Drakes Bay Oyster Company: Supreme Court Denies Request for Hearing

 

It's now time to let the Philip Burton Wilderness,

created for all citizens, be completed as Congress passed as law.

 

A contiguous marine wilderness

may now be completed. 

(click to enlarge)

 

 



Today the Supreme Court of the United States denied Drakes Bay Oyster Company's (DBOC) request to hear their case. With that decision the injunction allowing DBOC to continue its commercial operation in Drakes Estero is now lifted and the process for the removal of non-native marine species being grown by DBOC and the dismantling and removal of the structures in this wilderness area may begin.

 

Press release from the West Marin Environmental Action Committee

 

June 30, 2014

Contact:  Amy Trainer 415-306-6052

Neal Desai:  510-368-0845

Gordon Bennett: 415-663-1881

U.S. Supreme Court Declines To Hear Oyster Company Petition for Review

    Interior Department Can Proceed to Restore Wilderness To Drakes Estero as Congress Intended

Point Reyes, Calif. - Today the United States Supreme Court denied the petition for review filed by the Drakes Bay Oyster Company, thus affirming the 9th Circuit Court of Appeal's denial of the Company's preliminary injunction lawsuit. The Company sued the Interior Department in December 2012 after former Interior Secretary Ken Salazar decided to let the 40-year lease expire on its own terms. The effect will be that the temporary emergency injunction put in place by the 9^th Circuit in February 2013 will be lifted and the Department of the Interior can set in motion a timeline for the company to remove its oyster operation from Drakes Estero.

 

“The Court made the right decision in upholding the long-anticipated oyster lease expiration that protects Drakes Estero, the wild ecological heart of Point Reyes National Seashore, which is particularly important on the eve of the 50th Anniversary of the Wilderness Act,” said Amy Trainer, executive director of the Environmental Action Committee of West Marin. “We look forward to a time of healing in the community and stand ready to do our part to support the workers’ transition.”

 

“The Court decision affirms that 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,” said Neal Desai, Pacific Region Field Director for the National Parks Conservation Association. “We have been waiting for more than 40 years to celebrate this marine wilderness designation in Point Reyes National Seashore.” 

"There is nothing surprising in the Court decision that has now confirmed for the fourth time that the closure of the oyster operation was a well-established matter of law and policy that Mr. Lunny was fully aware of before he bought the last few years of the lease," said Gordon Bennett, President of Save Our Seashore. "  I hope that community wounds can heal and the clean-up begin so that the public and wildlife can enjoy this Marine Wilderness as Congress intended," said Bennett.

The company has been operating for 19 months past its lease expiration under the soon-to-be-lifted court injunction. The company's workers living on-site will be allowed to remain in the housing for the foreseeable future until equivalent housing can be located, and they will receive a generous relocation package allowed under federal relocation assistance laws.

# # #

Amy Trainer, JD

Executive Director

Environmental Action Committee of West Marin

Box 609 Point Reyes, CA 94956

amy@eacmarin.org

(415) 663-9312 office

(415) 306-6052 cell

Protecting West Marin Since 1971!

www.eacmarin.org

www.savepointreyeswilderness.org

www.pointreyesbirdingfestival.org

*Like* us on Facebook

Those who contemplate the beauty of the Earth

find reserves of strength that will endure

as long as life lasts.  ~ Rachel Carson



Drakes Bay Oyster Company: Supreme Court to Review Petition June 26th

The Secretary emphasized in particular that

"his decision was 'based on the incompatibility of

commercial activities in wilderness.'"

Department of the Interior brief

 



The Supreme Court has announced it will review Drakes Bay Oyster Company's petition on June 26th.  It is expected an announcement will be issued the following Monday, June 30th, on their decision. It may be rejected, re-listed for further consideration the following week, or accepted for review.

The Department of the Interior's clear logic on why DBOC's petition should be rejected is detailed in their brief [click here]. It shows the reader in clarity why DOI's decision to allow Drakes Estero to become the wilderness Congress intended, for all citizens of the United States to enjoy, is well grounded in law. DBOC's perceived belief of being entitled to generate profits from their commercial operation within the Philip Burton Wilderness Area does not trump the Wilderness Act.

Additional information may be found here:
13-1244
Drakes Bay Oyster Company v. Jewell

(1) Whether federal courts lack jurisdiction under the Administrative Procedure Act to review an agency action that is arbitrary and capricious or an abuse of discretion when the statute authorizing the action does not impose specific requirements governing the exercise of discretion; (2) whether federal agencies can evade review of their actions under the National Environmental Policy Act by designating their actions as “conservation efforts,” when the record shows that the action will cause significant adverse environmental effects; and (3) whether an agency commits prejudicial error when it makes materially false statements in an environmental impact statement, and then asserts that it would have made the same decision even if the false statements had been corrected.

Drakes Bay Oyster Company: DOI Responds to DBOC's Petition - "Misguided, lacks merit."

 "This isn't about environmental crimes."

Dr. Corey Goodman, Range Magazine, 2013

 

 

"The purchase documents specifically informed

petitioners that the right to operate in the

National Seashore would expire in 2012."

DOI Brief

 

"After careful consideration of the applicable law and policy, I have directed the National Park Service to allow the permit for the Drakes Bay Oyster Co. to expire ... and to return the Drakes Estero to the state of wilderness that Congress designated for it in 1976."

DOI Secretary Salazar, November, 2012 [Note: date corrected 5/29] 

 

NEWS: Interior Dept. Files Supreme Court Brief, Concludes No Credible Argument Presented



Contact:

Amy Trainer, Environmental Action Committee of West Marin, 415-306-6052

Neal Desai, National Parks Conservation Association, 510-368-0845

 

 

Interior Department Brief Concludes No Credible Argument Presented by Oyster Company

Interior Filing Confirms Oyster Company’s Petition is Misguided, Lacks Merit 

Today, the Department of the Interior filed its opposition brief against the Drakes Bay Oyster Company’s petition for review to the U.S. Supreme Court. The Interior Department’s opposition brief handily rejected the oyster company’s desperate attempt to continue operating more than a year after former Interior Secretary Salazar decided to let the 40-year lease expire on its own terms as planned. The Federal District Court and the 9^th Circuit Court of Appeals affirmed the legality of Salazar’s decision, including that the oyster company was well aware of the lease’s 2012 expiration date.

 “The Interior Department’s brief strongly articulates the many reasons why the Obama Administration’s decision to let the 40-year commercial oyster lease expire and allow Drakes Estero to be restored to wilderness is definitively supported by federal court decisions, as well as federal law and policy,” said Amy Trainer, executive director of the Environmental Action Committee of West Marin. “The Interior Department’s brief handily rejects the oyster company’s misguided and erroneous legal arguments, and seamlessly shows why the Supreme Court should pass on reviewing this case.”

“Three federal court rulings have rejected the oyster company’s assault on taxpayer purchased lands, bringing Americans one step closer to enjoying their national park wilderness as planned decades ago,” said Neal Desai, pacific region field director of the National Parks Conservation Association.

 

Highlights from the Interior Department’s brief include:

 

-- The court of appeals accordingly considered on the merits (and rejected) every objection that petitioners [Drakes Bay Oyster Co.] raised against the Secretary’s decision. Pg. 11

 

-- The petition does not identify any particular, specific, reviewable arguments that were presented to, but disregarded by, the court of appeals. Pg. 14

 

-- Because the court of appeals did not conclude that there was “no law to apply” in this case, the decision below does not implicate any of the circuit conflicts alleged by petitioners. Pg. 15

 

-- The decision in this case did not alter the legal status quo. This is not a circumstance in which an agency is required by statute or regulation to act on a permit application. Rather it is a circumstance in which rights reserved in a contract conveying land to the United States were set to expire on their own terms, and the agency did nothing to change that situation. Allowing such rights to expire is not naturally characterized as “major agency action.”And none of the circuit decisions relied on by petitioner suggests that NEPA would apply in a circumstance like this. Pg. 23

                                                                                                         # # #

Amy Trainer

Executive Director

Environmental Action Committee of West Marin

Box 609 Point Reyes, CA 94956

amy@eacmarin.org

(415) 663-9312 office

(415) 306-6052 cell

Protecting West Marin Since 1971!

www.eacmarin.org

www.savepointreyeswilderness.org

www.pointreyesbirdingfestival.org

*Like* us on Facebook

Those who contemplate the beauty of the Earth

find reserves of strength that will endure

as long as life lasts.  ~ Rachel Carson

Drakes Bay Oyster Company: Petition Filed with Supreme Court Riddled with Mis-information

Environmental Action Committee of West Marin responds to the Pacific Legal Foundation's petition filed with the Supreme Court.

 

4/14/2014

 

Don’t Be Fooled by Drakes Bay Oyster Company’s Supreme Court Petition

By Amy Trainer

The Drakes Bay Oyster Company’s relentless push to overturn the congressional wilderness designation for Drakes Estero got closer to the end of the road today when the company’s army of corporate lawyers filed a petition for review to the U.S. Supreme Court. The millions of advocates for our national parks, wilderness, and coastal protection refuse to let the Koch Brothers-funded Pacific Legal Foundation – the Company’s main proponent - and their public lands exploitation interests destroy Drakes Estero, the ecological heart of the Point Reyes National Seashore.

The Company’s petition is full of false statements of fact and exaggerations. For example, the Company's hyperbole likens restoring Drakes Estero wilderness to blowing up the Hoover Dam. Closing down the Company’s non-native oyster operations in Drakes Estero as long planned will not have an impact on California’s oyster market, as the petition asserts, because the Company only produces 3.5% of the West Coast oysters. Humboldt Bay, the state’s largest oyster growing area produces over 70% of California’s oysters, and is in the process of expanding by 50%. Native oysters were never abundant in Drakes Estero, and the Company’s stubbornly ignoring peer-reviewed science on this issue doesn’t change the facts.

The Company’s petition to the Supreme Court is a last-ditch move full of desperate arguments.  The 9^th Circuit Appeals Court found the company unlikely to show that former Interior Secretary Ken Salazar abused his discretion in letting the 40-year oyster lease expire on its own terms. As readers may recall, the Company’s owner, Kevin Lunny, admitted in his federal court declarations that he was given written notice by the Interior Department in 2005 that after November 2012 Drakes Estero would be transitioned to wilderness. This transition follows the clear direction from Congress in 1976 under the Point Reyes Wilderness Act. Mr. Lunny knew the deal when he signed a contract with the Park Service yet now claims otherwise in his Supreme Court petition.

The Company’s petition misrepresents former Interior Secretary Salazar’s decision to let the oyster lease expire as long planned. Salazar’s Nov. 29^th 2012 decision memorandum laid out the reasons why he relied on the public policy underlying the 1976 congressional wilderness designation for Drakes Estero. The 9^th Circuit Appeals Court correctly noted that a 2009 bill authored by Senator Dianne Feinstein  [Sec. 124] “left him free to consider wilderness values and the competing interests underlying a commercial operation in an area set aside as a natural seashore.” The Company’s petition ignores the clear language of Salazar’s decision memo that indicates the care and thoughtfulness he exercised in weighing these competing values. As Interior Secretary, Salazar was the trustee of America’s public lands and this decision was clearly within his sphere of expertise. To claim Salazar’s decision was “arbitrary and capricious” because the Company disagrees with his discretionary decision shows the arbitrary nature of the Company’s petition.

Further, the Company’s petition misrepresents the strong 9^th Circuit Appeals Court ruling and En Banc Rehearing Denial. The 9^th Circuit rejected the Company’s “wishful thinking” that the Sec. 124 rider was intended to “make it easy” for Salazar to issue the permit.  The 9^th Circuit decision noted that “the Secretary’s incorporation of the policies underlying wilderness legislation, and of Congressional intent as expressed in the House committee report, was a matter of his discretion." The majority opinion found that the dissent’s position was “not supported by the record,” and that the Secretary, “drawing on the agency expertise amassed in the decades since the 1970s, concluded that continued oyster farming was inconsistent with wilderness criteria and the Department’s policies.” 

The inconsistency is readily apparent in the Company’s green-washed “stewardship” of Drakes Estero. The Company conveniently omits any mention of its egregious 8-years-and-counting violations of the California Coastal Act, one of the worst offenders in the Act’s history. Instead of complying with the Coastal Commission’s second enforcement action to reverse environmental damage to the Estero during the Company’s short tenure – a unanimous Cease and Desist Order from February 2013 - the Company instead sued the Commission and has taken no steps toward meaningful compliance. The Company continues to grow invasive Manila clams and foster the spread of a nasty invasive species Didemnum vexillum, known as “marine vomit” which are causing increasing harm to this biologically rich area. Thousands of pieces of the Company’s plastic have polluted beaches all over the National Seashore.

 

The Company’s petition for review continues to push junk science by its loudest advocate, Dr. Corey Goodman who is a neurobiologist with no experience in marine ecosystems whose complaint attacking the analysis of noise from the Company’s operations was rejected by the Office of the Inspector General. The 2012 IG report concluded that, “We found no evidence, documents, DEIS revisions, or witnesses that supported the complainant's allegations."

 

The Company’s false claims denying impacts to harbor seals from its operations are similarly specious. An investigation by the federal Marine Mammal Commission concluded “mariculture activities in the estuary do disturb harbor seals.” The Company and its advocates attacked this report.

 

Then executive director of the U.S. Marine Mammal Commission found that the “majority of analyses” made by the Company’s advocate in attacking the National Park Service’s peer-reviewed research and the Marine Mammal Commission’s report, were based on “fundamental flaws in [Goodman’s] application of the multiple regression model and they invalidate” the results.” This was nothing new, as the Interior Department Solicitor’s March 2011 report noted that the Company's advocate “immediately attached labels of ‘false,’ and ‘misrepresentation’ and ‘misleading’ to every scientific assertion with which [he] disagreed.”

 

The 2012 National Academy of Sciences Report on the Draft EIS for the oyster operation found that the pro-wilderness “Alternative A” [removing the oyster operation] was by far the environmentally preferable alternative based on the best available peer-reviewed science as compared to Alternatives B, C, and D [the “action” alternatives representing varying levels of oyster production]. The Company’s inexorable attacks using questionable science to challenge the conclusions of the Draft and Final Environmental Impact Statements regarding the appropriate management for Drakes Estero fly in the face of the well-supported conclusion that the “environmentally preferable” alternative is to restore Drakes Estero to wilderness.

Point Reyes National Seashore draws 2.5 million visitors a year and is the major economic engine of western Marin County. This popularity of this human haven is not dependent in the least on the Drakes Bay Oyster Company. The Company bizarrely claims that the Interior Secretary's discretionary decision — authorized by one specific law — to let expire on its own terms one permit, for one company, in one area of one National Seashore somehow constitutes a matter of "exceptional importance.” The Supreme Court would serve the American people well by rejecting this specious petition and returning our only West Coast marine wilderness to all of us and future generations to enjoy.

This op-ed will appear in the East Bay Express this week.

Amy Trainer

Executive Director

Environmental Action Committee of West Marin

Box 609 Point Reyes, CA 94956

amy@eacmarin.org

(415) 663-9312 office

(415) 306-6052 cell

Protecting West Marin Since 1971!

www.eacmarin.org

www.savepointreyeswilderness.org

www.pointreyesbirdingfestival.org

*Like* us on Facebook

Those who contemplate the beauty of the Earth

find reserves of strength that will endure

as long as life lasts.  ~ Rachel Carson

[4/16 comment update: Jane Gyorgy provided a number of extremely lengthy comments to this post. Those interested in reading what her point of view is may find her blog site here. She also provided 2 identical copies of the NOAA article on oysters and the Potomac River. See the 4/16 post for a response to that article.]