A federal judge in Oakland could decide on Friday whether to green-light the creation of the first marine wilderness on the West Coast — or block it indefinitely. At issue is a federal lawsuit filed by Drakes Bay Oyster Company against US Interior Secretary Ken Salazar concerning his decision to let the oyster farm's lease expire at Point Reyes National Seashore. The oyster farm is asking federal Judge Yvonne Gonzales Rogers to issue a preliminary injunction, allowing it to continue operating as the case winds its way through the courts. If the judge agrees, it will effectively block the National Park Service's plans to create a marine wilderness at Drakes Estero.
The case also could have implications for the rights of private businesses operating on public land. As the Express previously reported, the oyster farm's owner, Kevin Lunny, is being represented in court by a Washington, DC nonprofit, Cause of Action, that has ties to the ultra-conservative Koch Brothers and the Republican Party — both of which have long sought to strengthen the rights of private enterprise at the expense of environmental protections (see "Here Come the Vultures," 12/12/12).
The lawsuit centers on the issue of whether the US government was required under federal law to conduct a comprehensive environmental review before denying the oyster farm's request to extend its lease for ten years. Cause of Action contends that the government not only should have done so, but that the environmental review it completed was fatally flawed. The oyster farm's lawyers also say it will be ruined unless the judge grants an injunction that allows it to keep operating. "The secretary's decision will cause immediate and irreparable harm to plaintiffs, their employees, the environment, and the public," stated Cause of Action attorney Amber Abbasi in court documents. "It will kill the farm's entire shellfish crop — approximately 19 million immature oysters and 2 million immature clams — and destroy its business."
However, the US Attorney's Office and environmental groups that have intervened in the case contend that the oyster farm should have been better prepared for the likelihood that Salazar would not renew the lease. As such, the oyster farm's impending losses are "self-inflicted," they said. They noted that the park service had repeatedly told Lunny that his lease would not be renewed. Moreover, as the Express has reported, a lease extension would have been unprecedented (see "Dianne Feinstein's War," 6/13/12). According to research conducted at UC Berkeley School of Law, the federal government has never before extended the lease of a "nonconforming" commercial operation, such as an oyster farm, on public land designated by Congress to become wilderness. Congress made that designation for Drakes Estero in 1976. The oyster farm was allowed to keep operating at the estero until the end of its lease in November 2012.
The US Attorney's Office and environmental groups — Environmental Action Committee of West Marin, National Parks Conservation Association, Natural Resources Defense Council, and Save Our Seashore — also argue that there is no legal requirement for the federal government to complete an environmental review when a private company's lease is about to expire. In his decision memo in November, Salazar stated that his choice not to renew the oyster farm's lease was based on "law and policy" and not the environmental impacts of the oyster farm. (The farm does have impacts, but their extent is a matter of dispute.)
In essence, the oyster farm and Cause of Action hope to win on two legal arguments: First, they contend that Salazar's decision to not renew the lease constituted a "major action" under federal law, and thus is reviewable by the courts. And second, they argue that legislation authored in 2009 by US Senator Dianne Feinstein — a big supporter of the oyster farm — required the federal government to conduct a comprehensive environmental review if Salazar sought to deny the lease renewal. Cause of Action argues that Feinstein's bill required no such environmental review if Salazar had decided to renew the lease.
Both the US Attorney and environmental groups have labeled Cause of Action's argument as "tortured." They contend that Feinstein's bill specifically gave Salazar the discretion to renew the lease or allow it to expire on his own without an environmental review. They also contend that the decision to let the lease expire was routine, and thus a not a "major action." "I think their interpretation just ignores the plain language of [Feinstein's legislation] and the law; it turns it on its head," said Amy Trainer, executive director of the Environmental Action Committee of West Marin.
Moreover, if the oyster farm were to win in court, then it could open the door for private businesses that operate on public land to file lawsuits against the US government whenever it lets their leases expire. An oyster farm victory also could prompt other members of Congress to seek special legislation on behalf of private businesses operating on public property in their states, knowing that it would force the federal government to complete expensive environmental reviews when denying lease extensions — but not when renewing them. Such an outcome thus could prompt cash-strapped public agencies to routinely extend leases for private companies, rather than spend money they don't have on costly environmental reviews and court cases.