Ken Salazar, secretary of the Department of the Interior
Image: Courtesy photo
SAN FRANCISCO — The Drakes Bay Oyster Co. can keep farming a few more months as the U.S. Court of Appeals for the Ninth Circuit sorts out a legal challenge to a government-imposed shutdown.
Three days before its lease was set to expire, the Ninth Circuit on Monday enjoined Interior Secretary Ken Salazar from evicting the company while the appellate court hears the company's legal challenge.
"Appellants' emergency motion for an injunction pending appeal is granted, because there are serious legal questions and the balance of hardships tips sharply in appellants' favor," the Ninth Circuit's motions panel stated in a brief order in Drakes Bay Oyster v. Salazar, 13-15227. The court set a hearing on the merits for the week of May 13 in San Francisco.
The ruling revives a hard-fought battle that has divided West Marin County, sown dissension between eco-conscious foodies and environmentalists, and galvanized conservative media outlets because it pits a small business against the federal government.
"We are grateful that the Ninth Circuit has chosen to allow Drakes Bay Oyster Co. to continue operating and recognized the hardships that would have resulted from shutting down the farm before its case could be heard," Amber Abbasi, chief counsel for regulatory affairs at Cause of Action, a Washington, D.C., public interest firm that represents the company, said in a written statement. "We will continue to move forward with the lawsuit and fight the blatant overreach and abuse of power inflicted upon the [owners] and taxpayers by Secretary Salazar's decision."
Neal Desai, associate director of the National Parks Conservation Association for the Pacific region, said he believes environmentalists will be vindicated when the Ninth Circuit reaches the merits. Monday's decision, he said in a written statement, "unfortunately delays by two months the ability for Americans to enjoy their national park wilderness." Congress designated the Point Reyes National Seashore a wilderness area in 1972, but carved an exception for Drakes Estero as "potential wilderness." Potential wilderness was to be managed "as wilderness, to the extent possible, with efforts to steadily continue to remove all obstacles to the eventual conversion ... to wilderness."
With its 40-year lease set to expire in 2012, Congress made another exception for the oyster farming operation in 2009. A House bill proposed to direct the secretary of the Interior to issue a permit for continued operations, but the final legislation said only the secretary was "authorized to issue" a new 10-year permit "notwithstanding any other provision of law" and after considering a National Academy of Sciences report on shellfish farming in the area.
After visiting the area personally, Salazar, who is set to leave office in March, allowed the permit to expire in November, with a 90-day extension to the end of this month.
U.S. District Judge Yvonne Gonzalez Rogers ruled earlier this month that she had no jurisdiction to review Salazar's decision, because the secretary had taken no action, and because Congress had granted him absolute discretion in his decision. Even if she'd had jurisdiction, Gonzalez-Rogers ruled, Salazar's decision was "rationally connected" to Congress' original command to "steadily remove all obstacles" to permanent wilderness status, and that the harm of destruction of the company's oyster crop would not be irreparable because it could be compensated by money damages. She denied a motion for injunction pending appeal for the same reasons.
The oyster company argued to the Ninth Circuit that judicial review is appropriate because the legislation provided only for the issuance of a permit, not a denial.
Without an injunction the "oyster farm will be permanently destroyed," states the motion, signed by Abbasi, Peter Prows of Briscoe Ivester & Bazel and Ryan Waterman of Stoel Rives. "This means the loss of a family-owned, environmentally sustainable small business; 31 full-time jobs; and irreparable environmental harm."
The Ninth Circuit's order was signed by all three members of the February motions panel: Judges Alfred Goodwin, Kim McLane Wardlaw and Mary Murguia.
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