Drakes Bay Oyster Co. allies drop lawsuit

Move signals apparent end of battle over harvesting in federally protected estuary


A high-profile, two-year legal battle over oyster farming in the Point Reyes National Seashore came to an apparent and anticlimactic end Tuesday when a coalition of Marin County food interests dropped its case against the U.S. Department of the Interior.

The group had sought to extend Drakes Bay Oyster Co.’s right to continue harvesting oysters from Drakes Estero, a federally protected estuary in the national seashore.

But in a one-sentence statement filed with the U.S. District Court in Oakland, an attorney for the coalition said his clients, including Tomales Bay Oyster Co. and several West Marin County farmers and restaurant owners, were dismissing their entire case.

The plaintiffs’ action does not need a judge’s approval and while they technically have the right to renew their case in the future, Heather Bussing, an Occidental attorney and Empire College of Law instructor, said that was unlikely.

“This case is effectively over,” she said.

Wilderness advocates welcomed dismissal of the case —the last remaining legal stand against the cease of oyster farming in Drakes Estero.

Amy Trainer, executive director of the Environmental Action Committee of West Marin, said that “justice has been served.” The coalition’s lawsuit “was ridiculous from beginning to end — a waste of taxpayers money,” she said.

Drakes Bay Oyster Co., the focus of a yearslong conflict that rose to a national stage, agreed in October to shut all operations and vacate Drakes Estero by Dec. 31.

Oysterman Kevin Lunny said Monday that his company was working hard to fulfill its commitment under the agreement to remove all the oysters from the water by that date.

Attorneys for the Interior Department noted the agreement in their formal request for a dismissal of the Marin coalition’s case, asserting that its legal claims “are not redressable by the Court and are moot.”

A hearing on the government’s request had been set for Feb. 10 before Federal District Judge Yvonne Gonzalez Rogers.

Stuart Gross, a San Francisco attorney who represented the coalition of Lunny’s allies, could not be reached for comment Tuesday evening. Plaintiffs in the case included the owners of Sir and Star, Osteria Stellina and Cafe Reyes, as well as Tomales Bay Oyster Co., a competitor in the industry. The coalition filed its lawsuit in July.

But the legal tide had turned decisively against Lunny in June, when the U.S. Supreme Court declined to hear his case. That came after three federal court rulings had rebuffed his challenge of former Interior Secretary Ken Salazar’s decision in November 2012 not to renew a 40-year-old permit for commercial oyster cultivation in the 2,500-acre estero.

Lunny’s lawsuit, filed the following month and handled by attorneys donating their services to the oyster farm, alleged that Salazar’s decision was “arbitrary and capricious.” The ensuing legal battle focused on Lunny’s bid to remain in business, harvesting $1.5 million worth of oysters a year from the estero, pending the resolution of his claims.

None of the controversial issues raised by Lunny’s lawsuit — including allegations of “scientific misconduct” by the National Park Service and the question of whether oyster cultivation was harmful or beneficial to Drakes Estero — was ever adjudicated.

Salazar had been granted sole discretion over the renewal of Lunny’s oyster harvest permit by language inserted into a 2009 bill by Sen. Dianne Feinstein, D-Calif. Once the courts decided that Salazar had that authority, there was “no review of whether or not his action was fair, or right, or even a good idea,” Bussing said.

Judges always rule on as narrow a matter as possible, she said.

Lunny’s protest became a cause celebre for proponents of for-profit use of federal lands. A Washington, D.C.-based nonprofit called Cause of Action, which critics said had ties to the ultraconservative Koch brothers, argued Lunny’s case in court until he cut ties with the group last year.

Environmentalists, oyster lovers, Marin residents and county officials and members of Congress were sharply divided, with Lunny’s supporters calling the farm a sustainable food source with 80 years of history in the estero.

Critics said that Lunny’s family had purchased the farm knowing its government-issued lease would expire in 2012 and that the estero should become wilderness, free of commercial activity.