OAKLAND -- A federal judge heard two hours of arguments Friday afternoon on whether a preliminary injunction should be granted to temporarily halt the closure of Drakes Bay Oyster Co.
U.S. District Court Judge Yvonne Gonzalez Rogers appeared to lean toward the government's arguments to shut down the operation, but did not issue a ruling. That will come sometime in the coming weeks. A crowd filled the courtroom -- which held 75 people -- and several people hoping to attend the hearing had to remain outside.
Drakes Bay owner Kevin Lunny -- working with a legal team and with Cause of Action, a Washington, D.C.-based nonprofit organization -- has already filed a separate lawsuit challenging the merits of the decision to let his lease lapse, a ruling made by Secretary of the Interior Ken Salazar in November.
The federal government gave Lunny 90 days to wind down operations, but he hopes to get an injunction from the court so he can continue to operate until the main lawsuit can be heard.
Rogers pressed Lunny's attorneys on the merits of the injunction request, saying there was little legal precedent to overturn the secretary's decision.
"How can the court overturn a discretionary decision of the secretary not to act?" the judge asked Lunny's legal team.
Primary among the allegations by Lunny against the federal government is that it failed to follow National Environmental Policy Act requirements as it prepared an environmental impact statement on the oyster operation because it didn't provide the public with a "meaningful opportunity to comment" on it.
But Rogers noted that before the decision was made, Lunny's attorneys advised Salazar that he had the discretion to extend the lease regardless of federal rules governing the process.
"How can you say they have the discretion to do it your way, but not the way you do not like?" Rogers asked.
But Lunny attorney Peter Prows argued that Salazar's decision still can be legally reviewed.
"The fact that an agency has discretion doesn't mean it is exempt from judicial review," he told the judge.
The attorney for the government, Stephen Macfarlane, said it was Congress that put the decision in the hands of Salazar.
"Congress basically left it up to the secretary," he said, citing a 2009 law known as "Section 124."
Lunny's attorneys also attacked the science used to show that the oyster operation was environmentally harmful to Drakes Estero -- the 2,200-acre area where oysters are grown -- and that false information was given by park service employees.
Rogers voiced concern over the studies, saying, "this is not a black and white situation."
While 31 employees will lose their jobs if Drakes Bay closes and Lunny stands to lose his business, Rogers said those were not grounds for granting an injunction.
After the hearing, Lunny said getting the injunction was key to his fight to stay open.
"If the injunction doesn't hapzpen, it will be very difficult," he said. "If they force us to destroy workers' homes, if they force us to fire all our staff and to kill 19 million oysters, there is no recovery of this business."
Under a recent deal with the federal government, Drakes Bay now has until March 15 to complete the removal of its property at the site. If Drakes Bay wins an injunction, that date will be pushed back.
On Nov. 29 Salazar announced he would allow a 40-year lease -- originally negotiated with the Johnson Oyster Co. in 1972 -- to expire. In 1972 the federal government bought the land from Johnson for $79,200 and provided the lease.
Lunny took over the lease in 2004. Salazar wrote in his decision that Lunny was explicitly informed "no new permit will be issued" after the 2012 expiration date.
Lunny has maintained there is wording that provides for a 10-year extension and that a provision under a state Department of Fish and Game agreement could continue the lease until 2029.
Contact Mark Prado via email at email@example.com ___