09-13-13 Marin Voice: Why DBOC Continues to Fight

As Judge Paul Watford (an Obama appointee) noted in his powerful dissent, nothing “in the text” of the wilderness laws, or in the contemporaneous debate over those laws, supports the government’s current interpretation.“All indications are,” Judge Paul Watford wrote, “that Congress viewed the oyster farm as a beneficial, pre-existing use whose continuation was fully compatible with wilderness status.” In his view, the government has been “bizarrely” misinterpreting the wilderness laws since 2004. All three legislators actively involved when the wilderness laws were enacted — former Rep. Pete McCloskey, former Assemblyman Bill Bagley and former Rep. John Burton — have been saying this all along. Tellingly, the majority opinion never argues that the government’s current interpretation of the wilderness laws is correct. “Nor could it make that argument with a straight face,” wrote Judge Watford, given the “clear legislative history” supporting the oyster farm. Weather: SAN RAFAEL, CA | Now: 68ºF | High: 76ºF | Low: 57ºF | 5-Day Forecast Marin News

Marin Voice: Why Drakes Bay Oyster Co. continues to fight By Peter Prows, Zachary Walton, and Ryan Waterman Guest op-ed column Posted:   09/13/2013 06:38:00 PM PDT Drakes Bay Oyster Company on Drakes Estero in the Point Reyes National Seashore, Calif. on Nov. 21, 2012.(IJ archive/Jocelyn Knight) Jocelyn Knight IMAGINE applying to renew a business permit for your family’s 80-year-old grocery store. Imagine also that the government denies your permit, giving a reason that is outrageous (“our policy prohibits issuing permits to people of your skin color”), bizarre (“we can’t give you a permit because the moon is made of green cheese”), or just plain wrong (“all grocery stores are now illegal”). Shouldn’t you be able to challenge that decision in court? According to last week’s majority opinion by the Ninth Circuit Court of Appeals in the Drakes Bay Oyster Co. case, the answer is “no.” So long as an agency does “not violate any statutory mandate,” the majority wrote, “it is not our province to intercede” in a government agency’s “discretionary decision.” Put more bluntly, the majority is saying that agencies can make any decision they want, no matter how outrageous, bizarre or wrong, so long as they fill out the right forms in doing so. We believe the majority’s opinion is wrong and dangerous to our system of judicial review. That is why Drakes Bay will request a review of the opinion from the full Ninth Circuit Court of Appeals. The oyster farm will remain open while that challenge is decided. After the Lunny family invested hundreds of thousands of dollars in the oyster farm in 2004, the National Park Service told them that wilderness laws “mandated” that the farm be closed when its lease expired in 2012. Former Secretary of the Interior Kenneth Salazar said much the same thing last November when he denied the farm a new permit: He thought issuing the permit would “violate” the wilderness laws, and that denying the permit would “effectuate” the congressional policy behind those laws. The Lunnys concluded that this interpretation of those laws was wrong. For one thing, the oyster farm’s lease from the government has a renewal clause. For another, the Lunnys knew the law supported continued oyster farming. After all, the Point Reyes National Seashore was created to preserve agriculture in West Marin, not destroy it. There is no longer any doubt that the Lunnys were right. As Judge Paul Watford (an Obama appointee) noted in his powerful dissent, nothing “in the text” of the wilderness laws, or in the contemporaneous debate over those laws, supports the government’s current interpretation. “All indications are,” Judge Paul Watford wrote, “that Congress viewed the oyster farm as a beneficial, pre-existing use whose continuation was fully compatible with wilderness status.” In his view, the government has been “bizarrely” misinterpreting the wilderness laws since 2004. All three legislators actively involved when the wilderness laws were enacted — former Rep. Pete McCloskey, former Assemblyman Bill Bagley and former Rep. John Burton — have been saying this all along. Tellingly, the majority opinion never argues that the government’s current interpretation of the wilderness laws is correct. “Nor could it make that argument with a straight face,” wrote Judge Watford, given the “clear legislative history” supporting the oyster farm. The majority’s main disagreement with the dissent is whether courts have the power to second-guess Secretary Salazar’s decision based on his misinterpretation of law. The majority asserted that the courts “lack jurisdiction” to correct an agency’s misinterpretation of law. The dissent reasoned that agency decisions driven by a misinterpretation of law must be overturned as “arbitrary and capricious”. The full Ninth Circuit will soon have the chance to reconsider the issue. At stake is whether courts can hold agencies accountable for their misguided decisions, or whether agencies can abuse their power with impunity. Peter Prows is an attorney with Briscoe, Ivester and Bazel LLP in San Francisco. Zachary Walton is an attorney with SSL Law in San Francisco. Ryan Waterman is an attorney with Stoel Rives LLP in San Diego. They are members of the legal team representing the Drakes Bay Oyster Co.

Posted by Jane Gyorgy on September 14, 2013

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