Author Archives: Linda Petersen

Power to the People

In federal district court yesterday, Judge Yvonne Gonzales-Rogers made clear her disdain for the legal arguments presented in the lawsuit being brought against the Department of the Interior by some of the people who will suffer the most if Drakes Bay Oyster Farm is closed.
Those who are familiar with the very real harm that is being done by the closure of the oyster farm have a hard time understanding why that harm doesn’t carry more weight.
It seems that the legal system is, in a certain sense, a separate world. What matters in court is deep knowledge of the complexities of the law. There is no guarantee that a legal remedy can be found even in cases where there has clearly been a moral injustice.
Outside the courtroom, things are different.
Readers of the Citizen are likely to know the truth: That the Lunnys have been superb stewards of the land and water; that they have always conformed with every applicable legal and regulatory process, policy, and permit; that they cleaned up the oyster farm at their own expense; that they created a beautiful, prize-winning oyster that the local food community and the national oyster community is exceedingly upset at the prospect of losing; and that they did all this not simply for their own benefit but because they care deeply about this historic community resource.
And in the face of all this positive action, another known truth is that the Park Service has leveled false charges of environmental crimes against the Lunnys—false charges that are still being echoed by government lawyers as they argue in court.
These truths are known well beyond West Marin, as I learned firsthand yesterday.
A few blocks from the district court in Oakland is a lovely old section of town that features a number of interesting restaurants. The Lunnys and I stopped at the 1917 Swan’s Market, now restored as a casual food destination, with an open-air feel (one wall is open to the sidewalk), two fine restaurants, and an impressive artisan sausage maker.
We had drinks—and some absolutely perfect hand-cut Kennebec fries—at the lovely and lovingly named The Cook and Her Farmer, where the stated mission is to “seek to enhance the quality of food, strengthen the fabric of community, and to celebrate the beauty and vitality that is present in the city of Oakland by cultivating a needful spirit of generosity and gathering around the table for honest foods. We desire to foster a creative environment that supports the growth and development of future cooks and farmers.”
When the owners found out that it was Nancy Lunny ordering a glass of wine, they refused to let her pay for it. A little while later they brought us a bottle of prosecco and a big plate of oysters on the house. The chef/farmers, Steve Day and Romney Steele, were delighted to meet the Lunnys. They have followed the story of their ordeal, and are shocked and upset at the moral injustice perpetrated against them. They asked, as most everyone does, if there is anything they can do to stop the shutdown.
But here in the midst of the artisan food revival in Old Oakland, the emphasis was not on the legal battle or the controversy. The cook and her farmer were genuinely excited about meeting these kindred spirits. Like Steele and Day, the Lunnys have shown that they care deeply about improving the quality of food, sustaining the fabric of community, and promoting the growth and development of future farmers. The cook and her farmer were honored to shake their hands.
The same thing happened when we stopped at Taylor’s Sausage on the way out—the founders got excited when they realized who their customers were, and insisted on cooking up some of their finest product, on the spot, for the Lunnys to try. They beamed with pleasure when their artisan sausage was met with approval.
In the farm-to-table movement, the Lunnys are rock stars. That is one truth that can never be erased, no matter what else happens.

 

Ninth Circuit’s Drakes Bay Decision Would Hamper Historic Preservation, Argues Amicus Brief

As has been reported recently in these pages, four strong amicus briefs have been filed with the U.S. Supreme Court in support of Drakes Bay Oyster Company’s petition to have its case heard. One of these briefs, filed by The Monte Wolfe Foundation, argues that the Ninth Circuit’s ruling hampers the protection of historic and cultural resources. Attorney James Talcott Linford, writing for The Monte Wolfe Foundation, argues in the brief: “The ruling of the Ninth Circuit, that no NEPA review is needed where agency action seeks to restore a pristine state of nature, appears unique to the Ninth Circuit. It means that historic resources on Ninth Circuit federal wildlands are endangered because they cannot depend on NEPA for protection. Absent other protection, they may be – indeed, given [the Ninth Circuit decision] Drakes Bay Oyster’s reading of the intent of NEPA, should be – summarily removed.”

If no NEPA or any other process would be needed to remove an ineligible historic resource from wildlands, argues Linford, the historic resource would face an imminent threat. “Thus, the typical federal agency would find it impossible to promulgate the same procedures for ineligible historic resources on wildlands within the Ninth Circuit as for those within other Circuits,” argues the brief. “There is an intolerable split.”

Resolving splits among the Circuit courts is one of the main jobs of the U.S. Supreme Court. The brief also argues that the decision by the Secretary of the Interior to close the oyster farm was shaped by his misunderstanding of the Wilderness Act of 1964, which he must have mistakenly believed to be consistent only with pristine wildness. The brief argues: “The Drakes Bay Oyster majority’s support for the Secretary’s position on pristine wildness may well have shaped its holding that NEPA review was not needed “[b]ecause removing the oyster farm is a step toward restoring the natural, untouched physical environment.” … But NEPA does not call for the restoration of some ideal of pristine wildness.

Rather, NEPA recognizes the critical importance of restoring and maintaining environmental quality to the overall welfare and development of man, and to that end seeks to create and maintain conditions under which man and nature can exist in productive harmony, and fulfill the social, economic and other requirements of present and future generations of Americans. More specifically, NEPA calls for governmental action that will attain the widest range of beneficial uses of the environment without degradation …; preserve important historic, cultural and natural aspects of our national heritage, … [and] enhance the quality of renewable resources. (Emphasis supplied.)

Historic preservation is an explicit statutory goal of NEPA. “Restoration” of pristine wildness, as such, is not. Drakes Bay Oyster’s misapplication of NEPA is not merely erroneous; it is an error that creates an intolerable split between Circuits and poses an imminent threat to historic resources in federally administered wildlands.”

Read the amicus brief here: http://savedrakesbay.com/core/wp-content/uploads/2014/05/Linford-Brief-Petn-Cert-5-16-14.pdf

Read Drakes Bay’s cert petition here: http://savedrakesbay.com/core/wp-content/uploads/2014/04/Drakes-Bay-Oyster-Company-et-al-v-Jewell-et-al_Petition-for-Writ.pdf

Drakes Bay Oyster Files Reply Brief in U.S. Supreme Court

This week, Drakes Bay Oyster Company (DBOC) filed its reply to the government’s brief opposing the oyster farm’s petition to have the U.S. Supreme Court hear the case. The Supreme Court could decide whether to take this case as early as the end of this month. At stake is whether the government, in making countless everyday decisions, can be taken to court when it abuses its power.

The Ninth Circuit held last fall that a federal court does not have jurisdiction to review a discretionary agency decision for abuse of discretion. Drakes Bay petitioned the high court on April 14, 2014 for a writ of certiorari to review the judgment of the United States Court of Appeals for the Ninth Circuit in its case against the government. The government filed a brief on May 27, 2014 opposing the oyster farm’s petition. The brief filed today points out the weaknesses of the government’s opposition brief.

Drakes Bay has argued that the high court should take the case to resolve “the mother of all circuit splits.” A circuit split is an issue on which two or more circuits in the U.S. court of appeals system have given different interpretations of federal law. The splits in this case are on three critical issues: jurisdiction to review agency actions for abuse of discretion, applicability of the National Environmental Policy Act (NEPA), and prejudicial error under the Administrative Procedure Act (APA).

The government’s brief does not dispute the existence of these splits, that these splits affect a fundamental issue of administrative law, or that the issue is of national importance. Because Drakes Bay showed that there is a “reasonable probability” that the Supreme Court will take this case and a “significant possibility” that the oyster farm will win, the Ninth Circuit has allowed Drakes Bay to remain open while it takes its case to the Supreme Court. The cert petition can be found here: http://savedrakesbay.com/core/wp-content/uploads/2014/04/Drakes-Bay-Oyster-Company-et-al-v-Jewell-et-al_Petition-for-Writ.pdf

The reply brief can be found here: http://savedrakesbay.com/core/wp-content/uploads/2014/06/DBOC-Reply-Brief-in-Supreme-Court.pdf

Ninth Circuit’s Drakes Bay Decision Would Hamper Historic Preservation, Argues Amicus Brief

As has been reported recently in these pages, four strong amicus briefs have been filed with the U.S. Supreme Court in support of Drakes Bay Oyster Company’s petition to have its case heard.

One of these briefs, filed by The Monte Wolfe Foundation, argues that the Ninth Circuit’s ruling hampers the protection of historic and cultural resources.

Attorney James Talcott Linford, writing for The Monte Wolfe Foundation, argues in the brief: “The ruling of the Ninth Circuit, that no NEPA review is needed where agency action seeks to restore a pristine state of nature, appears unique to the Ninth Circuit. It means that historic resources on Ninth Circuit federal wildlands are endangered because they cannot depend on NEPA for protection. Absent other protection, they may be – indeed, given [the Ninth Circuit decision] Drakes Bay Oyster’s reading of the intent of NEPA, should be – summarily removed.”

If no NEPA or any otherprocess would be needed to remove an ineligiblehistoric resource from wildlands, argues Linford, the historicresource would face an imminent threat.Thus, the typical federal agency would find itimpossible to promulgate the same procedures forineligible historic resources on wildlands within theNinth Circuit as for those within other Circuits,” argues the brief.“There is an intolerable split.

Resolving splits among the Circuit courts is one of the main jobs of the U.S. Supreme Court.

The brief also argues that the decision by the Secretary of the Interior to close the oyster farm was shaped by his misunderstanding of the Wilderness Act of 1964, which he must have mistakenly believed to be consistent only with pristine wildness.

The brief argues:

“The Drakes Bay Oyster majority’s support for the Secretary’s position on pristine wildness may well have shaped its holding that NEPA review was not needed “[b]ecause removing the oyster farm is a step toward restoring the natural, untouched physical environment.” … But NEPA does not call for the restoration of some ideal of pristine wildness. Rather, NEPA recognizes the critical importance of restoring and maintaining environmental quality to the overall welfare and development of man, and to that end seeks to create and maintain conditions under which man and nature can exist in productive harmony, and fulfill the social, economic and other requirements of present and future generations of Americans.

More specifically, NEPA calls for governmental action that will attain the widest range of beneficial uses of the environment without degradation …; preserve important historic, cultural and natural aspects of our national heritage, … [and] enhance the quality of renewable

resources. (Emphasis supplied.) Historic preservation is an explicit statutory goal of NEPA. “Restoration” of pristine wildness, as such, is not. Drakes Bay Oyster’s misapplication of NEPA is not merely erroneous; it is an error that creates an intolerable split between Circuits and poses an imminent threat to historic resources in federally administered wildlands.”

Read the amicus brief here: http://savedrakesbay.com/core/wp-content/uploads/2014/05/Linford-Brief-Petn-Cert-5-16-14.pdf

Read Drakes Bay’s cert petition here:

http://savedrakesbay.com/core/wp-content/uploads/2014/04/Drakes-Bay-Oyster-Company-et-al-v-Jewell-et-al_Petition-for-Writ.pdf

 

 

 

 

 

Drakes Bay Oyster files reply brief in U.S. Supreme Court

This week, Drakes Bay Oyster Company (DBOC) filed its reply to the government’s brief opposing the oyster farm’s petition to have the U.S. Supreme Court hear the case.

The Supreme Court could decide whether to take this case as early as the end of this month.

At stake is whether the government, in making countless everyday decisions, can be taken to court when it abuses its power. The Ninth Circuit held last fall that a federal court does not have jurisdiction to review a discretionary agency decision for abuse of discretion.

Drakes Bay petitioned the high court on April 14, 2014 for a writ of certiorari to review the judgment of the United States Court of Appeals for the Ninth Circuit in its case against the government. The government filed a brief on May 27, 2014 opposing the oyster farm’s petition.

The brief filed today points out the weaknesses of the government’s opposition brief. Drakes Bay has argued that the high court should take the case to resolve “the mother of all circuit splits.” A circuit split is an issue on which two or more circuits in the U.S. court of appeals system have given different interpretations of federal law. The splits in this case are on three critical issues: jurisdiction to review agency actions for abuse of discretion, applicability of the National Environmental Policy Act (NEPA), and prejudicial error under the Administrative Procedure Act (APA). The government’s brief does not dispute the existence of these splits, that these splits affect a fundamental issue of administrative law, or that the issue is of national importance.

Because Drakes Bay showed that there is a “reasonable probability” that the Supreme Court will take this case and a “significant possibility” that the oyster farm will win, the Ninth Circuit has allowed Drakes Bay to remain open while it takes its

The cert petition can be found here: http://savedrakesbay.com/core/wp-content/uploads/2014/04/Drakes-Bay-Oyster-Company-et-al-v-Jewell-et-al_Petition-for-Writ.pdf

By Sarah Rolph

The reply brief can be found here: http://savedrakesbay.com/core/wp-content/uploads/2014/06/DBOC-Reply-Brief-in-Supreme-Court.pdf

 

 

Supreme Court Amicus Briefs Support DBOC

In an impressive show of support, four strong amicus briefs have been filed
with the U.S. Supreme Court in support of Drakes Bay Oyster Company’s petition
to have its case heard. The briefs show that farmers, environmentalists, scientists,
chefs, agriculturalists, conservationists, and historic preservationists all support
the historic oyster farm.

At stake is whether the government, in making countless everyday decisions,
can be taken to court when it abuses its power, misinterprets the law, or misrepresents
science. The U.S. Court of Appeals for the Ninth Circuit held that a federal
court does not have jurisdiction to review a discretionary agency decision for
abuse of discretion. Drakes Bay Oyster Company petitioned the U.S. Supreme
Court on April 14, 2014 for a writ of certiorari to review that judgment.
Because Drakes Bay showed that there is a “reasonable probability” that the
Supreme Court will take this case and a “significant possibility” that the oyster
farm will win, the Ninth Circuit has allowed Drakes Bay to remain open while it
takes its case to the Supreme Court.

The amicus briefs filed in support of Drakes Bay make compelling arguments
for why the Supreme Court should take the case.

And the very fact that there are so many amicus briefs is a positive indicator
for the oyster farm. A 2008 study published in the Georgetown Law Journal
showed that amicus briefs make a big difference. With no amicus briefs filed in
support, the odds of certiorari being grants were around 2 percent. With at least
one amicus brief filed in support, the odds of certiorari being granted were around
20 percent If, as in this case, there are at least four amicus briefs filed in support
of the petition, the odds jump much higher, to 56 percent. This means that the
oyster farm may have a better than even chance of having the Supreme Court take
its case.

This story provides a detailed report of one of the briefs, that of William T.
Bagley et al. Future stories will discuss the other three briefs, filed by the Monte
Wolfe Association, by the Pacific Legal Foundation and the California Cattlemen’s
Association, and by Dr. Corey Goodman and Dr. Paul Houser.
Elder environmentalists and farm-to-table chefs support aquaculture
Former California Assemblyman William T. Bagley and former Congressman
Paul Norton “Pete” McCloskey (co-author of the Endangered Species Act and cochair
of the first Earth Day) are two of the elder environmentalists joining the
brief filed by San Francisco lawyers Judith Teichman and Alexander D. Calhoun.
The brief underscores the overwhelming support for the oyster farm in the West
Marin community and beyond. As the brief points out, “The oyster farm is a small
presence in the Seashore’s marine wilderness but a large presence in California
and a critical source of fresh shellfish for the Bay Area.”

Additional elder environmentalists joining the brief are Phyllis Faber, noted
wetland biologist and co-founder of the Marin Agricultural Land Trust, and the
Tomales Bay Association, a 50-year old West Marin County environmental organization.
Tomales Bay Association supports DBOC as “a critical component of ongoing
habitat restoration projects for Threatened & Endangered species,
especially native oyster restoration projects in SF Bay and elsewhere in the State.”
Emphasizing the importance of DBOC shellfish to the menus of the farm-totable
restaurants in the Bay Area, the brief is also joined by a number of distinguished
chefs and restaurants: Patricia Unterman, chef-owner of the Hayes Street
Grill, a San Francisco Civic Center restaurant that has specialized in fish since
opening in 1979; Sheryl Cahill of Station House Café in Point Reyes Station, celebrating
its 40th anniversary, where oyster stew is a signature dish; Christian
Caizzo of Osteria Stellina, Point Reyes Station, an Italian restaurant “with an unwavering
commitment to local organic products” that serves DBOC oysters raw
and on pizza; and Luc Chamberland, whose Saltwater Oyster Depot in Inverness
features oysters shucked “moments after they leave the bay.”

Producers in California and around the country are unable to meet the growing
demand for shellfish. On behalf of the Hayes Street Grill, and the many Bay Area
restaurants, including other amici, amicus Patricia Unterman confirms “The loss
of oysters produced by DBOC would have a devastating impact on our mission,
our menu, and the expectations and pleasure of our customers. We cannot replace
the fresh, local, shucked oysters from DBOC.”

Survival of the oyster farm is vital to the survival of the ranches
The brief argues for the support and development of innovative, ecologically
sound and sustainable agriculture practices, and points out that the fate of the
oyster farm is entwined with the fate of the ranches here. “Survival of the oyster
farm is vital to the survival of the ranches in the seashore,” the brief states, and
the ranches in the Seashore are an essential component of agriculture in Marin
and Sonoma counties.”

Amicus Dr. Stephanie Larson, Livestock and Range Manager and Director of
the UCCE, Sonoma County, develops and implements projects that integrate dairy
and livestock production with rangeland management in Sonoma and Marin. She
has extensive experience working with Seashore ranchers to develop individual
ranch plans, which address water quality issues in the Drakes Estero watershed.
Dr. Larson is concerned that despite these efforts the ranches in the Drakes Estero
watershed may be held responsible for declining water quality in the Estero and
required to take additional cost prohibitive measures if the filter feeding oysters
are removed from Drakes Estero.

Underlining the importance to the oyster farm to the future of agriculture, the
brief is also joined by a many agriculturalists and agriculture organizations in addition
to Dr. Larson:
• The Sea Grant program of Scripps Institution of Oceanography, UC San
Diego, which promotes the wise use of coastal and marine resources and sustainable
aquaculture development
• Mike and Sally Gale, Owners of Marin ranch where they raise apples and
grass fed beef;
• Peter Martinelli, a third-generation Marin farmer
• West Marin Compost Coalition, a group of individuals working to divert all
organic wastes from landfill disposal to composting for the benefit of Marin
farms, gardens and ranches
• Agricultural Institute of Marin, a nonprofit corporation that operates Certified
Farmers’ Markets in Marin, Alameda and San Francisco
• Alliance for Local Sustainable Agriculture, an unincorporated association of
“environmentalists supporting and promoting local sustainable agriculture
through education, research, conflict resolution and advocacy”
• California Farm Bureau Federation and Marin and Sonoma County Farm Bureaus,
nonprofit membership corporations whose purpose is, respectively, to protect
and promote agricultural interests in the State and in their Counties and to
find solutions to the problems of their farms and rural communities
• Marin Organic: Founded in 2001 by “a passionate group of farmers, ranchers
and agricultural advisors to put Marin County on the map as a committed organic
county,” Marin Organic fosters a “direct relationship between organic producers,
restaurants, and consumers” to strengthen commitment and support for local organic
farms, such as DBOC.

To learn more about the interests of these amici and their arguments for the
continuation of Drakes Bay Oyster Farm, read the brief at:
http://savedrakesbay.com/core/wp-content/uploads/2014/05/cert-amicus-brief-
Bagley-et-al-final.pdf