California Oyster Farm Loses Bid to Stay Open

     (CN) – In a win for environmentalists, the 9th Circuit on Tuesday refused to stop the government from shutting down a commercial oyster farm in Point Reyes National Seashore.
     A three-judge panel in San Francisco upheld the Secretary of the Interior’s decision not to extend Drakes Bay Oyster Co.’s farming permit, which expired in November 2012.
     “We have jurisdiction to consider whether the Secretary violated ‘constitutional, statutory, regulatory or other legal mandates or restrictions,’ and we agree with the district court that Drakes Bay is not likely to succeed in proving any such violations here,” Judge M. Margaret McKeown wrote for 2-1 majority.
     Farmers have been harvesting oyster along the shores of Drakes Estero, a series of estuarial bays in Marin County, Calif., for more than 80 years. A decade after Congress created the Point Reyes National Seashore in 1962, Drakes Bay’s predecessor, the Johnson Oyster Co., sold the five-acre farm to the United States.
     In doing so, Johnson Oyster had chosen to retain a 40-year reservation of use and occupancy, which stipulated that the National Park Service could extend the farm’s special use permit once the reservation expired.
     On the eve of the reservation’s expiration, then-Secretary of the Interior Ken Salazar refused to grant Drakes Bay owner Kevin Lunny a 10-year special use permit to continue cultivating approximately 1,060 acres of underwater oyster beds.
     Lunny and Drakes Bay sued, seeking a restraining order to keep them in business. They claimed Salazar’s decision relied on flawed science, and violated the National Environmental Policy Act and various regulations.
     They also argued that closing Drakes Bay would put 31 people out of work and jeopardize 40 percent of the California oyster supply.
     U.S. District Judge Yvonne Gonzalez Rogers refused to block the government’s decision, but the 9th Circuit quickly granted an injunction pending appeal. In a separate ruling, she denied intervention by the Environmental Action Committee of West Marin, the National Parks Conservation Association, the Natural Resources Defense Council and Save Our Seashore on behalf of Salazar and the Interior.
     After hearing arguments the 9th Circuit upheld Rogers’ ruling, saying the farm’s likelihood of success “is too remote to justify the extraordinary remedy of a preliminary injunction.”
     “Drakes Bay’s disagreement with the value judgments made by the Secretary is not a legitimate basis on which to set aside the decision,” McKeown explained. “Once we determine, as we have, that the Secretary did not violate any statutory mandate, it is not our province to intercede in his discretionary decision.”
     The panel added that the public’s interest in eating local oysters did not outweigh environmental factors.
     “The public benefits both from the enjoyment of protected wilderness and of local oysters, and the court found no basis upon which to weigh these respective values,” McKeown wrote. “This factor does not tip to Drakes Bay.
     Dissenting Judge Paul Watford said the Department of the Interior “misinterpreted” Congress’s intent when it designated Drakes Estero – the site of the oyster farm – as a “potential wilderness addition” in the Point Reyes Wilderness Act.
     Congress overrode this misinterpretation when it amended the law in 2009, Watford said.
     “In the 2012 decision challenged here, the Secretary nonetheless denied Drakes Bay’s permit request based primarily on the very same misinterpretation of the Point Reyes Wilderness Act that Congress thought it had overridden,” he wrote. “As a result, I think Drakes Bay is likely to
     prevail on its claim that the Secretary’s decision is arbitrary, capricious, or otherwise not in accordance with law.”
     The 2-1 decision allows the government to force Drakes Bay to shut down its commercial oyster farm.

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