The Drakes Bay Oyster Co. filed a petition Monday to take its fight to stay open to the U.S. Supreme Court.
Kevin Lunny, owner of Drakes Bay Oyster Co., is seeking to have a decision by the 9th U.S. Circuit Court of Appeals overturned by the high court.
“If this judgment is not overturned, government agencies will have the power to deny a permit to any individual or business for any reason, without judicial review,” Lunny said in a statement. “Citizens must have recourse in the face of an arbitrary and capricious decision.”
The appeal to the high court is the latest legal maneuver as the oyster farm attempts to remain open in the face of a federal government order to shut down.
The oyster operation could know as soon as October if the court will take the case, said Peter Prows, who is among the attorneys representing Lunny.
One reason the Supreme Court might want to hear the case is to resolve split rulings the U.S. court of appeals system has issued on interpretations of federal law. The splits in this case are on jurisdiction to review agency actions for abuse of discretion, applicability of the National Environmental Policy Act and prejudicial error under the Administrative Procedure Act, Prows said.
“The main issue is can people take an agency to court to address an abuse of discretion,” Prows said.
The 9th U.S. Circuit Court of Appeals ruled in January that Drakes Bay’s disagreement with the value judgments made by the secretary is not a legitimate basis on which to set aside the decision.
“The 9th Circuit decision was very clear,” said Amy Trainer, executive director of the Environmental Action Committee of West Marin. “Drakes Bay doesn’t like Salazar’s decision, but it was made on sound public policy arguments,” she said, referring to former Interior Secretary Ken Salazar.
The closure order came on Nov. 29, 2012, when Salazar announced he would allow a 40-year lease — originally negotiated with the Johnson Oyster Co. in 1972 and taken on by Drakes Bay — to expire. In 1972, the federal government bought the land from Johnson for $79,200 and provided the lease. Lunny took over the lease in 2004. Salazar wrote in his decision that Lunny was explicitly informed “no new permit will be issued” after the 2012 expiration date.
In February 2012, U.S. District Judge Yvonne Gonzalez Rogers rejected a preliminary injunction to halt the federally ordered closure of the oyster operation in the Point Reyes National Seashore.
The 9th circuit court agreed to hear the case and review Rogers’ decision. In September 2013, a three-judge panel of the 9th circuit ruled it lacked jurisdiction to review Salazar’s discretionary decision not to issue a new operational permit for Drakes Bay.
But in that ruling 9th Circuit Judge Paul J. Watford wrote in a dissenting opinion Lunny’s request for an injunction should have been granted. That provided the oyster company’s supporters hope the court might reconsider that 2-1 ruling, but that didn’t happen.
Until legal issues are cleared up, the Inverness oyster farm remains open.
Contact Mark Prado via email at mprado@marinij.com