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.
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As it stands, the oyster farm still exists, and I think under the law Drakes Estero is technically still potential wilderness. I know that they've had the memo issued (and published in the Federal Register) that "nonconforming uses" have ceased, but that's obviously not true. I recently saw DBOC products at my local market, so they're obviously still there and continuing the use with the court challenge holding up any actual conversion to full wilderness.
In addition to that, the overlapping jurisdictions are especially interesting. I haven't heard of California Dept of Fish and Game starting any action, but they have asserted that they have the authority to issue the water bottom leases until such time as they decide to end the leases. I know DBOC is in a precarious position, but as long as California contends that they still have that authority, the oyster farm has some hope. And the issues with the California Coastal Commission are odd, since their cease and desist order to DBOC seemed to claim authority over the oyster farm operations that were the authority of CDFG and the California Fish and Game Commission. DBOC's attorney attended the meeting and posed a comment in their public forum since it was too late to add it as an agenda item. He protested the California Coastal Commissions "incursion" into the Fish and Game Commission's authority over issues of the oyster farm. This is from the last commission meeting in February:
I've contended for a while that NPS has allowed for nonconforming uses in potential wilderness at the discretion of management - namely the High Sierra Camps in Yosemite and Bearpaw HSC in Sequoia. Perhaps those uses fall more in line with what NPS imagines from land that they manage