Lawyers spar with federal judge over Feinstein law

David Briggs
Kevin Lunny left a federal courtroom in Oakland last Friday without an answer to his request for a prelimi- nary injunction, which would allow his oyster farm to remain in operation while he wages a lawsuit against the park service and Interior Department.
01/31/2013

Legislation written by Senator Dianne Feinstein in 2009 in an attempt to ensure the longevity of Drakes Bay Oyster Company may now lead a federal judge to rule against the company in its plea to remain in operation while it wages a lawsuit against the government.

In a crowded Oakland courtroom last Friday U.S. District Judge Yvonne Gonzalez Rogers heard arguments from attorneys working for oyster company owner Kevin Lunny, who has requested a preliminary injunction in a suit alleging multiple violations of federal laws by the director of the National Park Service and the Secretary of the Interior.

The suit asks the judge to either grant the farm a 10-year special use permit or require the defendants to take a second shot at what Mr. Lunny’s lawyers maintain is a flawed environmental report and subsequently decide on the permit based on accurate interpretations of law.

Though she did not issue a decision last week, Judge Gonzalez Rogers appeared skeptical of her ability to review an executive-branch decision to shutter the farm.

Citing Section 124, an amendment to a 2009 appropriations bill authored by Senator Feinstein, Judge Gonzalez Rogers said Secretary Ken Salazar was acting under Congressional directive that allowed him to grant or deny the permit “notwithstanding any other provision of law.”

Her view appeared to jibe with that of defense attorneys, who argue Section 124 places the secretary’s decision in a category under the Administrative Procedures Act that exempts executive decisions from judicial review.

Attorney Stephen MacFarlane of the Department of Justice said Friday that the case fits a “narrow exception” in which “no meaningful standard” exists “and thus there is no law to apply.”

But lawyers working on behalf of Mr. Lunny interpret Section 124 differently. They argue that discretionary decisions are subject to judicial review if they have misconstrued, misinterpreted or violated the law—in this case, the National Environmental Policy Act and sections of the United States Constitution, among others. To support their argument they pointed to a number of measures of Congressional intent.

This week the Light asked Senator Feinstein about her intent behind Section 124. She explained that prior to the passage of that amendment, park service attorneys had argued that the secretary lacked legal authority to extend the permit under the 1976 Point Reyes Wilderness Act. That law designated Drakes Estero “potential wilderness” and called for the steady removal of obstacles to full wilderness status.

“I disagreed with that argument, but realized the opinion would carry weight with the Secretary,” Senator Feinstein said. “Because of that, I believed the language was necessary to provide the Interior Secretary a clean opportunity to extend the farm’s lease, as I urged him to do.”

Senator Feinstein had not foreseen that government officials would use the legislation against a family for whom she has long advocated.

For their part, Mr. Lunny’s lawyers cast the “eleventh-hour” decision by the secretary in November—a day before the farm’s Reservation of Use and Occupancy was set to expire—as “arbitrary, capricious, an abuse of discretion or otherwise not in accordance with law.”

“There is law to apply here,” said Peter Prows, a partner with Briscoe Ivester & Bazel LLP, in San Francisco, one of four law firms representing the farm pro bono. Others involved are San Diego-based Stoel Rives LLP, SSL Law Firm LLP, also in San Francisco, and Cause of Action, a nonprofit government watchdog group based in Washington, D.C.

Judge Gonzalez Rogers’s decision to grant or deny an injunction rests on the satisfaction of three conditions: the likelihood of the plaintiffs to succeed in the lawsuit, the demonstration of irreparable harm inflicted on the plaintiffs due to closure, and the demonstration that the injunction is in the public interest. She emphasized that monetary damages were inadequate to demonstrate irreparable harm.

The hearing laid bare conflicting views that extended to the courtroom on Friday, including one instance in which Mr. MacFarlane asserted that Drake’s Estero would be the first federal marine wilderness on the West Coast outside of Alaska. Oyster farm lawyer Ryan Waterman immediately refuted that claim, stating that adjoining Estero De Limantour has the same status.

The hearing also brought into focus the stickiest part of the years-long debate over the oyster farm—allegations of scientific misconduct on the part of park service employees.

Farm lawyers on Friday cited one instance in which a report by Dr. Brent Stewart, commissioned by the park service, was allegedly altered in the Final Environmental Impact Statement to indicate evidence of disturbances to harbor seals where there was none. Other allegations of fraud include exaggerated noise emissions from oyster farm boats.

Mr. MacFarlane contended such accusations had been “thrown about rather recklessly” by farm proponents, though he did not elaborate.

Perhaps the strongest argument by plaintiffs was that the closure of the farm would cripple the livelihoods of its workers. Among these are 31 full-time employees, 15 of whom rely on housing on the farm’s property and are raising children.

Among them is Valerio Saleado, who was hired slightly less than a year ago by the farm, where his wife, Guadalupe Ramirez, has worked for more than 25 years. They live less than 10 miles from the farm.

“It’s a source of life,” Mr. Saleado said Friday as he prepared to enter a courtroom packed to capacity in the largest turnout since the Barry Bonds trial, according to courtroom officials.  

Also at the hearing— which at the last minute was moved to a larger room that accommodated about 75 people—were Jorge and Veronica Mata, who have harvested and packaged oysters for more than 25 years at the farm, where two of their three children now work.

There are 12 children of oyster farm workers enrolled in local schools, and the uncertainty of the workers’ future led the longtime principal of West Marin School, Jim Patterson, to submit a statement about the detrimental effects of removing those children from school mid-year, as families would likely have to relocate to more affordable areas.

Closure could affect the local economy, too, company lawyers argued. The farm, by its own estimates, draws about 50,000 visitors and generates millions of dollars every year for producing about 40 percent of the oysters in California. It is the last remaining oyster cannery in the state.

But defendants argue Mr. Lunny is facing circumstances that are “self-inflicted,” as he had “no assurance” that his permit would be renewed. “At the end of the day,” Mr. MacFarlane argued, “submitting a special use permit does not give an applicant any guarantee it will be granted.”

But Mr. Lunny’s decision to purchase the leasehold, the plaintiffs argued, was made against the backdrop of consistent renewals by the park service of reservations of use permits held by ranchers, all of whom have long depended on the issuance of special use permits.

Lawyers also cited plans by a former seashore superintendent to expand the oyster facility into an mariculture learning center. An environmental assessment of those plans found no significant impact.

“This isn’t a situation where everyone comes into this courtroom with their hands clean,” Judge Gonzalez Rogers said, referring to both a lack of foresight and planning by Mr. Lunny and the mismanagement of science.

She referred to a passage in a report by the National Academy of Sciences saying there was no scientific answer to the dispute.  Rather, she added, a resolution would come only through “value judgments and trade-offs.”

The plight of the oyster farm workers has drawn unwavering sympathy from supporters like Chris Catlett, a contractor from Novato who rode to Oakland in a bus filled with other supporters, workers and Lunny family members.

Like many, Mr. Catlett for long has viewed opponents of the farm as committed “to do anything to have their point of view prevail.”

For Mike Waddell of Lagunitas, reflecting on the hearing while gazing across San Francisco Bay on the bus ride home, the legal arguments against the farm are unreasonable.

“I’m too much of a common-sense person,” he said, stating that the government is taking a “completely insensitive” approach to an issue whose resolution he and others say is a matter of compassion, not legality. “There’s a community out there that’s ready to be displaced. For what purpose?”

 

Jacob Flannick contributed to this article.