Drakes Bay Oyster Company lost its request for an en banc rehearing on Tuesday.
In October, lawyers for Kevin Lunny, the owner of Drakes Bay Oyster Company, filed a petition for what’s called an en banc rehearing with the 9th U.S. Circuit Court of Appeals.
In September, the 9th U.S. Circuit Court of Appeals ruled against Drakes Bay Oyster Company in its fight to remain in business in Point Reyes National Seashore, Calif (where it is the only shellfish farm located within the area) and against the desire of the U.S Department Of The Interior. The primary reason for their ruling was the court believed it lacked proper legal jurisdiction to review Ken Salazar’s purely whimsical decision not to issue a new operational permit for Drakes Bay.
The legal battle grew from a closure order issued on Nov. 29, 2012, when then Interior Secretary Ken Salazar said he would allow a 40-year lease that originally negotiated with The Johnson Oyster Co. in 1972 and taken on by Drakes Bay — to expire and without extension. In 1972, the federal government bought the land from The Johnson Oyster Co. for $79,200 and provided the lease. Kevin Lunny took over the lease in 2004.
At the Drake’s Bay Oyster Company website, Kevin Lunny explains:
In November 2012, the National Park Service issued a decision that would shut down our business. In the course of this decision, NPS misrepresented the law, our contracts with the State of California, and the results of scientific studies. The fight is not over. To contribute to our legal defense fund go here: https://www.farmtoconsumer.net/donation_drakes.asp
This video from a rally shows the passion Drakes Bay Oyster Company fans have for the business, and its product:
After what amounts to three court losses, and primarily over the issue of if the lower courts can tell the Department Of The Interior to go fly a kite (they can’t), Lunny believes his only option is the U.S. Supreme Court.
“We believe the Court’s decision not to rehear our case is incorrect, and that the dissenting opinion from Judge Watford will prevail. Because of that, we are requesting our case be heard by the U.S. Supreme Court. We are grateful for our thousands of supporters, partners, customers and patrons that have supported our small, family-owned farm for four generations. We remain committed to succeeding in our fight to remain open and serve our community,” Lunny said.