Drakes Bay Oyster Co., Sustainable Ag Group File Lawsuits in Ongoing Point Reyes Standoff

By Bay City News Service

The Drakes Bay Oyster Co. and a citizens' group have filed two similar but separate lawsuits in Marin County Superior Court to challenge recent California Coastal Commission orders that would require the oyster farm to curtail its activities.

The two lawsuits, both filed on Friday, are not part of a federal case in which the farm at Point Reyes National Seashore is challenging a decision by U.S. Interior Secretary Kenneth Salazar to close it.

In the federal case, a panel of the 9th U.S. Circuit Court of Appeals is due to hear arguments in San Francisco on May 14 on the company's appeal of Salazar's decision to deny it a permit extension and thereby enable the site to return to wilderness.

The court has allowed the farm to continue operating during the appeal.

One of the Superior Court lawsuits was filed by the Marin County-based Alliance for Local Sustainable Agriculture and Phyllis Faber, a longtime Marin resient and alliance member who is a former Coastal Commission member.

The second was filed soon afterwards by the oyster company.

Both suits allege the orders issued by the commission on Feb. 7 "would effectively shut down the farm," even if it wins its federal case, through expensive requirements for removal of certain equipment and changes in its operations.

"The effect of the operational constraints, cultivation restrictions and other work immediately required would be so financially onerous on the family-owned farm as to cause it to cease operations," both lawsuits say.

Zachary Walton, a lawyer for the alliance, said Superior Court Judge Lynn Duryee this morning scheduled a July 9 hearing on the alliance's request for a ruling overturning the commission orders.

Walton said he was not aware of any request by the oyster farm for a similar hearing, but noted that the farm could seek to participate in the July 9 session either as a so-called "real party in interest" in the alliance lawsuit or in connection with its own lawsuit.

Richard Idell, a lawyer who filed the oyster company's Superior Court lawsuit, was out of town and not available for comment today.

The farm owned by Kevin and Nancy Lunny grows oysters and clams on about 1,000 acres of submerged land in Drakes Estero, an estuary of Drakes Bay, and processes and cans them on three shoreline acres.

It produces 40 percent of the oysters harvested in California each year and runs the state's last remaining oyster cannery, according to the lawsuits.

The coastal commission's orders would require the company to stop cultivating Manila clams, remove an invasive organism called Didemnum from its shellfish and equipment, and forego using boats in the estuary at certain times of year, the lawsuits say.

If the farm wins its federal appeal to remain open, the orders would also require it to remove equipment that lacks permits, including onshore picnic tables, a 40-foot-long oyster-packing container and up to 95 underwater oyster racks, according to the lawsuits.

The lawsuits claim the commission failed to prepare an environmental impact report on the effect of its orders and allege that its actions intrude on California Fish and Game Commission's authority to regulate fishing in the estuary.

A spokeswoman for the Coastal Commission could not be reached for comment today.

But in a letter sent to Lunny last year, Coastal Commission enforcement analyst Jo Lundberg said that both the coastal and the fish and game commissions consider shellfish cultivation in the estuary to be agriculture rather than fishing, and therefore within Coastal Commission's authority.

The letter alleges that plastic debris and the use of motorized boats during the harbor seal pupping season "pose serious threats to marine habitats and wildlife." It says the commission has been communicating with the company about alleged California Coastal Act violations since 2007.

The two lawsuits say the oyster company has taken steps to protect harbor seals by restricting boat traffic during the pupping season and minimizing disturbances.

They say the company makes environmental protection a priority in its mission of providing local, sustainable food and "orients its operations to minimize its impact on the environment."
Amy Trainer, the executive director of the Environmental Action Committee of West Marin, said, "This corporation has made millions of dollars cultivating shellfish in our public waters without any coastal permits, yet thinks the coastal protection rules of California somehow do not apply to
it."

"After being caught violating harbor seal protections, littering beaches and marine waters with thousands of pieces of its plastic debris, spreading invasive species, and developing without any permits, it chose to sue the commission rather than comply with coastal protection laws," Trainer
alleged.

The committee has participated in the federal case by filing friend-of-the-court briefs supporting Salazar's decision.

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