Drakes Bay friend briefs call impacts wide-reaching

10/31/2013

Eight legal briefs filed by oyster farm supporters to help Drakes Bay Oyster Company in its bid to convince a federal appeals court to reconsider an unfavorable September ruling raise questions about whether that decision could have troubling consequences not only for agriculture, but for the environment.

In September, a Ninth Circuit appeals panel ruled 2-1 to deny the oyster farm a preliminary injunction against the federal government’s order to evacuate Drakes Estero, finding that the company was not likely to succeed in proving that then-Secretary of the Interior Ken Salazar erred in his decision. 

Earlier this month, Drakes Bay requested an en banc hearing, which would call up 11 judges to rehear the case. Such hearings are rarely granted, but the vociferous dissenting opinion provided a degree of hope for the farm.

Peter Prows, an attorney for the oyster farm, was heartened by what he said was a significant number of briefs, which compare to a single amici brief filed before the first hearing before a Ninth Circuit judge. Supporters had more time to prepare filings this go around, he said, “but a bigger part, I think, is that there is so much at stake right now.”

The California Cattleman’s Association and a state building group raised particularly significant legal questions, he said.

Their brief argued that one of the majority’s finding—that the National Environmental Policy Act does not apply to actions that restore natural environments—not only relied on a questionable case but encourages the nonrenewal of ranching permits in the seashore.

Agencies that administer permits for use of public land will be more likely to decline renewing those permits if the long NEPA process can be avoided through nonrenewal, it says, depriving the public of its primary avenue for input on those decisions. 

The brief also contends that the majority’s decision relied on a stretched interpretation of a 1995 case, Douglas County v. Babbitt, which ruled that NEPA did not apply to critical habitat designations. 

Not only have some courts declined to apply Douglas County, it says, but Douglas County relies on the assumption that there would be other procedures followed as part of the Endangered Species and the Administrative Procedure Acts. 

“It is thus ironic that the panel majority cites Douglas County as authority for excusing the Secretary from complying with NEPA where the panel majority also found no applicable procedural requirements and no judicial review under the APA,” it says.

The park service has repeatedly claimed that it is committed to maintaining ranching in the park, but some within the agricultural community remain skeptical. 

In September, the appeals court majority ruling argued that the court need not resolve the question of whether NEPA applied, since an environmental impact statement was prepared anyway. 

But Drakes Bay lawyers have said that logic sets a dangerous precedent for what actions warrant NEPA, and in their request for en banc hearing noted that removing dams like the Hetch Hechy also restores a natural environment but would clearly set off a host of impacts. 

In Drakes Bay’s case, the impacts to agriculture extend to roughly 20 employees, according to a brief filed by workers Jorge Mata and Isela Meza, a staff marine biologist who has been employed there for five years. Mr. Mata has worked at the farm for 28 years and his wife, sister and son also work there. 

All would lose their jobs with the farm’s closure. They say obtaining similar work in the area is “extremely unlikely” and that other workers may have to leave the area they call home.

Other briefs pointed to the environmental benefits of oyster cultivation and refute claims of environmental harm.

A brief filed by Corey Goodman, a vocal critic of the science used against the oyster farm, argued that shellfish are generally beneficial to water quality and raised questions about the potential impacts to Drakes Estero from cattle waste if the oysters are no longer filtering it. 

Dr. Goodman cites the environmental impact statement itself, which noted that cattle waste is a significant source of pollution in the estero. The removal of oysters could lead to higher fecal coliform levels, Dr. Goodman says, which could harm eelgrass and fish. 

“Unless [the National Park Service] intends to remove the surrounding cattle ranches (which they publicly promised not to do) the prudent ‘environmental conservation effort’ would be to allow the oysters to continue to filter and clarify the water,” he wrote.

The Pacific Coast Shellfish Growers Association also rebuts the idea that the oyster cultivation is harmful to the environment, claiming that the Interior Secretary ignored the benefits of shellfish cultivation and that shellfish restoration projects are being undertaken in San Francisco Bay to improve water quality. 

The association’s brief also expressed concerns about the shellfish supply in California, which even with Drakes Bay outstrips demand.

Additional briefs attempt to sway the court on the basis of the seashore’s legislative history and the state’s interest in the estero. Laura Watt, a professor of environmental studies and planning at Sonoma State University, reviews the history of the establishment of wilderness in Point Reyes in her brief.

Although the majority opinion said that there was no “crystal ball” in 1976 that could foresee how the farm may or may not be compatible with wilderness decades in the future, Ms. Watt argues that the oyster farm was at the time seen as a preexisting use that would not conflict with wilderness. It was designated potential wilderness, she said, because the federal government believed the state’s fishing and mineral rights precluded full wilderness status.

And a cohort of oyster advocates—including former legislators involved with the creation of the seashore, biologist Phyllis Faber, journalist Mark Dowie, a number of agricultural groups and others—filed a brief that reviewed longstanding arguments that the park service has intruded upon the right of the state’s Fish and Game Commission to lease the water bottoms in the estero.