By Mark Prado : Marin Independent Journal – excerpt
The Drakes Bay Oyster Co. filed a petition Monday to take its fight to stay open to the U.S. Supreme Court.
Kevin Lunny, owner of Drakes Bay Oyster Co., is seeking to have a decision by the 9th U.S. Circuit Court of Appeals overturned by the high court.
“If this judgment is not overturned, government agencies will have the power to deny a permit to any individual or business for any reason, without judicial review,” Lunny said in a statement. “Citizens must have recourse in the face of an arbitrary and capricious decision.”
The appeal to the high court is the latest legal maneuver as the oyster farm attempts to remain open in the face of a federal government order to shut down.
The oyster operation could know as soon as October if the court will take the case, said Peter Prows, who is among the attorneys representing Lunny…
In February 2012, U.S. District Judge Yvonne Gonzalez Rogers rejected a preliminary injunction to halt the federally ordered closure of the oyster operation in the Point Reyes National Seashore.
The 9th circuit court agreed to hear the case and review Rogers’ decision. In September 2013, a three-judge panel of the 9th circuit ruled it lacked jurisdiction to review Salazar’s discretionary decision not to issue a new operational permit for Drakes Bay.
But in that ruling 9th Circuit Judge Paul J. Watford wrote in a dissenting opinion Lunny’s request for an injunction should have been granted. That provided the oyster company’s supporters hope the court might reconsider that 2-1 ruling, but that didn’t happen.
Until legal issues are cleared up, the Inverness oyster farm remains open.