San Francisco restaurants sue in bid to block closure of Drakes Bay Oyster Co.

TOMALES BAY, Calif. -- A Tomales Bay oyster business and several Marin County restaurants have sued the U.S. Interior Department in federal court in San Francisco in a bid to block the July 31 closure of the Drakes Bay Oyster Co.

The lawsuit filed late Thursday contends former Interior Secretary Ken Salazar violated two federal laws when he declined in 2012 to extend the Drakes Bay Oyster Co.'s lease in Drakes Estero at Point Reyes National Seashore.

The lawsuit claims that under the National Aquaculture Act and federal Coastal Zone Management Act, Salazar should have considered the impact of the oyster farm's shutdown on local aquaculture.

If the closure occurs as scheduled, the Tomales Bay Oyster Co. and the restaurants "will either completely lose access to locally harvested oysters or lose access to a substantial and critical component of their locally harvested oyster supply," the lawsuit claims.

"This would cause them to suffer irreparable losses of business goodwill," the lawsuit says.

The Tomales Bay Oyster Co. cultivates its own oysters but also buys between 6,000 and 15,000 of the shellfish per week from the Drakes Bay company to sell to its customers, according to the lawsuit.

Drakes Bay company owner Kevin Lunny announced last week that he will close the operation's oyster cannery and retail store on July 31 in the wake of the U.S. Supreme Court's June 30 denial of his appeal.

The private farm grows oysters on 1,000 acres of submerged land in Drakes Bay and packages them along a 1.5-mile stretch of shoreline.

Kevin and Nancy Lunny bought the business from a predecessor company in 2004 and took over a 40-year permit that expired in 2012.

After Salazar declined to extend the permit in 2012, saying the area should return to wilderness, Lunny and the company sued to challenge that action. But both a federal trial judge in Oakland and a federal appeals court in San Francisco ruled against the company, although the farm was allowed to stay open during appeals.

When the Supreme Court refused to hear Lunny's appeal on June 30, the Interior Department's order for closure of the business went into effect.

The Drakes Bay Oyster Co. is not a plaintiff in the new lawsuit, which seeks a temporary restraining order blocking the shutdown. A hearing

date has not yet been set.

Interior Department spokeswoman Jessica Kershaw said, "As this remains a matter of litigation, the department is unable to comment at this time."

Amy Trainer, executive director of the Environmental Action Committee of West Marin, a wilderness advocacy group, contended the lawsuit was belated and that most of its arguments were previously rejected in the earlier case.

"This lawsuit is another desperate attempt to avoid acknowledging that Drakes Bay Oyster Company's contract expired over 19 months ago, it has made millions of dollars rent-free off our national park wilderness area, and it has no legal right to continue operating in our national park wilderness at Drakes Estero," Trainer said.

"Nobody likes a sore loser. Instead of accepting "no, they filed a meritless lawsuit that delays the inevitable closure and prolongs the much-needed healing in our community," Trainer alleged.

In addition to the Tomales Bay Oyster Co., the plaintiffs in the lawsuit include the restaurants Salt Water Oyster Depot, Osteria Stellina and Caf Reyes of Marin County; the Hayes Street Grill of San Francisco; the Marin County-based Alliance for Local Sustainable Agriculture; and Drakes Bay Oyster Co. manager Loretta Murphy, participating in the case as an individual.