September 13, 2013

Ninth Circuit fails to protect Drakes Bay Oyster Company from government abuse

By Anthony L. Francois Senior Attorney

Liberty Blog readers will be familiar with the ongoing courtroom battle between Drakes Bay Oyster Company and the Department of the Interior, over whether the oyster farm can remain in business at its historic location within Point Reyes National Seashore.  The Interior Secretary denied the company a permit renewal last November, after which the farm sued in federal court.  At the outset of the case, the federal trial court denied the farm an injunction that would allow it to remain in business while the lawsuit was pending, and the farm appealed to the Ninth Circuit.

Last week, the Ninth Circuit ruled against granting Drakes Bay Oyster Company an injunction, in a split decision.  Despite rejecting the Interior Department’s absurd assertion that the Secretary’s decision was exempt from any and all laws, the majority nonetheless concluded that the Secretary had wide discretion to grant or deny the permit, and could not find a legal basis on which to review the exercise of that discretion.

The Ninth Circuit’s decision is difficult to square with precedent that says when an agency makes a decision based on an erroneous interpretation of law, the decision should be set aside.  Drakes Bay Oyster Company has announced it will fight on, and will petition for rehearing of the injunction appeal en banc; PLF will be supporting their effort as amicus curiae.

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