Amy Trainer, Environmental Action Committee of West Marin executive director
Image: S. Todd Rogers/The Recorder
POINT REYES NATIONAL SEASHORE — For years, it has set off scientific debate, turned neighbor against neighbor, incited angry editorials — and even prompted an act of Congress.
This coming week the fate of a family-owned oyster farm in coastal Marin County will come before a federal judge.
By now the basic controversy is well-known: The owners of Drakes Bay Oyster Co. were operating in a protected wilderness zone under a 40-year lease from the federal government. One day before the lease expired Nov. 30, the U.S. Department of the Interior refused an extension and gave the owners three months to close down their business.
On Friday, Drakes Bay Oyster Co. will ask U.S. District Judge Yvonne Gonzalez Rogers in Oakland to block that order from taking effect until a court challenge can be decided.
It could be owner Kevin Lunny's last stand in a hard-fought battle that has divided his community, sown dissension between eco-conscious foodies and environmentalists, and galvanized conservative media outlets because it pits a small business against the federal government.
One could say these oysters have been anything but aphrodisiacs.
To Amy Trainer, an environmental lawyer and outspoken advocate for the farm's removal, the survival of one business is secondary to the goal of creating a marine wilderness preserve, an outcome she views as the fulfillment of a decades-old promise to the American people.
"The process was supposed to take politics out of the decision," said Trainer, executive director of the Environmental Action Committee of West Marin. "Once Congress says something is potential wilderness, it's on a one-way journey."
Remarkably, given the fierce advocacy on both sides, this is the first time the dispute has come before a judge.
To grant an injunction, Gonzalez Rogers must consider whether Drakes Bay Oyster Co. is likely to ultimately win its case. She will also evaluate whether the business faces irreparable harm without relief, whether the equities weigh in the oyster farm's favor, and whether an injunction is in the public interest.
Leading the legal fistfight is Cause of Action, a libertarian advocacy group with ties to Tea Party politics. The Washington, D.C., group represents the oyster company pro bono and has also been leading an aggressive public relations campaign.
A preliminary hurdle for the lawyers will be persuading Gonzalez Rogers she can take up the case under the Administrative Procedure Act, which provides an avenue for judicial review of some executive decisions.
Also at issue is a provision of the Interior Department's 2010 appropriations bill, authorizing a new 10-year permit to be issued to Drakes Bay Oyster Co. "notwithstanding any other provision of law."
The government claims in court filings that since Interior Secretary Kenneth Salazar took no action and simply allowed an existing lease to expire, the decision is unreviewable. For the same reason, Justice Department lawyers argue the Interior Department was exempt from compliance with the National Environmental Policy Act, or NEPA.
Amber Abbasi, the company's lead lawyer at Cause of Action, calls those assertions "ridiculous."
Salazar took action when he denied the oyster farm's application for a new permit, Abbasi said. What's more, Abbasi adds, the Interior Department and National Park Service did not follow mandated standards under NEPA, which requires an environmental impact study and public comment prior to federal action.
"Congress doesn't want the federal agencies to be able to get away with something like this," Abbasi said.
What her group wants is to preserve the status quo so the oyster farm can survive to fight its case in court. If Lunny doesn't win his injunction, the farm is done, Abbasi said.
"That's the kind of injury that can't possibly be compensated."
Preserving the pristine
Drakes Estero is a marshy inlet from Drakes Bay with four separate bays. From an aerial view it resembles a misshapen hand with crooked fingers probing into the coastline on the southern side of the Point Reyes peninsula.
On land, the farm has a small footprint — an office trailer, a small shack selling oysters, a storage shed, a few residential trailers, equipment and some picnic tables. But underwater, oyster racks stretch over at least 147 acres, becoming visible at low tide.
The sheltered waters of the estuary have been used for commercial oyster farming for nearly 80 years. At present, roughly 20 million oysters — worth perhaps $10 million — are being cultivated in the waters of Drakes Estero and would be lost if the farm shuts down.
Environmental groups view the estero, which is home to harbor seals and thousands of birds, as the ecological heart of Point Reyes National Seashore.
In 1976, Congress designated Drakes Estero a potential marine wilderness. Ever since, the only barrier to full wilderness protection has been the oyster farm, operating under the fixed-term agreement between the farm's previous owner and the U.S. government, which purchased the land in 1972.
On a sunny January afternoon, Lunny's sister and farm manager, Ginny Cummings, handles media interviews even as she answers phones and serves customers in the farm's store.
Behind the glass counter, heaps of shellfish sit on ice beds. Atop the counter are two canisters collecting donations for the farm's workers who stand to lose their jobs as well as their residences on the property.
That's what gets to Cummings, who was raised along with Lunny and four other siblings on a neighboring ranch within the national park.
She worries about the farm's roughly 30 employees finding work and affordable housing, as well as her own livelihood. She left a job as a school administrator in Sonoma County to help her brother manage the business. At 58, she wonders who would hire her.
"Why couldn't we have worked out a system, a program where we could have worked together?" Cummings said. "What are we gaining by taking away our local sustainable food sources?"
Particularly disappointing to Cummings was the crusade of environmental groups to get rid of the farm. "What it is," she said, "is a really sad separation between local food producers and wilderness seekers."
The disappointment goes both ways.
Trainer, a Kansas native who had been working in Colorado, knew she was stepping into a fight when she took the job with the Marin environmental committee to advocate for converting Drakes Estero to full wilderness status. But when she moved to the tiny Marin County community of Inverness in 2010, Trainer was not prepared for the vitriol.
Six weeks into her new job, Trainer wrote an op-ed for the Marin Independent Journal urging the National Park Service to expel Drakes Bay Oyster Co. at the end of its lease.
"Isn't it a break of public trust to prioritize private commercial use of this national park over securing wilderness status that the public and wildlife have anticipated for nearly 40 years?" she wrote.
In response to the editorial, supporters of the oyster farm called for her job.
Trainer's organization is one of four environmental groups that have asked to intervene in Drakes Bay's legal challenge, over opposition from Lunny's lawyers.
"It's been so divisive in the community," she said during a recent visit to the marshy estuary. "There are a lot of people who just don't talk to each other anymore."
Slimy Aftertaste
Kevin Lunny and two of his brothers purchased the oyster farm, previously known as Johnson Oyster Co., in 2004, and took over the lease, technically a reservation of use and occupancy. Speaking by phone this past week, Lunny said the agreement explicitly provided for the possibility of renewal.
"The fact that the lease had an expiration date made it no different than any other lease," he said.
As part of the shore's ranching community, Lunny knew that every ranch and dairy farm in the Point Reyes National Seashore had been permitted to remain on the land by extending agreements with the federal government. He was optimistic.
Shortly after the purchase had been finalized and his family had invested roughly $300,000 to clean up and improve the oyster farm, Lunny said he began getting distressing signals from the National Park Service that the agency intended to shut down the farm in 2012.
The sides have been feuding ever since, often clashing over whose scientific reports are more accurate. (The National Park Service claims the oyster farm disrupts the estuary's seal population; Lunny believes the oysters contribute to the marine ecosystem by filtering waste).
Lunny won a round in 2009, when Senator Dianne Feinstein pushed through Congress an appropriations rider authorizing a new permit.
But now language in the law has been turned against the oyster farm.
Since the measure authorizes a new permit to issue "notwithstanding any other provision of law," DOJ lawyers claim the Interior Department had no obligation to comply with NEPA.
Lawyers for the oyster company insist that language would apply only to the grant of a permit, not its denial.
In his November order, Interior Secretary Salazar drew a distinction between the oyster farm, operating in the waters of Drakes Estero, and dairy and beef ranching operations, which he called a vibrant and compatible part of the national seashore. Even as he ordered the oyster farm's closure, Salazar directed the National Park Service to extend ranching permits to 20-year terms.
"That's one thing that's very strange," Abbasi said. "It seems that only Drakes Bay Oyster Co. falls afoul of the National Park Service."
To the pro-wilderness crowd, the bottom line is that the oyster farm's right to occupy Drake's Estero had a clear end date, which Lunny knew when he bought the business.
"They risked it," said Neal Desai, associate director of the National Parks Conservation Association for the Pacific region. "This was a business decision."
Desai said it was critical for Salazar to end oyster farming in the potential wilderness area so future attempts to convert land to wilderness would have credibility.
"Hopefully," he said, "this will send the right message."
Correction: An earlier version of this article incorrectly referred to some ranching and dairy businesses as operating within the "protected wilderness area" or "wilderness zone." In fact, those businesses are on properties that, though part of the Point Reyes National Seashore, are not designated wilderness areas.
