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Drakes Bay Oyster Company Making Final Appeal To Stay Open

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The Drakes Bay Oyster Company. (CBS)

Drakes Bay Oyster Company. (CBS)

DRAKES BAY (CBS SF) – Calling the Drakes Bay Oyster Co. a “shining example of sustainable agriculture,” a lawyer for the business urged a federal appeals court in San Francisco Tuesday to allow the company to keep operating.

Attorney Amber Abbasi argued that former U.S. Interior Secretary Ken Salazar “ignored the public interest in preserving an 80-year-old farm” when he declined last year to extend the company’s permit to operate in the Point Reyes National Seashore.

Company owners Kevin and Nancy Lunny are asking the 9th U.S. Circuit Court of Appeals to issue a preliminary injunction that would enable the farm to continue harvesting oysters while the owners challenge Salazar’s action in a federal trial court.

A three-judge panel of the appeals court took the case under submission after hearing arguments Tuesday morning and will issue a written decision at a later date.

The farm grows oysters on 1,000 acres of submerged lands in Drakes Estero, an estuary of Drakes Bay, and packages them on 1.5 acres of land along the shoreline. It says it produces more than a third of all oysters grown in California.

The Interior Department contends a 2009 law gave Salazar discretion to decide whether to continue the permit beyond 2012, and that he had the authority to decide the area should return to wilderness.

Justice Department attorney David Gunter argued that the Lunnys and a predecessor company, Johnson Oyster Co., reached a bargain with the government when the farm received a 40-year permit in 1962.

“They got their 40 years,” Gunter told the appeals court.

The oyster farm is appealing a decision in which U.S. District Judge Yvonne Gonzales Rogers of Oakland in February refused to issue a preliminary injunction, after concluding that Salazar had “complete discretion” to decide whether to continue the permit.

The appeals court later issued a temporary injunction allowing the farm to stay open until the appeal is resolved.

Current Interior Secretary Sally Jewell replaced Salazar as a defendant in the case after Salazar stepped down and Jewell took office in April.

Abassi said Salazar’s decision is based on a “multitude of errors of law”.

Lawyers for the Justice Department said Salazar was in the right when he backed U.S. Park Service efforts to return Drakes Estero to its natural habitat. They argued that his decision was based on the incompatibility of commercial activities in wilderness.

Conservative Republicans are among the supporters of the Lunny’s and favor commercial use of federal lands.

“We feel very comfortable we’re doing the right thing. We believe in dearly in the protection of natural resources,” Kevin Lunny said.

If the justices rule against Drake’s Bay the farm will close. If they continue the injunction the case will go to trial and could ultimately lead to the U.S. Supreme Court.

(Copyright 2013 by CBS San Francisco and Bay City News Service. All rights reserved. This material may not be published, broadcast, rewritten or redistributed.)

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