Drakes Bay Oyster Company: Local and National Environmental Groups File Brief in Support of DOI and Wilderness

Request for en banc rehearing should be denied

The Environmental Action Committee of West Marin, Save our Seashore, National Parks Conservation Association, and Natural Resources Defense Council have filed a brief in support of the Department of the Interior (DOI) who opposes Drakes Bay Oyster Company's (DBOC) request for an en banc rehearing. As with the DOI brief, it lays out in clear logic why a rehearing before an 11 judge panel is not appropriate and should be denied.

En banc hearing requirements not met
In simple terms, this case "does not meet Federal Rule of Appellate Procedure 35 or Ninth Circuit Rule 35-1 requirements for en banc rehearing." The brief correctly notes neither DBOC nor its amici (others who filed briefs in support of DBOC) have shown any "conflict between the decision and existing precedent" nor have they identified any "question of exceptional importance" or shown a conflict with another circuit that "substantially affects a rule of national application in which there is an overriding need for national uniformity." It succinctly states:

"While DBOC is unhappy that the Secretary determined to let the permit expire in terms DBOC agreed to, no rule of national application or overriding need for national uniformity is presented."

"If you accept what I have said so far..." (dissenting opinion)

In the panel's decision being appealed, the brief notes the dissent mistakenly believes that conducting a private oyster operation in a wilderness is "firmly grounded in the text of the Wilderness Act itself." It is not. In fact, the logic provided by the dissent is an "analysis of the legislative history focused on the bill as proposed not that as passed. The bill, as passed, designated Drakes Estero as "potential wilderness" with a mandate that it become wilderness as soon as the obstacles to such designation could be removed. Sharply, the brief note that the legislative history cited "reflects a proposal, never enacted, to grandfather the oyster operation into a Drakes Estero wilderness as a nonconforming use." In short, the dissent's logic should not be accepted.

 

Section 124 is narrow

While Section 124 (the legislation giving the Secretary the discretion to issue a permit or not to DBOC) may show a path to opening up designated wilderness areas to development, in itself, is an extremely narrow statute focused on one commercial operation in one geographically bounded wilderness area. While locally controversial, it is not a "question of exceptional importance" nor does it "substantially affect a rule of national application in which there is an overriding need for national uniformity." It "applies to a single discretionary determination whether to extend a single permit to conduct commercial oyster operations at a single potential wilderness site in PRNS." (Point Reyes National Seashore)

Permits expiring do not require NEPA
Unlike environmental assessments on impacts from issuing permits the majority decision held that allowing a permit to expire should not require such a step. It correctly notes: "If agencies were required to produce an EIS every time they denied someone a license, the system would grind to a halt." Believing the one time removal of the structures used for this commercial operation should require such an action completely ignores the ongoing activities which take place in the "harvesting" of the shellfish. Acres of shellfish removed from the racks present a disturbed surface area far greater than the boards and pilings which would be removed. Acres of plastic growout bags removed from the sediments create turbidity on a far greater scale than the removal of pilings. One time use of barges to haul out the materials removed presents far less activity than the ongoing daily movement of barges used for harvesting. Aquaculture is not restoration. It is an ongoing artificial press on any ecosystem it is taking place in. Its ceasing and allowing Drakes Estero to revert to wilderness does not require NEPA nor does the question rise to the level of requiring an en banc rehearing.

Unreliable research: Trouble at the lab (The Economist, October 14)
Dr. Goodman, in his brief and in editorials in papers he controls, continues to press his opinion that the scientific process is not perfect. He is correct in that it is not perfect, unless the realities of the world are shielded by the walls of an academic institution. To see how imperfect it is one simply need look at the industry in which Dr. Goodman is currently making a living to see how imperfect the scientific process is. Within the drug and biomedical fields which Dr. Goodman's career has been built are an astounding number of studies which are unable to be replicated. The Economist recently reported that Amgen "...tried to replicate 53 studies that they considered landmarks in the basic science of cancer...and were able to reproduce the original results in only six."    Bayer HealthCare stated they "...successfully reproduced the published results in just a quarter of 67 seminal studies." Perhaps what should be of most concern to Dr. Goodman and researchers in his field is this:

"...an official at America's National Institutes of Health (NIH) reckons, despairingly, that researchers would find it hard to reproduce at least three-quarters of all published bio-medical findings,..."

Science is not perfect. It never will be. All studies have flaws. Dr. Goodman will be able to find flaws in any study or evidence presented. But in this case, as the majority correctly noted, "...it need not resolve whether NEPA compliance was required because, even if it was, the Secretary conducted an adequate NEPA review process and any claimed deficiencies were without consequence." Nothing presented causes this to rise to the level of requiring an en banc rehearing.

En banc requirements not met and the request denied
DBOC and its "friends" have presented briefs in an attempt to sway the court to believe this decision presents a conflict with existing precedent, shows a question of exceptional importance, or  conflicts with another circuit that substantially affects a rule of national application in which there is an overriding need for national uniformity. Despite an orchestrated attempt to show a "large outpouring of support" this is not a popularity contest. As the Department of the Interior and its amici have clearly shown, it is a decision of law. The Secretary of the Interior acted correctly on the discretion granted him by Congress to determine whether the Wilderness Act was more important than one local company's commercial operation within a designated wilderness area. The request for an en banc rehearing should be denied.