Drakes clears one court hurdle


On Tuesday, the Ninth Circuit Court of Appeals in San Francisco ordered the federal government to respond to Drakes Bay Oyster Company’s petition asking for a rehearing before a larger panel of judges, known as an en banc review. After losing an appeal in September to continue operating in Point Reyes National Seashore while a lawsuit against the Department of the Interior is underway, the company filed an appeal last month for an en banc rehearing before 11 judges. The oyster company’s legal team took the court’s action this week as “a step in the right direction.” In many cases, the court will reject a petition outright, so seeking a response from the government means the case has “cleared the first hurdle,” said Peter Prows, one of the company’s lawyers. In a split 2-1 ruling, the smaller panel ruled they had no jurisdiction to evaluate then-Interior Secretary Ken Salazar’s decision last November to not issue a new permit. The company’s lawyers claimed the court’s decision unjustly protected the agency’s abuse of discretion. “Congress could not have intended to allow an agency to disobey a statute, or to base permit decisions on false statements, and yet be immune from judicial review,” their petition said. Federal rules dictate a circuit court should only rehear cases en banc to secure uniformity with other federal court rulings or to decide matters of exceptional importance. A rehearing would supersede the smaller panel’s decision and establish a strong precedent. In order for that to happen, either the three-judge panel that ruled in September or a majority of the Ninth Circuit’s 27 active judges—the largest circuit in the country—would need to vote for a rehearing. The government has 21 days to submit their counter-arguments. In the meantime, the oyster farm will remain open for business.