Our mission is to protect the habitat of Puget Sound tidelands from the underregulated expansion of new and intensive shellfish aquaculture methods. These methods were never anticipated when the Shoreline Management Act was passed. They are transforming the natural tideland ecosystems in Puget Sound and are resulting in a fractured shoreline habitat. In South Puget Sound much of this has been done with few if any meaningful shoreline permits and with limited public input. It is exactly what the Shoreline Management Act was intended to prevent.

Get involved and contact your elected officials to let them you do not support aquaculture's industrial transformation of Puget Sound's tidelands.

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Tuesday, September 3, 2013

Drakes Bay Oyster Company: 9th Circuit Appeals Court Rules In Favor of Wilderness


9th Circuit Court of Appeals Affirms Wilderness Designation for Drakes Estero

From the Environmental Action Committee:
Conservation Leaders Applaud Appeals Court Ruling Affirming Obama Administration’s 
Marine Wilderness Decision at Point Reyes National Seashore
Point Reyes, Calif. - Conservation leaders praised a 9th Circuit Appeals Court ruling today that affirmed the Obama Administration’s marine wilderness designation for Drakes Estero, the ecological heart of the Point Reyes National Seashore and only marine wilderness area on the West Coast. The appeals court  affirmed the lower court ruling that the Drakes Bay Oyster Company does not warrant an injunction to continue operating after its lease expired on its own terms last November. The company has none of the state or federal permits that are necessary to operate this commercial business in a national park or coastal estuary.
The panel affirmed the district court’s order denying a preliminary injunction challenging the Secretary of the Interior’s discretionary decision to let Drakes Bay Oyster Company’s permit for commercial oyster farming at Point Reyes National Seashore expire on its own terms. The panel held that it had jurisdiction to review whether the Secretary violated any legal mandate contained in Section 124 or elsewhere, but that it lacked jurisdiction to review the Secretary’s ultimate discretionary decision whether to issue a new permit. The panel held that Drakes Bay was not likely to succeed in proving that the Secretary violated constitutional, statutory, regulatory, or other legal mandates or restrictions. The panel further held that Drakes Bay was not entitled to a preliminary injunction not only because it failed to raise a serious question about the Secretary’s decision, but also because it had not shown that the balance of equities weighed in its favor. [pages 2-3]

“The 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,” said Amy Trainer, executive director of the Environmental Action Committee of West Marin.
“The court ruling affirms that our national parks will be safe from privatization schemes, and that special places like Drakes Estero will rise above attempts to hijack Americans’ wilderness. Taxpayers can rejoice that the land they bought and own in Point Reyes National Seashore will now be protected as planned after 40 years of waiting,” said Neal Desai, Associate Director of the Pacific Region for the National Parks Conservation Association.
Judge McKeown wrote that, "We have jurisdiction to consider whether the Secretary violated “constitutional, statutory, regulatory or other legal mandates or restrictions,” Ness Inv. Corp. v. U.S. Dep’t of Agr., Forest Serv., 512 F.2d 706, 715 (9th Cir. 1975), and we agree with the district court that Drakes Bay is not likely to succeed in proving any such violations here. Through Section 124, Congress authorized, but did not require, the Secretary to extend the permit. Congress left the decision to grant or deny an extension to the Secretary’s discretion, without imposing any mandatory considerations. The Secretary clearly understood he was authorized to issue the permit; he did not misinterpret the scope of his discretion under Section 124. In an effort to inform his decision, the Secretary undertook a NEPA review, although he believed he was not obligated to do so. Nonetheless, any asserted errors in the NEPA review were harmless."

Gordon Bennett, President of Save Our Seashore, said that, “we have long-stated and the Court has now confirmed that the expiration of the oyster operation permit was a well-established matter of contract and NPS policy that Mr. Lunny was fully aware of before he bought the last few years of operating rights. This decision facilitates the long-planned wind-down of company operations and we hope that the company provides strong financial support for the transition of its workers.”
Johanna Wald, Senior Counselor with the Natural Resources Defense Council, said that, “today’s decision is another affirmation of the principle that ‘a deal is a deal’. The preservation of Drakes Estero will be enjoyed by millions of Californians and lovers of wilderness and parks for generations to come. We’re grateful to the Appeals Court for their strong decision to protect our precious natural resources.” 
The court further noted, "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. 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." [page 6] 
“We urge the company to fulfill its long-standing responsibility to its workers by assisting them during this time of transition,” Trainer said.  “The local community will work with Congressman Huffman and other leaders to ensure that the workers are taken care of," she said.

Amy Trainer
Executive Director

Environmental Action Committee of West Marin
P.O. Box 609 Point Reyes, CA 94956
(415) 663-9312 office
(415) 306-6052 cell

Protecting West Marin for over 40 years!

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