10-21-13 Law360, Effect of Maj. decision: Agencies can thumb nose at Congress”

“The effect of [the majority decision] is to allow an agency to thumb its nose at Congress, when Congress trumps a statute, by asserting that the agency is merely implementing the policies underlying the trumped statute,” the appeal said.

Biscoe Ivesters & Bazel LLP attorney Peter S. Prows, who is part of the team representing Drakes Bay, told Law360 on Monday that the “serious issues” raised in the appeal give Drakes Bay a good chance of being heard en banc.

“The majority opinion created a new rule for courts to review agency action,” Prows said. “The idea that a discretionary decision can’t be reviewed by courts is a new and very troubling precedent here.”

 

http://www.law360.com/articles/481849/oyster-farm-presses-for-9th-circ-en-banc-review-in-doi-fight

 

 

Oyster Farm Presses For 9th Circ. En Banc Review In DOI Fight

Law360, Los Angeles (October 21, 2013, 9:20 PM ET) — A major California oyster farm fighting to stay open after the Department of the Interior did not renew its lease asked Friday for an en banc hearing before the Ninth Circuit, saying a September panel decision shielded the agency’s abuse of discretion from judicial review.

Drakes Bay Oyster Co. appealed for an en banc rehearing after a divided three-judge panel ruled it lacked the authority to review an “informed judgment” by DOI about the farm’s environmental impact. Drakes Bay claims that the divided panel wrongly held that courts lack jurisdiction to determine whether administrative actions are arbitrary, capricious or an abuse of discretion.

“Congress could not have intended to allow an agency to disobey a statute, or to base permit decisions on false statements, and yet be immune from judicial review,” the appeal said. “Nor could Congress have intended that a court would have jurisdiction to review an agency’s discretionary decision for everything except abuse of discretion.”

Drakes Bay — which produces about a third of the oysters cultivated in California — sued the DOI in California federal court in December 2012 after then-Interior Secretary Ken Salazar officially declined to renew the company’s lease in a bid to restore the area to a wild habitat. The farm claimed the DOI’s environmental impact statement misrepresented the farm’s noise pollution and harm to harbor seals.

In a 2-1 decision, the Ninth Circuit said Salazar had complete discretion not to renew the lease despite Drakes Bay’s assertion that he used the flawed environmental impact statement to make the decision. The appeals court ruled that a 2009 law passed by Congress specifically authorizing Salazar to grant the farm a special-use permit gave him total control over the situation — flawed impact statement or not.

Drakes Bay had argued that Salazar’s decision ran afoul of the 2009 law, known as Section 124, which gave the secretary of the interior authority to let the farm continue its lease. But the appeals court noted that Congress had rejected a proposed law automatically extending the lease, so the decision to give Salazar complete discretion was likely intended.

In its Friday petition for an en banc rehearing, Drakes Bay argued that the majority decision did not cite evidence of Congressional intent to preclude judicial review and could be used to broadly thwart abuse-of-discretion reviews.

Drakes Bay also appealed the panel’s finding that “a notwithstanding clause sweeps away only the statutes that conflict with the notwithstanding clause, not the policies underlying those statutes,” according to the petition.

Section 124 authorized the DOI to issue Drakes Bay a permit “notwithstanding any other provision of law,” and was intended to override Salazar’s misinterpretation of a 1976 law that he believed mandated the closure of the farm, according to the petition.

“The effect of [the majority decision] is to allow an agency to thumb its nose at Congress, when Congress trumps a statute, by asserting that the agency is merely implementing the policies underlying the trumped statute,” the appeal said.

Biscoe Ivesters & Bazel LLP attorney Peter S. Prows, who is part of the team representing Drakes Bay, told Law360 on Monday that the “serious issues” raised in the appeal give Drakes Bay a good chance of being heard en banc.

“The majority opinion created a new rule for courts to review agency action,” Prows said. “The idea that a discretionary decision can’t be reviewed by courts is a new and very troubling precedent here.”

Representatives for the DOI were not immediately available for comment Monday.

Drakes Bay Oyster Co. is represented by Peter S. Prows, John Briscoe and Lawrence S. Bazel of Briscoe Ivester & Bazel LLP; S. Wayne Rosenbaum and Ryan Waterman of Stoel Rives LLP; and Zachary Walton of SSL Law Firm LLP.

The case is Drakes Bay Oyster Co. et al. v. Jewell et al., case number 13-15227, in the U.S. Court of Appeals for the Ninth Circuit.

–Additional reporting by Emily Atkin. Editing by Melissa Tinklepaugh.

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