Metropolitan News-Enterprise


Wednesday, January 15, 2014


Page 1


Panel Says U.S. May Force Closure of Oyster Farm


By MICHAEL J. PEIL, Staff Writer


The secretary of the interior did not violate a legal mandate by choosing not to extend a permit, pursuant to the Department of the Interior Appropriations Act §124, which authorizes but does not require the secretary to extend land use permits, the Ninth Circuit Court of Appeals held yesterday

Judge M. Margaret McKeown, writing for the court, affirmed the district court’s order denying a preliminary injunction sought by Drakes Bay Oyster Company, which would have allowed it to continue its oyster farming operations at Point Reyes National Seashore. 

After the secretary declined to extend the permit, Drakes Bay argued that the decision violated the authorization provided by §124.

The court decided that it had jurisdiction to consider whether the secretary of the interior was in violation of the legal mandate granted in §124 through the use of its authority.

The court held that it did not have jurisdiction, however, to review the substance of the secretary’s decision because Congress had granted most of the decision authority to the secretary’s discretion. The secretary was not in violation of any legal mandate, the court decided, because by enacting §124 Congress granted the secretary the authority to grant or deny the extension of special use permits.

The case arose from the use of land that Johnson Oyster Company sold to the United States in 1972. The company retained a 40-year reservation of use and occupancy in Drakes Estero.

In 2004, Drakes Bay purchased the assets of Johnson, which included the reservation of use and occupancy. The reservation stated that at the end of the reserved term, a special permit could be issued for continued occupancy.

The reserved term was to run out on Nov. 30, 2012, so Drakes Bay requested the issuance of a special permit so that it might continue its professional operations. The secretary declined to extend the permit, thereby turning the land into a designated wilderness.

Drakes Bay sought a preliminary injunction, arguing that the secretary’s decision violated §124’s authorization along with various other federal regulations.

On appeal, the court held that§124 authorized, but did not require, the extension of permits, so the secretary’s decision not to further Drakes Bay’s land use was not in violation of law.

McKeown, declining to examine the substance of the secretary’s decision, said:

“Section 24 affords no basis for us to review the substance of the Secretary’s decision…[but to] the extent the Secretary’s decision can be evaluated against the statutory requirements cited by Drakes Bay, Drakes Bay is unlikely to prevail in showing the decision was arbitrary and capricious, an abuse of discretion, or in violation of the law.”

The court also declined to order a preliminary injunction, which would have allowed Drakes Bay to continue its operations, because the company could not raise serious questions about the secretary’s decision, or show that the balance of equities favored such an order.

McKeown said:

“The public benefits both from the enjoyment of protected wilderness and of local oysters….This factor does not tip to Drakes Bay.”

McKeown was joined by visiting Judge Algenon Marbley of the Southern District of Ohio.

In a dissenting opinion, Judge Paul J. Watford wrote:

“The erroneous denial of a preliminary injunction far outweighs the harm the government will suffer from an erroneous grant of such relief. The government will suffer only modest harm if oyster farming’s eighty-year history in the Estero continues a bit longer.”

The case is Drakes Bay Oyster Company v. Jewell, 13-15227


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