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
Potential. I'm sure of it.
From A Sense of Place: Design Guidelines for Yosemite National Park published by NPS:
I could look up the scoping documents on the repairs to the HSCs. If you check the Wilderness.net map of Yosemite, there are tiny spots where the designated wilderness boundary ends that would seem to correspond to the HSC locations.
As for the California Wilderness Act (1984):
There's no guidance in the text of the law. You can check the Point Reyes Wilderness Act or the omnibus wilderness bill that amended it a few weeks later. It's pretty short. If there's anything that instructs what to do about potential wilderness, I haven't seen it. All it says is that potential wilderness will exist.
http://www.nps.gov/pore/parkmgmt/upload/lawsandpolicies_publiclaw94_544.pdf
Page 12 has a map of the Merced River from Nevada Fall to the Merced Lake Ranger Station. It clearly marks the Merced HSC as a "potential wilderness addition".
http://www.nps.gov/yose/parkmgmt/upload/Merced-Wkbk-web.pdf
I haven't read the Ninth Circuit opinion, but here is the view of a legal commentator who has:
http://calapp.blogspot.com/
You'll have to scroll down a bit.
All along I've felt that the government has been right on the law but wrong on policy. I.e., both the Wilderness Act of 1964 and the more recent bill specifically regarding the Drake's Bay Oyster Company allow the Interior Secretary to do what she did. It's just too bad that she wanted to do it.
Hi, Rick — I agree with you that modifying agency policies would go a long way to correcting the overreaching interpretations of the Wilderness Act of 1964, which began in the mid-1970s and soon caused even Morris K. Udall and Frank Church to sternly criticize the direction in which the agencies were taking the Act. Today one might fairly apply the adjective "Talibanic" to some of the more draconian agency rules regarding Wilderness. Let's put it this way: no other country in the world has chosen to follow us in the way we manage our wildlands. Quite the opposite situation of our national parks model.
But as I'm sure you know, no bureaucracy ever wanted to create trouble for itself by tinkering with such an emotionally charged issue as Wilderness management. I've communicated with the Forest Service's employee in charge of all Wilderness about internal FS documents from circa 1981-1983 that showed the agency at times wanted to allow bicycles in Wilderness but went back and forth, eventually landing on the chessboard square of "no," seemingly almost at random, given that there was no meaningful public input and only a rather cryptic internal dialogue. And it is on the "no" square that the king has been sitting ever since. Placing the king in check and forcing it to move has proved to be impossible, although some have tried, including me.
Eventually the Act will lead to such mammoth contradictions that a critical mass to reform it will sweep over Congress and it will be reformed. But I understand why you and others do not want that to happen in our lifetimes.
The ACLU website, somewhat to my surprise, has an unexpectedly interesting blog commentary on the nature of bureaucracies. Though it talks about the national security state, it applies quite well to the land management state too, in my opinion:
https://www.aclu.org/blog/technology-and-liberty-national-security-crimi...
My issue is that Section 124 specifically noted that a specific NAS study was to be considered in making the decision, and I haven't seen anything that suggests that Salazar considered it. In his memo he only referred to NPS studies.
Also - Ken Salazar is a "he". The current Secretary of the Interior is a "she" though.
Didn't Sally Jewell adhere to Ken Salazar's decision? I assume she could have overturned it once she assumed office.
Even if it's all about him and not her, appellate decisions usually refer to the current secretary, so that's why I said "she." But if he decided and she had no say in it on assuming the post, maybe "he" would be better.
Jewell has recused herself.
Kurt, you don't seem to be responding to the substance of my point. Perhaps I was unclear.
I stand corrected on the "Solicitor's report" (which is not a report but a short letter from field solicitor Mihan) being from Interior and not NPS, but that's hardly a crucial distinction. The point is that it's very thin gruel when debating the legislative history. It was written in 2004 for dubious reasons, and relies solely on the one sentence from the House Report that is your second example.
As Judge Watford explains, that sentence from the House Report has been misinterpreted by the Park Service (most likely intentionally). Judge Watford provides a legal citation in support of his point that the sentence from House report and thus the Mihan letter "is in no way anchored in the text of the statute."
The link you provided for the House Report is a link to a Park Service document that contains that same sentence, not to the House Report itself.
I made no claim that the 9th Circuit decision was engineered by NPS and I can't imagine how you got that impression.
When it comes to the legislative history, it is absolutely appropriate to pay attention to "decades-old legislative pronouncements." That IS the record. The Park Service is trying to rewrite that historical record, as Judge Watford has, appropriately, pointed out.
Judge McKeown's quote above does nothing to dispute Judge Watford's analysis, and in fact it fits his characterization of "hand-waving" quite nicely.
Whether or not Judge Watford's analysis is correct is entirely separate from the fact that his was the minority opinion. I'm not arguing from authority here, I used Judge Watford's quotes because I think they provide an excellent summary of the relevant facts.
I am not challenging your objectivity, Kurt. I am challenging your facts. The House Report, the Mihan letter, and the blather Salazar left in his wake, do not make up "the record." There is a real legislative history here, and every serious analysis of that history supports the reading that the oyster farm was always intended to stay.