09-03-2013 US 9th Circuit Ruling, DBOC asks for “en banc” legal review

From Judge Watford’s Opinion:


*          “…Drakes Bay is like to prevail on its claim that the Secretary’s decision is arbitrary, capricious or otherwise not in accordance with law.”


*          “The sponsors of H.R. 8002 and S. 2472 were well aware of the oyster farm in Drakes Estero.  They nonetheless includes Drakes Estero within the wilderness designation because they did not view the farm’s operations as incompatible with the area’s wilderness status.  Commenting on the Senate bill, Senator Tunney left no doubt on that score, declaring, “Established private rights of landowners and leaseholders will continue to be respected and protected.  The existing agricultural and aquaculture uses can continue.””


*          “The Chair of the Golden Gate National Recreation Area Citizen’s Advisory Committee note that the oyster-farming operations ‘presently carried on within the seashore existed prior to its establishment as a park and have been considered desirable by both the public and park managers.”  He therefore recommended that specific provision be made to allow such operations ‘to continue unrestrained by wilderness designation.’”


*          “The view expressed by these speakers – that continued operation of the oyster farm was fully compatible with Drakes Estero’s designation as wilderness – was not some wild-eyed notion.  It was firmly grounded in the text of the Wilderness Act itself.”


*          “…all indications are that Congress viewed the oyster farm as beneficial, pre-existing use whose continuation was fully compatible with wilderness status.”


*          “In this case, no conflicting laws actually prevented the Secretary from issuing a permit to Drakes Bay.”


*          “It is the equities that carry the day in this case…and the equities strongly favor Drakes Bay.”


The Ninth Circuit Ruled, 2-1 against DBOC.  Kevin and Nancy Lunny have instructed the attorneys to prepare an appeal to the entire Ninth Circuit Court of Appeals.  Judge Watford’s Dissenting Opinion is powerful, clear and compelling.  His Opinion is the reason DBOC is asking for an “en banc” legal review. 


For the full document, click on the link below:


09-03-2013 USCA 9th Circuit 13-15227


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1 Comment

  1. There was a large celebratory party at Amy Trainer’s house the night that the 9th circuit court decision was handed down. I find it difficult to imagine a group like the EAC would find it within themselves in all moral conciousness to celebrate the possible demise of a time honored family farm, the loss of jobs for 30 families, and the possible end to a way of life. It just shows to me their callous disregard towards the community, and their willingness to dismember local, sustainable, ranching and food production in West Marin.


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