Drakes Bay Oyster Company v. Sally Jewell

FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

DRAKES BAY OYSTER COMPANY; No. 13-15227

KEVIN LUNNY,

Plaintiffs-Appellants, D.C. No. 4:12-cv-06134- v. YGR

SALLY JEWELL, in her official OPINION capacity as Secretary, U.S. Department of the Interior; U.S.

DEPARTMENT OF THE INTERIOR; U.S.

NATIONAL PARK SERVICE;

JONATHAN B. JARVIS, in his official capacity as Director, U.S. National Park Service, Defendants-Appellees.

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 Before: M. Margaret McKeown and Paul J. Watford, Circuit Judges, and Algenon L. Marbley, District Judge.*

Opinion by Judge McKeown; Dissent by Judge Watford

SUMMARY**

Environmental Law / Preliminary Injunction

The panel affirmed the district court’s order denying a preliminary injunction challenging the Secretary of the Interior’s discretionary decision to let Drakes Bay Oyster Company’s permit for commercial oyster farming at Point Reyes National…

This appeal, which pits an oyster farm, oyster lovers and well-known “foodies” against environmentalists aligned with the federal government, has generated considerable attention in the San Francisco Bay area. 1 Drakes Bay Oyster Company (“Drakes Bay”) challenges the Secretary of the Interior’s discretionary decision to let Drakes Bay’s permit for commercial oyster farming expire according to its terms. The permit, which allowed farming within Point Reyes National Seashore, was set to lapse in November 2012. Drakes Bay requested an extension pursuant to a Congressional enactment that provided, in relevant part, “notwithstanding any other provision of law, the Secretary of the Interior is authorized to issue a special use permit with the same terms and conditions as the existing authorization.” Department of the Interior Appropriations Act, Pub. L. No. 111-88, § 124 , 123 Stat. 2904 , 2932 (2009) (“Section 124”). After the Secretary declined to extend the permit, Drakes Bay sought a preliminary injunction, arguing that the Secretary’s decision violated the authorization in Section 124, the National Environmental Policy Act (“NEPA”), 42 U.S.C. § 4321 et seq., and various…

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 980. 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…