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Drakes Bay owners will file appeal with Supreme Court

AN OYSTER-GROWING ISLAND is seen nestled within Drakes Estero at Point Reyes National Seashore. Jon A. Soliday/Special to the Index-Tribune

AN OYSTER-GROWING ISLAND is seen nestled within Drakes Estero at Point Reyes National Seashore. Jon A. Soliday/Special to the Index-Tribune

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The ongoing bid by Drakes Bay Oyster Co. to remain at Point Reyes National Seashore suffered another blow Tuesday after a federal appeals court denied requests for a rehearing.

But company owner Kevin Lunny says it’s not over yet for this year-old case pitting the family-owned oyster farm against the federal government, as he now plans to take it to the highest court in the land.

“We believe the court’s decision not to rehear our case is incorrect, and that the dissenting opinion … will prevail,” Lunny said in a statement following the recent ruling. “Because of that, we are requesting our case be heard by the U.S. Supreme Court.”

Tuesday’s denial by the Ninth Circuit Court of Appeals in San Francisco – a split ruling by three judges – marked the third time federal courts have rejected Lunny’s bid to continue harvesting $1.5 million worth of oysters a year from Drakes Estero, a federally protected 2,500-acre estuary.

In reaching Tuesday’s decision, appeals court Judge M. Margaret McKeown and Judge Algenon Marbley voted to deny Lunny’s request for a rehearing of the case before a panel of 11 judges, while Judge Paul J. Watford voted to grant the rehearing. The same three judges voted the same way in September, deciding 2-1 to uphold a federal district judge’s initial decision in February.

“No further petitions for en banc or panel rehearing shall be permitted,” Tuesday’s order said.

Lunny’s lawsuit challenges former Interior Secretary Ken Salazar’s decision in November 2012 not to renew an expiring federal permit granted 40 years ago to the oyster farm’s previous owner. In all three court decisions, federal judges held that Salazar had the authority to let Lunny’s permit lapse and that the courts lacked authority to overturn that decision.

Wilderness advocates argue that the estero belongs to the public and commercial operations should be removed. On Tuesday, Johanna Wald, a Natural Resources Defense Council attorney, said that the “preservation of Drakes Estero will be enjoyed by millions of Californians and visitors to wilderness and parks for generations to come.”

It was not immediately clear whether Drakes Bay would be allowed to continue operations while it appealed Tuesday’s ruling to the Supreme Court.

Tina Walker, a spokeswoman for the company, said the Lunnys are “hoping to stay open throughout the process.”

Legal experts say the high court hears only about 1 percent of the 10,000 cases it receives each year.

The Lunny family has strong ties to Sonoma, with several of the family members living here.