October 18, 2013

Drakes Bay Oyster Company fights on

By Anthony L. Francois Senior Attorney

Drakes Bay Oyster Company today filed a Petition for Rehearing en banc in the Ninth Circuit, continuing the shellfish farm’s fight for an injunction that will allow it to remain in business while it litigates over the Secretary of the Interior’s illegal refusal to renew its operating permit.

PLF will be filing an amicus brief in support of rehearing, on behalf of the California Cattlemen’s Association and the Building Industry Association of the Bay Area, focusing on the portion of the Ninth Circuit’s September 3 decision that says that the Secretary did not have to analyze the environmental impacts of shutting down an existing aquaculture operation, demolishing several buildings, and removing several large shellfish racks from Drake’s Estero, because the Secretary’s intent was to improve the environment.

Who would have thought that the Ninth Circuit would excuse a federal agency from complying with NEPA on the assertion that the agency is acting to improve the environment?  One wonders if the Court would take the same view of increased timber harvest and grazing in the National Forests, because these actions will protect against catastrophic wildfire?

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