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Oyster Company Wants Full 9th Circuit Panel To Consider Injunction Against National Park Service


An oyster company battling to keep farming oysters in a wilderness area of Point Reyes National Seashore wants the entire 9th U.S. Circuit Court of Appeals to hear its case against the National Park Service.

Drakes Bay Oyster Co. announced its intention not to back down Wednesday after a three-judge panel of the appellate court denied its request to be allowed to continue operations in Drakes Estero pending the outcome of a lawsuit filed against the Park Service.

“After reading the Court’s decision -- and especially the dissent from Judge (Paul J.) Watford -- we are more convinced than ever that we will prevail based on the merits of our case,” said Drakes Bay owner Kevin Lunny.

At issue is the company's desire to remain in Drakes Estero at the national seashore. When Drakes Bay bought out the farm's previous owners in 2005, the existing lease for the operation ran through November 2012. While Mr. Lunny was optimistic he could obtain a lease renewal from the Park Service, last November then-Interior Secretary Ken Salazar declined that request, saying Congress long had intended for the estero to become part of the Philip Burton Wilderness.

The oyster company's lawyers sued the Park Service over that decision, arguing that the Interior secretary's decision was arbitrary and capricious, and violated both the federal government's Administrative Procedures Act and the National Environmental Policy Act.

An agreement reached between the oyster company and the U.S. Justice Department allowed it to continue operations through March 15 while the company sought an injunction against the Park Service.

In February, a U.S. District Court judge refused to issue the order and Mr. Lunny's attorneys then asked the 9th Circuit to grant the injunction. On Tuesday, in a 2-1 ruling, a three-judge panel from the appellate court also refused to grant the request.

"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," read part of the majority opinion.

Mr. Lunny, however, was clinging to the hope that a full court review of the matter would result in a ruling in line with Judge Watford's opinion that "no conflicting laws prevented the Secretary from issuing a permit to Drakes Bay. Continued operation of the oyster farm is fully consistent with the Wilderness Act, and the farm’s existence is therefore not an “obstacle” to converting Drakes Estero to wilderness status as directed by the Point Reyes Wilderness Act. Instead, it was the Interior Department’s misinterpretation of the Point Reyes Wilderness Act that proved to be the 'legal sticking point' here."

In announcing his intent to pursue relief from the full 9th Circuit Court, Mr. Lunny implied that his case had national significance.

“With the support of thousands of environmentalists, community members and elected leaders around the nation, we will continue to fight for what’s right and remain committed to succeeding in our fight to remain open and serve our community,” he said in prepared comments. “Although we strongly disagree with the panel’s decision, we remain steadfast in our opinion that we can prevail based on the merits of our case."


Interesting, a judge thinks that the farm operation was consistent with the wilderness act.

Interesting, a judge thinks that the farm operation was consistent with the wilderness act.

The Wilderness Act never addressed "potential wilderness additions". My understanding is that the Point Reyes Wilderness Act of 1976 was the first time it was described, and if you read the law there is no guidance for what that means or how to convert to full wilderness.

I bring up the High Sierra Camps in Yosemite as a precedent for how potential wilderness remains so as a policy matter. As long as the policy is to maintain the "nonconforming uses" it remains potential wilderness. I know some have suggested that it's a recreational use that's specifically allowed under the Wilderness Act, but my reading is that the permanent structures and helicopter landings wouldn't be allowed in full wilderness unless they were specifically exempted in the enabling legislation or helicopters for emergencies. These "nonconforming uses" are allowed to exist there because it is "potential wilderness". And the Wilderness Act specifically says that "commercial enterprises" are allowed if they serve a recreational purpose, but I've always interpreted this as meaning guiding or packing services, where there is no permanent presence like a building.

I don't believe the Wilderness Act necessarily addresses this case, save management that attempts to be as close to operation as a full wilderness as possible.

y_p_w, are the High Sierra Camps in "potential wilderness," or officially designated wilderness?

Regardless, they have a very, very long history with the park, in some cases predating the National Park Service.

You likely have read the history of the camps, but for those who haven't, they are listed on the National Register of Historic Places and "have been significant as an innovative interpretive concept luring more people into the Yosemite backcountry and representing a successful joint effort by the National Park Service and the Yosemite concessionaire to encourage travel beyond the roads and thus enhance visitor appreciation of wilderness areas as part of our national parks. Their establishment also marked an early implementation of the Interior Department’s policy of making remote areas of parks more accessible to the visiting public."


Another aspect of the 1923 reopening of the camps involved Park Service Director Stephen Mather’s strong desire to carry out what he believed were the agency’s interpretive responsibilities in the high country. The park established a new pattern of interpretive service there, comprising backcountry Nature Guide trips to the camps, which was unique within the National Park System and set precedents for similar programs in other units.

None, however, developed along exactly the same lines as this one. Despite the initially small number of visitors exposed to this service, Mather and park officials strongly believed that a naturalist talking to the same people day after day, amidst the magnificent peaks and meadows of the backcountry, could probably exert a stronger and longer-lasting influence on the formation of positive visitor attitudes toward national parks and conservation in general than could result from guided short walks on the valley floor, daily lectures at the museum, or single-day hikes to the valley rim. The High Sierra Loop is considered the highlight of the park’s interpretive services to this day.

Kurt - wasn't the Oyster farm also in "potential wilderness" and didn't it predate the park?

I think there are some differences, ec, subtle as they may be. One being that when the Point Reyes Wilderness Act was passed, it designated Drakes Estero as potential wilderness and said once all the non-conforming uses were removed that the "potential" would be dropped.

Another is that the oyster company was given a lease with an end date. True, the Park Service/Interior Department had an option to renew the lease, but they chose not to, citing congressional intent.

In the case of the High Sierra Camps, the Park Service long has recognized them as a vital interpretive tool and means for getting travelers into the backcountry. Now, what I haven't had time to investigate, and which y_p_w might have done, is look at the park's wilderness legislation and see whether it specifically grandfathered in the camps. That would no doubt be an interesting part of the puzzle as to why they are still operating in wilderness.

citing congressional intent.

And the Congressmen that sponsored the bill said that wasn't his intent.

"when the Point Reyes Wilderness Act was passed, it designated Drakes Estero as potential wilderness and said once all the non-conforming uses were removed that the "potential" would be dropped."

I don't believe that's true, Kurt. Do you have a citation for that?

Truth is that the high Sierra camps just show that this Wilderness policy business is all politics. On one hand, we got overzealous employees removing sign posts (to keep with the spirit of the land untrammeled...) but we keep camps in the high Sierra. Fact is that everybody loves the high Sierra camps, so nobody is going to remove them, regardless of how much in line it is with the spirit of Wilderness. Reality is that the 64 Act should be reviewed and brought in line with modern times. As it stands, and more importantly how it is currently interpreted, it makes less and less sense every day.

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