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Legal Brief Shows Drakes Bay Oyster Company’s Rehearing Request Has No Legal Merit
by Amy Trainer
Thursday Dec 5th, 2013 2:15 PM
Environmental groups support Interior Department’s opposition to Drakes Bay Oyster Company's en banc rehearing and affirm 9th Circuit Appeals Court's denial of preliminary injunction.
Point Reyes, Calif. – Local and national environmental organizations filed an amicus “friend of the court” brief today lending strong support to the Interior Department’s legal case that the 9th Circuit Court of Appeals correctly denied a preliminary injunction to the controversial Drakes Bay Oyster Company, and that no en banc rehearing before an 11-judge panel is warranted. The environmental organizations include the Environmental Action Committee of West Marin, National Parks Conservation Association, Natural Resources Defense Council, and Save Our Seashore.

“For the millions of Americans that own the Point Reyes National Seashore, and who highly value our national park and wilderness areas, the law undeniably supports Secretary Salazar’s decision to create the first marine wilderness on the West Coast at Drakes Estero,” said Amy Trainer, executive director of the Environmental Action Committee of West Marin. “Two federal courts have upheld former Interior Secretary Salazar’s decision to let Drakes Bay Oyster Company permits expire, and there is no legal or factual basis to second guess those strong, clear decisions,” said Trainer.

Today’s brief concluded that the Company’s petition for en banc rehearing fails to meet the basic criteria for this exceptional full panel review, including failing to identify 1) a “conflict between the decision and existing precedent”, 2) any “question of exceptional importance”, or 3) “conflict with another circuit that “substantially affects a rule of national application in which there is an overriding need for national uniformity.”"

"The oyster company has every incentive to concoct arguments to confuse and delay the inevitable," said Gordon Bennett, President of Save Our Seashore. "Our brief to the Court exposes the company's nonsense for what it is."

Today’s brief highlighted “the several ways in which the dissent went wrong” and why the oyster company’s reliance on the dissent, rather than the majority opinion, underscores the lack of any basis for en banc review. The environmental brief noted that it “is beyond question" that the miles of wooden racks and commercial activities "are incompatible with wilderness status under the Wilderness Act, and that Congress, in enacting the 1976 Act designating Drakes Estero potential wilderness, recognized that. The premises of the dissent’s conclusions are simply wrong and provide no basis for rehearing en banc.”

In support of the 9th Circuit Appeals Court's majority opinion, the brief notes that the majority opinion rightly concluded that, “in the end the decision that NEPA was adequately observed and that DBOC has shown no prejudice from alleged technical violations of NEPA is not properly the subject of en banc review. There is no conflict between this holding and any Supreme Court or Ninth Circuit authority.” Further, DBOC has “shown no significant environmental harm that might result from restoring Drakes Estero to natural conditions.”