The 9th U.S. Circuit Court of Appeals has blocked the National Park Service from forcing an oyster farm out of Point Reyes National Seashore and scheduled a hearing on the dispute for May.
In a terse order filed Monday, the appellate court granted the request for an emergency injunction from the Drakes Bay Oyster Co., whose lease to operate in the national seashore's waters expired in November. The appellate court was asked to consider the motion after a lower court denied the same request.
"Appellants’ emergency motion for an injunction pending appeal is granted, because there are serious legal questions and the balance of hardships tips sharply in appellants’ favor," the order read.
On February 4, a U.S. District Court judge declined to issue a temporary restraining order that would have allowed the oyster farm to continue operations in Drakes Estero while its owner, Kevin Lunny, pursued a lawsuit against the federal government.
In seeking the TRO, the company's lawyers argued that Interior Secretary Ken Salazar broke the Administrative Procedures Act and violated the National Environmental Policy Act when he decided last November not to extend the lease for 10 years. In denying the lease extension, the Interior secretary cited the value of wilderness and congressional intent. On the very next day, Park Service Director Jon Jarvis declared the estero part of the Philip Burton Wilderness at the Seashore, effective December 4.
In her ruling, Judge Yvonne Gonzalez Rogers held that she had no jurisdiction to rule on whether the Interior secretary broke the APA, and even if she did, Mr. Lunny did not prove that Secretary Salazar acted arbitrary or capricious, or abused his discretion, in his decision.
Drakes Bay Oyster Co. also is facing a cease-and-desist order handed it by the California Coastal Commission last month. That order cited unpermitted operations in the seashore's waters by the oyster company, land alterations, debris from the farming operations, violations of previous cease-and-desist orders, and company boats operating in waters that were supposed to be closed to traffic due to harbor seal pupping.
Comments
I didn't see the charge that Lunny lined up his political connections before buying the oyster farm. Who accused him of that? I read the Wilderness Watch release, and didn't see that mentioned specifically, though I did see the supposed ties to the politically well-connected.
Re historical preservation, I suppose the intention there could have been the significance of Sir Francis Drake coming ashore in the estero, no?
As for the leasing rate, not sure why that was put in, but $50,000 worth of free roofing sure sounds odd.
Barbara at 3:15 yesterday Mtliving at 7:37 this morning.
What is there from Drakes arrival that needs to be preserved? And if there is something, would that be the only thing to be preserved? Wouldnt anything of historical significance fall under the preservation mantra?
As to the roof, I would want the details before I reached any conclusion. Obviosly, the LA Times reporter cant be trusted with his analysis.
Actually. What would be odd would be for a tennant to be responsible for the replacement his roof. Perhaps the Federal governent standard practice is different but given the deception of this reporter I would like to see that documented.
EC, the aspersions you cast are unbecoming.
And it's not unusual for the government to require tenants/lessees to pay for maintenance and upkeep. Read some of the concessions stories we've run out; park concessionaires routinely are required to pay into a maintenance fund, and perform maintenance, on park lodgings.
As for the Drakes Bay Oyster Co., its special use permit with the Park Service specifically states that the company is responsible for "repairs at its sole cost and expense."
http://www.nps.gov/pore/parkmgmt/upload/planning_dboc_sup_background_sup...
I wouldn't find it unusual for the same to be required of other tenants on the seashore grounds.
An interesting article that i don't think has been shown here before:
http://www.rangemagazine.com/features/spring-13/range-sp13-shell_game.pdf
Obviously from a ranchers prospective but it seems to refute the contention that Lunny knew the lease wouldn't be renewed. And it makes absolue sense that a bank wouldn't have given the loan had the NPS not assured them the farm was in the long term plan.
I guess this is simplier to me than to many of you. I think the Oyster farm, which predates establishment of the park, even if it was owned by someone else, is a valuable asset to the area. I think it should be continued.
This park, as valuable as it may be, is evidently the FIRST ocean wilderness and I suspect that may be why removing the farm is so important to many. People who have been in genuine wilderness find the ones here in the lower 48 to be somewhat lacking. I do anyway.
I would like to see a carve-out for the Oyster farm and facilities or at least a continuation of their operation through permitting by Congress. It is possible and has been done before. I don't know if the Lunnys were politically connected or not and frankly don't particularly care if they were.
If Grand Teton National Park can exist in conjunction with the Turner family (very politically connected) ranching activities, or if Frank Church Wilderness can exist while allowing multiple private airfields to exist within the borders of the wilderness I think this park can exist with a historical, successful and valuable oyster farm. Leasing of wilderness for grazing and probably other purposes continues all across western states. I'm sure there are special activities in parks or wilderness in Alaska. Miners are allowed to use roads to access their operations within wilderness in many western states.
I don't see the Oyster Farm as being much different.
I didn't cast the aspersions, Barbara & Mtliving did. I merely pointed their unstantiated accusations out.
The Oyster farm lease does indeed indicate it required Lunny to make the repairs. It would be nice to see the Ranch lease to see if it has the same language. Even better would be to get the full details of the $50,000 roof repair. Perhaps that was paid from a "maintenance fund" that the Lunny's payed into. We don't know, all we know is the reporter made the acqusation and said the payment came from political pressure but doesn't identify who that political pressure came from. Again, given his deception about the lease rates, I am skeptical about the veracity of this claim as well.
Wow - a lot of ground has been covered. Where to start?
That (an inholding being threatened with eminent domain proceedings) was back in 1972 when Charlie Johnson sold out to NPS with the leaseback agreement. I've read a statement from his daughter to that effect. They threw in a 40 year term and a renewal clause that they said would be likely to happen. If he doesn't take the offer, they start eminent domain proceedings and then have no obligation to lease it back to him.
In addition to that, there is a complex web of different jurisdictions. California Dept of Fish and Game and the California Fish and Game Commission still assert that they have jurisdiction over Drakes Estero until such time as they evict the oyster farm from its water bottom leases. I still say that NPS has overreached by ordering out the oyster racks from Drakes Estero. My understanding of the jurisdiction is that CDFG is technically the landlord and that they would be responsible for issuing a order to evict.
As for Feinstein's involvement in all this, I've read that a Marin County Supervisor called her up and that's how she got involved. I've read that the Lunnys might have donated to Feinstein's campaign fund, but it wasn't more than the rather piddly max individual donation. The costs that she's personally incurred on behalf of the oyster farm are probably more than any individual donations that Kevin and Nancy Lunny could make.
In regards to who pays for repairs, that's a great conversation. Right now NPS is paying for earthquake retrofit for the Ahwahnee Hotel. They're paying for repairs to the High Sierra Camps in Yosemite. That's especially ironic since my understanding of the wilderness plan was that if they required anything that cause excessive increase in detraction of wilderness characteristics (such as use of power tools and dropping in a new septic tank by helicopter) that a particular camp should cease operating and be dismantled/converted to full wilderness.
As for Kevin Lunny's politics, he's been quoted as saying that he doesn't particular want the support of right-wing anti government groups. He seems to be a bit uncomfortable with some of the people claiming to support him. However, I'm a supporter. I'm hardly a right-wing anti-government type. I would surmise the same for most of the oyster farm's loyal supporters (although not some people coming out of the woodwork