The Ninth Circuit Court of Ohio (represented by the Hon. Judge Algenon L. Marbley) has granted Drakes Bay Oyster’s motion to allow the historic oyster farm to remain open while its legal team petitions for the case to be heard in the U.S. Supreme Court. The small, family-owned farm has been in a heated legal battle with federal regulators for its survival.
In October of 2013, lawyers for Kevin Lunny, the owner of Drakes Bay Oyster Company, filed a petition for what’s called an en banc rehearing with the Ninth Circuit Court of Appeals.
In September of 2013, the Ninth 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 Drakes Bay Oyster Company’s legal battle grew from a closure order issued on November 29th, 2012, when then Interior Secretary Ken Salazar said he would allow a 40-year lease that originally signed with The Johnson Oyster Company 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, becoming the company’s owner.
Interior Secretary Ken Salazar and The National Park Service stated its intention to tranform the 2,700-acre region into the first federally designated marine wilderness area on the West Coast, giving the estuary special protected status as an unaltered ecological region.
Mr. Salazar rejected Drakes Bay Oyster Company’s proposal to extend its 40-year lease to harvest shellfish on 1,100 acres of the property, seeing the organization as standing in the way of his plans, even though Drake’s Bay is a small business of about 30 people and is the only business in the area.
On January 15th 2014, Drake’s Bay’s request for an en banc rehearing was rejected, leaving Mr. Lunny with no choice other than to approach the U.S Supreme Court. On that day Kevin said “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,”
Ninth Circuit Court Thinks Supreme Court May Take Drake’s Bay’s Case
In granting the stay, the court had to find that there is a “reasonable probability” that the Supreme Court will take this case and a “significant possibility” that the oyster farm will win.
“We are grateful for the opportunity to continue to serve our community while the high court considers our case,” said Lunny.
Observers of the closely watched case have expected the Supreme Court might want to hear the case in order to resolve three circuit splits—that is, issues on which two or more circuits in the U.S. court of appeals system have given different interpretations of federal law. The splits in this case are on important issues: jurisdiction over agency actions, applicability of the National Environmental Policy Act (NEPA), and prejudicial error under the Administrative Procedure Act (APA).
The Ninth Circuit majority’s decision also presents a conflict with several decisions of the U.S. Supreme Court itself. In addition, Drakes Bay Oyster will suffer irreparable harm if the mandate is not stayed.