“Although nearly fifty years have passed since California conveyed Drakes Estero to Defendants (NPS), they only recently became obsessed with eliminating the oyster farm, which resulted in illegitimate science, misrepresentations of data, incorrect interpretations of law, and violations of NEPA and their own regulations. DBOC has shown that it is likely to prevail on its claims calling these errors to account.”
“In their obsession to eliminate the oyster farm, Defendants have abused the law, the facts, the science—and especially the oyster farm, its employees, and their families. This Court should reverse the district court’s order and maintain the injunction.”
(From DBOC Brief to Ninth Circuit – Filed on Earth Day 2013)
The following is the introduction to the Brief filed by DBOC to the Ninth Circuit Court of Appeals arguing that the injunction be maintained – and the Secretary’s actions be overturned):
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
DRAKES BAY OYSTER COMPANY and KEVIN LUNNY,
SALLY JEWELL, in her official capacity as Secretary,
U.S. Department of the Interior; U.S. DEPARTMENT OF THE INTERIOR;
U.S. NATIONAL PARK SERVICE; and JONATHAN JARVIS, in his official capacity as Director, U.S. National Park Service,
On Appeal from the United States District Court
for the Northern District of California
(Hon. Yvonne Gonzales Rogers, Presiding)
District Court Case No. 12-cv-06134-YGR
APPELLANTS’ REPLY BRIEF
ON PRELIMINARY INJUNCTION APPEAL
By its plain language, Section 124 authorized the Secretary to issue a special use permit (SUP) “notwithstanding” any laws that would bar Defendants from doing so. Defendants argue that Section 124 precluded judicial review of the Secretary’s decision to deny the SUP. But Defendants have provided no evidence, much less the required clear and convincing evidence, that Congress intended this result. Instead, Defendants advance a construction of Section 124’s notwithstanding clause that ignores both the text and the context of the law. Congress intended Section 124 to be an asymmetrical, limited-purpose statute that would benefit DBOC, override any legal impediment to continued oyster farming, and result in an extension of the SUP—the statute was not intended to harm DBOC or to insulate a permit denial from judicial review. The district court was wrong to conclude that it lacked jurisdiction.
The district court and Defendants are also wrong on the merits of this case. For example, the Secretary asserted that he could not issue the permit because doing so would “violate” the 1976 Acts, and that “[Section] 124 …in no way overrides the intent of Congress as expressed in the 1976 act” (original emphasis deleted). These statements confirm that Defendants got the law backwards: They thought that the 1976 Acts trumped Section 124, when in fact Section 124 was passed to override any restrictions to permit issuance that might have been imposed by the 1976 Acts.
When the Secretary asserted that the intent of Congress, as expressed in 1976, was “to establish wilderness at the estero,” that too was wrong. Congress designated Drakes Estero as potential wilderness (rather than actual wilderness) because Defendants told Congress that the State of California’s reserved rights were inconsistent with a wilderness designation. Following the 1976 Acts, Defendants maintained their position that the estero could not be designated as wilderness, and they endorsed oyster farming in the estero. Although nearly fifty years have passed since California conveyed Drakes Estero to Defendants, they only recently became obsessed with eliminating the oyster farm, which resulted in illegitimate science, misrepresentations of data, incorrect interpretations of law, and violations of NEPA and their own regulations. DBOC has shown that it is likely to prevail on its claims calling these errors to account.
Finally, Defendants are wrong when they argue that “the central equitable issue in this case” is a “bargain,” struck between the United States and the oyster farm in 1972, in which “[t]he shellfish business could remain in Drake’s Estero for forty years, and then the Estero would return to the American people.” Defendants’
Response Brief (RB) 17, 49. The 40-year “bargain” could apply only to the onshore area—not the estero—because only the onshore area was covered by the
40-year Reservation of Use and Occupancy (RUO). And the RUO specifically provided for a renewable lease that could be extended beyond 40 years by a SUP.
The real “bargain,” which was struck when California transferred the land to the United States in 1965, allowed the State to continue leasing the estero for oyster
farming in perpetuity. DBOC does not lease the estero itself from Defendants, but rather from California, whose most recent lease was issued in 2004 and runs until
In their obsession to eliminate the oyster farm, Defendants have abused the law, the facts, the science—and especially the oyster farm, its employees, and their
families. This Court should reverse the district court’s order and maintain the injunction.
For the full text of the filing, click on the documents below: