Business & Tech

Judge Says Drakes Bay Oyster Co. Must Remove Invasive Species as it Fights Shutdown

The farm's appeal of a federal shutdown is now pending before the 9th U.S. Circuit Court of Appeals, which has allowed the company to continue operating for the time being.




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By Bay City News Service

A Marin County Superior Court judge has ruled that the Drakes Bay Oyster Co. must obey a California Coastal Commission order for environmental protections, including removal of two invasive species, while it fights in federal court to avoid being shut down.

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In the federal case, the oyster farm at Point Reyes National Seashore is challenging a 2012 decision by then-U.S. Interior Secretary Ken Salazar to deny it an extension of its permit. Salazar said the site should return to wilderness.

The farm's appeal is now pending before the 9th U.S. Circuit Court of Appeals, which has allowed the company to continue operating for the time being.

Superior Court Judge Lynn Duryee ruled last week in a separate case concerning two state court lawsuits, filed on April 5, in which the company and a citizens' group are asking her to overturn two Coastal Commission orders issued in February.

One of the commission mandates is a cease-and-desist order that requires the removal of two species from Drakes Estero: the Manila clams grown by the farm and a fast-growing marine organism called Didemnum, which attaches itself to underwater racks and shellfish.

The order also requires protections for harbor seals and a plan for managing marine debris, including plastic tubes used on underwater wires by a company that preceded Drakes Bay Oyster Co.

The second mandate is a restoration order that will require the future removal of certain equipment after the federal courts have determined whether the farm can stay or must close.

In a ruling on July 11, Duryee said she will postpone full consideration of the lawsuits' challenge to both commission orders until after the federal case is completed.

But in the meantime, Duryee wrote, the environmental requirements in the cease-and-desist order "remain operative."

Lisa Haage, the commission's chief of enforcement, said, "We're thrilled that the court has seen the importance of these protective measures and kept the (cease-and-desist) order in effect. We are not trying to shut them down. We really want to work to work with them. We have tried not to get in the middle of the lease dispute.”

The commission order, which went into effect in February, requires the farm to submit a plan within 10 days for removal of the Manila clams and a plan within 15 days for removing the Didemnum.

"If they need more time, we'd be happy to talk to them about that," the enforcement chief said.

Farm owner Kevin Lunny said in a statement that he was pleased the judge delayed consideration of the restoration order.

"We are troubled, however, that the commission continues to misrepresent oyster farm operations to the public and the court," Lunny stated. "We will continue to fight and remain confident and hopeful that we will be successful in the next stages of our legal battle.”

Peter Prows, a lawyer for the company, said the farm is already carrying out or planning some of the measures required by the cease-and-desist order.
"The commission is ordering us to do things we've already done," he said.

He said the company does not use plastic tubes and its employees are monitoring debris from those used by a previous company before Kevin and Nancy Lunny took over the farm in 2004.

The company hopes to build an onshore facility to wash the Didemnum off the shellfish, Prows said.

The two lawsuits, which have been consolidated for judicial efficiency, were filed by the oyster company and by Marin County environmentalist Phyllis Faber together with the Alliance for Local
Sustainable Agriculture.

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

The company produces 40 percent of the oysters harvested in California each year, the lawsuits say. It currently has about 20 million oysters and two million clams in the estuary, in various stages of development, according to the lawsuits.

Amy Trainer, executive director of the Environmental Action Committee of West Marin, said Duryee's ruling supports her group's claim that the oyster company "pollutes beaches, fosters the spread of invasive species, and causes harbor seal disturbance (and) has no place in a national park wilderness area."

Copyright © 2013 by Bay City News, Inc. – Republication, Rebroadcast or any other Reuse without the express written consent of Bay City News, Inc. is prohibited.


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