By GUY KOVNER
THE PRESS DEMOCRAT
A federal appeals court in San Francisco on Tuesday denied Drakes Bay Oyster Company’s bid for a rehearing in the year-old case that pitted the family-owned farm in Point Reyes National Seashore against the federal government.
The ruling by three judges from the 9th Circuit U.S. Court of Appeals marked the third time that federal courts have rejected oyster farm operator Kevin Lunny’s bid to continue harvesting $1.5 million worth of oysters a year from Drakes Estero.
In reaching Tuesday’s decision, Judge M. Margaret McKeown voted to deny a rehearing of the case before a panel of 11 judges, and Judge Algenon Marbley agreed.
Judge Paul J. Watford voted to grant the rehearing.
None of the 9th Circuit’s 28 judges requested a vote on the oyster farm’s request for a second hearing, the order said.
“No further petitions for en banc or panel rehearing shall be permitted,” the order said.
Lunny’s lawsuit challenged former Interior Secretary Ken Salazar’s decision in November 2012 not to renew a federal permit for oyster farming in the 2,500-acre estero.
In Tuesday’s ruling, McKeown said the appeal “pits an oyster farm, oyster lovers and well-known ‘foodies’ against environmentalists aligned with the federal government” and “has generated considerable attention in the San Francisco Bay area.”
Restaurateur Alice Waters, former lawmakers and the Sonoma County Farm Bureau are among the parties that filed briefs in support of Lunny’s case.
Wilderness advocates argued that the estero belongs to the public and commercial operations should be removed.
“We are exceedingly grateful for the court’s decision to support full wilderness protection for the magnificent Drakes Estero,” Amy Trainer, executive director of the Environmental Action Committee of West Marin, said in a statement.
Lunny’s case has been handled by several teams of lawyers, all working for free.
In December, one of Lunny’s attorneys said he would likely appeal the case to the U.S. Supreme Court if the 9th Circuit refused to rehear the case.
Peter Prows, a San Francisco attorney who is part of Lunny’s legal team, was not immediately available for comment Tuesday.