09-12-13 West Marin Citizen: DBOC case may rise to Supreme Court

As reprinted in today’s West Marin Citizen:

DBOC case may rise to Supreme Court
Transcribed and edited by Peggy Day

Last Monday afternoon the Farm and Foodshed Report, the KWMR radio program, provided some straight answers to very complicated questions about the Drakes Bay Oyster Company’s federal legal case. During the show, host Robin Carpenter interviewed DBOC attorney Peter S. Prows of Briscoe, Ivester and Bazel about the decision to request another hearing at the Ninth Circuit Court. Mr. Prows, who is experienced with the California Environmental Quality Act and Endangered Species Act, among other qualifications, explained why he believes that the oyster company may prevail in federal court.

Robin Carpenter:We invited representatives of the National Park Service and Department of the Interior to speak but unfortunately, the United States Government and Department of Justice do not speak about ongoing legal actions. Peter, can you give us an overview of the situation?

Peter Prows: By a two-to-one margin, the Ninth Circuit Court of Appeals issued a decision affirming the District Court’s denial of a preliminary injunction to the oyster company. Judge Margaret McKeown, in agreement with a visiting judge from Ohio, wrote the majority opinion that the court essentially lacked jurisdiction to review the reasons given in an agency’s decision on a permit like this.

Carpenter: This is just one piece of the legal puzzle. The oyster company has asked for an injunction to stay in operation until the complete legal proceedings play out, correct?

Prows: It’s an important piece because, if the farm is forced to shut down while the lawsuit proceeds, that’s going to cause some real damage to the business, even if we’re ultimately successful. Legally it’s also important because to get a preliminary injunction, one of the things you have to show is that you are likely to prevail on the merits of the case. The majority didn’t think we were able to show that but Judge Paul Watford wrote the dissent and he was very strong. He thought we were likely to prevail on the merits of the case and former Secretary Salazar’s decision was “arbitrary and capricious.”
Carpenter: It’s not often that you see a dissent that’s so extremely strong.

Prows: It’s one of the strongest dissenting opinions I’ve ever read. What’s really remarkable is, going back to 2004, after the Lunnys spent a couple hundred thousand dollars to invest and fix up the oyster farm, they got a letter and a memo from the Park Service saying that the wilderness laws, in particular the 1976 Point Reyes Wilderness Act, mandated that the Park Service not issue a new permit to the oyster farm when the existing permit expired in November of 2012. This is a legal position that the Park Service has now taken over the last 8 to 10 years. It always struck the Lunnys as strange. They thought the Point Reyes National Seashore was set up to promote and preserve agriculture and aquaculture in West Marin, not to destroy it.

What’s remarkable about the dissent is that Judge Watford actually agrees with the Oyster company about the interpretation of the wilderness legislation for Point Reyes. He wrote: “All indications are that Congress viewed the oyster farm as a beneficial preexisting use whose continuation was fully compatible with wilderness status.” And, the most remarkable thing about this whole opinion is that the majority, the two judges who voted against the oyster farm, never actually disagreed with the dissent on the interpretation of the wilderness legislation. So, there’s really no question anymore that the Park Service has had the law wrong all along.

Carpenter: I was surprised that the majority was very vague. Watford’s interpretation agreed with what Bill Bagley and others who were there said.

Prows: That’s exactly right. Quite frankly, for 30 years before the Park Service’s memo to the Lunnys, that’s what everybody thought that legislation meant. The Department of Interior told Congress in the 1970’s that the oyster farm was a beneficial use there and should continue notwithstanding whatever wilderness legislation was passed. The Environmental Action Committee of West Marin told Congress essentially the same thing. The Wilderness Society and the Sierra Club had the same view. Everybody had the same view of what the law should accomplish and what the law meant. It wasn’t until 30 years later that the Park Service and some of these groups changed positions. Judge Watford called that a “bizarre” change of position.

We are planning to file for a rehearing. So, this case is not over.

Carpenter: What is happening, is that you guys are going a step above to the Ninth Circuit to say, we think the District Court wasn’t correct.

Prows: That’s right. There’s no longer any dispute that the Park Service has been misinterpreting the law for the last 10 years. As Watford says, “you can’t really argue otherwise with a straight face when you actually look at legislative history.” What the Park Service has put the Lunnys through for the last ten years is really a struggle against the Park Service’s misinterpretation of the law. So the question we are going to be presenting to the full en banc court is whether courts should stand aside even when they know agencies have the law wrong, even when an agency makes a decision based upon a fundamental misinterpretation of the law. Whether the courts have jurisdiction to step in or not. I think that’s a pretty important question.

Carpenter: People say, it’s very difficult to appeal with a governmental or administrative decision and Salazar’s decision is an administrative decision.

Prows: There’s what’s called the Administrative Procedures Act which requires agencies to make decisions in generally a rational way and prohibits agencies from making decisions that are quote “arbitrary, capricious, and an abuse of discretion or are otherwise not in accordance with the law.” That usually should, at least in my view, prohibit an agency from denying you a permit for a reason that’s kind of absurd or just plain wrong in the law. When an agency tells you that it can’t give you a permit because the law and congress’s intent behind that law was that you shouldn’t get your permit, there’s a fundamental misunderstanding of the law and of your decision-making authority. If you read what Secretary Salazar wrote, he makes it very clear that he was trying to effectuate what he thought congressional intent was, what he thought the law meant. He thought the oyster farm had to go and that was wrong.

Carpenter: Is there another step beyond the en banc review?

Prows: If we don’t get the injunction from the en banc panel, we could petition for a Writ of Certiorari from the U.S. Supreme Court asking it to decide to take the case for review. We have issues that could very well interest the Supreme Court.

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