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Drakes Bay Oyster Co. plans appeal after latest court defeat

  • Francisco Manzo, left, and Francisco Lopez process oysters at the Drakes Bay Oyster Farm facility near Inverness in this 2012 file photo. For the third time, a federal appeals court has rejected Drake's Bay Oyster Company's bid to appeal last year's ruling that shut down the farm's operation at Drakes Estero. (Christopher Chung/ The Press Democrat)

A federal appeals court in San Francisco on Tuesday denied Drakes Bay Oyster Company’s bid for a rehearing in the year-old case pitting the family-owned farm in Point Reyes National Seashore against the federal government.

The split ruling by three judges from the 9th Circuit U.S. Court of Appeals marked the third time that federal courts have rejected oyster farm operator Kevin Lunny’s bid to continue harvesting $1.5 million worth of oysters a year from Drakes Estero, a federally protected 2,500-acre estuary.

But the controversy that roiled Marin County politics for years before gaining national attention as a test of preservation versus profit-making activity on federal lands is not over.

Lunny said he will will seek a hearing by the U.S. Supreme Court, the ultimate step in the judicial system.

“We remain committed to succeeding in our fight to remain open and serve our community,” he said in a news release issued Tuesday evening.

The high court hears about 1 percent of the 10,000 cases it receives each year, said Heather Bussing, an Occidental attorney and Empire College of Law instructor.

Given those odds, Lunny might fare better by seeking congressional approval of a new permit, she said.

Wilderness advocates hailed the ruling, noting that it comes at the beginning of 2014, the 50th anniversary of the Wilderness Act approved by Congress in 1964.

“This is a great decision,” said Amy Trainer, executive director of the Environmental Action Committee of West Marin, based in Point Reyes Station.

Renowned oceanographer and explorer Sylvia Earle of Oakland said the decision was “good news for upholding the law, for returning public waters to the public and for California’s coastal wildlife to have a permanent safe haven.”

In reaching Tuesday’s decision, appeals court Judge M. Margaret McKeown voted to deny Lunny’s request for a rehearing of the case before a panel of 11 judges and Judge Algenon Marbley agreed.

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