Drakes Bay Oyster Farm Wins Injunction Blocking Closure During its Appeal

Farm will stay open during, at least temporarily

Tuesday, Feb 26, 2013  |  Updated 8:32 AM PDT
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CA Oyster Farm Wins Injunction Blocking Closure

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An oyster farm in the Point Reyes National Seashore won an order from a federal appeals court in San Francisco today allowing it to stay open for the time being during its longer-term battle against closure.
      
The Drakes Bay Oyster Co. has sued to challenge a November decision by U.S. Interior Secretary Kenneth Salazar to deny the farm a permit extension and to allow its site along a Drakes Bay estuary to return to wilderness.
      
In today's order, the 9th U.S. Circuit Court of Appeals granted the farm an injunction allowing it to continue operating while it appeals a lower court order that denied a preliminary injunction.

A three-judge panel said it was granting the temporary order because "there are serious legal questions and the balance of hardships tips sharply" in the farm's favor.
      
Owner Kevin Lunny and the company had argued in their bid for an emergency injunction that being forced to close while they appeal the lower-court decision would cause severe hardship by destroying the current oyster crop and causing 31 people to lose their jobs.
      
The appeals court put the case on a fast-track schedule and said arguments will be heard at its San Francisco courthouse during the week of May 13. The court has no deadline for issuing a ruling, however.
      
"We are beyond thrilled that our business will now remain open while we continue to fight the decisions from the court and Secretary Salazar that have put our business at risk," Lunny said.
      
Lunny said his company is "an innovative sustainable farm, an educational resource, and part of the economic fiber of Marin County."
      
The decades-old farm had had a deadline of Thursday to cease operations and March 15 to remove all equipment.
      
It grows oysters on 1,000 acres of submerged lands in Drakes Estero and packages them on 1.5 acres of land along the shoreline.
      
The company is appealing a decision in which U.S. District Judge Yvonne Gonzalez Rogers of Oakland on Feb. 4 declined to issue a preliminary injunction that would have enabled it to stay open until a full trial is held on the lawsuit.
      
Gonzalez Rogers said the farm is unlikely to win its lawsuit because Congress in a 2009 law gave Salazar "complete discretion" to decide whether to renew a permit that enabled the private company to operate on land within the national park system.
      
Neal Desai, the Pacific region associate director of the National Parks Conservation Association, said his group will file papers opposing the appeal and emphasized that today's order is not a final decision in the case.

"We are confident the district court got it right when it decided that the Interior secretary had full discretion to let the lease expire and that the oyster company was unlikely to win its lawsuit," Desai said.
      
"The 9th Circuit Court's decision today unfortunately delays by two months the ability for Americans to enjoy their national park wilderness," Desai said.
      
Lunny and his wife, Nancy Lunny, bought the oyster farm from a predecessor company in 2004 and took over a 40-year permit that expired in 2012.
      
A spokeswoman for the Interior Department, which manages the national park system, was not immediately available for comment.

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