The Drakes Bay Oyster Co. has filed a legal motion to allow it to continue to operate while it prepares a case to bring to the U.S. Supreme Court.
Last week the 9th U.S. Circuit Court of Appeals declined to re-hear the Drakes Bay case in which owner Kevin Lunny sought an injunction to keep his operation open.
Lunny would have been forced to begin dismantling his operation beginning Tuesday, but the new court motion filed Monday will buy him more time while a case to the high court is developed.
It could be days to weeks before the 9th Circuit issues a ruling on the latest filing. If Drakes Bay is denied, it can make the same request of the Supreme Court.
In its filing, Lunny's team outlines some of the legal issues it is likely to take to the Supreme Court. It notes the 9th Circuit was split on whether federal courts have "jurisdiction to review discretionary agency actions when the agency has not issued regulations governing the issuance of a permit."
The Drakes Bay closure order came on Nov. 29, 2012, when then Interior Secretary Ken Salazar announced he would allow a 40-year lease - originally negotiated with the Johnson Oyster Co. in 1972 and taken on by Drakes Bay - to expire.
The filing also noted the 9th Circuit is split over whether an "environmental conservation effort" is exempt from the National Environmental Policy Act, even if it harms the environment.
Finally, it's noted the federal government failed to follow National Environmental Policy Act requirements as it prepared an environmental impact statement on the oyster operation because it didn't provide the public with a "meaningful opportunity to comment" on it.
"These issues - the scope of jurisdiction over discretionary agency actions, whether NEPA applies to 'environmental conservation efforts' or those actions that have only beneficial effects, and whether an agency commits prejudicial error when it does not comply with public-disclosure requirements - are important issues that merit Supreme Court review," according to the filing.
Contact Mark Prado via email at firstname.lastname@example.org
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