Court Rejects Oyster Farm’s Latest Appeal

[UPDATED] Drakes’ Bay Oyster Co. lost another round in its battle to keep on shucking at the Point Reyes National seashore north of San Francisco.

The 9th U.S. Circuit Court of Appeals, in a 2-1 vote, sided with environmentalists in the latest foodies versus enviros in the battle to block a 2009 order by the Secretary of Interior to let the company’s permit to operate in the area expire.  It was set to lapse in November 2012, but the owners have been fighting a holding action ever since.

Judge Margaret McKeown said Congress authorized, but did not require, the Secretary to extend the permit.  The decision was discretionary and the court refused to upset that ruling.

In dissent, Judge Paul Watford said that Congress intended to override the Dept. of Interior’s “misinterpretation of the Point Reyes Wilderness Act.”  He said the balance should tip in favor of granting the oyster farm the injunction.

She pointed out the appeal “pits an oyster farm, oyster lovers and well-known ‘foodies’ against environmentalists aligned with the federal government.”

These include famed chief Alice Waters, California Farm Bureau, Food Democracy Now, and a host of local sustainable agriculture groups.  These are pressed against the Natural Resources Defense Council, Save Our Seashore and the Environmental Action Committee of West Marin.  All filed papers for and against the appeal.

There has been an oyster farm in the DrakesBay estuary since the 1930s, operating on a five-acre parcel of land.  In the 1950s Charles Johnson started the current farm.

In 1972, Congress created the Point Reyes National Seashore, encompassing the farm, Johnson sold the five acres to the U.S. electing to retain a 40-year right to use the land, but on its expiration the permit may be renewed, but also may not.

Johnson sold the farm in 2004 to its current owners, who were aware the 40-year permit would end in 2012.

They have been fighting to stave off that permit expiration ever since.

The latest appeal is whether the secretary violated constitutional, legal or regulatory mandates of the National Environmental Policy Act (NEPA) when he approved extinction of the oyster farm.

“We agree with the district court that DrakesBay is not likely to succeed in proving any such violations here,” McKeown said.

Judge Algenon Marbley, a visiting judge from Ohio, joined McKeown.

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



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