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National Park Service Enjoined By Court From Forcing Oyster Farm Out Of Point Reyes National Seashore

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An oyster company's legal battle to continue operations in Drakes Estero in Point Reyes National Seashore will continue into the spring following an appellate court's ruling. NPS photo of Drakes Estero.

The 9th U.S. Circuit Court of Appeals has blocked the National Park Service from forcing an oyster farm out of Point Reyes National Seashore and scheduled a hearing on the dispute for May.

In a terse order filed Monday, the appellate court granted the request for an emergency injunction from the Drakes Bay Oyster Co., whose lease to operate in the national seashore's waters expired in November. The appellate court was asked to consider the motion after a lower court denied the same request.

"Appellants’ emergency motion for an injunction pending appeal is granted, because there are serious legal questions and the balance of hardships tips sharply in appellants’ favor," the order read.

On February 4, a U.S. District Court judge declined to issue a temporary restraining order that would have allowed the oyster farm to continue operations in Drakes Estero while its owner, Kevin Lunny, pursued a lawsuit against the federal government.

In seeking the TRO, the company's lawyers argued that Interior Secretary Ken Salazar broke the Administrative Procedures Act and violated the National Environmental Policy Act when he decided last November not to extend the lease for 10 years. In denying the lease extension, the Interior secretary cited the value of wilderness and congressional intent. On the very next day, Park Service Director Jon Jarvis declared the estero part of the Philip Burton Wilderness at the Seashore, effective December 4.

In her ruling, Judge Yvonne Gonzalez Rogers held that she had no jurisdiction to rule on whether the Interior secretary broke the APA, and even if she did, Mr. Lunny did not prove that Secretary Salazar acted arbitrary or capricious, or abused his discretion, in his decision.

Drakes Bay Oyster Co. also is facing a cease-and-desist order handed it by the California Coastal Commission last month. That order cited unpermitted operations in the seashore's waters by the oyster company, land alterations, debris from the farming operations, violations of previous cease-and-desist orders, and company boats operating in waters that were supposed to be closed to traffic due to harbor seal pupping.

Comments

A large part of any politicians job is to lobby for his constitants interests. Sen Fienstein has done that. It does not follow that she was 'bought' or in any other way acted improperly. she simply responded to her voter's concern. Like all politicians do. A substantial number of jobs were at stake in a state with some of the highest unemployment in the country. Come to think of it, maybe the same applies to the other parties politicians.... maybe they're not all bought either. Possible?


Exactly Mike.

I am no fan of Fienstein but i see no evidence here that Lundy had any strong political connections with her (or anyone else) prior to his purchase or that he was counting on political connections to get the lease extended. As to "bought", I searched Fiensteins political donor list for all her Senate campaigns and neither Lundy nor Drakes Bay Oyster Co shows up.

But as we have frequently seen here before the lack of evidence stop people from fabricating quotes and making baseless accusations to try to support their argument.


ec, re lack of evidence and baseless accusations, time and again over the years of this matter I've pointed out and linked to documents that cite the exact details of the oyster company's lease with the NPS, the documents that point to congressional intent to have the estero designated wilderness, and the court's agreement that the Lunnys were informed by the Park Service prior to their purchase of the oyster farm, and after the purchase, that the lease ended in November 2012. What else would you like?

In the meantime, if you can document the over-reach that you believe the Park Service has performed, I'd love to see it. The record that has surfaced certainly seems to support the removal of the oyster farm.


Kurt, the baseless accusations were regarding the claim that Lundy expected to use political connections to extend the lease. There has been no evidence provided here that this is fact.

As to over reach, as I already indicated i dont believe there was a necessity to not extend the lease, the intent of the bills authors were not to evict the operations and the Acts own words discuss historic preservation. When i say over reach, i am not saying they exceeded their authority, I think they exceeded good judgement.


Politics play a role in just about everything, these days, EC. Pro bono support by Washington lobbyists, law firms, and scientists doesn't raise your eyebrows, not to mention that of a very prominent U.S senator? I wish I could summon that.

Julie Cart of the Los Angeles Times had a very interesting overview of this matter that you might find interesting:

http://www.latimes.com/news/local/la-me-oysters-20130224,0,1107064.story

Records obtained under the Freedom of Information Act show that the federal government has extended generous subsidies to the Lunny family for decades. The extended family has leased more than 1,100 acres, where it raises cattle within the park. The grazing rate Lunny and other ranchers pay is about one-third the amount ranchers are charged on adjacent private land.

The Lunnys' lease includes a three-bedroom house, a second residence and a bunkhouse, all owned by the federal government but leased by the family. Lunny pays $2,200 a month for the 1,100 acres and the buildings — about what renters nearby pay to lease a single-family house on a small plot of private land.

The Park Service, under political pressure to help Lunny, recently spent $50,000 to replace the roofs on two of the family's leased buildings. Other federal seashore tenants are required to pay for their own home maintenance.

Sure sounds as if the family is connected in some way, no?

Make no mistake, the Park Service didn't handle this matter very well at times. But it has followed the path set down by Congress.


I read it pretty carefully, EC. I saw the sentence about the grazing rates on private lands, and I saw the part about the $50,000 roofing jobs that the NPS picked up whereas other lessees have to pay for their own repairs.

As for the bill's sponsors, I'm not saying they're lying at all. All I'm saying is that the congressional record from 40 years ago does not reflect those intentions.


Kurt, you need to read these articles carefully. He was charged less than leases on nearby PRIVATE land. It is a well known fact the government charges below market rates for leases of public land - to anyone. It doesn't take special government connections. To some extent this is justified. The government doesnt pay taxes on the land for example. But I agree, public land leasing is probably something that needs a major overhaul but it does not show any "political connections" for Lundy - especially not prior to the purchase.

But is has followed the path set down by Congress

So you believe the sponsers are lieing about their intent?

EDIT. In doing more research it would appear the public vs private differential is more an environmentalist claim than reality. What is true, is that the govt set a rate based on a universal formula and does not make permit by permit pricing. In other words Lundy is paying the same price that any other rancher would be charged For that property There is/was no politcal clout.

https://www.fas.org/sgp/crs/misc/RS21232.pdf


So you agree the leasing rate was a redhering? An effort by the times to decieve? To make something that was standard practice sound nefarious?

i don't know the details of the roofing, but I suspect the details are equally innocuous.

And still again this has no bearing ( other than exposing critics tactics) on Lundy's intent to use political clout prior to his purchase - of which he has been accused.

Re intent: I think the words "historical preservation" shows that intent quite clearly.


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