9th Circuit Mulls Fate of California Oyster Farm

     (CN) – A busy California oyster farm tried to impress the 9th Circuit with claims that the U.S. government is trying to evict it with nothing more than “flawed” science.
     Oyster farming has been a tradition of Drakes Estero at Point Reyes National Seashore for at least 80 years. Drakes Bay Oyster Co., which leases 1,060 underwater acres of the estuary, purports to supply 40 percent of the California cultivated oyster industry and provide 31 jobs.
     As the 40-year reservation of use permit that kept Drakes Bay in business neared its 2012 expiration, Congress passed a law in 2009 known as Section 124, which authorized the secretary of Interior Department to grant the farm a special-use permit.
     Secretary Ken Salazar, who left office last month, nevertheless denied the permit on Nov. 29, 2012, giving the farm and its owner, Keven Lunny, until Feb. 28 to pack up and ship out.
     Lunny filed suit, claiming the decision relied on manipulated studies and an environmental impact statement that federal agencies intentionally skewed.
     U.S. District Judge Yvonne Gonzalez Rogers refused to enjoin this eviction after finding a lack of jurisdiction under the Administrative Procedures Act “to provide any meaningful review of Section 124, given its discretionary character.”
     A three-judge panel of the 9th Circuit quickly granted an injunction pending appeal, but they seemed inclined at a hearing Tuesday to give Salazar the benefit of the doubt.
     Judge Paul Watford questioned Amber Abbasi, the attorney for Drakes Bay, about what he called a “procedural paradox” in her argument regarding Section 124.
     He said that, under Abbasi’s reading of the law, “the secretary would need to know the final outcome of the decision he was going to make before he could know what procedures needed to be followed.”
     Abbasi replied: “There’s no paradox here. This statute was intended to remove legal obstacles to the issuance of a permit to the oyster farm.”
     Justice Department attorney J. David Gunter II said that Section 124 vests the secretary with jurisdiction over the decision to issue a new permit.
     That authority did not diminish with Salazar’s decision to do nothing, allowing the permit to expire without issuing a new one, Gunter added.
     Judge M. Margaret McKeown picked up on this point.
     “That is a great argument if the secretary had done nothing,” McKeown wrote. “But he didn’t do nothing. He actually undertook this huge project and then ultimately issued what I read as a denial of Drakes Bay’s request for a permit. I’m not sure how that fits in because, now, he’s kind of in the soup, so to speak.”
     Gunter said that Section 124 was Congress’ way of giving the Interior secretary the power to make a policy decision about Drakes Bay.
     “The secretary decided that the public is better served by wilderness in Drakes Estero than by oyster farming,” he said.
     Part of the Interior secretary’s mission is to give the 2 million people who visit the Point Reyes National Seashore each year the best experience possible, and wilderness is an important part of that, Gunter added.
     Abbasi, the Drakes Bay attorney, said Salazar’s decision had been “uninformed,” and that the secretary disregarded flaws in the data.
     “Defendants have thumbed their nose at Congress and the courts,” Abbasi said.

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