As promised, the Drakes Bay Oyster Co. appealed to an expanded panel of a federal appeals court in San Francisco today to allow it to keep operating at Point Reyes National Seashore.
The oyster farm and owner Kevin Lunny asked an 11-judge panel of the 9th U.S. Circuit Court of Appeals to reconsider a decision in which a smaller panel of the court ruled against the company by a 2 to 1 vote in September.
In that ruling, the smaller panel upheld a federal trial judge’s denial of a preliminary injunction that would have allowed the oyster harvesting to continue until a full trial is held on the company’s lawsuit against the U.S. Interior Department.
The oyster company is challenging former Interior Secretary Kenneth Salazar’s decision last year to refuse a lease extension and thereby enable the site at the national seashore to return to wilderness.
A trial in the court of U.S. District Judge Yvonne Gonzalez Rogers in Oakland would be months away, and the current appeal concerns whether the company can stay in business until then.
In the meantime, it is continuing to operate under a short-term temporary injunction granted by the appeals court for the period while it appeals the injunction issue.
Today was the 45-day deadline for the company to file a petition seeking rehearing of the three-judge panel’s Sept. 3 ruling. The oyster company previously announced on Sept. 4 that it planned to do so.
Reconsideration by an 11-judge panel is known as en banc review. The appeals court receives about 1,000 petitions per year for such review and grants about 20, according to a court spokesman.
The petition contends the smaller panel’s ruling conflicts with U.S. Supreme Court decisions on “questions of exceptional importance” concerning judicial review of agency decisions.
In the Sept. 3, ruling, the panel majority said a 2009 federal law gave Salazar the authority to refuse to renew the lease. It also said Lunny took over the remainder of a 40-year lease from another company in 2004 with “full disclosure” that the department did not intend to renew the permit when it expired in 2012.
The farm grows oysters on 1,000 acres of submerged lands in Drakes Estero, an estuary of Drakes Bay, and packages them on 1.5 acres of land along the shoreline. It says it produces more than a third of all oysters grown in California.
The appeals court has no deadline for acting on the petition. If it declines to grant a rehearing, the oyster company could appeal to the U.S. Supreme Court.
Julia Cheever, Bay City News