Federal brief argues court cannot rule on Salazar decision


In a court brief filed on Monday, government lawyers rebutted arguments made by Drakes Bay Oyster Company and said the federal case involving the company’s special use permit does not set any precedent necessitating full panel review of the Ninth Circuit Court of Appeals’ 2-1 September ruling in favor of the National Park Service. 

The government argued that there is no question of broader importance because the impacts are specific to Drakes Bay. “Both the panel majority and the dissent based their reasoning almost entirely on this unique factual situation,” the government stated. 

That includes the fact that Congress stipulated that the Secretary’s decision would not set any precedent; environmental groups have long campaigned on the basis that a permit renewal would.

The government brief, responding to claims about the Administrative Procedure Act, said the court cannot evaluate the Secretary’s decision because it was discretionary and there was “no law to apply.” They say a Congressional rider from 2009 wiped away any such law and that previous court cases show that “the court is not to substitute its judgment for that of [an] agency.” 

Drakes Bay has countered that if the government bases a decision on a misinterpretation of law, which is their contention, courts should be able to weigh in. If courts were prevented from doing so, potentially wronged parties would have no recourse.

Federal lawyers also argued that the environmental impacts of removing the oyster farm were not considerable enough to invoke the National Environmental Policy Act, and cite the panel majority to argue that the environmental impact statement prepared last year was adequate regardless of whether it was required by law. 

Drakes Bay has claimed it found flaws in the E.I.S. after the Secretary made his decision, and has argued that the recent majority opinion sets a problematic precedent for the environmental review of significant actions.

“This is a very weak and very misleading brief,” said Peter Prows, a lawyer for Drakes Bay, adding that his team’s own positions are at times mischaracterized in it.

The filing addresses one final assertion made by Drakes Bay, writing that accusations of a vendetta against the farm are “baseless” and that the decision to decline to renew the permit was driven by the “best public use for Drakes Estero.”