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Appeals court upholds decision to close Marin County oyster farm

A federal appeals court ruled Tuesday that the government acted correctly when it ordered a Northern California oyster farm to close to clear the way for the first marine wilderness on the West Coast.

The 2-1 decision by the U.S. 9th Circuit Court of Appeals deals a blow to the years-long effort by a Marin County oyster farmer to extend his federal lease in Point Reyes National Seashore.

Then-Interior Secretary Ken Salazar refused to grant the extension in November, citing terms of an agreement the former owners of the farm signed 40 years ago as Congress moved toward creating the marine wilderness.

The decision begins to make way for a wilderness area at Drakes Estero. It also signals that the family of Kevin Lunny, owners of Drakes Bay Oyster Co., will be ordered to close the operation, which has a substantial footprint on both the shore and in the picturesque estuary.

The farm was scheduled to close in February but has continued to operate under a preliminary injunction pending a court ruling.

The Circuit Court decision leaves Lunny limited legal options.

He can ask the 9th Circuit to reconsider. Failing that, he could request an en banc review from all judges on the panel. And, if Lunny alleges any violations of his constitutional rights, he could appeal to the U.S. Supreme Court.

In a statement, Lunny said he was talking with his attorneys and considering his options.

In oral arguments in May, attorneys for Lunny argued that Salazar's decision was based on flawed science that indicated the oyster operation harmed the estuary. Salazar, who left the Interior post in March, said it was policy, not science, that guided his ruling. The court found no legal basis to reverse the decision, saying that it could not resolve matters of science and that any errors made during the environmental review were "harmless."

"Taxpayers can rejoice that the land they bought and own in Point Reyes National Seashore will now be protected as planned after 40 years of waiting," said Neal Desai, associate director of the Pacific region for the National Parks Conservation Assn.

The oyster farm has been operating since the 1950s, tucked into rolling green coastal bluffs now designated as a pastoral zone by the National Park Service. Neighboring beef and dairy farms, including one operated by Lunny's family, have long-term leases with the park that are unaffected by the court ruling.

Lunny purchased the oyster farm in late 2004 and took over a 40-year lease that was to expire Nov. 30, 2012. Once the farm was removed, the waters were to be managed as a wilderness area.

Disagreement over the terms of the lease quickly became the crux of an often-bitter dispute with park managers.

Lunny has maintained that federal authorities have the discretion to renew the farm's permit, despite a ruling from the park service solicitor that federal law dictated the conversion to wilderness.

To forestall that, Sen. Dianne Feinstein (D-Calif.) sponsored a rider to a 2010 appropriations bill that gave Salazar the discretion to extend the farm's operating permit.

Lunny has said that park officials gave him indications that his permit would be extended, although the court noted the official record reflects that Lunny took over the lease "with his eyes wide open" and that for years the park service repeatedly informed him of its intention to let the permit expire.

In their majority ruling, Judges M. Margaret McKeown and Algenon L. Marbley wrote, "The only reasonable expectation Drakes Bay could have had at the outset was that such a closure was very likely, if not certain."

Judge Paul J. Watford was equally steadfast in his dissent, writing, "Continued operation of the oyster farm is fully consistent with the Wilderness Act, and the farm's existence is therefore not an 'obstacle' to converting Drakes Estero to wilderness status as directed by the Point Reyes Wilderness Act."

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