Drakes Bay Oyster Company - Jim Linford and Legislative Intent

Supreme Court Justice Scalia: “The manner in which the law ‘could have been written,’ has no bearing; what matters is the law the Legislature did enact. We cannot rewrite that to reflect our perception of legislative purpose.” Shady Grove Orthopedic Associates v. Allstate Insurance Company, No. 08-1008, slip op. at 9 (March 31, 2010)

The Perception
Jim Linford, semi-retire appellate attorney, writes in the October 10 online issue of the Marin Independent Journal about his perception of what the Court of Appeals for the 9th Circuit judges agreed on in their 2-1 ruling against Drakes Bay Oyster Company's continued commercial operation within Drakes Estero, part of the Phillip Burton Wilderness. In his opinion piece he writes on his belief that all judges agreed on what the "intent" of Congress was decades ago when the Phillip Burton Wilderness was created. In support of this belief he lifts part of one sentence from the decision and includes it in his writing:

The dissent fully develops this understanding of the original congressional intent, and the majority acknowledges "the accuracy of the dissent's recitation of the legislative history of the 1976 Act." [The Point Reyes National Seashore]

Marin County Fog
In resolving the issue of whether the Secretary of the Interior had the discretion to issue or not issue a special use permit, selectively pulling pieces of relevant documents (in this case the Court's decision) fogs the reality of the decision. Mr Linford neglects to point out that the decision also contained this paragraph written by the majority, specifically focused on the relevance of the minority's idea of what may have been the "intent" of Congress:

The dissent’s reliance on decades-old legislative pronouncements about the Johnson oyster farm for the proposition that Section 124 was intended to foreclose the Secretary from considering his department’s own policies with regard to Drakes Bay stretches even the most liberal use of legislative history to the breaking point. “[U]nenacted approvals, beliefs, and desires are not laws.” Puerto Rico Dep’t of Consumer Affairs v. Isla Petroleum Corp., 485 U.S. 495, 501 (1988). (emphasis added)

As they note, whatever the perceived "intent" of Congress one may have, and whether it was accurately recited or not, it is irrelevant to whether the Secretary had the discretion to issue a permit. The majority writes clearly and forcibly:

Regardless of the accuracy of the dissent’s recitation of the legislative history of the 1976 Act, the dissent’s citation to congressional statements in support of designating Drakes Estero as wilderness in 1976 do not reliably reflect that the Congress that enacted Section 124 was of the dissent’s view that Drakes Bay’s operations were “not an ‘obstacle’ to converting Drakes Estero to wilderness status.”

Planting Ideas in the Record Does Not Grow a Law
Relying on snippets pulled from letters submitted or read into the record during the creation of a bill is a far cry from what is actually written, voted on and signed by the President. As United States Supreme Court Justice Antonin Scalia has noted, "legislative intent" is often created by proponents of a bill to persuade a court to interpret the statute in a way that they were not able to persuade the legislative body to adopt when passing the bill. He believed it was "...legal fiction that committee reports reflect congressional intent."  Milavetz, Gallop & Milavetz v. United States (08-1119. He wrote further:

"...it is utterly impossible to discern what the Members of Congress intended except to the extent that intent is manifested in the only remnant of 'history' that bears the unanimous endorsement of the majority in each House: the text of the enrolled bill that became law." Graham County Soil, No. 08-304, slip op. at 12. (emphasis added)

The Wilderness Act as Law is Clear

Finally, Mr Linfield's attempt to redefine the "intent" of the Wilderness Act as being lands set aside to be viewed from "...behind a brass railing and a thick glass window..." only helps the thrust of public relations firms and lobbyists to create a corporate definition of "wilderness" far different than the law written, passed and signed into law.