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:

Read Drakes Bay’s cert petition here: