Drakes requests en banc hearing


In a vigorously worded request for a hearing before a larger panel of the Ninth Circuit Court, Drakes Bay Oyster Company lawyers this week wrote that the park service has a “vendetta” against the business and used arguments made in a September dissent when a smaller panel ruled in favor of the federal government. On Sept. 3, a three-judge panel ruled 2-1 to decline the oyster farm’s request for an injunction to remain open as they fight a legal battle with the Department of the Interior, which closed the farm so that Drakes Estero could be converted to wilderness. Drakes Bay’s request for an en banc hearing—in which an 11-judge panel would reconsider the case—argues that the September ruling could allow agencies to disobey Congress. The legislative body, they say, meant to override the Secretary of the Interior’s misunderstanding of the 1976 Point Reyes Wilderness Act—which did not intend to remove the aquaculture operation—when it passed a 2009 rider giving the secretary discretion to approve the permit, “notwithstanding any provision of law.” But the secretary, citing the law in his decision to not renew the permit, disobeyed Congress, the filing states. The majority opinion in September said the secretary could still rely on the policies underlying the law, but, oyster lawyers claim, “The effect of this holding is to allow an agency to thumb its nose at Congress.” The en banc filing stipulates that the September ruling also undermines federal environmental law. “The majority pooh-poohed the environmental harm that would result here,” it says. The majority ruled that conservation projects have not historically been subject to the National Environmental Policy Act, but oyster lawyers say any project that could significantly alter the environment falls under NEPA, offering the example of eliminating the dam that fills the Hetch Hetchy Reservoir, which provides San Francisco with drinking water.