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9th U.S. Circuit Court Turns Down Oyster Company's Request For Preliminary Injunction Against National Park Service


An oyster company hoping to retain its lease at Point Reyes National Seashore was dealt another setback Tuesday when an appellate court refused to issue a preliminary injunction against the National Park Service.

After a lower court in February refused to issue the injunction, Drakes Bay Oyster Co. owner Kevin Lunny asked the 9th U.S. Circuit Court of Appeals to grant the injunction so he could continue operating his oyster farm in the seashore's waters while his lawsuit against the Park Service proceeds.

Last November, then-Interior Secretary Ken Salazar declined to exercise a renewal option contained within the company's lease agreement. In opting to let the lease expire on its own, the Interior secretary said Congress long had intended that the waters of Drakes Estero would become official wilderness.

In short, the court's majority on Tuesday agreed with that position, and noted that Drakes Bay knew that the lease it acquired in 2005 would expire in November 2012.

"In letting the permit lapse, the Secretary emphasized the importance of the long-term environmental impact of the decision on Drakes Estero, which is located in an area designated as potential wilderness," wrote Judge M. Margaret McKeown. "He also underscored that, when Drakes Bay purchased the property in 2005, it did so with eyes wide open to the fact that the permit acquired from its predecessor owner was set to expire just seven years later, in 2012.

"Drakes Bay’s disagreement with the value judgments made by the Secretary is not a legitimate basis on which to set aside the decision. Once we determine, as we have, that the Secretary did not violate any statutory mandate, it is not our province to intercede in his discretionary decision. We, therefore, affirm the district court’s order denying a preliminary injunction."

In challenging Secretary Salazar's decision not to renew the oyster company's lease, Drakes Bay's lawyers argued that the secretary broke the Administrative Procedures Act and violated the National Environmental Policy Act when he decided not to extend the lease for 10 years.

But in the 50-page ruling, the 2-1 decision held that the court "lacked jurisdiction to review the Secretary’s ultimate discretionary decision whether to issue a new permit." Furthermore, the judges didn't think the oyster company could prove that Secretary Salazar had "violated constitutional, statutory, regulatory, or other legal mandates or restrictions."

In dissenting, Judge Paul J. Watford said he would have granted the injunction because "Drakes Bay was likely to prevail on its claim that the Secretary’s decision was arbitrary, capricious, or otherwise not in accordance with law."

Amy Trainer, executive director of the Environmental Action Committee of West Marin, praised the majority ruling, saying "(T)he court rightly decided that former Interior Secretary Ken Salazar had full discretion to let the oyster operation permit expire and to honor the 1976 wilderness designation for Drakes Estero. We are very grateful for this decision, which supports the Estero’s full wilderness protection.”

Added Neal Desai, associate director of the Pacific Region for the National Parks Conservation Association, “(T)he court ruling affirms that our national parks will be preserved and are another step closer to being protected as wilderness for the American people. Incredibly beautiful places like Drakes Estero need to be returned to their full splendor as Congress determined decades ago when the land was purchased by and for the American public. We have been waiting for this moment for 40 years.”

The majority ruling pilloried the contention of Drakes Bay's lawyers that when Congress adopted legislation in 2009 giving Secretary Salazar authority to control the fate of the oyster company that it specifically intended for him to extend the company's lease. To make that point, they noted that the legislation in question, known as Section 124, stated that "notwithstanding any other provision of law, the Secretary of the Interior is authorized to issue a special use permit with the same terms and conditions as the existing authorization, except as provided herein, for a period of 10 years from November 30, 2012..."

Nowhere in that legislative construction, the attorneys note, did Congress insert the words "or deny" a permit for the oyster company.

"Congress intended to put a thumb on the scale in favor of DBOC. It did not intend to confer unreviewable authority on Defendants to deny DBOC a permit," the attorneys wrote in their appeal.

But in the majority opinion, Judge McKeown said the Section 124 language "does not dictate such a oneway ratchet. Indeed, if Congress had so wanted to make it easy or automatic for Drakes Bay, one wonders why it rejected the proposal that would have simply required the Secretary to issue a new permit. The ultimate legislation was a move away from, not toward, Drakes Bay’s favored result."

"A natural reading of the authorization to issue a permit implies authorization not to issue one, and we see no reason to interpret the 'notwithstanding' clause as applying to one outcome but not the other," the judge added.

As to the broader question of whether Secretary Salazar abused his discretion, Judge McKeown wrote that the only issue before the court was whether the Interior secretary had "misinterpreted his authority under Section 124. The record leaves no doubt that the answer is no."

While proponents of the oyster operation have said the estero could not be designated wilderness because the state of California retained the mineral and fishing rights to the area, the majority opinion pointed out that "(T)he Wilderness Act itself nowhere provides that retained mineral or fishing rights preclude wilderness designation. Drakes Bay is not likely to succeed on its theory that the Secretary’s current position—that the permit’s expiration enables wilderness designation despite retained mineral and fishing rights—amounted to 'legal error.'"

The majority opinion also reiterated a point that has been stressed many times previously, that "Drakes Bay purchased the oyster farm with full disclosure, knowing that the reservation of use and occupancy was set to expire in 2012."

"The Department repeatedly warned the company that it did not plan to issue a new permit. Although the prospect of closing down a business is a serious hardship, the only reasonable expectation Drakes Bay could have had at the outset was that such a closure was very likely, if not certain. Closure remained a distinct possibility even after the passage of Section 124. Drakes Bay argued to the district court that it had 'every reason to hope' for extension. But when parties ‘anticipate a pro forma result’ in permitting applications, they become ‘largely responsible for their own harm.’”

"We see no reason to disturb the (lower) court’s finding that the company’s 'refusal to hear the message' was an equitable factor weighing against it."


Well, look, the Wilderness borg is unconquerable by rational argument. The good that the Wilderness Act of 1964 has done, which has been enormous, has become increasingly clouded by the contradictions that continue to accumulate around it, including the pretense that before European settlement the land was untouched by humans. Wilderness has become a religious crusade, a safe harbor for cattle grazing, a monopoly for horse and packtrain outfitters, etc. Wilderness politics show the folly of writing social and environmental policy into law in 1964 and then not changing it.

This was cars in 1964:

This was television:

This was the 1964 World's Fair:

This was politics:

This was 1964 nutritional advice:

We've moved on. But the Wilderness Act of 1964 remains frozen in time, except for a trivial modification to Minnesota lake management that was made in 1978.

So yes, the Drake's Bay Oyster Farm must close because a 1964 Congress and President Johnson could not foresee all of the consequences of what was then far-seeing legislation, and since then it has remained impervious to 49 years of advances in science, land management, sociology, anthropology, economics, engineering, botany, biology, etc.

We're stuck. Thanks, Wilderness Society! Thanks, Sierra Club! Can you help bring back the 1964 Studebaker while you're at it? And, by the way, what percentage of your members fondly remember the 1964 Studebaker? I'd go for 80%. Which, if close to accurate, would illustrate younger people's lack of interest in Wilderness, thanks largely to its frozen status.

For clarity, I like the original concept of Wilderness. I absolutely abhor its current application, which tends to border on the fanatical.

When the Wilderness Act came to being, it either was or it wasn't wilderness. If there were exceptions, they were explicitly written into the enabling legislation. For instance, in Desolation Wilderness near Lake Tahoe, the legislation specifically noted that hydroelectric operations would remain and that access to maintain and operate those facilities would continue indefinitely.

Then the Point Reyes Wilderness Act of 1976 introduced the first use of "potential wilderness additions" and didn't exactly say what that meant. The California Wilderness Act of 1984 added wilderness to Yosemite, SEKI, and several national forests. They were specific in the exemptions for the national forests but said little about how to handle NPS areas. However, the High Sierra Camps remain as potential wilderness, and indefinitely at that.

For clarity, I like the original concept of Wilderness. I absolutely abhor its current application, which tends to border on the fanatical.

Zeb - While I may not be as strong an "anti-wilderness" critic as you, I think in this case you hit the nail on the head.

Clearly, this was not about what's right, what the contract said, or what the intent was. This was about notching another Wilderness victory. The wildernuts are happy now that the estrero is designated as Wilderness. Makes zero difference to the estrero, and may actually make it worse, but that does not matter. Wilderness is the new cause du jour.

It's a bit scary to witness.

Rick Smith:
ec--I fully agree with you. Under normal business circumstances, the leasee and the lesssor would sit down and renogotiate a fair price for renewal of the lease. This, however, was a use and occupancy lease which grants a person the right to live and work on a property already bought by the people of the US for his or her lifetime or a certain period of time. Whoever buys that property also buys the use and occupancy lease. It comes with the title to the property.

It wasn't a normal case where the leaseholder simply wanted to use a piece of property. The original leaseholder was the former owner of the land, who owned the land (less than 5 acres of dry land) outright. It was an inholding the day the park opened. My understanding is that he took the NPS offer because he was otherwise looking at the property being condemned and eminent domain proceedings started. I think he made out OK given that the Feds had him over a barrel. He got a low-rent leaseback agreement and I don't think he had to pay property taxes on the land any more. However, he was then subject to NPS controls over how he used the land that he once owned. Still - my understanding is that he would have preferred to keep the land and not have to worry about such things.

As for the certain period of time, the original RUO did time out like those of the cattle/dairy ranches. This is in the agreement:

11. Upon expiration of the expired term, a special use permit may be issued for the continued occupancy of the property for the herein described purposes, provided however, that such permit will run concurrently with and will terminate upon expiration of State water bottom allotments assigned to the Vendor. Any permit for continued use will be issued in accordance with National Park Service regulations in effect at the time the reservation expires.

I've argued with several people over what this means. It certainly reads to me as if it's a mutual option to renew.

Rick, I'm not quite sure the distinction you are making. Any lease grants the right to work - and perhaps live - on property bought by someone else. Why is this one different?

I don't get it either, although this was a specific reservation of use that allowed for employee housing on the work site.

However, the various jurisdictional issues are a mess. I hadn't followed that closely, but I looked up California Fish and Game Commission meetings where the jurisdictional issues have come up several times. The California Coastal Commission isn't terribly sympathetic to the oyster farm and has given orders (declaring Manila clams an invasive species and ordering the farm to take steps to reduce certain marine life) that would appear to be treading on the CFGC authority to regulate aquaculture in California.

The other issue is that the water bottom leases are from the state of California. What happens with those leases remains to be seen. I've heard suggestions that those leases could be maintained. Bill Bagley (attorney and former California Assemblyman who wrote the legislation granting Drakes Estero to NPS) said that he believed that the state still maintains aquaculture rights to Drake Estero and that the Feds could possibly be required to provide an easement to access the waters of Drakes Estero for shellfish farming purposes.

y-p-w--- you mean to tell us those oysters we've been eating from there have been living on filtered cow shizzit??? I think I'll get my oysters from Appalachicola LOL

Gulf oysters? I think I'd rather stay away from them unless cooked. Way too many reports about Vibrio.

And there's cattle grazing all around there, including Forest Service leases in Apalachicola National Forest. Florida is also thinking of allowing cattle grazing in Tate's Hell State Forest to help control vegetation.

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