Drakes Bay Oyster Company Legal Strategy: Move Over Twinkie Defense

You Get What You Pay For

In the tragic murders of San Francisco Mayor George Mascone and San Francisco Supervisor Harvey Milk, defense attorneys argued defendant Dan White  suffered diminished capacity, indicated in part by a change in diet from healthy food to sugary food. The term "Twinkie Defense" became the label given to the failed legal strategy. Attorneys for Drakes Bay Oyster Company are now pushing to move "diminished capacity" onto their legal strategy, memorialized by their saying "we can't give you a permit because the moon is made of green cheese." You get what you pay for.

A Poke in the Eye of the Legal Profession

The Moon is Made of Green Cheese So Your Permit Will Not be Renewed. Excuse me?
In an Op-ed written by Drakes Bay Oyster Company attorneys Peter Prows, Zachary Walton and Ryan Waterman is laid out the legal strategy they intend to pursue in their petition for reconsideration of the 9th Circuit Court of Appeal's majority decision which denied an injunction which would have allowed DBOC to continue operating. In their Op-ed, references to the moon being made of cheese, race, and a class of commercial activity being made illegal are thrown out as analogies to the reasoning behind why the majority's decision was wrong. You get what you pay for.

Congress and the Oyster Farm
The majority noted that Congress had given the Secretary of the Interior absolute discretion to determine whether the lease which ended in 2012 should be renewed. In their decision it was clearly noted that Senator Feinstein's original wording in her rider was changed from forcing a renewal to giving the Secretary the choice. Congress had also passed on many other opportunities to directly address whether the commercial shellfish farm should be allowed to continue operating after 2012. At every turn of the road, when given the opportunity to allow the commercial oyster farm to continue operating after 2012 they did not. This absence is as glaring as is the grasping-at-straws legal strategy being put forth by these unpaid attorneys. You get what you pay for.

Ignore the law as written, what we really meant to say was....
Current attempts to rummage through testimony, letters and hearings to find anything to support the position that "what we really meant to write was" will not stand before the court. It is not what people felt and the Congressional grand-standing which occurred in the always messy creation of law which matters. The law as written and passed, and signed by the President is what matters. Congress could have written into any bill creating the wilderness area which Drakes Estero is part of that the commercial operation should be allowed to remain in the wilderness area. They did not and dredging through the flotsam left in the wake of creating a bill is a waste of time, and were the attorneys being paid, a waste of money. You get what you pay for.

Calling something powerful does not make it so, nor does pretending the moon is made of cheese make for a powerful argument.
References to the "powerful dissent" being one of the most strongly written Mr. Prows has ever seen only shows the influence of public relations and the inexperience of a young lawyer. The dissenting opinion is built on assumptions whose weakness is found when the judge writes:

"If you accept what I have said so far..."

We do not, nor will others. You get what you pay for.