YOU ARE HERE: LAT HomeCollectionsNews

Federal omission in closing oyster farm broke law, court told

The firm's attorneys say U.S. did not do an environmental review. The closing of the farm would lead to the first marine wilderness area on the West Coast.

May 14, 2013|By Julie Cart, Los Angeles Times
  • Shown in 2009, Kevin Lunny, owner of Drakes Bay Oyster Co., right, looks down from a barge as his sister Ginny Cummings views oyster sticks that have been harvested at the oyster farm in the Point Reyes National Seashore.
Shown in 2009, Kevin Lunny, owner of Drakes Bay Oyster Co., right, looks… (Genaro Molina / Los Angeles…)

SAN FRANCISCO — The U.S. Interior Department violated federal law by failing to conduct an environmental review before ordering a Northern California oyster farmer to shutter his operation, attorneys for the farmer told a federal appeals court panel here Tuesday.

In a case that has become a cause celebre across the political spectrum, oysterman Kevin Lunny had been ordered to close the farm late last year when his lease to operate within Point Reyes National Seashore expired.

Closing Lunny's Drakes Bay Oyster Co. would make way for the first marine wilderness area on the West Coast at Drakes Estero, an environmentally sensitive area home to a large population of harbor seals.

The hourlong proceeding took place in a packed courtroom. The judges peppered the lawyers with questions that attempted to get at the heart of what on its face should be a straightforward contractual issue. Lunny's family purchased the farm in 2005 fully aware that its lease from the federal government expired in 2012.

Arguing on Lunny's behalf, Amber Abbasi, chief counsel with the Washington D.C.-based government watchdog group Cause of Action, told the three-judge panel that federal environmental law requires the government to conduct a scientific assessment to determine the effects of major decisions. By allowing Lunny's lease to expire on schedule — refusing to extend it as he had requested — Interior took an action that required such an assessment under the National Environmental Policy Act, his attorneys say.

Lunny took his case to court after Interior Secretary Kenneth Salazar denied the extension. A federal district court ruled in the Interior Department's favor and Lunny appealed to the 9th Circuit Court of Appeals. The court earlier granted him permission to continue operating the farm until the case was resolved.

Representing Interior, Justice Department lawyer David Gunter argued that Salazar's decision was based on government policy and within his discretionary powers. Gunter said Salazar correctly took into account the will of Congress.

In denying the lease extension, Salazar wrote that when federal lawmakers designated Drakes Estero a potential wilderness area within Point Reyes National Seashore in 1976, Congress "clearly expressed its intention that the estero become designated wilderness by operation of law."

A least one judge seemed to agree. "At the end of the day, it's a policy question," Judge Paul J. Watford said. "There's no science that's going to dictate what the right answer is."

Lunny has drawn on an unlikely coalition of conservative supporters wary of government overreach and liberal Marin County food enthusiasts, including celebrated Bay Area chef Alice Waters, who defends Drakes Bay as representing sustainable mariculture.

Also in Lunny's corner is the Pacific shellfish industry, which would benefit by extending operations in protected waters up and down the coast. The four law firms donating their time to represent Lunny also advocate for companies that favor increased commercial activity in parks.

Lunny's supporters were out in force Tuesday. Many arrived in a large bus, unfurling banners, which federal marshals admonished them to remove.

The line to get into the courthouse began forming two hours before court opened session. Chris Cattlett, wearing a black hat topped with a feather, said he took an overnight bus from Novato, Calif., to support the farm. Cattlett said he was wearing "everything 'lucky' that I own."

The 66-year-old had nothing nice to say about the Park Service or environmental groups supporting the wilderness designation. He said he saw the case as less about contracts and more about preserving a cherished local tradition that had been operated by various proprietors since 1938.

"I've been eating oysters from Drakes Bay since I was 4 years old," he said.

Los Angeles Times Articles