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Drakes Bay Oyster Company's En Banc Rehearing Petition Deserves Denial
by Dan Carlin
Tuesday Dec 10th, 2013 8:36 AM
Following back-to-back losses in the Northern District of California and before a three-judge panel of the Ninth Circuit Court of Appeals, Drakes Bay Oyster Company (DBOC) has submitted its final petition to the Ninth Circuit, hoping it can block the Secretary of Interior’s November 2012 decision to let the oyster operation’s forty-year lease in Drakes Estero expire on its own terms. DBOC’s appeal likely will, and should, fail.
The oyster company’s petition for rehearing en banc to the Ninth Circuit, supported by an amicus brief filed by the Sacramento-based Pacific Legal Foundation (PLF), rehashes its unsuccessful arguments presented before the district court and the Ninth Circuit panel. Ultimately, it fails to show why rehearing en banc—an exceptional and rarely-invoked federal court procedure in which all judges on the circuit reconsider a previous panel decision—should be granted in this case.[2]

Under Federal and Ninth Circuit rules, en banc rehearing is “disfavored,” and may only be invoked in one of three circumstances: (1) when en banc consideration is necessary to secure or maintain uniformity of the court’s decisions; (2) the proceeding involves a question of exceptional importance; or (3) when the opinion of a panel directly conflicts with an existing opinion by another court of appeals and substantially affects a rule of national application in which there is an overriding need for national uniformity.

Having failed at oral argument to convince the court on the existence of a circuit split[3], appellants now focus on the latter two prongs, targeting the panel majority’s reference to an allegedly flawed, 1995 Endangered Species Act (ESA) case, Douglas County v. Babbitt, 48 F.3d 1495 (9th Cir.). PLF’s devotes most of its brief to the claim that Douglas County was wrongly decided, that it conflicts with decisions of other circuits, and thus must be reversed along with the decision in DBOC v. Jewell. The Ninth Circuit would be wrong to do so.

Accepting the unconvincing premise that Douglas County was “essential” to the panel’s opinion[4] and thus provides a hook for reversal (a claim that the Department of Justice’s reply brief thoroughly dismantles), PLF has conflated legal issues in a way that suits its agenda, but that would make for terrible jurisprudence if accepted by the court. PLF’s amicus brief states: “[w]hether NEPA applies to major federal actions which affect the quality of the human environment is a question of exceptional importance, under the ESA as well as in the context of permit renewal for existing activities on public lands.”[5] The brief’s awkward language begs the question it means to ask, i.e. to which federal actions does NEPA apply? This is indeed a complex and important question that Circuit courts and the Supreme Court have addressed over decades of NEPA jurisprudence and numerous rules. But for PLF to now argue that the Ninth Circuit or the Supreme Court should use DBOC v. Jewell, a narrow and highly fact-specific dispute, to definitively address that question verges on the absurd.

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