Ninth circuit hears argument on whether interior secretary is above the law

May 14, 2013 | By TONY FRANCOIS

Today, in the Ninth Circuit Court of Appeals, Drakes Bay Oyster Company presents its case for enjoining the Secretary of the Interior and the National Park Service from destroying its business before its legal claims can even be heard in court.  You can follow my live tweet from today’s oral argument on twitter @TonyFrancoisEsq, #SaveDBOC, starting at 9:00 AM Pacific.

At the heart of this case is the rule of law.  Do we have a government of laws which every one of us, the government as well as the governed, must observe?  Or do we have a government of elites, who get to make it up as they go and cannot be held accountable?


In Drakes Bay Oyster Company v. Jewell, United States Secretary of the Interior Sally Jewell is arguing that she is exempt from every law Congress ever passed.  Seriously.

In 2009 Congress enacted a straightforward authority for the Secretary to issue Drake’s Bay Oyster Company a new permit for its shellfish farm in Point Reyes National Seashore.  It includes the phrase “notwithstanding any other provision of law” to prevent the Secretary from denying the permit based on a prior congressional designation of “potential wilderness” surrounding the oyster farm.  Simple, yes?

When former Secretary Salazar denied the oyster farm a new permit last November, he claimed that actually this statute “expressly exempts my decision from any substantive and legal requirements.”

Former Secretary of the Interior Ken Salazar writes that Congress has exempted him from every other law it ever enacted.

Read that again.  That is a member of the President’s cabinet, asserting that Congress has licensed him to do, well, whatever he wants.  Everyone who cherishes liberty should be alarmed by the federal government’s interpretation of this law.

Pacific Legal Foundation defends liberty through the rule of law.  Without the rule of law, our property and freedom mean nothing.  As it hears Drake’s Bay Oyster Company’s appeal today, and when it decides it, the Ninth Circuit needs to remember the importance of the rule of law, and needs to reject the tyrannical assertion that Congress is, or can be, in the business of exempting members of the President’s cabinet from every law that every president ever signed.