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Johanna Wald’s Blog

Court of Appeals Rules Against Oyster Company, Protecting West Coast's Only Marine Wilderness Area

Johanna Wald

Posted September 9, 2013

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September is “Wilderness Month” and so it is fitting that the 9th U.S. Circuit Court of Appeals gave wilderness lovers a celebratory gift on the 49th anniversary of the Wilderness Act, September 3rd. The gift came wrapped in a decision in the lawsuit brought by the Drakes Bay Oyster Company challenging a determination made by then-Secretary of the Interior Ken Salazar to allow the commercial oyster farming permit at Drakes Estero to expire last November, at the end of its term. DBOC asked a federal District Court to issue a preliminary injunction allowing it to continue its operation and, when the request was denied, the company appealed to the 9th Circuit Court.


Drakes Estero is a vital estuary within California’s Point Reyes National Seashore and was designated a wilderness area by Secretary Salazar in December 2012. As promised by Congress almost 40 years ago, Drakes Estero can now receive full wilderness protection that will enhance opportunities for recreation, wildlife viewing, and public access to a unique marine environment near San Francisco and nine Bay Area counties, collectively home to more than nine million people. Until then, DBOC’s commercial operations under a 40 year lease on publicly-owned land forestalled the Estero’s inclusion in the National Wilderness Preservation System which will ensure its preservation and protection going forward. DBOC’s lease that allowed ongoing damage to the natural environment was allowed to expire last November as provided by Congress.


Two members of the three-judge panel affirmed the district court opinion in a thoughtful and comprehensive opinion written by well-respected Judge M. Margaret McKeown. In her opinion, Judge McKeon wrote: “when Drakes Bay purchased the property in 2005, it did so with eyes wide open to the fact that the permit acquired from its predecessor owner was set to expire just seven years later, in 2012.” Her opinion also noted that the company was informed before the purchase that the permit was not going to be renewed.


The opinion also rejected DBOC’s claim that the Secretary violated legislation passed in 2009 that gave the Interior Secretary discretion to issue a new permit. And, it described as “remote” the likelihood of DBOC’s winning on its main argument – that the Secretary violated the National Environmental Policy Act of 1969. Additionally, it laid to rest a major claim of the company – that the scientific data behind the Secretary’s decision are wrong. As the court notes, “Drakes Bay puts considerable stock in its claims that the final Environmental Impact Statement was based on flawed science. Nothing in the record suggests that Drakes Bay was prejudiced by any shortcomings in the final soundscape data. DBOC sent the Secretary its scientific critique before he issued his decision.” Lastly, the majority opinion responded in detail to the arguments laid out in the dissenting opinion, noting, among other things, that the dissent advanced a legal theory that DBOC had never raised.


The appellate court decision does not end the DBOC lawsuit: DBOC has already announced that it will ask for a rehearing en banc, before a larger panel of the 9th Circuit Court. In addition, the decision addresses a procedural issue – whether the company is entitled to a preliminary injunction, not the merits of its challenge to the Secretary’s decision. It is nonetheless an important decision for Drakes Estero and wilderness.

First, it marks the second time that a court has evaluated the DBOC’s substantive claims and determined that its suit is unlikely to be successful. Second, the facts set out in the opinion should finally set the record straight about the Drakes Bay Oyster Company’s lease terms and the decision by the Secretary of the Interior. As I have said from the beginning, a deal is a deal – particularly in this case when, as the court’s opinion makes crystal clear, DBOC clearly understood the terms of the deal. Lastly, the court’s opinion left standing not just the Secretary’s decision to let the company’s permit expire, but also the designation of Drakes Estero as the West Coast’s only marine wilderness area. Almost 50 years after passage of the Wilderness Act, California finally has a marine wilderness area to add to the long list of terrestrial wilderness areas that protect and preserve some of our state’s most outstanding natural resources.

For now, DBOC is still allowed by law to operate. However, every day they do so increases both the likelihood and degree of long-term damages to the Estero’s ecosystem. We will continue our vigorous efforts to bring about the end of these harmful operations as soon as possible, a closure that the Interior Department and two federal courts have now upheld.


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Jules MichelSep 9 2013 03:28 PM

Congratulations on another step taken towards completing the creation of this shoreline wilderness area as it was intended to be.

Lawrie MottSep 11 2013 05:51 PM

A well deserved judicial victory. And the photos visually demonstrate the negative environmental impacts of DBOC.

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