08-14-14 DBOC’s Opposition to Ca Coastal Commission Motion for New Trial

Please find attached the following documents filed in Marin Superior Court today:
 
–          Drakes Bay Oyster Company’s Opposition to Motion for New Trial; 8.14.14+Final+Opposition+to+Motion+for+New+Trial+120pm
 
–          Declaration of Phyllis Faber ISO Drakes Bay Opposition to Motion for A New Trial; 8.14.14+Faber+decl+ISO+opp+to+new+trial+motion
 
–          Declaration of Larry Giambastiani ISO Drakes Bay; 8.14.14+Decl+of+Larry+Giambastiani
 
–          Declaration of Peter Prows ISO Drakes Bay’s Opposition to Commission’s Motion for New Trial; 8.14.14+Prows+decl+ISO+opp+to+new+trial+motion

06-27-14 Marin Co Sup Court DBOC WINS OVER CCC, CCC ABUSED DISCRETION & VIOLATED the LAW

“DRAKES BAY OYSTER WAS VINDICATED TODAY

in its fight against unjust enforcement orders imposed last year

BY THE CALIFORNIA COASTAL COMMISSION.

The Marin County Superior Court 

OVERTURNED THOSE ORDERS IN EVERY SIGNIFICANT EFFECT,

finding that the

COMMISSION’S

UNFAIR PROCESS

WAS AN

ABUSE OF DISCRETION

AND A

VIOLATION OF ENVIRONMENTAL LAW.”

 

June 27, 2014  Media Contact: Tina Walker Office: 415.227.9700 Cell: 650.248.1037 Email: tina@singersf.com    

 

Drakes Bay Wins: Court Overturns California Coastal Commission Orders Against Oyster Farm Commission abused its discretion and violated environmental law

INVERNESS, CALIF. — Drakes Bay Oyster was vindicated today in its fight against unjust enforcement orders imposed last year by the California Coastal Commission. The Marin County Superior Court overturned those orders in every significant respect, finding that the Commission’s unfair process was an abuse of discretion and a violation of environmental law.

 

The enforcement orders were based on false allegations for which there was no evidence. Before a hearing last February, expert evidence disproving the allegations was provided by the Lunnys, but the Commission voted to exclude all the evidence the Lunnys presented in their own defense.

 

“This is a good day for California,” said Phyllis Faber, a Marin County environmental activist and biologist who was a founding member of the Commission. “The Coastal Commission had seriously abused its power. It was necessary to hold them accountable.”

 

Now that the Commission’s unfair enforcement orders have been overturned, the oyster farm and the Commission can get back to working on a permit for the farm.

 

Drakes Bay’s lawsuit against the Coastal Commission is separate from its suit against the National Park Service, which is currently pending at the U.S. Supreme Court.  The Supreme Court could decide as soon as Monday whether to take Drakes Bay’s case.

 

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.comand www.savedrakesbay.com

09-03-2013 Judge Watford’s Dissenting Opinion on the Appeal to the 9th Circuit

“The government will suffer only modest harm if oyster
farming’s eighty-year history in the Estero continues a bit
longer.

But if a preliminary injunction is erroneously denied,
Drakes Bay’s business will be destroyed.

That is all Drakes Bay must show to demonstrate that the balance of equities
tips in its favor here.”

 

Appeal from the United States District Court
for the Northern District of California
Yvonne Gonzalez Rogers, District Judge, Presiding
Argued and Submitted
May 14, 2013—San Francisco, California
Filed September 3, 2013
Amended January 14, 2014

 

page 38 CO. V. JEWELL
WATFORD, Circuit Judge, dissenting:
The majority states that, by enacting § 124, “Congress did
nothing more than let the Secretary know his hands were not
tied.” Maj. op. at 24. I think Congress, by including the
“notwithstanding” clause in § 124, intended to do more than
that. In particular, it sought to override the Department of the
Interior’s misinterpretation of the Point Reyes Wilderness
Act, Pub. L. No. 94-544, 90 Stat. 2515 (1976).
The Department had concluded, in 2005, that the Act
barred issuance of a special use permit authorizing continued
operation of Drakes Bay Oyster Company’s oyster farm. The
Department thought Congress had “mandated” that result by
designating Drakes Estero, where the oyster farm is located,
as a “potential wilderness addition” in the Point Reyes
Wilderness Act. The Act’s legislative history makes clear,
however, that by divining such a mandate, the Department
simply misinterpreted the Act’s provisions and misconstrued
Congress’s intent. The Department’s misinterpretation of the
Point Reyes Wilderness Act prompted Congress to enact
§ 124 in 2009. In my view, by including a notwithstanding
clause in § 124, Congress attempted to supersede the
Department’s erroneous interpretation of the Act.
In the 2012 decision challenged here, the Secretary
nonetheless denied Drakes Bay’s permit request based
primarily on the very same misinterpretation of the Point
Reyes Wilderness Act that Congress thought it had
overridden. As a result, I think Drakes Bay is likely to
prevail on its claim that the Secretary’s decision is arbitrary,
capricious, or otherwise not in accordance with law. See
5 U.S.C. § 706(2)(A). Because the other preliminary
injunction factors also weigh in Drakes Bay’s favor,
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DRAKES BAY OYSTER CO. V. JEWELL 39
injunctive relief preserving the status quo should have been
granted here.
I
To explain why I think the Interior Department (and later
the Secretary) misinterpreted the Point Reyes Wilderness Act,
a fairly detailed discussion of the Act’s legislative history is
necessary.
The events leading up to passage of the Point Reyes
Wilderness Act begin in 1962, when Congress authorized
creation of the Point Reyes National Seashore and
appropriated funds for land acquisition within the Seashore’s
designated boundaries. Act of Sept. 13, 1962, Pub. L. No.
87-657, 76 Stat. 538 (1962). As part of that process, in 1965,
the State of California conveyed ownership of the submerged
lands and coastal tidelands within the Seashore’s boundaries
to the federal government. See Act of July 9, 1965, ch. 983,
§ 1, 1965 Cal. Stat. 2604, 2604. Those lands included Drakes
Estero. The conveyance reserved certain mineral and fishing
rights, which allowed the State to “prospect for, mine, and
remove [mineral] deposits from the lands,” and “reserved to
the people of the state the right to fish in the waters
underlying the lands.” Id. §§ 2–3, 1965 Cal. Stat. at 2605. At
the time of the State’s conveyance, oyster farming was
already a well-established fixture in Drakes Estero, with roots
dating back to the 1930s.
In 1973, the President recommended that Congress
preserve 10,600 acres within the Point Reyes National
Seashore as “wilderness,” under the terms of the Wilderness
Act of 1964, Pub. L. No. 88-577, § 3(c), 78 Stat. 890, 892
(1964). Members of California’s congressional delegation
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DRAKES BAY OYSTER 40 CO. V. JEWELL
found that recommendation woefully inadequate, and soon
thereafter introduced identical bills in the House and Senate
designating far larger areas of the Seashore as wilderness. In
the House, Congressman John Burton introduced H.R. 8002,
94th Cong. (1975); in the Senate, Senator John Tunney
introduced S. 2472, 94th Cong. (1975). H.R. 8002 is the bill
that eventually became the Point Reyes Wilderness Act.
As originally proposed, H.R. 8002 and S. 2472 would
have designated more than thirty-eight thousand acres as
wilderness. Included within that designation was Drakes
Estero, as well as most of the other submerged lands and
coastal tidelands conveyed by California in 1965. The
sponsors of H.R. 8002 and S. 2472 were well aware of the
oyster farm in Drakes Estero. They nonetheless included
Drakes Estero within the wilderness designation because they
did not view the farm’s operations as incompatible with the
area’s wilderness status. Commenting on the Senate bill,
Senator Tunney left no doubt on that score, declaring,
“Established private rights of landowners and leaseholders
will continue to be respected and protected. The existing
agricultural and aquacultural uses can continue.” Wilderness
Additions—National Park System: Hearings Before the
Subcomm. on Parks and Recreation of the S. Comm. on
Interior and Insular Affairs, 94th Cong. 271 (1976)
[hereinafter Senate Hearing].
During hearings on H.R. 8002 and S. 2472, various civic,
environmental, and conservation groups supported Drakes
Estero’s designation as wilderness. They explained in detail
why neither the State’s reserved mineral and fishing rights
nor the oyster farm precluded such a designation. No one
advocating Drakes Estero’s designation as wilderness
suggested that the oyster farm needed to be removed before
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DRAKES BAY OYSTER CO. V. JEWELL 41
the area could become wilderness. See id. at 324–33,
344–61; H.R. 7198, H.R. 8002, et al., To Designate Certain
Lands in the Point Reyes National Seashore, California as
Wilderness: Hearing Before Subcomm. on Nat’l Parks and
Recreation of the H. Comm. on Interior and Insular Affairs,
94th Cong. (1976) [hereinafter House Hearing], prepared
statements of Jim Eaton, William J. Duddleson, Ms. Raye-
Page, and Frank C. Boerger.
The comments Congress received from those who were
advocating Drakes Estero’s designation as wilderness stressed
a common theme: that the oyster farm was a beneficial preexisting
use that should be allowed to continue
notwithstanding the area’s designation as wilderness. For
example, a representative from the Wilderness Society stated:
“Within Drakes Estero the oyster culture activity, which is
under lease, has a minimal environmental and visual
intrusion. Its continuation is permissible as a pre-existing
non-conforming use and is not a deterrent for inclusion of the
federally owned submerged lands of the Estero in
wilderness.” House Hearing, prepared statement of Ms.
Raye-Page, at 6. The Chairman of the Golden Gate National
Recreation Area Citizens’ Advisory Commission noted that
the oyster-farming operations “presently carried on within the
seashore existed prior to its establishment as a park and have
since been considered desirable by both the public and park
managers.” Senate Hearing, at 361. He therefore
recommended that specific provision be made to allow such
operations “to continue unrestrained by wilderness
designation.” Id. Others observed, echoing the comments of
Senator Tunney, that the proposed House and Senate bills
already provided for that. See House Hearing, prepared
statement of William J. Duddleson, at 3–4 (“H.R. 8002 would
allow continued use and operation of Johnson’s Oyster
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DRAKES BAY OYSTER 42 CO. V. JEWELL
Company at Drakes Estero, as a pre-existing non-conforming
use.”); Senate Hearing, at 357 (“S. 2472 would allow the
continued use and operation of Johnson’s Oyster Company in
Drakes Estero.”). A local state assemblyman succinctly
summed it up this way: “Finally, I believe everyone
concerned supports the continued operation of oyster farming
in Drakes Estero as a non-conforming use.” Senate Hearing,
at 356.
The view expressed by these speakers—that continued
operation of the oyster farm was fully compatible with
Drakes Estero’s designation as wilderness —was not some
wild-eyed notion. It was firmly grounded in the text of the
Wilderness Act itself. The Act generally bans commercial
enterprise within wilderness areas, but does so “subject to
existing private rights.” 16 U.S.C. § 1133(c). Drakes Bay’s
predecessor, the Johnson Oyster Company, had existing
private rights in the form of water-bottom leases issued by
California that pre-dated both the passage of the Wilderness
Act and creation of the Point Reyes National Seashore. The
Act also generally prohibits the use of motorboats within
wilderness areas, see id., but the Secretary of Agriculture may
permit continued use of motorboats when, as here, such use
has “already become established.” Id. § 1133(d)(1). To the
extent there is any ambiguity in these provisions, the Act’s
legislative history makes clear that Congress believed the new
wilderness-preservation system would not affect the
economic arrangements of business enterprises “because
existing private rights and established uses are permitted to
continue.” S. Rep. No. 88-109, at 2 (1963).
The only party opposed to designating Drakes Estero as
wilderness was the Department of the Interior. At first, the
Department took the position that none of the submerged
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DRAKES BAY OYSTER CO. V. JEWELL 43
lands and coastal tidelands conveyed by California in 1965
could be designated as wilderness, because the State’s
reserved mineral and fishing rights were “inconsistent with
wilderness.” House Hearing, letter from John Kyl, Assistant
Secretary of the Interior, at 3. When the Department’s view
came under attack by those who argued that the State’s
reserved rights were not in any way inconsistent with
wilderness, see, e.g., Senate Hearing, at 327–28, the
Department backpedaled. It proposed placing most of the
lands subject to the State’s reserved rights into a new
legislative classification—“potential wilderness addition”—
which it had developed in connection with similar wilderness
proposals. See House Hearing, at 11–12; id., letter from John
Kyl, Assistant Secretary of the Interior, at 1. That
designation was intended to encompass “lands which are
essentially of wilderness character, but retain sufficient nonconforming
structures, activities, uses or private rights so as
to preclude immediate wilderness classification.” S. Rep. No.
94-1357, at 3 (1976).
Four areas subject to the State’s reserved rights were at
issue: the coastal tidelands, Limantour Estero, Abbotts
Lagoon, and Drakes Estero. The original version of H.R.
8002 designated all four areas as wilderness, not just potential
wilderness additions. But in the spirit of compromise,
Congressman Burton, the sponsor of H.R. 8002, agreed to
amend the bill by designating those areas as potential
wilderness additions, rather than as wilderness. See House
Hearing, prepared statement of Rep. John Burton, at 2. In
doing so, he made clear that all four areas were being
designated as potential wilderness additions due to
California’s reserved mineral and fishing rights. See id. He
noted that, “[a]s ‘potential wilderness,’ these areas would be
designated as wilderness effective when the State ceeds [sic]
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DRAKES BAY OYSTER 44 CO. V. JEWELL
these rights to the United States.” Id. (emphasis added). As
so amended, H.R. 8002 was enacted as the Point Reyes
Wilderness Act in 1976.
Fast forward now to 2005. Shortly before Drakes Bay’s
purchase of the oyster farm closed, the Park Service reiterated
its view that, based on a legal analysis performed by the
Interior Department, no new permits authorizing oyster
farming in Drakes Estero could be issued. The Department’s
legal analysis concluded—bizarrely, given the legislative
history recounted above—that by designating Drakes Estero
as a potential wilderness addition in the Point Reyes
Wilderness Act, Congress had “mandated” elimination of the
oyster farm. The Department never identified anything in the
text of the Act to support that view; it cited only a passage
from the House Report accompanying H.R. 8002. But that
passage “is in no way anchored in the text of the statute,”
Shannon v. United States, 512 U.S. 573, 583–84 (1994), and
thus provides no support for the Department’s interpretation
of the Act.
Even taken on its own terms, however, the passage from
the House Report does not support the Department’s
interpretation. The passage states in full: “As is well
established, it is the intention that those lands and waters
designated as potential wilderness additions will be
essentially managed as wilderness, to the extent possible, with
efforts to steadily continue to remove all obstacles to the
eventual conversion of these lands and waters to wilderness
status.” H.R. Rep. No. 94-1680, at 3 (1976) (emphasis
added). But the oyster farm was not an “obstacle” to Drakes
Estero’s conversion to wilderness status, and no one in
Congress ever expressed that view. To the contrary, as
discussed above, all indications are that Congress viewed the
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DRAKES BAY OYSTER CO. V. JEWELL 45
oyster farm as a beneficial, pre-existing use whose
continuation was fully compatible with wilderness status.
II
With that background in mind, we can now turn to the
legal issue at the heart of this appeal, which is how to
construe § 124.
Everyone appears to agree that the Park Service’s
conclusion in 2005 that it was legally prohibited from
granting Drakes Bay a special use permit prompted Congress
to enact § 124. If all Congress had wanted to do was “let the
Secretary know his hands were not tied,” as the majority
asserts, § 124 could simply have stated, as it does, that “the
Secretary of the Interior is authorized to issue a special use
permit . . . .” Act of Oct. 30, 2009, Pub. L. No. 111-88,
§ 124, 123 Stat. 2904, 2932. But Congress went further and
added a notwithstanding clause, so that the statute as enacted
reads, “notwithstanding any other provision of law, the
Secretary of the Interior is authorized to issue a special use
permit . . . .” Id. (emphasis added). Our task is to determine
what effect Congress intended the notwithstanding clause to
have.
Given the historical backdrop against which § 124 was
enacted, I think Congress intended the clause to override the
Interior Department’s misinterpretation of the Point Reyes
Wilderness Act. Reading the clause in that fashion is
consistent with the way courts have typically construed
notwithstanding clauses. The Supreme Court has held that
the use of such a clause “clearly signals the drafter’s intention
that the provisions of the ‘notwithstanding’ section override
conflicting provisions of any other section.” Cisneros v.
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DRAKES BAY OYSTER 46 CO. V. JEWELL
Alpine Ridge Grp., 508 U.S. 10, 18 (1993). And we have said
that the basic function of such clauses is to “sweep aside” and
“supersede” any potentially conflicting laws. United States
v. Novak, 476 F.3d 1041, 1046 (9th Cir. 2007) (en banc);
Student Loan Fund of Idaho, Inc. v. U.S. Dep’t of Educ.,
272 F.3d 1155, 1166 (9th Cir. 2001). A notwithstanding
clause often targets those laws that were the “legal sticking
point” for the action Congress intends to authorize.
Miccosukee Tribe of Indians of Fla. v. U.S. Army Corps of
Eng’rs, 619 F.3d 1289, 1301 n.19 (11th Cir. 2010).
In this case, no conflicting laws actually prevented the
Secretary from issuing a permit to Drakes Bay. Continued
operation of the oyster farm is fully consistent with the
Wilderness Act, and the farm’s existence is therefore not an
“obstacle” to converting Drakes Estero to wilderness status as
directed by the Point Reyes Wilderness Act. Instead, it was
the Interior Department’s misinterpretation of the Point
Reyes Wilderness Act that proved to be the “legal sticking
point” here. I think the best reading of the notwithstanding
clause is that Congress meant to “override” (“sweep aside,”
“supersede”) that misinterpretation of the law when it enacted
§ 124. Alpine Ridge Grp., 508 U.S. at 18; Novak, 476 F.3d at
1046; Student Loan Fund, 272 F.3d at 1166.
If you accept what I have said so far, only two questions
remain. The first is whether Congress, having overridden the
Department’s misinterpretation of the Point Reyes
Wilderness Act, nonetheless authorized the Secretary to rely
on that misinterpretation as a basis for denying Drakes Bay a
permit. I cannot see any reason why we would construe
§ 124 in that fashion. Under the Administrative Procedure
Act (APA), if an agency bases its decision on a legally
erroneous interpretation of the controlling statute, its decision
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DRAKES BAY OYSTER CO. V. JEWELL 47
will be deemed arbitrary, capricious, or otherwise not in
accordance with law. See Safe Air for Everyone v. EPA,
488 F.3d 1088, 1091, 1101 (9th Cir. 2007) (involving an
erroneous interpretation of a state implementation plan that
had the force and effect of federal law). Thus, even without
the notwithstanding clause, it would make no sense to assume
that Congress authorized the Secretary to base his decision on
a misinterpretation of the Point Reyes Wilderness Act. With
the clause, adopting any such construction of § 124 would be
entirely indefensible.
The second (and admittedly closer) question is whether
the Secretary in fact based his decision on the
misinterpretation of the Act that Congress intended to
override by enacting § 124. The majority suggests that the
Secretary based his decision instead on the Interior
Department’s own policies, see Maj. op. at 20 & n.5, 27–28
n.8, but I do not think the Secretary’s written decision
denying the permit supports that view. The Secretary’s
decision states that he gave “great weight” to what he called
“the public policy inherent in the 1976 act of Congress that
identified Drakes Estero as potential wilderness.” The
Secretary read that Act as expressing Congress’s intention
that all “obstacles” to converting Drakes Estero to wilderness
status should be removed. But he erroneously deemed the
oyster farm to be such an obstacle (“DBOC’s commercial
operations are the only use preventing the conversion of
Drakes Estero to designated wilderness”), because he
erroneously assumed that the oyster farm’s continued
operation was “prohibited by the Wilderness Act.” That in
turn led him to conclude— again erroneously—that his
decision to eliminate the oyster farm “effectuate[d]”
Congress’s intent as expressed in the Point Reyes Wilderness
Act.
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DRAKES BAY OYSTER 48 CO. V. JEWELL
These are precisely the same errors of statutory
interpretation the Interior Department made back in 2005.
They are precisely the same errors that prompted Congress to
enact § 124 in the first place. And, in my view, they are
precisely the same errors Congress attempted to supersede by
inserting the notwithstanding clause. Contrary to the
majority’s assertion, the Secretary had no authority to rely on
this misinterpretation of “Congress’s earlier expressed goal”
because the notwithstanding clause eliminated any such
authority. See Maj. op. at 27–28 n.8.
What does the majority offer in response to this analysis?
Some hand waving, to be sure, but nothing of any substance.
Most tellingly, the majority never attempts to argue that the
Interior Department’s interpretation of the Point Reyes
Wilderness Act was correct. Nor could it make that
argument with a straight face given the Act’s clear legislative
history, which the majority never attempts to address, much
less refute. The majority thus has no explanation for
Congress’s inclusion of the notwithstanding clause in § 124
other than the one I have offered: that it was included to
override the Department’s misinterpretation of the Point
Reyes Wilderness Act. The majority claims that the clause
“has a clear function—to convey that prior legislation should
not be deemed a legal barrier” to permit issuance. See Maj.
op. at 20. But that reading of the clause supports my position
because the Secretary did treat “prior legislation”—namely,
the Point Reyes Wilderness Act—as a “legal barrier” to
permit issuance. As I have argued, that is exactly what the
notwithstanding clause was intended to prohibit.
The majority also claims that I have not accorded the
Secretary’s decision the deference it is owed under the
arbitrary and capricious standard, which requires us to give
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DRAKES BAY OYSTER CO. V. JEWELL 49
due regard to an agency’s exercise of discretion within its
sphere of expertise. See Maj. op. at 27–28 n.8. But I am not
arguing here that the Secretary’s decision must be set aside
because it reflects faulty weighing of permissible policy
factors. We would have no authority to second guess a
decision of that order. What I am saying, instead, is that
§ 124’s notwithstanding clause precluded the Secretary from
basing his decision on the very misinterpretation of the Point
Reyes Wilderness Act that Congress intended to override. A
decision will normally be deemed arbitrary and capricious if
an agency “has relied on factors which Congress has not
intended it to consider.” Motor Vehicle Mfrs. Ass’n v. State
Farm Mut. Auto. Ins. Co., 463 U.S. 29, 43 (1983). That,
unfortunately, is just what the Secretary did.
In short, I would hold that Drakes Bay is likely to prevail
on the merits of its APA claim. The Secretary’s
misinterpretation of the Point Reyes Wilderness Act, and his
mistaken view that denying the permit request effectuated
Congress’s intent, were “fundamental” to his decision,
rendering the decision “arbitrary, capricious, or otherwise not
in accordance with law.” Safe Air for Everyone, 488 F.3d at
1101 (internal quotation marks omitted).
III
Like the majority, I will not spend much time addressing
the remaining preliminary injunction factors—irreparable
harm, balance of the equities, and the public interest. See
Winter v. Natural Res. Def. Council, Inc., 555 U.S. 7, 20
(2008). Considered together, those factors tip in Drakes
Bay’s favor.
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DRAKES BAY OYSTER 50 CO. V. JEWELL
Drakes Bay will suffer irreparable injury to its business
and real-property rights if a preliminary injunction is
erroneously denied. See, e.g., Sundance Land Corp. v. Cmty.
First Fed. Sav. & Loan Ass’n, 840 F.2d 653, 661 (9th Cir.
1988); Am. Passage Media Corp. v. Cass Commc’ns, Inc.,
750 F.2d 1470, 1474 (9th Cir. 1985). The loss of “an ongoing
business representing many years of effort and the livelihood
of its [owners] constitutes irreparable harm.” Roso-Lino
Beverage Distribs., Inc. v. Coca-Cola Bottling Co., 749 F.2d
124, 125–26 (2d Cir. 1984) (per curiam).
The balance of equities favors Drakes Bay. The majority
concludes otherwise by noting that Drakes Bay knew when it
acquired the oyster farm that its permit would expire in 2012.
Maj. op. at 37. But that is not the relevant consideration.
Rather, the controlling consideration is that the harm Drakes
Bay will suffer from the erroneous denial of a preliminary
injunction far outweighs the harm the government will suffer
from an erroneous grant of such relief. See Alliance for the
Wild Rockies v. Cottrell, 632 F.3d 1127, 1137–38 (9th Cir.
2011); Scotts Co. v. United Indus. Corp., 315 F.3d 264, 284
(4th Cir. 2002); Am. Hosp. Supply Corp. v. Hosp. Prods. Ltd.,
780 F.2d 589, 593 (7th Cir. 1986); Roso-Lino, 749 F.2d at
126. The government will suffer only modest harm if oyster
farming’s eighty-year history in the Estero continues a bit
longer. But if a preliminary injunction is erroneously denied,
Drakes Bay’s business will be destroyed. That is all Drakes
Bay must show to demonstrate that the balance of equities
tips in its favor here.
Finally, the public interest favors neither side. As the
district court observed, federal judges are ill equipped to
weigh the adverse environmental consequences of denying a
preliminary injunction against the consequences of granting
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DRAKES BAY OYSTER CO. V. JEWELL 51
such relief, or the relative interests in access to Drakes Bay’s
oysters as opposed to unencumbered wilderness. It is the
equities that carry the day in this case, see Nken v. Holder,
556 U.S. 418, 435 (2009) (when the United States is a party,
equities and the public interest merge), and the equities
strongly favor Drakes Bay.

 

For the entire amended opinion 13-15227_order_amended_opinion

04-16-14 Marin Superior Court Judge Chernus says “will take it under advisement” at end of hearing

04-16-14 Judge Chernus listened attentively to arguments from both sides, took notes, and at the end of the hearing stated “You’ve given us a lot to think about. I will take it under advisement and get back to you.”

His honor did not specify a date by which he will let us know his decision. Nevertheless, the attorneys are speculating the final ruling may be out within the next three weeks. The ruling could come as early as tomorrow yet on the other hand, it doesn’t have to be out for months from now.

04-15-14 Judge Ruled Ca. Coastal Comm. Violated Environmental Law & Abused its Discretion

04-15-14

Marin Superior Court, Judge Chernus,

issued his temporary ruling today stating the

California Coastal Commission violated environmental law

by not conducting an environmental review, and

abused its discretion by excluding Drakes Bay Oyster Farm evidence.

 

Racks and buildings need not be removed.

Didemnum measures struck down.

Existing Manila clams can stay.

 

To read the ruling, please click on the link below.

tentative 15 apr 2014

This is a tentative ruling.

All parties will appear in Marin County Superior Court, Department B, tomorrow morning, 04-16-14 at 8:30 AM to present arguments.

 

03-11-14 Faber, ALSA, and DBOC vs. California Coastal Commission, Marin Sup Court 3-11-14 9AM

MEMORANDUM IN SUPPORT OF DRAKES BAY OYSTER COMPANY’S MOTION FOR PEREMPTORY WRIT OF MANDATE

HEARING DATE:      March 11, 2014

TIME:                           9:00 a.m.

DEPARTMENT:         D22

JUDGE:                        Honorable Mark A. Talamantes

EXCERPTS FROM THE BRIEF: (regarding the actions of the CALIFORNIA COASTAL COMMISSION against DRAKES BAY OYSTER COMPANY)

…. the “wholesale disqualification” of a party’s experts violates due process as a matter of law, ….

the exclusion of a “credible and substantial” expert report violates due process.

the Commission violated due process by not allowing for cross-examination, and that the Commission’s decision was not supported by competent evidence.

This due-process violation, alone, is enough to invalidate the Orders.

The Commission thereby concedes the issue, and the motion. 

In the quasi-judicial proceeding at issue, the Commission

  • did not act as an impartial judge
  • was too happy to embrace criticisms of the oyster farm,
  • was too hostile to any evidence that favored the farm,
  • was too quick to dismiss evidence that rebutted the staff report.
  • Its behavior demonstrated a desire to win at any cost, and no respect for the truth.

                             VII.     CONCLUSION

This Court should issue an order declaring the Orders invalid, and issue a writ of mandate.

For the full reply to the CCC brief, click on or copy and paste the link below into your web browser:

03-04-14 Reply Brief ISO DBOC’s Motion for Peremptory Writ of Mandate

For the original Brief:

2014-14-02Memorandum in Support of Motion for Peremptory Writ of Mandate

 

 

05-20-2013 NPS Supporters Misrepresent Scientific Facts in Letter to DOI Jewell

NPS Supporters Misrepresent Scientific Facts in Letter to Interior Secretary

Science and Environmental Impacts Come to Fore at Ninth Circuit Court of Appeals Hearing

Inverness, California, May 20, 2013 — A rebuttal was filed today with Interior Secretary Jewell in response to a letter to the Secretary on May 16 from Environmental Action Committee of West Marin (EAC) Executive Director Amy Trainer.

“In her letter to the Secretary, Amy Trainer misrepresented every report she cited,” said Dr. Goodman, who filed the rebuttal. “This is not a case about a difference of opinions. Rather, this is a case about the fabrication of facts and a cover-up.”

These misrepresentations were intended to blunt a scientific misconduct complaint filed with Interior Secretary Jewell on May 13 alleging that both the National Park Service (NPS) and U.S. Geological Service (USGS) knowingly fabricated harbor seal data in their reports. In the Final Environmental Impact Statement (FEIS), NPS claimed evidence of harbor seal disturbances by Drakes Bay Oyster Company (DBOC).

“The EAC continues to try to deceive the public and elected officials with misinformation,” said Dr. Goodman. “It is difficult for our community to have an informed and thoughtful discussion when EAC continues to put out statements that they know are incorrect and misleading.”

The so-called evidence of harbor seal disturbances by DBOC, as presented in the FEIS, was falsified. NPS based its claim upon analysis by an independent harbor seal behavior expert, Dr. Brent Stewart of Hubbs-SeaWorld Research Institute. But in contrast to what the NPS stated in the FEIS, Dr. Stewart twice found just the opposite, namely, no evidence of disturbances by DBOC skiffs.

This revelation has profound implications for Secretary Salazar’s decision to not renew the oyster farm permit, showing that USGS and NPS apparently misinformed Secretary Salazar using scientific claims

1

they knew were incorrect, and that the Department of Justice continues to use the same false science to misinform the federal court.

NPS and their supporters keep saying that the science isn’t important in the federal court case, but that just isn’t true. Last Tuesday, in the hearing in front of the Ninth Circuit Court of Appeals, the judges questioned both sides about whether the Secretary did or did not properly follow the National Environmental Policy Act (NEPA) in producing the Final EIS, and was properly informed by it for his decision concerning the DBOC permit.

“The FEIS claimed evidence for harbor seal disturbances by DBOC based upon the analysis of an independent expert, but only after the Secretary made his decision, did we realize that the expert – Dr. Stewart – found just the opposite,” said Dr. Goodman. “Just recently we learned that USGS went back to the expert a second time, asked him if he changed his mind, and again he came back with the same finding. USGS and NPS covered it up.”

The lawyers defending Interior tried to argue that the Secretary did not violate NEPA, but their arguments, as many in the courtroom knew, were inconsistent with the facts. After two years of insisting the he would follow NEPA, in the final days, the Secretary abandoned NEPA. Nevertheless, in his decision memo, the Secretary wrote that the DEIS and FEIS “have informed me … and have been helpful to me in making my decision.”

Dr. Goodman once again requested that Interior Secretary Jewell convene a blue-ribbon panel of independent scientists to investigate the allegations that USGS and NPS personnel intentionally misrepresented the findings of the independent expert concerning the oyster farm at Point Reyes.

Contacts:
Barbara Garfien Barbara.garfien@gmail.com 415-717-0970

Dr. Corey Goodman

corey.goodman@me.com

415-663-9495
mobile 650-922-1431

DBOC%20press%20release%205_20_13-1

05-20-2013 Dr. Goodman files rebuttal with DOI Jewell in response to EAC letter

Dr. Corey Filed filed a rebuttal today with Interior Secretary Jewell in response to a letter to the Secretary on May 16 from Environmental Action Committee of West Marin (EAC) Executive Director Amy Trainer.  In her letter to the Secretary, Amy Trainer misrepresented every report she cited.  This is not a case about a difference of opinions.  Rather, this is a case about the fabrication of facts and a cover-up.
These misrepresentations were intended to blunt a scientific misconduct complaint filed with Interior Secretary Jewell on May 13 alleging that both the National Park Service (NPS) and U.S. Geological Service (USGS) knowingly fabricated harbor seal data in their reports.  In the Final Environmental Impact Statement (FEIS), NPS claimed evidence of harbor seal disturbances by Drakes Bay Oyster Company (DBOC).
EAC continues to try to deceive the public and elected officials with misinformation.  It is difficult for our community to have an informed and thoughtful discussion when EAC continues to put out statements that they know are incorrect and misleading.

The so-called evidence of harbor seal disturbances by DBOC, as presented in the FEIS, was falsified.  NPS based its claim upon analysis by an independent harbor seal behavior expert, Dr. Brent Stewart of Hubbs-SeaWorld Research Institute.  But in contrast to what the NPS stated in the FEIS, Dr. Stewart twice found just the opposite, namely, no evidence of disturbances by DBOC skiffs.

This revelation has profound implications for Secretary Salazar’s decision to not renew the oyster farm permit, showing that USGS and NPS apparently misinformed Secretary Salazar using scientific claims they knew were incorrect, and that the Department of Justice continues to use the same false science to misinform the federal court.

NPS and their supporters keep saying that the science isn’t important in the federal court case, but that just isn’t true.  Last Tuesday, in the hearing in front of the Ninth Circuit Court of Appeals, the judges questioned both sides about whether the Secretary did or did not properly follow the National Environmental Policy Act (NEPA) in producing the Final EIS, and was properly informed by it for his decision concerning the DBOC permit. 

The FEIS claimed evidence for harbor seal disturbances by DBOC based upon the analysis of an independent expert, but only after the Secretary made his decision, did we realize that the expert – Dr. Stewart – found just the opposite.  Just recently we learned that USGS went back to the expert a second time, asked him if he changed his mind, and again he came back with the same finding.  USGS and NPS covered it up.  

The lawyers defending Interior tried to argue that the Secretary did not violate NEPA, but their arguments, as many in the courtroom knew, were inconsistent with the facts.  After two years of insisting the he would follow NEPA, in the final days, the Secretary abandoned NEPA.  Nevertheless, in his decision memo, the Secretary wrote that the DEIS and FEIS “have informed me … and have been helpful to me in making my decision.” 

I once again requested that Interior Secretary Jewell convene a blue-ribbon panel of independent scientists to investigate the allegations that USGS and NPS personnel intentionally misrepresented the findings of the independent expert concerning the oyster farm at Point Reyes.  

For your records, I am enclosed the original complaint filed with Secretary Jewell on May 13, Amy Trainer’s letter to Secretary Jewell on May 16, and my rebuttal letter sent to Secretary Jewell today.

To access those documents click on or copy and paste the links below into your web browser:

CSG to Jewell 05_20_13

EAC to DOI re Goodman complaint May 16 2013

CSG to Jewell 05_13_13

DBOC press release 5_20_13

04-09-13 Phyllis Faber letter to Gov Brown regarding Ca Coastal Comm & lawsuit filed

 

Phyllis M Faber

765 Miller Ave

Mill Valley, CA 94941

 

April 9, 2013

The Honorable Edmund G. “Jerry” Brown

State Capitol

Sacramento, CA 95

 

Dear Governor Brown,

 

Today ALSA (Alliance for Local Sustainable Agriculture) and I have filed a lawsuit against the California Coastal Commission on behalf of Drakes Bay Oyster Company for actions that do not conform to provisions of the Coastal Act of 1976 nor to its spirit. This is an extraordinarily painful step for me to take as I was co-chair of the Marin County effort to support Proposition 20 that created the California Coastal Commission in 1972 and served on the North Central Regional Commission for eight years, as chair for two years. I have been a strong supporter since the Commission was formed forty years ago. The Coast of California is clearly better off with the coastal management the Commission has provided.

 

I am an 85 years old, white haired biologist. Professionally, I am an editor for Natural History Books for UC Press. In Marin County, I was included in a small group on whom was bestowed the title of “Environmental Elder.” I wear it with pride. For more than 40 years – I remain an unabashed supporter of the California Coastal Act.

Today, however, in West Marin in their recent action against the Drakes Bay Oyster Company, the Commission has “lost its way.” It has engaged in an inexplicable campaign – exceeding its charter – to bureaucratically smother – to drive out of business — a working family farm, the Drakes Bay Oyster Company.

 

This is more than a case against an agency for failing to adhere to its CEQA rules and requirements. It’s more than usurping power from the Department of Fish and Game. It’s about the “abuse of power.”

 

When the Coastal Commission staff tells the Lunny family that it will not process its Coastal Development Permit (CDP) until the Park Service completes its environmental impact statement (a two-year, $ 2 million, 1,000 page document), and then accuses the Lunny’s of failing to have a CDP (delayed at CCC insistence), that’s abuse of power.

 

When the Coastal Commission staff presentation to the Commissioners includes a photo – dated 2013 — with the farm depicted as a physical mess with beach litter, but fails to disclose that the photo is more than seven years old taken of the beach under prior ownership and that under the Lunnys, it has been cleaned up, that’s abuse of power.

 

When the Coastal Commission staff found out about an administrative error by the Fish and Game Commission – twenty years ago, (a minor typographical error that was discovered by the Lunnys who asked that it be administratively corrected), they demanded actions and imposed a massive $60,000 fine while knowing that the Commission had docketed its correction – that’s abuse of power.

 

When the Coastal Commission becomes preoccupied with the Lunny purchase of replacement picnic tables for public enjoyment (and considers new ones development), that’s abuse of power.

 

When the Coastal Commission imposes a restoration order that is biologically impossible to achieve, and will clearly bankrupt a third generation ranching family, that’s abuse of power.

 

Above the Law – Beyond Accountability.

 

In enacting a Cease and Desist and a Restoration order against the Drakes Bay Oyster Company on February 7, 2013, we believe the California Coastal Commission made a mistake in judgment based on a flawed staff presentation and by ignoring their own policies, policies that support mariculture, that support agriculture, and that support visitor serving enterprises. And they ignored the Local Coastal Plan of Marin County (LCP) that strongly supports the oyster farm. This action will result in the Coastal Commission bankrupting one of the ranching families in the Point Reyes Seashore who have been on their farm for several generations and who operate the first organic beef operation in Marin County as well as the oyster farm. This is not what many of us deem to be good coastal zone management! It may also cause unknown and unconsidered harm to the productive Estero by the removal of millions of oysters, and all the clams and all the oyster racks. I firmly believe that the Cease and Desist Order and the Restoration order are in error and need to be rectified by the Coastal Commission.

 

The National Park Service determined that NEPA (environmental review) was required for the removal of the oyster farm. After more than 800 days, Secretary Salazar said, in effect, never mind – I don’t need NEPA to guide me and dismissed the report. The Coastal Commission didn’t even bother with CEQA either. Environmental reviews apparently are not necessary. The Coastal Commission, usually required by its own rules, simply unilaterally waived them. Excluding a public process that discloses, analyzes and explains means only one thing: the Commission’s actions cannot be reviewed. The Commission will not be accountable – to anyone. At the outset of the Commission hearing, the Commission staff instructed the Commissioners – to omit from the record the information submitted by the Lunny lawyers. This is wrong. This is not how Commission business was or should be conducted.

 

The recently re-adopted Commission Cease and Desist order covers three items: the emergency repair of a broken electric line for which the Lunny family had a county permit; for purchasing six picnic tables that needed replacement and six new ones to benefit the increased number of visitors every weekend (considered development by the Commission); and for the removal of an unsafe porch from a mobile home that had become a hazard (also considered development). Is this appropriate coastal management or is it perhaps a vindictive action on the part of Commission staff?

 

Because the oyster farm is so important as a source of high quality food (they grow about 30% of California’s oysters) and to supplying other oyster growers, the decision to remove the oyster farm is both controversial and ecologically significant for the region to consider. Oysters provide an important source of high quality food and a significant benefit to the ocean ecosystem.

 

The Commission’s Restoration order requires the oyster farm, if closed, to remove all the oyster racks that belong to the Park, to remove all the clams from the Estero floor, and to remove a non-native tunicate, a slimy marine organism that grows on the oyster shells and is today found all along the California coast. Removing the racks is a huge but a doable operation that will take two or three years and will include the removal of two or three million oysters that currently are filtering the waters of the Estero; removing all the clams on the Estero floor and will require raking the bottom of the Estero with unknown harm to all the flora and fauna in the Estero; and removing all the tunicates will certainly be impossible and attempting it will only spread this organism more widely.

 

Governor, something is terribly wrong in California when the Staff of a State Agency – the Coastal Commission – expend precious tax dollars waging a bureaucratic war against an ecologically beneficial food producer. Please give us your support.

 

Phyllis M Faber

765 Miller Avenue

Mill Valley, CA 94941

415 388-6002

04-05-2013 Alliance for Local Sustainable Agriculture files lawsuit against CA Coastal Commission

On April 5, 2013, the Alliance for Local Sustainable Agriculture (ALSA) filed a Petition For Alternative Writ of Mandate with Marin Superior Court against the California Coastal Commission (CCC).

 

ALSA has joined with Phyllis Faber, a long-time Marin County environmental activist and member of the first California Coastal Commission, to challenge Cease and Desist and Restoration orders (Orders) the CCC recently adopted that will effectively shut down the Drakes Bay Oyster Farm (DBOF), the single most important sustainable shellfish aquaculture operation in the state, located within the Point Reyes National Seashore.

 

ALSA views the CCC action as violating both the California Environmental Quality Act (CEQA) and the Coastal Act. The Petition notes that CCC staff affirmatively excluded from the record substantial evidence that the Orders would cause significant negative environmental impacts. This exclusion constitutes an egregious violation of CEQA. Further, while the Coastal Act declares that the Commission may not adopt regulatory controls over aquaculture that duplicate or exceed those of the California Fish and Game Commission (CFGC) and California Department of Fish and Wildlife (CDFW), the Orders effectively trample CFGC authority over shellfish cultivation in Drakes Estero as regulated by CDFW.

 

Both the Coastal Act and the Local Coastal Plan (LCP) support sustainable aquaculture as a coastal dependent use; both are disrespected by CCC orders that regard picnic tables as coastal development and require DBOF to undertake the physically impossible task of removing a non-native species from the Estero for which it bears no responsibility and which occurs along the entire Pacific coast. The Coastal Act requires the CCC to support agriculture and specifically, aquaculture, but CCC staff has misused the Coastal Act to undermine working landscapes of the California coast, threatening the viability of Marin’s entire agricultural infrastructure.

ALSA strongly supports both the California Coastal Act and the LCP. This lawsuit is, regrettably, necessary to remind the Commission of its statutory obligation to comply with CEQA, respect CFGC Constitutionally delegated authority, and to support aquaculture, agriculture and other coastal dependent uses and visitor services in California.

 

ALSA is represented pro bono by Zachary Walton of the SSL Lawfirm, with his colleagues Chris Wade, Liz Bridges, and Corie Calfee.

 

For more info contact: Donna Yamagata, at 415-669-9691, or at alsamarininfo@gmail.com.

 

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