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April 24, 2013

PLF to back Drakes Bay Oyster Company in court

Drakes Bay Oyster Company LogoPacific Legal Foundation is supporting Drakes Bay Oyster Company and owner Kevin Lunny in their fight for survival with the United States Department of the Interior.

Drakes Bay Oyster Company is a family run, sustainable shellfish operation on Drakes Estero in Marin County, California, at a site with over eighty years of aquacultural history. Drakes Bay Oyster Company operates inside the Point Reyes National Seashore, under a National Park Service permit which was due to expire at the end of November, 2013. Park Service staff had told Lunny that they did not intend to renew the permit, and did not think they legally could. After the oyster farm's permit was issued in the early 1970s, Congress declared the surrounding area as "potential wilderness," and the Park Service said that this prevented renewing the permit.

The Lunnys took the fight to Congress, whose "potential wilderness" designation of Drakes Estero had created a legal barrier to permit renewal. United States Senator Dianne Feinstein (D - California) passed legislation authorizing the Interior Secretary to issue Drakes Bay Oyster Company a new ten year permit, despite the potential wilderness designation.

Oyster - Drakes Bay Oyster CompanyThat, as they say, is where things got strange. Last November, former Interior Secretary Salazar denied the new permit, arguing that the "potential wilderness" designation was still the controlling congressional directive. Instead of recognizing that the Feinstein legislation overrode that designation, Salazar read the legislation as exempting him from all legal rules in denying the permit. Salazar went on to say that an improperly performed Environmental Impact Statement (EIS) had informed his decision to deny the new permit, but, in response to criticisms of the information in the EIS, he also said he had not relied on it. Secretary Salazar topped off this outrage by illegally directing the National Park Service to convert the "potential wilderness" at Drakes Estero to "designated wilderness."

Drakes Bay Oyster Co, credit: DBOC
Credit: Drakes Bay Oyster Co. Facebook page

Drakes Bay Oyster Company has sued the federal government, seeking a court order that will clarify the law which applies to the renewal of its permit, directing the Secretary to reconsider the decision with the benefit of the proper legal rules, and setting aside the illegal designation of Drakes Estero as "designated wilderness." Pacific Legal Foundation will be filing a friend of the court brief in support of Drakes Bay Oyster Company in the trial court, arguing for the proper interpretation of the Feinstein legislation and a reasonable opportunity for environmentally sustainable property owners to carry out legitimate businesses that rely on coastal resources.

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Anthony L. François
Attorney
Pacific Legal Foundation

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