reyes National Seashore


A bid by the Drakes Bay Oyster Co. to continue farming oysters at Point Reyes National Seashore has been turned down by the full 9th Circuit Court of Appeals.

Barring an appeal to the U.S. Supreme Court, the ruling Tuesday seemingly puts an end to the oyster company's bid to remain in the Seashore's Drakes Estero, which was designated official wilderness in November 2012.

Drakes Bay owner Kevin Lunny was working on a statement to be released later Tuesday.

The company's legal battle has spawned a public relations and political storm; been joined by San Francisco chefs who prized its oysters; farm bureaus; and even a U.S. senator from Louisiana and U.S. representative from Utah who have tried to save the oyster farm by extending its lease through an amendment to legislation aimed at speeding passage of permits for the Keystone XL pipeline, among other energy related subjects.

When Drakes Bay bought out the farm's previous owners in 2005, the existing lease for the operation ran through November 2012. While Mr. Lunny was optimistic he could obtain a lease renewal from the National Park Service, then-Interior Secretary Ken Salazar declined that request in November 2012, saying Congress long had intended for Drakes Estero where the oyster farm was based to become part of the Philip Burton Wilderness.

As soon as Mr. Salazar rendered his decision, the Park Service officially designated the estero as wilderness, something envisioned when the Point Reyes National Seashore Wilderness Act was passed in 1976. The wilderness legislation that set aside 25,370 acres of the national seashore as wilderness cited another 8,003 acres encompassing the estero that would 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" -- and the oyster operation was seen as being incompatible with such a designation.

Drakes Bay's lawyers sued over Mr. Salazar's decision, arguing that it was arbitrary and capricious and violated both the federal government's Administrative Procedures Act and the National Environmental Policy Act.

Courts have refused to agree with their contention, however.

Last February, a U.S. District Court judge refused to issue an injunction that would have allowed the company to continue farming oysters while pursuing its lawsuit against the federal government. Mr. Lunny's attorneys then asked the 9th Circuit to enjoin the Park Service. But last September, in a 2-1 ruling, a three-judge panel from the 9th Circuit also refused to grant the request.

That prompted Drakes Bay to request an "en blanc," or full court, hearing of its request. On Tuesday that request was denied.

"The full court has been advised of the petition for rehearing en banc and no judge has requested a vote on whether to rehear the matter en banc," the court's staff wrote in summarizing the ruling. "The petition for rehearing en banc is DENIED (sic). No further petitions for en banc or panel rehearing shall be permitted."

When a three-judge panel from the 9th Circuit ruled back in September not to grant the oyster company an injunction, Judge M. Margaret McKeown wrote for the majority that, "Drakes Bay’s disagreement with the value judgments made by the Secretary is not a legitimate basis on which to set aside the decision. Once we determine, as we have, that the Secretary did not violate any statutory mandate, it is not our province to intercede in his discretionary decision."

The ruling was welcomed by environmental groups that had supported the move to designate Drakes Estero has official wilderness.

“We are exceedingly grateful for the court’s decision to support the full wilderness protection for the magnificent Drakes Estero,” said Amy Trainer, executive director of the Environmental Action Committee of West Marin. “Once again the federal court rightly decided that former Interior Secretary Ken Salazar had full discretion to let the oyster operation permit expire and to honor the 1976 wilderness designation for Drakes Estero."

Added Neal Desai, Pacific Region field director for the National Parks Conservation Association: “The court ruling affirms that our national parks will be preserved and that Drakes Estero is another step closer to being protected as wilderness for the American people. Incredibly beautiful places like Drakes Estero need to be returned to their full splendor as Congress determined decades ago when the land was purchased by and for the American public. We have been waiting for this moment for more than 40 years."

Johanna Wald, senior counselor with the Natural Resources Defense Council, said “today’s decision is another affirmation of the principle that ‘a deal is a deal.’ The preservation of Drakes Estero will be enjoyed by millions of Californians and visitors to wilderness and parks for generations to come."

Drakes Bay has employed 31 workers who produced between 450,000-500,000 pounds of Pacific oyster meat a year from Drakes Estero inside the Seashore for Bay Area outlets.


Kurt doesn't have the bandwidth for a discussion of Thomas alone

Yet you haven't provided a single example. More baseless accusations. The issue here now is neither oysters or courts but your propensity to make wild accusations and personal attacks without any substance to back them up.

Good goddess, and here I thought you had no sense of humor. Oh, my.

Let's move on. Kurt doesn't have the bandwidth for a discussion of Thomas alone, or Scalia either for that matter. Baseless, my back porch. Let's get back to oysters.

Thanks for the belly laugh, again.

As I figured Rick. Baseless accusations.


THANK you, Ec,for one of the deepest, heartiest, and most satisfying laughs of the year so far. That was GREAT! Thank you so much. Hehehe.....

Roberts, Thomas, Scalia, et al don't let their political wants and desires affect their decisions?

Would you care to give examples where these folks made political decisions contrary to the intent of the Constitution (other than Obamacare)? Or, will you once again just throw out baseless accusations.


Roberts, Thomas, Scalia, et al don't let their political wants and desires affect their decisions? Lecture someone else on the process please.

The 9th circuit is notorious for letting their political wants and desires affect their decisions. But I don't think they reached a decision here that would not have been reached by pretty much any federal court. The case seems pretty clear cut. But I will say to Rick B. if you want to Constitution to "progress" --amend it. If you want the law to be more "progressive" then get that done trough the congress. Don't look to the courts to substitute their wants and desires for the democratic process and don't expect the courts to substitute their wishes for a different constitution for the one the framers have given us.

Somehow I don't think that being reversed by the Roberts court is a sin. Which has nothing to do with oyster beds.

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