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Appeals court denies Drake’s Bay Oyster Company’s rehearing bid

Francisco Manzo, left, and Francisco Lopez process oysters at the Drakes Bay Oyster Farm facility near Inverness in this 2012 file photo. For the third time, a federal appeals court has rejected Drake's Bay Oyster Company's bid to appeal last year's ruling that shut down the farm's operation at Drakes Estero. (Christopher Chung/ The Press Democrat)

Francisco Manzo, left, and Francisco Lopez process oysters at the Drakes Bay Oyster Farm facility near Inverness in this 2012 file photo. For the third time, a federal appeals court has rejected Drake’s Bay Oyster Company’s bid to appeal last year’s ruling that shut down the farm’s operation at Drakes Estero. (Christopher Chung/ 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.

5 Responses to “Appeals court denies Drake’s Bay Oyster Company’s rehearing bid”

  1. Geoff Johnson says:

    Lunny was fully aware when he bought it that the oyster farm was scheduled to close. Perhaps he thought he had the clout to reverse that decision.

    It looks like he doesn’t. Now it’s time to bite the bullet, and shut down his for-profit farm on public property.

    Anyone want to adopt an oyster?

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  2. James Bennett says:

    Follower: liked your post.
    Yes, fascist is the appropriate word to use.
    A global corporate takeover under the guise of environmentalism.

    The Lunny’s are wonderful stewards of the land. In fact the Parks Dept. awarded them for same many years ago.

    Before UN Agenda 21 Sustainable Development was conceived by multinational corporations.

    They think the world is their…oyster.

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  3. Follower says:


    Let the Fascists use lies & misinformation to advance their cause. We don’t need too because we have facts on our side.

    The fact is, this isn’t “private property” but that’s not the point.

    The fact is that this oyster farm has been there long enough for the ecosystem to adjust too it’s effects. After all these years those beds are part of the ecosystem and removing them now will only destroy the environment the fascists pretend to be protecting.

    And that’s their “lie”.

    They have absolutely NO INTEREST in “protecting the environment”.

    They’re only concern is “advancing the agenda”, by any means, at any cost.

    I remember going shooting with my father at Sears Point Road when I was a kid. Seeing the huge mountains of salt off in the distance next too Scaggs Island from the Salt plant extracting salt from the bay waters.

    Then the Fascists moved in and declared it a wildlife sanctuary to “protect the environment”.

    They tore down Skaggs Island and kicked the salt plant out.

    Now we can’t widen Hwy 37 so we have cars & trucks backed up daily spewing pollution into the air as the crawl across the “wildlife refuge”.

    But that’s “OK” because it’s about “the agenda”, NOT the “pollution”.

    Within 20 years that area has returned to what it was before the “evil humans” moved in and set up shop.

    So the “irreparable” damage the Fascists claim we “evil humans” have been causing isn’t so “irreparable” after all… IS IT?!

    Let the Fascists tell their lies, the coming backlash is written is history. History we are doomed to repeat.

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  4. Robert says:

    Once again we see the federal government taking private property away from a lawful businessman. This is another clear example of how we are losing our property rights in this country.

    The liberals will use regulations, taxes and the courts to put businesses out of business and gain control over private property.

    Another freedom lost.

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  5. James Bennett says:

    A one two punch for the Agenda.

    1) Take out another business.
    2) Take out a major draw to a small town outside the ‘Transportation Corridor’.

    Although many well meaning folks are complicit with the Agenda blinded by environmental concern…
    the conception and intention of this ideology IS NOT ABOUT THE ENVIRONMENT.

    It;s about what oppression is always about: Control and Impoverishment
    (the 1st making it easier to implement the 2nd).

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