Drakes files with Supreme Court


Drakes Bay Oyster Company and its owner, Kevin Lunny, filed a petition with the Supreme Court on Monday asking the high court to reverse a circuit court ruling in a final effort to obtain an emergency injunction that would allow time to fight the federal government’s decision to remove the operation. Citing 40 court decisions and about 20 federal statutes, the petition asks the court to consider three questions: whether and in what circumstances a federal court can review an agency’s decisions under the Administrative Procedures Act; whether the National Environmental Policy Act can be set aside if a decision is labeled a conservation effort, despite evidence that it could have adverse impacts; and whether an agency can claim that false or disputed statements in an environmental impact statement did not affect its decision-making. The farm’s legal team spent most of the filing discussing the Administrative Procedures Act, which provides that courts cannot review agency actions when those actions are “committed to agency discretion by law.” The team argued that various federal circuit courts have applied a former Supreme Court edict—that the act is in force when the discretion is so vast that “there is no law to apply”—in five different ways because of differences of opinion over when there is a “law to apply” and whether a ban on arbitrary and capricious decisions itself provides an applicable law. “A broad grant of authority should not generally be interpreted as a license to abuse that authority by misrepresenting facts, misinterpreting law, or acting irrationally,” the petition, which asks the court to create a new A.P.A. framework to guide federal agencies, states. Drakes Bay’s lawyers also asserted that there is a difference of opinion among circuit courts about whether or not actions labeled conservation efforts trigger an environmental review process under NEPA. If the decision by the Ninth Circuit Court of Appeals stands, the lawyers wrote, it might become more difficult for groups to challenge agencies, which in turn might strive to categorize more projects that way if it eases their path to approval. Since the Department of the Interior denied the farm’s request for a renewed permit in late 2012, a district court and a split three-judge panel of the Ninth Circuit Court of Appeals have ruled in favor of the government. Every year the Supreme Court receives about 10,000 petitions. It hears oral arguments for about 75 to 80 cases