A preliminary ruling by a Marin Superior Court judge Tuesday found the state's Coastal Commission "abused its discretion" when it issued cease-and-desist orders against the Drakes Bay Oyster Co. that would require dismantling of the operation.

Judge Roy Chernus, who ruled the commission retains jurisdiction over the aquaculture site, noted his findings are conditional upon the larger question being debated in federal courts over whether the operation will remain open.

Phyllis Faber, a longtime Marin County environmental activist and former member of the California Coastal Commission, filed suit seeking to overturn the order the commission delivered in February 2013.

Her lawsuit alleged the commission's decision violated the California Environmental Quality Act and the state Coastal Act. The petition said the commission's staff excluded evidence that the orders would cause significant negative environmental impacts. The exclusion constitutes a violation of CEQA, according to the suit.

In his preliminary ruling issued Tuesday afternoon, Chernus agreed, writing the "Coastal Commission abused its discretion in excluding this evidence." Hundreds of pages of evidence, declarations and exhibits had been presented by Drakes Bay owner Kevin Lunny and experts.

In his ruling Chernus also ruled evidence supports a "fair argument that some of the removal and restoration activities required by the (commission's) orders may have a negative impact on the physical environment of (Drakes) Estero and its ecosystem."


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The judge ruled the commission must now conduct an environmental review of the proposed activities, including the removal of Manila clams and cultivation equipment, in compliance with CEQA.

"Judge Chernus' tentative ruling, if it stands, is a major victory for Drakes Bay Oyster Co.," said Peter Prows, an attorney representing the oyster company, in a statement. "The judge ruled that the commission violated environmental law and that it abused its discretion by excluding all of Drakes Bay's expert evidence. The judge invalidated all of the punitive and unnecessary parts of the commission's orders. The truth is that the oyster farm causes no environmental harm. The commission should get back to finding ways to protect and promote the oyster farm, as the Coastal Act requires, rather than supporting the Park Service's efforts to drive the farm out of business with false claims of environmental harm."

But Chernus did rule much of what the commission ordered - obtaining permits for operations, prohibiting culture bags from being placed in eelgrass and cleaning up marine debris, among other orders - will not have a negative impact on the environment and need to be followed. The judge also ruled the commission has jurisdiction over the aquaculture operations and acted within its jurisdiction in issuing the orders.

Coastal Commission official Sarah Christie declined comment on the tentative ruling, saying it was still being reviewed.

"This tentative ruling strongly affirms the commission's jurisdiction, but bizarrely directs the commission to complete more environmental review to end the company's illegal actions that continue to damage this marine environment," said Amy Trainer, executive director of the Environmental Action Committee of West Marin, in a statement. "Enough studies have concluded that the long-term benefits of removing the toxic pressure treated wood, millions of non-native oysters, and invasive 'marine vomit' unequivocally outweigh the short-term impacts. This estuary desperately needs the protection the commission ordered in February 2013."

Both parties will meet in Chernus' courtroom Wednesday morning to argue the case before the judge issues a final ruling.

Aside from state environmental issues, Drakes Bay Oyster Co. in a separate legal action filed documents Monday in hopes the U.S. Supreme Court will take up its case.

The federal 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. In 1972, the federal government bought the land from Johnson for $79,200 and provided the lease. Lunny took over the lease in 2004. Salazar wrote in his decision that Lunny was explicitly informed "no new permit will be issued" after the 2012 expiration date.

Contact Mark Prado via email at mprado@marinij.com

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