Drakes Bay Oyster Co. v. Jewell

• Citation: 747 F.3d 1073
• Decision Date: 14 January 2014
• Docket Number: No. 13–15227.,13–15227.
• Parties: DRAKES BAY OYSTER COMPANY; Kevin Lunny, Plaintiffs–Appellants, v. Sally JEWELL, in her official 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.
• Court: United States Courts of Appeals. United States Court of Appeals (9th Circuit)

747 F.3d 1073

DRAKES BAY OYSTER COMPANY; Kevin Lunny, Plaintiffs–Appellants,

v.Sally JEWELL, in her official 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.

No. 13–15227.

United States Court of Appeals, Ninth Circuit.

Argued and Submitted May 14, 2013.

Filed Sept. 3, 2013.

Amended Jan. 14, 2014.

Amber D. Abbasi (argued), Cause of Action, Washington, D.C.; John Briscoe, Lawrence S. Bazel, and Peter S. Prows, Briscoe Ivester & Bazel LLP, San Francisco, CA; S. Wayne Rosenbaum and Ryan Waterman, Stoel Rives LLP, San Diego, CA; Zachary Walton, SSL Law Firm LLP, San Francisco, CA for Plaintiffs–Appellants.

J. David Gunter II (argued), Trial Attorney, United States Department of Justice, Washington, D.C.; Ignacia S. Moreno, Assistant Attorney General, Stephen M. Macfarlane, Joseph T. Mathews, E. Barrett Atwood, and Charles Shockey, Trial Attorneys, United States Department of Justice, Sacramento, CA, for Defendants–Appellees.

Judith L. Teichman, San Francisco, CA, for Amici Curiae Alice Waters, Tomales Bay Oyster Company, Hayes Street Grill, Marin County Agricultural Commissioner, Stacy Carlsen, the California Farm Bureau Federation, the Marin County Farm Bureau, the Sonoma County Farm Bureau, Food Democracy Now, Marin Organic, and the Alliance For Local Sustainable Agriculture.

Trent W. Orr and George M. Torgun, Earthjustice, San Francisco, CA, for Amici Curiae Environmental Action Committee of West Marin, National Parks Conservation Association, Natural Resources Defense Council, Save Our Seashore, and the Coalition of National Park Service Retirees.

Appeal from the United States District Court for the Northern District of California, Yvonne Gonzalez Rogers, District Judge, Presiding. D.C. No. 4:12–cv–06134–YGR.

Before: M. MARGARET McKEOWN and PAUL J. WATFORD, Circuit Judges, and ALGENON L. MARBLEY, District Judge.^*

ORDER

The opinion filed on September 3, 2013, appearing at 729 F.3d 967, is hereby amended. An amended opinion is filed concurrently with this order.

With these amendments, Judge McKeown voted to deny the petition for rehearing en banc and Judge Marbley so recommends. Judge Watford voted to grant the petition.

Amicus Curiae Catherine Rucker's request for judicial notice in support of her brief opposing the petition for rehearing en banc is DENIED.

The full court has been advised of the petition for rehearing en banc and no judge has requested a vote on whether to rehear the matter en banc. Fed. R.App. P. 35.

The petition for rehearing en banc is DENIED. No further petitions for en banc or panel rehearing shall be permitted.

OPINION

McKEOWN, Circuit Judge:

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 federal regulations.

We have jurisdiction to consider whether the Secretary violated “constitutional, statutory, regulatory or other legal mandates or restrictions,” Ness Inv. Corp. v. U.S. Dep't of Agr., Forest Serv., 512 F.2d 706, 715 (9th Cir.1975), and we agree with the district court that Drakes Bay is not likely to succeed in proving any such violations here. Through Section 124, Congress authorized, but did not require, the Secretary to extend the permit. Congress left the decision to grant or deny an extension to the Secretary's discretion, without imposing any mandatory considerations. The Secretary clearly understood he was authorized to issue the permit; he did not misinterpret the scope of his discretion under Section 124. In an effort to inform his decision, the Secretary undertook a NEPA review, although he believed he was not obligated to do so. Nonetheless, any asserted errors in the NEPA review were harmless.

Because Congress committed the substance of the Secretary's decision to his discretion, we cannot review “the making of an informed judgment by the agency.” Id. In letting the permit lapse, the Secretary emphasized the importance of the long-term environmental impact of the decision on Drakes Estero, which is located in an area designated as potential wilderness. He also underscored that, 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. 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. We, therefore, affirm the district court's order denying a preliminary injunction.

Background

I. The Point Reyes National Seashore

Congress established the Point Reyes National Seashore (“Point Reyes”) in 1962 “in order to save and preserve, for purposes of public recreation, benefit, and inspiration, a portion of the diminishing seashore of the United States that remains undeveloped.” Act of Sept. 13, 1962, Pub.L. No. 87–657, 76 Stat. 538, 538. The area is located in Marin County, California, and exhibits exceptional biodiversity. Point Reyes is home to Drakes Estero, a series of estuarial bays.

The enabling legislation for Point Reyes gave the Secretary of the Interior administrative authority over the area and directed him to acquire lands, waters, and other property and interests within the seashore. Id. at § 3(a), 76 Stat. at 539–40. In 1965, the State of California conveyed to the United States “all of the tide and submerged lands or other lands” within Point Reyes, reserving certain minerals rights to itself and reserving the right to fish to Californians. 1965 Cal. Stat. 2604–2605, § 1–3.

In the Point Reyes Wilderness Act of 1976, Congress designated certain areas within the seashore as “wilderness” under the Wilderness Act of 1964. Pub.L. No. 94–544, 90 Stat. 2515. The Wilderness Act “established a National Wilderness Preservation System to be composed of federally owned areas designated by Congress as ‘wilderness areas.’ ” 16 U.S.C. § 1131(a). Such areas are to “be administered for the use and enjoyment of the American people in such manner as will leave them unimpaired for future use and enjoyment as wilderness, and so as to provide for the protection of these areas [and] the preservation of their wilderness character.” Id. Accordingly, subject to statutory exceptionsand existing private rights, the Act provides that “there shall be no commercial enterprise ... within any wilderness area.” 16 U.S.C. § 1133(c).

The Point Reyes Wilderness Act designated other areas, including Drakes Estero, as “potential wilderness.” Pub.L. No. 94–544, 90 Stat. 2515. Congress considered designating Drakes Estero as “wilderness,” but declined to do so. The legislative history reflects that Congress took into account the Department of the Interior's position that commercial oyster farming operations taking place in Drakes Estero, as well as California's reserved rights and special use permits relating to the pastoral zone, rendered the area “inconsistent with wilderness” at the time. H.R.Rep. No. 94–1680, at 5–6 (1976), reprinted in 1976 U.S.C.C.A.N. 5593, 5597. Congress specified in separate legislation that the “potential wilderness additions” in Point Reyes “shall ... be designated wilderness” by “publication in the Federal Register of a notice by the Secretary of the Interior that all uses thereon prohibited by the Wilderness Act ... have ceased.” Act of Oct. 20, 1976, Pub.L. No. 94–567, § 3, 90 Stat. 2692.

II. Drakes Bay Oyster Company's Operations

Oyster farming has a long history in Drakes Estero, dating to the 1930s. Charles Johnson started the Johnson Oyster Company in Drakes Estero in the 1950s. His oyster farm was in operation on a five-acre parcel of land on the shore of the estero when Congress created the Point Reyes National Seashore. In 1972, Johnson sold his five acres to the United States, electing to retain a forty-year reservation of use and occupancy (“RUO”). The RUO provided that, “[u]pon expiration of the reserved term, a special use permit may be issued for the continued occupancy of the property for the herein described purposes.” (Emphasis added.) It added that, “[a]ny permit for continued use will be issued in accordance with National Park Service [“NPS”] regulations in effect at the time the reservation expires.” In late 2004, Drakes Bay agreed to purchase the assets of the Johnson Oyster Company. The RUO was transferred along with the purchase. The forty-year RUO ended on November 30, 2012.

When it purchased the farm, Drakes Bay was well aware that the reservation would expire in 2012, and received multiple confirmations of this limitation. The acquisition documents specifically referenced “that certain...