Oyster Farm Fate in Judges’ Hands

The days may be numbered for the popular Drakes Bay Oyster farm, if the questions Tuesday from three judges on 9th U.S. Circuit Court of Appeals are any indication.  The company has been on the Points Reyes estero for 80 years but in 1962 Congress added it to the national park system and gave the farm a 40-year lease, with expectations it would close when the time was up.

Eight years ago the 1.5-acre oyster farm on the 2,200-acre Point Reyes National Seashore was sold and the new orders have lobbied to keep it open by receiving a new permit from the Secretary of Interior.  But the Secretary declined and the farm was ordered closed so that it could be returned to wilderness conditions.  Last year, the 9th Circuit issued a preliminary injunction to halt the closure to give time for the legal dispute to be heard.

The central issues at Tuesday’s hearing  appeared to be whether Secretary Ken Salazar acted within his discretion to deny a new permit and whether the National Environmental Protection Act should have applied to require a study of the impact of closing the farm on the estero, 30 miles north of San Francisco.

The law says “the secretary may issue a permit, it does not say shall issue a permit,” said Judge Margaret McKeown.  “What’s the difference you’re trying to articulate?” she asked Amber Abbasi, attorney for the farm.

Abbasi agreed to a point.  “Many decisions of the Secretary are discretionary but there must be standards to that discretion,” she said.

“What was it before it was an oyster farm?” asked visiting Ohio Judge Algenon Marbley.  “If we allow the department to dismantle it, after it is dismantled won’t it return to a nature state?”

Abbasi called it a “shining example of sustainable agriculture.  But McKeown shot back that “given it is sitting in a wilderness… how do you reconcile your position with its wilderness designation?”

Abbasi argued that Congress later appeared to have a change of heart about allowing the oyster farm to stay and asked Salazar to review it.

She did get some help from Judge Paul Watford who indicated to the government attorney David Gunter that he was “somewhat convinced by the plaintiff” that Salazar’s decision seemed driven by Congress.  Suppose it wasn’t,” he said.

Gunter argued that NEPA did not apply to Salazar’s review in this case because “there was no federal action here.”

McKeown said, “That would be a great argument if the Secretary had done nothing.  He didn’t do nothing.  He undertood a huge project and then issued a denial of a permit for the project.  Now he is in the soup, I think.”

Gunter replied that the agency should not be penalized for doing more than was required.

Watford then suggested the government’s position that NEPA does not apply basically was “sweeping aside NEPA.”

The Johnson Oyster Co. operated the farm under a 40-year lease, which began in 1972, from the park service on 1.5 acres of land. The federal government bought the land from the Johnson family in 1972 for $79,200 and provided the lease to operate.  Lunny family bought the lease in 2004 and was warned it would not be extended past the 2012 expiration.  The Lunny’s are fighting to get a 10-year extension on the lease.

The three-judge panel may rule at any time.

Case: Drakes Bay Oyster Co. v. Salazar, No. 13-15227