"Federal employees who returned from the month-long partial government shutdown decided that it was probably not worth the effort to relocate the roughly 90 individuals involved. That’s because some of them were pregnant or newborns, and all of them were opportunistic elephant seals that have taken over what used to be the tourist area of Drakes Beach, Calif."
Drakes Bay oyster farm denied Supreme Court hearing
Oyster farmer Kevin Lunny's reaction to what looked to others like the last legal gasp of his operation at Point Reyes National Seashore punched right to the point: "It's not over until the last oyster is shucked."
"This is a disappointing decision, but it's not really a setback," Lunny said of the U.S. Supreme Court's refusal Monday to hear an appeal of a federal order that would shut down his Drakes Bay Oyster Co. "This ruling only gives us the strength and incentive to fight harder. This is not just about oyster farmers - this issue affects farmers and ranchers on federal lands throughout the nation."
Without comment, the justices left in place court rulings upholding the Interior Department's refusal to renew the lease of Lunny's company, which operates California's only oyster cannery. Lunny and his wife, Nancy, bought the operation in 2004, eight years before the expiration of a 40-year lease in federal waters.
Next week, a federal judge in Oakland will review the Supreme Court's refusal to hear his case and consider its effects on the Lunnys' lawsuit challenging the eviction. The courts have allowed the 30-employee company to remain open while it appealed the rulings that have gone against the Lunnys.
"It ain't over by a long shot," Kevin Lunny insisted, citing a Marin County judge's ruling last week that blocked a California Coastal Commission shutdown order.
'No' means noEnvironmentalists, who call the oyster operation inappropriate for a wilderness area, said that ruling was superseded by the Supreme Court's refusal to hear his case.
"I think he's (Lunny) in denial of reality," said Amy Trainer, executive director of theEnvironmental Action Committee of West Marin. "For all intents and purposes, this round of appeals, where he has consistently been told 'no,' has been a hearing on the merits, and he has lost. At some point he needs to face reality and take 'no' for an answer."
A 1976 law set aside 2,500 acres of offshore land, including the oyster farm, as a wilderness area free of commercial activity once the oyster lease expired. The Lunnys' farm produces one-third of all the oysters harvested in California, however, and the grower has lined up supporters including Sen. Dianne Feinstein, D-Calif., and chef Alice Waters.
Renewal deniedFeinstein steered a bill through Congress in 2009 that authorized the Interior Department to extend the lease for 10 years. But then-Interior Secretary Ken Salazar denied a renewal of the lease in November 2012, saying the oyster harvesting didn't fit Congress' plan for a wilderness area.
Two federal courts have ruled since then that the renewal question was solely up to Salazar and that he made an "informed decision" immune from judicial review. Supporters of the farm challenged the "informed" part by pointing to a conclusion in 2009 by a panel of scientists that the National Park Service made errors and misrepresented facts in its statements that the shellfish operation harmed the area.
Sensitive environmentDrakes Estero, the estuary where the oyster farm is located, is home to thousands of endangered birds, a large seal colony, and at least 5 percent of California's coast eelgrass, an important food source for birds and fish.
"The decision by the Interior Department was made in the public's interest," said Neal Desai, a director for the National Parks Conservation Association. "Americans deserve to have a protected marine wilderness region, as was long planned and paid for."
The Lunnys and their supporters retorted that shutting down a valuable food source in the name of simply keeping a wilderness area open was shortsighted at best.
"This case wasn't just about the future of the Drakes Bay Oyster Company," Pacific Legal Foundation attorney Tony Francois said in a statement. "It was about accountability in government and everyone's right to have access to the courts if bureaucrats threaten your livelihood."
In seeking Supreme Court review, attorneys for Drakes Bay - who said they are working pro bono - argued that the 2009 law did not give the government unlimited authority over the lease and was actually intended to "extend the lease."
The case is Drakes Bay Oyster Co. vs. Jewell, 13-1244.
Chronicle staff writer Henry K. Lee contributed to this report.
Kevin Fagan is a San Francisco Chronicle staff writer. E-mail: firstname.lastname@example.org