SAN RAFAEL -- In a move considered rare against California Coastal Commission enforcement orders, a Marin County judge on Thursday blocked commission enforcement orders deemed devastating to Drakes Bay Oyster Co., which harvests one-third of California's supply.
[caption id="attachment_94621" align="alignright" width="240"] Drakes Bay Oyster raised clusters of the creatures on wires, known as "strings," submerged in Drakes Estero. The company feared that a California Coastal Commission order last year would force removal of the 95 such racks. (credit: Drakes Bay Oyster)[/caption]
The west Marin oyster farm still has an appeal against a National Park Service refusal to renew the company's lease in Point Reyes National Seashore, but attorneys for the farm hope the U.S. Supreme Court as soon as Monday will take up the matter.
In a 23-page judgment filed Thursday, Marin County Superior Court judge Roy Chernus ruled that the commission does have jurisdiction over the company's operations, but it "abused its discretion" by issuing cease-and-desist and restitution orders without studying the environmental impact of the work needed to comply with those actions.
The commission contended that its requirements for the oyster farm to continue operating and do remediation were exempted enforcement actions, thus not needing an environmental impact report, or EIR, beforehand.
Judge Chernus disagreed, noting "unusual circumstances" -- a legal standard for the exemption -- of the oyster company's operations in Point Reyes National Seashore, an area with protected species for the past four decades and set to be reverted to wilderness.Drakes Bay Oyster plans shutdown as it explores legal options
After the U.S. Supreme Court recently declined to consider reinstating a lease to farm and pack shellfish in Point Reyes National Seashore, Drakes Bay Oyster Co. on July 7 decided to plan to shut down at the end of the month but continue the legal fight to get back in business. [read more] Oyster farm denied hearing in top U.S. court
On June 30, the U.S. Supreme Court declined without comment to hear an appeal by Drakes Bay Oyster Co. of federal judicial actions against the company's ability to continue operating in Point Reyes National Seashore in west Marin County.
The Lynny family's legal team vowed to continue the battle. [read more]
"Based on record evidence demonstrating the extensive aquaculture operations exists within the delicate nature of the (Drakes) Estero and the unique habitat for plants, seals, migratory birds and other species that it provides, the court concludes that the orders requiring Drakes Bay Oyster Co. to undertake certain removal and restoration activities present 'unusual circumstances,'" the judge wrote.
The judge stayed the commission's enforcement until it prepares and certifies an EIR.
"The bottom line is that all the punitive and unnecessary items were thrown out, and the judge left in few things that are sensible and we had no objection to," the farm's attorney, Peter Prows of San Francisco-based Briscoe Ivester Bazel, said Friday.
The judge said the farm's legal team presented a "fair argument" that environmental-impact review was needed on these parts of the commission orders: removing invasive marine creatures and certain clams, cultivation equipment and unpermitted structures along the shoreline.
But most of the provisions in the enforcement actions didn't need environmental review, such as obtaining a development permit for ongoing farming, barring culture bags from eelgrass at the water bottom, prohibiting discharge of marine debris, stopping cultivation of certain Manilla clams and restricting boats from parts of the channel under the park service's special use permit.
The farm said in a statement Friday it is glad for the stay of enforcement and plans to move forward to the development-permit process.
While the commission didn't violate its own hearing procedures, as the Drakes Bay Oyster asserted, by excluding from the administrative record for a Feb. 7, 2013, hearing hundreds of pages of declarations and exhibits from experts presented by farm owner Kevin Lunny, judge Chernus found that the commission "abused its discretion" by excluding the documents from consideration of whether an EIR was needed.
Commission staff noted before the hearing that a federal judge three days before had rejected the farm's request for preliminary injunction against the termination of the lease.
The commission's claiming of an exemption from environmental review under the California Environmental Quality Act, or CEQA, made those documents relevant, the judge wrote. Any EIR prepared would have to include the documents, he ruled.
“This is a good day for California,” said Phyllis Faber, a Marin County environmental activist and biologist who was a founding member of the commission, in a statement released by a public relations firm representing the farm. “The Coastal Commission had seriously abused its power. It was necessary to hold them accountable.”
The oyster farm has been operating in Drakes Estero near Point Reyes, Marin County for nearly a century.
The Lunnys, fourth-generation Point Reyes ranchers, purchased the oyster farm in 2004. Drakes Bay Oyster (www.drakesbayoyster.com) produces about one-third of California-grown oysters and is the last such cannery in the state. The operation employs 30.
Oyster shells are donated to restoration of native oysters in San Francisco Bay and to create habitat for the endangered Snowy Plover and Least Tern.
