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Tuesday, January 14, 2014

Drakes Bay Oyster Company: Petition for En Banc Hearing is Denied

[Update 1/16: Drakes Bay Oyster Company's public relations attorney Peter Prows has announced he plans to appeal the 9th Circuit's denial of an en banc rehearing to the Supreme Court. If that doesn't work he claims to have plans to return to the District Court for further litigation. Mr. Prows and Drake's Bay Oyster may want to consider at what point their legal decisions will be viewed as frivolous. Lawyers advertising in the Yellow Pages for clients may be acceptable to some. Advertising through frivolous litigation is viewed quite differently, both by potential clients and the courts. Especially after having been ruled against so many times.]

"The petition for rehearing en banc is DENIED. No further petitions for en banc or panel rehearing shall be permitted."

"The full court has been advised of the petition

for rehearing en banc and no judge has requested a vote

on whether to rehear the matter en banc."
United States Court of Appeals
For the 9th Circuit, January 14, 2014

Completion of the only marine wilderness
area on the west coast outside of Alaska
will at last be allowed to happen.
Comment: Despite a flurry of last minute arm waving found in editorials penned by public relations attorney Peter Prows and others, the United States Court of Appeals for the 9th Circuit has denied a rehearing en banc. Notable is none of the Judges requested a vote. It is time for Drakes Bay Oyster Company to accept the good fortune it has had in being allowed to operate in a designated wilderness area, cease operations, remove the structures, and allow the completion of the only marine wilderness area on the west coast outside of Alaska to occur, as Congress wrote into law.

Note: Last minute arguments of California retaining the right to fish, thereby somehow meaning a commercial operation is allowed in the marine wilderness Drakes Estero is a contiguous part of twists the concept of the Public Trust in a direction it was never meant to go. Even California's agreement clearly states it is dependent on the Federal permit, which no longer exists.
For Immediate Release
January 14, 2014
Contacts: Amy Trainer, 415-306-6052
Neal Desai, 415-989-9925
9th Circuit Appeals Court Rejects Drakes Bay Oyster Co. En Banc Rehearing Petition
Decision Affirms Interior Department’s Wilderness Designation for Drakes Estero
Point Reyes, Calif. – Today the 9th Circuit Court of Appeals denied the en banc petition for rehearing by the controversial Drakes Bay Oyster Company. Notably, not a single member of the Appeals Court found DBOC’s legal case persuasive enough to vote on whether to rehear DBOC’s case:  “The full court has been advised of the petition for rehearing en banc and no judge has requested a vote on whether to rehear the matter en banc.” Today’s ruling again affirmed that 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 9th Circuit Appeals Court ruled in September that the Drakes Bay Oyster Company failed to prove it should get an injunction to continue operating after its lease expired on its own terms in November 2012.
“We are exceedingly grateful for the court’s decision to support the full wilderness protection for the magnificent Drakes Estero,” said Amy Trainer, executive director of the Environmental Action Committee of West Marin. “Once again the federal 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,” said Trainer.
“The court ruling affirms that our national parks will be preserved and that Drakes Estero is another step closer to being protected as wilderness for the American people. Incredibly beautiful places like Drakes Estero need to be returned to their full splendor as Congress determined decades ago when the land was purchased by and for the American public. We have been waiting for this moment for more than 40 years,” said Neal Desai, Pacific Region Field Director for the National Parks Conservation Association.
The court’s decision noted that, “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. 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.”
"There is nothing surprising in the Court decision that has now confirmed for the third time that the closure of the oyster operation was a well-established matter of NPS policy that Mr. Lunny was fully aware of before he bought the last few years of rights," said Gordon Bennett, President of Save Our Seashore. "It remains disappointing that Mr. Lunny believes he can pocket over half-a-million in profits that his attorneys have gained for him with these futile appeals without setting aside any meaningful financial support to transition his workers or to clean up the mess that he is responsible for," said Bennett.
Johanna Wald, senior counselor with the Natural Resources Defense Council, said “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 visitors to wilderness and parks for generations to come. We’re grateful to the entire 9th Circuit Court of Appeals for their decision in support of protecting the precious natural resources that sustain us all.” 
# # #

Amy Trainer
Executive Director
Environmental Action Committee of West Marin
Box 609 Point Reyes, CA 94956

(415) 663-9312 office
(415) 306-6052 cell

Protecting West Marin Since 1971!
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Those who contemplate the beauty of the Earth
find reserves of strength that will endure
as long as life lasts.  ~ Rachel Carson

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