09-04-13 From Judge Watford’s Opinion “DBOC is likely to prevail”

From Judge Watford’s Opinion:


*          “…Drakes Bay is likely to prevail on its claim that the Secretary’s decision is arbitrary, capricious or otherwise not in accordance with law.”


*          “The sponsors of H.R. 8002 and S. 2472 were well aware of the oyster farm in Drakes Estero.  They nonetheless includes Drakes Estero within the wilderness designation because they did not view the farm’s operations as incompatible with the area’s wilderness status.  Commenting on the Senate bill, Senator Tunney left no doubt on that score, declaring, “Established private rights of landowners and leaseholders will continue to be respected and protected.  The existing agricultural and aquaculture uses can continue.””


*          “The Chair of the Golden Gate National Recreation Area Citizen’s Advisory Committee note that the oyster-farming operations ‘presently carried on within the seashore existed prior to its establishment as a park and have been considered desirable by both the public and park managers.”  He therefore recommended that specific provision be made to allow such operations ‘to continue unrestrained by wilderness designation.’”


*          “The view expressed by these speakers – that continued operation of the oyster farm was fully compatible with Drakes Estero’s designation as wilderness – was not some wild-eyed notion.  It was firmly grounded in the text of the Wilderness Act itself.”


*          “…all indications are that Congress viewed the oyster farm as beneficial, pre-existing use whose continuation was fully compatible with wilderness status.”


*          “In this case, no conflicting laws actually prevented the Secretary from issuing a permit to Drakes Bay.”


*          “It is the equities that carry the day in this case…and the equities strongly favor Drakes Bay.”



The Ninth Circuit Ruled, 2-1 against DBOC.  Kevin and Nancy Lunny have instructed the attorneys to prepare an appeal to the entire Ninth Circuit Court of Appeals.  Judge Watford’s Dissenting Opinion is powerful, clear and compelling.  His Opinion is the reason DBOC is asking for an “en banc” legal review. 


Drakes Bay Oyster Company Remains Open and Will Petition for Rehearing by Ninth Circuit’s Full Eleven-Judge Panel


INVERNESS, CA — The historic oyster farm and last oyster cannery in California announced today that it plans to file a petition requesting that their case be reheard in front of a full elevenjudge panel of the Ninth Circuit. Drakes Bay Oyster Company has assured its supporters that this is not the end for them and has pledged to continue the fight to remain open.


The farm announced that, within 45 days, it will file a petition for an En Banc rehearing. In the meantime, the farm remains open for business.


The small, family-owned farm, which has been in a heated legal battle with federal regulators for its survival, is adamant that the majority opinion got it wrong. “After reading the Court’s decision — and especially the dissent from Judge Watford — we are more convinced than ever that we will prevail based on the merits of our case” said Kevin Lunny, owner of Drakes Bay.


While the Ninth Circuit’s three-judge panel ruled 2 to 1 yesterday against the oyster farm, the company believes the dissenting opinion of Judge Paul J. Watford was absolutely correct. In that dissenting opinion, the Judge admonished the majority’s decision, asserting that it consisted of “hand waving,” containing “nothing of any substance” and that “Drakes Bay is likely to prevail on the merits” (see pg. 47 from the Ninth Circuit decision).


In his dissent, Judge Watford also agreed with the oyster farm that, in enacting the 1976 Point Reyes Wilderness Act, “all indications are that Congress viewed the oyster farm as a beneficial, pre-existing use whose continuation was fully compatible with wilderness status” (see pg. 44 of the decision).  Only recently, he observed, did the Interior Department “bizarrely” change position and insist that the law required the oyster farm to leave in 2012 (see page 43 of the decision). Drakes Bay remains optimistic that the farm will be successful in the next stages of its legal battle.


“With the support of thousands of environmentalists, community members and elected leaders around the nation, we will continue to fight for what’s right and remain committed to succeeding in our fight to remain open and serve our community,” Lunny said. “Although we strongly disagree with the panel’s decision, we remain steadfast in our opinion that we can prevail based on the merits of our case,” Lunny said.


About Drakes Bay Oyster Company

Oyster farming in Drakes Estero, located in Point Reyes, Marin County, has been part of the region’s history for nearly 100 years. The Lunnys, a fourth-generation ranching family, purchased Drakes Bay in 2004 to revive a historical part of the local community and ensure the continued environmental health of Drakes Estero. Drakes Bay currently employs nearly 30 community members, and farms sustainably in Drakes Estero, producing approximately one-third of all oysters in California. The Lunny family works hard to participate in keeping the agricultural economic system in West Marin alive. Drakes Bay actively participates in the creation of a more sustainable food model that restores, conserves, and maintains the productivity of the local landscapes and the health of its inhabitants. For more information, please visit www.drakesbayoyster.com.

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