06-10-2014 DBOC Files Reply Brief in US Supreme Court – shows Govt Arguments are wrong

June 10, 2014
Contacts: Tina Walker
Office: 415.227.9700
Cell: 650.248.1037
Email: tina@singersf.com

Peter Prows
Counsel for Drakes Bay Oyster Company
Email: pprows@briscoelaw.net
Drakes Bay Oyster Files Reply Brief in U.S. Supreme Court
Brief shows that the government’s arguments are wrong and that the Supreme Court should take the case
INVERNESS, CALIF. — Drakes Bay Oyster Company today filed its reply to the government’s brief opposing the oyster farm’s petition to have the U.S. Supreme Court hear the case.

Drakes Bay petitioned the high court on April 14, 2014 for a writ of certiorari to review the judgment of the United States Court of Appeals for the Ninth Circuit in its case against the government.

At stake is whether the government, in making countless everyday decisions, can be taken to court when it abuses its power. The Ninth Circuit held last fall that a federal court does not have jurisdiction to review a discretionary agency decision for abuse of discretion.

The government filed a brief on May 27, 2014 opposing the oyster farm’s petition.

The brief filed today points out the weaknesses of the government’s opposition brief. Drakes Bay has argued that the high court should take the case to resolve “the mother of all circuit splits.” A circuit split is an issue on which two or more circuits in the U.S. court of appeals system have given different interpretations of federal law.

The splits in this case are on three critical issues: jurisdiction to review agency actions for abuse of discretion, applicability of the National Environmental Policy Act (NEPA), and prejudicial error under the Administrative Procedure Act (APA).

The government’s brief does not dispute the existence of these splits, that these splits affect a fundamental issue of administrative law, or that the issue is of national importance.

The small, family-owned farm has been in a years-long heated legal battle with federal regulators for its survival. At issue is former Secretary of Interior Ken Salazar’s denial in November 2012 of Drakes Bay’s permit to continue operating the 80-year-old oyster farm, even though the original deal for the creation of Point Reyes National Seashore—supported by the Park Service, the Sierra Club, the Environmental Action Committee of West Marin, and every other interested environmental and civic group—was that the oyster farm was always supposed to stay as an important part of the agricultural and cultural history of Point Reyes.

Because Drakes Bay showed that there is a “reasonable probability” that the Supreme Court will take this case and a “significant possibility” that the oyster farm will win, the Ninth Circuit has allowed Drakes Bay to remain open while it takes its case to the Supreme Court.

The Supreme Court could decide whether to take this case as early as the end of this month.

About Drakes Bay Oyster Company
The historic oyster farm in Drakes Estero, located in Point Reyes, Marin County, has been part of the community for nearly 100 years. The Lunnys, a fourth-generation Point Reyes ranching family, purchased the oyster farm in 2004. Modern environmentalists and proponents of sustainable agriculture praise Drakes Bay Oyster as a superb example of how people can produce high-quality food in harmony with the environment. The farm produces approximately one third of all oysters grown in California, and employs 30 members of the community. The Lunnys also contribute the oyster shells that make possible the restoration of native oysters in San Francisco Bay and the oyster shells used to create habitat for the endangered Snowy Plover and Least Tern. As the last oyster cannery in California, Drakes Bay is the only local (and thus the only safe and affordable) source of these shells. The Lunny family is proud of its contributions to a sustainable food model that conserves and maintains the productivity of the local landscapes and the health of its inhabitants. For more information, please visit http://www.drakesbayoyster.com and http://www.savedrakesbay.com


For the full brief, click the link below:

DBOC Reply Brief in Supreme Court

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