05-01-2014 Point Reyes Light: Circuit Court Denies EAC, NPCA, NRDC & SOS Appeal as Intervenors

Circuit court denies EAC appeal

05/01/2014

The Ninth Circuit Court of Appeals this week affirmed a lower court ruling denying a request by the Environmental Action Committee, the National Parks Conservation Association, the Natural Resources Defense Council and Save our Seashore to be named intervenors in federal litigation between Drakes Bay Oyster Company and the federal government. Outside parties can be designated as intervenors in a case if they can prove that their particular interests are not being properly represented; intervenors can file briefs as official parties and participate in hearings. The organizations argued that their interests were specifically focused on wilderness protection, whereas the federal government’s position was based on broader issues of the management of national parks. District court judges previously ruled that the groups’ arguments would be too similar to the federal government’s and would result in unnecessary paperwork, but said they could still participate as amici curaie. Although the Ninth Circuit affirmed that ruling, the circuit also ruled in September against Drakes Bay’s request for an emergency injunction to continue operations as it fights the park’s decision to remove the oyster farm, which is now appealing that decision to the Supreme Court.

01-04-2014 Marin Voice: Court can ‘clear the air’

POINT REYES

Court can ‘clear the air’

Richard Kohn’s Dec. 20 letter about the oyster farm case seems to imply that, given the evolution in its legal approach, the 9th Circuit shouldn’t grant rehearing.

But, at heart, that evolution can be seen as normal: The case came up to the 9th Circuit with incomplete development of the legal issues because, for procedural reasons, it came up very quickly.

Yet, even then, why should the oyster farm get a rehearing when it has already had a day in court, however truncated?

The over-arching reason is one that the court itself has acknowledged: The original legislative intent was that the oyster beds belonged in the wilderness.

(The majority held original intent was tacitly overridden by special legislation.)

And that original legislative intent has long been misunderstood by Interior Department counsel, whose opinion drove the erroneous decision to close the oyster farm. Staff counsel misunderstood legislative intent because it had an all-too-common misunderstanding of the Wilderness Act itself.

The court could and should set that right upon rehearing. There are at least two other urgent issues:

Many wonder whether any of the agriculturalists, not just the oyster farmer, will be allowed to remain in the seashore. A decision by the 9th Circuit could put to rest persistent rumors that the park service intends to strip it of all its farms.

Many also feel that some park service people have abused scientific evidence. By clearing the air, the court could restore public confidence in the park service.

Jim Linford, Marinwood

12-30-13 DBOF Filing Argues Courts Must Have Jurisdiction to Ensure Integrity of Agency Decisions

In New Court Filing, Drakes Bay Oyster Company Argues Courts Must Have Jurisdiction to Ensure Integrity of Federal Agency Decisions
“Representatives of the United States of America Should Tell the Truth”
 
INVERNESS, CALIF. — Drakes Bay Oyster Farm filed a brief this week in the Ninth Circuit arguing that en banc rehearing should be granted to correct the majority’s conclusion that courts “lack jurisdiction” to review whether agencies are telling the truth.
“Representatives of the United States of America should tell the truth, whether they are making permit decisions or representations to this Court,” the brief argues.
In this case, the Department of Interior (through the Park Service) asserted that the farm causes serious adverse impacts to seals—even though the Government’s own expert had concluded that there is “no evidence” the farm disturbs the seals. (In fact, it was a great year for the seals in Drakes Estero, with one of the highest pupping counts ever, according to the Park Service, as reported here: http://www.sfnps.org/download_product/4301/0.) 
Furthermore, the Department of Justice argued, both at oral argument and in its brief opposing en banc rehearing in the Ninth Circuit, that Secretary Salazar was “fully aware” of the fact that Interior had misrepresented the findings of its own expert—findings that did not come to light until after Secretary Salazar made his decision to deny the farm its permit.
The Department of Justice is arguing that the court can disregard these false statements, claiming the court does not have jurisdiction to review whether agencies are telling the truth. The majority opinion issued in September agreed with this view. The oyster farm, and the dissenting judge, disagree. The brief filed today argues that en banc rehearing should be granted to correct the majority’s conclusion that courts “lack jurisdiction” to review whether the decisions of federal agencies are based on facts or on falsehoods.
The brief and accompanying papers can be found on the Ninth Circuit website here: http://cdn.ca9.uscourts.gov/datastore/general/2013/12/31/13-15227_motion.pdf.
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 www.drakesbayoyster.com.

01-04-2014 Marin Voice Critics Ignore Environmental Facts

“…they should explain why they want to gut the nation’s most important environmental law — the National Environmental Policy Act — to boot out the oyster farm. NPCA and its allies argue that NEPA shouldn’t apply to projects that an agency says will be a net benefit for the environment.

Agencies are ready to make decisions on major projects with controversial environmental impacts, like California’s twin peripheral tunnels, Keystone XL, and offshore fracking.

Proponents of those projects always argue that they will be a net benefit for the environment.

NPCA and its allies may rue the day they helped smooth the way for these projects by exempting them from NEPA.”

Marin Voice: Pt. Reyes oyster farm critics ignore environmental facts

By Peter Prows
Guest op-ed column

Posted:   01/04/2014 06:44:00 PM PST

 

Click photo to enlarge

Peter Prows (Photo by John Swanda)

THE National Parks Conservation Association’s spokesman Neal Desai and his allies like the Environmental Action Committee of West Marin (EAC) and the Natural Resources Defense Council (NRDC), have some serious explaining to do.

First, they should explain why they have flip-flopped on the oyster farm.

When Congress was debating wilderness legislation for Point Reyes in 1976, every interested environmental and civic organization told Congress that the oyster farm should be allowed to “continue unrestrained by wilderness designation” because it is “considered desirable by both the public and park managers.”  (emphasis added)

What changed?

Second, they should explain why they have such trouble with the truth. Mr. Desai claims that Drakes Estero would be the “first marine wilderness area on the west coast.” But Drakes Estero won’t even be the first marine wilderness in Point Reyes; it’ll be the fourth.

Mr. Desai seems not to have noticed that Estero de Limantour, Abbott’s Lagoon, and the southern end of Drakes Estero were designated as wilderness in 1999.

Mr. Desai and his allies have also made claim after false claim of various “egregious” environmental harms allegedly caused by the oyster farm. In fact, Drakes Estero is thriving: the water quality is excellent, eelgrass has doubled, and the harbor seals just had their best pupping season on record.

Third, Mr. Desai and his allies should explain why they goaded state Coastal Commission staff into breaking their agreement with the oyster farm. Commission staff and the oyster farm had agreed that the farm’s permit application would be processed when the federal environmental review was complete.

When that review came to an end last November, however, NPCA and EAC successfully urged commission staff to bring enforcement actions against the oyster farm for not having a permit, instead of processing the farm’s permit application. That breach violates the aquaculture-friendly policies of the Coastal Act, which require that aquaculture projects be given permitting priority.

Fourth, they should explain why they want to gut the nation’s most important environmental law — the National Environmental Policy Act — to boot out the oyster farm. NPCA and its allies argue that NEPA shouldn’t apply to projects that an agency says will be a net benefit for the environment.

Agencies are ready to make decisions on major projects with controversial environmental impacts, like California’s twin peripheral tunnels, Keystone XL, and offshore fracking.

Proponents of those projects always argue that they will be a net benefit for the environment.

NPCA and its allies may rue the day they helped smooth the way for these projects by exempting them from NEPA.

Peter Prows is a partner with Briscoe Ivester & Bazel LLP of San Francisco, which represents the Drakes Bay Oyster Co.

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