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Drakes Bay Oyster Company Seeks U.S. Supreme Court Review Of Its Lease At Point Reyes National Seashore


Owners of a decades-old oyster farming operation at Point Reyes National Seashore have asked the U.S. Supreme Court to decide whether former Interior Secretary Ken Salazar erred in not renewing their lease.

The request likely is the final step Drakes Bay Oyster Co. can take in its bid to continue growing oysters at the seashore's Drakes Estero. Previous bids before the U.S. District Court and 9th U.S. Circuit Court of Appeals have been turned back by the judges.

In its petition to the Supreme Court for a writ of certiorari, the company's lawyers raise three questions:


* Whether federal courts lack jurisdiction under the Administrative Procedure Act to review an agency action that is arbitrary and capricious or an abuse of discretion when the statute authorizing the action does not impose specific requirements governing the exercise of discretion.

* Whether federal gencies can evade review of their actions under the National Environmental Policy Act by designating their actions as "conservation efforts" when the records shows that the action will cause significant adverse environmental effects.

* Whether an agency commits prejudicial error when it makes false statements in an environmental impact statement, and then asserts that it would have made the same decision even if the false statements had been corrected.

“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,” Kevin Lunny, the oyster company's owner, said in a release Monday. “Citizens must have recourse in the face of an arbitrary and capricious decision.”

In January the judges of the 9th Circuit Court of Appeals declined to reconsider a ruling by a three-judge panel of that court. In that ruling in September 2013, the 2-1 majority ruling held that, "Drakes Bay’s disagreement with the value judgments made by the Secretary is not a legitimate basis on which to set aside the decision. Once we determine, as we have, that the Secretary did not violate any statutory mandate, it is not our province to intercede in his discretionary decision."

When Drakes Bay bought out the farm's previous owners in 2005, the existing lease for the operation ran through November 2012. While Mr. Lunny was optimistic he could obtain a lease renewal from the National Park Service, then-Interior Secretary Salazar declined that request in November 2012, saying Congress long had intended for Drakes Estero where the oyster farm was based to become part of the Philip Burton Wilderness.

As soon as Mr. Salazar rendered his decision, the Park Service officially designated the estero as wilderness, something envisioned when the Point Reyes National Seashore Wilderness Act was passed in 1976. The wilderness legislation that set aside 25,370 acres of the national seashore as wilderness cited another 8,003 acres encompassing the estero that would 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" -- and the oyster operation was seen as being incompatible with such a designation.

Drakes Bay's lawyers 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.

While the 9th Circuit has declined to have its entire panel of judges review the matter, it has allowed Drakes Bay to remain open while it takes its case to the Supreme Court.

Drakes Bay's attorneys believe the Supreme Court would want to review the case because there have been "fifteen circuit splits" on issues relevant to the case. That is, they say, 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, the attorneys add are on important issues: jurisdiction to review agency actions for abuse of discretion, applicability of the National Environmental Policy Act, and prejudicial error under the Administrative Procedure Act.

You can find the oyster company's 223-page petition here.

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