By Jonathan Harsch
SAN FRANCISCO, May 15, 2013 - California rancher and oyster farmer Kevin Lunny emerged from a contentious court hearing in San Francisco yesterday, confident that “this court is going to come to a decision that will allow us to continue” – continue his oyster farming business. But he’ll only be able to continue if the federal courts overturn former Interior Secretary Ken Salazar’s decision last November to refuse to renew Lunny’s lease to operate on public lands.
Lunny is still in business thanks to a temporary injunction issued by the 9th U.S. Circuit Court of Appeals. He hopes the May 14 hearing will convince the court’s three judge panel to extend the injunction while he pursues a legal challenge to Salazar’s decision.
What gives this case national importance is that Lunny’s Drakes Bay Oyster Company operates inside Point Reyes National Seashore which the National Park Service contends was always intended to become a wilderness area. (See Agri-Pulse 5-8-13 issue). Some observers are concerned that if the federal courts uphold Salazar’s decision to end the oyster company lease, this could become a precedent for removing ranching from public lands across the count
The appeals court judges are expected to rule within the next two weeks on Lunny’s request to extend the injunction. But the legal battle could end up in the Supreme Court before there is a final decision on whether a “wilderness designation” can trump traditional uses such as public lands ranching.
In the appeals hearing Tuesday, the three judges heard arguments from the two contending attorneys. Department of Justice attorney J. David Gunter defended the right of the Interior Department to end the oyster company’s lease. Amber Abbasi, chief counsel for Cause of Action, a Washington, D.C.-based nonprofit, argued for the oyster farm’s right to have its lease extended.
Pointing out that Drakes Bay Oyster Co. is a “shining example of sustainable agriculture,” Abbasi charged that by refusing to renew the company’s lease, the Interior Department and the National Park Service “thumbed their nose at Congress and the courts, disregarded the data, and made an uninformed decision.” She also contended that Salazar’s non-renewal decision, as demonstrated in a series of National Academy of Science findings, was based on “fabricated science” and “flawed data.”
According to Gunter, what’s important is not science but clear federal policy which has established that commercial uses “should be removed” from wilderness areas. He said Salazar’s decision correctly “was based on the incompatibility of commercial activities in wilderness on a policy basis, not on any disputed science.”
In a possible indication of which way the three-judge panel is leaning, during Tuesday’s hearing Judge Margaret McKeown noted that congressional legislation gave the Secretary of the Interior authority to extend the Drakes Bay Oyster Company lease but did not require him to do so. Accordingly, she said that when a decision is “committed to agency discretion by law,” courts lack the authority to intervene.
Judge Paul Watford appeared to agree, saying that “This really is a policy call” rather than a legal question. But Watford also noted that congressional legislation in 2009 showed that Congress was having second thoughts about banning commercial activity at Point Reyes, leaving him uncertain about Salazar’s decision to end the oyster company’s lease.
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