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Sep 4, 2013 12:49 AM

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."

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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....

          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:


            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."


                              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.


                                                        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,


                                                            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:



                                                              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:


                                              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.


                                              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.