In draft ruling, state told to backtrack on oyster farm orders
But Mr. Chernus also ruled against Drakes Bay’s claims that the state Department of Fish and Wildlife’s jurisdiction in Drakes Estero meant the commission had no authority to issue the orders in the first place, and denied the oyster farm’s request to expand its due process allegations. He allowed some of the commission’s cease-and-desist orders to stand and be immediately enforced, although Drakes Bay says it is already complying with those orders.
Drakes Bay lawyer Peter Prows called it an overall win for the farm. “He found the commission broke the law and has to do an environmental review and that they abused their discretion by kicking out our evidence,” he said.
Mr. Chernus, a bespectacled man who exudes a cut-to-the-chase demeanor in the court room, heard oral arguments from both sides on Wednesday—the commission asking him to reinstate all the orders because no CEQA review was necessary and Drakes Bay claiming the abuse of discretion and exclusion of evidence should invalidate all the orders.
The judge has 90 days to issue a final ruling.
The C.C.C. issued cease-and-desist and restoration orders to Drakes Bay in February 2013, leading environmentalist and biologist Phyllis Faber, along with Drakes Bay itself, to file suits against the commission. (Those suits were subsequently combined.)
Both suits alleged that the commission violated CEQA because portions of the orders—including orders to remove clams and an invasive tunicate, and, if and when the farm shuts down, the oyster racks and oysters themselves—could have significant environmental consequences for plants, wildlife, water quality and more.
The commission believes that under state code, its orders typically qualify for a categorical exemption from CEQA. There are exceptions
to the exemptions, but the commission says none apply here.
The tentative ruling agreed with Drakes Bay that the removal of things like racks, clams, the tunicate and abandoned equipment and structures comprised an unusual circumstance that require an environmental review. Although the restoration orders were only to be implemented if the farm shuts down, the cease and desist orders—which included the mandates to remove the tunicate and clams—were to be undertaken immediately.
During oral arguments on Wednesday, Joel Jacobs, the state’s deputy attorney general, said that if any adverse environmental impact triggers CEQA, agencies—particularly the commission, which has jurisdiction over sensitive coastal habitat—might never be exempted. “The exception [would] swallow the entire rule,” he said.
But a lawyer for Ms. Faber, Zachary Walton, countered that requiring the removal of items such as oyster racks that have been in the estuary for close to a century and two million clams that filter the water is unusual enough to trigger CEQA.
Mr. Jacobs also refuted Drakes Bay’s rights to make such arguments about many of the items the judge said needed environmental review because the farm had not sufficiently brought them up at the administrative hearing last year. (He conceded that they might have sufficiently raised the issue of the racks.)
Drakes Bay also argued that the commission violated the company’s right to due process because the commission refused to include hundreds of pages of documents submitted before the administrative hearing last year, documents that countered allegations that the farm was causing environmental harm.
The judge tentatively ruled that the commission abused its discretion by excluding them, citing state code that stipulates that all “documents submitted by any person relevant to any findings” should be allowed. On Wednesday, Mr. Jacobs said the farm could have filed it much sooner and referred to the submission as “document dump,” though Mr. Prows said they only saw the staff report 10 days before the hearing.
Mr. Prows also asked the judge to throw out all the orders, not just some of them, because of that abuse. “There’s no room for the court to pick bits and pieces” to preserve, he said.
Drakes Bay recently filed a motion to expand their due process claim, arguing that the commission’s prohibition on cross-examination of its lawyers also violates due process. Mr. Chernus refused to accept the motion on the grounds that it was not submitted in a timely fashion; Drakes Bay asked him to reconsider on the grounds that motions to amend are usually granted liberally, which Mr. Chernus himself noted when he was hearing a previous case Wednesday morning. (“I knew that would come back to haunt me,” he said.)
Mr. Chernus sided with the commission on the issue of whether the Fish and Wildlife’s jurisdiction precluded the orders altogether. “Without a doubt, the Fish & Game Commission is tasked with authority to issue permits and to regulate certain aspects of the business of Aquaculture,” he wrote. But, he continued, the Coastal Act does give the commission jurisdiction over aquaculture in the coastal zone, and the farm’s offshore and onshore operations comprise the kind of development the Coastal Act regulates.