Owners of an oyster company that can't get their lease at Point Reyes National Seashore renewed are pledging to take their case to the U.S. Supreme Court.
Drakes Bay Oyster Co. owner Kevin Lunny, who was sure the full 9th U.S. Circuit Court of Appeals would hear his case against the Interior Department, made that announcement late Tuesday after the 9th Circuit refused to take up the case.
“We believe the Court’s decision not to rehear our case is incorrect, and that the dissenting opinion from Judge (Paul) Watford will prevail,” said Mr. Lunny in a prepared statement. “Because of that, we are requesting our case be heard by the U.S. Supreme Court. We are grateful for our thousands of supporters, partners, customers and patrons that have supported our small, family-owned farm for four generations. We remain committed to succeeding in our fight to remain open and serve our community.”
The matter revolves around then-Interior Secretary Ken Salazar's decision in November 2012 not to extend the company's lease to farm oysters in the national seashore's Drakes Estero. In 1976, when Congress passed the Point Reyes National Seashore Wilderness Act, it directed that the estero fall within officially designated wilderness once all non-conforming uses were removed from its waters. The oyster company, whose lease ran out in November 2012, was the last non-conforming use.
Drakes Bay 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 the company, 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.