The United States Supreme Court finally ruled in favor of Drakes Bay Oyster Farm, in a way. The ruling came too late to save Drakes Bay, but perhaps just in time for many of the Point Reyes ranchers.
When former Secretary of the Interior Ken Salazar decided against renewing Drakes Bay’s permit in November 2012, he claimed that granting the permit would violate federal wilderness laws and policies. He was wrong: the wilderness laws and policies specifically envisioned allowing the oyster farm to stay, and Congress even passed a special law to override the National Park Service’s erroneous view that the oyster farm had to go. So we sued, alleging that the decision to boot out the farm was an abuse of discretion.
The Ninth Circuit held, 2-1, that it lacked jurisdiction even to hear our claim that Mr. Salazar had abused his discretion. The only judge to reach the merits, Judge Paul Watford, agreed with us in his dissent.
The Ninth Circuit’s majority opinion, that courts simply lacked jurisdiction to hear challenges to agencies’ discretionary decisions, was a real surprise. Agencies make discretionary decisions all the time that can profoundly affect peoples’ lives and the environment. In a nation of laws, those agency decisions ought to be subject to some kind of judicial review.
After the Ninth Circuit ruled, we asked the Supreme Court to take the case. The lead argument in our petition was that courts do have jurisdiction to review whether an agency has abused its discretion, and that this issue was important to many people in their dealings with the federal government. In the front of our minds were the Point Reyes ranchers, who also depend on the park service for discretionary permits to continue operating their historic farms.
We were confident that if the Supreme Court took our case and agreed with us that there was jurisdiction, then we would ultimately prevail on the merits, just as Judge Watford concluded when, as the sole judge ever to do so, he actually considered the merits.
The Supreme Court unfortunately did not take our case, and the oyster farm closed at the end of 2014.
But just last month, the Supreme Court ruled—unanimously—that we had been right: the courts do have jurisdiction to review discretionary agency decisions for abuse of discretion. The case is called Weyerhauser Co. v. U.S. Fish and Wildlife Service and it involved the service’s discretionary decision to designate private property as “critical habitat” for the dusky gopher frog.
The service claimed that, because its designation decision was discretionary, the courts simply lacked jurisdiction to review for abuse of discretion. The Supreme Court rejected that argument, ruling that the discretionary decision was nevertheless judicially reviewable for abuse of discretion.
(When it reached the merits of the case, the court unanimously ruled that the service had abused its discretion, because it designated property as critical habitat when the property was not actually habitat at all for the frog.)
In the coming years, the park service will be making decisions about whether to renew all of the ranchers’ permits in the Point Reyes National Seashore and northern reaches of the Golden Gate National Recreation Area. The long-term trend is not encouraging: the park service shut down the oyster farm, of course, but also has not renewed several other ranchers’ leases too, most recently at the historic Dunn Ranch. In making those decisions, the park service will now have to keep in mind that it may be held accountable in court.
Peter Prows is a partner with the San Francisco law firm Briscoe Ivester & Bazel LLP. He and his firm represented Drakes Bay Oyster Farm all the way to the Supreme Court in the federal litigation over then-Secretary Ken Salazar’s decision that the oyster farm be shut down.