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."
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Rick, with all due respect, the fact that you haven't heard of something happening before doesn't mean it has never happened. I don't imagine you have previously heard of the Park Service falsifying scientific data in an EIS, yet that has happened at Point Reyes.
As Judge Watford explained, the Mihan letter was not written based on a correct interpretation of the law. That alone could be simply the result of a poor analysis.
But the timing and the source are highly suspicious. Why would this letter all of sudden be written by the local field solicitor next door? A letter that just happens to support a brand new position taken by the superintendent, a position entirely at odds with previous actions and contrary to the policies in the Seashore's GMP? The Neubacher theory is the only one that makes sense.
Sarah--You seem to place an inordinate amount of weight on Judge Watford's dissent, which, after all, was the minority opinion in this decision. But, maybe that's because you agree with it and not the majority opinion.
Rick
On the topic of the High Sierra Camps in Yosemite, historian Laura Watt, an environmental studies professor at Sonoma State, has researched those very questions. She found that they do not have a specific clause grandfathering in that commercial use, which is indeed in an area designated potential wilderness.
Does anyone have a good recipe for oysters?
Just a devil's advocate's response, imtnbke, but aren't there already plenty of examples showcasing "humans' interaction with the land"? Wasn't the intent of the Wilderness Act to preserve..wilderness?
Well, they're going to cost more. It's been reported that closing Drake's Bay is forecast to raise the price of oysters in California something like 30% or 40%. This is all in service of a dreadful mistake in crafting and writing the Wilderness Act of 1964, namely the ahistorical idea that wildlands had been left "untrammeled" by humankind and needed to stay that way. Of course they were "trammeled," to use the scriptural verb, by native Americans, hunters, miners, trappers, more miners, prospectors, oilmen, more prospectors, cattlemen, etc., etc. Their activities may or may not have been environmentally benign by modern standards, but that is beside the point about the nature of Wilderness; it is relevant only to what ought to be allowed today. From all evidence, the oyster farming at Point Reyes has a minimal environmental impact.
Had it been written better, the Wilderness Act would not only have allowed but encouraged traditional cottage industries to continue in Wilderness, so as to preserve the true nature of humans' interaction with the land. Which is what Cape Verde does in its Fogo National Park, which is wild indeed (it's an incredible moonscape) but in which a small wine-making village continues to produce good-quality wines from the harsh volcanic soil.
http://revistaadega.uol.com.br/artigo/vinhos-cabo-verdianos-serao-export...
(You can run the URL through Google Translate to get a rendition in passable English.)
But it's not to showcase anything—that's just the point. Showcasing is part and parcel of our inadvisable treating of wildlands like museums. That is what we mistakenly do in both Wilderness and the national parks. One should allow an organic and holistic interaction between people and the land under much less straitened circumstances than the severe Wilderness Act of 1964 allows for. If people were fur-trapping in northern Michigan in 1650, then let them continue (subject to reasonable regulation, which would certainly mean no roads and quite likely no motors either) if it's economically viable, even if the land is designated a Wilderness and/or a national park. This might even interest the non-museum-going public in the National Park System and Wilderness areas, the absence of which interest is most worrying to the National Park Service these days.
Is there anything more holistic that humans in wilderness without today's modern mechanical trappings? What can be more organic than that?
Are you saying if Native Americans were oystering in Drakes Estero in 1650 that we should continue the practice -- in the same exact way it was done then? Not sure that would resolve the matter at hand.