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Appeals court deals blow to Drakes Bay Oyster Co.

". . . In a 2-1 decision, the Ninth U.S. Circuit Court of Appeals in San Francisco rejected arguments by Drakes Bay Oyster Co. that the Interior Department had relied on distorted scientific evidence and exceeded its powers when it refused to extend or renew the company's 40-year lease in November."

http://www.sfchronicle.com/bayarea/ar...

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  1. That's kind of misleading. The federal government gave Johnson Oyster Co. a 40-year-lease in 1972, when it bought the land.

    When Kevin Lunny bought the farm in 2004 he knew the lease could not be renewed and that the land was part of the Drakes Estero wilderness area.

    1. I was hoping that their record of being overturned would possibly reverse the ruling but this exchange makes me doubt it will happen.

      "Two weeks ago, a panel of Ninth Circuit judges held oral argument at UC Berkeley School of Law. In a Q&A session following the oral argument, the three Judges (Noonan, Thomas, and Bybee) were asked to comment on the Ninth Circuit's reversal rate at the Supreme Court. Boalt student Patrick Bageant was there, and he blogged the exchange over at Nuts & Boalts as follows:

      Judge Noonan: "Typical numbers are 20 out of the 16 thousand cases that come before this court. Who is worrying? It's like being struck by lightning."
      Judge Thomas: "Well, in that case I've been struck by lightning a time or two."

      Judge Thomas: "It's largely a media myth. But you just take the reputation, like Dennis Rodman."
      Judge Bybee: "We're the Dennis Rodman???"
      Judge Thomas: "Yeah, we're like the bad boys of the federal circuit.""

      1. The Supreme Court declined to hear Lunny's appeal, so that should be the end of this.

        9 Replies
        1. re: Robert Lauriston

          Apparently not....

          http://www.sfgate.com/bayarea/article...

          I would love to see the lease renewed, but contracts are contracts and wasting the court's time on this is not a good use of my tax dollars.

          1. re: Robert Lauriston

            Additional, slightly earlier sfgate article by Lucchesi on the new lawsuit and its parties:

            http://insidescoopsf.sfgate.com/blog/...

            1. re: eatzalot

              Looks like a much more substantial case than the last one.

              1. re: Robert Lauriston

                Are they really the ONLY local source for freshly shucked oysters? How does Hog Island fit into the picture?

                1. re: felice

                  No, they are not the only source, but they account for one-third of California's production.

                  1. re: felice

                    DBOC is the only California oyster farm that shucks and cans oysters.

                    Hog Island and Tomales Bay Oyster Co. have farms in Tomales Bay. TBOC also buys oysters from DBOC to supplement its own production.

                  2. re: Robert Lauriston

                    author describes plaintiff's lawsuit as "hail mary", not an encouraging sign for the plaintiff.

                    plaintiff's case looks weak since there are other oyster sources available.

                    1. re: shanghaikid

                      Lunny's original lawsuit was more of a "Hail Mary" than this one. His lawyers didn't come up with valid legal grounds for invalidating the Department of the Interior's decision, so it was quickly rejected by the first judge and got nowhere on appeal.

                      This new lawsuit, by a different set of plaintiffs, alleges that the DOI failed to consider the National Aquaculture Act and didn't coordinate with the California Coastal Commission as required by law, both of which seem to be supported by the facts. They might still lose, but at least they seem to have raised valid legal questions for a judge to rule on.

                      There are two other local sources for oysters, but one of them is the lead plaintiff in this case. Per the complaint, they get 6-15,000 of the 20-30,000 oysters they sell each week from DBOC. Another plaintiff says that non-local oysters cost three times as much.

                  3. re: eatzalot

                    Where it reads "love," I think it should be "lose."

                2. The contractual issues are bit more complicated than that. The wilderness area was formed when the U.S. government purchased properties from owners. There is a legislative record that the intent was to have the lands remain "working" to the extent consistent with wilderness uses, such as grazing and oyster farming. This was the understanding of the Lunny's when they purchased the lease to help out Johnson (who was having trouble maintaining standards). Politics and emotions have since gotten in the way.

                  2 Replies
                    1. re: Robert Lauriston

                      The Dive: do you really belive that oyster farming is consistent with WILDERNESS uses?

                      strongly beg to disagree.

                  1. I suppose any kind of farming is incompatible with a wilderness area, but the problem here seems to me to be the defining of a wilderness area in such a way as to force out a major oyster producer. There aren't many places on the US west coast well suited to oyster farming. This is one of them, and accounts for one-third of the production in California. I would let it stay permanently, but think that only the Congress can make it happen.

                    32 Replies
                    1. re: GH1618

                      Congress voted to allow the Deptartment of the Interior to decide whether to extend the lease, and it did not. The Supreme Court let the appellate court ruling against Lundy's appeal stand. Motorboats don't belong in a wilderness area. Lundy knew he bought the last seven years of a nonrenewable lease and is trying to use politics and lawsuits to get a windfall.

                      1. re: Robert Lauriston

                        In general I agree with Robert in this as in all things, but in my world there also exist non-motorey boats powered by sails or sweeps that could serve to harvest oysters as they did in the Chesapeake bay in my lifetime.( Even easier because there's no dredge to haul.) But a lease is a lease and I'm afraid that's it, but imagine a real commercial sailing operation bringing protein to the foodshed. I'd pay to see it.

                        1. re: little big al

                          The huge amount of debris in the water (hopefully Lunny will remove all of it -- it's an enormous amount), as well as the employee working conditions, which I've seen first-hand, were justification enough in my mind to shut the place down.

                          1. re: little big al

                            Lunny never proposed getting rid of the motorboats to mitigate the noise issues, which are also caused by the oyster tumbler and pneumatic hammers.

                          2. re: Robert Lauriston

                            Under the Wilderness Act, commercial uses deemed necessary to effect the purposes of the Wilderness Act are allowed. This means that, depending upon the decision-maker, the renting of recreational motor boat use can be allowed if the appropriate finding it made, even if environmentally detrimental. The same goes for the use of pack animals in the high sierras, which can be damaging to alpine meadows, etc. The problem with the Wilderness Act is that there are enough exceptions and wiggle room for DOI or the NPS to exempt uses that it there is not a lot consistency place to place. Oyster farming is not a commercial use to the extent necessary for a Wilderness Act purpose, but the area is not wilderness, but potential wilderness and the DOI could have extended the lease. The process is more political than environmental.

                            1. re: The Dive

                              The DOI's lawyers found no wiggle room: "the cultivation of oysters for food was a nonconforming use of a wilderness area, which is allowed to operate in Point Reyes until its reservation of use and occupancy (RUO) agreement with NPS expires on November 30, 2012. The Department of Interior (DOI) Office of the Solicitor has expressed that according to the Wilderness Act, once the RUO expires, NPS must convert the Company and Estero tracts to wilderness as soon as possible."

                              http://www.doi.gov/oig/reports/upload...

                              1. re: Robert Lauriston

                                Of course not, that was their job. My point is that this was a political decision, not environmental. DOI had discretion to extend the lease or not, which made it difficult to challenge the decision in court. Almost any evidentiary support in the record for the DOI's decision would be sufficient to have it upheld. It was an uphill battle for Lunny.

                                1. re: The Dive

                                  Judge Gonzalez Rogers didn't need any evidence to dismiss Lunny's complaint. She ruled that the law gave the DOI complete discretion to extend or terminate the lease without judicial interference.

                                  I don't see that the DOI's decision was very political. The NPS bought Johnson Oyster Farm in 1972 and gave him a non-renewable 40-year lease. The only reason for that purchase was to add it to the wilderness area.

                                  1. re: Robert Lauriston

                                    In fact, the decision was if anything the opposite of political: all of the political pressure was on Lunny's side.

                                    1. re: TVHilton

                                      "Political" just means a question of policy. The political question on the other side is whether it was good policy in 1972 to convert a prime oyster farming site to wilderness. My view is that it was not.

                                      1. re: GH1618

                                        *Making* policy is political. The political decisions were made by Congress when it passed the Wilderness Act of 1964 and the Point Reyes Wilderness Act in 1976.

                                        1. re: Robert Lauriston

                                          Exactly my point. Ultimately, it is a political question.

                                          1. re: GH1618

                                            The questions at issue in the new lawsuit are legal, not political. The plaintiffs allege that the DOI violated the National Aquaculture Act, the Administrative Procedures Act, and the Coastal Zone Management Act.

                                            1. re: Robert Lauriston

                                              That's correct. The current issue is legal. The creation of a wilderness area which included the oyster farm was political. I really don't understand what you are arguing about.

                                              1. re: GH1618

                                                The Dive said the DOI's recent decision was political. I said it wasn't.

                                                1. re: Robert Lauriston

                                                  OK, argue with The Dive. I think we agree, except that I think the decision to make this entire bay a wilderness area was a bad one. It could have been given some other status which would have allowed the oyster farm while protecting the rest of the bay fro development. I just think it is elitest. Not that I have anything against wilderness per se. I've camped in them at times.

                                                  1. re: Robert Lauriston

                                                    Indeed. Drake's Bay's legal arguments heretofore have been weak.

                                                    Having said that, it would be a shame to lose their low-impact, entrepreneurial initiative on the Bay. It's a shame that accommodation could not be reached.

                                                    1. re: steve h.

                                                      IMO, Lunny's operation is anything buy low-impact. The amount of debris/pipes/plastic in the water is high; the use of motorboats and other harvesting/farming vehicles contributes to that considerable negative environmental impact. The quality of the aquaculture is also questionable at Drake's, in terms of the oysters' health. As well as the employee conditions. Should have been shut down long ago. I rarely take this strong a stand, but on-site visits had me reeling.

                                                      1. re: maria lorraine

                                                        Apparently there's a parallel case going on with the Coastal Commission trying to get Lunny to clean up his act.

                                                        http://www.marinij.com/marinnews/ci_2...

                                                        1. re: maria lorraine

                                                          I have to respectfully disagree.

                                                          I've been there many times. Your exaggerations are beyond the pale: Oysters in brackish water actually clean the environment; a few boats tending the oyster beds have minimal impact; I have no idea what you're talking about when you say "the amount of debris, pipes and plastic in the water is high." PLEASE quantify that egregious comment. It also appears you have a problem with folk making a living.

                                                          In short, Drake's Bay's future will be decided by the courts.

                                                          Dazzle me with insight and fact next time.

                                                          1. re: steve h.

                                                            <<It also appears you have a problem with folk making a living.>>

                                                            That's an odd attack, certainly untrue.

                                                            My problem is with Lunny's company littering the bottom of the estero with debris (pipes, plastic, detritus) and blaming it on the previous owner, yet saying his is a clean operation. Lunny has had 9 years to clean up any debris left by Johnson's, but that has never happened, in fact, the amount of debris has increased. Hence, my statement on the negative environmental impact from that alone.

                                                            I've seen the oyster growing conditions, and thought they were abusive to the oysters. My opinion, but I've researched oysters for nearly 20 years, and have spoken with marine biologists about the growing conditions at Drake's.

                                                            I've been inside the worker rooms at Drake's, and think OSHA should have shut Drake's down even before the DOI. I stand by my observations, what I've been told by the biologists, and by my statements here.

                                                          2. re: maria lorraine

                                                            According to this article in the Marin Voice,

                                                            http://www.marinij.com/ci_23786895/ma...

                                                            the plastic debris in the water was caused by the previous owner's operation, and the current owner has been cleaning it up.

                                                            1. re: GH1618

                                                              That's not a news article, it's a one-sided op-ed by a Lunny supporter. Here's some more balanced reporting on the environmental issues:

                                                              http://www.northbaybusinessjournal.co...

                                                              http://www.ktvu.com/news/news/local-g...

                                                              1. re: Robert Lauriston

                                                                OK. Your links seem to confirm that the plastic debris was produced by the previous operator.

                                                          3. re: steve h.

                                                            imho, i am mystified about how you or anyone else, for that matter, who honestly evaluated their operation, could conclude that the Drake's Bay operation was AT ALL "low impact" in this area which has be set aside for WILDERNESS.

                                                2. re: GH1618

                                                  Wev. You're using "political" in an essentially tautological sense, which is fine as far as it goes, but if you're going to use it that way then don't expect to get any mileage out of calling it a "political decision". (And I'm not sure on what basis anyone could possibly think that policy is bad, but it's kind of irrelevant, because that was in fact the policy in place when the Lunnys bought the (literal, not figurative) farm. So there's that.)

                                                  But when I use the term "political decision" in a negative sense, I mean something much more precise: a decision in which *political* considerations (considerations of influence, power, or electoral odds) outweigh *policy* considerations (considerations of how best to serve the common good). And according to that definition, caving to Feinstein et al. would have been the ultimate political decision. Instead, they decided based on what they believed (rightly or wrongly) was in the best interests of the public.

                                          2. re: Robert Lauriston

                                            The DOI decision is clearly political. The issue is not so much whether Drake's Bay Oyster Co should be allowed to stay -- it's whether the decision to let them stay would create a precedent that would allow lots of other exceptions in. It's the desire to not create a precedent which is the reason Salazar did not want to extend the lease.

                                            The DOI has the ability to keep them in operation, but it's choosing not to override decisions made in the past. I have some sympathy for that approach. There's no reason Lunny should have ever expected to be able to keep the operation going, and it's not clear that keeping them in operation is the right thing to do.

                                            1. re: calumin

                                              The DOI's reasoning seems pretty solid to me, as far as it goes, and not in any way political:

                                              http://www.doi.gov/oig/reports/upload...

                                              It does not seems to have addressed the issues raised by the new plaintiffs, so maybe they have more of a case than Lunny did. The original lawsuit was filed by Cause of Action, a right-wing libertarian nonprofit funded by the Koch brothers, and it failed to raise any issues that were subject to judicial review.

                                              http://causeofaction.org/assets/uploa...

                                              1. re: Robert Lauriston

                                                Upon reading the first linked document, it seems odd to me that the opponents of the operation used proxy noise sources to characterize the sound pollution. I would rather see actual monitoring data collected by a neutral party.

                                                1. re: GH1618

                                                  No on-site survey is necessary to know that Lunny's motorboats, pneumatic hammers, forklift, and oyster tumbler exceed the 60 db at 50 feet limit.

                                                  "VHB's Federal program manager told us that ... she could hear the pneumatic hammers from the boats during the offshore tour. She described the oyster tumbler as being a prominent noise source during the tour, stating that it generated a 'tremendous amount of noise.'"

                                                  If you can hear the hammers and tumbler from that distance, over the noise of a motorboat, it's way more than 60 db at 50 feet.

                                                2. re: Robert Lauriston

                                                  I agree the DOI's reasoning is sound. My point about it being political is that the 2009 Congressional provision gave the DOI freedom to extend a 10-year permit or not and to essentially come to the conclusion however they wanted to. The reason they decided not to issue a permit has as much to do with the risk of setting a bad precedent as much as it has to do with anything else. This is not something where facts necessarily dictated that the DOI could only pursue only one course of action.

                                                  1. re: calumin

                                                    Feinstein tried to politicize the process, but her rider didn't change any of the key facts. Salazar could have given in to the pressure, but he didn't.

                                      2. Here's a link to another article on the noise aspect, from Russian River Times in 2012:

                                        http://russianrivertimes.wordpress.co...

                                        I have no confidence in the methods used to characterize the noise pollution by the opponents of the oyster farm. It does appear to me that the data were manipulated to support their preferred outcome. That is "political" under the common usage of the term.

                                        I always stand up for science. Whether one is for or against the continuation of oyster farming on this site, one ought to use objective, science-based data.

                                        1 Reply
                                        1. re: GH1618

                                          The 2013 DOI report addresses that in excruciating detail, but it's not that complicated. CFR Title 36 §2.12(a)(1)(i) prohibits noise from motorized equipment or machinery exceeding 60 decibels at 50 feet. If the pneumatic hammers and oyster tumbler were that quiet, a mile away the sound level would be 20 db, equivalent to a whisper. In fact they're much louder than that.

                                          http://www.ecfr.gov/cgi-bin/text-idx?...

                                        2. I don't see the decision not to renew the lease as political.

                                          1) A law was passed years ago to turn the area into wilderness.
                                          2) The farm was given a 40 year lease so they have plenty of time to wind down the operation.
                                          3) The lease was non-renewed based on the law in 1)

                                          Regarding 3), no justification is needed to non-renew the lease. The equivalent situation in my mind is that a landlord doesn't have to give a tenant a list of reasons to non-renew an apartment lease. The tenant may not be happy they have to move but the landlord owns the place. In this case, the government owns the land that the farm is on.

                                          Folks have every right to dispute whether the law in 1) is appropriate and whether the land should be owned by the government in the form designated by the law, i.e. wilderness. On top of that, if folks are concerned about the economic and societal value of the farm being closed, they have every right to and should go lobby to change the law. Agencies' roles are to follow and execute the law.

                                          1. I have hesitated to join in this discussion since a)it seems no longer directly related to oysters as food, and b)since I have a pre-existing bias in the issue. I ate and enjoyed Drake’s Bay oysters only last month, so my bias is not against them as food. Rather, I am in favor of allowing Drake’s Bay to again become a wilderness estuary, extremely rare on the entire Pacific coast, as the founding legislation for Point Reyes National Seashore intended. And as K. Lunny knew when he took over the Johnson’s oyster farm lease, it had only seven years to run and was non-renewable. Where politics has been involved first would have been in congressional debate over creating the National Seashore. DOI actions since have been to achieve that wilderness status as original legislation urged. The current attempt to override those lease terms by the current lessee, however, seems very political. It is to benefit Drake’s Bay Oyster Farm, of course, but also to encourage privatization within the national park system. This is why DBOF pro bono legal support comes from the Pacific Legal Foundation which has an anti-environment history and a pro-business agenda supporting that privatization. I have been a volunteer for the national marine sanctuary system for a number of years, surveying Point Reyes. We regularly find debris from oyster farming washed ashore—thousands of separators from oyster racks, for instance. It is obvious that running boats, other farming activity and structures would have a negative effect on the use of the bay as a seal pupping area, a historic use which precedes oyster farming by some centuries. There are other environmental concerns. The real debate for Chowhounds might be simpler: support the legally agreed upon end of the lease to the benefit of coastal wilderness, or oppose it so we can eat the oysters.

                                            2 Replies
                                            1. re: alfairfax

                                              There is no evidence that the oyster farm has had an adverse effect on the seals.

                                              1. re: GH1618

                                                The seals are irrelevant.

                                                The NPS bought the farm from Johnson to turn it into wilderness. Johnson got a non-renewable lease for 40 years. The lease is up.

                                                What did we the people get the money the NPS paid Johnson if Lunny doesn't vacate the property?

                                            2. I expect the oyster farm will be removed, and am wondering about the plan for what follows. All motor vehicles are incompatible with wilderness, so the roads into the area should be removed. No motor boats should be allowed in or near the estuary. So how will kayakers use the area? I think they should either portage in from the developed area along Tomales Bay, or paddle up from Bolinas.

                                              1 Reply
                                              1. re: GH1618

                                                Motor boats are already prohibited in the esteros, and for seal protection kayaks are permitted only July through February.

                                                If the NPS removes the oyster farm and its access road, I don't believe there will be any public motor vehicle access to the estero, or anywhere in the park east of the Kenneth C. Patrick Visitor Center, which like Sir Francis Drake Blvd. is outside of the wilderness area.

                                              2. http://www.eastbayexpress.com/oakland...

                                                This long Robert Gammon piece from two years ago is pretty damning. Lunny knew the lease could not be renewed, but within three years had tripled production. Clearly he was betting that his political connections would let him keep operating.

                                                The whole thing stinks. Lunny's a scofflaw. Somebody should start a boycott of his products.

                                                3 Replies
                                                1. re: Robert Lauriston

                                                  Not likely. Nobody who orders oysters considers such things.

                                                  1. re: GH1618

                                                    Boycott, maybe not, but a lot of people are very picky about sourcing. It's ironic that some of them are the plaintiffs in the new lawsuit.

                                                  2. re: Robert Lauriston

                                                    I am not surprised by this. A contract is a contract. You knew exactly what you were getting yourself into. I'm just irritated that this has dragged on longer than it should have.

                                                  3. Point Reyes Light article today has some additional information including comments from one of the plaintiff's lawyers.

                                                    http://www.ptreyeslight.com/article/l...

                                                    1. The DOI is going to allow the wholesale operation to continue pending resolution of the new lawsuit. The retail operation will close as scheduled.

                                                      http://www.sfgate.com/bayarea/article...

                                                      1. The judge denied the request for injunction, saying the arguments were the same as those in the original lawsuit she ruled on last year and that she had considered imposing sanctions for filing a frivolous lawsuit. The Interior Dept. plans to file a motion to dismiss, so the NPS will probably move to evict the farm shortly.

                                                        http://www.sfgate.com/bayarea/article...

                                                        http://www.pressdemocrat.com/home/273...

                                                        2 Replies
                                                        1. re: Robert Lauriston

                                                          Not surprised by this at all. Since the petitioners did not own the business, they had no legal standing in this lawsuit. The case went all the way up to the Supreme Court. It's over. That lawsuit is frivolous and I hope the judge sanctions the parties for wasting our tax dollars to defend it.

                                                          1. re: asianstamp

                                                            She already decided not to sanction them.

                                                        2. Lunny's throwing in the towel and will stop harvesting at the end of the year.

                                                          http://insidescoopsf.sfgate.com/blog/...

                                                          4 Replies
                                                          1. re: Robert Lauriston

                                                            He finally figured it out. The whole thing is irritating. You buy a lease for a certain amount of time, when it ends it's over.

                                                            1. re: Missmoo

                                                              Too bad he didn't find an oyster bed with rent control.

                                                              1. re: Missmoo

                                                                It will be interesting to see what the reduction in supply and competition will do to the oyster prices next year.