Appeal denied, Drakes Bay presses for more judges

09/05/2013

Drakes Bay Oyster Company suffered a blow on Tuesday when a three-judge panel of the Ninth Circuit Court of Appeals ruled 2-1 to deny the farm a preliminary injunction that would have allowed it to stay open while battling the federal government.

The historic farm’s efforts to continue to cultivate oysters on Marin’s coast—a battle that has attracted the attention of famous chefs, conservatives, environmental groups, members of Congress and the local community—has stoked fears among wilderness advocates that continued operation would set a dangerous precedent for other commercial enterprises on public lands. 

It has also spurred outrage from supporters who argue that the farm provides one of the most sustainable proteins available and provides both ecological benefits and local jobs.

Despite the ruling against the farm, the matter is far from settled. Drakes Bay, which remains open for now, says it will press on and petition for a larger, 11-judge panel on the Ninth Circuit to review the case in what’s called an en banc hearing. While those are not often granted, Drakes Bay has hopes, encouraged in part by the dissenting opinion. 

Tuesday’s decision goes into effect in 45 days, at which point the Interior Department’s November order would take effect; however, the petition for an en banc hearing will likely postpone the implementation of the Ninth Circuit’s ruling. And, if the request is granted, it could be a year before the hearing occurs, during which time Drakes Bay would continue operating. 

Both the majority opinion and the dissent issued on Tuesday focused on an interpretation of language in a 2009 appropriations bill, Section 124, which was introduced by Sen. Dianne Feinstein, a staunch supporter of the farm. That rider gave the Secretary of the Interior the authority to issue Drakes Bay a special use permit. 

Disagreement stemmed from a portion of the rider that granted the Secretary such authority “notwithstanding any other provision of law.”

The majority opinion, authored by Judge Margaret McKeown, argued that Section 124 gave the Secretary the discretion to do as he saw fit. “The narrow question that we have jurisdiction to review is whether the Secretary misinterpreted his authority under Section 124. The record leaves no doubt that the answer is no,” Judge McKeown wrote. 

The opinion also stated, “The Secretary elected to let the permit expire not to avoid ‘violating’ any law, as Drakes Bay posits, but because the Secretary weighed and balanced competing concerns about the environment and the value of aquaculture,” ultimately deciding that the commercial farm was incompatible with “wilderness.” 

Former Interior Secretary Ken Salazar, the opinion read, relied on public policy undergirding the legislation and understood that he was not bound by any law. Drakes Bay was therefore not likely to prevail in its Administrative Procedure Act complaint, which holds that if an agency bases a decision on an incorrect legal interpretation of a statute, that decision is capricious and unlawful.

But the dissenting opinion by Judge Paul Watford said that the Secretary’s decision did indeed rely on a belief—an unfounded belief, he said—that the existence of the oyster farm violated the law, which means his decision was capricious and illegal. 

“[The Secretary] erroneously assumed that the oyster farm’s continued operation was ‘prohibited by the Wilderness Act.’ That in turn led him to conclude—again erroneously—that his decision to eliminate the oyster farm ‘effectuate[d]’ Congress’s intent as expressed in the Point Reyes Wilderness Act,” he wrote.

But Section 124, Judge Watford said, barred the Secretary from making his decision based on those factors. “Contrary to the majority’s assertion, the Secretary had no authority to rely on this misinterpretation of ‘Congress’s earlier expressed goal’ because the notwithstanding clause eliminated any such authority.”

He also said that the intention of the Wilderness Act was never to remove the oyster farm: “[A]ll indications are that Congress viewed the oyster farm as a beneficial, pre-existing use whose continuation was fully compatible with wilderness status.”

The dissent did not mince words in criticizing the majority opinion, writing that the latter never argued that Interior correctly interpreted the Wilderness Act. “Nor could it make that argument with a straight face given the Act’s clear legislative history, which the majority never attempts to address, much less refute,” it stated.

Drakes Bay lawyer Peter Prows, part of the farm’s legal team, said the dissent was unusually vigorous. “You rarely see a dissent as strong as this,” he said, adding that most cases are decided without a dissent at all.

Mr. Prows argued that the majority’s reading of Section 124 did not comport with Congress’ intention, since it only passed Section 124 because the Secretary claimed the law did not allow him to issue a special use permit. 

The majority opinion said that Section 124 could have ordered the Secretary to issue the permit but instead chose only to “authorize” him to do so, which it says gave him discretion to decide either way.

The opinion also criticized the dissent for its reliance on legislative history. “Contrary to the dissent’s characterization, the 1976 legislation did not invoke a crystal ball and pass judgment on the compatibility of oyster farming in Drakes Estero with wilderness some thirty plus years later,” one footnote said.

Mr. Prows countered that the government can’t simply “flip flop like this on what the law means.”

As for the question of environmental harm—which has spurred numerous Data Quality Act complaints and accusations of wrongdoing from Drakes Bay supporters—the majority discarded those concerns, arguing that Mr. Salazar said he didn’t rely on data deemed to be “flawed.” The opinion also said “any asserted errors in the NEPA review were harmless.”

Mr. Prows claimed that although Drakes Bay alerted the Secretary to certain errors in the Environmental Impact Statement before he made his decision, other inaccuracies were found
afterwards.

Corey Goodman, a farm advocate and elected member of the National Academy of Sciences, criticized what he said was the majority opinion’s reliance on a misunderstanding of the ecology. Seals wouldn’t exist there if Drakes Estero were in its “natural state,” he said, since bears and mountain lions would eat them. 

“Judge McKeown bought into the false narrative of wilderness without understanding the biology, and that romantic notion, devoid of scientific reality, led her to wrongly conclude that her decision would protect the environment from ‘human impacts,’” Dr. Goodman said.

Both Mr. Prows and Dr. Goodman pointed to a park report released last month on 2013 harbor seal counts, which announced that “it was a great year for the seals.” During the four-week peak molting season, Drakes Estero had the highest number of five sites measured, at 1,122 seals.

The legal fight between Drakes Bay and Interior has been ongoing since last fall. After the Secretary declined to issue a permit last November, nine days after the final EIS was released, Drakes Bay sued and sought an injunction so that it would not have to vacate. This February, a district judge denied the injunction, but the Ninth Circuit granted an emergency injunction a few weeks later.

The Environmental Action Committee of West Marin praised the majority’s ruling. “The decision that came down from the appellate court is articulate, comprehensive, generally well reasoned, and we’re pleased that the appellate court has affirmed the district court, and upheld the legality of the Interior Secretary’s decision to allow the oyster company’s lease to expire on its own terms,” said Bridger Mitchell, board president of the EAC.

At the farm yesterday, hatchery worker Rosa Meza, who lives in worker housing there, was still processing the news. “We don’t know how to feel yet,” she said. But if the oyster farm shuts down, she continued, “We are going to lose our job and our home at the same time.” 

Loretta Murphy, a co-manager at the farm, said she was “extremely disappointed” in the ruling. “On every point it’s just wrong,” she said. 

Tears welled up and there was a tremor in her voice as she recounted sympathetic visits from nearby ranchers on Tuesday. “Grown men crying, [knowing] they’re next,” she said.