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.
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Comments
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.
dahkota,
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.
http://www.americanbar.org/content/dam/aba/migrated/intelprop/magazine/L...
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.
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?
You are making 'assumptions' but are asking us for hard facts.
Go away.
Rick, you said you had proof. Where is it?
I am not going anywhere. Kurt may save you by ending this thread, but the reality will remain that you make wild accusations and claims but seldom back them up and as long as you do that, I am going to call you out.
I say the Roberts court is partisan. Most of the nation agrees with me - the progressives because they hate it and the conservatives because they love it.
YOU asked for proof. That was the funniest thing I've ever heard, and if you can't step back from your partisan point of view to acknowledge it then no amount of discussion or anything could make a difference in your partisan mind.
I'm walking away, to avoid this piddling match so that others, who care more about this topic than I, can discuss it without Kurt having to close it for you and me.
Sorry Kurt.
Yes he believes that the Constitution should rule. The progressives don't. Which is why I phrased my question (on the other thread) as I did, ie when did his partisanship have him make a ruling contrary to the Constitution?
Another baseless accusation.
Statistics (what you originally presented and based your argument on) show that the 9th circuit is not overturned/reversed more than any other circuit. So, you make up statistics to prove something I have already proven untrue and the statistics you made up are completely unrelated to the point. And yet, you demand others provide you with 'facts.' The problem, ec, is that providing you with facts dooes not change your mind about your beliefs.
BTW - both "progressives" and (I guess) non-progressives base their opinions on their interpretations of the Constitution. For you to argue that one interpretation is more correct than another because you agree with it is hilarious.
Back to the the article, having read the 9th's opinion and the dissent, I don't believe Scotus will take up this case. There is no consitutional question involved.
I did not make up a thing and you have not proven a thing untrue. Quite the contrary. Perhaps you have better numbers than the American Bar Association.
http://www.americanbar.org/content/dam/aba/migrated/intelprop/magazine/L...
For the record, it should be "en banc" (the bench in French), not "en blanc" (in white in French) unless of course the lawyers think they have better chances if the judges change their wardrobe color. :)
EC, that article is from 2010. As I stated, during the most recent term, 9th circuit was 5th highest overturned. Look it up.
Here are the statistics you made up, that have no relation to the topic at hand:
You even admit that you are assuming within the 'statistic' itself. (BTW - only 1.1% are audited. Those chosen for audit have problems; they are not chosen randomly, much like the court cases. Look it up.)
dahkota,
That was a hypothetical example. Its starts with the word "if". It was making the point that what is reviewed is a sampling of the whole. The numbers themself were insignificant.
The reality is, quite contrary to your claim, the Ninth Court is overturned at a meaningfully higher rate than virtually any other Circuit Court and the bar association numbers show that.
Let's just do away with courts and appoint ec as magistrate general.
I have a better idea. Lets appoint/elect judges that will follow the Constitution. We already have one "magistrate general" that has a pen and telephone and thinks that is all he needs.
Yep, seems like the mob is ganging up on you, ecbuck. Following the Constitution, what a concept. Activism gone over the line at Point Reyes. Leave the Oystermen alone.
How does this PRNS strategy line up with the Constitution?
http://www.ptreyeslight.com/article/plan-get-rid-ranchers-0
ec, you amuse me to no end. Thank you for that.
And trailadvocate, I'm guessing either the constitution changes meaning or SCOTUS changes their interpretation. There are no other explanations for the reversals of their own cases over the years. So which is it?
There is no constitutional question in this case. The NPS director had a decision to make. He made it. Some people didn't like it. No consitutional question involved, which is why it is doubtful that SCOTUS will get involved. But if you find one, please enlighten me.
BTW - the article sited above is incorrect.
But the farm had the same deal as all the surrounding ranches: a renewable lease and decades-old assurances from the federal government that they are part of the agricultural heritage the seashore was created to protect.
The oyster farm had no such deal. The buyers of the oyster farm were repeatedly told their lease would not be renewed. In 2005, before they purchased the farm, they were told that NPS would not renew their lease in 2012. They chose to take their chances. Documentation shows that, despite the warning (and forewarning) they chose to purchase the business. Congress reitereated their position: NPS should make the final decision. NPS did, and did not renew the lease. There is nothing illegal nor unconstitutional about the decision, as the 9th circuit found.
Doesn't have to be a Constitutional issue.
http://www.uscourts.gov/educational-resources/get-informed/supreme-court...
" The Court has appellate jurisdiction (the Court can hear the case on appeal) on almost any other case that involves a point of constitutional and/or federal law."
But I do agree it is unlikely to be heard given the extremely small percentage of cases that ask to be heard that actually get heard. Doesn't make the decision right, but it would make it final. If it does get heard, I like the farm's chances given the Ninth Circuits dismal record at the Supreme Ct.