Court says enough Drakes filings


Without elaborating on its reasoning, the Ninth Circuit Court of Appeals swiftly rejected a motion by Drakes Bay Oyster Company last Thursday that requested permission to submit a response to the federal government’s most recent filing in the case. After a three-judge panel ruled 2-1 in September to deny the farm’s request for an emergency injunction so that it can continue operating while suing the Interior Department for not renewing its permit, the farm petitioned for an en banc hearing, in which an 11-judge panel would review the decision. Drakes Bay lawyers asked to respond to an assertion made in the government’s filing that the Secretary of the Interior “was fully aware of scientific disputes surrounding the E.I.S. and therefore did not rely on ‘the data that was asserted to be flawed.’” They said government lawyers have misled judges to believe that the Secretary was aware of a key—and highly contested—source used in the environmental impact statement for the oyster farm: a commissioned study by Brent Stewart that analyzed time-stamped photographs of seal haul-outs and disturbances in Drakes Estero. Since Drakes Bay did not uncover Dr. Stewart’s study—whose findings were different than what was reported in the E.I.S., leading them to conclude the statement was “doctored”—until a few weeks after the Secretary’s decision, they say he could not have known about that piece of flawed data. In email correspondence attached to the rejected filing between Drakes Bay lawyer Peter Prows and Justice Department lawyer David Gunter, Mr. Gunter argued that the additional claim of questionable data is irrelevant: “These descriptions of what the Secretary said at the time of his Decision do not become false just because DBOC later raised new complaints of scientific misconduct.” He also said that Drakes Bay already raised the issue of seal data in its initial en banc filing and in an amicus brief penned by farm supporter Corey Goodman.