06-27-14 WSJ: Oyster Farm Digs in for High Court Hearing

Oyster Farm Digs in for High Court Hearing

 

“The oyster farm’s owners, Kevin Lunny and his family, have staved off closure so far by appealing the decision in the federal courts. They are now waiting to learn whether the U.S. Supreme Court will hear their case.

If the answer is yes, it would allow the Lunnys at least a few more months to continue their business, which employs 25 people and produces about a third of California-harvested oysters. The court’s decision on whether to hear the case next fall could be posted on its website Monday.

Amid the uncertainty, Mr. Lunny said he has reduced his staffing from 30 to 25, mostly through attrition. While he remains hopeful of ultimately winning the fight, he said it has taken a toll on him.

“The government is a powerful group to be up against,” said Mr. Lunny, who is being represented by pro bono attorneys. “They have unlimited resources and they just line up the lawyers.”

 

 

Businessman Staves Off Closure as Clock Runs Out on Lease in Wilderness-Designated Area Along California Coast

By Jim Carlton

 

June 27, 2014 7:03 p.m. ET

 

POINT REYES NATIONAL SEASHORE, Calif.—Bill Fischer has been making a trek to buy freshly harvested oysters along the Marin County coast here for 60 years.

“These are some of the best oysters anywhere,” said Mr. Fischer, an 82-year-old retired legal analyst from Lafayette, Calif., who walked away with a bagful after a visit to the Drakes Bay Oyster Co. near Inverness with his wife this week.

But trips here by aficionados like Mr. Fischer may soon come to an end. Former Interior Secretary Ken Salazar in November 2012 ordered Drakes Bay to shut down after its 40-year lease with the National Park Service ended on Nov. 30, 2012.

In so doing, Mr. Salazar cited Congress’s 1976 designation of much of the Point Reyes preserve as wilderness.

The oyster farm’s owners, Kevin Lunny and his family, have staved off closure so far by appealing the decision in the federal courts. They are now waiting to learn whether the U.S. Supreme Court will hear their case.

If the answer is yes, it would allow the Lunnys at least a few more months to continue their business, which employs 25 people and produces about a third of California-harvested oysters. The court’s decision on whether to hear the case next fall could be posted on its website Monday.

“I certainly hope things go your way,” Mr. Fischer, 82, told Mr. Lunny, who is 56-years-old.

Drakes Bay is one of several traditional businesses and activities located on the West’s vast federal lands that have come under pressure to close or reduce operations, often at the behest of environmental groups.

Mining claims have been taken over in Alaska’s Denali National Park and Preserve, while in Yellowstone National Park use of snowmobiles has been greatly restricted.

Ranchers throughout the West have had grazing leases on federal public land restricted or canceled, or ended their own private operations amid increasing regulatory pressures.

“People working and living on landscapes just doesn’t fit in their vision of what a national park should be,” said Laura Watt, associate professor and chair of environmental studies and planning at Sonoma State University, and a supporter of Mr. Lunny.

Interior Department and Justice Department officials wouldn’t comment, citing the pending litigation. But government supporters say Mr. Lunny knew the lease would expire in 2012 when he bought the oyster farm in 2004, but said he believed at the time it could be renewed.

“The government has acted fairly,” said Neal Desai, a director for the National Parks Conservation Association, an environmental nonprofit in San Francisco that supports closing the farm. “It’s only fair the contract is upheld.”

The fate of the oyster farm, which has been in operation on the site since 1934, has divided the area.

“Save Our Drakes Bay Oyster Farm” signs can be spotted throughout the community. Support extends across the San Francisco Bay Area, where Drakes Bay is a major supplier to restaurants such as Burgers & Vine in Sonoma, Calif.

Drakes Bay, which produces about 450,000 pounds of oyster meat annually with revenues of $1.5 million, is the largest of about a half-dozen oyster farms in the West Marin area.

If it closed, there likely would be no shortage of oysters because there are big producers elsewhere, such as in Washington state, to fill the gap. Oysters are also abundant on the global market, which includes Asia.

“It’s a crock, and you can quote me on that,” Carlo Cavallo, who owns Burgers & Vine, said of the ordered closure. “We are talking about a farm that has been there for almost 100 years.”

But some environmentalists and other backers of the closure say the farm, with its boats, buildings and processing activity, isn’t compatible with a wilderness area.

“Wilderness is a place where people can go to renew their spirits,” said Karen Gray, 67, owner of a bed-and-breakfast in nearby Point Reyes Station who supports the closure.

“And it provides for future generations refuge for the spirit,” she said.

The prospect of closure, meanwhile, is having a chilling effect on the farm and its employees. Paco Aceves, a crew supervisor who has worked at the farm for four years, said uncertainty about his employment has put college plans on hold for his oldest son.

“It’s hard to make plans for him,” said the 45-year-old father of three.

Amid the uncertainty, Mr. Lunny said he has reduced his staffing from 30 to 25, mostly through attrition. While he remains hopeful of ultimately winning the fight, he said it has taken a toll on him.

“The government is a powerful group to be up against,” said Mr. Lunny, who is being represented by pro bono attorneys. “They have unlimited resources and they just line up the lawyers.”

 

 

The article’s behind a paywall, but here’s the link:

http://online.wsj.com/articles/oyster-farm-digs-in-for-high-court-hearing-1403910202

 

 

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

05-19-2014 Goodman Houser AMICI CURIAE Brief

(Unfortunately, Adobe PDF file converter has a tendency to run words together

so I am providing access both through the link below as well as by scrolling down to read the ‘converted file.)

05-19-2014 Goodman Houser DBOC brief

No. 13-1244

————————————————————————

In the Supreme Court of theUnited States

——————

DRAKES BAY OYSTER COMPANY AND KEVIN LUNNY,

Petitioners,

SALLY JEWELL, SECRETARY OF THE UNITED STATES DEPARTMENT OF THE INTERIOR; ETAL.,

——————

On Petition For WritOf Certiorari To The UnitedStates Court Of Appeals For The Ninth Circuit

——————

BRIEF OF DR. COREY S. GOODMAN AND DR.PAUL R.HOUSER

AS AMICI CURIAE

SUPPORTING PETITIONERS AND REVERSAL

 

PETERS.PROWS

Counsel of Record JOHN BRISCOE LAWRENCE S.BAZEL BRISCOE IVESTER &

BAZEL LLP

155 Sansome Street

Seventh Floor

San Francisco, CA 94104(415) 402-2700

pprows@briscoelaw.net

CounselFor Amici Curiae

 

 

TABLE OFCONTENTS

INTEREST OF AMICI CURIAE…………………………. 1

SUMMARY OF ARGUMENT:SCIENTIFIC INTEGRITY IS

CENTRAL TO OUR DEMOCRACY…………… 6

ARGUMENT………………………………………………….. 8

  1. SCIENTIFIC MISCONDUCT UNDERMINES OUR DEMOCRACY:

THREE EXAMPLES……………………………….. 8

  1. Drakes Bay Oyster Company………….. 8
  2. KlamathRiver DamsRemoval……….. 13
  3. Department of Justice………………….. 16
  1. THERE ISA LACK OF ACCOUNTABILITY FOR SCIENTIFIC

MISCONDUCT IN GOVERNMENT………… 17

  1. Need For Scientific Integrity

Policy BecomesApparent………………. 17

  1. The Rocky Development And Implementation Of The President’s Scientific Integrity

Policy…………………………………………. 19

  1. COURTS HAVE AN IMPORTANT ROLE IN ENSURING SCIENTIFIC

INTEGRITY IN GOVERNMENT…………….. 22

CONCLUSION……………………………………………… 26

 

Cases

 

TABLE OF AUTHORITIES

 

Daubertv.Merrell Dow Pharms.,

509 U.S. 579 (1993)……………………………….7, 22, 23

General Electric,Inc.v. Joiner,

522 U.S. 136 (1997)……………………………………. 25

San Luis & Delta-MendotaWater Auth. v.

Salazar,

(E.D. Cal. no. 1:09-cv-00407)………………………23,24

United States v. Olsen,

737 F.3d 625 (9th Cir.2013)…………………16, 17, 21

Statutes and Other Authorities

33 U.S.C.§1251(a)(2)………………………………………. 9

Fed. R. Evid. R. 702……………………………………….. 22

P.L. 106-554 § 515, 114 Stat. 2763A-153-154

(December 21,2000)…………………………………… 20

Delta Smelt Cases,Bench Rulingon Motion toStay Pending Appeal (Sept. 16, 2011), dkt. no.1056, availableat http://plf.typepad.com/

files/9-16-11-motion-to-stay-final-1.pdf………………… 23

Department of Justice, Scientific and ResearchIntegrityPolicy, at 1,available athttp://www.justice.gov/open/doj-scientific-

integrity-policy.pdf…………………………………….. 21

Department of theInterior, Integrity ofScientific and Scholarly Activities (January28, 2011),available at http://elips.doi.gov/

elips/0/ doc/3045/Page1.aspx………………………… 10

 

 

Emily Yehle, “Rushed USGSReport OnOysterFarm Misrepresented Biologist’sFindings”,Greenwire(May 14, 2013), availableathttp://www.eenews.net/greenwire/

stories/1059981143……………………………………… 20

“In Private Letter, Tim Ragen Admits NoEvidenceFor Seal Study”,Point Reyes Light(August 9, 2012), available at http://www.ptreyeslight.com/article/private-letter-tim-

ragen-admits-no-evidence-seal-study…………….. 13

John Bowman,“Secretary Of InteriorAnnouncesResignation”, Taft MidwayDriller(Jan. 17, 2013), availableat http://www.taftmidwaydriller.com/article/20130117/NEW

S/130119808/0/FRONTPAGE……………………….. 14

John P. Holdren, Director, Officeof Science andTechnology Policy,Memorandum on Scientific Integrity, (December 17, 2010),available at http://www.whitehouse.gov/sites/default/files/microsites/ostp/scientific-

integrity-memo-12172010.pdf………………………. 19

Letter from Dr. Paul Houser, Scientific IntegrityOfficer, Bureauof Reclamation, to theDepartment of theInterior, Allegation OfScientific And Scholarly Misconduct AndReprisal For A Disclosure ConcerningTheBiased Summarization Of Key ScientificConclusionsFor The Klamath River DamRemoval Secretarial Determination Process(February 24, 2012), available athttp://www.peer.org/assets/docs/doi/8_8_12_H

ouser_sci_integ_complaint.pdf…………………. 14-15

 

 

Letter from JonathanB. Jarvis,Director,National Park Service, to Amber D. Abbasi,counsel for Dr. Goodman(Dec. 21, 2012),available athttp://causeofaction.org/assets/uploads/2013/03/FINAL-Report_Exhibits.pdf

at Exhibit 51 (page 1003)…………………………….. 20

Marine Mammal Commission,Mariculture AndHarbor Seals In Drakes Estero,California at

27 (November 22, 2011)………………………………. 12

National Academy of Sciences, ResponsibleScience: Ensuringthe Integrityof theResearchProcess at 27 (1992),availableat

http://nap.edu/catalog.php?record_id=1864.…………. 18

National ResearchCouncil, EndangeredAndThreatenedFishes In The Klamath RiverBasin: Causes Of Decline And Strategies ForRecovery at 5-6 (2004), availableat http://

www.nap.edu/catalog.php?record_id=10838…………. 13

Presidential Memorandum on Scientific Integrity (March 9, 2009), availableat http://www.whitehouse.gov/the-press-office/memorandum-heads-executive-departments-

and-agencies-3-9-09……………………………………. 19

RemarksBy The President At The NationalAcademy Of Sciences Annual Meeting(April28, 2009),available at http://www.whitehouse. gov/the_press_office/Remarks-by-the-President-at-the-National-Academy-of-

Sciences-Annual-Meeting………………………………. 6

 

 

RESOLVE,IndependentEvaluationOf TheScientific Record Pertaining To TheAllegations Of Dr. Paul Houser(August 2012)available at http://www.doi.gov/scientificintegrity/upload/DOI-SI-Case-313-

Independent-Report.pdf………………………………. 15

U.S. House of Representatives,Committee onNatural Resources,Officeof Oversight andInvestigations:Holding InteriorWatchdogAccountable, 59-66 (February 21, 2013),available at http://naturalresources.house.gov/uploadedfiles/oversightreportdepartment

ofinterior.pdf…………………………………………….. 15

William Broad and NicholasWade, Betrayers OfThe Truth: Fraud And Deceit In The Halls Of

Science(1982)……………………………………………. 18

 

 

INTERESTOFAMICICURIAE1

  1. CoreyS.Goodman
  2. CoreyS.Goodman’sinterestinthiscasedatesbacktoApril28,2007whenMarinCountySupervisor Steve Kinsey (then President of the BoardofSupervisors,andtodayChairoftheCalifornia CoastalCommission)contactedDr.Goodman,baseduponhisscientificcredentialsandexperienceinscienceandpublicpolicy,andaskedhimtoanalyzetheNationalParkServicescienceconcerningDrakesEstero.SupervisorKinseyinvitedDr.GoodmantotestifyasanindependentscientistattheMay 8,2007CountyhearingastowhetherPark ServicedatasupportedParkServiceclaims.Atthetime,Dr.GoodmandidnotknowKevinLunny,ownerofDrakesBayOysterCompany.Dr.GoodmantestifiedthatParkServiceofficialsmisrepresentedtheirown dataineverycategoryofenvironmentalharm.HisanalysisshowedParkServicedatadidnotsupportPark Serviceclaims.
  3. Goodman’sknowledgeofthescience involvingtheoysterfarmledhimtowritenumerousreportstoFederal,State,andCountyagenciesandcommittees,toworkwithelectedofficialsatalllevelsofgovernment,andtopublishnumerousarticles/op-edsinlocalmediaabouttheoysterfarmcontroversy

 

 

 

1    Counselforpetitionersis alsocounselforamiciDr.GoodmanandDr.Houser,and,withtheassistanceofamici,preparedthisbriefinitsentirely.Allhardcostsarebeingpaidbyamici,andcounsel’stimehasbeengivenprobono.Amicigavetimelynoticetoallpartiesoftheirintenttofilethisbrief.Allpartiesgavetheirconsenttothisfiling,andthoseconsentsarebeingsubmittedwiththisbrief.

 

 

withafocusonthemisrepresentationofsciencebyNPSandtheirsupporters,andthelackofevidenceshowingenvironmentalharmbytheoysterfarm.Dr.Goodmanalsofiledanamicusbriefinsupportoftheoysterfarm’spetitionforrehearingenbancwiththeNinthCircuitCourtofAppeals.Hisfocushascontinuedtobeontheimportanceofscientificintegrity in guiding policy decisions.

  1. GoodmanwasProfessorofBiologyatStanfordUniversityandEvanRauchChairofNeurobiologyatUniversityofCaliforniaBerkeleyfortwenty-fiveyearsbeforeretiringandmovingintotheprivatesectorwhereheisManagingPartnerofvenBioPartnersLLC,alifesciencesventurecapitalfirm.Dr.GoodmanremainsAdjunctProfessorof AnatomyandBiochemistry&BiophysicsattheUniversityofCaliforniaSanFrancisco.Hehaspublishedover200peer-reviewedscientificpapers.HeisanelectedmemberoftheNationalAcademyofSciences,AmericanAcademyofArtsandSciences,andAmericanPhilosophicalSociety,andrecipientofmany honorsincludingtheAlanT.WatermanAward,CanadaGairdnerBiomedicalAward,March-of-DimesPrizeinDevelopmentalBiology,Reeve-IrvineResearchMedal,andDawsonPrizein Genetics.

Sinceretiringfromhisacademiccareer,Dr.Goodmanhasworkedintheprivatesector,firstasPresidentandCEOofabiotechnologycompanyheco-founded,tookpublic,and thensoldtoalargercompany,thenasPresidentofPfizer’sBiotherapeuticsandBioinnovationCenterandamemberofPfizer’sexecutiveleadershipteam,and todayasmanagingpartnerofaventurecapitalfirmheco-foundedandChairofsixbiotechnologycompanies. Inthesecapacities, hehasoverseentech-

 

 

nologyinnovationsfornewtherapeuticapproachestohumandisease,anddrugdiscoveryanddevelopmentprogramsindiverseareasincludingneurologicaldisease,pain,cancer,metabolicdisease,immunedisease, and cardio-vascular disease.

Amongsthispublicpolicyroles,Dr.GoodmanistodayChairoftheCaliforniaCouncilonScienceandTechnology(advisingtheGovernorandStateLegislature)andisformerChairoftheNationalResearchCouncil’sBoardonLifeSciences(advisingtheFederalGovernment).Inthesecapacities,hehas overseenarangeofstudiesandreportstotheFederalandCaliforniaGovernmentontopicsincludingstemcells,humancloning,waterborne pathogens,thenation’senvironmentalchallenges,reorganizationoftheNationalInstitutesofHealth,hydraulicfracking, and water policy management.

  1. Goodman’sanalysisofthedatabehindtheParkService’sclaimsabouttheoysterfarmhasallbeen done pro bono as a public service.
  2. PaulR.Houser’sinterestinthiscase focusesonitsscientificintegrityandethicalissues. Dr.Houseriskeenlyinterestedintheissueofscientificintegrity,andhaspursuedinitiativestorestore public trust in government science.
  3. Houserisaninternationallyrecognizedexpertinsurface-atmosphericremotesensing,in-situobservation,numericalsimulation,hydrologicdataassimilation,scientificintegrityandpolicy, andglobalwaterandenergycycling.Hiscareerbeganin1988exploringsurfacewaterqualityissuesintheYakimaRiverBasin(WashingtonState)attheU.S.Geological Survey, followed by thedevelopmentoflandfill cover technology at Los Alamos National

Dr.PaulR.Houser

 

 

Laboratoryin1991.In1997,Dr.HouserjoinedtheNASA-GSFCHydrologicalSciencesBranchandtheDataAssimilationOffice,servedasmanagerofNASA’sLandSurfaceHydrologyProgramfrom1999-2000,andservedasbranchheadoftheHydrologicalScienceBranchfrom2000-2005.In2005,Dr.HouserjoinedtheGeorgeMasonUniversityClimateDynamicsProgramandtheGeographyandGeo-informationSciencesDepartmentasProfessorofGlobalHydrology,andformedtheCenterforResearchforEnvironmentandWaterwiththe missiontoquantifyandpredictwatercycleandenvironmentalconsequencesofearthsystemvari-ability and change.

  1. Houserhaslednumerousscientificcontributions,includingthedevelopmentofLandDataAssimilationSystems,theHydrosphericStatesMission, theLand InformationSystem, theNASAEnergyandWatercycleStudy,andtheWaterCycleSolutionsNetwork(WaterNet).Hehaspublishedover120peer-reviewpublications.In2000,Dr.HouserwonthePresidentialEarlyCareerAwardforScientistsandEngineers(PECASE),andin2005hewon the NASA Softwareof theYear Award.

In2011-2012,Dr.Houserserved asScience AdvisortotheU.S.BureauofReclamation,wherehe wasresponsiblefordevelopingscientificintegrity,peerreview,anddatastewardshippolicies,aswellascoordinatingReclamationactivitieswithotheragenciesandthescientificcommunity.Afterraisingconcernsaboutthescientificintegrityofbiased sciencereportingconcerningtheproposedKlamathdamremovals,Dr.HouserwasfiredfromReclamation.HeraisedhisconcernstotheOfficeofSpecialCouncilinaformalwhistleblowercase,andwith the Department of the Interior in a formal

 

 

scientificintegrityallegation.The whistleblowercasewassettledwithafavorableoutcome,andthescientificintegritycasewasdismissedlargelybecauseanindependentreviewfoundthatbiasin science-basedpressreleaseswasstandardbusinesspracticeattheDepartmentoftheInterior.Dr.HouserhadnofiduciarytiesorconflictsassociatedwiththeKlamathRiverdecisionprocess.Heisnotfororagainstdamremoval,butratherisforthebestscienceinformingpolicydecisionsthatobeythelaw,protect the environment and advance society.

  1. HouserhasauniqueperspectiveontheDepartmentoftheInterior’sScientificIntegrityPolicybecausehe:(i)servedontheteamthatwrote Interior’sScientificIntegrityPolicy;(ii)servedasReclamation’sScientificIntegrityOfficerwhere heprocessedscientificintegrityallegations(e.g.,JudgeWanger’sSeptember2011allegationsonDelta-Smeltissues);and(iii)wasthesubjectofwhistleblowerretaliationrelatedtohisscientificintegrityconcernswiththeKlamathDamremoval.HehasusedhisuniqueexperiencetoofferacritiqueofDOI’sScientificIntegrityPolicy(August2012)whichispartiallyreportedin this brief.
  2. Houserhashadnoinvolvementin decisionsaboutDrakesBayOysterCompany,andisnotadvisingthecompanyinitslitigationagainsttheDepartment of the Interior.

 

 

 

SUMMARYOF ARGUMENT:SCIENTIFICINTEGRITYIS CENTRAL TO

OUR DEMOCRACY

TheEinsteinMemorialoutsidetheNationalAcademyofSciencesbuildinginWashingtonD.C.isinscribedwithaquotationfromAlbertEinstein:Therighttosearchfortruthimpliesalsoaduty;onemustnotconcealanypartofwhatonehasrecognizedto be true.”

Inthesamevein,PresidentObamareceivedastandingovationfromthecountry’stopscientistsattheNationalAcademyofSciencesannualmeetingin2009whenhesaid:“thedaysofsciencetakingabackseattoideologyareover.Ourprogressasanation–andourvaluesasanation–arerootedinfreeandopeninquiry.Tounderminescientificintegrityis to undermine our democracy.”2

Nowherearetheseprinciplesmoreimportantthaningovernment decision-making. WhenCongresspasseslaws,agenciesmakedecisions,andcourtshanddownrulings,people’slivesandlivelihoods—andtheenvironmentalfutureofourplanet—areontheline.Ensuringthatdecisionsusethe best science is central to good government.

Buttoooften,asthisbriefexplains,scientificmisconduct—definedasfabrication,falsification,plagiarism,orretaliation—isusedtosupportgovernmentdecisions. Thegovernmentdecisionat

 

 

2   RemarksByThePresidentAtTheNationalAcademyOfSciencesAnnualMeeting(April28,2009),availableathttp://www.whitehouse.gov/the_press_office/Remarks-by-the-President-at-the-National-Academy-of-Sciences-Annual-Meeting.

 

 

issueinthiscasewasthedenialofanewpermittoahistoricoysterfarminCalifornia.Thatdecisionwasbasedinpartonanenvironmentalanalysisthatfalselyclaimedtofindasignificantadverseimpact,eventhoughtheagency’sownanalysisofthedata,confirmedbytheagency’soutsideexpert,found“no evidence”ofanyimpact.Thefalseclaimofharmfollowedayears-longpatternofotherfalse,andnowretracted,claimsbytheParkServicethattheoyster farmcausesenvironmentalharm.Inothercases,agencieshaveoverstatedprojects’benefitswhilehidingnegativeimpacts,retaliatedagainstwhistleblowers,andhidexculpatorylaboratoryevidence from the criminally accused.

Worse    still    is     the     persistent    lack    ofaccountability    for    scientific   misconduct.                        Theexecutivebranchhasrecentlydevelopedascientificintegritypolicy,andyetmisconductcomplaintscanstill go unaddressed and scientific whistleblowersstillsufferretaliation. Andinthiscase,thefederalcourtshavedeclaredthattheylackjurisdictiontosetasideagencydecisionsforabuseofdiscretionevenwhen they are based in part on scientificmisconduct.

Althoughmostjudgesprofessnospecialscientificexpertise,theydohaveanimportantroleinensuringscientificintegrityingovernmentdecision-making.InDaubert,theSupremeCourtrecognizedthatjudgescanandshouldactasgatekeepersto screenunreliablesciencefromthereliable. Theabuseofscienceinthiscasegoes far beyondharmlesserrors,unreliabledata,differencesofopinion,orhonestmistakes.TheCourtshouldtake thiscasetomakeclearthatjudgescanandshouldprovidearemedywhengovernmentdecisionsarebased on scientific misconduct.

 

 

 

ARGUMENT

 

  1. SCIENTIFIC MISCONDUCTUNDERMINES OURDEMOCRACY:THREE EXAMPLES

A.          Drakes Bay Oyster Company

OnthewesterncoastofthecontinentalUnitedStates,inPointReyes,California,justnorthofSanFrancisco,isan80-yearoldfamily-runoysterfarm,DrakesBayOysterCompany.When Point ReyeswasacquiredbytheNationalParkService(creatingPointReyesNationalSeashore),thePark Serviceandeveryinterestedcivicandenvironmentalgroupsupportedthelong-termcontinuationofthefarm.Itwasahistoriccollaborationbetweenenviron-mentalistsandagriculturalistsinwhathasbecomeahugelysuccessfulmodelfortherestoftheworld–thatproductionofwholesomefoodcanexistin harmonywith protectionof the environment.3

Forthepasteightyears,however,apatternhasdevelopedoftheParkServiceandsomeofthosesameenvironmentalgroupsmakingonefalseclaimofenvironmentalharmafteranotheragainstthe oysterfarm.Thefalseclaimsofenvironmentalharmbeganin2006,whenlocalParkServiceofficialsbeganclaimingthattheoysterfarmwaspolluting

 

 

3    ForanextendeddiscussionofthesupportthefarmenjoyedfromtheParkService,andenvironmentalgroupsliketheSierraClubandtheEnvironmentalActionCommitteeofWestMarin,duringthecreationoftheSeashoreandthepassageofwildernesslegislationthere,seegenerallyBriefOfDr.LauraWatt,AmicusCuriaeInSupportOfPetitionForRehearingEnBanc(Oct.25,2013),NinthCircuitdocket(“CA9dkt.”)no.78-1.

 

 

the water,smotheringeelgrass,harmingfish,anddegradingtheecology.Mostalarmingly,in 2007,ParkServiceofficialssaidtheoysterfarm’sownersshouldbeprosecutedforcommitting“environmentalfelonies”becausethefarmallegedlycausedan80%declineinthelocalharborsealpopulation,a protected marine mammal.4

Thesechargesweresurprising.Clams,oysters, and other shellfish were an important part oftheenvironmentalbaselineforDrakesEstero,5justastheywereforSanFranciscoBayandothercoastalbaysandestuariesaroundtheworldbeforemostwerefishedoutordestroyedbypollution.Oystersactuallyprovideenvironmentalbenefitsbyclarifyingwater.Thosebenefitsarewhyoystersarebeingrestoredinprojectsaroundtheworld.AndthosebenefitsarewhyCongress,intheCleanWaterAct, listedthe“protectionandpropagationof…shellfish”asoneofthegoalsofreducedpollutionandcleanerwater.33 U.S.C. § 1251(a)(2).

TheParkService’ssurprisingchargespromptedthePresidentoftheMarinCountyBoardofSupervisorstoaskDr.Goodmantoreview theParkService’sdata.Dr.Goodmanfoundthatthepubliclyavailabledatadidnotsupporttheclaimsofmajoradverseimpactsonwaterquality,sediments,eelgrass, fish, or the ecology.

TheParkService’sharborsealclaimswerealsofalse. HarborsealpopulationsinDrakesBay

 

 

4Districtcourtdocket(“N.D.Cal.dkt.”)no.39-1at38.ReferencestopagenumbersindocumentsfiledbelowaretothepagenumberECF-stampedtothetopofthedocument.

5N.D.Cal.dkt.no.39-2at20.

 

 

werestable,withsomedisturbancescomingfromwildlife,othersfromparkvisitors,butnonefromtheoysterfarm.Threeyearslater,theParkServiceformally retracted its 80%-decline claim.

In2009,theNationalAcademyreleasedareportontheParkService’sclaims.6ItfoundthattheParkServicehad“selectivelypresented,overinterpreted, ormisinterpreted”the availabledata,andconcludedthat,atDrakesBay,“thereisa lackofstrongscientificevidencethatshellfish farminghas major adverse ecological effects”.7

Bythatpoint,theParkServicehadretractedmostoftheclaimsitmadeagainsttheoysterfarmin2006.InJanuary2011,theDepartmentoftheInteriorreleasedascientificintegritypolicy.8Aroundthesametime,theSolicitor’sOfficeoftheDepartmentofInteriorconcludedthatParkServicescientistsshowed“bias”,“advocacy”,a“troublingmind-set”,andthatfiveemployeeshad“violated[theParkService]CodeofScientificandScholarlyConduct”.9

With the retractionof the false claims, rebukesbytheNationalAcademyandtheParkService’sownlawyers,andtheinstitutionofanewscientificintegritypolicy,therewasreasontohopethattheParkService’suseofscienceconcerningtheoyster

 

 

 

 

6Id.

7Id.at85-86,99.

8DepartmentoftheInterior,IntegrityofScientificandScholarlyActivities(January28,2011),availableathttp://elips.doi.gov/elips/0/doc/3045/Page1.aspx.

9N.D.Cal.dkt.no.40-1at36-37.

 

 

farmwouldimproveasthedecisionontherenewalofthe farm’s permit approached in 2012.

Instead,thepatternoffalseclaimscontinued.Again,themainculpritwastheParkService’sclaimsaboutadverseimpactstoharborseals.In2009,theNationalAcademyconcludedthatinadequatedataexistedtosupporttheParkService’sclaimthatthefarmdisturbstheseals,butrecommendedthatthecontroversycouldberesolvediftheParkServiceestablishedacamerasurveillancesystem.10Infact,suchaprogramhadsecretlybeeninplacesince2007,collectingphotographsofsealsandoysterboatseveryminuteofthedayduringpuppingseasonforoverthreeyears—foratotalofmore than 300,000 photographs.11                                                                 TheParkService’sprivateanalysisofthosephotographswaswithheldfromtheNationalAcademyandthepublic,presumablybecausethatanalysisdidnotrevealdisturbances by the farm.12

Inearly2012,theParkServicecontractedoneoftheworld’sforemostmarinemammalbehaviorexperts,Dr.BrentStewart,tore-analyzethephotos.Dr.StewartsubmittedhisreportinMay2012.13Dr.Stewartfound“noevidenceofdisturbance”ofsealsbyoysterboats.14Dr.Stewart’sreportshouldhavefinally put the issueto rest.

 

 

 

 

10N.D.Cal.dktno.39-2at59-60.

11N.D.Cal.dktnos.40-1at17and41-3at5.

12N.D.Cal.dktno.40-1at13-14.

13ExcerptsofRecord(“ER”)279-285.

14Id.; see also N.D. Cal. dkt. no. 52-1 at 29-35 (Dr.Goodman’sanalysisofDr.Stewart’sreport).

 

 

Unfortunately,itdidn’t.OnNovember20,2012,theParkService released anenvironmentalimpactstatement(EIS)ontheoysterfarm.TheEISconcludedthattheoysterfarmhasasignificant “adverseimpact” onharborseals.15Dr.Stewart’sfinding of “noevidence of disturbance”wastransformedintoafalsefindingthatthefarmdidinfactcauseseriousdisturbances.16Thismanipulationofresearchresultsisaformofscientificmisconduct known as falsification. SeePart II.A below.

Aweeklater,SecretarySalazardecidednottorenewtheoysterfarm’spermit,citing,inpart,theconclusionsaboutenvironmentalharmintheEIS.17Ideology had triumphed over science.18

 

 

 

15SupplementalExcerptsofRecordat58.

16ER284-285.

17Petitioners’Appendixat162.

18Inthedistrictcourt,Dr.Goodman’sopinionthattheEIS“misrepresents”Dr.Stewart’sconclusionsaboutharborsealswentunrebutted.ER188.InitsbrieftotheNinthCircuit,InteriortriedtodefendtheEISbycitingastudyfromtheMarineMammalCommission(“MMC”).CA9dkt.no.36-1at55n.10.ButtheMMCreportdoesnothingtosupporttheEIS’sharborsealconclusions.AfterreviewingthethreeyearsofParkServicephotographsatissuehere,theMMCdescribedasinglepotentialoyster-boat-relateddisturbanceonMay15,2008,andadvisedthata“fullerexamination”ofthephotographswasnecessarytoformanyconclusions“withareasonablelevelofconfidence”.MarineMammalCommission, Mariculture AndHarbor Seals In DrakesEstero,Californiaat27(November22,2011).Dr.Stewartconductedjustsuchafullerexaminationofthephotographs,andheconcluded,withparticularreferencetothepotentialdisturbanceonMay15,2008,thatthere

 

 

B.          KlamathRiverDams Removal

WateruseintheKlamathBasininOregonandCaliforniahasbeenasourceofconflictbetweentribes,farmers,environmentalists,apowercompany,andthegovernmentsfordecades.In2002,manyblamedamassiveChinooksalmonkillonanallegedlypoliticallymotivateddecisiontodivertwatertofarmersratherthantoinstreamflows.A2004NationalAcademyofSciencesreportcomplicatedthepicturebyconcludingthatpoorwaterquality,ratherthanlowinstreamflows,wasthemainrisktothreatenedandendangered species.19

WhentheObamaadministrationcameintooffice,itbeganconsideringabillion-dollarprojecttoremovefourdamsontheKlamathRiver.Therewasnevermuchdoubtabouttheoutcome:in2009,InteriorSecretarySalazariswidelyreportedtohave

 

 

 

 

 

 

was“noevidenceofdisturbance”.N.D.Cal.dkt.no.52-1at15.TheDirectoroftheMMClateradmittedinalettertoDr.Goodman(blindcopiedtotheParkService)thattherewasnoevidencesupportingtheMMCclaimsofharborsealdisturbancesbytheoysterfarm.Editorial,“InPrivateLetter,TimRagenAdmitsNoEvidenceForSealStudy”,PointReyesLight(August9,2012),availableathttp://www.ptreyeslight.com/article/private-letter-tim-ragen-admits-no-evidence-seal-study.

19NationalResearchCouncil,EndangeredAndThreatenedFishesInTheKlamathRiverBasin:CausesOfDeclineAndStrategiesForRecoveryat5-6(2004),available              at             http://www.nap.edu/catalog.php?record_id=10838.

 

 

proclaimed that the proposal to remove the dams“will not fail”.20

InApril2011,theBureauofReclamation(anagencywithinInterior)hiredDr.PaulHouserasitsScienceAdvisorandScientificIntegrityOfficer—apositioncreatedafterInteriorreleaseditsscientificintegrity policy in January 2011.

InSeptember2011,InteriorreleasedadraftEISforthedamremovalproject.Dr.HousercomplainedtohissuperiorsthatthedraftEISanditsaccompanyingpressreleasemisrepresentedthesciencepanelreportsthathadbeencommissionedonthedamremovalproject,emphasizingthepositivebenefitswithouttheuncertaintiesornegativesidentifiedbythepanel.InFebruary2012,justonemonthbeforeSecretarySalazarwasscheduledtoformallymakehisdecision,Dr.Houserwasterminated.HebelievedthiswasretaliatoryandintendedtopreventhimfrominvestigatingwhetherthefinalEISwasalsotaintedbyscientificmisconduct.Inresponse,hefiledawhistleblowercomplaintwithInterior’sInspectorGeneralaswellasascientificmisconductcomplaintwithInterior’sScientific Integrity Officer.21

 

 

20JohnBowman,“SecretaryOfInteriorAnnouncesResignation”,TaftMidwayDriller(Jan.17,2013),availableathttp://www.taftmidwaydriller.com/article/20130117/NEWS/130119808/0/FRONTPAGE.

21LetterfromDr.PaulHouser,ScientificIntegrityOfficer,BureauofReclamation,totheDepartmentoftheInterior,AllegationOfScientificAndScholarlyMis-conductAndReprisalForADisclosureConcerningTheBiasedSummarizationOfKeyScientificConclusionsForTheKlamathRiverDamRemovalSecretarialDeterminationProcess(February24,2012),availableat

 

 

InMarch2013,InteriorreleasedareportonDr.Houser’sscientificintegritycomplaint.22ThereportwaswrittenbyanoutsideconsultantwhosemainclientisInterior.23Interiortaskedtheconsultantwithansweringagivenasetofquestions,andtheconsultantdidnotinterview witnesses.24Thereportdismissedthechargeof“misconduct”asbut“normalpractice”.25Interior’sScientificIntegrityOfficer,whoreportstotheSecretaryofInterior,agreed and closed the case.

InMay2013,theHouseofRepresentatives CommitteeonNaturalResourcesreleasedareportonInterior’sInspectorGeneral,highlightingtheKlamathRiverscientificintegritycomplaintbecauseofwhattheCommitteeconcludedwerefailuresofbothInteriorandInterior’sInspectorGeneral(IG).26The   House   Committee   reported   that   an   IG

 

 

http://www.peer.org/assets/docs/doi/8_8_12_Houser_sci_integ_complaint.pdf.

22RESOLVE,IndependentEvaluationOfTheScientificRecordPertainingToTheAllegationsOfDr.PaulHouser(August2012)(“RESOLVEreport”),availableathttp://www.doi.gov/scientificintegrity/upload/DOI-SI-Case-313-Independent-Report.pdf.

23      SeeRESOLVEReportsandPapers,availableathttp://www.resolv.org/resources/reports-papers(listingRESOLVEreportsdoneforInterior).

24   RESOLVEreport,supra,at4-7.

25   Id.at9.

26U.S.HouseofRepresentatives,CommitteeonNaturalResources,OfficeofOversightandInvestigations:HoldingInteriorWatchdogAccountable,59-66(February21,2013),availableathttp://naturalresources.house.gov/uploadedfiles/oversightreportdepartmentofinterior.pdf.

 

 

investigatorthoughtitwaslikelythatDr.HouserwasterminatedbecauseInteriordisagreedwithhisscientificanalysis.Theinvestigatorsthoughtthe reasonscitedbyInteriorfortheterminationwere“trivial”.Still,Dr.Houserhasnotbeenreinstated,andbothhiswhistleblowerandscientificmisconductcomplaintshave been quietly dismissed.

C.          DepartmentofJustice

Inawidelynoticedrecentdissent,ChiefJudgeAlexKozinskioftheNinthCircuitCourtofAppealscriticizedan“epidemic”ofDepartmentofJusticeprosecutorsfailingtodiscloseexculpatoryscientificinformationtodefendantsandthecourts.UnitedStatesv.Olsen,737F.3d625,626(9thCir.2013)(Kozinski,C.J.,dissentingfromdenialofreh’genbanc),petitionforcertiorarifiledApril24,2014(no.13-1287).InOlsen,theprosecutorfailedtodisclosethatthekeypieceofforensicevidence—labresultsfindingthatpillswerelacedwith poison—wascreatedbyapolicetechnicianwhohadbeenterminatedfor“grossmisconduct”incontaminating manyotherlabsamplesinothercases.Id.at627.ChiefJudgeKozinskiconcludedaboutthescience:“nearlyeverythingthedistrictjudgeunderstood tobetrue was false”.Id.at 628.

But that was not an isolated case.ChiefJudge Kozinskicitedthe“distressinglycommon”phenomenonthathascometolightinrecentyears,involvingmanythousandsofcases,oflabtechniciansfalsifyingtheirresultstosupportaprosecution.Id.at632.AndprosecutorsfromJusticehavetoooftenobliged:“IwishIcouldsaythattheprosecutor’sun-professionalismhereistheexception…[b]utitwouldn’tbetrue”.Id.at631.Insupport,hecited29publishedappellateopinionsfromjustthelastten yearsinwhichcourtsaroundthecountryfoundthat

 

 

prosecutorshadfailedtodiscloseexculpatoryevidence.Id.at631-632.Presumablymanymorecaseshavegoneundiscoveredbecause“alltheincentivesprosecutorsconfrontencouragethemnottodiscoverordiscloseexculpatoryevidence”.Id.at630.

ChiefJudgeKozinskirecognizedthatscientific misconductbyJusticeiscorrosivetooursystemofgovernment,andthatcourtshaveashareoftheresponsibility:

Whenapublicofficialbehaveswithsuchcasualdisregardforhisconstitutionalobligationsandtherightsoftheaccused,iterodesthepublic’strust inourjusticesystem,andchipsawayatthefoundationalpremisesoftheruleoflaw.Whensuchtransgressionsareacknowledgedyetforgivenbythecourts,weendorseandinvite their repetition.

  1. at632.Heconcludedbyurgingcourtsto“sendprosecutorsaclearmessage”byvacatingthe“ill-gotten conviction”. Id.at 633.

 

II.         THEREISALACKOF ACCOUNTABILITYFOR SCIENTIFICMISCONDUCTINGOVERNMENT

  1. Need For Scientific IntegrityPolicyBecomesApparent

Historically,scientificresearchreliedonaself- regulatinghonorsystem.Inthe1980’s,however,thescientificcommunitywasrockedbyaseriesofhighlypublicizedcasesofscientificmisconduct.Asaresult,thefederalgovernmentsetintomotionpoliciesto

 

 

oversee research conduct, and adjudicate researchmisconduct.

In1981,asubcommitteeofCongress,undertheleadershipofthen-CongressmanAlGore,heldhearingsonfraudinbiomedicalresearchinresponsetowidespreadreportsofscientistsfalsifyingtheirdata. Such cases wereexposedin several books.27

Congress,thepublic,andmanyothersinthescientificcommunitywantedoversightoffederally fundedresearch.CongressionalhearingscalledforinvestigationoftheNationalInstitutesofHealth(“NIH”)andotherfederalagencies.Inresponse,variousscientificsocietiesissuedguidelinesforresearchconduct.Thetwofederalagenciesthatsponsorthemostfederallyfundedresearch,NIHandtheNationalScienceFoundation(“NSF”),releasedscientificmisconductpoliciesinthemidtolate1980’s.Bythelate1980’s,theNationalAcademyofScienceswasaskedtoproposeaunifiedfederalpolicy.

In1992,theNationalAcademyrespondedbyreleasingareportthatproposedadefinitionofscientificmisconduct:“fabrication,falsification,orplagiarism,inproposing,performing,orreportingresearch”.28(NSFaddedretaliationagainstwhistleblowerstoitsdefinition.)ThereportrecommendedthatanofficeintheWhiteHouse,the

 

 

27E.g.,WilliamBroadandNicholasWade,BetrayersOfTheTruth:FraudAndDeceitInTheHallsOfScience(1982).

28NationalAcademyofSciences,ResponsibleScience:EnsuringtheIntegrityoftheResearchProcessat27(1992),availableathttp://nap.edu/catalog.php?record_id=1864.

 

 

OfficeofScienceandTechnologyPolicy(OSTP),establishcommongovernment-widedefinitionsandproceduresforconfrontingtheproblem.Aunifiedfederalpolicy,soitseemedatthetime,waswithingrasp.

Eightyearslater,in2000,OSTPfinallyissueda“FederalPolicyonResearchMisconduct”thatinstructedagenciestoimplementthepolicy.Someagenciescomplied; others—including theDepartment of the Interior—did not.

B.          The RockyDevelopmentAndImplementationOf The President’sScientificIntegrityPolicy

InMarch 2009,shortly aftercoming into office,PresidentObamareleasedaMemorandumonScientificIntegrityanddirectedOSTPtoprovidedetailed guidelines within120 days.29

ThePresident’spolicygotofftoarockystart.IttookOSTPeighteenmonthstoreleaseamerefourpagesofguidelines.30Thoseguidelines providedlittleguidance.Insteadofprovidingconcretestan-dardsorcommonproceduresforeverygovernmentagencytofollow,astheNationalAcademyhadrecommendedin1992,theguidelinesgaveindividualagencies     nearly     complete     discretion     by

 

 

29      Presidential      Memorandumon  Scientific     Integrity(March          9,         2009),          available           at           http://www.whitehouse.gov/the-press-office/memorandum-heads-executive-departments-and-agencies-3-9-09.

30   John P. Holdren, Director, Office of Science andTechnologyPolicy,MemorandumonScientificIntegrity,(December     17,             2010),              available                         at         http://www.whitehouse.gov/sites/default/files/microsites/ostp/scientific-integrity-memo-12172010.pdf.

 

 

recommendingthateachagencydevelopitsownpolicies.Andtheguidelinessaidnothingatallabouthowscientificmisconductshouldbeinvestigatedorhowerrors shouldbe corrected.

TheshortcomingsofthePresident’sscientificintegritypolicyandtheOSTPguidelinesaremanifest in each of the cases discussed in Part I.

InthecaseofDrakesBayOysterCompany,effortstogetthefalsifiedscienceintheEIScorrectedhavebeenrejectedorignored.InDecember2012,theParkServiceDirectordismissedaformalcomplaintundertheDataQualityAct31onthegroundthattheSecretary’sdecision“mooted”anyrequirementtocorrectthescienceintheEIS.32AndtheDepartmentofInteriorhasstillnotevendecidedwhether itwill openaformalinvestigation intoaformalscientificmisconductcomplaintDr.GoodmanfiledoneyearagoinMay2013.33(Todate,nearlyeveryoneinvolvedwiththeParkService’sfalsescience in this casehas been promoted.)

Meanwhile,initsbriefstotheNinthCircuitin this case, Interior has continued to cite the EIS’s

 

 

31P.L.106-554§515,114Stat.2763A-153-154(December

21,2000).

32 Letter from Jonathan B. Jarvis, Director, NationalPark Service, to Amber D. Abbasi, counsel for Dr.Goodman          (Dec.         21,         2012),         available          athttp://causeofaction.org/assets/uploads/2013/03/FINAL-Report_Exhibits.pdfatExhibit51(page1003).

33See Emily Yehle, “Rushed USGS Report On OysterFarm Misrepresented Biologist’s Findings”, Greenwire(May     14,               2013),               available                  at           http://www.eenews.net/greenwire/stories/1059981143   (describing complaint).

 

 

conclusionsaboutadverseimpactstoharborsealsasareason why the farmshould be removed.34

InthecaseoftheKlamathRiver damsremovalproject,thewhistleblowerDr.Houserwasfiredandhismisconductcomplaintshavebeendismissedbyaprocessripewithconflictsandlacking independence, transparency,and accountability.

AndintheOlsencase,thegovernmenthassofarnotconcedederror,andtheJusticeprosecutorwhohidtheexculpatoryevidencehas(toourknowledge)notbeenheldaccountable,eventhoughJusticehasascientificintegritypolicythatacknowledgesthattheDepartmentis“entrustedwithawesomeresponsibilities”andcommitsto“pursue,relyuponandpresentevidencethatiswell-foundedinfactand veracity”.35

Unfortunately,thePresident’sscientificintegritypolicyandOSTP’sguidelineshavefailedtoensureindependentinvestigations,accountabilityfor

 

 

34InopposingDrakesBay’smotionforaninjunctionpendingappeal,InteriorquotedtheParkService’sEIS’sconclusionthatDrakesBaycauses“long-termmoderateadverseimpacts”toharborsealsinsupportoftheargumentthat“thepublicinterestinthequalityoftheDrakesEsteroenvironmentweighsagainstaninjunction”.CA9dkt.no.17-1at20-21.AndinInterior’soppositiontoDrakesBay’smotionforastayofthemandatependingcertiorari,Interioragainarguedthat“theParkService’sinterestinprotectingharborsealsinDrakesEsteroduringpuppingseasonisanequitablefactor”supportingclosureofthefarm.CA9dkt.no.105at11-12.

35   DepartmentofJustice,ScientificandResearchIntegrityPolicy,at1,availableathttp://www.justice.gov/open/doj-scientific-integrity-policy.pdf.

 

 

scientificmisconduct,whistleblowerprotections,andcorrectionof egregious errors.

 

III.       COURTS HAVE ANIMPORTANTROLEINENSURINGSCIENTIFIC INTEGRITYIN GOVERNMENT

Twentyyearsago,inDaubert,thisCourtheldthatfederaljudgeshavethe“gatekeeping”roleinensuringthatonly“scientific…knowledge”isusedasexpertevidenceincourt.Daubertv.MerrellDowPharms.,509U.S.579,590,597(1993)(quotingFed.

  1. Evid.R.702).Whatconstitutesscientificknowledge?ThisCourtexplainedthatitisbasednoton“subjectivebelieforunsupportedspeculation”,buton“themethodsandproceduresofscience”(i.e.,thescientificmethod).Id.at590(internalcitationandquotationmarks omitted).

Mostjudgesarenotscientists,andmany openlystrugglewithscreeningscientificknowledgefromtheunscientific.OnremandinDaubert,forexample,(then)JudgeKozinskicandidlyacknowledgedthatthisCourt’sholding“putsfederaljudges in an uncomfortable position”:

[S]cientistsoftenhavevigorousandsinceredisagreementsastowhatresearchmethodologyisproper,whatshouldbeacceptedassufficientprooffortheexistenceofa“fact,”andwhetherinformationderivedbyaparticularmethodcantellusanythingusefulabout the subject under study.

Ourresponsibility…istoresolvedisputesamongrespected,well-credentialedscientistsaboutmatterssquarelywithintheirexpertise,inareaswherethereisnoscientificconsensusas

 

 

towhatisandwhatisnot“good science,”andoccasionallytorejectsuchexperttestimonybecauseitwasnot “derived by the scientific method.”

Daubertv.MerrellDowPharmaceuticals,43F.3d1311, 1315-16 (9th Cir. 1995).

Ratherthanshirkingthisresponsibility,JudgeKozinskivowedto“takeadeepbreathandproceedwith this heady task”.Id.at 1316.

Intheyearssince Daubert,federaljudgeshaveprovencapableofmanagingthistask. JudgeOliver

  1. WangeroftheEasternDistrictofCalifornia,forexample,presidedoverextremelycomplexandcontentiousEndangeredSpeciesActlitigationabouttheDeltasmelt.SanLuis&Delta-MendotaWaterAuth.v.Salazar(the“DeltaSmeltCases”)(E.D.Cal.no.1:09-cv-00407).ThemainissueinDeltaSmeltCaseswaswhetherthesciencejustifiedrestrictingwaterexportsinCaliforniainordertoprotectthesmelt.Atthecloseofthetrialcourtproceedings,JudgeWangerfoundthatthetestimonyofthegovernment’sexpertslackedcredibility.36ToJudgeWanger,thoseexpertsweredrivenbyapolicygoaltorestrictexports,regardlessofwhatthescientificdatashowed.JudgeWangerexpectedbetterfromthegovernment:

I’mgoingtobemakingafindinginthiscaseofagencybadfaith.Thereissimplynojustification.Therecanbenoacceptance by a Court of the United

 

 

36    DeltaSmeltCases,BenchRulingonMotiontoStayPendingAppeal(Sept.16,2011),dkt.no.1056,availableathttp://plf.typepad.com/files/9-16-11-motion-to-stay-final-1.pdf

 

 

Statesoftheconductthathasbeenengagedininthiscasebythesewitnesses.

And I am going to make a very clear andexplicitrecordtosupportthatfindingofagencybadfaithbecause,candidly,theonlyinferencethattheCourtcandrawisthatitisanattempttomisleadandtodeceivetheCourtintoacceptingwhatisnotonlynotthebestscience,it’snotscience.37

JudgeWangerstressedthatthegovernmenthas a “duty” to use good science in its decisions:

[T]heUnitedStates,asasovereign,hasadutynotonlyindealingwiththeCourt,butindealingwiththepublictoalwaysspeak thetruth,whether itisgoodorbad.It’sneveraboutwinningorlosing,it’s always about doing justice.38

JudgeWangersawpasttheagency’spolicygoalsandtheflawedtestimonyofitsscientistsandruledthatthesciencedidnotsupporttheproposednewrestrictions,showingtheextremeimportanceofthe court’s role in scientific integrity.

Inthepresentcase,however,thepanelthrewupitshandsatthescience.Itproclaimedthatit lackedjurisdictiontoreviewpetitioners’claimsthatSecretarySalazar’sdecisionwasanabuseofdiscretionbecauseitwasbased,inpart,onfalsescience.PetitionforCertiorariat11-12.Andit createdaruleof“harmlesserror”inwhichagencies

 

 

37Id.at17:15-25.

38Id.at33:18-22.

 

 

canavoidresponsibilityforscientificmisconductsimplybyassertingthattheirdecisionsarenotbasedon flawed data. Id.at 32-33.

Thepanel’sdecision,ifallowedtostand,createsadangerous precedent.Ifcourtslack jurisdictiontoreviewclaimsthatagencydecisionsarebasedonscientificmisconduct,andifcourtsare requiredtoforgivescientificmisconductwheneveranagencymakesassurancesthatthemisconductwasimmaterial,thenagenciesarelikelytofeelless constrainedaboutfalsifyingscientificinformationtothecourtsandthepublic.Thisdecisionislikelytoresultinmorescientificmisconductingovernmentdecisions,and thus undermine our democracy.

TheSupremeCourtshouldtakethiscaseto makeclearthatthecourtscan,andshould,remedyscientificmisconduct.SeeGeneralElectric,Inc.v.Joiner,522U.S.136,146(1997)(courtscanrejectscientificclaimswhen“thereissimplytoogreatananalyticalgapbetweenthedataandtheopinionproffered”).Scientificmisconductisnotqualitativelydifferentfromthekindsofissuescourtshavenotroubleadjudicatinginothercaseseveryday.Ineventhemostcomplexbreachofcontractcases,forexample,courtsareroutinelyaskedtodetermine whetherapartyhasmadeamaterialmisrepresentationofthefacts.Inanalyzingthesetypesofclaims,courtscananddocomparetheunderlyingfactsagainsttherepresentationtoassesswhether they are consistent.

Thescientificmisconductclaimhereisreallynodifferent.ThefactsarethattheinternalanalysisbytheParkServiceanditsoutsideexpertwasthat thereisnoevidencethattheoysterfarmdisturbsharborseals.SeePartI.Aabove.Andyettherepresentation in the EIS, relied upon by the

 

 

Secretaryinmakinghisdecision,wasthattheoysterfarmcausessignificantadverseimpactstoharborseals.Thiswasnotacase wherethecourtwasaskedtochoosebetweenconflictingexpertopinions.Itisnotaboutunreliabledataorharmlesserrors.Thereisnothing“harmless”aboutaneight-yearpatternofParkServicemisrepresentationsaboutahistoricfamilyfarm.Thisisacasewheretheagencysimply falsifiedthescience,andthepanelshouldnothaverefusedto say so.

 

CONCLUSION

The petitionshould be granted.

 

Respectfully submitted,PETERS.PROWS

Counsel of Record

BRISCOEIVESTER&BAZELLLP

155 SansomeStreet,

Seventh Floor

San Francisco, CA 94104(415) 402-2700

pprows@briscoelaw.net

05-19-14 25 “Friends” File 4 Briefs Supporting DBOC effort to have Supreme Court hear its case

Twenty-Five “Friends” File Supreme Court Briefs Supporting

Drakes Bay Oyster Company

Farmers, Environmentalists, Scientists, Chefs, and Preservationists All Support Historic Oyster Farm

 

INVERNESS, CALIF. — Twenty-five “friends” of Drakes Bay Oyster Company have filed four significant amicus briefs in support of the farm’s efforts to have the U.S. Supreme Court hear its case. Together, the briefs make compelling arguments for why the Supreme Court should take the case.

 

At stake is whether the government, in making countless everyday decisions, can be taken to court when it abuses its power, misinterprets the law, or misrepresents science. The U.S. Court of Appeals for the Ninth Circuit held that a federal court does not have jurisdiction to review a discretionary agency decision for abuse of discretion. Drakes Bay Oyster Company petitioned the U.S. Supreme Court on April 14, 2014 for a writ of certiorari to review that judgment.

 

Elder environmentalists and agriculturalists support aquaculture

 

Former California Assemblyman William T. Bagley and former Congressman Paul Norton “Pete” McCloskey (co-author of the Endangered Species Act and co-chair of the first Earth Day) are among the elder environmentalists supporting the oyster farm’s petition. Also joining the brief are Patricia Unterman, chef-owner of Hayes Street Grill in San Francisco; chefs and owners of many of West Marin’s farm-to-table restaurants; and a host of agriculturalists and agriculture associations. The brief argues the importance of aquaculture and agriculture in the San Francisco North Bay, and for the support and development of innovative, ecologically sound and sustainable agriculture practices consistent with the purposes of the National Environmental Policy Act [NEPA].

 

Rural communities dependent on fair federal permitting

 

In its amicus brief, the Pacific Legal Foundation and California Cattlemen’s Association point out that roughly half of the land in the western United States is federally owned, and that grazing is one of the largest uses of federal lands. Together the Ninth and Tenth Federal Circuit courts each govern about half of all federal grazing permits, yet the two circuits are not aligned on fundamental questions of law relating to renewal of grazing permits, including the application of NEPA, and judicial review under the Administration Procedure Act [APA]. The brief argues that the high court should take Drakes Bay’s case in order to resolve this issue, since “a very large number of rural communities are dependent on federally permitted grazing for employment, commerce, and tax revenue to support public services.”

 

Scientific misconduct undermines our democracy

 

Two preeminent scientists, Dr. Corey Goodman (elected member, National Academy of Sciences) and Dr. Paul Houser (former Scientific Integrity Officer, Bureau of Reclamation, Department of the Interior, and Professor, George Mason University), filed a brief to argue that the Supreme Court should take this case as an opportunity to make clear that courts have an important role in ensuring scientific integrity in government. When he came into office, President Obama made clear that “to undermine scientific integrity is to undermine our democracy.” Yet for Drakes Bay Oyster Company, and too many other cases, the government has falsified and abused science to further predetermined ideological agendas. The Ninth Circuit held that a federal court does not have jurisdiction to reject false science, whereas the Supreme Court has historically held that they do. This brief asks the Supreme Court to reaffirm their commitment to the integrity of science both in government decision-making and as presented to federal courts.

 

Ninth Circuit decision endangers historic resources

 

The Monte Wolfe Foundation argues that the Ninth Circuit’s ruling hampers the protection of historic and cultural resources, writing: “the ruling of the Ninth Circuit, that no NEPA review is needed where agency action seeks to restore a pristine state of nature, appears unique to the Ninth Circuit. It means that historic resources on Ninth Circuit federal wildlands are endangered because they cannot depend on NEPA for protection. Absent other protection, they may be – indeed, given [the Ninth Circuit decision] Drakes Bay Oyster’s reading of the intent of NEPA, should be – summarily removed.”

 

Oyster farm remains open for now

 

At issue is former Secretary of Interior Ken Salazar’s denial 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 was that the oyster farm was always supposed to stay. The Secretary’s decision was informed by a falsified environmental report. 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.

 

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 and www.savedrakesbay.com

For Immediate Release

May 19, 2014

Contacts: Tina Walker

Office: 415.227.9700

Cell: 650.248.1037

Email: tina@singersf.com

 

Peter Prows

Counsel for Drakes Bay Oyster

Email: pprows@briscoelaw.net

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

04-17-14 Pt Reyes Light: In draft ruling, state told to backtrack on oyster farm orders

In draft ruling, state told to backtrack on oyster farm orders

04/17/2014

A Marin judge issued a tentative ruling on Tuesday that the California Coastal Commission failed to comply with state environmental law when it issued enforcement orders to Drakes Bay Oyster Company without undertaking a review of potential harmful impacts. Judge Roy Chernus also ruled that the commission abused its discretion last year by excluding from the administrative record documents the oyster farm submitted, also a violation of the California Environmental Quality Act.

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.

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.

 

04-14-14 Attorney asks: “Are federal agencies immune from judicial review of their decisions?”

Drakes Bay Oyster Company seeks review in US Supreme Court

Today, Drakes Bay Oyster Company filed its petition for certiorari in the United States Supreme Court, after the Ninth Circuit Court of Appeals decided that the federal government’s decision to shut down the oyster farm is immune from judicial review.

The petition raises a fundamental question that strikes at the heart of the administrative state: exactly how often are federal agencies immune from judicial review of their decisions?  The Administrative Procedure Act authorizes review in federal courts of federal agency decisions when they are arbitrary, capricious, abusive of the agency’s discretion, or otherwise not in accordance with law.  But many courts across the nation have held that they have no jurisdiction to review agency decisions unless Congress specifically provides statutory guidelines for the exercise of agency discretion.  This legal perspective boils down to the proposition that Congress can (and frequently does) delegate unlimited power to executive agencies to make permitting and other regulatory decisions for any reason or no reason, subject to no substantive or even procedural safeguards for citizens and their liberty and property.

Fortunately, many other federal courts have ruled the opposite: that courts can and must review whether discretionary agency actions are arbitrary, capricious, abusive, or otherwise contrary to law.  The oyster farm’s petition to the Supreme Court clearly identifies the scope of this ongoing conflict within the federal courts of appeals, making this a very good opportunity for the Supreme Court to resolve this fundamental question of executive accountability and availability of judicial review.

You can learn more about the oyster farm’s fight for justice from our video http://www.youtube.com/watch?v=4j2Om3W-Ofo

 

Or listen to our January 15 podcast.

04-14-14 Drakes Bay Oyster Files Petition for Writ of Certiorari in U.S. Supreme Court

April 14, 2014

 Contacts: Tina Walker

Office: 415.227.9700

Cell: 650.248.1037

Email: tina@singersf.com

 

Peter Prows

Counsel for Drakes Bay Oyster

Email: pprows@briscoelaw.net

 

 

 Drakes Bay Oyster Files Petition for Writ of Certiorari in U.S. Supreme Court

Petition asks high court to review Ninth Circuit decision


INVERNESS, CALIF. — Drakes Bay Oyster Company has petitioned the U.S. Supreme Court for a writ of certiorari to review the judgment of the United States Court of Appeals for the Ninth Circuit in its case.

 

At issue is former Secretary of Interior Ken Salazar’s denial 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.  The Ninth Circuit held that a federal court does not have jurisdiction to review a discretionary agency decision for abuse of discretion.  At stake is whether the government, in making countless everyday decisions, can be taken to court when it abuses its power.

 

“If this judgment is not overturned, government agencies will have the power to deny a permit to any individual or business for any reason, without judicial review,” said Kevin Lunny, owner of Drakes Bay Oyster Company.  “Citizens must have recourse in the face of an arbitrary and capricious decision.”

 

The small, family-owned farm has been in a heated legal battle with federal regulators for its survival.  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.

 

One reason the Supreme Court might want to hear the case is to resolve fifteen circuit splits on three issues—that is, issues 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 important 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). Read the Petition for Writ of Certiorarihere.

 

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 and www.savedrakesbay.com

 

04-14-14 US Supreme Court Cert Petition Press Release With Links

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