Editor's note: This updates with comments from Drakes Bay Oyster Co. owner Kevin Lunny.
An adverse ruling from the U.S. Supreme Court, while disappointing, does not automatically signal the end of oyster farming at Point Reyes National Seashore, according to the owner of Drakes Bay Oyster Co.
Kevin Lunny said Monday afternoon that he planned to sit down with his attorneys to review the decision by the Supreme Court not to take up his fight against the Interior Department to remain in business at the national seashore's Drakes Estero. One option, he said, would be to return to a lower court to pursue the gist of his lawsuit against the Interior Department; the lower court rulings that have gone against Drakes Bay so far focused around Mr. Lunny's request for a temporary restraining order to allow him to continue farming oysters while pursuing that lawsuit.
“While we had hoped the Supreme Court would grant our cert petition requesting a review of the Ninth Circuit’s ruling, our federal case against the government now returns to the District Court, where we will be making decisions over the next few weeks about how to proceed," he said in a prepared statement.
"We do plan to continue to fight for what's right here. To fight for our employees, to try to protect a third of the state's shellfish production that comes form Drakes Bay. We believe we're correct and we believe we're fighting for all the right reasons," he said later at a press conference. "We see this fight is not really just for the oyster farm. If we see this kind of treatment be allowed, and not stopped, we fear that there could be consequences" for other agricultural operations on public lands.
While last year there had been an effort in Congress to legislate a 10-year extension of the oyster company's lease, on Monday the Drakes Bay owner didn't know if that remained a possibility.
The Supreme Court on Monday didn't comment when it rejected the petition from Drakes Bay Oyster Co. to review its case. In its petition to the Supreme Court for a writ of certiorari, the company's lawyers had raised three questions:
* Whether federal courts lack jurisdiction under the Administrative Procedure Act to review an agency action that is arbitrary and capricious or an abuse of discretion when the statute authorizing the action does not impose specific requirements governing the exercise of discretion.
* Whether federal agencies can evade review of their actions under the National Environmental Policy Act by designating their actions as "conservation efforts" when the records shows that the action will cause significant adverse environmental effects.
* Whether an agency commits prejudicial error when it makes false statements in an environmental impact statement, and then asserts that it would have made the same decision even if the false statements had been corrected.
In January the judges of the 9th Circuit Court of Appeals declined to reconsider a ruling by a three-judge panel of that court. In that ruling in September 2013, the 2-1 majority ruling held 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."
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 had been optimistic he could obtain a lease renewal from the National Park Service, then-Interior Secretary 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 National 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.
Whether Monday's decision marks the end of Drakes Bay Oyster Co. remains to be seen, as there have been efforts in Congress to legislate an extension to the company's lease at Point Reyes.
Mr. Lunny said it was also unclear Monday how soon the National Park Service might move to shut down his oyster farm.
Comments
Anytime agriculture is unleashed onto a system, you have the start of a developing monoculture. Looks like Point Reyes is not in any jeopardy of going extinct from declining interest, so Zebulon you may want to rethink your "opinion". From the NPS website:
Total Recreation Visits
Oh, and I agree, its probably not 99% but is probably a lot closer to 99 than to 50. Further, the percentage is not likely different than from hikers, backpackers, boaters..... and we aren't banning them.
Kurt, maybe they expected you to be kurt-ious and step aside. Did you not see/hear them coming?
I wonder if recreational visitor counts included people touring the farm? Sounds like fun to me.
Interesting stats. It looks like the number of recreationists has barely budged since the early 90s while the total population in the bay area has grown from 6 to 7 million. Truthfully, Point Reyes is a bit far from the rest of the bay area and it's a bit of a pain to go there. The point is that, as I understand it, quite a few folks would go up to buy oysters (not me, not a big fan of oysters) and obviously those visitors won't be going in the future. Furthermore, this park is pretty big (71,000 acres), and a good chunk of the visitors never make it to the estrero.
The monoculture claim is a bit far fetched. By all accounts, wildlife seems to be doing just fine in the estrero, and I am sure that Point Reyes ecosystem will continue to thrive with or without the oyster racks.
Not surprised that National Park lands contribute to some of the cleanest water quality. Amazing what NEPA rules do when they are followed.
Section c shows a map and the large portion of the estuary was an oyster farm plantation...
http://elq.typepad.com/currents/2012/08/currents39-05-greennylen-2012-08...
Hmmmm. Hiking along a trail ticks off bikers?
Recently, the USFS shut down a "bike race" that was being advertised around here. It's stated objective was to set a new speed record for the Indian Trail. The little flyers they had posted at the trail head warned hikers to be careful because they were hoping for more than fifty bikes to show up and race on June 8. But I guess that warning was a courtesy, no? Two FS LE rangers were stationed at the trailhead and sent bikers away. That caused a bit of a kerfluffle and I heard a report that the race went forward a few days later when the treefuzz weren't looking.
Our local fire department responds to about five mountain bike accidents on the forest here each month. Mostly loss of control usually due to excessive speed. Normally, one or two of the monthly victims were not the ones riding the bikes. It's also unusual for the biker who caused the injury to stick around unless they were hurt, too. All this, and the continual problems with bikers building "jumps" and other obstacles is leading to discussion on the district of banning bikes on at least some trails. In this territory, some of the biking community is the worst enemy their sport has.
Some of the courtesy or lack thereof may have something to do with local demographics. This city is largely a working class area and the majority of mountain bike users seem to be young kids who have little education and a lot of growing up still ahead of them -- if they survive.
But we are now way off topic . . . . and then, I'm just exaggerating, right?
Not in my experience
And of course you can document that. So 5 a month out of what? 5000 rides? 10,000? What percent is that?