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.
Comments
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.
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.
Interestingly enough, I listened to an interview of Kevin Lunny today on KGO. Besides sounding like a normal human being, he also debunked the claims seen here. Apparently, when he bought the business, the understanding was that the lease was renewable. During the first couple years, he cleaned up some of the issues he inherited from the prior owner, and then the NPS started talking about not renewing the lease.
It'd be nice to see the NPT reach out to the DBOC and get a different point of view for readers to ponder. That'd be interesting.
The bottom line of all this is that it reinforced my belief that the wildernuts are just another bunch of fanatics.
Chiming in here briefly. I apologize that I haven't been following the latest twists and turns in this ongoing saga.
I think the farm will lose in the 9th Circuit Court of Appeals (the appellate court considering the case). The interior secretary would seem to have the law on his side. However, maybe the new interior secretary (Sally Jewell) will undo the decision before the farm closes.
Is it true that if the farm closes tons of oysters will simply be discarded? If so, there should be a protest in which hungry people demand to eat the oysters. Maybe soup kitchens in S.F. should stage a protest saying send them to us. There are plenty of hungry people in California. Our state now has one of the nation's highest poverty rates, I've read recently.
I've noted residential rental agreements in the cities of Berkeley or San Francisco. The rent control ordinances in those cities make it near impossible for a landlord to end a rental agreement unless there is "just cause" such as missing a rent payment.
However, this is the federal government we're taking about and not a private landlord. Federal leases with the BLM and Forest Service end up in court all the time. There are leases (40 years terms I believe) for vacation homes on Forest Service land. If the Forest Service were to deny a lease and order a vacation home owner to vacate and demolish a house, I'm almost sure the owner is going to sue the feds.
In addition to that, the State of California (through the California Fish and Game Commission) still asserts that it is the landlord for the water bottom allocations. The text of the reservation of use recognizes the authority of California to issue the water bottom leases. Yet NPS and Interior have issued orders evicting the oyster farm from the waters.
Zeb, re your "echo chamber" comment (thanks for editing it out). And here I thought you were a long-time regular reader of the Traveler.
Almost two years ago I interviewed Mr. Lunny for his side of the story:
/2011/10/debate-over-oyster-farming-point-reyes-national-seashore-offers-differing-perspectives8858
I also interviewed one of the original sponsors of the Point Reyes Wilderness Act (who contacted me after the story to say what a great job I had done with it):
/2011/09/politicians-past-and-present-want-interior-secretary-permit-oyster-farm-point-reyes-national-seashor8758
There also was a story about the bad NPS science:
/2009/05/national-research-council-blasts-park-service-report-oyster-farming-point-reyes-national-sea
A story about the need for more science:
/2011/11/new-study-says-more-studies-are-needed-determine-impact-drakes-bay-oyster-co-point-reyes-national-se9076
Another story about a panel questioning the NPS science (a story that brought complaints from the NPCA to me):
/2012/09/independent-panel-raises-questions-over-national-park-service-science-concerning-oyster-farm10491
A story about Congress having little faith in the NPS science:
/2011/12/congress-wants-national-academy-sciences-review-oyster-farm-studies-point-reyes-national-seashore9218
A story about Sen. Feinstein accusing the NPS of falsifying the science to get a desired conclusion:
/2012/03/point-reyes-national-seashore-staff-accused-more-wrongdoing-measuring-impacts-oyster-farm9691
And yes, there also have been stories about the California Coastal Commission's complaints about how the Drakes Bay Oyster Co. is operating.
Of course, it might be a while before Ms. Jewell is confirmed as the Secretary of Interor if Senator Murkowski follows through on her threat to put a "hold" on her nomination due to some unresolved dispute in Alaska.
Rick
Kurt, I missed that Lunny interview. I'll have to go back. I was still riled up by that interview last night.