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

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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."

Comments

Sarah, haven't we been through this before a time or three?

There are a variety of citations. If you disagree, perhaps you can demonstrate otherwise.

From a 2004 Solicitor's opinion (http://www.nap.edu/openbook.php?record_id=12667&page=108):

... the Park Service is mandated by the Wilderness Act, the Point Reyes Wilderness Act and its Management Policies to convert potential wilderness, i.e., the Johnson Oyster Company tract and the adjoining Estero, to wilderness status as soon as the non coiiforming use can be eliminated.

According to park documents (http://www.mmc.gov/drakes_estero/pdfs/nps_swilderness_51107.pdf) House Report 94-1680 specified the intent to designate the estero as wilderness:

"it is the intention that those lands and waters designated as potential wilderness , to the extent possible, with efforts to steadily continue to remove all obstacles to the eventual conversion of these lands and waters to wilderness status."

And according to a Federal Register listing (https://www.federalregister.gov/articles/2012/12/04/2012-29381/designati...):

94, approved October 20, 1976, designated 25,370 acres in Point Reyes National Seashore as wilderness and further identified 8,003 acres as potential wilderness additions in maps entitled “Wilderness Plan, Point Reyes National Seashore”, numbered 612-90,000-B and dated September 1976. The maps showing the wilderness area and potential wilderness additions are on file at the headquarters of Point Reyes National Seashore, Point Reyes Station, CA 94956. Although Section 1 of 94 identified the number of acres of wilderness and potential wilderness, the maps filed with the committee as required under Section 2 of the legislation confirms that the actual acreage of the lands and waters was 24,200 acres of wilderness and 8,530 acres of potential wilderness.

Section 3 of 94 provided a process whereby potential wilderness additions within the Point Reyes National Seashore would convert to designated wilderness upon publication in the Federal Register of a notice that all uses of the land prohibited by the Wilderness Act (88) have ceased. On November 18, 1999, a notice was published in the Federal Register that 1,752 acres of potential wilderness had converted to designated wilderness as a result of the cessation of prohibited uses. 64 FR 63057.

94 identified much of Drakes Estero as potential wilderness, and not as designated wilderness, due to the presence of a commercial shellfish operation in the estero. The authorizations for the commercial shellfish business operating in Drakes Estero expire on November 30, 2012.Accordingly, all uses prohibited under the Wilderness Act within Drakes Estero have ceased as of 11:59 p.m. on November 30, 2012. Drakes Estero is entirely in federal ownership. Pursuant to Section 3 of 94, publication of this notice hereby effects the change in status of 1,363 acres of Drakes Estero, more or less, from potential wilderness to designated wilderness. A map showing this change is on file at the headquarters of Point Reyes National Seashore, Point Reyes Station, CA 94956.

I don't disagree that the authors of the Point Reyes Wilderness Act maintain they didn't intend for the oyster company to cease operations. But the House report and interpretations of it seem to disagree.


Letter from Salazar. The bottom of page 2 and top of page 3 mentions the pertinent part of the Wilderness act with regard to potential wilderness.


Zeb, you raise some valid points. Question: How would you bring the '64 Act "in line with modern times"?


Zeb and Kurt--With the current make up of the Congress, I would not open any previous environmental laws to "mondernization." What you are likely to get is the same kind of legislation that the House has passed to gut the Antiquities Act. The best way to do this would be to review and modify agency policies.

Rick


Rick,

That may be true. Most of the rules guiding Wilderness policies are based on agency interpretations, including the banning of bicycles. I'm pretty sure that the 64 Act sponsors would be appalled by how the Act has been interpreted.


We have indeed been through this a few times, and as I recall you always cite only Park Service documents. Given the clear record of inappropriate behavior by the Park Service at Point Reyes with respect to the oyster farm, it seems wise to seek other sources. It seems especially important not to assume that Park Service sources from 2004 onward are correct, given that 2004 is when the switch took place at PORE, from backing the oyster farm to working against it.

The 2004 Field Solicitor's opinion was most likely written at the request of Neubacher. He needed something, since the GMP supports the oyster farm. (The GMP says, about Natural Resources Management: “to manage seashore activities in the pastoral and estuarine areas in a manner compatible with resource carrying capacity,” and specifies “To monitor and improve mariculture operations, in particular the oyster farm operation in Drakes Estero, in cooperation with the California Department of Fish and Game.” It says, under Cultural Resources Management, "to monitor and support productive land uses and activities which are consistent with historic patterns," and specifies “to ensure that agricultural and maricultural activities are consistent with the historical evolution of land and water use in Point Reyes.”)

Judge Watford’s dissent includes an excellent, detailed review of the legislative history, which he underlines with: “The view expressed by these speakers—that continued operation of the oyster farm was fully compatible with Drakes Estero’s designation as wilderness —was not some wild-eyed notion. It was firmly grounded in the text of the Wilderness Act itself. The Act generally bans commercial enterprise within wilderness areas, but does so “subject to existing private rights.”

Judge Watford has this to say about the Solicitor’s opinion (“a legal analysis performed by the Interior Department”):

“Shortly before Drakes Bay’s purchase of the oyster farm closed, the Park Service reiterated its view that, based on a legal analysis performed by the Interior Department, no new permits authorizing oyster farming in Drakes Estero could be issued. The Department’s legal analysis concluded—bizarrely, given the legislative history recounted above—that by designating Drakes Estero as a potential wilderness addition in the Point Reyes Wilderness Act, Congress had “mandated” elimination of the oyster farm. The Department never identified anything in the text of the Act to support that view; it cited only a passage from the House Report accompanying H.R. 8002. But that passage “is in no way anchored in the text of the statute,” Shannon v. United States, 512 U.S. 573, 583–84 (1994), and thus provides no support for the Department’s interpretation of the Act.”

So much for the excerpt from the House Report. Judge Watford comments further on that excerpt:

“Even taken on its own terms, however, the passage from the House Report does not support the Department’s interpretation. The passage states in full: “As is well established, it is the intention that those lands and waters designated as potential wilderness additions will be essentially managed as wilderness, to the extent possible, with efforts to steadily continue to remove all obstacles to the eventual conversion of these lands and waters to wilderness status.” H.R. Rep. No. 94-1680, at 3 (1976) (emphasis added). But the oyster farm was not an “obstacle” to Drakes Estero’s conversion to wilderness status, and no one in Congress ever expressed that view. To the contrary, as discussed above, all indications are that Congress viewed the oyster farm as a beneficial, pre-existing use whose continuation was fully compatible with wilderness status.”

Watford also says:

“What does the majority offer in response to this analysis? Some hand waving, to be sure, but nothing of any substance. Most tellingly, the majority never attempts to argue that the Interior Department’s interpretation of the Point Reyes Wilderness Act was correct. Nor could it make that argument with a straight face given the Act’s clear legislative history, which the majority never attempts to address, much less refute.”

There is much more detail in the dissent, which begins on page 37 of the decision. Thanks for providing a link to the decision so people can read it for themselves.


Sigh.

The Solicitor's report was not NPS, House Report 94-1680 is not an NPS report, the 9th Circuit's ruling was not engineered by the NPS (unless you can prove it was, as you imply the Solicitor's 2004 opinion was).

As for Judge Watford's thoughts, he was in the minority, no? The two other judges disagreed with him, no? In fact, in the majority opinion, Judge McKeown wrote:

Regardless of the accuracy of the dissent’s recitation of the legislative history of the 1976 Act, the dissent’s citation to congressional statements in support of designating Drakes Estero as wilderness in 1976 do not reliably reflect that the Congress that enacted Section 124 was of the dissent’s view that Drakes Bay’s operations were “not an ‘obstacle’ to converting Drakes Estero to wilderness status.” The dissent’s position would rewrite the clause to something like “notwithstanding the Department’s policy view that oyster farming can be incompatible with wilderness designation.” The dissent cites nothing from the text, or even the legislative history, of Section 124 to support this interpretation.

And in a footnote to that comment, she wrote:

The dissent’s conclusion that “[c]ontinued operation of the oyster farm is fully consistent with the Wilderness Act” is particularly puzzling given that Drakes Bay itself argued that wilderness designation of Drakes Estero was not possible while the oyster farm’s commercial activities continued. Moreover, there are a variety of Park Service management criteria that inform the question of what kinds of activities are “consistent” with wilderness designation under the Wilderness Act. The dissent’s reliance on decades-old legislative pronouncements about the Johnson oyster farm for the proposition that Section124 was intended to foreclose the Secretary from considering his department’s own policies with regard to Drakes Bay stretches even the most liberal use of legislative history to the breaking point.

Bottom line, I have no horse in this race. Just following the record.


Sarah--In my 30+ years with the NPS, I never heard that a Solicitor wrote something that the Superintendent wanted. They work for the Department, not the NPS, and write opinions based on law, not personal relationships. Do you suppose Watford wrote on behalf of Lunny? That is just as absurd.

Rick


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