Drakes Bay Oyster Company Gets Legal Reprieve, Will Stay Open

FILE - In this Dec. 6, 2011 file photo, owner Kevin Lunny holds a Pacific oyster at the Drake's Bay Oyster Co. in Point Reyes
FILE - In this Dec. 6, 2011 file photo, owner Kevin Lunny holds a Pacific oyster at the Drake's Bay Oyster Co. in Point Reyes National Seashore, Calif. A popular Northern California oyster farm is attempting to block Interior Secretary Ken Salazar's decision to make the area a designated wilderness and evict the company. A lawsuit filed by Lunny claims Salazar and others failed to comply with national environmental law, violated his constitutional rights and are illegally taking millions of dollars off his property.(AP Photo/Eric Risberg, file)

Drakes Bay Oyster Co. owner Kevin Lunny won a legal battle Monday when the 9th U.S. Circuit Court of Appeals granted an emergency injunction that will keep his operation open until his appeal can be heard.

Earlier this month, U.S. District Judge Yvonne Gonzalez Rogers rejected an appeal of her previous ruling dismissing a preliminary injunction request to halt the federally ordered closure of the oyster operation in the Point Reyes National Seashore.

The 9th Circuit court agreed to the emergency injunction stopping the closure while it considers whether to issue a temporary injunction based on Lunny's appeal. Had it not granted the emergency injunction, Drakes Bay would have had to close operations by March 15.

"We are beyond thrilled that our business will now remain open while we continue to fight the decisions from the court and Secretary (Ken) Salazar that have put our business at risk," Lunny said.

The closure order came on Nov. 29 of last year, when Interior Secretary Salazar announced he would allow a 40-year lease -- originally negotiated with the Johnson Oyster Co. in 1972 and taken on by Drakes Bay -- 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 filed a lawsuit seeking to overturn that decision, but he needs a temporary injunction to allow him to continue to operate until his lawsuit can be heard. The 9th Circuit court is expected to take up the injunction issue the week of May 13.

"Our fight has always been about more than just our business," Lunny said. "Our fight is, and will continue to be, about the great service Drakes Bay Oyster farm provides to the community as an innovative sustainable farm, an educational resource, and part of the economic fiber of Marin County."

Neal Desai, Pacific Region associate director of the National Parks Conservation Association, said he believes it is just a matter of time before Drakes Bay has to shut down.

"We are confident the district court got it right when it decided that the interior secretary had full discretion to let the lease expire and that the oyster company was unlikely to win its lawsuit," he said. "The 9th Circuit Court's decision (Monday) unfortunately delays by two months the ability for Americans to enjoy their national park wilderness."

Contact Mark Prado via email at ___

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