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Point Reyes National Seashore Oyster Farm To Take Case To U.S. Supreme Court


Owners of an oyster company that can't get their lease at Point Reyes National Seashore renewed are pledging to take their case to the U.S. Supreme Court.

Drakes Bay Oyster Co. owner Kevin Lunny, who was sure the full 9th U.S. Circuit Court of Appeals would hear his case against the Interior Department, made that announcement late Tuesday after the 9th Circuit refused to take up the case.

“We believe the Court’s decision not to rehear our case is incorrect, and that the dissenting opinion from Judge (Paul) Watford will prevail,” said Mr. Lunny in a prepared statement. “Because of that, we are requesting our case be heard by the U.S. Supreme Court. We are grateful for our thousands of supporters, partners, customers and patrons that have supported our small, family-owned farm for four generations. We remain committed to succeeding in our fight to remain open and serve our community.”

The matter revolves around then-Interior Secretary Ken Salazar's decision in November 2012 not to extend the company's lease to farm oysters in the national seashore's Drakes Estero. In 1976, when Congress passed the Point Reyes National Seashore Wilderness Act, it directed that the estero fall within officially designated wilderness once all non-conforming uses were removed from its waters. The oyster company, whose lease ran out in November 2012, was the last non-conforming use.

Drakes Bay sued over Mr. Salazar's decision, arguing that it was arbitrary and capricious and violated both the federal government's Administrative Procedures Act and the National Environmental Policy Act.

Courts have refused to agree with the company, however.

Last February, a U.S. District Court judge refused to issue an injunction that would have allowed the company to continue farming oysters while pursuing its lawsuit against the federal government. Mr. Lunny's attorneys then asked the 9th Circuit to enjoin the Park Service. But last September, in a 2-1 ruling, a three-judge panel from the 9th Circuit also refused to grant the request.

That prompted Drakes Bay to request an "en blanc," or full court, hearing of its request. On Tuesday that request was denied.


This will finally settle it once and for all. Maybe.

And given the Ninth Circuit's record, I like their chances.

EC, you are funny.

The 9th circuit had @12K cases last year. 8 overturned by supreme court? Great record. My guess is that SCOTUS won't even take this up.


The total number of cases heard is a meaningless number since a vast majority of those can't be reviewed either because of legal or time constrainsts on the Supreme Ct. The percentage reversed is the signficant number and this court is consistently among the most overturned of the circuits.

SCOTUS is presented with about 10,000 cases per year. They chose an average of 80, or less than one percent. Less than one percent of one percent of 9th circuit cases are heard and/or overturned by SCOTUS.

The total number of 9th circuit cases overturned by SCOTUS is meaningless when the total count of cases overturned by SCOTUS in general is considered.In the most recent Court term, 4 circuits were overturned 100% (9th was overturned 86%, tied for 5th most). In fact, SCOTUS has a 75% overturn rate for all cases they hear. Puts it all into presepective, doesn't it? SCOTUS doesn't need to hear a case they agree with - that is their point.

Less than one percent of one percent of 9th circuit cases are heard and/or overturned by SCOTUS

Not because they don't warrant being heard or overturned but because SCOTUS lacks the jurisdiction or time to review every case. What goes to them is a sampling of what the court does. If the IRS only audits 2% of the tax filers but finds 80% have errors are we to assume that the other 98% of filers have no errors? No, quite the contrary, its probably a good assumption that the other 80% of the other 98% are flawed as well.

Proving the old adage about what you get with an assumption.

Really Rick? You have proof that the error rate of those not audited is materially different than those that are?

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